Monday, February 22, 2010

The Debate over the Detainees

While several developments have taken place since this debate aired, this video is still helpful in understanding the underlying debate in regards to viewing military detainees as enemy combatants or prisoners of war. If they fall under the latter category, then they should be accorded Geneva Convention rights.

The 3rd Geneva Convention has a four pronged test to determine whether a person deserves its protections. If he meets these criterion, then he is prisoner of war:

1) "commanded by a person responsible for his subordinates" i.e. he must be an agent of a state.
2) "a fixed, distinctive sign recognizable at a distance, if not a uniform than something to set them apart from the civilian population."
3) “The members of the militia must carry their arms openly”
4) "in accordance with the laws and customs of war" e.g. he does not directly target non-combatants

It looks like Al Qaeda detainees fail all 4 criterion, or at the very least, the last 3 and would not qualify for Geneva Convention rights; however, the Civil Libertarian’s counter is that the 3rd Geneva Convention states it is the responsibility of a competent authority to make this determination. There could be others in Guantanamo Bay who are entitled to such rights, and the way to determine this is to have a judicial proceeding of some kind.

That is a fair point. If there are innocents in Guantanamo Bay who have been mistakenly detained, then a proceeding could correct the mistake. The question then becomes what constitutes a proper judicial proceeding. It is interesting to hear that Erwin Chemerinsky, the Civil Libertarian in the video, thinks a Military Tribunal would be sufficient and in accord with a Geneva Conventions i.e. the proceeding could be as simple as “just two or three officers in the field who examine someone who's captured in the field.”

I say that is interesting because something very close to that occurred after this 2004 debate. Military Commissions were issued, but the Supreme Court, in Hamdan v. Rumsfield, ruled against them and said they, not the Tribunal, should hear the detainees’ cases.

President Bush responded by getting explicit Congressional authorization for the military tribunals in the Military Commissions Act of 2006. Congress added more protections for the detainees by amending the Act in 2009.

As I said in a previous post, Civil Libertarians see civil liberties as ABSOLUTE i.e. no or few restrictions during wartime. Now we see they also think they are UNIVERSAL: non-citizens are just as entitled to these rights as citizens. This is why they usually take the position (leaving aside Cherminsky’s approval of Military tribunals) that enemy combatants should be tried in civil, not military, trials. My reply is natural rights might be ABSOLUTE and UNIVERSAL, but civil rights, which are MAN-MADE, are not. They only apply to citizens and can be curbed.

This doesn’t mean the detainees should be ‘indefinitely imprisoned’ either because even non-citizens have natural rights which cannot be abridged; but that does not mean we are morally obligated to give them anything more than a hearing in front of a Military Commission. The Rights of the Declaration are guaranteed to ALL; however, the Constitution's rights are only for US.

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