Law Lesson: About Those Trials

Part of a Continuing Series: One of the things I’ve noticed over the last three or four years of national debate about the War on Terror is that it is oddly common for people to ignore international law—even when it supports their arguments. This has been a pet peeve of mine for a while, simply because I do not like to see anyone leave a good argument lying on the table.

With the hope that you never leave an argument alone simply because it’s about a sticky subject, here are some simple, straightforward, and useful facts about international law that may help you out the next time you’re stuck at the watercooler talking about current events.

Current Event That Prompts Discussion: Round about October, the Supreme Court will be hearing the consolidated cases of Boumediene v. Bush and Al Odah v. U.S. Those are two (of many) pending cases of combatant-detainees at Guantanamo. Expect an increase in chattering about indefinite detentions and criminal trials.

Leftist Commentary #1: It has been five years since Guantanamo has been opened, and not one person has been convicted of anything. Not one person has been convicted, even though these are the worst of the worst, as described by Rumsfeld in 2002.(You may also have seen this line of argument in in the NYTimes and the Washington Post, and will probably see it again.)

Your Answer: Under international law (specifically, the Geneva Convention (III) relative to the Treatment of Prisoners of War), we are prohibited from putting combatants to trial for acts of combatancy. This assumes that some portion of Guantanamo detainees are POWs (an assumption made by many on the Left). POWs cannot under any circumstances be put to trials for the act of fighting for their countries. Rather, POWs can be held until the cessation of hostilities. [See more on cessation of hostilities below. –Ed.]

It’s likely at this point that someone (maybe you?) will inquire about unlawful combatants. Well, for those detainees who are not considered POWs, but rather unlawful combatants, international law provides that they can be detained like POWs, but that they can also be prosecuted for the crimes that made their combatancy unlawful. Note, however, that such prosecutions are a possibility, not a command. In other words, unless they have POW protections the U.S. can choose to hold them, choose to try them, or choose to release them.

Leftist Commentary #2: But how can we hold prisoners indefinitely? That could conceivably be for the rest of their lives! That’s got to be illegal, right?

Your Answer: Of course it’s not illegal (it helps your argument if you say this like it was so freaking obvious that you may just by dying of boredom right there next to the watercooler. Roll your eyes a little for some added drama). All wars are wars of indefinite length when they are still ongoing. For example, German or Japanese prisoners in 1944 could plausibly have said “our detention is indefinite; we could be here for the rest of our lives.”

For the purposes of international law, combatants can be held until the cessation of hostilities. Now this does not rely on archaic (and irrelevant) ideas about whether a war is “officially declared” or “officially ended in cease-fire.” Cessation of hostilities occurs when there is no possibility that a released prisoner will return to his forces and continue fighting. In other words, combat must be over between the U.S. and with whatever belligerent the prisoner was fighting for.

For added points, or if you just want to sound like a law geek, you could direct your Leftist friends to Hamdi v. Rumsfeld. There, the Supreme Court applied the issue of cessation of hostility to a detained Taliban fighter and determined that he can be held until the U.S. is no longer fighting the Taliban.

(Incidentally, Hamdi v. Rumsfeld in 2004 and Hamdan v. Rumsfeld in 2006 were largely hailed by the media and commentators—even members of the dextrosphere—as losses for the Bush Administration. That is simply not true. Don’t believe it. And if I have time before the Open Blog Weekend is over, I will explain why.)

So the next time you’re jawing about Guantanamo, keep in mind that international law is on your side, no matter how smug your Leftist debate partner may feel about it.


~ by Gabriel Malor on August 4, 2007.

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