Enemy Combatants and Guantanamo Bay
Someone asked my thoughts on holding prisoners in the war on terror indefinitely without trial or hearings. My thoughts on this are essentially political, although they frequently mix political and constitutional grounds. This is a very short few thoughts on the subject.
In general, politically, I believe that we should honor the Geneva conventions and treat the people we arrest in the war on terror, when arresting them on the battlefield. Taliban fighters arrested are easier subjects, as they essentially represented a foriegn government. They should probably be kept like prisoners of war. Sure, they may have terrorist ties due to the Taliban's ties to terrorism, but the fact is that Afghanistan is not a nation like we have dealt with in any other war, and expecting them to conform to that model or not give them any rights upon capture is unrealistic in my opinion.
Al Qaeda figures arrested in Afghanistan are more difficult, as they are not necessarily soldiers, and may be there just to participate in terrorist training grounds. That being said, I think that keeping them indefinitely without any right to speak to a lawyer or contest their detention is wrong. Clearly, some people were held there improperly for a couple of years and have been subsequently released. More probably will be, and there was a great incentive on the part of Afghan locals to make up lies about foreigner's ties to terrorism to collect bounties or curry favor with their newest occupiers. There must be a check on this.
There is a practical argument involved here as well. We have many troops in harms way, for better or worse, we lead the world with our attitudes. There is no guarantee that our humane treatment (in accordance with the Geneva Accords) of suspects in the war on terror will ensure humane treatment against our captured troops, but there is a guarantee that our inhumane treatment of captured fighters will lead to inhumane treatment of our troops, and other soldiers captured from around the world (I'm sure that most Italians would concur in this after the recent killings of Italian captives - there is no guaranteee that better treatment of our captives would have changed their fate, but it certainly makes their killings more likely upon capture).
Remember the words of the US government when soldiers such as Jessica Lynch were captured: "We expect Iraq to act in accordance with the Geneva accords" was the mantra coming out of the US Government. We have to lead in that respect. What's telling is the fact that the Iraqis generally treated those captives as humanely as possible (apparently so - from what I read they gave all of the captives immediate medical treatment, there was no reports of extensive abuse, executions of prisoners, rapes, or anything of that sort, although apparently some soldiers captured in the first Gulf War were abused, although I don't know if it reached the level of torture or not).
As to American citizens captured on foreign battlefields, or especially here, I think that there is no doubt that these people, if they are accused of breaking American laws through their actions, should be charged in an American court. Jose Padilla is the most obvious. He was arrested here, accused of plotting to do domestic terrorism. If he can be placed beyond the purview of American courts, then there exists a complete suspension of Constitutional Rights and habeus corpus.
Obviously, balances must be made between strict enforcement of Constitutional rights and allowing government to fight a war. However, a few issues are instructive here: 1) there is no declared war, and the war on terror looks to go on like the war on drugs or the war on poverty - forever; 2) there must be firm guidelines on how different classes of people are treated - foreigners, citizens, arrested here, arrested abroad, captured on battlefields, etc...... Without firm guidelines, this is done haphazardly , which is exactly the type of actions democracies strive to avoid; 3) finally, there has to be provisions when arrested people abroad to contest the fact that they are, in fact, terrorists.
People engaged in a civil war in some far away country may have many issues that motivate them beyond the destruction of America. Clearly, many people went to Afghanistan for the (distasteful) reason of supporting the hideous Taliban regime for religious purity reasons. They saw the Islamic state set up there as a manifestation of a perfect regime that they wanted to protect. I can't fathom that everyone going there to support that regime, however odious it is, can be arrested by America and held indefinitely in Cuba without any rights. That is clearly unAmerican.
Practically speaking, we don't want to expose Americans to the same treatment. Americans have a long history of involvement in local conflicts outside of the United States, and the US would never stand for the prolonged or indefinite detention of these people by 3rd parties not related that action. Many Americans fought against Franco in the Spanish Civil War in the 1930s, if Germany had arrested them and put them in detention camps in a German colony in Africa, we would've gone ballistic. Many American Jews go to Israel and serve in the Israeli military, if the Pakistani government arrested and held them without any rights for years just because they supported their friend's enemies, we would again go ballistic. There have to be standards, and for better or worse, the world looks to us to set them. If we set the bar low, the world will surely follow, only in a much more extreme fashion, and it will hurt us in the end.