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January 27, 2006
Back To Guantanamo

Seems that John McCain is still worried about Guantanamo.

As are many of us.

Sen. John McCain said Friday that interrogation techniques at the U.S. prison camp in Guantanamo Bay are still of concern, and the prisoners held there should have their cases processed after spending up to four years in detention without charge.

Have their "cases processed." Hmmm.

First, of course, we have to finish that argument about who and what they are.

According to John Yoo, the architect of this thesis when he served as deputy to former attorney general John Ashcroft, members of the Taliban and al-Qaeda do not meet the four conditions spelled out in Article 4 of the Geneva Convention on the Treatment of Prisoners of War that would confer upon them the privileged status of lawful combatants.

Perhaps he is right. We may concede, for argument's sake, that he is probably right. However, Yoo chose to ignore Article 5, which reads as follows: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

A bizarre catch has been applied by the US administration: the detainees do not deserve a tribunal since they are illegal combatants, so no need arises to determine whether a tribunal should hear their claims. Yet many of the detainees have been held incommunicado and not given the opportunity to question their status. Some of them claim they are not terrorists at all. Let us say they lie. Still, under Article 5, their claim must be heard.

As we all know, I've always had quite a lot of contempt for the Bush Administration's semantic fan-dancing around the concept of different kinds of prisoners.

We made war on their countries. We took prisoners. That makes them prisoners of war, no matter how neocons pretend otherwise.

It is absurd to say the Geneva rules apply only to legal combatants. They are part of the international understanding of humane treatment. They embody principles of decency that have nothing to do with anyone's status as this or that. The Geneva rules do not create rights but codify them. Surely, the US administration must understand that the rights of prisoners do not derive from the conventions but that the conventions list those rights because principles of humane treatment antedate Geneva by thousands of years.

This is both true and untrue. There have been standards for the treatment of prisoners for thousands of years, but those standards have varied widely from place to place and from time to time.

Still, I'd say that in general the tendency has been for so-called "civilized" societies to use a humane standard of treatment for prisoners.

Limiting the rights of detainees for no better reason than that they are not legal combatants is arbitrary, capricious and plain immoral. At the very conclusion of the Geneva Convention we find, "The conditions shall be interpreted and applied in as broad a spirit as possible." Current US attorney general, Alberto Gonzales, and his predecessor, John Ashcroft, chose the narrowest possible interpretation of convention.

This is what you get from "strict constructionists." They want to do as little as they can get away with.

The author brings up another good point.

Let us grant that the Taliban are fundamentally terrorist. Still it should be obvious, especially to a lawyer who serves as the highest law officer in the United States, that mere membership in an organization that does not respect international law does not mean that such a person has failed to respect the law. It is an elementary rule that guilt or innocence must be established on an individual basis and not based on whom one associates with. If anyone is violating the Geneva Conventions, it is not the detainees but the United States.

That's true. Mere membership in an unsavory group isn't conclusive proof that you've committed a crime.

Posted by AnneZook at 09:21 AM