There’s a big push going on calling for Camp X-Ray, where about 520 prisoners from the War On Terror are being held. Setting aside the debatable question of “torture” allegedly going on there, let’s for a moment say we do close down Gitmo. What do we do then with those 520 people?
Perhaps we should let them go. We’ve tried that, and several of them went right back to the battlefield. We’ve killed more than a couple former Guantanamo detainees on the battlefield.
Maybe we should return them to their home country, and let their governments deal with them. I can see three possible outcomes for that one: they will be lauded as heroes, they will be quickly executed as potential embarassments so their governments can score PR points with the rest of the world, or their deaths will be reported while they’re quietly whisked away, given new identities, and sent back to the fight. None of those strike me as overly pleasant alternatives.
No, the main idea is to bring them to the United States and subject them to our legal system. Give them counsel, put them on trial, and punish them if they are, indeed, guilty.
This would, in my opinion, be a tremendous mistake. These people are not criminals, they did not violate American laws in a place where American laws hold jurisdiction, and have no claim to American rights and privileges and due process.
No, it’s not the United States Constitution that governs their rights, and how we treat them. It’s the Geneva Conventions, and they are abundantly clear on the issue. (This is not to say that the Constitution is irrelevant; it still applies to our troops. And every single member of our armed forces I’ve ever met takes their oath to “protect and defend the Constitution against all enemies, foreign and domestic” very, VERY seriously. It just doesn’t cover those they have captured.)
Under the Geneva Convention, if they are legitimate prisoners of war, they can be detained until the cessation of hostilities. They must be treated humanely, accorded respectful treatment, and not abused in any way.
But the Geneva Convention doesn’t hand out POW status willy-nilly. One must abide by the strictures of the Convention before one can claim its protection. To be a prisoner of war, one must be a legal combatant — and that means wearing a uniform, respecting and protecting civilians and civilian structures, and in general behaving in an honorable fashion.
These detainees we captured on the battlefield did none of these things. By the Geneva Conventions, they are therefore illegal combatants, and are eligible for summary execution on the spot. The fact that we have not done so is more a reflection of our own compassion and enlightened self-interest — they most likely have information that we can use to fight their cause.
It’s what I’ve been saying for a long time — too many people see lawyers as the be-all and end-all of all problems. People need to remember that a nation of laws is not a nation of lawyers. And not all problems are settled in a courtroom.