Durbin is wrong

Senator Durbin thinks that the US Marines guarding and interrogating the prisoners at Guantanomo Bay, Cuba are not much different from the Nazi prison camp guards or the guards of the Soviet gulag. Why does he think this? Because he holds the mistaken idea that the prisoners at Guantanamo have rights under the laws and customs of war that are being violated, that is the prisoners are not being treated as the Geneva Conventions say they ought to be treated.

I'd like to clear someting up abot that right now. It is something that drives me nuts. The prisoners at Guantanomo are not Prisoners of War (POW). They are unlawful combatants (UC). The Geneva Convention affords them no protection. They could have been shot on the battlefield when they were first captured. They could all be lined up and shot today and it would be perfectly legal.

What is the difference between a POW and a UC? Well, a captured combatant has to meet all four criteria of a POW. If all four criteria are not met the captured person is a UC, thus not protected by law.

The Geneva Convention states that the four criteria are
"(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; [and]
(d) that of conducting their operations in accordance with the laws and customs of war."

The Al Qeda fighters do not satisfy any of these criteria.

The Taliban is a bit harder. They did have a government, and though it was not recognized by the UN or the US was a government with an army and a command structure. But they had no unforms and no fixed distinctive sign - they dressed as civilians. Sometimes they carried their arms openly. Sometimes they didn't. And by hiding among civilians they did not meet criterion d. They are unlawful combatants. They do not fall under Geneva Convention protections.

So what happens to them? They can tried by a military tribunal (see Ex Parte Quirin, 317 U.S. 1 (1942) ) that can decide to free them, hold them indefinately, or kill them. They have no right of appeal.

In case you are interested, this has always been the practice since at least the American Revolution. And it has always been an uncomfrtable practice. The falling out that General Washington had with his Aide-de-Camp, Alexander Hamilton was over just this issue. Washington had Major Andre hanged for being a UC. Hamilton thought Washington shouldn't have done it.

During the battle of Springfield in the Civil War, one of my family members was almost hung for being a UC. (He wasn't and it is a little complicated. I might tell the story later when I have more time.) And President Lincoln had the UC Beall hanged.

Remember that South Vietnamese National Police Chief, Gen. Nquyen Loc Loan who shot the prisoner Bay Lop in the head with a .38 revolver? Well, Bay Lop was a UC. (Notice that Bay Lop, a Captain in the Viet Cong is dressed as a civillian.)

UCs are put to death. We do not allow them to live. If we want to change that law, we can. But we need to remember that one of the purposes of the law of war is to prevent civillian suffering. It is imperfect. It is often ignored, even by us (ever hear of strategic bombing?) but it is the law and it is a good one.

So, I say again. Durbin, and and everyone else who says we are mistreating Al Qeda and Taliban personnel at Quantanamo are wrong. The Taliban, like Bay Lop, Major Andre, my relative, and Beall endangered civilians by their dress and by concealing their weapons. When soldiers can not distiguish between civilians and their enemies they are forced to regard everyone as an enemy, and that only increases the misery of the civillians. War is hard enough on civilians without UCs making it worse. They have no legal protection for a reason: They deserve none.