Thursday, October 27, 2005

Why I disagree with Enemy Combatant Status

Under the Geneva Conventions (which we follow) prisoners of war can only be taken if they are combatants in a war. They are provided certain rights, notably the right to be released at the end of the conflict. The Geneva Convention also clearly defines who can be considered combatants. Uniformed Hostile Forces are always combatants. I don't think many of the people captured as Enemy Combatants meet that criteria. Additionally, non-uniformed actors taking up arms in a conflict can be considered combatants, and taken as prisoners of war. The gray areas here are that people are often apprehended well in advance of this requirement. They are only suspected of conspiring to take up arms or commit acts of violence. Thus, they do not yet qualify as combatants. Everyone could be considered a potential combatant, especially in a war fought in their country. That doesn't qualify them to be captured as prisoners of war. Another shady area is the War of Terror itself. The President cannot declare war. That power is reserved for Congress. Congress has not declared a war on terror, therefore, there isn't one. The reason that Congress has not done this is that a war on terror is similar to a war on drugs. It has no defined hostile forces, and no foreseeable resolution. As long as the potential exists for an individual or group to conduct a kidnapping, hijacking, murder, or bombing the War on Terror will continue. The President is avoiding both US and international law by holding people as prisoners of war in the War on Terror. This is unseemly when it is applied against probable terrorists detained in other wars, but it is frightening when it is applied to US citizens. EPWs do not have any rights under our Constitution, such as right to due process or the right to an attorney. They can be held without charge until the war is concluded. In this case that means indefinitely. US citizens should at a minimum be charged with treason. They should be defended and prosecuted within the legally defined limits of those proceedings. After the President's "You are with us or against us" speech, anyone that doesn't support the Bush Administration could logically be seen as an enemy combatant. The right to dissent and speak out against the government is one of the defining features of our freedom. Anything that threatens this right also threatens our freedom and way of life.


Dave Justus said...

You present various reasons why this should not be done, but provide no alternative.

What should we do with this people? Catch and Release? Summary execution?

I agree that the issue is much harder with a U.S. citizen and I am troubled about the Padilla situation. But with foreign fighters, particularly in places like Afghanistan need to have some solution.

Sandcastle said...

The hard part for me isn't foreign fighters or suspected terrorists in Afghanistan. I think they can legally be held either by us as prisoners of war or their respective countries as criminals. I think US citizens should be charged with a crime, and prosecuted in that way. I would not be opposed to new legislation creating tougher laws against suspected terrorists. The difficult bit is what can we legally do with people in our country that are citizens of another country. Deportation isn't punishment enough.

transientforeigner said...

There needs to be an international agreement ratified by our Senate and supported by the Congress as a whole. The international agreement would define a war on terror. This way there would be an actual and legal "war" Suspects would then be assuredly entitled to the rights of the Geneva Convention. With no target of completion or victory a system of sentencing could be developed to deal with indefinite detentions and to move away from the "Catch and Release" problem.

With something like this we could finally quit playing with symantics and stop pretending. No more figurative "wars" or special terms like "enemy combatants". Prisoners get the rights the Geneva Convention intended to give people in their position, Congress gets to tell the President who actually has the power to declare war, and the United States is given an easy way out of having to deal with their "lapses" with complying with international law.

I think U.S. citizens are the easiest group to deal with. I agree with Sandcastle that U.S. citizens should be charged with a crime, and without coming up with new laws against suspected terrorists. If some international agreement on a war on terror were signed, then that might not be possible any longer. Special arrangements might have to be made up concerning prisoners from natinons who have signed the agreement.

transientforeigner said...

I thought this to be an interesting piece concerning the Bush administration's legal strategy concerning prisoners.