As a republic guided by laws, ideas, and values, our national defense must involve not only physical protection of our citizens and borders, but also the defense of those laws, ideas, and values under which we have agreed to live. It is tempting, due to our emotional desires for revenge and restitution, or even in the name of physical security, to seek some sort of "justice" outside of the constraints of those standards, expressed by established domestic and international laws. However, by doing so, we give up the defense of those ideals which define our civilization and community in the first place.
If it sounds like I'm talking in rhetorical circles, perhaps it's because I haven't introduced specific examples. Here goes...
Under the Geneva Conventions, specifically the third and fourth (GCIII and GCIV), there are two classes of people during a war - combatants and noncombatants. Noncombatants are not only civilians, medical personnel, and the like, but can include persons actively involved in the conflict who don't meet the conditions of a combatant. Some of those conditions include: being under the command of defined leadership, wearing of a distinctive uniform or displaying insignia, and open carriage of arms.
The importance of combatant status is most relevant after capture. Any person who meets all of these criteria who is captured by a signatory of the GC is classified as a Prisoner of War (POW) and holds privileges and protections defined by GCIII. One of these privileges is that, if the POW is accused of a crime (including violations of the Laws of Armed Conflict), he or she will be tried under the same court system and standards as a military member of the detaining power would be subject to if accused of the same crime. In our case, that means the court-martial system, what recently has been called "military tribunals."
Arguments also could be made that some or all Gitmo detainees do not meet the conditions of a lawful combatant. Under established precedent going back to the 50s, that makes them "unlawful combatants," and they must be treated under GCIV under the same rules as noncombatants, notably including the requirement that they be tried under the same laws as civilians of the detaining power for crimes for which they are accused. In other words, if we declare them unlawful combatants, they must be tried under our civil legal system.
As stated above, arguments could be made for either status for Gitmo detainees, particularly those who were not captured during overt force-on-force military action. The status of the "underwear bomber" Umar Farouk Abdulmutallab, however, is much more clear. Although one might debate as to whether he was under the command of Al-Qu'aida (or if that leadership meets GCIII standards), at no time was he carrying arms openly or wearing a distinctive uniform or insignia. He was either a civilian carrying out a violation of civil law, or an unlawful/non-combatant engaged in violation of civil law. As such, the only answer is trial by civil court, which is where we are headed in his case.
One way or the other, once we decide on the status of those we are detaining, our goal should be to ensure their humane treatment while we seek one the three goals below as expeditiously as possible:
1. An end of hostilities followed by repatriation of POWs.
2. Fair and speedy trials via military tribunals for lawful combatants accused of unlawful acts.
3. Fair and speedy trials via civilian courts for unlawful combatants/noncombatants accused of unlawful acts.
No matter what, endless detention without trial cannot be our strategy, because even if it is perceived to meet our needs for physical security, it violates our ideological security. In effect, it does the enemy's job for him.
Next post... something lighter. I promise!
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