Knowledge, Detention, and War
The moral life requires that we act without certain knowledge, but there are situations in which an action isn’t justified unless we can prove beyond reasonable doubt that our knowledge is accurate. Detaining a person long-term or indefinitely is one such action.
President Barack Obama, whether because his hand was forced by Congress or because deep-down he supports the policy, has further cemented a system of indefinite detention with his recent executive order. The U.S. government will continue to hold indefinitely those it considers but apparently cannot prove to be significant threats to the security of the United States.
Now I don’t want to pretend that the president and members of Congress face an easy moral decision regarding the prisoners at Guantanamo Bay. There’s a visible and sometimes insurmountable difference between reasonably suspecting that a prisoner is a significant threat and being able to prove, beyond reasonable doubt and in a fair trial, that the prisoner is guilty as suspected. It’s not terribly unlikely that some of these prisoners are serious threats, and it is a terrible possibility that releasing uncharged and untried prisoners will result in additional acts of violence.
And yet it’s also possible that some prisoners at Guantanamo Bay are not guilty as assumed and that every day of their detention is a day the U.S. has committed an injustice against them. In addition to furthering the injustice of indefinite detention itself, the current administration continues a policy of unjust treatment of prisoners—illustrated by the inhumane and degrading treatment of Bradley Manning.
President Obama and the others who have responsibility here may not know or have control over what the releasing of Guantanamo Bay prisoners will bring, but they should know that they may be treating these prisoners unjustly, and as difficult as this situation is, they do have control over how they treat them. They have a moral obligation to avoid committing these injustices, and, despite the moral difficulties involved, they have the power to fulfill this obligation.
I’m not a lawyer or an expert in these legal matters, but it seems to me that the U.S. government ought to be able at least to prove, in a fair trial, that every “War on Terror” prisoner is a significant enough threat to justify his continued detention. If it cannot prove at the very least a basis for suspicion, then it has no moral basis for continued detainment.
Kyle Cupp is a freelance writer and editor with a background in literature, language, and philosophy.
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Benjamin Franklin once said something to the effect that those who would sacrifice their freedom for security deserved neither. As a society we’ve abandoned the moral high ground in the name of security. I’d rather we still held that high ground.
There’s a price for living in a free society.
“The U.S. government will continue to hold indefinitely those it considers but apparently cannot prove to be significant threats to the security of the United States.”
I think a significant factor that is not discussed here is the potential for exposure of national security secrets in the discovery process and in testimony should terrorism cases go to trial. I believe that has been one of the primary reasons given by Bush and Obama administrations in avoiding the normal judicial system, has it not?
So the detainees currently being held indefinitely can’t be charge and prosecuted for anything because it might reveal national security secrets? I don’t buy it. Surely in the history of the judicial practice of trials the potential for revealing secrets has had to be addressed within the trial system.
It may be more constructive to think of them in terms of prisoners of war. According to Obama’s position, their guilt is a certainty (recall his claim that the now aborted trial for Khalid Sheikh Mohammed would result in his execution). So, holding them indefinitely is the only option if a trial would reveal national security secrets involved in their apprehension.
This presumes, of course, a lot of faith in the righteousness of Obama’s claims regarding the detainees…
I’m trying to imagine what “national security secrets” a Guantanamo prisoner might know, that would justify holding him without trial, and…I can’t imagine what that would be.
Having the government say, “Trust us – they are really secret secrets” is not a recipe for an accountable government. “National security” was the plea of the Nixon administration when reporters started asking nosy questions, and is the default claim whenever someone outside the government threatens the freedom of action of the national security state.
“I’m trying to imagine what “national security secrets” a Guantanamo prisoner might know”
My understanding is it is not necessarily detainee knowledge, but the cross-examination of government witnesses that would expose the tactics and possibly even individual informants who were involved in the apprehension of the detainees. This would give terrorists worldwide valuable information on the government’s tactics, procedures, etc.
One would think, though, that even those procedures and informants would have been revised after ten years or so and so their exposure would be less serious in a trial?
Precisely, Mark. After 10 years, I imagine the methods and sources used to apprehend these men are of no interest to anyone but historians.
On the other hand, are we to allow the detention of people for 10 years, some of whom may be innocent, just to prevent revealing questions being asked of government witnesses? Besides which, couldn’t those sorts of concerns e sorted out in chambers anyway?
One of the dumber things Runsfeld and crew did was to invent new terms for what was an established piece of International Law. And while not intelligently executed and done with horrible public relations the US is in substative compliance with the law.
The ad hoc term “Illegal Combatants” is properly called “Unprivileged Combatants” and when a prisoner of war “Unprivileged Prisoners of War”. The distinction being the combat force or individuals have status under the Geneva Conventions a Lawful Combatant. The best example is that a military person captured out of uniform spying on the enemy may be court marshaled and executed, this is because he is a unprivileged prisoner war. If he had been in uniform trying him would be war crime. Al Quaida does not and can not meet the requirements under the Geneva Conventions to lawfully engage combat operations, thus any of it’s members is an “unprivileged combatant” and when captured an “unprivileged prisoner of war”
Even so an unprivileged prisoner of war has most of the rights of a privilage prisoner of war. Most relevant to your post the have the right to be released when the hostilities are over.
The Right to be a Prisoner of War
It is important to understand that under the customary laws of war combatants have been historically classified in interstate hostilities as either “privileged” or “unprivileged” combatants. The privileged combatant is a person authorized by a party to such an armed conflict to engage in hostilities and thus has the “combatant’s privilege.” This privilege not only entitles him to directly participate in hostilities, but also guarantees him prisoner of war status upon capture and immunity from prosecution by his captor for his lawful acts of war. Members of regular armed forces, including militias or volunteer corps forming such forces, as provided for under Article 4A(1) and (3) of the Third Geneva Convention, are privileged combatants. Although members of regular armed forces are expected to comply with the laws of war, they do not forfeit their right to POW status upon capture even if they commit war crimes. They can, however, be tried and punished for such crimes by their captor.
An “unprivileged” combatant refers to a person who does not have the combatant’s privilege, but nevertheless directly participates in hostilities. Such combatants would include, inter alia, civilians who in violation of their protected status engage in fighting or other hostile acts. However, the law does sanction a levee en masse whereby civilians may spontaneously take up arms in order to resist an invading force. Spontaneity means that there is no time to organize into regular forces. Civilians participating in a levee en masse may qualify for privileged combatant and POW status, provided that they do not conceal their weapons and observe the laws of war. This is the single, limited exception to the proscription against civilians participating in hostilities.
The notion of unprivileged combatants has also been used to describe irregular or part-time combatants, such as guerrillas, partisans and members of resistance groups, who either fail to distinguish themselves from the civilian populations while on active duty or do not otherwise fulfill the requirements for privileged combatant status stated in Article 4A(2) of the Third Convention. This article effectively holds members of independent irregular groups to higher standards than those required of members of regular armed forces. Specifically, in order to qualify as privileged combatants entitled to POW status, members of irregular groups must comply with the following stringent conditions set forth in sub-paragraph 2 of Article 4A: 1) they must belong to an organized group; 2) they must belong to a party to the conflict; 3) they must be under responsible command; 4) they must have a fixed, distinctive sign recognizable at a distance; 5) they must carry their arms openly and 6) they must conduct their operations in accordance with the laws and customs of war.
Most authorities agree that the first three conditions are applicable to the irregular group collectively, while the final three conditions apply both to the group collectively and its individual members. Thus, if a majority of the members of the group fail to meet, for whatever reason, all or any of the last three conditions at any time, then all members of the group will not qualify for privileged combatant and POW status upon capture. Unlike privileged combatants, therefore, unprivileged combatants can be tried and punished for all their hostile acts, even if they otherwise did not violate the laws of war. It should be understood, however, that unprivileged combatants are not as such war criminals although their specific acts might breach the laws of war.
See also
Wikipedia article Combatants
International Red Cross
Chapter 10, US Code
What determines an end to hostilities in the “War on Terror”?
That is the question.
I suspect it will be the when the President says so, Possibly some sort of international conclusion that AQ is defunct.
For that matter, what would it like for the United States to “lose” the war on terror?
The thing is, there is no metric that will conclusively demonstrate “victory,” because war is the wrong metaphor. I’ve always felt that way, too. Describe Bin Laden as a criminal and you:
a. diminish his stature in the eyes of those whose opinions he values; and
b. treat terrorism as the chronic problem it actually is (think, say, organized crime of various sorts), rather than as a specific enemy it is possible to “defeat” in any conclusive and meaningful way.
Matt
Is that a choice we have?
To treat prioners of war as a class crininals is a war crime.
They are entitled to the status or not, it is fact question not a policy question.
I suspect that if we treated the class as criminals the injuntion would come as fast as their lawyers could file the motion.
Should be
” to treat Prisoners of War as a class as criminals is war crime.
“It may be more constructive to think of them in terms of prisoners of war. . .”
I think this is the least constructive way to think about it, as this is exactly the rationale that has led us down this terrible path.
The reason that “prisoner of war” talk doesn’t work here is because it can be applied to anyone we don’t like. It’s not as if AQ is a nation state, or even an organization with clear criteria of membership. Vocabulary that is designed to mediate conflicts between states can only be abused when applied in this context.
I am bitterly disappointed in Obama, and absolutely horrified that with all the criticism directed at Obama from the right, this never comes up. Even if I vote against Obama in 2012, that won;t reverse this situation.
the torturers win. They always do.
Matt writes, “Describe Bin Laden as a criminal and you: a. diminish his stature in the eyes of those whose opinions he values; and b. treat terrorism as the chronic problem it actually is (think, say, organized crime of various sorts), rather than as a specific enemy it is possible to “defeat” in any conclusive and meaningful way.”
I can’t claim any expertise in this area, but to play devil’s advocate:
I don’t think it’s realistic to treat terrorism suspects like organized crime. They differ in essential ways.
First, they are not merely committing crimes for personal gain, but have condemned and are attacking the U.S. as a nation. They attack Americans for no reason (that is, for nothing the individual American has done) other than that they are Americans. The defeat or destruction of the U.S. as a nation is their stated goal. They are conducting the war as if it is a war in every way except that they don’t happen to represent (or be represented by) a sovereign government.
Suppose it were a formal, declared war between sovereign governments. If non-military personnel were to join in hostilities, out of uniform and using concealed weapons, those personnel would be subject to arrest and imprisonment, and would not be entitled to trial in the criminal court system, according to the GC section cited above. The theoretical question, of how or whether we can prove that those so captured were in fact guilty of participating in hostilities out of uniform and with weapons concealed, would still exist. Yet it would still be legal under the GC to so arrest and imprison them for the duration of hostilities.
Since it is a de facto war, it seems we would be giving the enemy an undue advantage by prohibiting ourselves from holding or trying them under military tribunals, and instead restricting ourselves to trying them in the criminal court system, since standards of proof in the criminal court system are so stringent that the enemy would know that convictions, and therefore punishment, would be rare. While in the meantime, they show no restraint in punishing those whom they capture from our side.
I doubt whether they deserve to receive these benefits and advantages solely because they choose to wage war without the authorization of a sovereign government.