Gitmo and the lawyers!

[jmm99]

The Obama administration will find this a harder nut to crack than can be done by a generalized EO which will sound good in principle. The problem will come in reducing the principle - "Close Gitmo !!!" - to practice.

Closing Gitmo will not solve the problem - nor sending them "somewhere". As to that, sending them back to Astan and Bagram is as good a temporary solution as any. Temporary - cuz that is the next dinner plate coming up the dumb waiter, as I reported here, at posts ## 161 & 163.

Two separate questions concern these detainees; and the others who will surely come into our hands in the future.

1. Their status under the GCs as ratified by the US. The Federal courts who have looked at this question have generally found (across the spectrum) that Common Article 3 of the GCs determines their status. In short, the Taliban, AQ and associated detainees are not PW/POWs under GC III, or civilians under GC IV. The arguments hinge on what treatment should be given detainees with this CA 3 status - and how long the detention can last.[*]

2. Criminal charges against those detainees under US law. First off, the statement that "making war against any nation outside that nation is not illegal" is simply not correct. It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

Here, we again have two kinds of possible criminal charges.

2a. Criminal charges against detainee armed combatants who have Common Article 3 status - that is, armed combatants of a non-state actor (even if a "Power" in the armed conflict) which has not accepted and applied the GCs in its treatment of detainees, etc. In the olden days, they could be tried by a summary military board of field officers and even executed. CA 3 simply requires that they be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

2b. Criminal charges based on US Anti-Terrorist, Anti-Torture and War Crimes statutes. Those charges have nothing to do with Common Article 3 status, but hinge on whether the crime is committed by or against a US national.

Admittedly, the Bush administration has made a hash of explaining all this to the public - and, for that matter, in trying some of those cases competently. I await the practical solutions to be adopted by the Obama administrtation - a wait of 6 months to a year before we see a "field manual" would not surprise me.

At that point in time, some Bush Bashers will undoubtedly support the Obama "manual" - even if it resembles the Bush "manual" in all material respects. Ain't partisan politics wonderful ?

-------------------------
[*] Some arguments have been made that the 1977 Additional Protocals I and II should be applied to CA 3 situations. Those were adopted by many countries in the heat of "surges" for anti-colonialism and wars of national liberation. The US did not ratify those protocals - nor were they ratified by India, Pakistan, Afghanistan, Iran and Iraq - which cover the present areas of interest.

PS: As I finished this, a Cheney bashing segment on this topic came on. The two media pundits either know nothing about the GCs and US criminal law; or, are simply mendacious.