Say Anything Blog

Of course they’re entitled to Geneva Convention protections. All of them. Of course, one should also note that since they were captured as illegal combatants, in direct violation of GC strictures, they’re still subject to being shot out of hand.

What this really points out, though, is that Congress needs to get off the dime and clarify rules for tribunals - both field tribunals and those in a more structured setting.

Rob, I think it’s another no-brainer that they are entitled to protection under the Geneva Conventions.  This commentary from HRW is pretty much on the dot as far as I can tell.

Here is the main point:

The U.S. position is inconsistent with the Geneva Conventions on several counts. First, the U.S. may not classify as a group all detainees from the Afghan conflict as not being entitled to POW status; such a determination must be made on an individual basis by a competent tribunal. Second, there is a presumption that a captured combatant is a POW unless determined otherwise. Third, it is incorrect to assert that only POWs are protected by the Geneva Conventions-all persons apprehended in the context of an international armed conflict, including the types of prisoners the U.S. has labeled as “unlawful combatants,” receive some level of protection under the Geneva Conventions.

I will point out that the Supremacy Clause legally binds the United States to follow any treaties that have been properly executed, and this of course includes most of the GCs.  As a result, it is proper that the Supreme Court would rule on whether the United States is in compliance with those treaties, and from my reading, they weren’t.  In my opinion, there were a number of problems:

First was that a person needs to be determined an illegal combatant by a military tribunal on a case-by-case basis and not en masse. Secondly the military tribunals to try a person for crimes as an illegal combatant need to be held using the established law of the country. In “writing their own rules” the administration violated both the constitutional boundaries between the legislation and administration and the Geneva Conventions as well.

It’s also noteworthy that simply because they are afforded protection from the GCs, they do not have the same rights with respect to interrogation as privileged combatants:

Interrogation: While POWs the detaining power may interrogate them, POWs are only required to provide their surname, first names, rank, birth date of birth, and their army, regimental, personal or serial number under questioning. POWs, cannot be punished if they do not but are not required to provide additionalany other information. “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.” (Third Geneva, Art. 17).

While nonprivileged or unlawful combatants cannot claim the same protections under interrogation as POWs, they are, like all detainees, protected from torture and other cruel, inhuman or degrading treatment as set out under international human rights law and customary international law. Relevant international instruments include Article 75 of Protocol I, the International Covenant on Civil and Political Rights, and the Convention against Torture.

So we don’t have any more “right” to torture them than we do anybody else, but humane interrogation techniques, including extend psychological coercion, such as used with common criminals would certainly be allowed.  But the bottom line is, once you get them classified as illegal combatants, there is nothing out of sorts with their treatment at Gitmo (though there are still problems with the Military Commissions wrt the GCs).

To me, this whole thing is not a “big deal” per se, but we do need to have better Congressional guidance in the next conflict on how we handle illegal combatants.  Clearly the Afghanistan conflict was a unique circumstance, and our military law, as written by Congress, was not up to muster on it.  Ultimately the breakdown occurred because the Administration was forced to produce ad hoc rules for their treatment in the middle of fighting a war on terrorism.  And of course allowing UBL to escape from Tora Bora.  Bush really should have been there in his Widow Maker to personally ensure UBLs capture, is what I think.

Carrick, you may be right…but it is worth bearing in mind that there are several layers of protections laid out on the Conventions.

For instance, there are minimal protections against things like torture and such that must be adhered to for all detainees regardless of POW status.  It was my belief that the U.S. has always adhered to this (despite the protestations from certain parties) and that the argument was over protections over and above these minimum requirements.

Really, though, what I think this will all lead to is fewer captured terrorists and more dead terrorists.  After all, why should our military take on the risk of capturing these people when it’s easier (and explicitly legal) just to kill them in most instances?

The purpose of government shouldn’t be to do good, but simply to refrain from doing evil.

what I think this will all lead to is fewer captured terrorists and more dead terrorists.

an all around good thing, so I guess the Supreme Court ruling was the right one all around.