Crimes, War Crimes and the War on Terror

[Schmedlap]

If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory...
A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way.

Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease? It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.

That sounds about right, even to my unsophisticated brain. The lawyers seem to outnumber the chiefs and the indians.

[jmm99]

I love Ken White's "... the Lawyers totally blew it in an effort to outsmart themselves." We do that everyday; but it's not always noticed !

Also, like Wolfsberger's quoting the GC provisions - RTFO is a good rule.

The two L & C articles most pertinent to the present discussion seem to be:

Tung Yin, Enemies of the State: Rational Classification in the War on Terrorism, 11 Lewis & Clark L. Rev. 903 (2007)
http://www.lclark.edu/org/lclr/objec...4_Art3_Yin.pdf

Mark Weisburd, Al-Qaeda and the Law of War, 11 Lewis & Clark L. Rev. 1063 (2007)
http://www.lclark.edu/org/lclr/objec...8_Weisburd.pdf

Despite being a U of M law grad, Weisburd's Conclusion seems quite rational.

Tacitus and I have to talk about the Nuremburg and Tokyo trials someday - but not today.

Also, Jedburgh citation of Rand's James Renwick, Gregory F. Treverton, The Challenges of Trying Terrorists as Criminals (2008), provides an overview of the practical procedural problems in the "Common Law, Magna Carta" jurisdictions.
http://www.rand.org/pubs/technical_r...RAND_CF249.pdf

[marct]

Hi Schmedlap,

Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease?

On the surface, it makes sense. The unfortunate thing is that "terror" is not a nation state. How can that "war" end? Will the President for Life of "Terror" sign a peace treaty ? Sorry, the sarcasm is coming from being incredibly frustrated with the confusion caused by assuming rhetoric as reality - it's certainly not with you or your question!!!

The GCs assume a state on state conflict, so keeping someone as a POW makes sense, and they can be returned after the end of hostilities. I do think that the Taliban should be counted as a "government" (government in exile). For them, and their fighters, this would mean that the "war" would end IFF (if and only if) they are brought back into negotiations with the Afghan government and some accommodation is reached. AQ and the other irhabi groups are another matter...

It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

I definitely agree that we need to change international law and the GCs to account for the current reality. We have to be able to account for para-state groups such as Hamas, Hezbollah, etc. as well as groups of the irhabi-network types. It might be an idea to go back to examine the situation in the Holy Roman Empire just after the Treaty of Westphalia and use that as an example for further consideration. After all, you had a really odd situation where "states" were members of another "state" (the HRE).

Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Hmmm, I think the problem is with the precedent being established. For example, there is a general agreement that citizens of one country may be tried by the legal system of another country for crimes committed in their jurisdiction and will enjoy all the legal protections of the country in which they are tried. There is also precedent for trying your citizens for actions in another country that contravene the laws of your country. But there really isn't much of a legal precedent for holding citizens of one country with whom you are not at war without trial.

Khadr, and I'm sticking with him right now, is a Canadian citizen and his continued incarceration in Gitmo is being viewed by some as a breach of treaties with Canada. Think about it for a second.. If we captured a US citizen in Afghanistan fighting as a Taliban and held him in Canada without trial, what would the US reaction be?