In an earlier post, I asked that the US renounce the Geneva Conventions and other rules of warfare as they provided our troops with no protection while hampering our efforts and providing propaganda victories for our enemies. It appears the Supreme Court had the same thought, though the opposite reaction. And in its recent decision, the Supreme Court did remove Geneva protections for prisoners. Unfortunately, it did so by effectively granting them the rights of US citizens.

Well, to be precise the decision granted the right of habeas corpus to non-citizens detainees being held in overseas locations. However, as the right of habeas corpus has been traditionally limited to either US citizens or aliens inside the US, the extension fo habeas corpus can be taken to carry with it an extension of all the rights traditionally accorded to criminal defendants. And even if it does not include those right, if habeas corpus is extended, what argument could there be against extending those protections? If non-citizens held overseas are entitled to habeas corpus protection, then why should they not have the right to remain silent rot he right to an attorney?

If we look only at the right of habeas corpus, it creates quite a mess. Think of World War II. Now imagine that every German POW could file endless petitions of habeas corpus, asking that the allies show that they have adequate grounds to hold him. Imagine the number of people and money we would have expended just hearing these petitions.

Add to that the presumably included rights, and the mess is even worse. Will we now need to mirandize prisoners of war or else be precluded from interrogating them? Will we have to wait for an attorney before we can interrogate a POW? These sound like silly considerations, but if the combatants at Guantanamo are entitled to file a write of habeas corpus, then what argument is there against extending them to more traditional prisoners of war?

Of course, the alternative is to argue that the Supreme Court decision only applies to "non-uniformed combatants", and that the traiditonal Geneva Convention rules apply to the remaining prisoners of war. Which would be a strange deviation form past practice. in the past, "non-uniformed combatants", spies and partisans, were treated a shaving no protection and could be summarily executed. If the recent court ruling does not apply to POWs, then it  means that now spies and partisans have greater protection than POWs, making it better to throw away your uniform or strike your colors than it would be to fight on under the flag of your nation.

That seems a strange outcome, so I will assume the court intends for all prisoners, both in and out of uniform to share the full rights of a criminal defendant in the US. But what exactly does that mean?

Often we detail individuals in a combat zone without cause, at least without cause that would stand up to a US grand jury. In fact, many times we pick up people on mere suspicion in a combat zone and hold them until we are sure the area is secure. Does this new ruling mean that in a combat zone we will have to release them after 48 hours unless we can actually support a criminal charge against them? Does it mean we have to arraign, try and sentence enemy combatants rather than simply holding them until the end of hostilities?

I hate to suggest that a ruling was motivated more by political than legal considerations, but that appears to be the case here. Either that or the court really failed to think through the implications of what its ruling means for the conduct of warfare.


POSTSCRIPT

Well, I can think of two outcomes:

First, our allies will have a lot more prisoners, as we will likely allow them to handle all the prisoner handling duties for fear of having to release them.

Second, enemy fatalities will rise dramatically, as anyone you capture will likely be cut loose two days later, making killing them in combat the only certain way to avoid having to fight them again.

UPDATE

In a comment it was mentioned that the reason this decision will not have broader applicability as I worry is that there was no formal declaration of war, so these are not POWs.

First,t hat is absurd on the face of it, as we had POWs in Korea, Vietnam, Panama, and Granada yet those weren't formal declared wars either. So it seems pretty silly to say we need to have congress say "I" "De" "Clare" "War" as in the children's card game before we have POWs.

Second, if that is the case, then we are not going to have POWs for the foreseeable future, as we rarely have formal declarations of war any longer. So for the foreseeable future, we will have to treat prisoners as if they were stopped for a traffic violation.

Third, does this mean that if our troops are attacked by another nation, the men they capture, until Congress can declare war, are to be treated as prisoners?

This is just absurd. As I said in my response to the comment, this is a thumb in the eye to the Bush administration that will plague administrations for years to come. We have just adjudicated away the POW status.