26 Jun Eric Posner’s Common Sense View of Guantanamo
For those of you who missed it, U. Chicago law professor Eric Posner had a very sensible op-ed in the NYT yesterday defending the detention of suspected Al-Qaeda terrorists in Guantanamo Bay. Here’s a brief excerpt, but the whole essay is worth reading:
The detention of enemy aliens, especially enemy soldiers, during wartime is a long-established practice. Enemy aliens and soldiers are not detained because they have committed crimes; they are detained because they are dangerous. During World War II, the United States detained hundreds of thousands of enemy soldiers in prison camps on American territory and elsewhere. Because being an enemy soldier is not a crime, these soldiers did not receive trials before their internment.
[snip]
The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public. The question of whether to close Guantánamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.
If they are, the United States government can, without offending American legal traditions, lock up suspected Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.
Surely this only applies when the US is at war. If so, I am continually amazed that people make this argument given the stretch required for this argument to be sustained. Posner’s argument can only be sustained on the basis that the US is at war with Al-Qaeda, which, apart from being a fiction, makes a mockery of his use of international law. How can one possibly apply international law to Al-Qaeda, as if it were a State whose citizens can be detained as prisoners of war?
Surely one cannot plausibly assert that the US is at war with Al-Qaeda, and therefore can detain members of that organisation. Surely the law Posner cites is only relevant to nationals of States with which the US is at war.
If they are not nationals of a State with which the US is at war, I fail to see how US law can justify the US removing nationals of a State (such as Afganis or Pakistanis eg) from their own State, even if they are criminals. Surely, if they are not war criminals, and given you are not at war, then the national policing authorities are the only ones allowed to detain such people.
I’m not sure of the exact legal ground, but if I am wrong, can somebody please enlighten me?
Sorry, I should make clear, I do understand that people fighting in Iraq and Afghanistan during actual wartime could be detained. However, what is the basis for detention, even in Iraq and Afghanistan, now that the ‘war’ is over?
How can people be detained as wartime enemy aliens if there is no war? That’s what I don’t understand!!
Cheers 🙂
“The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public.”
The half-truth here is all on the side of Prof. Posner and the other apologists for the Bush administration’s illegal policies – his entire column is one big straw man argument.
That the government mey detain people for various reasons is not in dispute; what is in dispute is the idiotic notion that the government may detain anyone they please without proper legal authority or due process simply on the say-so of the president, as if the president had the power of life and death like a Roman emperor.
That proposition has been excluded from our law since Magna Carta. The only proper authority for detaining someone indefinitely as an enemy combatant is Geneva III POWs (1949)(“GPW”), but the Bush administration has refused to grant any detainee in the “GWOT” POW status. Any detaineee who is NOT a POW under GPW is protected by Geneva IV Civilians (1949)(“GC”).
The criminal abuse of detainees, including denial of due process, unlawful deportations, and coercive interogations, etc, are WAR CRIMES and are prohibited by Hague IV (1907), the IMT Charter (1945), Geneva (1949), and 18 USC 2441.
The problem here isn’t that the Bush administration doesn’t have the authority to detain people lawfully, the problem is the the Bush administration is a gang of war criminals who is detaining people without lawful authority in violation of US law. Their alleged “war” on terror is an idiotic joke that ampounts to a declation of war on the entire world. including the United States. The truth of the matter is that this isn’t any sort of a real war, it’s a gang war, and the Bush administration’s idea of “law and order” has been to convernt the US Government into a criminal organization operating outside the law.
Chalres Gittings
Human rights treaties all allow for the detention of dangerously insane people, and Geneva Convention IV does allow, as an ultima ratio, for the detention of persons on the grounds of national security (obviously enough, in the occupation context, which the US maintain is now inapplicable to Iraq, and which is certainly inapplicable elsewhere).
However, none of these instruments comes anywhere near acknowledging a general power of states to intern people without due process of law. They all impose very strict conditions of review, and they impose the applicable conditions.
No source of law limits itself to simply rubber-stamping the executive decision to operate a policy of internment on terms set by itself, and only by itself.
Insofar as Prof. Posner may be taken to make any reference to the international standards in place (which, shockingly, he does not do), his position amounts to an analogy with existing powers of detention. This not only makes a mockery of the exhaustive nature of these powers, it is also an analogy to a rule that quite simply does not exist, namely one on detention pure and simple, no questions asked.
Prof. Posner is in effect constructing an argument that the detentions at Guantanamo Bay are lawful only by reference to considerations which the law accepts elsewhere and only up to a point.
Further, insofar as the professor’s remarks are on US constitutional law, they pretend that the powers of internment claimed in WW II existed utterly uninfluenced by the fact that sch powers were at the time recognized in international law. I very much doubt if they did, even though Korematsu v. US etc. make no mention of the point.
(I realize, of course, that the whole matter of international law sources in the interpretation of the US Constitution is as highly contentious as they come, but surely, it is one thing to derive a constitutional prohibition from such sources, and quite another to circumscribe the extent of governmental – war – powers by reference to the concepts of warfare accepted in international law)
I completely fail to see how all this could be described as ‘very sensible’. It is a thin veneer of legality that is neither of the best quality material nor well applied.
I would like to comment on Posner’s discussion of recidivist criminals. (The crux of this part of his argument does not appear in the excerpt above.) Posner notes that, in criminal cases, sentencing judges have discretion to increase a defendant’s sentence based on the threat that person presents to society. In Posner’s mind, isn’t this exactly like detaining someone who may be a Qaeda operative in order to protect the public? In some sense, yes, but the crucial difference is that the defendant has already been convicted of a crime – thus his detention has already been sanctioned by the constitution (assuming all his rights have been respected). Further, aggravating factors such as further dangerousness to society are facts that must be found by a jury in most instances (non-presumptive sentencing aside). Thus, the case is far different than in Guantanamo where the detainees are given little or no rights. Posner’s analogy to aggravated sentences based on potential for recidivism breaks down quickly, a straw man indeed.