Tag! You're Detained!

Mark Olson takes issue with my criticism of the Magna Carta Repeal Act of 2006. He claims I don't provide an alternative. The argument only works because he shoehorns me into one utterly implausible "alternative" of Mirandizing combatants on the battlefield. We can't do that, so clearly we should just assume the power to randomly detain people without show of cause. Somehow, in all the twists and turns of my hyperactive imagination, I have to think there is a middle ground. And wouldn't you know it, there is! Habeas review, pride of the West since 1215. So there's my alternative: post-detention habeas review.

Here's the full critique of Mark's post, and why some form of impartial review of detainee status is both a) plausible and b) required under Geneva.

When we detain someone (for example, capturing them on the battlefield), I presume there is some form of processing. Name, rank, and serial number if they are members of a legitimate army. Al-Qaeda is not a legitimate army, but I'm sure we try and extract something out of these people to identify them, and even if we can't even get a name, we can take a picture or jot down notes. If they challenge the detention, we can say "you were caught here, on this date, carrying arms, out of uniform." Case dismissed. Gosh, that was easy.

Of course, there are many cases where things aren't so cut and dry. Cases where the "capturing" was done not by coalition forces, but by local bounty hunters who might have found an actual terrorist, or who might have plucked Ahmed Schmoe off the street to try and get a reward (or more likely, had a grudge against ol' Ahmed and decided accusing him of terrorism would be an excellent way to exact revenge). Both cases have been documented. Since it is bad for innocent Ahmed Schmoe to be indefinitely detained and subjected to "harsh interrogation techniques" (what a rapper might term "slappin' fools just for livin'"), we need to find a way for Ahmed to at least argue that he's the wrong guy. Not providing said mechanism is not just unfortunate. It is profoundly and unambigiously evil, and I have no compunction against calling it such. To be blunt, I cannot think of a more fundamental guarantee of a free society than for innocent people to be able to assert said innocence to a impartial judicial body upon arrest. That's absolutely bedrock. So the spin I'd put on Mark's "provide an alternative" argument is that he has to do the same: He has to demonstrate some mechanism of letting the innocent assert their innocence and have a realistic shot of going free (or else just admit that he's ready to sacrifice rule of law outright). If he doesn't like my proposal to secure these rights, then suggest an alternative. But don't pretend like you've got a "better solution" just because you ignore a wholly different set of crucial moral values.

I see no particular reason why properly constituted federal courts can't make us both happy. What parade of horribles would occur if we just allowed them to hear the evidence against the accused? No Mirandizing, no brigade of lawyers, just good old fashioned "show me something." I'd even be okay with establishing a special Article III court (in the line of FISA) if we're worried about security clearances. But it's patently absurd to just throw up our hands and say "war sucks, so bring on arbitrary detention!"

And that's the crux of the matter. Yes, most detainee protections (but not all, see below) do not apply to illegal combatants. But before we can get that far, we have to determine that they are an illegal combatant first. Geneva is quite clear on this. Article 45:

"Should any doubt arise as to whether any [detained person] is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."

That might offend your tender sensibilities, Mark, but it offends mine a lot more to think that we can detain innocent people indefinitely without any proof they did anything wrong. One is somewhat aggravating, the other is tyrannical.

It's also worth noting that even illegal combatants have some protections under the laws of war. These can be divided into two parts: protections while in combat (or prior to detention, as in the surrender scenario) and once detained. The section Mark cites to refers to standards for determining POWs--i.e., post-detention--and is inapplicable to the former case, I'll get to it later. As to in combat, there are clearly certain lines we cannot cross even in combat with terrorists. If we dropped horrible burning acid on terrorists then slowly chopped off their extremities bit by bit, I'd call that a war crime and object strenuously. Such actions are just wrong, even when applied to the bad guys. The scenario Mark outlined, refusing to accept the mortar guys surrendering after they fired from a Mosque, would be a war crime. I have no qualms about saying that, and I am rather shocked that Mark would even consider otherwise. Article 41 specifically protects "persons" who are hors d'combat from attack, and Article 40 prohibits "giving no quarter" or even threatening it. There is no indication either is restricted only to those who would be eligible for POW status--and I don't see any reason to make that extension. Perfidy (fake surrendering) is also a war crime (Article 37), and can be prosecuted/treated as such. Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Admittedly, perfidy is a sucky tactic from our perspective, as most immoral deceptions are. Deception makes life difficult, no question about it. But Mark's response--and I could say this for his entire sad grappling with this issue--of completely punting our moral obligations as a result betrays a profound misunderstanding of what morality is. It would be nice if we lived in a perfect world, but morality still exists in a world with immoral people. To argue otherwise is to sanction barbarianism of the worst sort. "We're fighting evil-doers, dammit" is not a response, it's a capitulation to darkness.

Moving to the post-detention case. Most important to the discussion of illegal combatant rights post-detention are Articles 45 and 75 of the Geneva Conventions. Article 45, section 3, specifically says that combatants who are not POWs (i.e., illegal combatants) still have Article 75 protection:

"Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol."

Also in Article 45 is the provision that:

"If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated."

In general, Article 45 codifies the principle that the status determination has to occur prior to other prosecution. In addition, the same article provides that the prisoner be allowed to attend the proceedings here, with the provision for "exceptional" cases where state security makes this impossible. These cases, of course, should actually be "exceptional"--making it the rule by definition makes it no longer an exception.

Article 75 contains "fundamental guarantees" that are given to every detainee regardless of status (POW or not). What is included here?

Section 2 prohibits

"at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form or indecent assault; (c) the taking of hostages; (d) collective punishments; and (e) threats to commit any of the foregoing acts."

Incidentally, it's worth noting that the bill in question severely dilutes this definition, primarily by adding an "intent" requirement where Geneva has a categorical prohibition, thus circumventing the treaty.

Section 3 demands that any person detained be informed (in a language they understand) as to why they are detained.

Section 4 gives a laundry list of rights that such detainees have in any trial they are faced with. They include the right to be tried in front of an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure", innocence until proven guilty, right to confront witnesses and obtain witnesses in favor [with caveats for practicality], right to avoid self-incrimination, right to be present for proceedings, and generally "all necessary rights and means of defence."

***

Woof, that was long. Let's sum up:
1) Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously unfair and immoral.

2) Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.

3) Post-detention Habeas review to determine if there are grounds for detention--tried and true since 1215!--seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidently being caught up in the detention system, which is a recurring problem in the status quo.

4) Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.

5) Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.

Everyone clear?