January 22, 2002



Two important things in the Washington Post article about today's presser with Rumsfeld. The defense secretary is apparently trying to back away from his earlier statements that all the Americans' prisoners are automatically "unlawful combatants" with "no rights to speak of." As of today, they're now "battlefield detainees", which is as close to "PoWs" as we're ever likely to get from the euphemistic American military, so one has to be satisfied. Second, Rumsfeld acknowledged today that the Geneva Convention does apply to Americans, too, and their prisoners, at least until a proper court can try them.

"Let there be no doubt, the treatment of the detainees in Guantanamo Bay is proper, it's humane, it's appropriate, and it is fully consistent with international conventions."

There, now, was that so hard? I, for one, am satisfied.

Posted by BruceR at 05:48 PM



I can say I totally agree with the sentiments of the New York Times editorial on the Guantanamo situation today. They've got the issue (not the canard of supposed brutalities, but the problems with believing the Geneva Convention does not apply to Americans in Afghanistan) dead on. There is, however, a factual error in the last paragraph:

Far more is at stake than legal technicalities. Any detainees who qualify for prisoner of war status cannot be brought before the military commissions proposed by the Bush administration, but must be tried under regular court-martial procedure or in American civilian courts.

This is incorrect. If a given detainee qualifies as a POW, they can still be tried for offenses committed while a POW, by court martials and civilian courts. If all they are is a POW, though, not charged with war crimes (ie, an "unlawful combatant"), then they can't be tried for ANY offenses committed before their imprisonment AT ALL, and must be summarily released (assuming they behave themselves) when hostilities are considered to be over.

It's best to think of this as two tiers of imprisonment. Anyone caught under arms on the field of battle is a POW: that's the first level. Again, the conventions are quite clear. POWs live under military custody until the war's over, and are released. The second, higher level of custody is that if a competent court (in any country, military or civil) thinks they can build up enough evidence to charge them with war crimes: they then can be ruled an "unlawful combatant" and extradited from the POW camp (if necessary), and jailed in anticipation of a trial by the court in question. As the accused in a crime, they can now be interrogated... when they were just POWs, on the other hand, they couldn't. They can also, if convicted, be held for the duration of their sentence.

Ideally, everyone agrees, any rank and file Talibs should ultimately end up on the POW level, and the terrorists identified and elevated to the war criminal level. This kind of POW triage is akin to Germany in 1945: there were lots (millions) of POWs, but a much smaller number within that prisoner pool were then indicted for war crimes and sent up to Nuremberg.

The trouble was, this time the Americans didn't have their mechanism for indicting and prosecuting the proven terrorists for their war crimes (the hated military tribunals) in place soon enough. So instead they declared ALL Taliban and al Qaeda they had in custody to be "unlawful" (ie, to be treated as if they faced war crimes charges) to keep things simple. This time, they sent everyone to Nuremberg. It's like Eisenhower saying in 1945 everyone in the Wehrmacht was a presumptive war criminal, until we're content they're not, just to keep our options open. Given the Nazis' extensive crimes, would that have been just then? Maybe. Would it have been American (what with all that presumption of innocence stuff, and roots in a revolution won by "guerrilla tactics" by an "unrecognized government")? Not a chance.

Posted by BruceR at 05:35 PM