In retrospect, the original sin of the detainee policy was the notion of “unlawful combatant” status, an ill-defined concept utilized to skirt various aspects of the Geneva Conventions regarding POWs. This was a fatal contradiction, since the Bush administration was put in the ungainly position of explaining why the prisoners of our war on terrorism were not “Prisoners of War.” They came up with the designation “detainees,” an unsatisfactory label that sounds more like the drunk drivers that police collect at a sobriety checkpoint rather than hard core killers taken on the battlefield. Personally, I think it would have been much more sensible to define the terrorists as mercenaries per Article 47 of Geneva Additional Protocol 1 which states, inter alia, “a mercenary shall not have the right to be a combatant or a prisoner of war.” That way the US could have worked within the Geneva framework yet achieved the same ends, making it that much harder for critics to charge they were acting illegally.
Another problem is that POWs are returned to their home countries when hostilities end, but in the war on terrorism there is no clearly definable endpoint. So what to do with the detained terrorists in the long run? This question underlays the court challenges of the last several years seeking to institute some form of trial system or other due process. It is ironic that Obama’s suspension of military commissions was hailed as a victory for due process, since the advent of the commissions was cheered for exactly the same reason.