Thursday, June 09, 2005

What's the Deal with the Dems?

Recently I've been hearing more and more press about how several of the Democratic leaders, and other high profile Democrats, are pontificating against the Republicans. No news here. High profile Republican's rant against the Democrats as well.

What's got me shaking my head is that the latest party line is about the supposed abuses and human rights violations against the "detainees" at Guantanamo Bay. I think of them as prisoners and can't figure out why anyone would think otherwise. That's beside the point, though. What kills me is that even though several organizations have got involved, including Amnesty International, only a few of the allegations of abuse and mistreatment have proven to be true. In fact, most of the things I'm hearing being recommended by the Dem's, claiming that we've violated the detainees' rights guaranteed by the Geneva Convention, are just weird.

Here's the facts on the Third Geneva Convention in relation to the folks at Guantanamo Bay, Cuba:

In order to be considered a prisoner of war, and under the protection of the Geneva Convention, consider the following from Article 4 of the Third Geneva Convention:

(Art 4) Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy.

  • Members of the armed forces
  • militias...including those of organized resistance movements...having a fixed distinctive sign recognizable at a distance...conducting their operations in accordance with the laws and customs of war
  • Persons who accompany the armed forces
  • Members of crews...of the merchant marine and the crews of civil aircraft
  • Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms

The folks kept at Guantanamo are thought to be members of the Taliban army, and Al Qaeda. Here's their problem.

Al Qaeda members don't satisfy the requirements of being armed forces members or members of a militia. Certainly there are leaders, but the Al Qaeda's cell structure contradicts the notion of a highly specific chain of command. Moreover, because of their deliberate attempts to blend into the civilian populace, they violate the sanction of having "a fixed distinctive sign recognizable at a distance (that means they don't wear recognizable uniforms, separating them from the civilian populace)." Worse yet, because they attack civilians and civilian targets, they clearly do not follow the established "laws and customs of war." Therefore Al Qaeda prisoners are not considered to be prisoners of war under the Geneva Convention, and are not "lawful combatants."

What about the Taliban fighters, though?

The Taliban resembled a more traditional army, but there are still issues. The Taliban was never recognized as a legitimate government by the United Nations, so that kills the "members of the armed forces" argument. Because they had a tighter command structure, it could be said that they were members of a militia, but they never wore a uniform to distinguish themselves from the civilian populace. That's a big deal, BTW. Besides being a good thing to fight in, uniforms identify lawful comabants and cut down on civilian casualties. The Taliban would also commonly hide military equipment in civilian population centers as well, further cutting down on that distinction.

Could they be considered to be "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms?" I don't know. To me that implies that they were ONLY defending themselves from invasion, and were organizing themselves into militia groups at the time, somthing we've clearly stated they are not.

Just because they aren't POWs doesn't mean they don't have rights, though. They are required to be treated fairly and justly. They are not being treated inhumanely and, outside of access to the U.S. legal system, are allowed most of the same rights that prisoners in the U.S. do.

What I think the current administration needs to do, however, is step up the "trial by military tribunal" that they do have rights to. That's what the Geneva Convention says you've got to do with folks caputured who are not deemed to be legal combatants. Many of these tribunals must have already taken place. By my recollection, there are currently just over 500 detainees, but in the beginning, there were over 700. I'm not sure how many deaths there have been, but I think it was somewhere between 16 and 28. I could be wrong on the numbers. Regardless of that, though, the sooner the rest of them get tried, the better.

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