Obameter #181: Habeas Corpus Rights for Enemy Combatants

The phrase habeas corpus is Latin, meaning "You have the body." The premise is that one cannot be imprisoned for murder unless a murder has certainly happened: therefore, there has to be a body. It was originally used by the King or his representatives to ensure local governments were not impeding Crown business with false charges against Crown agents. Then it was extended to all subjects of the King, allowing the King to protect their rights (if he felt like it). When the 13 original colonies declared independence, they also provided the authority to demand formal, legal proof of habeas corpus to every citizen. It was a universal civil right only after a long evolution.

It is a central philosophy of criminal law everywhere the English Empire touched in it's imperial heyday. As such, it is one of the most universal legal principles there are: there can be no imprisonment without proof of a crime. That is what separates legal imprisonments from illegal kidnappings.

Except for prisoners of war. It is inherently entangled in the motivations of war to prevent captured enemy soldiers from ever again being about to fight against you. In ancient times this was accomplished by wholesale slaughter, or more beneficially by slavery, or more ethically by imprisonment. Even the Third Geneva Convention requires only allegiance to a government or an authority not recognized by the detaining power as reason enough to hold a person as a prisoner of war. And if there is any doubt as to whether a prisoner constitutes a prisoner of war, they are to be treated as one.

During the War in Iraq, the United States faced the phenomenon of "enemy combatants" for perhaps the first time. These are people who fight for the other side, but do not obviously fit the Geneva definition of "soldiers". Many such combatants were captured and held without trial by the US, often in Guantanamo Bay Detention Center, an American military prison on the island of Cuba.

Critics of the USA's handling of these "enemy combatants" argue that all prisoners are either prisoners of war or be civilians. "There is no intermediate status." I'm no legal scholar, but assuming that's true still doesn't guarantee enemy combatants habeas corpus rights. If they must be one, Geneva says "Should any doubt arise as to whether persons[ are prisoners of war], such persons shall enjoy the protection of the present Convention" ^[source]. Thus, Geneva says these disputed persons should be prisoners of war and have no habeas corpus rights.

That is not the reasoning given by the Bush Administration. Neither is it the reasoning given by the Obama Administration. But it is Geneva's reasoning.

Candidate Obama promised to restore habeas corpus to the enemy combatants, which is identical to declaring them civilians subject to due process. Since his election (May 21, to be precise), President Obama classified 5 fates for enemy combatants:

1. trial in federal courts (domestic civilians)
2. trial through military commissions in his superficially modified version of the Bush-era system (military criminals)
3. freed by the federal court decisions (free civilians)
4. turned over to other countries (foreign civilians)
5. no trial and no release (prisoners of war)

PolitiFact rules it as a compromise: the 5th group are not receiving habeas corpus rights.

This is a kind of reasoning called deconstruction: if you cannot determine a solution that works for all in a group, subdivide them into groups based on what decision applies. It forks from Candidate Obama's reasoning that all were civilians, instead treating enemy combatants as a complex and diverse group that needs further classification.

I completely agree with Obama's deconstructionist thinking: they are a diverse group. Humanity always is. By the same reasoning, I dispute the claim that there can only be soldiers and civilians. Humanity is more diverse than that. A good soldier can also be a petty criminal against civilian laws; should he be immune by reason of his military prowess? A good civilian may, in time of local unrest, fight to defend his land, family, or life. Civilian laws condemn his violent behavior, but he deserves military respect in proportion to his successes.

I do not consider any of these lines of reasoning infallible. Like all reasoning pertaining to reality, they are all flawed to some extent. Bush's reasoning is utilitarian: they must be kept out of the war, and this is the reasoning that will a accomplish that. Candidate Obama's is rejection: Bush was extremely wrong, so the opposite extreme must be right. Geneva's is committee authoritarianism: our committee agreed this is true, and thus all must concede it to be. President Obama's is perhaps the best of the four. It is a concession between a generalist's idealism and the harsh complexity of reality, an aspiration to do what is right for the combatants tempered by a necessity to do what is right for everyone outside of Guantanamo.

The promise was stupid, but the compromise is smart. I cautiously support Obama on this issue. He might just bring justice without abandoning security. He might, maybe, just manage to do it right.

Obameter #177: Close Down Gitmo

Now here's a famous one: one of Obama's biggest campaign promises was to close the Guantanamo Bay Detention Center, which he saw as a symbol of injustice and a recruiting tool for the enemies of America. Since his election, this has proven easier said than done.

Technically, the office of President does not have the executive power to close Guantanamo. It costs money to close it, and thus it takes a vote of the legislature to provide the money. And the legislature has a major concern: where are the 240 remaining Guantanamo detainees going to go? Without some concrete plan from President Obama, even Democratic Majority Leader Harry Reid opposed the bill. Reid opined, "Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president." Senator Daniel Inouye (D-HI) and Senate Minority Leader Mitch McConnell (R-KY) have also stated their opposition to the bill.

This could be a political play. It seems many politicians want credit for closing down the controversial prison, but none want credit for releasing it's detainees or putting them somewhere else of dubious security or justice. The detainees have seemingly become 240 hot potatoes that no one wants to touch.

Personally, I'm opposed to closing down the detention center until more substantial proof of wrongdoing to it's detainees is revealed. Despite events moving my way in that respect, I'm irritated that people are playing politics with such a dramatically important issue. On the one hand, there are 240 lives hanging in the balance and which deserve some planning on their behalf. On the other, many or most of them are dangerous enemies of America and of law and order generally. It was wrong for Bush to postpone any decisions until the next administration, and it's similarly wrong for Obama to plan so poorly for their post-Gitmo future.

I would strongly respect any politician who took this issue as their own, who made it their business to do the hard thing, to propose a system to judge the dangerous from the peaceable, and to send these detainees through such a judicial process to determine whether to release them into accepting countries or to sentence them. The problem since the Bush Administration has been that there was no appropriate jurisdiction for these detainees. So make one! You're the government. That's your job.

This issue is not Obama's finest hour.