HAMDI, KRAUTHAMMER, AND THE LAW

by Charles Gittings

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 wrong.  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, which sounds reasonable on the surface
(since killing and destroying things are how wars are fought), but ignores the
fact that some acts are illegal and immoral even in war (rape for example), even
when such an act might conceivably further your war aims.

It is absolutely certain that we could eliminate 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 pretend it was right, legal, or even
sane.  Anyone who thinks that that having blind faith in your military leaders
is a good idea is either a liar or a fool. (And that goes double or triple for
politicians.)

There isn't any need for the current policy or Krauthammer's compromise: both
are illegal. He talks as if we're in a vacuum, yet 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 doesn't matter in the least. That was then and this is now -- and
those laws exist precisely becasue we've tried very hard to reduce or eliminate
the horrors of the past.

If we are not a nation of laws, or war is merely a justification for any
atrocity that will further ones own goals, then there is no basis for saying
that al Qaeda was wrong and we are right -- the two sides are simply playing out
a game for dominance, and the only rules are win at all costs and kill or be
killed. I would see that as a negation of humanity in favor of animal brutality.

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

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

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