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Wednesday, June 29, 2005

Dealing with Terrorist Prisoners

I finished reading Rescuing the Law of War: A Way Forward in an Era of Global Terrorism by Michael H. Hoffman, one of the articles I mentioned in this post. It is on whether we should consider captured terrorists Prisoners of War or judge them by the civil justice system. Not surprisingly, the answer is neither. It goes into some depth on the history and origin of laws of war and why non state actors engaging in international warfare need to be treated differently than either traditional intra-state war or civil war, the only two types of warfare the Geneva Convention deals with. It also explains convincingly why the civil justice system is inadequate to this task. Hoffman proposes a third way, looking at customary Law of War precedents and establishing a legal framework based upon them. Here is Hoffman's plan:

The following two principles offer a way forward. Terrorist warfare represents a form of unlawful belligerency thatat sovereign states can meet by adapting customary rules of war. Not all warfare is necessarily covered by the Geneva Conventions, and where it isn'’t, the customary law of war should apply. The 9/11 Commission observed that such rules can form the basis for an operational response to terrorism. The executive branch needs to establish clear, firm guidelines for the application of the customary rules of war in operations against unlawful belligerents. Legal issues will arise that haven’t been foreseen, but that’s inherent to all military operations and they will have to be addressed as they arise. There is little time, however, to build a complete customary law-of-war framework ad hoc, and relying upon the judicial branch to sort out uncertainties in the rules of war is not an option. The customary laws of war, when adapted for conflict with unlawful belligerents, must always incorporate rules of humanitarian restraint. Any set of customary rules of war adapted for this purpose will have to include rules for humanitarian protection of civilians and military captives. There simply is no getting around this. While certain rules found in the Geneva Conventions may not be appropriate or obligatory when dealing with terrorist organizations (e.g., the rule limiting the scope of questions that prisoners of war are obligated to answer) there are still lines that can't be crossed.
This is comfortingly similar to things I have said before, although far more detailed and thought out than my meager offerings. It must be stressed, that a good portion of the problem, as Hoffman explains, comes from a failure of the Executive and Legislative branches to assert a clear and reasonable set of rules and standards governing non-state international war. In this vacuum, the Judiciary has asserted itself out of necessity.


Anonymous Chris Rasmussen said...

".... a failure of the Executive and Legislative branches to assert a clear and reasonable set of rules and standards governing non-state international war. In this vacuum, the Judiciary has asserted itself out of necessity."

Dave, I agree completely. The question is: during the drafting of the Patriot Act and similar provisions after 9-11, why didn't we anticipate that this would be an issue.

6/29/2005 06:17:00 PM  
Blogger Dave Justus said...

Well, the Patriot Act deals with entirely seperate issues, but certainly it should have been anticipated.

One thing I certainly don't like about Guantanamo is the very fact that it is in Cuba as an attempt to avoid Judicial overview. That was a fine immediate compromise when the need was first made manifest, but we have had time to ammend the legal code since then. If what we are doing their is moral, and certainly a lot, if not everything is, then it should be as legal to hold these people is Texas or Virginia as in Cuba. If it is not moral, we shouldn't be doing it in Cuba or elsewhere.

I can see a good reason for Cuba in the immediate aftermath of Afghanistan. We have had enough time then to construct good legislation to deal with this and there has been no attempt to do so, and the Republican Party must bear most of the blame for that (although the Democrats certainly haven't earned any high marks either.)

6/29/2005 10:20:00 PM  

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