The Bush administration’s ill-defined policies on unconventional combatants captured in Afghanistan and Iraq spotlight the need for well-defined statutes that U.S. armed forces can follow in dealing with the out-of-uniform enemy they’re increasingly likely to encounter in future conflicts.
A statutory system would impose order that rules made up on the fly clearly cannot. “It should be done – there’s no question about it,” says Kevin J. Barry, retired Coast Guard captain and military judge.
“It’s a very good suggestion because the Geneva Convention did not anticipate the kind of enemy” that U.S. forces are fighting when the international treaties were created, said Ved Nanda, director of the international legal studies program at the University of Denver. “If Congress can look at … how they should be treated, I think that would be a very good idea.”
“Congress has been absent without leave on this,” Barry said. Since 2001, only the courts have done that, he said.
Congress belatedly took up some issues involving captives, with Arizona Sen. John McCain’s torture ban and the ridiculous proposal by Sen. Lindsey Graham, R-S.C., to strip the U.S. Supreme Court of the power to hear detainee cases. (In June 2004, the court ruled detainees can’t be held indefinitely and could challenge detention in federal courts.)
Congressional criteria that differentiate between insurgents and terrorists would be helpful. “It’s awful what we’re doing,” Barry says, condemning the idea “that anybody who wants to do something nasty to to us is a combatant who we can lock up and throw away the key.” Even the Viet Cong were treated as prisoners of war.
Once a country is pacified, insurgents who take up arms in their home countries can and should be released. Incarceration of international terrorists, who could remain dangerous for a long period of time, is much more problematic. Nanda points out that “the United Nations has no mechanism for dealing with those kinds of people. … My own suggestion would be some international machinery be established to deal with these difficult cases,” possibly by regional groups of countries.
Congress, which created the Uniform Code of Military Justice, has the power to enact laws defining rules for military tribunals that determine if captives are POWs or try any accused of war crimes. As Barry notes, President Bush’s military commissions were modeled on those established during World War II but without many due-process protections.
Instead of haphazard efforts that clash with American legal strictures, Congress should enact unambiguous laws that are consistent with international concepts of humane treatment – the same as we’d demand for any GI who’s a POW.
