Who are we fighting?
Starting in 2002 during the war with Afghanistan, the United States began capturing large numbers of combatants on the battlefield. The State and Defense departments were unsure what to do with these people; they weren’t soldiers in any sense of the word (they didn’t proclaim loyalty to a nation; they didn’t fight in uniforms; they attacked civilians wantonly; they executed those they captured in brutal, barbaric ways), but they were clearly enemies and engaged in armed struggle with the United States. How to identify them?
It was quickly determined that these people don’t deserve “prisoner of war” status, but they couldn’t be treated as regular criminals either. Thus, the “enemy combatant” distinction came into existence. It’s a nebulous concept, and one not designed for swift adjudication. But it’s an important one, because it recognized one of the fundamental truths of the war on terror and the age of struggle against al Qaeda and like minded groups: we’re dealing with something entirely new, something we’ve never seen before.
Not according to the Supreme Court. As Dahlia Lithwick puts it, the court “is restoring their fundamental right to a habeas proceeding before a neutral fact-finder.” That sounds innocuous, but it’s absurd on its face: These were people captured on the battlefield engaged in killing Americans and Iraqis without agreeing to the basic civilities of war. And these monsters now have more rights than actual POWs. Where does it stop? Should soldiers have to read terrorists their Miranda rights on the battlefield? Should we exclude evidence not gathered with an airtight chain of custody? Should we obtain warrants before engaging in night time raids on terrorist dens in Iraq and Afghanistan?
As I wrote, I’m incredibly sympathetic to the idea that indefinite detention without charge is a bad thing. I can’t imagine anything worse than being stuck in a prison, questioned every day, and never charged with a crime. But you know what? When you engage in murderous activities outside the conventions of internationally agreed upon warfare, you lose your rights. You shouldn’t gain new ones heretofore never seen by our enemies.
So what does the administration do now? No idea. I’m not a lawyer. But it needs to come up with something that doesn’t include these “defendants” getting a trial in an American court. That would be absurd, and a mockery of the rules of war.
5 Comments - add your own
Will — June 13, 2008 at 1:34 pm
“When you engage in murderous activities outside the conventions of internationally agreed upon warfare, you lose your rights. You shouldn’t gain new ones heretofore never seen by our enemies.”
You lose rights only after you’ve actually been convicted of something. Being picked up by the US military in a confused combat environment isn’t exactly foolproof evidence that you’re a “monster.”
Sonny Bunch — June 13, 2008 at 1:41 pm
The whole concept of “rights” are entirely different in a “combat environment,” however. That’s my point. You shouldn’t get treated like a common criminal when you get caught consorting with terrorists engaging in activities counter to the established conventions of warfare.
Sonny Bunch — June 13, 2008 at 3:19 pm
Y’know, Will, I don’t think I’m being entirely clear here. I should strongly reiterate: holding innocent people in prison indefinitely while charging them with no crime is a bad thing. The military needs to devise a way to figure out who should be held out of military necessity, and who should be released, and they need to devise it quickly.
But giving suspected battlefield terrorists the rights and protections granted in a U.S. civilian court is not the answer. It will almost certainly lead to an excess of terrorists being freed and returned to the battlefield. And it’s a slap in the face towards decades of military jurisprudence. The suspected terrorists will now have more rights than the average captured German officers during World War II. I can’t help but feel that this is a mistake.
Will — June 13, 2008 at 4:35 pm
I agree that terror suspects probably shouldn’t be tried within the same legal framework as prisoners of war. But the court’s decision determined that the pre-trial combatant status review tribunals provided insufficient procedural protections to satisfy habeas corpus.
Maybe I misunderstood the decision, but I don’t think the Supreme Court abolished the entire Military Commissions Act or dictated an alternative legal framework for enemy combatants. Protecting habeas corpus does not provide prisoners with rights equivalent to US civilians, it only satisfies a baseline constitutional requirement.
Sonny Bunch — June 13, 2008 at 5:06 pm
The problem with your argument is, I think, that no foreign combatants, legal or otherwise, have EVER enjoyed the right to access in American courts. Johnson v. Eisentrager made that pretty clear. So regardless of the reasoning–even if it’s simply to determine their habeas status–we’re granting presumed terrorists more rights than any enemy in the history of our country. This strikes me, in a word, as ludicrous.