Good argument from "Intel Dump."
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Group takes Gitmo appeal to the Supreme Court
A coalition of retired military officers, judges, ex-POWs, and others has filed an amicus curae brief urging the U.S. Supreme Court to hear the appeals of detainees held at Guantanamo Bay. The petition on behalf of 12 detainees was dismissed by lower courts on procedural grounds, and the group is now asking the high court to overturn that dismissal so the case can go forward on the merits.
Representing seven groups that have filed friend-of-the-court briefs on behalf of 16 detainees at the base, the former officials said the detentions of more than 650 terror suspects without access to lawyers is a mistake of law that hurts the United States' reputation and could endanger Americans elsewhere.
The detainees have sued in federal court, seeking the right to talk to lawyers and to challenge their detentions before a court, but have had their cases rejected and are now appealing to the Supreme Court.
''The perception of this case abroad -- that the power of the United States can be exercised outside the law -- will diminish our stature and repute,'' said a brief filed by 19 former diplomats. ``Our most important diplomatic asset has been this nation's values.''
They said countries from Egypt to Malaysia were now citing the Guant?namo precedent as they held suspects without trial.
In a separate brief, three retired military officers said they feared that the failure to apply the Geneva Conventions in Guant?namo is giving other nations ''an excuse'' to do the same ``and will endanger American soldiers captured in the future.''
The diplomats include two former assistant secretaries of state, William Rogers and Alexander Watson, and Allen Holmes, a former assistant secretary of defense. Among the military leaders was Rear Adm. Donald Guter, who retired last year as Navy judge advocate general. Guter said he was involved in early decisions about Guant?namo and reviving military tribunals for some suspects.
So far, federal judges have ruled that because the base, leased from Cuba, is on foreign territory, aliens held there have no access to U.S. courts to challenge their detentions. The Bush administration maintains that the detainees -- most of them captured in Afghanistan and Pakistan -- are ''unlawful combatants,'' do not deserve POW status under the Geneva Conventions and can be held indefinitely.
Also today, the New York Times reports that the Red Cross has restated its disapproval of the way America is behaving at Guantanamo. This is significant for a couple of reasons. First, the ICRC has enormous international prestige, as well as moral authority. Second, the Third Geneva Convention charges the ICRC with what amounts to the job of executor. If this body thinks our behavior at Gitmo is inconsistent with the Geneva Convention, they're probably the best ones to make that call.
Christophe Girod, the senior Red Cross official in Washington, said on Thursday in an interview at the United States Naval Base here, "One cannot keep these detainees in this pattern, this situation, indefinitely."
Mr. Girod spoke as he and a team of officials from the international organization were completing their latest inspection tour of the detention camp. Although he did not criticize any physical conditions at the camp, which houses 660 detainees, most of them captured in the Afghan conflict, he said that it was intolerable that the complex was used as "an investigation center, not a detention center."
He said the International Red Cross was making the unusual statements because of a lack of action.
United States officials have said they have begun moving to sort the detainees, choosing which to release and which to take before military tribunals on criminal charges.
Some officials, notably Defense Secretary Donald H. Rumsfeld, have said the detainees may be held until the effort against terrorism ends.
Mr. Girod said, "The open-endedness of the situation and its impact on the mental health of the population has become a major problem."
Analysis: My thoughts on this subject have not changed substantially since I wrote "Extend Geneva to Gitmo" in the Washington Times in early 2002. For principled and practical reasons, we ought to give the detainees at Gitmo the protections of the Third Geneva Convention, recognizing that those rules were written for a different paradigm of war and that we need to adjust our rules to fit the reality of today's war on terror. At the very least, we need to give these detainees Art. V tribunals to determine whether they are lawful or unlawful combatants -- and what legal process they are entitled to as a result of that decision.
In America's rush to condemn the men currently imprisoned at Guantanamo Bay, we have forgotten the reasons why we adopted the Geneva Convention in the first place.
The Geneva Convention was not intended to serve as a manual for courts martial - it was intended to make warfare more humane. Many of those reasons for its adoption now argue strongly for protecting captured Taliban and al Qaeda fighters under its provisions.
Three good reasons exist for extending the Geneva Convention to include the Taliban and al Qaeda fighters we have captured:
(1) The nature of warfare has changed a lot in 50 years; the Geneva Convention's definitions of warfare and soldiers are anachronistic. (2) The United States employs unconventional warfare and warriors itself - we ought to be concerned with their treatment if they're captured. (3) America needs to retain the moral high ground in this conflict because our global war on terrorism depends on international cooperation, which is largely based on the sympathy and approval we now enjoy among other countries.
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These three reasons combine to make a very strong case for a change in U.S. policy toward the men it now holds at Guantanamo Bay. The consequence of not recognizing these men as prisoners of war will be quite severe. American unconventional warriors will pay the price in future conflicts for this decision if they are captured. And most of all, this policy jeopardizes the international cooperation we need to win this conflict.
Though the Geneva Convention does not strictly apply to these prisoners, we should extend its reach in order to retain the moral high ground and further our overall goals in the war on terrorism.
One final note: I often use the phrase "the moral high ground" and its close cousin "moral authority". I should define these terms. I use "moral high ground" to mean a political or policy position where you are doing the right thing. Not the technically legal thing, or the political expedient thing, but the morally right thing. To the extent that morality is subjective, this is vague term. However, I still feel there are right and wrong things in this world, and that most Americans can tell the difference. "Moral authority" is the political capital that accrues from doing the right thing. It's a powerful tool, and one that we can use domestically and abroad to support our war on terrorism. When you don't do the right thing, you lose moral authority. Unfortunately, I think that's where we're at with Gitmo.
posted by Phillip at 9:51 AM
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