HAMDI, KRAUTHAMMER, AND THE LAW

In a recent column (INVOKING THE HAMDI RIGHTS; Washington Post, 8/16/2002), Charles Krauthammer proposes a compromise regarding US courts reviewing the treatment of Yaser Hamdi and other prisoners of war by the Bush administration. In essence, his proposal is to deny due process to persons taken in battle, but accord due process to those those taken elsewhere. 

Mr. Krauthammer's proposal is a fraction more reasonable than the administration's current policy, but it's still mistaken.  His argument centers mostly on spin:

"Each side has its nightmare scenario. If the military is allowed to prevail, warn the civil libertarians, then any American can be seized in the middle of the night, locked up incommunicado and held indefinitely as an "enemy combatant." On the other hand, the administration believes it is absurd, indeed impossible, to fight a war with judges looking over your shoulder demanding evidence, interrogatories, paperwork and lawyers every time you seize and hold an enemy in combat.

"Who is right? Both are. Which is why neither should be allowed to prevail."

That's all very droll, but the first scenario is not merely a possibility, it's how things stand right now. On 11/13/2001 the administration claimed the right to imprison indefinitely (or even execute) any non-citizen suspected of complicity in 9/11 without due process, essentially at the discretion of the president. On 4/5/2002 the administration extended that policy to all US citizens when it transferred Hamdi to Norfolk.

The second scenario is just disingenuous rhetoric.  Guantanamo Bay and Norfolk are not battlefields, and battlefield procedures are valid only in actual combat.  This is no different than, say, an armed robbery.  The police may properly use deadly force while a crime is being committed, but they may not take a captured perpetrator back to the station and hang him on orders from the mayor.  The arguments apologists make to the contrary are just paranoid hysteria, war or no war.

As for red tape, the courts won't require much the military isn't already doing as a matter of standard procedure and intelligence gathering.  The US military is second to none when is comes to red tape-- the real issue is that the administration doesn't want any oversight at all. public to know how ineffective their actions have been and they don't want that's exactly why we have courts and the separation of powers doctrine in the first place-- to protect us from the abuses of executive fiat. 

Krauthammer goes on to say:

"Moreover, no democracy can conduct a war, which is what we are doing in Afghanistan and elsewhere, without granting a modicum of trust in the judgment and decency of its military commanders."

But trust has nothing to do with it. Ours is the most professional military ever. We expect them to do their duty, and we expect them to obey the law.  A soldier who commits a rape on a battlefield is still a rapist, and should be treated accordingly. The underlying premise of the apologists is that it's OK to break the law when you're fighting a war.

That seems reasonable on the surface, since killing and destroying things are how wars are fought, but it ignores the fact that some acts are illegal and immoral even in war, like rape, even when the act might conceivably further the basic war aims, like taking reprisals against enemy civilians.  It surely true that we could eliminate a lot more terrorists than we have so far if we simply exterminated the entire population of every other country on the planet, but not even George Bush would be willing to pretend it would be right or legal.

There isn't any need for the current policy or Krauthammer's compromise, and both are illegal. He speaks as if we are operating in a vacuum, even as the administration pretends to base their policy on historical precedent.  The truth is that the Geneva Conventions and the Uniform Code of Military justice specify clearly how prisoners are to be treated.  The administration is violating the law. The fact that there might have been a time when the acts in question were not violations of the law, or that prior administrations have been willing to violate the law in war time don't matter in the least. That was then and this is now, and we have these laws precisely becasue we have tried very hard to eliminate the hoorors of the past.

If we are not a nation of laws, or war is a justification for any atrocity that will further ones own aims, then there's no basis to say that al Qaeda was wroing and we are right: the two sides are simply playing out a game for dominance and the only rules are kill or be killed.

And note well: the Geneva Conventions are the LAW, and they are binding on the US. By their terms, the only legal procedures that may be applied to prisoners in an armed conflict are those that in effect at the commencement of hostilities, those procedures must remain in effect for the duration, and at the minimum, a prisoner must be accorded all the rights and due process enjoyed by our own forces.

These laws were intended precisely to regulate the actions of governments in precisely the circumstances of war, and they represent over one hundred years of diplomacy and legislation. . By the terms of the conventions, we are required both to observe them in ALL circumstances, and to give them force in our national laws.

The administration doesn't need to do anything to hold a POW for the duration except to declare them POWs according to law, and subject to the review of a competent court as specified in the Uniform Code of Military Justice. The problem isn't that they can't, it's that they don't want to. The current policy is simply illegal, unnecessary, and just plain stupid.

This isn't about the war or being nice to terrorists: it's about obeying the law and preserving our institutions.