The Trouble with Closing Gitmo

In one of his first acts upon assuming office, President Obama ordered the Guantanamo Bay prison closed within a year. The detainees there were to be…well, that’s still a little unclear. The President seems to have run into the same problem as his predecessor. President George W. Bush also wanted to close Gitmo, but said, essentially, that no one could figure out what to do with the people there. Apparently, President Obama’s staff decided they were much smarter. If only the lawyers had bothered to read a little law, first.

Let’s run a thought experiment. Suppose, for the sake of discussion, we all decide the folks at Guantanamo are all prisoners of war. That gives them certain protections, but also establishes that they may be held until hostilities are over. Hostilities, quite obviously, are not over in Afghanistan or Iraq. A reasonable person could argue that hostilities in Afghanistan may last for decades.

Can we keep these people in prison for decades? Without trial? Without any right of habeas corpus?

Um, yes. That’s the whole point of being a POW. You aren’t a criminal, but you will be held until the war is over. It’s also possible to be held by a neutral party (think Switzerland in WWII)—who has an obligation to inter you until the war is over.

But, you say, this war may last generations? Correct—that’s exactly what former President Bush said. It's not our fault that the enemy decided on a strategy that could take generations.

Wait, though—Bush argued that the detainees weren’t POW’s. They were “unlawful combatants.” What’s that about?

Well, the problem is that there are combatants and noncombatants. People in uniform are combatants. They have a right under international law to engage in combat, and to kill when operating under the lawful orders of their nation-state. When they kill, it isn’t a crime. (It goes back to the Treaty of Westphalia.)

Civilians are non-combatants. They have a right to be protected, and combatants must conduct themselves in a way that avoids unnecessary harm to non-combatants. But, here’s the key: non-combatants do NOT have the right to kill. They may NOT participate in combat. If they do so, not only do they forfeit their protections, but they may be considered criminals, and charged with war crimes.

The problem arises when people who wouldn’t normally have any right to be combatants decide to take up arms. The Geneva Conventions acknowledge this possibility, but they don’t really explain what to do. But, just ask the question logically—if a person with the right to engage in combat can be legally held for decades (as a POW), then why would a person with a questionable right to engage in combat get more consideration? That just doesn’t follow.

Bush tried to solve that problem with war crimes tribunals, specifically authorized by Congress, as specifically directed by the Judicial branch. The reason the tribunals don’t look exactly like US court trials is because they aren’t US court trials. Sorry to break it to the lawyers, but there is more to the US Code than Title 18. Specifically, there’s Title 10, which governs military operations. (There’s also Title 33, but we’ll talk about that next time.)

President Obama has stopped the tribunals, and is insisting that the detainees can be given trials under the US criminal system. Lots of folks have argued we should simply give them trials. Okay, then here’s my question…

What do you do when the jury finds a detainee “not guilty”? That’s the point of a trial, right? You have to consider that the accused might be “not guilty.” If you don’t seriously consider that, then you are engaged in a show trial.

If you start with the premise that the detainees are unlawful combatants, then “not guilty” simply means they had a right to engage in combat operations. They are not guilty of war crimes. That makes them POW’s. But, POW’s may still be held until hostilities are over, after which they will be repatriated. This isn’t a game; those are the rules of armed conflict. If you start with the premise that the detainees are ordinary criminals, then “not guilty” means you let them go. Immediately. Are we seriously considering that?

Suddenly Bush's argument doesn't seem so stupid, does it? It almost seems like he really thought about the problem. Maybe he shouldn't be the only one.