Habeas Corpses

Well, as it does every now and then, the legal status of the detainees at Guantanamo is being kicked around again. Once again lawyers are pushing to get them the legal status of accused criminals, and not combatants — legal or illegal.

I’m not going to go into the details of the argument, but instead I’m going to do a little fantasizing. Let’s assume that the people pushing for this change succeed, and the people held there are granted the rights of the accused here in the United States. Now I’m going to construct a little fantasy here, a hypothetical lecture given by a military officer in response to this new development — say, an Army Major briefing his troops before they deploy to Iraq.

“Listen up, men! As you know, the courts have ruled that the people we capture are now to be accorded the same treatment as the cops give suspects when they arrest them. This is gonna mean some big changes in how we do things, so pay close attention to what I’m about to tell you — you WILL be held accountable for following these new rules.

“First up, any time you capture someone alive, the first thing you gotta do is give them their Miranda rights. Here is a laminated card with the exact phrasing, in English and Arabic. Have it with you at all times. For those of you who’ve never watched a single cop show or a cop movie, here it is:

‘You are under arrest. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.’

“This means that Haji doesn’t have to give you nothing but his name and address. Nothing more. Haji wants to clam up, that’s fine and dandy. And once he asks for a lawyer, all questioning stops. Period. End of discussion. You lock him up and wait for him to get his lawyer — and if he can’t get one of his own, we’ll give him one. That’s why we recently had that draft on lawyers — the JAG Corps is now one of the biggest parts of the Army now.

“Now, once Haji gets hauled off, that ain’t the end of it. Eventually, he might end up in front of a court. And it won’t be a court martial or military tribunal, but a civilian court with a civilian judge and civilian lawyers. It might be a military prosecutor, but they’re still working that out — they might need to do another round of lawyer drafting. There Haji will get his day in court, and with all the legal rights of any defendant.

“One of those is the right to confront his accuser. That means that when Haji goes on trial, you’re gonna be sent back stateside to testify. You might have to stay there a while, because Haji’s lawyer could drag things out for a long time, and the judge could grant continuance after continuance — but you gotta be there just in case the trial goes forward. And if you were tipped off to Haji by any informants giving you a tip, there’s a good chance you’ll have to give up their name, too — which could put them in danger from any of Haji’s buddies. They might have to go back stateside and testify as well, ‘cuz Haji might want to face them in court, too.

“In that court, you will be asked a lot of tough questions. Questions like ‘why did you grab Haji?’ or ‘are you certain you read Haji his rights when you captured him?’ and ‘was he conscious when you read him his rights?’ and ‘did you in any way mistreat or abuse Haji?’ or ‘why were you so certain Haji was a bad guy, and not just an innocent guy in the wrong place at the wrong time?’ and ‘how many bad guys have you caught?’ and ‘how many innocent people have you killed and captured?’ and crap like that. So keep that in the front of your mind at all times, especially when you’re in battle.

“Now, you also have to remember that prisoners can be valuable sources of information — if they don’t lawyer up. So capturing them should always be a priority — as the saying goes, ‘dead men tell no tales.’ Of course, lawyered-up live men don’t tell too many tales, either…

“I’m also gonna tell you to keep in mind that killing people who surrender is a war crime, a violation of regulations, and will get your ass prosecuted. Unfortunately, a lot of the people who used to be in charge of investigating that sort of thing are now tied up making sure prisoners get their full legal rights, so it’s gonna be on you to watch yourselves and each other to make sure that doesn’t happen.”

Maybe I’m being cynical, maybe I’m not placing enough faith in our men and women in uniform, but I can’t help but think that one likely consequence of a move to treat prisoners as criminals — with all the paperwork and other pain-in-the-ass requirements that go with that — will be fewer prisoners overall.

The motivations for “take them alive” are several. First off, as I noted above, a live prisoner can be a far better source of intelligence than a dead one — and good intelligence wins battles, wins wars, and saves lives. In World War II, our ability to read the German and Japanese codes was the key to a lot of our victories. Conversely, just before the D-Day invasion of Normandy, British officials rounded up every single Nazi spy in England and forced most of them to send back false reports to keep the invasion secret — and that was a major factor in the invasion’s success.

There’s also the element that an enemy who surrenders is far less likely to kill more of our troops than one who’s bound and determined not to be taken alive. If confronted with the choice between “fight to the death” or “surrender and live,” there is a certain appeal to the latter. Change that to “fight to the death” or “surrender and be killed,” the natural reaction is to not make the other guy’s job any easier — and take as many of them with you as possible.

I think it’s a fairly logical chain of thought: if the detainees captured by the military abroad are granted the same legal rights as criminals caught here in the US, then this will impose a much heavier burden on the military as the capturing and detaining body. This burden will almost certainly be partly borne by the men and women in the field who are out there capturing prisoners. And if the burden of capturing and maintaining those prisoners grows too high for those who do the capturing, then an unofficial “no prisoners” (or, at least, “minimal prisoners”) policy could very well take hold.

And that would be a tragedy on so many levels. First off, we have the most professional, most competent, and (arguably) the most compassionate military the world has ever seen. (Witness how many “humanitarian” missions they undertake, and how it’s the US military that is often the first responder to major disasters around the world — like the Indonesian tsunami and the recent Bangladesh cyclone. Also the initial mission to Somalia in the 1990s that mission-creeped into the “Blackhawk Down” Battle of Mogadishu.) To give them some serious incentive to be less humane and less likely to take prisoners would be horrific.

Also, how many informants would be willing to cooperate with the US if they knew that their information and names may end up divulged in US courts? Even if the hearings are closed to the public, the accused and his lawyer will both be aware of their identity and actions, and we’ve seen what can happen when that happens.

Add in the loss in intelligence-gathering that would come from decreased prisoners, and we have a recipe for disaster.

Yes, the title is shamelessly stolen from Joss Whedon’s “Angel,” when a demon slaughters nearly everyone at an evil law firm — who promptly come back as murderous zombies. (Trust me, it works much better on the screen.) It just fits so well here..

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