a question about Gitmo

A longtime friend and former roommate emailed me today and asked if we needed to close Gitmo.

He said:

"What's your opinion about Gitmo? I have a problem with giving those prisoners the same rights as someone who committed a crime on US
soil (although KSM could be tried for murder in NYC and VA). Why aren't they just deemed POW's? etc etc."

Off the top of my head I responded:

The Gitmo detainees fall into a very dark grey area. By their conduct (as combatants who did not conduct themselves in accordance with the laws of war, incl. Geneva Convention requirements such as recognizable uniforms) they do not qualify for POW status under the GC.

Traditionally, such persons are, when captured, shot as spies.

The U.S. military has, in recent decades (and since the invention of television journalism) gotten out the habit of shooting such folks upon capture.

They have no rights under the GC. By their conduct they have forfeited the GC protections afforded to civilians (i.e., non-combatants) but have not done so in a manner which would entitle them to the protections to which actual POWs are entitled. Sucks to be them.

Pres. Bush made the decision (and it's reasonable enough decision given the information warfare aspects of it) to treat Gitmo detainees POW level treatment, just as if they were entitled to POW status. Which they're not.

The only legal protections they have do not come from international law or treaty, but from our own laws and regulations.

We could convene military tribunals (authorized under the GC), try them as war criminals (which is what unlawful/illegal combatants are) and execute them. Or sentence them to death, and suspend the sentence at our convenience/whim. Such as to influence cooperation. Or execute 10 (or a hundred) of them whenever we learn that one of our own has been captured/tortured/murdered. Which is why you don't ever hear about how awful the detention of U.S. prisoners is at the Al Qaida equivalent of Gitmo. 'Cuz there ain't one.

Keeping them out of the U.S. was, as a goal, intended to avoid them coming under the criminal justice system, which decades of experience have shown to be inadequate to deal with terrorists of this sort (recall how many times the WTC were bombed), most Gitmo detainees not having been arrested and evidence processed with a civilian-style federal prosecution being in mind. Nor should we expect our combat troops to collect evidence CSI style.

I don't know what Pres. Obama intends to do with them; frankly it's unclear that he does either. We could certainly intern them at POW-style camps in the U.S. until the end of hostilities, but that makes them a target for their co-terrorists to ramp up operations to secure their release, target their guards (and their families) and other scary drawbacks. Putting them in civilian courtrooms only increases those hazards and does so exponentially.

Anyhow, those are just some rough thoughts on the matter. I carried a copy of the Army field manual on Laws of Land Warfare with me throughout my Iraq tour and consulted it frequently.