April 03, 2009

Just … crazy

From CNN.com:

Alleged terrorists held at a U.S. military prison in Afghanistan can challenge their detention in federal court, a U.S. judge ruled Thursday.

District Court Judge John Bates denied a motion from the Obama administration to block four men from appealing their continued imprisonment. Each of the prisoners has been held at Bagram Air Field for six years or more.

Bates concluded these cases "closely parallel" those of accused enemy combatants held in the detention facility at the U.S. naval base at Guantanamo Bay, Cuba, "in large part because the detainees themselves as well as the rationale for detention are essentially the same."

The Supreme Court last year ruled Guantanamo prisoners have a constitutional right to challenge their military custody in the federal court system.

Now here’s my view, and call me crazy: To “get around” this what ultimately proves to be an insane ruling, Congress should reassert the power it was granted in the Constitution – that of declaring war. If Congress had declared war on al Qaeda, the Taliban (that’s “Tah-lee-bahn” according to Barack Obama) et. al. then chances are these courts would have upheld the Bush and now Obama administrations’ view that these captured combatants should not have access to US civilian courts. Well, maybe.

Just imagine if captured Japanese or German soldiers had similar access. And they were regular soldiers! But, in fact, the US Supreme upheld the right of military tribunals for irregular Nazi combatants in the Ex parte Quirin case. It said:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

But this changed a few years back with Hamdan v. Rumsfeld. The SCOTUS ruled that the Geneva Conventions – which the US ratified in 1949, seven years AFTER Quirin, -- are the standard by which to treat detainees in the “war on terror.” Which means, basically, that the utilization of military tribunals to try captured illegal combatants is a violation of US and international law.

Which brings me back to two paragraphs ago: Does this mean that the US – even in an officially declared war against “legal” combatants – has to give all captured POWs access to our civilian court system? If not, why not? Why would it make sense to grant illegal combatants something that legal combatants cannot take advantage of? Imagine if Vietnam was an officially declared war. Since this conflict took place after 1949, the ratification of the Geneva Conventions, according to the logic of Hamdan, the US would have had to allow all captured NVA and Viet Cong access to our civilian domestic court system … to try each of their cases separately.

Not only would this be logistically impossible (thousands upon tens of thousands of captured enemy soldiers, legal and illegal, getting court-appointed lawyers clogging up the system for months or years on end), but it in effect makes the very option of military force unviable. What commander-in-chief wants to effectively shut down the nation’s courts? What commander-in-chief wants to subject American soldiers to [individual] lawsuits? And even if a C-in-C committed troops to a battle, what incentive would said troops have for capturing enemy soldiers? Why not just put a bullet in their head so there’s nothing to worry about down the line?

Posted by Hube at April 3, 2009 06:29 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

There is a very simple solution. Torture, mutilate, and execute captured resources in order to get the maximum info in the least amount of time and then just throw away the bodies. Or use them as examples for the next crop.

Posted by: Ymarsakar at April 9, 2009 08:16 PM