Quick Hamdan Thoughts
Despite the early hype, I don't think the Supreme Court decision on Hamdan v. Rumsfeld is the worst decision ever or the best. It doesn't cripple our ability to wage war, nor does it let Al-Qaeda run free. It simply grants Congress the ability to have a say in how we treat these combatants.
I think this is a fairly sensible decision, and echoes the Youngstown decision half a century ago: when the President acts without the consent of Congress or in defiance of Congress, his powers are "at a low ebb." In light of the recent passage of the McCain Amendment, it's fairly clear to me that Congress has rejected mistreatment of prisoners and extra-legal proceedings. A low ebb, indeed.
So where do we go from here? I say (as have others) that Congress should reassert its rights and officially declare war on Al-Qaeda and any other organizations that give it aid. This is something we should have done from the start, but better late than never. Following the full declaration, the prisoners at Guantanamo would be immediately reclassified as full POWs until the end of hostilities. Since Al-Qaeda and its allies are unlikely to surrender or sign a peace accord, we could indeed hold these POWs indefinitely. The catch is that we would have to treat them appropriately, which I think is not only humane, but more likely to provide us with reliable intelligence.
posted by Joshua @ 10:22 AM
4 Comments:
Since the Geneva Convention applies to these prisoners, they should simply be treated as prisoners of war. POWs can be held for the duration of a conflict under the Geneva Convention, no trial is necessary. Of course the question arises as to when this conflict can be considered over.
Actually, I'm pretty sure Cato is more right on this - it's not particularly clear that the Geneva Convention applies to all of these prisoners. Geneva Conventions were primarily designed to cover the armies of nation-states and their uniformed and recognizable soldiers. Whereas, spies moving about and doing their dirty work without a uniform, had a more dangerous job that lacked the protections of the Geneva Conventions, as they're ineligible for POW status. Similarly, members of Al Queda would also operate outside of Geneva and would not be POWs.
Now the problem becomes - Taliban thug (covered by Geneva) or Al Queda goon (not covered)? And without some sort of hearing/trial, I find it hard to believe any sort of proper determination has been made.
And Human Rights Watch seems to agree. In 2002, HRW wrote: "The Geneva Conventions presume that a captured combatant is a prisoner of war, unless a competent tribunal determines otherwise on a case by case basis. While members of al-Qaeda would probably not meet the Geneva Conventions' requirements for POW status, members of the Taliban's armed forces mostly likely would. For the purposes of determining POW status, U.S. recognition of the Taliban as the legitimate government of Afghanistan is irrelevant-despite assertions to the contrary by some Adminstration officials."
Well, the Taliban was the only government at the time and their army consisted of "irregulars." I think they are clearly POWs. The question of Al-Qaeda is more murky but it may be more expedient to treat them as POWs rather than risk putting them through the U.S. civilian court system.
Cato is right. While we shouldn't think that the Geneva Conventions "don't matter," (and is that even correct? Seriously, I'd always heard it referred to in the singular, but then again, I'm not a well-trained patsy for a criminal administration) this isn't about Geneva. Guantanamo is, first and foremost, a constitutional matter, which is where due process comes in.
Either you're a POW or a civilian prisoner, and that determines the court which will try you. Charges must be brought forth. I was about to write, "...or else set the prisoners free," but I won't. I'd like to see every one of the Guantamo detainees brought up on their supposed crimes within the next three months, if only to see the DoJ's obvious fabrications.
The prisoners there, and I'd wager that many if not most of them are innocent, deserve to leave with their names cleared, and not just let loose under suspicion. If geneva doesn't apply, which it seems like it doesn't, then try them. Some will be found guilty, others will not, but what are the charges?
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