If I ever became a prisoner of war being held by an enemy country, and the guards came to me to announce that I was going to be put on trial, I would not view that as a positive development. Frankly, even if it were stated as benignly as here is your, uh, lawyer, Captain McCarthy. He will be assisting as we
.how to say
adjudicate your case the words justice at last would be the farthest from my mind.
Trials of POWs tend to be followed shortly by whatever the local version is of a blindfold and firing squad (although shovels to the head or a bayonet or sword to the gut are time-tested, most recently giant dull knives are popular with the adjudicators of prisoners cases). This has generally been true whether the prisoner was held in Stalag 17, Cabanatuan, Pyoktong, the Hanoi Hilton, or in the beheading rooms/TV studios of Fallujah. To restate what used to be obvious, putting prisoners of war (or enemy combatants) on trial has not historically been a good thing, particularly from the point of view of the prisoner.
An understanding of the rules governing the treatment of prisoners held by the United States (Convention 3 of the Geneva Conventions, for instance, or Department of the Army pamphlet 27-9-1 entitled Military Judges Benchbook for Trial of Enemy Prisoners of War) make it crystal clear that the purpose of a trial of a prisoner is not to prove whether or not that prisoner is being properly held in the first place. That is, there is no historical precedent for having to prove, by means of a trial, that an enemy captured while in the service of forces fighting against American soldiers is guilty of being in the service of forces fighting against American soldiers, and that is the only fact that need be true in order for a combatant to be properly and legally held until cessation of hostilities.
Instead, trials under the rules of war are held in order to allow for a punishment above and beyond simple detainment. That is why the famous Nuremburg Trials were held. World War II was over, and those on trial at Nuremburg, if not for the trial, would have been released and at home. A trial was necessary because the captors sought to execute many of them for committing war crimes. Those enemy soldiers who did not commit war crimes, such as gassing civilians, (that is, those who simply killed a lot of Allied soldiers), were released at the end of the war. Their detainment before the end of the war was not about punishment; it was simply about keeping them out of the fight.
The other legitimate purpose of putting POWs on trial, beside for punishing crimes against humanity (a phrase that is being continually watered-down these days) is to punish prisoners for crimes committed while in captivity, such as murder of a fellow prisoner, or theft and such.
So what do people like Senator John McCain wish to accomplish by putting the enemy combatants held at Guantanamo Bay on trial? I dont mean in any way to make light of what American POWs have historically experienced, nor to make light of the responsibility of the US military to behave with honor in the way it holds prisoners, and of course I mean no disrespect to the honorable record of Senator McCain when he himself was held by an enemy in war. I cannot, however, figure out what Senator McCain is really asking for when he says, with reference to the combatants at Guantanamo, that they deserve to have some adjudication of their cases.
Lets take a hypothetical case of an enemy combatant. Lets call him Omar. Lets say that Omar was captured in November of 2001 at Mazar-i-Sharif in Afghanistan. Omar, a skilled marksman, was responsible for firing a large crew-served machine gun and killed several Americans and many more Afghan Northern Alliance fighters during the allied assault on the citys fortress-like military base. When Omar ran out of ammunition he withdrew from the wall and assisted a nearby group of men who were firing mortars. Shouting commands to adjust fire and helping to carry mortar rounds from the ammo boxes, Omar contributed greatly to the number of Americans and Alliance soldiers killed and wounded by the mortars.
When American Special Forces and their Northern Alliance allies defeated the Taliban stronghold at Mazar-i-Sharif, they eventually came upon Omar. He had thrown down his weapons, run away from the mortar battery, and surrendered. In exchange for not taking his life on the battlefield, the allies agreed to house him where he could no longer pose a threat, until the jihad that his forces had declared is over.
If Omar gets his trial as Senator McCain and most of the political left demands, with what will he be charged? The fact that he was engaged in combat is obvious, but not necessarily provable beyond a reasonable doubt at this point. Think what a high-priced lawyer paid for by Amnesty International could do with the facts: he was in the vicinity of some weapons that may or may not have been used by him or others, and he was standing there with his hands up. Even convicting Omar of conspiracy to engage in combat would be difficult unless you could find the exact soldier to whom he surrendered to I.D. him with certainty. But there is no point in convicting him of engaging in combat, since it is not a crime in the normal way we think of what crime is. The penalty is not a criminal one, per se; rather, the penalty for fighting ones enemy and then surrendering is to be held until the war/jihad is over, no more and no less.
This is where it gets baffling. If there is no point in convicting an enemy fighter of being an enemy fighter, just what does the left expect us to convict them of? Assault and battery? Murder? Conspiracy to commit murder? Beside the fact that such a charge is nonsensical the criminal justice system simply is not constructed to deal with what happens in war it is problematic in other ways.
In Omars case, he could, if there is good evidence, be convicted of maybe twenty counts of causing the deaths of other humans and for wounding many more. By criminal law standards, that would mean a sentence of life without possibility of parole, or the death penalty. At the very least, as the triggerman on the machine gun and a co-conspirator on the mortar crew, Omar would be facing decades of imprisonment. That way, when an end is declared to the War on Terror (or rather, when the jihadists call it quits), all those who did not get a trial would go home, but Omar, who got his lawyer and his trial, would still have many decades to serve on his sentence. One suspects that is not what the left intends when it demands trials; which begs the question, exactly what is it that they do intend?
Trials of POWs tend to be followed shortly by whatever the local version is of a blindfold and firing squad (although shovels to the head or a bayonet or sword to the gut are time-tested, most recently giant dull knives are popular with the adjudicators of prisoners cases). This has generally been true whether the prisoner was held in Stalag 17, Cabanatuan, Pyoktong, the Hanoi Hilton, or in the beheading rooms/TV studios of Fallujah. To restate what used to be obvious, putting prisoners of war (or enemy combatants) on trial has not historically been a good thing, particularly from the point of view of the prisoner.
An understanding of the rules governing the treatment of prisoners held by the United States (Convention 3 of the Geneva Conventions, for instance, or Department of the Army pamphlet 27-9-1 entitled Military Judges Benchbook for Trial of Enemy Prisoners of War) make it crystal clear that the purpose of a trial of a prisoner is not to prove whether or not that prisoner is being properly held in the first place. That is, there is no historical precedent for having to prove, by means of a trial, that an enemy captured while in the service of forces fighting against American soldiers is guilty of being in the service of forces fighting against American soldiers, and that is the only fact that need be true in order for a combatant to be properly and legally held until cessation of hostilities.
Instead, trials under the rules of war are held in order to allow for a punishment above and beyond simple detainment. That is why the famous Nuremburg Trials were held. World War II was over, and those on trial at Nuremburg, if not for the trial, would have been released and at home. A trial was necessary because the captors sought to execute many of them for committing war crimes. Those enemy soldiers who did not commit war crimes, such as gassing civilians, (that is, those who simply killed a lot of Allied soldiers), were released at the end of the war. Their detainment before the end of the war was not about punishment; it was simply about keeping them out of the fight.
The other legitimate purpose of putting POWs on trial, beside for punishing crimes against humanity (a phrase that is being continually watered-down these days) is to punish prisoners for crimes committed while in captivity, such as murder of a fellow prisoner, or theft and such.
So what do people like Senator John McCain wish to accomplish by putting the enemy combatants held at Guantanamo Bay on trial? I dont mean in any way to make light of what American POWs have historically experienced, nor to make light of the responsibility of the US military to behave with honor in the way it holds prisoners, and of course I mean no disrespect to the honorable record of Senator McCain when he himself was held by an enemy in war. I cannot, however, figure out what Senator McCain is really asking for when he says, with reference to the combatants at Guantanamo, that they deserve to have some adjudication of their cases.
Lets take a hypothetical case of an enemy combatant. Lets call him Omar. Lets say that Omar was captured in November of 2001 at Mazar-i-Sharif in Afghanistan. Omar, a skilled marksman, was responsible for firing a large crew-served machine gun and killed several Americans and many more Afghan Northern Alliance fighters during the allied assault on the citys fortress-like military base. When Omar ran out of ammunition he withdrew from the wall and assisted a nearby group of men who were firing mortars. Shouting commands to adjust fire and helping to carry mortar rounds from the ammo boxes, Omar contributed greatly to the number of Americans and Alliance soldiers killed and wounded by the mortars.
When American Special Forces and their Northern Alliance allies defeated the Taliban stronghold at Mazar-i-Sharif, they eventually came upon Omar. He had thrown down his weapons, run away from the mortar battery, and surrendered. In exchange for not taking his life on the battlefield, the allies agreed to house him where he could no longer pose a threat, until the jihad that his forces had declared is over.
If Omar gets his trial as Senator McCain and most of the political left demands, with what will he be charged? The fact that he was engaged in combat is obvious, but not necessarily provable beyond a reasonable doubt at this point. Think what a high-priced lawyer paid for by Amnesty International could do with the facts: he was in the vicinity of some weapons that may or may not have been used by him or others, and he was standing there with his hands up. Even convicting Omar of conspiracy to engage in combat would be difficult unless you could find the exact soldier to whom he surrendered to I.D. him with certainty. But there is no point in convicting him of engaging in combat, since it is not a crime in the normal way we think of what crime is. The penalty is not a criminal one, per se; rather, the penalty for fighting ones enemy and then surrendering is to be held until the war/jihad is over, no more and no less.
This is where it gets baffling. If there is no point in convicting an enemy fighter of being an enemy fighter, just what does the left expect us to convict them of? Assault and battery? Murder? Conspiracy to commit murder? Beside the fact that such a charge is nonsensical the criminal justice system simply is not constructed to deal with what happens in war it is problematic in other ways.
In Omars case, he could, if there is good evidence, be convicted of maybe twenty counts of causing the deaths of other humans and for wounding many more. By criminal law standards, that would mean a sentence of life without possibility of parole, or the death penalty. At the very least, as the triggerman on the machine gun and a co-conspirator on the mortar crew, Omar would be facing decades of imprisonment. That way, when an end is declared to the War on Terror (or rather, when the jihadists call it quits), all those who did not get a trial would go home, but Omar, who got his lawyer and his trial, would still have many decades to serve on his sentence. One suspects that is not what the left intends when it demands trials; which begs the question, exactly what is it that they do intend?
