The second question I wish to address is:
2) How does one handle the status of prisoners taken in ongoing
hostilities
if they are POWs?
if they are "unlawful combattants", but there is not enough evidence
to
convict them of a specific war crime?
(BTW, I see that I didn't finish writing the three questions down: the
third question is:
3) How does one determine the most likely possibility and the range of
possibilities from conflicting reports from conflicting sources?)
Let us first take the case of the Taliban. The US attacked the Taliban for
harboring their allies in AQ, which attacked the WTC. The US is allied with
the present government, which has been elected and appears to have at least
some support from the traditional leaders of the tribes. That government
and US forces are currently fighting the Taliban.
Under these circumstances, the US has the traditional right to hold Taliban
prisoners until the war in Afghanistan is over. It could be a signed
agreement, which includes the exchange of prisoners held, or it could be
after the war has just effectively ended. But, as long as the war is going
on, I think that the forces of the US and the government of Afghanistan are
on pretty firm footing in keeping POWs. Historically, there has not been
many examples of governments feeling obliged to release captured enemy
soldiers so that they may fight again.
With AQ, other problems ensue. Originally Bush said that terrorist
prisoners could be held without charges until the war on terror was over.
That statement is so open ended, that it creates a multitude of issues. It
gives the POTU virtually unlimited authority to detain anyone he wants by
simply calling them a terrorist, and to detain them, for all practical
purposes, for the rest of their lives.
Recently, he has made a much more reasonable statement with regards to the
prisoners at Gitmo: that the US has a right to keep forces captured while
fighting in Afghanistan as prisoners until that war (now fought as an
insurgency) is over. This seems to be acceptable for AQ, as well as the
Taliban, who were captured while they were fighting in Afghanistan.
Practical objections could be raised concerning the US's ability to
determine who was actually fighting for the other side, but I think we can
still look at the principals that needed to be held by a competent
administration.
Let's assume that Afghanistan has settled down, but AQ is still active
elsewhere. Then things become more problematic. In a real sense, there is
now a global insurgency being fought against the present world order.
Given that, one can make an argument for not releasing members of AQ to go
back to AQ until the war is over. The trick, I think, is to put bounds on
how long one keeps unlawful combatants prisoner without charge....and under
what circumstances they can be considered prisoners of war and thus
confinable until the war is over.
These are tough questions that deserve very careful consideration. I think
the administration is right in believing that we are on new ground here.
Their solution, simplify the problem by saying GWB is free to do as he will
without regard for the consequences is disastrous. It would be a bad
policy for a competent administration, but since this is not a competent
administration, it is a nightmare. But, the fact that the administration
has blown their handling of this question through incompetence shouldn't
obscure the fact that AQ poses a problem that was not under consideration
50+ years ago.
Dan M.
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