I've been trying to write something comprehensive about the the state of the torture memos, US torture policy, and the coming confirmation hearings of the Enabler, one White House Counsel Gonzales. But it's too depressing.
So just read Hullabaloo. Digby says most of it. (And even has one small tiny ray of light — not quite everyone is going to take Gonzales lying down.)
Hitherto, Western people’s and their governments have placed people
who do them harm into one of three categories. We need a fourth
The current three categories are:
— civilians, who are individuals to be tried in court;
— soldiers, who are members of an enemy army who wear uniforms;
— enemy combatants who do not wear uniforms, such as spies and
saboteurs. These people are specifically excluded from the Geneva
The third grouping is a catchall for those not in the first two
groups. For European countries over the past few centuries, enemy
combatants who do not wear uniforms have been politically
But the category of enemy combatants who do not wear uniforms is no
longer insignificant. The prisoners held by the Unites States in
Guantanamo Bay are in this group.
We need to invent the criteria for including people in a another
group, and procedures for handling them. The procedures must presume
some are innocent and some are not.
Let us classify these people as `enemy suspects’.
The dividing lines among various groups comes from the power of a
government to classify actions. The kind of classification that
occurs depends on how much knowledge can be obtained.
For an ordinary criminal action, a court is the social mechanism used
to decide whether a defendant should be imprisoned. A court is,
essentially, an institution for gaining knowledge and making
However, in the case of a war, it is often not possible for a court to
decide into which category a defendant belongs, since the person
involved may not be local and may not be individually identified.
In this instance, another governmental mechanism is used, a
declaration of war, or some equivalent. As a result of this action,
all people who possess a certain fairly readily defined
characteristic, such as citizenship in a particular nation, are
defined as the `enemy’. This is a crude classification mechanism, but
it is the one used.
Note that when individuals can be identified, a court is becoming the
preferred social mechanism. We see, for example, the trials in the
Hague of those who have been arrested and accused of war crimes in the
The mechanism for detaining `enemy suspects’ can be that of war; but
the social means for determining when to release them should be that
of a court.
Have you ever heard of, much less actually read, The Fourth Geneva Convention? Because if you had, I doubt you would write such nonsense. Consider, just for example, Article 5:
They’re not “enemy combatants” — they’re civilians with temporarily reduced rights in limited areas.
I think you get your law from war movies. Spies don’t get POW status. But they (and all “enemy combatants”) are still civilians with rights under the Geneva convention system, not left in the cold outside it.
The key phrase is
> … at the earliest date consistent with the
> security of the State or Occupying Power, as the
> case may be.
That means a government may hold such people
indefinitely without communication to any one. That
is what the Convention says. To counter indefinite,
secret imprisonment those who control prisoners must
be required to respond in a timely fashion to others
with power. That is why we need a new category. To
provide a check.