Congress Debates Detainee Rights

Congress has resumed debate over the rights of detained suspected terrorists to petition US courts as to their legal status. Not surprisingly, the debate is split down partisan lines with Democrats calling the President "a Tyrant" and accusing him of assuming dictatorial powers, and Republicans referring to the detainees automatically as "unlawful combatants" and terrorists that are prepared to "cut off someone's head with a hacksaw." (Washington Post: Congress Goes Ahead on Detainees' Rights.)

Unfortunately, what is being lost in this entire debate is the actual legal status of these detainees under the Geneva Conventions (and specifically the Fourth Geneva Convention) as ratified by the US Senate. The whole debate comes down to whether or not they are prisoners of war or unlawful combatants. If the former, then they are afforded all the rights of prisoners as laid out by the four Geneva Conventions that we ratified. If the latter, however, then they have no such protections under any law.

So, are they or aren't they? Well, they certainly do not qualify as POWs given most of the requirements set forth in the Geneva Convention. They are not members of the armed forces. While they are certainly members of a resistance movement, they do not meet the qualifications for protection in that they do not "have a fixed distinctive sign recognizable at a distance" and do not "conduct their operations in accordance with the laws and customs of war." They are not persons who accompany the armed forces in a support role. They are not members of the crews of aircraft or ships assigned to the armed forces.

But here's where it starts to get sticky. So far, everything has been cut and dry. There are, however, several provisions that cloud the issue. Does this one apply?

Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

That may well apply to a number of the native Iraqi insurgents, depending on how you interpret the clause "respect the laws and customs of war." The foreign insurgents that make up the bulk of al Qaida in Iraq do not meet this qualification, but there is the possibility that Iraqi citizens do.

But then there's this provision, which really muddies the waters:

B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country...

Under that clause, anyone that is currently detained and at one time served in the armed forces of Iraq or Afghanistan is by definition a Prisoner of War. That standard may well apply to the majority of detainees currently in US custody. This doesn't need Congressional debate since it was already ratified by the Senate when the treaty was signed.

As to the status of these detainees now, the Fourth Geneva Convention makes that quite clear:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In no uncertain terms, the Convention states that everyone detained is assumed to be under the protection of the Geneva Convention until their actual status can be reviewed by a competent tribunal. So really, all that is left for Congress to debate is what constitutes a competent tribunal. Everything else is already a matter of law.

For the record, the position we should be taking is to afford the detainees all the protections we would want to see US citizens receive should the roles be reversed. If these detainees qualify as POWs then they should be treated as such. If they do not (as determined by a competent tribunal), then they are at least entitled to humane treatment for the duration of the war. What we do not need, however, is partisan politics deciding either the fate of the detainees or the manner in which we will conduct ourselves in the prosecution of the insurgents and terrorists with whom we are currently at war.

We signed and the Senate ratified four treaties pertaining to the rules of war and the proper handling of those detained. Quit the partisan nonsense and uphold the treaties that we have ratified.

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