With the proposed closing of the detention facilities in Guantanamo and the granting of civilian trials to the detainees held there, I found myself re-reading some of my thoughts on that matter in recent years. One article, from almost a year ago, explores just how the military might react to the possibility that their prisoners will have to be treated like common criminals arrested here in the US.
The idea, I fear, comes as a consequence of having lawyers being too much in charge of things. To them, everything not only can be settled in a courtroom, but should be.
It’s been noted that the majority of Barack Obama’s presidential team have law degrees. Indeed, both Obama and his wife are also lawyers. And lawyers have their own way of dealing with issues.
The problem is that that is not always the best approach. And this seems a case of “if your only tool is a hammer, all your problems start looking like nails.” In this case, all of Obama’s solutions seem to involve lawyers, and laws, and trials, and lawsuits.
I’m no lawyer (thank god), but I have just enough legal knowledge to get myself in trouble on a regular basis. And I can see all sorts of interesting challenges to the holding of detainees in the War on Terror:
1) Jurisdiction. Since when to US laws apply in foreign nations? These are not Americans, not acting on American territory, so they had absolutely no obligation to obey American laws.
2) Charges. Just what crimes are they accused of committing?
3) Right to Confront the Accuser. Will this involve bringing the capturing troops to the courtroom? How about covert agents? Foreign nationals who turned them over to us?
4) Disclosure of Evidence. Will the government be obliged to reveal all its secrets, and methods of gathering them?
And that’s just the tip of the proverbial iceberg.
Under the terms of the Geneva Conventions, combatants can (and should) be detained until the end of the conflict. But these people are not covered by the Geneva Convention, as they never complied with the obligations it places on combatants.
These people are NOT common criminals, and our justice system is NOT designed to deal with them. Most of them are combatants taken on the field of battle, and they should be handled by the military — which is experienced in such matters.
But we are moving from being a nation of laws to a nation of lawyers, and that isn’t how lawyers settle things.
I find myself wondering if Shakespeare might have been right.