January 23, 2002



An arrogant-yet-vapid piece by Claudia Rosett today on the Guantanamo prisoners. She says the real scandal is that the Red Cross is doing... well, its job, apparently.

The real shame of Guantanamo Bay has nothing to do with U.S. treatment of captured Taliban and al Qaeda fighters now held there. It has everything to do with the International Committee of the Red Cross rushing to the scene, waving the Geneva Conventions as if riding to the rescue of those lovable old POWs on "Hogan's Heroes"--demanding that modern disciples of terrorism be handled simply as good old conventional prisoners of war.

(No, they're not, by the way. The ICRC itself isn't demanding anything, but those who support the application of the Conventions to America, such as Human Rights Watch, are demanding the detainees be treated as prisoners of war until someone actually charges them with terrorism.)

Rosett argues the U.S. should consider withdrawing its funding from the ICRC as a result. Now given that the ICRC's main mandate and purpose, as stated in the Geneva Conventions, is to investigate all internments of military prisoners, one wonders what else they could do but "rush to the scene, waving the Conventions" when the Americans capture people. So, what is it, specifically, that the ICRC has done that is so outrageous? Why, why, they've promised to be thorough, damn it! Even though we're Americans!

But in explaining this mission to the press, another ICRC spokesman, Kim Gordon-Bates, chose phrases that pretty much damned the U.S. by insinuation: "They will look at the premises very, very carefully."

Yeah, that's damning all right... Rosett also accuses the ICRC of violating its mandate to keep its reports on prisoner conditions confidential. Her evidence? Um, other than the quote above, she doesn't actually offer any. Which would be none, I guess.

Anyway, all these international conventions are just silly, she says:

...what leaps to light is that with the spread of terrorism, the respected old ICRC--and the conventions it tries to uphold--are woefully out of date.

It goes without saying that a Convention last ratified in 1949 could be up for an overhaul. But it's also safe to say that the kind of overhaul Rosett desires, apparently the removal of due process restraints and any residual sense of impartiality when dealing with soldiers in countries Americans currently disapprove of, would be a cure worse than the disease. It certainly deserves an argument stronger than the best she can do, which boils down to: "the Conventions are out of date because SNL made fun of them last week."

"There may well be a role" for international norms like the Geneva Convention and the ICRC, Rosett opines, but only if they can be rewritten to prevent ridicule by American comedians. Well, thanks for offering them a window back into your good graces, there, Claudia...

Instapundit's got an interesting implied accusation in its summary of this item, today, claiming the ICRC has "briefcases of unaccountable cash" and demanding reporters investigate it and other humanitarian groups. Is there any evidence behind that, Professor, or are you just shooting your mouth off, Bellesiles-style?

Posted by BruceR at 01:58 PM



With due respect to the estimable Steven Den Beste, I believe he's misreading both American law and the link to possible precedents for the Ramsey Clark habeas corpus situation, which he helpfully drew my attention to. Den Beste offers 4 reasons why the request for a writ is No Big Thing, but none of which seem to stand up to scrutiny.

First off, he argues that the captives could go to military tribunal instead of a civilian court, and so the concern Iain raises -- that the habeas corpus fight could blow up, with the courts declaring all American laws inapplicable to foreigners who have committed crimes abroad just to save the army from its habeas problem -- won't make a difference. (I actually don't believe Iain's concern is founded here: sure, the courts have raised questions about previous indictments against Bin Laden himself for crimes outside the country (ie, the embassy bombings), but Sept. 11 made all that moot, anyway, as there is now a clear criminal act on U.S. soil. One way or the other, Al Qaeda IS going to get prosecuted for that, it's safe to say.) But, getting back to Den Beste's point, the military tribunals are also assumed to follow the Bill of Rights, and so even if the government states now that it is their intent to prosecute these prisoners before tribunal, the habeas right will still need to be explicitly waived by the courts, as the enabling order for the tribunals does not appear to specifically waive it.

Second, Den Beste argues Congress may already have laws on the books allowing for war crimes prosecution that may include the waving of habeas. I've seen no such evidence... if they had, odds are it would have been brought up by now, as it would have substantially weakened the argument for these unpopular tribunals.

Third, Den Beste argues the Noriega prosecution is a precedent. Trouble is, it's not, not just because Noriega was tried for offenses (drug trafficking) that were considered domestic crimes, but because the civil courts moved hand in hand with the military occupation: when the Americans took Noriega into custody, they already had indictments pending. In this case, to my knowledge, they do not against any of the Guantanamo prisoners (they would, of course, have against Bin Laden himself and possibly other senior Al Qaeda members). Noriega's prosecution was never vulnerable to a habeas action.

Fourth, Den Beste argues that because the prisoners are de facto PoWs, they can be held indefinitely on that basis, even if the courts screw things up somehow. But prolonged PoW-type custody is also untenable, as the enabling Conventions specifically state it must end as soon as practical after wars' end. The more Afghanistan returns to some kind of normalcy, the more the charge that the Americans are imprisoning people without trial or charges will build. For both domestic and international reasons, a trial of some kind is the necessary outcome of all this: prisoner of war (or "battlefield detainee") status can buy the States time... nothing more.

Rumsfeld's verbal redactions today suggest the government now realizes this. By backing off the "everyone an unlawful combatant" pretense, and embracing as closely as possible (without raising other kinds of problems) the position that these Guantanamo prisoners are de facto PoWs ("battlefield detainees"), they are clearly trying to buy time until proper indictments or warrants can be delivered by some competent court. The trouble is, they've found out, is that just saying the prisoners are not befitting of PoW rights, without evidence or any hearing that establishes that, leads inevitably to claims of imprisonment without trial. That means sooner or later you also then have to get the courts or the government to waive habeas corpus rights over your detention system... and we all know how popular that made Lincoln, for instance. In effect, in order to immunize themselves against the requirements of America's own justice system, they are cleaving more closely to the Geneva Conventions. Iain actually makes a strong case that this Clark application for a writ will be ruled out of jurisdiction by the first judge, then overturned on appeal (because the same appeal court has ruled thusly on a similar case in the past, and they're unlikely to overturn themselves). The Clark request for a writ will then end up at the Supremes, who will likely rule in America's best interest.

Will the Guantanamo prisoners somehow spring free out of all this? Of course not. There is no doubt the courts and the government between them will find a way to keep these people from posing a risk to Americans for the foreseeable future. Rumsfeld's moves today should really be seen as an attempt to meet the courts half-way just to be sure, by bringing government practice close enough to historical precedent so that the Supreme Court doesn't need to tear too many pages out of the lawbooks to make those imprisonments stick when Clark winds up in front of them (as I fully expect he will). The question at issue is not the prisoners themselees, but how much collateral damage, in terms of dangerous legal precedents, might the U.S. legal system have to suffer in order to justify keeping them right where they are?

Of course, this all could have been avoided if the government had said flat out from the start that all Afghan prisoners were being considered PoWs/battlefield detainees until such time as the tribunals started sending out warrants for their arrest and incarceration as criminals pending trial. They could even have shipped them to Cuba, still as PoWs. It was Rumsfeld's unwise initial stance, one that implied America had already settled their guilt extrajudicially, that gave legs to the Clark motion.

Posted by BruceR at 02:21 AM