Just read Bazelon and Lithwick’s article on “Good Soldiers”. I very much agree that given the ongoing discussion the soldiers are good. But I really question the basis for the discussion.

Why are we in the mode of even considering trials and tribunals? As I understand history, you get taken prisoner by an army at war and you are prisoner until you escape, the war ends or the army gets tired of feeding you. We took tens of thousands of POWs during WWII as did Germany. Were any of them given trials before being locked up in Kansas? I never heard of any tribunals then, why do we need them now?

I know that during the Civil War POWs were released after agreeing to not fight any more, but that I though was just for the convenience of the guards. I realize that some may argue that the War on Terror is different; it might go on for 100 years. To that I would counter, tough. The POW picked his fight and if getting caught means he will serve a life sentence, then he should have considered that consequence.

There are numerous other issues, is Guantanamo to isolating, did we use torture, are some POWs and some criminal detainees, etc. I just don’t think positions on those other topics are germane to the first question and they are confusing the discussion of “Why do we need to have tribunals for POWs?”

Tom

Why are we in the mode of even considering trials and tribunals?

Because most if not all of them were not captured in the heat of battle against American troops but were rounded up and turned over to the Americans by who-knows-who for who-knows-what evidence.

You can't have it both ways. If they're ordinary POWs, then they get all the rights provided under the Geneva Convention. If they're some kind of special dangerous people apprehended on the basis of some kind of evidence, then they need a trial to formally examine and judge the evidence.

Are you saying that there were no trials for German POWs that were accused of crimes?

How about Civil War POWs? Were they tried when accused of crimes?

Are you sure you know what you are talking about?

Hun, I'm sorry for the snarky comment, but over and over again over the last 7 years the very status of these men under the Geneva Conventions have been argued. The Bush Admin does NOT consider these people POWs; they consider them Unlawful Combatants and for the most part the manner of their capture clearly places them in that catagory. It's complicated and I could spend hours trying to explain the legal ins and outs of this situation. Unlawful combatants can be afforded a trial;

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The sheer brilliance of Bush Administration, evil but brilliant, was to create a legal situation that would take years and years to adjudicate. They purposely put these people into legal limbo knowing that they were on shaky, shaky ground doing some very unsavory and most likely illegal things - like torture. They will be out of office before there is any legal accounting for this fiasco.

As differentEllen points out, it has been asserted time and again that these individuals are not POWs, nor have they been treated as POWs. Remember that in our most recent wars - Korea, Vietnam, WWII, once a sovereign government was established in the nation we were once at war with, we released all the POWs within a year.

In the case of Afghanistan and Iraq, the Bush administration desperately wanted to avoid the political (and legal) consequences of being seen as an occupying power in both Iraq and Afghanistan. And they wanted to show that their pre-war planning of "no more than 6 mos" was accurate (also for political reasons). So what they did was to stand up weak, unstable puppet governments, and convey upon them full sovereignty long before those governments were able to assume that sovereignty.

So that has left the USA in a very untenable position. We are no longer "at war" in the region under any definition of that term. What we ARE doing is supporting an allied government against a domestic insurgency. That is NOT a war. And as such, we have no legal basis for holding POWs in such a circumstance.

Legally only the Iraqi and Afghani governments can hold the POWs. But of course that too would be politically untenable for this administration. So their unwillingness to think through the issues, and their rush to avoid the consequences of their mistakes has dug us in deeper and deeper into a legal Catch-22 wrt those we detained on Gitmo. And there is no good way out.

What I predict will happen is that they will continue to be held on what amounts to Writs of Attainder (accused and sentenced for a crime arbitrarily created by the Executive). Eventually this will come to yet another appeal to SCOTUS on habeas and Writs Of Attainder grounds. SCOTUS will rule against the then Democratic administration, which will be all too happy to transfer these prisoners back to the Afghani and Iraqi governments, who will promptly execute them summarily.

Convention, nor ordinary criminals. But you and DiffEll are incorrect that this category is something new and illicit. The category is "spies and saboteurs", who are presumed to work in the service of some nation or organized ideological cause, as opposed to their own pocketbooks; they employ "criminal" or extra-military methods nonetheless. Most countries have long treated such customers as subject to summary execution, or indefinite imprisonment without hearing. The nations and organizations which send them out in the first place are well aware of this, as they themselves are.

Shoot, even Jim "Mr. Clean" Phelps himself always had to hear that ominous caveat at the end of his tape-recorded mission instructions---"Of course, should you or any of your I.M. Force be caught or killed, the Secretary will disavow any knowledge of your actions". A KGB motto was "Death to Spies". The Mossad didn't piss around asking for legislation, treaty, or official Israeli or international sanction to despatch the Black Sptembrists, any more that those pigs themselves did before Munich.

To be a spy you need to have been active on domestic soil. That's not the case for the Gitmo Detainees. Most of them were captured outside the battlefield by the Pakistani secret police largely on hearsay accusations. Then they were illegally rendered to the US and then transported to Gitmo

That's not "spies and sabateurs". That's more akin to what Noriega did.