Inspired by Moderateman
Published on June 14, 2005 By stutefish In War on Terror
Everybody is talking about this like it's a case of criminal justice.

It's not a case of criminal justice. It's a case of prisoners of war. These people were captured during combat operations or their aftermath, on or near a battlefield (allegedly--I'll come back to this in a moment).

Since the dawn of history, Armies have recognized the value of detaining POWs for the duration of the conflict. Otherwise, they just return to the battlefield and continue making your life harder.

In ancient times, the easiest way--sometimes the only effective way--to neutralize captured enemies was to simply kill them and move on. The God of the Old Testament doesn't tell the Israelites to massacre whole enemy tribes because He's an evil and bloodthirsty deity, but because that was the only policy that reflected the practicalities of war with belligerent neighbors. The Sicilian Don in Godfather Part II speaks to this issue when he gives the poor Widow Corleone his reasons for needing to kill Michael, her only remaining son.

Other cultures in other time periods have solved the POW problem differently, but they all recognized the problem. In the Napoleonic era, captured officers would often be released, along with their mount, weapons, and other gear, simply upon giving their word that they would not return to the conflict. Later, the Warsaw Pact and the Geneva Convention codified POW internment practices, balancing practicality with humanity to the extent that was practical for armies to carry out.

But armies have never been concerned with guilt or innocence. They are concerned only with neutralizing enemy combatants, either by killing them on the battlefield or detaining them until the conflict has been resolved. The military has no interest in putting the Gitmo inmates on trial. It would be a huge pain in the ass. It would be a ton of criminal justice system paperwork that has no place in the POW system. About the only interest the U.S. government has in these POWs--beyond their status as counters taken off the board--is the information some of them might have.

So what does all this mean to me?

It means that by all means we should examine the Guantanamo Bay as a POW camp. Are you concerned that not all the inmates are truly prisoners of war, captured on a battlefield (which may be a terrorist safe house in Fallujah)? I am, too! Let us call for a more complete explanation of who each of these people are, and the circumstances of their capture. But I have no desire to see the criminal justice system applied to these people. They weren't arrested according to the laws and customs which govern American citizens. Our courts would most likely have to acquit all of them on legal technicalities.

But these people aren't in our criminal justice system. They're not "innocent until proven guilty". They have the right to a fair trial, but they haven't actually been accused of anything other than "being in the wrong place at the wrong time". They're under the jurisdiction of the U.S. military, which captured them according to the time-tested customs of warfare which are now codified in our official war doctrine and our treaties with other nations.

If you can think of a jurisdiction better suited to detain POWs, let me know. I'm pretty sure the U.S. criminal justice system (or any other justice system) isn't it, though.

Guantanamo Bay is a POW camp. Is it an effective and humane POW camp? Probably. Does it have problems? More than likely. Are these problems such that we should abolish the practice of detaining POWs? Probably not.

So instead of trying to abolish Gitmo, let us study the problem of POWs, and see what ideas we can come up with to improve our handling of POWs and the quality of our civilian oversight of military matters.

Comments (Page 2)
2 Pages1 2 
on Jun 15, 2005
Being a war of idiology, part of the battlefield is public opinion. The enemy knows full well that the U.S. has a terrible track record in that department. Make it hurt and the U.S. will pack up and leave. So, plant a few stories a week in the press about how terrible the U.S. is behaving. Convince a few spineless politicians that this war is unwinable. Pay enough people to protest that the rest who are against the war will join in.


Ted, you hit the nail directly on the head there! This is a war of thought, not a war of boundaries, leaders or nations. We are fighting an "idea" which is the most dangerous fight possible.

It's dangerous for a number of reasons:
1. If you can't define it clearly enough, you can't easily designate what is and what isn't a part of the conflict. Since terrorists are waging war on our freedom through propaganda and lies, many consider people speaking out against the US Govt to be in league with terrorism, to be traitors by trying to subvert the American public. Is it an act of terrorism to speak out against the government now? WIll it be soon if we don't work to define the conflict?

2. You can't fight an unconventional war by conventional means, it makes the situation worse. Invasion, while a useful tool in the conventional war to eliminate opposing forces creates more of a problem than it solves when fighting a battle like this. The terrorist propaganda includes claims of American Imperialsm, when we invade we reenforce that point and drive people on the fence towards the terrorist cause.

3. It is going to be impossible to sustain support for fighting a war on a concept. A lot of people have commented that the public just isn't as supportive of this war as they were of World War II. The problem here is that the average American can't look at a map and point to the country we're fighting. They can't really identify a person or set of people who if we take them out we will win. We struck Afghanistan while the iron was hot following 9/11, and there was pretty solid support for that (yes, there were libs out there crying and tearing their hair out, but they were pretty few in number). Iraq was even given a pass largely due to how little time had still passed since the attacks. Americans were still really angry and wanted a target to hit. Now, we took Iraq, Bin Laden is in hiding and we haven't heard too much from him recently and nothing has been blown up in almost 4 years. Over time we forget, over time our tempers cool, and over time we just want to go back to living our lives. You can't expect indefinite support for a cause that is so ill-defined. The danger here exists when the government continues to push the war past the point of public acceptance.

Gitmo, like I said earlier, is the physical manifestation of this confusion, of this lack of definition and direction. We have combatants and terrorists being held there, but we're not sure what to do with them. We're not sure when this will be over, or if it will ever be over period. It stands to represent the transition to an age and attitude that honestly most people aren't all that comfortable with. We like answers, we like to know that wars end, we like to be able to declare victory and then move on. We're not sure if that's possible anymore.
on Jun 15, 2005

Reiki: You really need to find a new mantra. Or at least come up with some proof.
I think the Nazis are calling you home... run to them... go...
(This is probably the closest you'll ever see me to trolling on this site)

You got to hand it to Herr Haus.  The right claim he is a loony liberal, and the left claim he is a right wing Nazi.  He is equally despised by both sides!

on Jun 16, 2005
Zoomba, some good points you made there, however, if you remember, they brought the fight to us, we merely (and finally) returned fire.

We can sit around and take terrorist attacks for the rest of our existence, or we can turn and start to make terrorism a very expensive way to do business.

We were sitting ducks long enough. Now it's time for them to DIE!
on Jun 21, 2005
Since noone here seems terribly well versed in international law, a short refresher course:

POWs are POWs of a specific war against a specific country, and this administration has never claimed that the detainees at gitmo are POWs for precisely this reason, well that, and POW status requires regular ICRC visits.

The grey area that everyone here seems to think the prisoners fall into because of this new and totally unprecedented type of war is actually spelled out quite clearly by the Geneva Conventions. They are illegal combatants, fighting without formal affiliation to any army, or so this administration claims. The resolution to this is that an international tribunal is to hear the cases of each prisoner to whom we wish to attach this label and adjudicate their status either as POWs or as illegal combatants. Of course, all of this is academic as the present administration, as well as most of this country, is ill disposed towards international venues at the moment.

If we want to discuss this situation within the confines of our legal obligations under Geneva, these are the terms. If you don't like these terms, the first argument that must be made is why and how we are to abandon the very laws of war we helped to write. So far as I can see, the present laws would work just fine, had we an administration amenable to the kind of process transparency required for them to work.
on Jun 21, 2005
"The resolution to this is that an international tribunal is to hear the cases of each prisoner to whom we wish to attach this label and adjudicate their status either as POWs or as illegal combatants."

What would we then do with the ones labeled as illegal combatants? And who would form the international tribunal?
on Jun 21, 2005
It would interest me very greatly if U.S. citizens, arrested by U.S. law enforcement authorities within our borders, were being transferred out of our criminal justice system into the custody of the military.


try googling 'jose padilla'
on Jun 22, 2005
kingbee, I have Googled "jose padilla". Here's the summary of Padilla's story, accorting to Google's top search result:


On June 9, 2002 Jose Padilla--a.k.a. Abdullah Al Muhajir--was transferred from control of the U.S. Department of Justice to military control. Since that time, Padilla has been held in a navy brig in South Carolina.

Padilla has not been charged with a crime, and does not have access to a lawyer in his detention. This is a clear violation of the 5th Amendment, and probably a violation of the 6th Amendment. It is also a clearly abominable violation of the democratic traditions of the United States.

Padilla has been accused of plotting heinous acts of terrorism, particularly the setting off of a "dirty bomb". He has been accused of conspiring with members of al-Queda, and planning to scout for that terrorist organization, using the benefits of his U.S. citizenship. President Bush has designated Padilla an "enemy combatant".

These are frightening accusations, and they may be true. Accusations do not give the President the authority to lock someone away, however. According to the laws and traditions of the U.S., the way to determine who gets imprisoned is through the due process of a trial by jury.

Jose Padilla may be a traitor and a terrorist. But he was not captured in Afghanistan with a gun in his hand. He was arrested at Chicago O'Hare airport. If Jose Padilla can be held without criminal charges, strictly on the say-so of the President, then any American can be. That is tyranny. We must put an end to it.

It is essential that Padilla be either freed or charged with a crime.


The site also quotes the Fifth Amendment:


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Obviously, several legal minds both at the Department of Justice and at the Department of Defense agreed that the President's actions were perfectly legal. So either the Conspiracy is at hand, or there are other legalities at work here--including, possibly, the lawful authority of the President to designate a U.S. citizen as an enemy combatant. This website is convinced the President doesn't have such authority. The President is convinced otherwise.

In any dispute between the Internet and the President of the United States, I'm inclined to give the President the benefit of the doubt. However, what could be the legal basis for detaining Padilla as a POW? I will continue to investigate.
on Jun 22, 2005
Awesome. I wish more people would actually copy & paste info like that instead of just telling us to google something. Keeps us all on the same page.
on Jun 22, 2005
In any dispute between the Internet and the President of the United States, I'm inclined to give the President the benefit of the doubt. However, what could be the legal basis for detaining Padilla as a POW? I will continue to investigate


Let us know if you turn up anything interesting as I don't quite agree with your stance on giving the president the benefit of the doubt
2 Pages1 2