Monday, August 01, 2005

Gitmo Detainees: Is their Detention Legal And Moral?

I had an email exchange with a reader this week regarding the detainment of so-called "enemy combatants" at Guantanamo Bay (Gitmo), Cuba. My correspondent cited the judge's statement (PDF) at sentencing of Ahmed Ressam, the "Millenium Bomber", who was apprehended while he attempted to cross from Canada into the United States at a remote border crossing in the state of Washington. He was planning to bomb the Los Angeles International airport on New Year's Eve in 1999 at the "millenium". Mr. Ressam was found guilty, and was sentenced to 22 years in prison.

Here is what I consider the key passage of US federal Judge John Coughenor's statement at Mr. Ressam's sentencing:

"...I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.'

I would suggest that the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections.'

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens."

I agree completely. I don't support the indefinite detention of "enemy combatants", though Mr. Ressam doesn't fit the criteria for that status anyway. I do understand the reasoning behind the detentions, though I think that indefinite detention for these people is the wrong approach.

The Third Geneva Conventions clearly spell out how prisoners of war shall be treated, and Part 1, Article 4, paragraphs 1 and 2 of the III Geneva Conventions defines precisely who is a "prisoner of war":

"(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.'

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."
Given the specific conditions of part (2), it seems unlikely that many of those detained at Gitmo could be considered POW's under the Geneva Convention. In fact, the US Court of Appeals for the District of Columbia ruled in Hamdan v. Rumsfeld (July15, 2005) that the Geneva Conventions do not apply to al Qaeda, and that the Geneva Conventions themselves cannot be enforced in US courts.

But ruling in the Rasul v. Bush case in June of 2004, the US Supreme Court held that Gitmo detainees are entitled to challenge their incarceration in federal court, arguing essentially that since the US government holds legal authority over Gitmo and its facilities, that federal courts also hold jurisdiction over the detainees, hence their right to habeas corpus.

In discussions with my email correspondent, I argued erroneously that,
"...there is some contradictory logic here, in my opinion.'

"On the one hand, the government argues that since these people were not in uniform as "citizen" soldiers, that the Geneva Conventions don't apply. If that is true, then why can they [US Administration] at the same time detain them as "enemy combatants" under the same Geneva Convention?"
The flaw in my argument cited above is that the administration does NOT argue that that the detainment of these people, since they are not covered by the Geneva Conventions, is in any way governed by those very Conventions. In fact, in Hamdan v. Rumsfeld, the appellate court held that the president had and has the authority, as Commander-in-Chief, and under the the Joint Resolution passed by Congress in 2001 giving the president the authority to use "all necessary and appropriate use of force", and, specifically the Presidential Military Order of November 13th, 2001. which outlines in detail the how "enemy combatants" are defined and treated.

Based on this more in-depth view of the circumstances surrounding the detainees at Gitmo, I believe that their detentions have so far been, and will continue to be lawful and moral, yet politically unwise. The American justice system and our unusual (by global standards) attention to the rights of the accused renders these long-term detentions inappropriate. Being who we are, the United States should, in my opinion, anyway, stand for justice even for those people that we find despicable.

This post also appears on Blogger News Network.

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