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June 21, 2006
It's not a job for the courts
Captain Ed slams a muddle-headed editorial by the Washington Post today, wherein the paper lapses back into the treat-our-enemies-like-criminals meme.
He rejects the argument, and delivers a concise statement of why it's the wrong way to deal with our enemies.
When nations capture enemy combatants during wartime, they either get classified as POWs or as illegal combatants, usually by some sort of short tribunal. By all accounts, those have already taken place for all of the Guantanamo Bay detainees. When well-known leaders get captured, the need for such tribunals disappears; no one needs to determine the status of Khalid Sheikh Mohammed, since he has repeatedly self-identified as a member of the terrorist ring that declared war on and repeatedly attacked the United States.
The detaining country has no obligation to provide trials for war crimes at that point; in fact, for POWs, the Geneva Convention forbids them. Only after the war has concluded does the capturing nation have an obligation to either charge their detainees with specific crimes or to release them.
The Bush admnistration had to reach back to World War II in order to develop their policy because the US has tried to pretend that its military actions in other venues did not amount to wars but instead were "police actions." No one refers to the Korean Police Action or the Viet Nam Police Action, of course -- because the rhetorical dodge fooled no one. However, it does indicate that the American ruling class has avoided the entire notion that we have warred with anyone since 1945.
One of the more ridiculous effects of this self-deception of late has been an insistence on applying a civil criminal justice system to issues arising from war, an application for which our justice system and its precedents is almost completely unsuitable. Can you imagine a defense attorney not insisting on Miranda rights for Khalid Sheikh Mohammed, and the identification of the interrogators who got incriminating information from him?
In wartime, no enemy has any right to a trial until the war has finished. For instance, the British did not try Rudolf Hess in 1941 despite his one-man invasion of Britain. The Brits simply kept him imprisoned in the Tower until the Nuremberg trials sentenced him to life imprisonment. Hess, as Deputy Fuhrer, had no need of tribunal for that imprisonment, and the British had no need to try him until after victory had been secured.
Khalid Sheikh Mohammed has no right to trial or even to an administrative hearing during wartime. The Bush administration has correctly determined that al-Qaeda (and its affiliated terrorist groups) is an enemy at war, and that those who have identified themselves as leaders have given the US all it needs to hold them indefinitely. Trying to give them a right to a trial in the middle of a war does not serve victory or even legitimacy, but instead undermines the truth.
In order to provide a legitimate trial, the defendant has to have a chance of being released if no conviction can be obtained. Does the Post truly think that the US and the war effort will be served by Mohammed's release if a court cannot make a specific trial determination of his connection to an act of war (9/11)? If the Post doesn't agree to his release under that circumstance, then isn't insisting on a trial a highly cycnical and hypocritical act?
We need to remember that Islamist terrorists declared war on the US almost a decade ago and initiated a series of escalating attacks on us to prosecute it. That effort culminated in 9/11, which the Bush administration correctly determined as an act of war. We need to continue fighting it as a war. We do not need to make ourselves feel good by pretending that our enemy has the same legal standing as urban gangs.
The calls by "civil libertarians" for us to shutter the prison at Gitmo ignores the fact that it is entirely consistent with international law to hold combatants -- lawful and un -- for the duration of the hostilities. "What if the war lasts for thirty years?" they plaintively cry.
"Too bad," says I.
Unlike earlier eras, where soldiers might have been paroled upon a promise they'd no longer participate in the war, we live in a time when a man's word cannot be trusted. Some of the detainees released from Gitmo returned to the battlefield and resumed killing our troops and our allies.
It is entirely proper to keep the enemy from returning to the fight. The alternative to holding them indefinitely is to simply take no prisoners. There are no easy, feel-good choices here for the We-Are-The-World crowd, but letting the prisoners go is not one of them.
Which is as good a reason as any to place Michael Ramierz' cartoon depicting WW2 as fought according to the strictures of the ACLU at the top of this post.
Posted by Mike Lief at June 21, 2006 08:24 AM
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