June 26, 2005

June 26, 2005 | Commentary on Legal Issues

Don't reinvent the laws of war: Keep combatants isolated at Gitmo

Recently, Amnesty International declared that the American detention facility at Guantanamo Bay, Cuba, is the "gulag of our times." President Carter wants the entire facility closed, as does Sen. Joseph Biden, D-Del. "I think we should end up shutting it down, moving those prisoners," Biden declared. "Those that we have reason to keep, keep, and those we don't, let go."

That may sound reasonable, but things aren't that simple. There are some 540 prisoners at Guantanamo Bay. Most are al-Qaida fighters captured on the battlefields of Afghanistan in 2001 and 2002. They're not lawful combatants, so they're not entitled to the protection of international treaties. And since they're not U.S. citizens and weren't detained in the United States, they shouldn't be entitled to the protections offered by the Constitution.

Moving them would be difficult. If they're brought to the United States, they might gain access to our civilian legal system, which simply isn't set up to dispense justice to military combatants.

But if we move them back to the Middle East, we're sending them right back to where they may get help from other potential enemies. So it makes more sense to keep these alleged terrorists isolated in the Caribbean.

And it's important to remember how these detainees got to Guantanamo Bay. International law defines a lawful combatant as one who wears a uniform, carries his weapons openly, responds to the hierarchy of military authority and fights according to the laws of war (e.g., not targeting innocent civilians or hiding behind them in hospitals).

Most of the detainees at Guantanamo were captured while fighting for al-Qaida or the Taliban, neither of which abided by the laws of war. The detainees represented no government and thus no military hierarchy.

Some governments tried to change this definition in the 1970s to include Third World freedom fighters as legal combatants if they had a political goal -- something most of these detainees would almost certainly claim -- but the United States never signed the changed treaty, so it doesn't affect our policy. Thus, America can legally detain the al-Qaida fighters.

The Geneva Convention allows detention of combatants as long as the conflict continues, and this battle is hardly over. Moreover, we should hold them; it makes no sense to release people who remain dedicated to our destruction. And more than a dozen people we've released returned to the battlefield, eventually killing Afghans and Americans.

On the legal front, we are providing substantially more due process to today's detainees at Guantanamo Bay than Iraqis captured during the first Gulf War received. Back then, the initial decision on whether or not to detain someone was made by three American military officers in a tent.

Today's detainees are actually receiving more due process than is required under the laws of war -- in the end, that should assure that they are treated fairly and justly and that their guilt or innocence is proven.

Meanwhile, despite the frequent and often hysterical claims of prisoner abuse at Guantanamo Bay, there's little evidence to back up those claims. A recent military review into alleged abuse of the Muslim holy book found only five incidents, several of them accidental. Meanwhile, the report found 15 incidents of Muslim detainees abusing the Quran. And we're bending over backward to show respect for Islam.

The Pentagon spends $2.5 million each year to prepare special meals for Muslim prisoners, for example, and we provide prayer rugs and the aforementioned Qurans. If we move all the Guantanamo prisoners to other facilities, it will cost us even more to provide for their religious needs.

The war against terrorism will be long and quite unlike any war the United States has ever fought before. We've been forced to improvise, determining where and how to hold prisoners even as other battles were being fought elsewhere.

It makes sense to keep our detainees isolated at Guantanamo, even as the legal process that will eventually judge their conduct moves forward.

Paul Rosenzweig is a senior fellow in the Heritage Foundation Center for Legal and Judicial Studies and a former Justice Department lawyer.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

First appeared in The Press-Enterprise