Posted by
Andrews on Monday, April 20, 2009 3:12:50 PM
Reading
Ken Blackwell's column today, I was reminded of my many posts on
Boumedine last year. At the time many criticized my conclusions, arguing that I was exaggerating when I said that the logic of
Boumedine would require armies to fight in a bizarre manner, trying to gather evidence on those they captured, maybe even having to read them rights, as
Boumedine effectively turned any prisoners not formally declared prisoners of war into the equivalent of criminals, entitled to full rights of a criminal arrested in the US.
And, lo and behold, the logic has been picked up by courts, which have declared enemy combatants held outside the US in military custody
ARE entitled to writs of habeas corpus. These are not US citizens, nor are they held on US territory, they are essentially prisoners of war, but having been captured out of uniform while fighting for a group not a nation state, they cannot be designated as such, and so end up a "unlawful combatants."
I have argued before for eliminating the Geneva Conventions, but in this case, if we followed the Geneva Conventions, we have every right to summarily execute these individuals. FDR executed several spies using military tribunals, and the courts ruled that he was within his rights to do so. So, what has changed?
Nothing. Nothing that is except for our obsession with being seen as "civilized". Rather than worrying about winning a war, or the actual rights of individuals, the justices have decided that the most important issue is "world opinion". Since executing individuals captured in combat, or holding them without an immediate criminal hearing, might offend the UN, maybe draw rebuke from Syria or Algeria, we have been saddled with simply absurd requirements.
And, judging from past experience, worse is yet to come. Having
Boumedine and this new ruling to build upon I fully expect the courts to adopt an ever more expansive view of the rights of these unlawful combatants. It would hardly surprise me if, in a few years time, we were conferring on captured terrorists all the rights of US citizen arrested on suspicion of a crime inside the US.
At that point I expect the military will begging to shoot a lot more often and capture a lot more rarely. Just one more foreseeable consequence of such ruling, though one I doubt the judges even considered.
POSTSCRIPT
The following are my posts on both
Boumedine and the Geneva Conventions:
Goodbye Geneva
Why Nuremberg?
Be Careful What You Wish For
It Doesn't Matter What the Court Says
More on Boumedine
A Question On Boumedine
Questions Raised by Boumedine
Last Thought on the Topic
Authorization vs Declaration
Somehow The Media Missed This
One More Thought About FISA
It is impossible to separate the two topics, as many posts cover both, so I am simply providing one list.