Antisocial X-Rays: The status of captured terrorists

The European elite has finally objected to the treatment of prisoners in Cuba. Of course, it's not the political prisoners tortured by Fidel Castro, but the captured Taliban and al Qaeda terrorists held in Guantanamo Bay by the U.S. who are the objects of their solicitude.

By any reasonable standard, the prisoners there are being treated humanely, especially given the temporary nature of the facility and the dangerousness of the detainees. They are receiving food, shelter, and even copies of the Koran. But the stringent security measures — the see-through cages, the hoods when in transit — are necessary. For these prisoners, every surrender is a possible prelude to a prison riot, every visit to a hospital a possible set-up to a suicide attack.

That's because these detainees aren't soldiers, but part of a murderous gang that exists outside all civilized strictures. The Geneva Convention does not apply to al Qaeda members, since they did not, as required by the convention to qualify for its protections, wear proper uniforms, answer to a responsible chain of command, and abide by the rules of war (or sign the treaty, for that matter). They are war criminals. Now, the administration has yet to say clearly whether it considers Taliban as well as al Qaeda prisoners unlawful combatants. If it does not, it is obliged to hold hearings to sort out the legitimate prisoners of war.

The conditions of Camp X-Ray are not meant as a de facto punishment; the camp should be a temporary expedient for penning the prisoners up until they can be dealt with appropriately, which for the unlawful combatants means a trial before a military tribunal followed by either a swift execution or long-term imprisonment. One reason that critics want the administration to agree that the Geneva Convention applies to all Guantanamo prisoners is that it would afford them the same legal rights that apply to U.S. soldiers and thus let them circumvent the military tribunals. But the fact that the al Qaeda detainees need to be tried at all should point out the absurdity of considering them POWs; real POWs aren't tried, but simply held and released at the end of the conflict.

To obscure these distinctions is to blur the difference between civilization and barbarity. Members of al Qaeda chose the latter, and we have no obligation to protect them from the consequences of that choice.

The Geneva Convention does not determine absolutely who is and who is not a prisoner of war.

The Geneva Convention is an agreement within which are guidelines by which a country whose people are captured during warfare may address to the captors the matter of how such captives ought to be treated.

Now --- "by convention" --- the country which is the plaintiff, so to speak, may request of others within the agreement, The Geneva Convention, to intervene though the fellow signators may not be participating belligerents; but such intervention is to proceed only on the point of the treatment of the captives.

However, setting that aside for the moment, because I am going to research it and get back to you all on the topic ... it is important here to note that the behavior of the captives has very much to do with their status; those who conducted warfare may be distinguished from those who conducted warfare in addition to criminal activity, or absent warfare they conducted criminal activity --- either way, criminal activity FOR WHICH THERE IS EVIDENCE; even IF they are prisoners of war, they may be tried in the courts of the captors and then punished; in addition to which, if repatriated, such captives' authorities of record may also try them for the crimes when particularly heinous.

There is a major difference between what they might be made out to be, in contrast, again, to what they actually did.

Scenario: country A warring against two military powers, B-1 and B-2, which are themselves in contest for achieving government power or foreign territory, may or may not choose to treat captives from B-1 and / or B-2 as prisoners of war. A settled geo-political nation-state is not a requirement. Furthermore, the Geneva Convention guidelines are not a requirement.

That convention bears in the event of two of its signators becoming belligerents, in which dispute, again, one of the two can [supposedly] rely upon other signators to bring pressure upon the other belligerent to treat "the party of the first part's" people under the agreed guidelines. But non-signators do not have the weight in appeal to the body of signators, which is the "luxury" of the signators, and the non-signators' people who are taken captive are more at the mercy of the captors.

But nowhere in this situation is a prohibition upon the captor under which the captor is prevented from treating the captives as prisoners of war.

The overall guide from out of history, is whether or not there is, or is not, warfare --- that's the key word.

Captives taken during warfare may be treated by the captors as prisoners of war; but, absent an agreement on treatment, the captives' authorities of record have not much of a case to demand how the captives ought to be treated. (However, THAT hardly prevented the Red Chinese and North Koreans from making all kinds of demands with regard to the Korean War.)

I'm not talking about whether or not I like the ideas nor what we ought to do or not do; rather, there is plenty of historical precedent for regarding captives taken during warfare to be prisoners of war, especially when absent an agreement on treatment.

Furthermore, it is a matter of precedent that regarding combatants at war against the U.S., permits the U.S. to NOT immediately submit captives to the justice system of the U.S., and more pointedly, let us say should a known combatant be spotted by our warriors, that combatant can be shot dead on sight respecting the general rules of warfare. Whereas a pirate known as a "terrorist" or "brigand," actually has some protection under the law when spotted, and an effort must be made to affect an arrest, respecting due process.

Treat them as combatants and they can be shot on sight, but treat them as "terrorists," and discover that we haven't a sufficient body of law --- OTHER THAN CRIMINAL JUSTICE --- to deal with them (and "efficiently," if that is your desire).

To wit: presently, if they are not prisoners of war, we are in a whole lot of trouble, because then the fact of their captivity follows that they have actually been arrested, and they MUST be permitted legal counsel, etc. (you know what THAT means).The Constitution does not authorize the U.S. government to hold a person in legal state-less-ness.

That, meant for our protection from excess and / or arbitrary and / or tyrannical government, is why President Lincoln "suspended" the Writ of Habeas Corpus --- so that he would not be troubled, immediately, by this particular problem. he thought he needed to hold people without lawyers banging down the doors.

Well, many Freepers have been real unhappy about that particular suspension of our Constution under President Lincoln; and he has taken quite a beating here.

Well, I propose to be consistent with our adhering to the Constitution, in spite of how uncomfortable it may be in these circumstances.

Because there is in fact warfare, unsettled, between those who would hurt us and us; if we treat them in the field as people who have for the most part committed crimes, then we have to accord them due process under our criminal justice system(s); but if we treat them as combatants, until they surrender, they are fair game in the crosshairs; and even when they surrender, though they be prisoners of war, we have plenty of precedent for still prosecuting those against whom we have evidence of their having committed criminal activity.

You can find on the Internet, quite a lot of history about various German and Japanese P.O.W.'s whom we introduced to rope because of their criminal, usually on a large scale, slaughter of people who were not combatants.

Sincerely,

First_Salute

One of my concerns, is that if we do not follow precedent and treat them as P.O.W.'s, the liberals will manage to insert an entirely new Dept. of Terrorist Correction, which of course won't correct but a few in the rarest of circumstances, but about which quite a lot of bleeding hearts will obsess.

Bush has opted for the legal-state-less-ness because he does not want the criminal justice theatre curtain to go up for a long run; and, he's using Lindh as a sample for testing his theory.

But, IMHO, we'd be better off, and he'd have more control, by leaving the captives in the category, P.O.W., which does permit our military to try the bad guys for criminal activity.

Last thing we need, is the liberal administration of New York, should the governor go Democrat, decide that its attorney general will get into the act ... and on ... and on ... and on ... rebuilding N.Y.C. but for the most part keeping a whole lot of lawyers comfortable in their trade by "going after" whatever it is of late, that states' attorneys general will sue for their own political benefit.

The failure to maintain these captives as P.O.W.'s, will let lawyers and activists contest minutae in definition and legal processes, which wordsmithing will never let the matter resolve, or worse, cause the people of the country to desperately permit the government's taking a really big arbitrary step "to get it over with," which usually means another large bite out of the Constitution.

That is not necessary --- because piracy, terrorism, and all its varieties ARE NOT NEW. Rather, what is new, is the current fleet of lawyers and policy wonks who DO NOT KNOW THEIR HISTORY and purposefully so, in order to increase federal power and control over the people under the color of "a clear and present danger" and "doing something about it."

The notion that our Constitution is hindering us, is balderdash; when what stumps our "higher-ups" is their own lack of conviction in the face of the risk of political consequences; and, WHAT THEY DON'T KNOW ABOUT our history, lost in a sea of lawyer - terminology - of - the - moment.

Just exactly like auto racing when the scuttlebutt among crews is that they pretty much know everything, but then along comes a crew with a faster car ... built upon an improved application of an old principle.

I like the idea of bundling up all the GITMO prisoners and finding a prison yard in Belgium, near the Hague. We fly over real low and push these guys, each with parachute a pack, out the rear doors of C-130s, so they land in the prison yard.

Suddenly the world gets to bitch about mistreatment on somebody else's turf, and the high-and-mighty world courtiers can stumble over what to do with the perps. After all, it's the world-istas who claim the right to fuss over 'em --- well, let 'em, up close and personal.

On the matter of your comment about what if anything is missing, I doubt much is, with regard to your skills of observation, but I do not actually know. And by that, I mean that here at FreeRepublic.com, far too many Freepers are "experts" at rapid-fire, shooting off the word "you."

Whereas I try ... to focus on what works, building, construction, what tools are required to get where we ought to be (v. lost in extra-Constitutional space), and what we need to do to maintain Liberty.

My belief is that the people have a direct say in what will be the rule of law --- the rule of law is not a prerogative of Big Lawyers, nor of "experts" in bowties, nor of the "liberal media," nor under the Constitution.

The rule of law, the fundamental common law, and natural law ... I believe, are at any time the net of what is on the public mind and in our hearts. So I pay attention to it, as much as to "case law" and "judge made law;" but I most value our duly-elected representatives' legislative made law more than those two favorites of people who would bypass the Constitution in their politics of their moment.

That said, I would stick to my arguments above, correcting them in accordance to the good finds by Congressman Billybob, and then I would settle for a vote on what to do with the prisoners, that is, what is their status, individually.

While at the same time, I would remind the world of the remoteness of the prisoners from any standing as P.O.W.'s under the Geneva Convention, because the prisoners do not qualify unless their authorities of record (for example, the Taliban) can be argued to have exercised sufficient force majeur to weigh in as contenders for, and have argued their intent of, establishing a government for the territory known as Afghanistan. THAT does NOT seem to have happened; rather, the prisoners and the Taliban (the "authorities of record") have been more a terror in Afghanistan, than anywhere else on the planet other than in remote Africa.

So, while we may treat the prisoners as P.O.W.'s as a possibility other than "illegal combatants" in order that we adhere to our Constitution and such responsibilities, the nature of their capture, whereby we resorted to warfare to affect their capture because their martial power, permits us, if WE choose, to treat them as P.O.W.'s.

The choice, the vote, if you will, is that we will not; rather, they "enjoy" the status of pirates subject to military tribunal on land or military courts jurisdiction at sea.

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