On Point: The Legal Limbo at Guantanamo


by Austin Bay

Every Monday night, I put on my uniform and head for reservedrill. 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 theapplicability 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 attemptsto 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 establishesat a basic level what constitutes a "legal target" and what does not.

A uniform signals a military organization with at least aminimal degree of internal regulation. It also indicates a "chain ofcommand" -- decision-makers with direct responsibility for their own andtheir 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 soldiersfight for treaty-signing nation states. Some soldiers fight for could-benations. When the colonial militia deployed at Concord, the uniform was workclothes. (In 1776, I'd have attended Monday drill in work clothes.) But thatmilitia (to lift a phrase from "Geneva") conducted "operations in accordancewith the laws and customs of war" (though some Redcoats objected to "Indiantactics," like sniping from behind trees).

In World War II, the Nazis executed French partisans assaboteurs. The partisans were, for the most part, attacking military targetswithin the "order" of a declared war. If caught, however, work clothes wereno 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 thecondition of anonymity) that most "guerrilla forces" meet "Genevarequirements." "Guerrillas normally seek some form of self-determination,"establishing at least a quasi "convention (contract) status" with regards toopposing forces. Al Qaeda, he added, "is not a recognized military forcerepresenting any country." Its goal of global Islamic revolution is sodiffuse 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 entryissue. Just coming over and murdering civilians doesn't make you a soldierand your attack warfare."

Al Qaeda operates without respect for human dignity or averifiable chain of command. The notion of an enemy's "human rights" isforeign to Al Qaeda's methods and assumptions. Al Qaeda doesn't recognizeany laws beyond its own suspect interpretation of the Koran. "If you murderwithout notice," the judge concluded, "you are entitled to nothing (underGeneva)."

With the White House concerned that "Geneva status" restrictsU.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 "lawand customs" of war. Terrorists aren't legitimate soldiers by treatydefinition. 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 Qaedathugs. Folks with a knack for the obvious might ask, "When is a war not awar?"

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

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

The hole that was the World Trade Center is ample evidence of AlQaeda's evil. The rock pile that was an Al Qaeda cave demonstrates onelegitimate 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 andanarchy.

To find out more about Austin Bay and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2001 - 2018CREATORS SYNDICATE, INC.



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