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March 14, 2009

"FRED" is the new "enemy combatant"

Our go-to guy for all things GTMO, the Talking Dog, reacts to yesterday's announcement that the prisoners at Guantanamo will no longer be designated "enemy combatants."

No more enemy combatants means no more holding people indefinitely without legal rights or trials based on scant evidence of tenuous connections to terrorism, right? Sadly, no.

TD explains:

But no... instead, as Scotusblog reports here, the main effect of the change(TM) is to change the nomenclature, and the hypothetical doctrinal bases ("derived from international law rather than from inherent Presidential power")... but ... the policy is... largely the same as that in the Bush Administration. And that policy is, quite literally, an "enemy combatant" (now to be called... something else) is anyone we say had any relation to anyone whatsoever that we say is bad. And the truly sad thing is... I'm not even making that up!

The old Bush administration legal theory said that the president had constitutional power to designate people as enemy combatants. That theory has been rejected.

Luckily for fans of indefinite detention, there's another theory whereby international law can designate people as some other thing, using more or less the same criteria as the president used to designate enemy combatants.

The Talking Dog estimates that 100% of the people who used to be enemy combatants will end up being called some other thing--with no substantive change in their legal rights. If they're looking for a snappy new name, TD suggests "Foreign Renditioned Enemy Detainee," or "FRED."

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Comments

I think people are over estimating the degree to which there's an easy, palpable, solution to this question. I mean, consider for a moment what a fairly broad broad understanding of American authority *progressives* are asserting here. What's basically being asserted is that the United States has the right to capture non-US citizens outside the soveriegn territory of the United States, then bring them back to the US proper and put them on trial in US domestic courts for crimes our government legislated. It is, essentially, declaring that the legislative and judicial jurisdiction of the United States is global. From an IR standpoint, I don't think that's going to go over very well with the rest of the world, particularly the other great powers. But, at the same time, you don't want to create situations in which states can legally become terrorist havens. There's a lot of gray area, and a lot of points of ambiguity inherent in dealing with "terrorists."

I think if you were looking for the best possible fix, some sort of global summit to set guidelines for dealing with terrorists, and maybe turning over jurisdiction to the ICC or some other international body, would probably be the most comprehensive way to deal with the issues, but that's probably a political non-starter here.

The Geneva Conventions should be amended to say that states can't hold each others citizens for more than a year without charging them with a crime and trying them in a civilian court.

If someone is simply a POW, then release him within a year.

If he's a criminal, then start a trial in civilian court within a year.

I think it's a little naive to expect states to agree on a uniform standard of criminality. And that doesn't address how you handle non-participant states either.

The Geneva Conventions aren't that flawed. Holding actual combatants for the duration of the conflict, as POWs, in professionally run, humane POW camps, is not that flawed an idea. A professionally run POW camp has a fair mechanism for determining whether captives were civilians, who were captured in error. The procedures the US military is used to follow are laid out in Army Regulation 190-8. During the 1991 Gulf War the US military convened close to 1300 AR-190-8 tribunals, which determined close to 900 Iraqi captives were actually innocent civilians -- who were promptly released. The other 400 had their POW status confirmed. Those 1991 tribunals didn't strip a single combatant of POW status.

This is something the Geneva Conventions require before laying war crimes charges. And this is something the Bush administration failed to do.

The Bush administration not only failed to comply with the requirements of the Geneva Conventions by failing to convene "competent tribunals", they completely failed to take any steps to refute or confirm the captives' accounts of themselves.

The failure to do so was not just a human rights issue, for those who care about such things. But, for those who don't -- the failure to determine who the captives were, or to provide any meaningful sanity checking to the confessions wrung from the captives through coercive interrogation techniques has made the public much less safe.

Personally, I have no problem with the USA continuing to hold the Guantanamo captives who were actual combatants -- so long as they were held as POWs in a humanely run camp. But the innocent men who are still held there, should be compensated, and released as soon as possible. Further, I think public safety requires re-opening the files of the 500 former captives who have been repatriated. And if a fair review establishes they were innocent, they should be officially cleared and compensated. This is important for public safety in order to half the dangerous waste of resources triggered the false confessions and false denunciations that implicated them.

It's interesting to me, in a way, how far away from the original question this debate has gotten. IIRC, the issue, at the beginning, wasn't whether we were going to house detainees at Guantanamo or not (or anywhere else for that matter), but rather whether the Geneva Conventions applied to those detainees. It didn't seem that odd to be detaining people by any stretch.

I tend to agree that the simplest way to handle the detainees would be an affirmation that Geneva would be honored, including the provisions enshrining the right to challenge your detention. That would bring the United States in line with international standards, without asserting the rather broad claim to power that trying these people in US courts would represent. Ideally the system could involve other countries as well, which could further assuage any global doubts about US power vis-a-vis detainees.

Re "The Geneva Conventions aren't that flawed. Holding actual combatants for the duration of the conflict, as POWs, in professionally run, humane POW camps, is not that flawed an idea."


The Vietnam War went from 1964 to 1975.

The war in Afghanistan may last that long.

Holding a POW* for 11 years or even 5 years, isn't humane, even if the conditions are humane except for the length of the imprisonment.


* - I'm referring prisoners who didn't commit a crime being held by a military.

I don't buy into the idea that all POWs must always be held until the end of the conflict. In wars gone by, prisoner exchanges were commonplace. If we were okay with potentially returning prisoners to the fight in those days, I don't see why it should be anathema now.

Also, the "War on Terrorism" isn't a real war, it's rhetorical slight of hand that conveniently allows for indefinite detention. Terrorism is never going to end. It's a tactic, not an adversary.

"Holding a POW* for 11 years or even 5 years, isn't humane, even if the conditions are humane except for the length of the imprisonment."

The Geneva Convention includes guarantees of habeus rights to allow prisoners to challenge their detentions. In other words, they have the right to prove wrongful imprisonment.

"Also, the "War on Terrorism" isn't a real war, it's rhetorical slight of hand that conveniently allows for indefinite detention. Terrorism is never going to end. It's a tactic, not an adversary"

Which is why you need a new agreed upon structure under which to handle the terrorists. But asserting that the Congress can pass a law here, the US military or CIA or whomever can detain someone abroad, and bring them back to the United States to be put on trial for actions that occured outside the sovereign territory of the United States is certainly not a good answer to that problem, from an international relations standpoint.

RE "The Geneva Convention includes guarantees of habeus rights to allow prisoners to challenge their detentions. In other words, they have the right to prove wrongful imprisonment."

But if the person was a soldier fighting for the other side, then it's not illegal imprisonment to hold him for until the end of the conflict under current law. Meanwhile, the POW may have a wife and kids back home, etc., and the years go by.

RE "the US military or CIA or whomever can detain someone abroad, and bring them back to the United States to be put on trial for actions that occured outside the sovereign territory of the United States is certainly not a good answer to that problem..."

If the CIA has evidence someone in the UK is plotting to blow up a building in the US, then they should ask the British authorities to arrest and extradite that person, and he should be tried in a civilian court in the US.

The CIA shouldn't do "extraordinary rendition" by grabbing him themselves.

"But if the person was a soldier fighting for the other side, then it's not illegal imprisonment to hold him for until the end of the conflict under current law. Meanwhile, the POW may have a wife and kids back home, etc., and the years go by."

Non state-on-state conflict is rather messy, which does suck. It's also why a satisfactory response to this is likely going to require a totally new framework. We just don't have a good answer to it at present. But, broadly speaking, we're not just going to turn actual terrorists loose.

"If the CIA has evidence someone in the UK is plotting to blow up a building in the US, then they should ask the British authorities to arrest and extradite that person, and he should be tried in a civilian court in the US."

That's well and good to the extent that they cooperate, but what happens when they refuse? Hell, what happens when it's a high ranking al Qaeda official and the country they're in refuses? Or, alternatively, what happens when it's a country like Somalia or Pakistan where there isn't necessarily a "legitimate" government running the entire country? We certainly aren't going to accept these sorts of safe havens.

RE "what happens when they refuse?"

Then the CIA should keep watch on him and his associates, and gather more evidence. If there is compelling evidence presented to British authorities that a man in the UK is plotting a terrorist attack against the US, then the British will arrest him.

"Then the CIA should keep watch on him and his associates, and gather more evidence. If there is compelling evidence presented to British authorities that a man in the UK is plotting a terrorist attack against the US, then the British will arrest him."

Which is all great, but what happens when the person is in a country like Taliban Afghanistan that simply refuses to cooperate? Or if they're in an area like Waziristan or Somalia where the relevant central government has no real control?

I think this is all well intentioned, I just think it's naive in assuming we're going to find some magic system that encompasses everything in such a way as to also keep the rest of the world happy. As it stands, that seems unlikely, and we're either going to have to craft a new set of international agreements to deal specifically with this question, or we're going to have to hope the US authorities are operating in good faith. Those are the only two realistic options.

Eric: the wife and kids arguments suggests that countries shouldn't try to kill enemy soldiers in war, because they might have families.

As a two tour veteran I am insulted that you use "fred" as the new term for "enemy Combatant". "W" would be far more appropriate and in these financially strained times use less ink.

Brien Jackson -

Yes, different rules might be needed for places like Somalia than for the UK.

Alon Levy -

Ideally, there would be no war, and no soldiers would be killing each other.

But while wars continue to exist, a treaty between nations to return POWs faster would be an improvement.

Duly noted, Fred; and thank you for your service.

Maybe Majikthise and the Talking Dog and our bloggy allies should hold a contest to supply an alternative name for "enemy combatant." I'm thinking something along the lines of "FraWd", perhaps.

Eric: I'm not talking about the treaty (as if anyone would honor it); I'm talking about your specific argument that it's inhuman to hold POWs for more than a year.

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