I did some more research and there is conflict on the issue. Mercenaries are specifically covered under protocol 1 (article 47) of the Geneva Conventions, but the USA has only signed, not ratified, that treaty. It states, in part: "A mercenary shall not have the right to be a combatant or a prisoner of war." I'm not sure if this means they are exempt for the protected person status in GCIV or not.
Speaking of which, I've read all of GC 1-IV and it is rather confusing. It's no wonder there are arguments on both sides. With regard to wars between States, it's very clear, but what about a "war" with non-state actors? The GC doesn't address this at all. Protocol 1 does address it, but the US and many other countries have not ratified it.
Here is some interesting and conflicting reading:
Pres Reagan's letter and reasoning for rejecting Protocol 1:
The Naval Postgraduate School has a lot of interesting analysis, possibly by a distant cousin of Rick Moran:
And this is probably the best paragraph I've seen on the combatant civilian dichotomy. And its lessons can even be applied to a situation like Haditha:Comment Posted By Andy On 12.06.2006 @ 23:30
The ultimate reason to have legal rules defining combatant status is not simply to ensure that the right of combatants to employ vicarious violence is respected, but simultaneously to ensure, as far as possible, that such violence is not directed against civilians. The essence of combatant status is to be liable, at any time, to deliberate attack. The essence of civilian status is to be immune from deliberate attack. Any legal norm that expands the rights of civilians to function as combatants is certain to erode that basic immunity. In legal terms, what is good for the guerilla must inevitably be bad for the civil society within which he hides. To suppose otherwise is to imagine the legal equivalent of a perpetual motion machine, which seeks to draw a circle that cannot be closed, but must inevitably spiral in upon itself. A terrorist or other "illegal combatant" who trades upon his adversary's respect for the law is, in effect, using the law as a weapon. He cannot simultaneously use it as a shield, and he may well deprive those around him of its aegis as well.
You're right about the GCIV article 3 stipulations. It says nothing in there about getting lawyers and the right of appeal under any law. Furthermore, as I stated above, this is where the GC vagueness causes problems. What is "cruel treatment and torture?" What are "outrages upon personal dignity, in particular, humiliating and degrading treatment?" One man's torture is another man's sexual fetish. Some consider the fact that they are detained at all an "outrage upon personal dignity." Even the Red Cross seems positive on Gitmo:
Also, article 3's provisions don't apply to everyone. They don't apply to non-signatories to the GC and mercenaries. A case could me made that foreign fighters are mercenaries, but it would be difficult to prove that they received payment.
The biggest complaint is that we are holding these people "indefinitely." Well, that's the idea. Germans we captured in 1942 were held "indefinitely" as well. That's the whole idea. If WWII had gone on 20 years, those POW's would have been held 20 years. They get released when a peace is signed provided they aren't war criminals.
Sweetie,Comment Posted By Andy On 12.06.2006 @ 17:57
Thanks for the link. A couple of those name sound familiar. I'll have to check to see if my guy is one of them.
I can see your point with regard to Gitmo - I was making a legal argument. Certainly Gitmo is a legal netherland because of the unique nature of our lease there.
I think there are valid arguments on both sides. I know there are dangerous people there who were captured on the battlefield and ARE illegal combatants. I don't know how many detainees fit that category out of the total. This is where the transparency issue comes in. I do think there needs to be some valid method to determine the illegal combatants from innocents who may have been sold out. However, I don't agree with much of the left that say these people (the bona-fide illegal combatants) deserve the same rights and privileges as criminals in the US, or even as POW's. The Geneva Convention is, unfortunately, somewhat vague on some of these issues and leaves them open for interpretation. However it is pretty clear that captured AQ and Taliban are illegal combatants and they are not afforded the rights of POWâ€™s.
There is one case of a gitmo releasee going back and fighting that I personally know about. I know there are others. The one I'm sure of was a Taliban commander who was captured during the initial Afghan conflict in 2001-2002. He spent about a year at Gitmo and was released, then went back to Afghanistan. He was killed by Marines, if I remember correctly, in 2003, during an attempted ambush on a Marine patrol. The Marine unit, as part of their post-deployment summary, had his complete timeline along with a pictures from when he was originally captured, processed at Gitmo, released from gitmo, and finally, a picture of him dead back in Afghanistan. The brief I got this from was classified, but I will try to find out if his name and the details are unclassified somewhere. I suspect they are.
I don't have a number on how many times this has happened, but there are about a half dozen that I'm vaguely aware of in addition to the instance above that Iâ€™m positive on. There have also been people whoâ€™ve been released and havenâ€™t gone back and rejoined the fight â€“ I think itâ€™s important to point that out.
The intelligence we're getting from the Gitmo people is not tactically valuable, but some of the individuals there have intimate knowledge of others in AQ and their networks and how they operate. This applies to probably only a few of the most senior/hardened AQ and Taliban at Gitmo. Obviously, the longer they remain captive, the less valuable their intelligence value. However, as we learn new information about AQ we can go back to them and they are able to provide important details, especially with regard to people.
This isnâ€™t an easy problem. I donâ€™t see how you can just close Gitmo. Where do all these people go? If they go to the USA, the ACLU and others will demand they be given the same rights as any criminal under our Constitution. If they canâ€™t come to the US, then where to put them? If we send them back to their host countries, like Saudi Arabia, theyâ€™ll probably be executed and people will complain about that. It seems there arenâ€™t many good choices. I do think that a valid, open process to determine if they are illegal combatants needs to occur. Those that arenâ€™t should probably be released to their home countries â€“ for good or ill.Comment Posted By Andy On 12.06.2006 @ 14:19
US military facilities on foreign soil are not considered US terroritory anywhere. Only embassy compounds qualify. That isn't US "spin" but the internationaly recognized fact of the matter. There are a couple of reasons Gitmo was chosen over other bases. One, the lease is perpetual and can only be cancelled if both the Cubans and US agree, or the US abandons the base. Secondly, it's on the soil of an enemy of ours, so there is no SOFA or other legal niceties that we have in other countries. 3rd, for the same reason, we don't have to worry about angering allies, or jeopardizing an operational base as would happen if we had sent the detainees to the brig at Mannheim, Germany or kept them in Afghanistan / Iraq.
Many of the detainees are dangerous and should not be released. Several that we have released were later killed or recaptured in battle in Afghanistan. We don't know how many of the prisoners are these warlord turn-ins. The process down there isn't transparent, so we don't know if the circumstances of their detainment are legitimate or not. I think that determination must be made through some kind of transparent process.Comment Posted By Andy On 12.06.2006 @ 12:23
The difference is that Katrina victims had the choice to leave.
If you run a prison, especially one that houses the most dangerous people in the world, then controlling them 24/7 is the prison's responsibility. Not only is this incident another PR black eye, but we've lost three sources of intelligence. I'm sorry, but if you know prisoners are consistently attempting suicide, then there is simply no excuse for allowing this to happen.
Some idiot on NPR just now said we don't know for sure they were suicides. He actually suggested that in light of Haditha, it's possible they were killed by guards! What an outrageous thing to say!Comment Posted By Andy On 12.06.2006 @ 09:13
One thing I forgot to mention,
This a huge stain on the leadership and administration of GITMO. If these people are as dangerous as claimed, they should be under surveillance 24/7. The fact that detainees could hang and kill themselves (a process that takes a few minutes) without being discovered is inexcusable, especially considering that GITMO knew prisoners were consistently attempting suicide. I know that in traditional military prisons anyone suspected of being suicidal is put on a "suicide watch." They are monitored very closely to ensure they aren't able to kill themselves. It's frankly shocking that the GITMO staff allowed this to happen.Comment Posted By Andy On 12.06.2006 @ 08:21
Great post Rick,
I think this part of a larger problem - namely the lack of adequate domestic and international law to deal with the unique demands of a GWOT. This goes beyond what status to give detainees and affects many aspects the current war. The controversy surrounding "torture" or interrogation of captured terrorists is another example.
This even affects more arcane subjects like the kind of ammunition we can use. Although the US is not a signatory to some of the agreements limiting things like hollow-tip and exploding bullets, we have traditionally followed them anyway and limited our forces to full metal jacket ammunition. The exception to this was for fighting terrorists, which, before 9/11, wasn't seen as subject to the laws of war. But with the war on terror we still use FMJ ammo, though I know some people in the military who think that policy needs to change. Of course, better ammo must be weighed against the downsides of terrorists using similar ammo and the bad press such a change would bring.
Also an issue is our perception among enemy and ally alike. Gitmo, waffling on what 'torture' is and other cases where the Administration has pushed the legal envelope certainly have negative consequences to us. If this is a ultimately a war of values then some of the things we've done have cost us dearly in that regard.Comment Posted By Andy On 12.06.2006 @ 08:11
I'm not sure if you've read this Rick, but this is probably one of the best blog posts to explain the difference between tragic, but justified action, and murder:
http://www.madison.com/post/blogs/militarymatters/85715Comment Posted By Andy On 11.06.2006 @ 16:18
Interesting observation. Frankly though, I'm more interested in Iraqi polls, especially with regard to the Sunni population.Comment Posted By Andy On 11.06.2006 @ 01:36
PS: I think this horse is sufficiently beaten, so please consider this the probable end of my participation in this comment thread.Comment Posted By Andy On 11.06.2006 @ 15:18