Still no jihadists to our prisons, Bill

Colorado Media Matters can’t get the facts straight on the Guantanamo detainees. That must be why they go off on tangents from the key topic of discussion: namely, Governor Ritter’s proposal to bring the Guantanamo Bay detainees to Colorado’s SuperMax penitentiary in clear violation of the laws of war (Geneva Conventions III, Article 22, as referenced in my earlier post). Now we have Bill Menezes' 2/9 commentary on Colorado Media Matters (hereafter CMM) about my 2/8 conversation on Backbone Radio with John Andrews; on air I'm Matt Stark. This thing is so full of errors, misstatements, misrepresentations, and outright falsehoods that it’s hard to know where to begin; but I’ll attempt to tackle them in the order presented.

In the summary statement and again in the article’s second paragraph, CMM attempts to characterize the fact that "the vast majority of the people detained" at Guantánamo Bay, Cuba, do not "meet the qualifications to get the status and rights of a prisoner of war" as an “unsourced claim” or that I “did not specify my criteria” for this assertion. That characterization is false; I repeatedly referenced the Geneva Conventions as the source. Since the talk radio format does not lend itself to footnotes, here is the specific section and definition of qualifications necessary to gain the rights and status, under the Geneva Conventions, of a prisoner of war:

Article 4 A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Note the key provisions of “carrying arms openly” and “conducting operations in accordance with the laws and customs of war” – conditions which the detainees at Guantanamo failed to meet, leading to their characterization under international law as “unlawful combatants” and therefore NOT qualifying for the full status and rights of “prisoners of war” under the Geneva Conventions. The term “unlawful combatant”, although not spelled out in Article 4, has been in use for over a century in legal literature, military manuals, and case law:

An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.

The rights and status of “unlawful combatants” has been somewhat of a legal grey area; opinion (and international legal precedent) varies from summary execution as spies and saboteurs (ex parte Quirin or more recently the 1976 Luanda trials) to treatment as EPWs under the Geneva Conventions.

The Bush Administration attempted to navigate a fine line between the extremes, refusing to concede the detainees legal status as prisoners of war but directing that they be treated in accordance with the Geneva Conventions, beginning with the 13 November 2001 presidential order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." The order also specifies that the detainees are to be treated humanely, in accordance with the Geneva Conventions, while rejecting their status as prisoners of war.

Note that this policy (which pre-dates the Supreme Court's Hamdan decision by almost 5 years) is in accord with international law:

The Geneva Conventions apply in wars between two or more states. Article 5 of the GCIII states that the status of a detainee may be determined by a "competent tribunal." Until such time, he is to be treated as a prisoner of war.[2] After a "competent tribunal" has determined his status, the "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of a POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial."[3]

By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the enemy combatant status of 520 detainees [39]. These remaining detainees are subject to continued imprisonment (“for the duration of hostilities”) and, where violations of the laws and customs of war have been asserted, a “fair and regular trial” before military commissions.

CMM launches into a long tangent about the process by which detainees may (or may not) be tried for criminal acts by military commissions. They cite the 2006 Hamdan case which, as Menezes correctly points out (hey, even a stopped clock is right twice a day) overturned the administration’s process for trying detainees by military commissions, as it existed at the time. What he conveniently fails to inform the reader, however, is that the ruling was narrowly based on the issue of executive authority – “the commissions were unauthorized by federal statute” - and threw the matter to the legislative branch to establish military commissions by statute – which Congress did, in the Military Commissions Act of 2006.

The United States Military Commissions Act of 2006[1], also known as HR-6166, was an Act of Congress[2] signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld,[3] the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."[4]

Hamdan’s ruling that the Bush Administration military commissions violated Common Article 3 of the Geneva Conventions was also narrowly predicated on the process by which military commissions were established, holding that executive order was not sufficient to establish a “regularly constituted court”:

The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Article 3's protections exist even though no one is classified as a prisoner of war.

After Congress acted, the “technicalities” of the Hamdan decision “were resolved so that enemy combatants and unlawful enemy combatants may be tried under the Military Commissions Act of 2006.”

None of this – neither the Hamdan case, nor the Military Commissions Act, altered the basic underlying fact that the “unlawful combatants” detained at Gitmo are NOT, strictly speaking, qualified for the full status and rights of prisoners of war under the Geneva Conventions – as noted above.

Finally, after a long detour through tangential issues apparently designed to muddy the waters, CMM returns to the issue at hand. I give them credit for publishing the full text of what I said on the radio (allowing readers/listeners to draw their own conclusions), despite a few errors of transcription (that’s “in a block or en masse” not “a big block of Hamas”, for example).

Curiously enough, despite providing both the text and audio of the segment, Menezes STILL does not address the core issue at stake. Despite the theoretical existence of a limited exception to the general rule, as noted in my earlier post (here), the “internment of prisoners of war in [p.183] penitentiaries is in principle prohibited.” In the 60 years since adoption of the Geneva Conventions, it has (to my knowledge) NEVER occurred – certainly not in this country. Governor Ritter’s proposal, and Menezes defense of it, thus fly in the face of 6 decades of legal precedent and the norms of international law. How can Ritter (and Menezes) make the case that this is a good idea?

Summary of CMM’s claims vs. fact:

CLAIM: assertion that Gitmo detainees do not qualify as prisoners of war (POWs) under Geneva Conventions as “unsourced.”

FALSE. Geneva Conventions cited as source both on-air, and on posts.(Article 4 of GCIII)

CLAIM: “U.S. Supreme Court ruling in June 2006 found that the administration's military commissions created to try Guantánamo detainees violated the Geneva Conventions.”

Partially true, but misleading: Hamdan ruling narrowly stated that military commissions were unauthorized by statute; subsequently addressed by Congress with Military Commissions Act of 2006, codifying military commissions into U.S. law. Military commissions under the statute DO meet conditions prescribed by both U.S. and international law (incl. Geneva Conventions).

CLAIM: Hamdan 2006 “forced” the Bush Administration to provide humane treatment of captured combatants.

FALSE. Administration policy in existence since 2001 (Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism) specified humane treatment of detainees

CLAIM: The exception IS the rule. CMM states that since an exception to the “blanket prohibition” on interning prisoners in civilian penitentiaries exists, therefore all prisoners may be so treated, without regard to the particulars of their situation or “the interest of the prisoners themselves.”

FALSE. For the exception to apply, a case MUST be made that internment in a civilian penitentiary is in the interest of a specific prisoner in a particular case. The prohibition IS supposed to be a general one, as I pointed out in an earlier post:

“Internment of prisoners of war in [p.183] penitentiaries is in principle prohibited because of the painful psychological impressions which such places might create for prisoners of war.”

So to conclude: The fact remains that moving detainees from Guantanamo to a civilian penitentiary as a group (en masse; not “a block of Hamas”) is in violation of international law. Bill Ritter, scofflaw?