A Good Start on Fixing Gitmo

The Pentagon has just decided that it will give detainees everywhere, including those held at Guantanamo Bay, Cuba, protections under the Geneva Conventions, the Financial Times and New York Times reported this morning. This is huge news. It means that the Administration has decided that it no longer can defend the legal position it announced in 2002 that suspected terrorists can be treated differently from prisoners of war. And it means that the Supreme Court's big terror law ruling last month already has shaped government policy for the better.

In some ways, the decision, confirmed by White House officials this morning, simply returns U.S. policy about the law of war back to the where it was before the terror attacks of 9/11. But it does so at a time when the world community has been putting significant political pressure on the U.S. to re-commit itself to the letter and spirit of the Geneva Conventions in light of White House efforts to recast the war on terror as a "new paradigm" of warfare not covered by existing international treaties. The move also presages the possibility of a compromise by the executive and legislative branches that would authorize military commissions for Gitmo detainees that comport with the Uniform Code of Military Justice. And of course that would be huge news as well.

By taking the initiative and fixing a problem that had become a growing concern-- even before five Justices formally and officially recognized it as such-- the Administration dramatically improves both its political position abroad and its legal position at home. It helps ensure that our soldiers all over the world will receive the protections of the Conventions. Moreover, it creates momentum this week for the hearings that are scheduled to take place in Congress on the issue of how precisely the Gitmo detainees ought to have their so-called "day in court." Although this move came late, years late for many, it is welcome news that it came at all.

By Andrew Cohen |  July 11, 2006; 9:14 AM ET
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I am curious about two points.
1) Why are un-uniformed combatants fighting for an army that is not aligned with any nation that has signed the Geneva Conventions - protected under those Conventions?
2) Just exactly when, in the last 40 years, have any of our captured soliders, anywhere in the world, received the protection of the Geneva Conventions?

Posted by: JD | July 11, 2006 10:57 AM

Mr. Cohen, in your editorial above you state, "It helps ensure that our soldiers all over the world will receive the protections of the Conventions."

I have one question. Would those be the same "protections of the Conventions" that the video released yesterday by Al Qaida in Iraq showed our enemies affording to PFC Kristian Menchaca and PFC Thomas Tucker?

Dale Cox
Gunnery Sergeant, U.S. Marine Corps

Posted by: Dale Cox | July 11, 2006 11:03 AM

The reply to question number 1 is simple and shows a lack of acquaintance with the Third Convention:

article of 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:

...

"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, fulfil 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.

and

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."

The USA is bound to respect the Third Convention even if its enemy is not a signatory under Article 2.

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof." NOTE that in relation means actions between the powers. POWs are always protected, regardless of whether their country respects (accepts and applies) the Convention.

Question number 2 is disingenuous. Rarely have US soldiers been captured and if and when they have been captured, then they have been captured by regimes that did not respect the Geneva conventions. The USA has always claimed to respect the conventions (note the plural). The USA has no right to ignore the conventions based on a counter-claim of lack of respect (and has not ever raised that argument because it is obviously against the Convention - see article 4).

Posted by: Dustek | July 11, 2006 11:10 AM

I agree with the comments above... Why should America try to be better than our enemy? Sinking down to the level of the enemy is the American way! It is good to see that members of the military feel that way.

Posted by: | July 11, 2006 11:12 AM

Regarding the protection that the Convention will grant, perhaps Al-Qaida and other groups and countries will ignore the Convention (as North Vietnam & North Korea did) but even Nazi Germany respected the Conventions knowing that its soldiers would enjoy reciprocity on the side of the Western Allies. Note that on the Eastern Front neither side respected the Third Convention (not signed nor respected by the Soviet Union), leading to most POWs on that front not finding their way home after the war.

Every time that an US soldier finds himself tortured or abused in the future, his tormentors will be shouting Al-Gabrib and Guantanomo at him and finding justifiction for their actions in the reported and alleged wrongs at those camps.

Posted by: Dusteker | July 11, 2006 11:15 AM

"this move came late"
Let us not overlook the timeframe. Some of these people have been facing a terrible situation for over four years in Gitmo. That is a very long time - and don't forget that most of them are completely innocent of terrorist crimes.

Posted by: Too Late | July 11, 2006 11:17 AM

1. I'm not an expert or lawyer, but I think this is a good move by us. We have thousands of people on our side supporting and fighting for us that are not wearing "uniforms", like our CIA agents, some soldiers (like our first troops in Afganistan who wore traditional Afgan cloths and grew their beards long) our outsourced contractors providing food, transport, and cleaning services, etc. I'm sure we would prefer that these people not "wearing the uniform" should recieve Geneva Convention protections against torture, etc. if captured

2. Our soldiers and pilots have been captured many times and some have received decent care in the past. When some of our troops were captured during the first few days of Gulf War II, Rumsfeld was quoting the Geneva Convention at every press conference. In fact, when we rescued these captured soldiers, if I remember correctly, they were captured in a Hospital (getting medical care). Also, before that, our pilots captured by China a few years ago were NOT tortured for example before they were returned.

Finally, in Gulf War I, many Iraqi's surrendered to our advancing troops without us having to fire a shot, because they felt that we would treat them humanely if captured.

Posted by: finn | July 11, 2006 11:19 AM

Not surprising ... another dumb opinion piece.

"... Fixing Gitmo" << Really? Who says there is anything wrong with Gitmo?
"This is huge news." << Really? Says whom?
"...has shaped government policy for the better." << Really? Says whom?
"...world community has been putting significant political pressure on the U.S" << Really? Since when?

I could go on and on but why waste more of my time debunking stupidity.

Posted by: Darryl Harris | July 11, 2006 11:23 AM

I can't comment on whether our soldiers will be treated in a more civilized manner if we hold ourselves to more civilized standards.

As to why the Geneva Conventions apply, that's a good question. Based on my reading of the Supreme Court ruling, my understanding is "because Congress said so"...

In the UCMJ the US Congress granted the Executive the powers to have military tribunals when people have violated the "law of war". Of course there is no specific law of that name. The closest thing to a law of war is the Geneva Conventions, which the Executive and Legislative branches of the US government approved. And while part of the Geneva Conventions (Articles 1 and 2) cover uniformed combatants, Article 3 covers a set of minimal rights afforded to un-uniformed combatants.

So the line of argument is "the Congress granted the Executive the right to have military tribunals consistent with the 'law of war', best understood to include the Geneva Conventions, which include some protections for enemy combatants."

There are counter arguments for each of these points, but if you are wondering why anyone would think the GC applies here, that's why.

Posted by: Jeff | July 11, 2006 11:24 AM

I have read the excerpts from the Geneva Convention printed above, and very clearly they DO NOT APPLY to international terrorists!

The writer of the article simply does not seem to GET IT! A treaty is a contract between countries, and is designed to provide benefits with its obligations.

As a matter of justice and honor, it is reasonable for the US and its citizens to expect a form of judicial process to be provided in order to protect the small number of innocent people that may end up as 'detainees'. But this process should be purely military in design and administration.

The Geneva Convention clearly DOES NOT APPLY to the war against terrorists. And it is a war.

Posted by: Ken | July 11, 2006 11:30 AM

"..perhaps Al-Qaida and other groups and countries will ignore the Convention"

And I think all the President was saying was, in the war on terror, the Convention is being ignored, and thus does not apply.

Now, I am not a supporter of the war, nor of the President....but to think that treating terrorists humanely will somehow assuage the beheadings and poor treatment of Americans is lunacy. To treat these terrorists with kid gloves as they pummel us bare-knuckeled is disrespectful to those who have suffered at the hands of the terrorists.

Posted by: Jay | July 11, 2006 11:36 AM

I am responding to the comments regarding why we should respect the Geneva Conventions when others do not. If the United States starts to justify it treatment of others by actions of the Terrorist then we are no better than them. It would be like saying that we should be able to act like criminals because they inflict crimes against us. The United States justifies its actions overseas by claiming that we represent freedom and justice. We need to maintain the highest standards when dealing with terrorist and prove that a free society can function despite pressures from such groups.

Mike

Posted by: Mike Rutherford | July 11, 2006 11:37 AM

It's good that the Pentagon has finally acquiesced to following the Geneva Conventions. Too bad the secret CIA prisons don't seem to be included in the administration's change of heart. This according to the Financial Times story referenced by Mr. Cohen.

It's a further disappointment that neither Mr. Cohen nor the New York Times story he cites mention this further example of executive branch sleight of hand. Must we always turn to the foreign or alternative press for journalism that goes beyond the press release?

Posted by: Michael Hopping | July 11, 2006 11:38 AM

Now we just need a resolution that will stop them from prying into our phonecalls, emails and chat conversations and we'll almost have a legit government.

Posted by: Mike Langford | July 11, 2006 11:39 AM

Nice to know that after 5 years of torture and turning these prisioners into raving psycho's we will now treat them humanely.

Posted by: RC | July 11, 2006 11:43 AM

How does Al-Qaeda meet either of these, Dustek?

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

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

Posted by: Craig | July 11, 2006 11:43 AM

there seems to be a lot of ignorant people posting, when you shackle and torture detainees, then your own will end up with the same

thats what happened, america bombed and killed indiscriminately so they got back what they did in return

no gitmo, al gharaib, then no maries/army guys being tortured, simple as that

Posted by: hafizur rahman | July 11, 2006 11:51 AM

Let's be real. Terrorists have not, and will not respect the Geneva convention, nor are they protected by it.
Is "Gitmo" what the cowards of 9-11 were screaming at the occupants of the Pentagon, WTC, or passengers?
The argument that Gitmo or Al-Gabrib has provided justification for the torture and murder of our warfighters and civilians worldwide is beyond ridiculous. Further, any belief that the decision to provide the terrorists held at Gitmo the protections of the Geneva convention will ensure good treatment of our warfighters is simply naïve.
If you really want to understand the brutality of the treatment of our warfighters and civlians by terrorists take a few minutes to view a video of a beheading, then comment about terrorist's rights.

Posted by: 1SG E | July 11, 2006 11:56 AM

Interesting that those who object to treating prisoners with dignity claim they are not covered by the Geneva Convention and therefore we can do what we like.

Perhaps the British should have done the same thing in the Revolutionary War when few US soldiers wore uniforms or had any identification.

"If we do not learn from history, we are doomed to repeat it"

Posted by: Eric | July 11, 2006 12:02 PM

"provided they carry arms openly and respect the laws and customs of war."

Well, that lets all the Muslims out of it. Are we fighting anyone else who might be within that framework?

There's more to this than meets the eye. Terrorists do NOT meet the requirements of the Conventions, as simply stated above. Particularly they do not and never have respected any of the laws and customs of war. I suspect that the only reason for this move is that the least offensive of the Gitmo prisoners will be released soon and the rest tried, found guilty and given interminable prison terms. Future detainees will be emplaced in Phlogistan or Bumscrewlia or some such forgotten corner beyond the scrutiny of the Far Left.
Not just the United States, but the Free World is beset by the Islamic Madmen, and they don't follow Western rules or even understand them. We do need to revise the rules to adequately cope with this. This doesn't mean we have to lower our standards or treat prisoners cruelly. It means we need to set new rules for those who act outside "the laws and customs of war".

Posted by: DLB | July 11, 2006 12:03 PM

If those enemy combatants being held are guilty then no level of protection under the Geneva Convention should change their fate nor will it. Americans should not fear justice only the injustice brought on by fear. If we are truly building a democractic governement in both Iraq and Afghanistan we must hold justice as one of those truths which is self evident and not look for loop holes to do what we want. Freedom isn't easy and it isn't always clean but we have to try. We owe that much to every brave Amercian who has fallen in support of these principals.

If we don't who will?

Posted by: Henry | July 11, 2006 12:03 PM

In theory, the Geneva Conventions are a noble and humanistic way to conduct war. That is if both sides adhere to the rules and regulations set forth in the Geneva Conventions. You must realize however that this is a WAR and our enemies do not adhere to any rule and/or regulation.
You claim that this is a "Good Start" while I see it as just one more way the safety of our soldiers are put into greater amounts of danger.
Does anyone in the Legislative and/or Executive branches of our great country remember the lessons learned from W.W.I, W.W.II, Korea, Vietnam, Somalia, Afghanistan or even Iraq? Only the West pays attention to the rules & regulations set forth by the Geneva Conventions. It has been proven each and EVERY time that the United States of America fights tyranny and oppression anywhere in the world, whether it's Hitler or Bin Laden captured Allies can expect to be tortured. Whether it's mental and/or physical torture they can all but be assured that they will eventually be killed. Only when we make it so incredibly painful for the "Terrorists" to fight against having a democracy will they stop the absolute meaningless bloodshed that they impose on their own citizens not to mention the citizens of all of the democracies around the globe.
People must come to understand that this is not a fight with a small country, this is a fight for our way of existence. Please remember, that to the terrorists this is supposedly a "HOLY WAR". They are fighting to ERADICATE our existence!
There is a very good reason why the phrase "Fight Fire with Fire" is so appropriate right now... SAVAGERY is the only thing most of the "Enemy Combatants" have ever been taught to respect. Do you really want America to become more like Israel in that you never know if an 11 year old child is carrying a backpack full of books or EXPLOSIVES?

Dan Dickerson
American

Posted by: Dan Dickerson | July 11, 2006 12:04 PM

"Just exactly when, in the last 40 years, have any of our captured soliders, anywhere in the world, received the protection of the Geneva Conventions?"

A far more interesting question is exactly how many Foreign nationals have been tried since the immediate post WWII period for committing war crimes against American soldiers and sailors.

Answer: Absolutely None!

Despite numerous war crimes committed against Americans in Korea, Vietnam and both Gulf Wars, not a single person has ever been tried for them. The US has a better record of enforcing the Geneva Convention against violations by its own troops then it has in enforcing the Geneva Convention against Foreign Nationals who have violated it by their treatment of American prisoners.

"but even Nazi Germany respected the Conventions knowing that its soldiers would enjoy reciprocity on the side of the Western Allies."

In fact there were numerous incidents of the Germans violating the 1929 Geneva Conventions against allied prisoners, such as the infamous "Commando Order", Malmedy, the murder of Allied POWS at Maunthausen Concentration Camp on the Steps of Death, the lynchings of captured allied airmen in Germany etc. etc. More then once during the war the Allies had to threaten reprisals against German POWS in order to get the Germans to stop mistreatment of Allied POWS. The threat of reprisal against German POWs was in fact the main reason why the Germans didn't engage in more violations.

For the person who was posting portions of the 1949 conventions, most of the terrorists in custody will fail factually to meet any of the standards posted here, making them "unlawful combatants" under the Geneva convention(that term by the way, comes directly from the convention itself, it was not something that the Bush Administration pulled out of nowhere)

Posted by: L330 | July 11, 2006 01:21 PM

Memo to Dustek: Welcome back from the moon and points beyond. There was no Bitmo or otherwise before 9ll. You are a moron if you believe that they will become a "kinder and gentler" enemy when we close Gitmo. Get yourself a reality check--visit the beheadings.

Posted by: Osborne | July 11, 2006 01:24 PM

I don't believe anyone in this forum has announced support for torture of terrorists. Simply, terrorists do not fall under the Geneva Conventions. As such, are not entitled to the benefits of the same. I don't support torture, nor do I support blindfolding a diplomat, reporter, or a warfighter being bound, blindfolded, and beheaded.
9-11 preceded Gitmo, Gabrib, and the other "excuses" being used here to justify the murders by terrorists. What we owe to our fallen warfighters is to stay the course and keep taking the fight to the terrorists and their supporters.

Posted by: 1SG E | July 11, 2006 02:23 PM

Does this new policy cover detainees held or "rendered" by the Central Intelligence Agency, which is not part of the Pentagon?

Posted by: Pablo | July 11, 2006 05:37 PM

Quote "Fight fire with fire...SAVAGERY is the only thing most of the "Enemy Combatants" have ever been taught to respect." unquote.
And there you have it folks, the recipe that will guarantee continuing hatred and bloodshed until your great-grandchildren are old and gray.
Terrorism simply cannot be defeated by bombs and bullets. It is only nurtured and nourished by such primitive responses.

Posted by: Jena | July 12, 2006 10:48 PM

Well said, Jena. The Neanderthal response is never an answer. I am old enough to remember when the Russians and the Chinese were the evil monsters in the dark recesses of the cave and we all quaked in fear and trembling. So I have confidence that in due course all this current hysteria will go the same way. One day we will be adult enough as a nation to deal with differences and not continually challenge them.

Posted by: SarahK | July 13, 2006 02:48 AM

grass that needs mowing...

in another thread on this blog,

common sense sayz:

"
As for Gitmo, these are captured enemy combatants with no uniforms, no distinguishable insignia's, and who follow no established rules of warfare.
"

oh, is that what they are

is that what they are or are they civilians that can place bush and company at the scence of a few _CRIMES_


since you're complicit, Mr. Common, you're also guilty of treason

...

.

.

.
using the United States Military for personal profit, is as a point of fact against the law....and the president and complicit congress need to pay the price.

thanks so much!

.

Posted by: so nice to see some | July 16, 2006 10:41 PM

_THIS_ IS_THE_REASON_


the current administration and complicit congress doesn't want public trials for GITMO people...

it's called "HOUSE OF CARDS,"

"
3. I demand to know how many prisoners are being held at GITMO and other places that are either BRIDAS EMPLOYEES or are persons that know all about Bridas Corporation and what your administration did to get control of that Trans-Afghanistan pipeline.
"

that is from an email posted to a newsgroup that I was reading....


perhaps they're being imprisoned for being able to talk about using the MILITARY for domestic purposes....


are you paying for the president to get rich on your _dime_

it shure looks thet wayh...


and Tom Delay, htere's a pposter child for geerd eh?

.

Posted by: _THIS_ IS_THE_REASON_ | July 16, 2006 10:43 PM

You really should verify point #3


I received this in October of 2004, and I wondered at the validity of it...it's about Afghanistan and GITMO

Begin INCLUSION:
From Karl W. B. SchwarzPresident, Chief Executive Officer
Patmos Nanotechnologies, LLC
10-13-2004

By Email, By Facsimile to White House

Mr. President,

I am a Conservative Christian Republican that has no intentions of
voting for you in this year's election and many other Conservative
Republicans are following me.

America demands the TRUTH and not after the elections; this nation demands the truth from you RIGHT NOW! This letter and an identical email will be going out to hundreds of thousands by me, millions by others. The following content was sent to the White House by facsimile earlier today from Ground Zero in New York City.

1. I demand as an American citizen that you lift the "gag order" on Sibel D. Edmonds and let Americans know what foreign names and what AMERICAN NAMES she uncovered in her FBI translations that were involved in drug trafficking, money laundering and the financing of 9-11.Her facts and your "official story" lies do not add up. Americans demand the truth on that matter before the election.

2. I demand to know what energy companies were in that Cheney Energy Task Force meeting and what discussions there were as to the steps that would be taken to remove the Taliban and Bridas Corporation as the last remaining obstacle to the United States controlling the Trans-Afghanistan Pipeline. I met that company in 1999 and have known since then about the Bridas v Unocal, $15 billion interference of contract lawsuit in US District Court, Southern District of Texas. I also know about the Fifth Circuit Court of Appeals decision on September 9, 2003 that upheld the Bridas $500 million arbitration settlement and the March 22, 2004 denial of Writ of Certiorari at the United States Supreme Court, Case 03-1018, Turkmenneft v Bridas.

3. I demand to know how many prisoners are being held at GITMO and other places that are either BRIDAS EMPLOYEES or are persons that know all about Bridas Corporation and what your administration did to get control of that Trans-Afghanistan pipeline.

4. I demand to know how many board meetings Condoleezza Rice and Thomas Kean sat in on at Chevron and Amerada Hess where it was discussed how they were going to deal with making the billions in "Big Oil" investments into a land locked Caspian Basin and how to get rid of the Taliban and Bridas so they could turn those investments into cash flow. How many times did Big Oil ask for military force to complete a commercial transaction they could not get under their control, and on what exact date did you agree to provide such military force - prior to 9-11? Isn't it true Mr. Bush that the Cheney Energy Task Force discussed that attack on Afghanistan and removal of the Taliban / Bridas obstacle once and for all - and did so well in advance of 9-11?

5. I demand to know why you appointed 10 persons to the 9-11 Commission, 8 of which are directly benefiting by the Taliban / Bridas "contract" obstacle being removed - breached with military force, and the big Caspian Oil deals that are now coming to market. No, America does not 'thank you' for that nor do we hold such despicable conduct up high.

6. I demand to know what US Oil Company stepped up as the sponsor of that OPIC and Asia Development Bank funded Trans-Afghanistan pipeline and what US company is constructing that pipeline right now, and what US firms are supplying the key components and their relationship to your administration.

7. I demand that you identify the company and persons who were going around Bridas to be "natural gas suppliers" to the US owned natural gas electrical generation plants in Pakistan (Dynegy - Illinova /Tenaska, El Paso (2 OPIC financed transactions) and others.

8. I demand to know why you have not been truthful with the American public that your GWOT and military policy are protecting the Caspian Basin Oil and Gas deals for many of your Bush Pioneers, some $9.6 trillion in oil and about $3 trillion in natural gas, now mostly in the hands of your elite wealthy contributors and some elite Liberals to keep this all quiet.

9. I demand to know what role the post-bankruptcy ENRON (Prisma Energy International, Cayman Islands) is playing in the Caspian Basin area, the same Enron that uses the law firm of Mayer Brown Rowe & Maw [Richard Ben Veniste, 9-11 Commission] that established the offshore SPE's for assets that were never under the jurisdiction of the U.S. Bankruptcy Court.

10. I demand to know why you appointed Richard Ben Veniste to the 9-11 Commission when it was his law firm that was stalling Bridas Corporation at the Fifth Circuit US Court of Appeals in the matter of Bridas Corporation v.Turkmenneft and his law firm is directly involved in Pakistan, Turkmenistan, Kazakhstan and Uzbekistan and your administration.
.
.
.
.

END INCLUSION


I deleted the other 20 points....if you're really into supporting the law, instead of your party...

I would appreciate some real examination.

.

despite the odds, the United States will become a democracy again and those responsible for foisting a plutocracy on us?

wait and see.

.

Posted by: You really should verify point #3 | July 16, 2006 10:47 PM

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