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United States says that the prisoners held in Cuba are "unlawful
combatants," not prisoners of war. Some critics treat this
as all word play. There is a war, they became prisoners, and that
makes them POWs, right? Wrong. Whatever one thinks of the way we
treat detainees (the news has reported that some have no complaints
while others repeatedly threaten to kill their guards), one cannot
argue that they are POWs under international or American law.
First, let's
turn to American constitutional law. In Ex Parte Quirin (1942),
the Supreme Court upheld the jurisdiction of a military commission
that convicted German saboteurs who landed in the United States
to commit acts of war. The Germans trained them in the use of explosives
and other sabotage techniques. They buried their German Marine Infantry
uniforms immediately upon landing. The Supreme Court said that the
soldiers thereby became "unlawful combatants . . . subject
to trial and punishment by military commission for acts which render
their belligerency unlawful."
Seven of the
eight soldiers were born in Germany while one was a United States
citizen. All eight, who had lived in the United States, returned
to Germany between 1933 and 1941. The United States did not treat
the saboteurs as POWs. Instead, it treated them as "unlawful
combatants," tried them by military tribunal, and executed
most of them.
The end of
World War II saw more military tribunals. There was, of course,
the multinational Nuremberg war-crimes tribunal, but there were
many more national war-crimes tribunals. Nuremberg handled about
200 cases but the United States Army Judge Advocate prosecuted another
1,600 war-crimes defendants. French and British tribunals had their
own military tribunals.
Now, let's
turn to international law. Both Afghanistan and the United States
ratified the third Geneva Convention of 1949, which sets out basic
protections for POWs, but they must be "lawful combatants"
for the treaty to apply.
The Geneva
Convention sets out four key preconditions. First, the soldiers
must be part of an organized command structure, so that leaders
can be held responsible. Second, the soldiers must wear fixed distinctive
emblems visible from afar — so that the other side can avoid
killing civilians without fearing attack from disguised fighters.
Third, the soldiers must carry arms openly. Fourth, the other side
must respect for the laws of war, for example, by not taking hostages.
Al Qaeda repeatedly
violated these preconditions before, after, and during the Sept.
11 attacks. The al Qaeda terrorists target civilians; they do not
wear uniforms; they do not carry arms openly; they take hostages
(such as the hostages they took when they hijacked the four airplanes
on Sept. 11). The Taliban leadership harbored, aided, and abetted
Osama bin Laden and al Qaeda in their violations of the laws of
war, and al Qaeda, in return, financed the Taliban. The Taliban
soldiers, or many of them, committed war crimes, such as hiding
weapons in mosques, and using their own people as human shields.
The Geneva
Protocol allows non-state belligerents to secure protected treatment
under the protocol. They just have to file a declaration with the
Swiss government accepting the obligations of the protocol. When
al Qaeda does that, then it will receive the benefits of POW status.
Some people
argue that we should treat war criminals as POWs so that terrorists
will be nicer to our citizens. Or will al Qaeda see this as more
weakness by a paper tiger? Does al Qaeda respect strength or weakness?
However you answer these questions, realize that if we treat the
Cuban prisoners as POWs we will be giving them something to which
they are not entitled under international or American law.
Of course,
whether or not we treat the detainees as POWs, they should have
trials and these trials should be fair. If the government cannot
prove that a defendant has violated the Geneva Convention or the
laws of war, he should be set free. In deciding these issues, there
are those who say that it is crucial that the United States has
not "declared" war. Not so.
The Constitution
gives to Congress the sole power to "declare" war. The
Founders specifically rejected a proposal that only Congress could
"make war." The last declared war that the U.S. fought
was WWII. The Korean War, the Vietnam War, etc., were never declared.
The Civil War, the bloodiest war in U.S. history, was never declared.
The framers
— and international law at the time — understood that
one does not need to "declare" war in order to fight in
a war of self-defense. Only aggressive war need be declared, and
the U.N. treaty outlaws that. Under the historical view of the war
power, there was no need to declare WW II (although we did so).
Nor was there any need to declare the Gulf War, because a state,
like Kuwait, always has the right of self-defense, and it can ask
other states for assistance. Under the U.N. Charter, we could assist
Kuwait because we had no intention of waging an aggressive war.
And under the U.N. Charter we also have the right to defend ourselves
when subjected to acts of war, like the attacks of September 11th.
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