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On Point

The Legal Limbo at Guantanamo


by Austin Bay

Every Monday night, I put on my uniform and head for reserve drill. However, it's not the uniform per se that makes me a "part time" American soldier.

Still, for folks with a knack for the obvious, when essaying the applicability of Third Geneva Convention standards to a particular prisoner, a uniform (or lack thereof) is a pretty darn good place to start.

A uniform is more than a fashion statement. A uniform attempts to bring order to the chaos of warfare. On a battlefield, it helps separate "us" from "them" -- a crude tool perhaps, but a tool that also establishes at a basic level what constitutes a "legal target" and what does not.

A uniform signals a military organization with at least a minimal degree of internal regulation. It also indicates a "chain of command" -- decision-makers with direct responsibility for their own and their subordinates' actions.

Remove the uniform, and we slip into a dangerous zone, where "one man's terrorist" may morph into "another man's freedom fighter."

Not all soldiers, however, wear uniforms, nor do all soldiers fight for treaty-signing nation states. Some soldiers fight for could-be nations. When the colonial militia deployed at Concord, the uniform was work clothes. (In 1776, I'd have attended Monday drill in work clothes.) But that militia (to lift a phrase from "Geneva") conducted "operations in accordance with the laws and customs of war" (though some Redcoats objected to "Indian tactics," like sniping from behind trees).

In World War II, the Nazis executed French partisans as saboteurs. The partisans were, for the most part, attacking military targets within the "order" of a declared war. If caught, however, work clothes were no uniform. Of course, Nazis are no standard for civilized law.

Nor, for that matter, are Al Qaeda and its cohorts.

One military judge with 30 years experience told me (on the condition of anonymity) that most "guerrilla forces" meet "Geneva requirements." "Guerrillas normally seek some form of self-determination," establishing at least a quasi "convention (contract) status" with regards to opposing forces. Al Qaeda, he added, "is not a recognized military force representing any country." Its goal of global Islamic revolution is so diffuse it snaps "any rational definition of self-determination."

When applying "Geneva," the judge argued the notion of "contract" ("do unto others") is fundamental. "You face a threshold entry issue. Just coming over and murdering civilians doesn't make you a soldier and your attack warfare."

Al Qaeda operates without respect for human dignity or a verifiable chain of command. The notion of an enemy's "human rights" is foreign to Al Qaeda's methods and assumptions. Al Qaeda doesn't recognize any laws beyond its own suspect interpretation of the Koran. "If you murder without notice," the judge concluded, "you are entitled to nothing (under Geneva)."

With the White House concerned that "Geneva status" restricts U.S. ability to obtain intelligence that may thwart future terror attacks, the result is the legal limbo at Guantanamo, with Al Qaeda "detainees" denied POW status.

The judge makes a strong case. Al Qaeda operates beyond the "law and customs" of war. Terrorists aren't legitimate soldiers by treaty definition. As a part-time soldier, I appreciate his analysis.

However, the United States calls "The War on Terror" a war, hence the moral, legal and now media rub over "POW status" for Al Qaeda thugs. Folks with a knack for the obvious might ask, "When is a war not a war?"

America seeks to replace Al Qaeda's anarchy with the order of peace. As such, "limbo in Gitmo" doesn't best serve America's long-term aims. Honoring "Geneva," a legal instrument grounded in respect for common human dignity, does -- even if it means treating thugs as POWs, at least until what the JAG officers call some "other status" is determined by "a competent tribunal." That means if a knowledgeable investigation reveals a particular individual committed crimes, he may lose POW status.

A superpower respecting rational, dignifying law not only sets a fine political and historical example, it further separates the lawful from the "outlaw." Any mistreatment of captives held by Al Qaeda network operatives will be further stigmatized, with appropriate penalties exacted.

The hole that was the World Trade Center is ample evidence of Al Qaeda's evil. The rock pile that was an Al Qaeda cave demonstrates one legitimate means of responding to it. But legal mechanisms, to include "Geneva," are also weapons in this war, distinguishing between the "order" of measured, justifiable force, and the spiraling madness of murder and anarchy.

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