by Brian on February 15, 2004

I usually agree with Mark Kleiman’s posts, even in cases where I wouldn’t have agreed before reading them. But I think he’s seriously mistaken about the Guantanamo detainees.

First, Mark thinks that there should be a serious distinction between how US citizens and others are treated at Guantanamo.

bq. When it comes to American citizens or those captured on American territory, habeas corpus ought to apply, since we certainly don’t face the “rebellion or invasion” that would justify its suspension. … But I can’t see what happens to the others as anything resembling a problem about civil liberty or the rule of law.

This leads to a very bizarre set of outcomes. Because John Walker Lindh was captured by his own country’s troops, he gets a lawyer and a trial. Because David Hicks was captured by another country’s troops, he gets neither of those things for two years, and then only a lawyer provided by the military. (To be fair, the lawyer seems to be doing a good job in difficult circumstances.) If Hicks is guilty of what he seems to be accused of, if, then he doesn’t deserve much sympathy. But it’s very hard to justify differential treatment because Americans rather than Australians got to him first. (Full disclosure: I tend to get rather skittish about claims that Australians don’t deserve full legal protection from government mistreatment.)

Second, Mark says that it has not “even been charged that the Guantanamo internees are being actively maltreated.” Obviously this is not intended literally – there are thousands of crank websites where such charges are made. (My evidence for this is mostly inductive – for any political claim you can think of there are thousands of crank websites where it is endorsed.) I take it Mark means that this has never been charged by anyone worth taking seriously. But I don’t think that’s true. Although Amnesty mainly talks about the lack of legal protection for detainees, they also say that the prisoners are being detained in ‘inhuman’ conditions.

Finally, a point Mark makes in passing is worth I think taking much more seriously than he does. We simply do not know that each of the prisoners being held in Guantanamo are guilty. All we have to go on is the word of the current administration. And from the gang that can’t shoot straight, that’s simply not good enough.

This is not normally a problem with POWs. Normally, soldiers wear uniforms, so you can tell pretty much straight away whether the guy is an enemy soldier or not. This isn’t true for the people we captured in Afghanistan. We don’t know how to classify them, and I don’t trust this administration to do the classifying any more than I trust their economic forecasts.

In particular, remember that in Afghanistan our primary enemy was not al-Qaeda. Our primary enemy was the Taliban regime. We were at war with the Taliban because of their relationship to al-Qaeda, but that does not mean they are the same entity. Many of the people we captured will have been fighting for the Taliban, not al-Qaeda, and our war with the Taliban is over. Many more will not have been fighting for anyone, but will simply have been in the wrong place at the wrong time, or will have been dobbed in by people eager to settle old scores or collect reward money. I’d be surprised if David Hicks is one of the innocents, but he might be. Again, the word of the current administration doesn’t give me the greatest confidence on this score.

It might be objected here that since the our war with the Taliban never led to “a surrender or peace treaty”, we should still be regarded as at war with them. I don’t think this is tenable. The US never formally surrended in Vietnam, but I don’t think anyone would say that would have justified the Vietnamese in holding US POWs indefinitely. When John Kerry and John McCain did their 1985 investigation into whether there still were POWs in Vietnam, I don’t think anyone argued, “Well if there are it is legitimate since we haven’t surrendered.” If the war is over, the POWs get released, unless they have committed war crimes.

Alternatively, it might be argued that the war against the Taliban is not over, since there are still outbreaks of fighting in Afghanistan. This is a more plausible claim, but I don’t think it works. The Taliban regime has fallen, and their forces have been scattered. There may be sympathisers left for the regime, just as there were sympathisers left in the South after the US Civil War, and in Germany after WWII. And, for that matter, in South Vietnam after the fall of Saigon, or in Yugoslavia after the fall of Milosevic. Those sympathisers can be violent towards those charged with keeping the peace. Since in this case those charged with keeping the peace were woefully under-resourced so US forces could be moved to Iraq, this must be a hellish experience for troops still in Afghanistan. But it doesn’t mean that the war we fought there in 2001 is still ongoing. We won, the Taliban regime is fallen, and those prisoners who were fighting for the Taliban, rather than al-Qaeda, should to be charged with war crimes or released.

As I said, Mark acknowledges this in passing: “So perhaps we need a process by which a relatively impartial judge examines the evidence.” I don’t see the justification for the ‘perhaps’. In any case, he goes on, “But I don’t see that as a requirement either of our domestic law or of international law.” That may be true – he knows a lot more about the law than I do. If so, all the worse for the law. If there is no moral justification for keeping these people locked in cages without a trial or any fair way to determine who is a combatant for an active enemy and who isn’t, then the absence of a law requiring us to fulfil our moral duties should be no excuse.



Amanda Butler 02.15.04 at 8:02 pm

“This is not normally a problem with POWs. Normally, soldiers wear uniforms, so you can tell pretty much straight away whether the guy is an enemy soldier or not.”

The Third Geneva Convention (treatment of POWs) follows the Hague Convention of 1907. In order to be counted as a POW, you must fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

There’s a story from WWII. Some German soldiers or American Nazi-sympathizers wanted to sabotauge a small naval base in America. After sneaking to place where they were going to start their attack, they changed their clothes. They were captured before their plan could destroy anything because they stuck out in their German uniforms. Why? They knew POWs were defined by the uniform.


rd 02.15.04 at 10:44 pm

I’m not sure how you neatly differentiate between Taliban and
Al-Qaeda prisoners. Qaeda was so intertwined with the Taliban state that I don’t think there’s an easy test to separate them out. One might be foreign birth: the majority of Guantanomo detainees are of non-Afghan origin, including 150 Saudis. But of course David Hicks claims he was fighting for the Taliban alone. Moreover, the answer of “charge them with war crimes or release them” isn’t as simple as it appears. What do we think would be the fate of the 150 Saudis if we “released” them back to Saudi Arabia?
I agree some sort of independent review should be established, but prisoners of this kind, members of a terrorist organization and/or of a terrorist-allied state, simply don’t fit well with the usual rules and procedures for POWs.


andrew 02.16.04 at 12:56 am

Were al Qaeda and the Taliban so intertwined? Or was that a myth that made it easier to go to war on a state, after being attacked by stateless actors? The Taliban – untravelled, illiterate, Pashtu speaking (mostly)…al Qaeda – foreign born, Arabic speakers. I’m sure there was mixing, but how much? A country needed to go down, we needed a target, a police action wouldn’t have suited the administration’s aims. The Taliban even offered to turn over Osama, who knows if they would have cooperated. I know that to entertain such a question immediately brands one as “not-serious,” but what the hell.


Alex Halavais 02.16.04 at 1:23 am

Kleinman rejects the old-fashioned view that war can only exist between states. Removing this restriction leads to serious confusion.

When would a war on Al Qaeda end? With the capture or killing of each member? Since it is extremely unlikely that there is a central roster of members, how could this work? It seems members are able to self-elect themselves to the “organization.” When they renounce that name is it over? In other words, simply saying that it isn’t a war on “terrorism” (which, of course, the administration maintains it is) doesn’t get rid of the problem that there is no clear set of criteria for determining when the war is over.

Moreover, this opens the door to other kinds of “wars.” Should the US be able to declare war on specific organized crime organizations? If they do so, does it mean that we can capture and hold members of such organizations without trial until the organization is dismantled? Then what, we charge its captain (cf Noriega) with war crimes? This isn’t even an extreme example of how slippery that slope is.

Al Qaeda bears more in common with an international drug ring than it does with a nation-state, IMHO. Unfortunately, I’m not sure this opinion meshes well with the Dems front-runner–check out Kerry’s New War. E.g.: “America has no choice but to lead the world in the fight against ‘private’ criminal enterprises just as we led the world in the fight against ‘public”‘criminal governments” (cite). Of course, his approach to such a war has a lot less to do with establishing gulags, and more to do with international cooperation and fighting our own internal demons.


J 02.16.04 at 1:51 am

Let’s see. This AlQaeda, do they have a formal swearing in ceremony and mustering out documents like a country or an army or the mafia? How do you know when you are in or out or if they are wining or losing? The Taliban was a religious faction that exercised control of an area, but wasn’t a recoginized government entity ecept by us when they were fighting the Russians for us. We were on their side for oil reasons in their civil war with the “Northern Alliance” another loose group of “brothers”. On Oct 19th we sort of started helping the North Alliance and then created some sort of control body with our Oil executive, Karsi, at the head.
We sort of have claimed victory in both Afghanistan and Iraq. How does one designated an “enemy combantant” know when the “War” is over since it has never been formally declared just started. I hate to nit pick, but lives and freedom are at stake.


Mark Kleiman 02.16.04 at 6:01 am

So what do you propose? Criminal trials? But what if someone is a member of al-Qaeda and remains committed to killing Americans at every opportunity, but can’t be shown beyond reasonable doubt to be guilty of any crime? The whole point about POW status is that it doesn’t depend on individual guilt.

As to Vietnam, as I recall there was a formal peace treaty, to which the U.S. was signatory.


rd 02.16.04 at 6:13 am

As for whether the Taliban and Al-Queada were “really so intertwined,” go back and look at the NY Times coverage of the documents uncovered after the Taliban fell. Basically, what you had was not so much a state sponsoring terrorism as terrorism sponsoring a state. Bin Laden contributed a huge portion of the Taliban’s state revenues and conducted a massive military/terrorism training program on Afghani soil. The average recruits were sent to serve in the Taliban army; the “exceptional” ones were sent abroad for international terrorism.


Brian Weatherson 02.16.04 at 7:08 am

Yep, I think criminal trials are the right way to go. I actually don’t think it would be too hard to convict lots of people on conspiracy to murder charges. Being a member of al-Qaeda might not be a crime in and of itself (or it might be – it looks like a criminal conspiracy to me) but I think it would actually be fairly easy convict anyone with any substantive role in the organisation with conspiracy before or after the fact in the Sept 11 murders.

More importantly (and more contentiously) I think the point about the possibility of terrorists being released is one we just have to live with.

It’s easy enough to build up these kind of hypotheticals. Let’s say we find someone, an American, who helped Timothy McVeigh in the Oaklahoma City bombings, and who thinks the only problem with the bombing was that it didn’t go far enough, and who is (we think) determined to try for a bigger target, but we can’t find evidence beyond a reasonable doubt to convict him. What do we do? Not, I hope, ship him off to Cuba under a legal loophole. And not just because it would be illegal, but because it would be immoral. I think David Hicks and the others being held in Cuba should be treated the same way.

By the way, none of this is meant to be motivated by being soft on al-Qaeda (which I’m not) or anti the Bush administration (which I am). I think (and here I think I agree with Mark) that a big criticism of the govt’s handling of the offensive against al-Qaeda is that for all its show, it really has done too little in many ways. I don’t think we should be doing favours to actual members of al-Qaeda. I think we should be freeing those wrongly caught up in the terrorist catching net.

On his site Mark worries, reasonably, that being in al-Qaeda isn’t a criminal offence, so trials would mean freeing terrorists. In this case, I’d be reasonably tolerant of retrospective legislation making it criminal to be in al-Qaeda. It’s not like anyone joined al-Qaeda on the reasonable expectation that they would be immune to retaliatory action by the US gov’t, so the injustice of this move would be minimal. As I said above, I think many, probably most, members of al-Qaeda can be found guilty of crimes relating to the Sept 11 murders, but if not (and I think this is a reasonable worry) I think the option of simply defining al-Qaeda to be a criminal network is worth considering.


Silas Lynch 02.16.04 at 7:53 am

What a quaint notion that citizenship means anything in today’s multicultural global neighborhood. I mean, we’re all people, right? Seriously, though, the concept of citizenship does lead to outcomes that may seem strange– but the fact is, “Australians don’t deserve full legal protection from [US] government mistreatment.” I agree that the US should not deport aliens for peacefully advocating political ideas, as we’ve done repeatedly throughout our history. But the even more absurd outcome would be that the US must hold a hearing before detaining alien prisoners of war. It’s holding the US to a ludicrously high standard. I don’t think anyone outside the US, including citizens, are entitled to government protection outside the terms of treaties, international agreements, or Congressional statutes. And I don’t think U.S. civil courts have any obligation to review claims of non-citizens alleging abuses outside the U.S. The reason these Guantanamo issues have gone to the courts, and not Congress, is, 1) Congress almost always acts in the national interst on issues of foreign policy, 2) the Courts are composed of elites who tend to be more liberal than the general population, who are unelected and not responsive to any constituency outside of elite liberal legal opinion, 3) the Courts act on vague 14th Amendment language that could support just about any interpretation a judge wants to give it. Any “remedy” that the Court fashions to give greater due process to the Guatanamo detainees is destined to be controversial, unpopular, and could very well weaken the US’s attempts to act in its national interest by detaining aliens. Fmr. Sup. Ct. Chief Justice Hughes said, “We have a fighting Constitution,” and he was absolutely right.


ahem 02.16.04 at 9:33 am

amanda: the ‘uniform’ rule is quoted plenty, but hardly every accurately (as is the case with your citation); there’s plenty of legal discussion on this, if you care to look for it. Most importantly, those fighting with the Taliban could reasonably be said to fit the definition of Article 4, section 1:

Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

The questions of a command structure, fixed-and-distinctive sign, or a uniform only kick in if prisoners fit the definition of ‘militias and members of other volunteer corps, including those of organized resistance movements’. Now, you could argue that the Taliban army, as such, was little more than a militia; but that’s something that you have to prove in front of a ‘competent tribunal’. Anecdotes from WWII may be interesting, but they’re not relevant here.

And while it may be a ‘ludicrously high standard’ to hold hearings to determine POW status, it’s also explicitly within the terms of an international treaty:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So, the presumption is that you’re a POW until a competent tribunal says otherwise.

I’m sure there was mixing, but how much?

Plenty, apparently. There were a number of British prisoners, some of them taken before the US invasion, who took up the Taliban cause after spending time in Pakistan’s madrassas, and headed to the existing frontline against the various groups which became known as the Northern Alliance.

As for David Hicks: the legal limbo of Guantanamo is no less abhorrent, in many ways, than sending captives off to regimes where interrogation techniques are, let’s say, more pro-active than the US would care to admit personal responsibility.


Jim Birch 02.16.04 at 9:51 am

“… prisoners of war….” ?

Sorry, but they aren’t “POWs” according to the Bush administration. As I understand it, the term “Illegal combatants” is used specifically to avoid the rights accorded POWs under the Geneva Convention, like limited freedom of association within the prison, humane treatment, external inspection, some communication rights, etc.

Guatanamo is an anathema to the United States underlying moral purpose. Sure war is war but Guatanamo is not wise. Long term, many of the actions of the administration are counter-productive, and will eventually hurt the people they are simplistically intended to protect.


Odd Ray of Hope 02.16.04 at 4:14 pm

Is a “fair trial” possible in the US for detainees? Where would the US get an unbiased jury, and can the US (or any country bar Afghanistan) produce a jury of “peers”?

Perhaps we should wait and eventually deport them back to a reconstituted Afghan state. The Afghans would then have to decide if they are guilty of crimes, and to take responsibility for their behavior. Those that are not Afghans may very well be guilty of capital crimes against the Afghan people.

But I don’t think the US has to offer trials to non-citizens who have taken up arms against it.


DJW 02.16.04 at 5:50 pm

Jim Birch gets it right. The problem, to me, is not anything specific about how they are being treated, that I’m aware of. What concerns me is the fact that an ad hoc legal category has been created for the sake of convenience. POWs can be held without trial, but have other rights and priviledges. Criminal defendants must be charged with something, but don’t have other rights. It may turn out to be the case that dealing with ad Queda may be best dealt with through some combination of the ideals of law and war. But anyone who beleives in the rule of law ought to be concerned about the unprincipled, ad hoc nature they’ve been combined.

Regarding the al Queda/Taliban connection, it seems clear to me they were quite entertwined, so much so that the war in Afganistan seems entirely justifiable to me. However, that doesn’t lead me to the conclusion that simple rank-and-file membership in the Taliban ought to be considered the equivalent of membership in al Queda. It seems prima facie plausible that some, perhaps many, Taliban members joined up because a) this appeared to be the faction in the civil war that best represented their views, b) this appeared to be the faction in the civil war that had the best chance at winning and creating stability, or c) they were more or less forced to join up. I’ve seen no reason to assume the rank-and-file have specific knowledge or complicity with al Queda and their plans. If (and I doubt this is the case, but it might be) simple membership in the Taliban is enough to get you permanently housed in Guantonamo, that seems pretty appalling to me, above and beyond the housing of al Queda members (which troubles me for the reasons discussed above, but not as much).


djw 02.16.04 at 5:55 pm

but don’t have other rights

of course I meant ‘don’t have *certain* other rights.’

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