# So what \[I\]should \[/I\] we do with the Gitmo detainees? **URL:** \ **Category:** Great Debates\ **Created:** [June 17, 2005, 2:09am UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636 "2005-06-17T02:09:08Z")\ **Posts on this page:** 14\ **Page:** 3
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 17, 2005, 9:42pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/41 "2005-06-17T21:42:54Z")
> [@Lemur866](#): > > Most of the people at Gitmo are simply people who fought against the US as members of the Taliban or some other militia, and could thus be considered enemy soldiers. However, if their militia still exists and is still fighting against the US, they are still legitimate POWs and can therefore be held indefinately. Even if they never actually fired a weapon in anger, if they were a member of a militia fighting against the US they are POWs and until the war is over they can be held perfectly legally, and perfectly morally. But they’re not classifed as POWs, so you can’t have it both ways. Besides, how in the world are we to determine if their particular militia still exists? And, if they were POWs, we couldn’t ask them anything more than name/rank/serial #. No interragation period. Even if we say pretty please and give them chocolate ice cream afterwards. And that is probably the single greatest reason the adminstration doesn’t want to treat them as POWs (which I’m actually OK with). ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [June 17, 2005, 10:25pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/42 "2005-06-17T22:25:22Z")
> [@](#): > > IIRC ‘spy’ was the general non-uniformed combatant status in the older versions of the GC…basically the quasi-category most of these Taliban fighters fall into, as they aren’t distinguishable from civilians yet are combatants. Yes that’s what I ment by spy. I disagree that the GC needs updating, it seems to work find how it is. If you are going to fight by the rules, and you are captured you are granted certain rights, if you chose not to fight by the rules you have no rights. Seems like a good incentive to fight by the rules. OTHO if we gave in and gave these people GC Enemy POW status, what incentive would it be for future enemy’s to follow the GC rules (since we would grant them GC protection anyway)? ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [June 18, 2005, 11:12am UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/43 "2005-06-18T11:12:09Z")
> [@GomiBoy](#): > > How exactly are we violating ‘international law’ then? I don’t see it. When we attacked Afghanistan and toppled the Taliban, we were authorized to do by the UN. That’s where we captured the vast majority of the people held at Gitmo. What law did we break by taking them? I think none, but am willing to be convinced otherwise. > [@](#): > > On January 11, 2002, the United States announced that it was refusing to abide by the 1949 Geneva Convention on the treatment of prisoners of war. The Third Geneva Convention, which provides specific guidelines for treatment of prisoner combatants, is a part of the “law of nations” and is a mainstay of international humanitarian law. The United States explained that the prisoners taken in Afghanistan and Pakistan were not actually prisoners of war, but were in fact “unlawful combatants.” > The first prisoners arrived in the U.S. base at Guantanamo Bay, Cuba on January 11, 2002. According to the Washington Post, prisoners were hooded and shackled during the 27-hour flight. The United States defended these practices as appropriate security measures. Media on site in Cuba reported that the prisoners were fitted with goggles that were blacked out, for “security reasons” necessary to prevent them from using their eyes. In a public letter to Donald Rumsfeld , Amnesty International expressed concern that the prisoners’ conditions of transport violated international norms. Thats just regarding Gitmo. I was also speaking of our practices in Iraq but thats another thread. ---
**Author:** ![cosmosdan](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@cosmosdan](https://boards.straightdope.com/u/cosmosdan)\ **Post date:** [June 18, 2005, 11:26am UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/44 "2005-06-18T11:26:23Z")
> [@Lemur866](#): > > The second type would be equivalent to POWs. They fought against US forces. This is not a crime, however, under the Geneva conventions enemy soldiers can be detained indefinately as long as fighting continues. **As long as we’re still fighting guerillas in Afghanistan those people can be detained without trial indefinately.** They haven’t commited a crime, it isn’t a crime to fight against US forces as long as they do so openly as members of a militia. Enemy POWs aren’t criminals, so they don’t have to be charged. However, extrajudicial killing of enemy soldiers is perfectly legal, you can shoot enemy soldiers even if they are asleep. But if you capture them you aren’t entitled to convict them of crimes. And the whole point of this provision is to enable soldiers to surrender without fear they will be executed by the enemy. Allowing the enemy to surrender without fearing summary execution is good for the capturing army, since it makes winning easier if the enemy surrenders without fighting to the death. Interesting. My question is now that Afghanistan has it’s own government how can these people still be considered enemy soldiers? I don’t know what the GC says about that but it seems that after the toppled government is replaced by another and the country is condsidered a sovereign nation again then the war is over and the prisoners should be let go. It should then become the responsibility of the new government to deal with rebels. Otherwise every time someone fires a gun we can declare we are legally occupying that country. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [June 18, 2005, 1:48pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/45 "2005-06-18T13:48:53Z")
> [@Lemur866](#): > > The third type would be criminals. You aren’t given a pass to murder someone just because your murder victim is a US soldier. You have to do so as a member of a militia…otherwise you’re just a bandit and a killer and a criminal. A guy in Afghanistan has no more right to fire a rifle at US soldiers than you or I do. It doesn’t matter if those US soldiers invaded your country, you can’t grab a rifle and shoot them any more than a random US citizen can shoot illegal immigrants crossing the US-Mexican border. Bullshit. Invading soldiers are in no way comparable to illegal immigrants. If the Mexican army came storming across the Rio Grande, I’m dead certain there’d be plenty of completely civilian Texans shooting at them without being members of any militia. And you’re saying they’d be guilty of murder? Again, I say bullshit. The right to defend oneself doesn’t mysteriously disappear just because the people threatening you are part of an army. ---
**Author:** ![TwistofFate](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@TwistofFate](https://boards.straightdope.com/u/TwistofFate)\ **Post date:** [June 20, 2005, 5:03pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/46 "2005-06-20T17:03:32Z")
> [@](#): > > After all, how the hell did we grab Noriega and try him? His home address was on his CIA application form. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [June 20, 2005, 5:11pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/47 "2005-06-20T17:11:27Z")
> [@Gorsnak](#): > > Bullshit. Invading soldiers are in no way comparable to illegal immigrants. If the Mexican army came storming across the Rio Grande, I’m dead certain there’d be plenty of completely civilian Texans shooting at them without being members of any militia. And you’re saying they’d be guilty of murder? Again, I say bullshit. The right to defend oneself doesn’t mysteriously disappear just because the people threatening you are part of an army. They wouldn’t be guilty of murder per se…but they wouldn’t be afforded the same rights under the GC as regular military or militia either. You can disagree all you like (as I said earlier, I DO disagree and think some revisions need to be made to take into account how combat and war has changed in the last few decades), but thats the way the current (and past versions) of the GC are laid out…if you are a civilian who picks up his gun to defend his home without joining a militia regiment or the regular army, who doesn’t have a badge or other markings designating you a combatant…you do not get the same rights as those folks who do. You fall into the Unlawful combatant, and your rights basically boil down to the ambiguous ‘treated humanely’…whatever that means in actual practice. Your theoretical Mexicans could lock those Texans up and throw away the key…at least as long as the war continued. -XT ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [June 20, 2005, 7:23pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/48 "2005-06-20T19:23:54Z")
I’m not saying that a citizen wouldn’t have the right to shoot at an invading soldier, just that a citizen has no more right to shoot at an invading soldier than they have to shoot at anyone else. A private citizen does have the right to use deadly force in certain circumstances (self defense of self or others). But the Geneva conventions protections don’t apply to people who aren’t members of an organized militia who bear arms openly. If you as a private citizen sneak around taking potshots at the invading Mexican army you can be tried for murder if the Mexicans catch you. A US soldier crawling around taking potshots at the invading Mexican army CANNOT be tried for murder if he’s captured by the Mexicans, he can only be held until the end of hostilities, he cannot be charged with a crime. However, under the Geneva Convention he CAN be held indefinately until the end of hostilities, even though he hasn’t commited any crime. So there are two fates a combatant can face. A person detained as a fighter who isn’t part of an organized militia and who doesn’t bear arms openly faces trial, just like any other criminal. If found innocent he must be released. If found guilty he is sentenced and faces punishment, including the death penalty. Once the sentence is complete however, the criminal must be released (assuming they weren’t sentenced to life imprisonment or the death penalty). A person detained who fought openly as a member of a militia cannot be tried and cannot be punished, but can be held as a POW indefinately, until the end of hostilities. However, once the peace treaty is signed the POW must be released. The military tribunals that have been talked about have two purposes. The first purpose would be to assign detainees into the two categories…lawful combatants and unlawful combatants. Lawful combatants can be detained indefinately but cannot be tried (except for certain crimes like executing prisoners) or interrogated. Unlawful combatants must be put on trial and either convicted of a crime or released. The problem with Gitmo is that the administration doesn’t like either alternative. It doesn’t want to declare the detainees POWs, and it doesn’t want to have to try them as criminals either. The trouble is that either status could be logically justified based on the realities of tribal/non-state warfare in Afghanistan, but the administration isn’t attempting to justify either, or to assign some detainees to one category and some detainees to another category. As a first response, detaining everyone and sorting out their status later is certainly justified. But now it is several years later, and still their status is not clear. Demanding that detainees either be given POW status and held, or tried for crimes and be either convicted and sentenced or exonerated and released seems reasonable to me. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 21, 2005, 1:05pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/49 "2005-06-21T13:05:55Z")
> [@John Mace](#): > > how in the world are we to determine if their particular militia still exists? Why would that matter (any more than it matters whether or not a POW’s home unit still exists)? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [June 21, 2005, 2:35pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/50 "2005-06-21T14:35:47Z")
> [@Lemur866](#): > > It doesn’t matter if those US soldiers invaded your country, you can’t grab a rifle and shoot them any more than a random US citizen can shoot illegal immigrants crossing the US-Mexican border. > . Actually, you can. There’s a specific provision to this effect in the Geneva convention. I don’t remember the exact wording, but it extends the protection of the convention to civilians spontaneously taking arms when ennemy troops approach. So, if an advancing american unit is shot at by an ununiformed farmer, said farmer, if caught, will be a war prisonner. However, if he does the same after the area has been occupied, he becomes a criminal (except if he wears an uniform or some other distinctive attire and belongs to an organized structure. In which case he becomes against a combattant entitled to the protection of the convention). Roughly, the idea is that defending your homeplace, even as a civilian, isn’t a crime, and that you don’t necessarily have the time to organize a regular militia, make uniforms and so on. On the other hand, if you intend to go on fighting after that initial phase, you’ve to identify yourself as a combattant, and answer to someone. You can’t lead your own private war nor try to pass as a civilian. By the way, I’ not convinced that most of the detainees of Guantanamo are people who had fought the USA. It was my understanding that a large number of them were people who had been trained in local camps, or came to Afghanistan to receive religious teachings, or were believed to have close ties with Al Qaida or contacts with its leaders, and so on…It didn’t seem to me that the majority was caught fighting the US. Nor that many people who fought during the Afghanistan operations were brought to Guantanamo, either… Besides, most of the fighting took place between Afghanis and didn’t involve directly the US troops, anyway. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [June 21, 2005, 2:42pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/51 "2005-06-21T14:42:17Z")
> [@xtisme](#): > > They wouldn’t be guilty of murder per se…but they wouldn’t be afforded the same rights under the GC as regular military or militia either. > -XT As I mentionned above, they would in this particular case. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [June 21, 2005, 2:53pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/52 "2005-06-21T14:53:36Z")
Here’s the relevant cite, from the article 4 that defines the persons benefiting from the status of POW : > [@](#): > > 1. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Other guerilla or resistance fighters are thus covered : > [@](#): > > 1. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: > > (a) That of being commanded by a person responsible for his subordinates; > > (b) That of having a fixed distinctive sign recognizable at a distance; > > © That of carrying arms openly; > > (d) That of conducting their operations in accordance with the laws and customs of war. ---
**Author:** ![Eolbo](https://avatars.discourse-cdn.com/v4/letter/e/d07c76/32.png) [@Eolbo](https://boards.straightdope.com/u/Eolbo)\ **Post date:** [June 21, 2005, 3:47pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/53 "2005-06-21T15:47:27Z")
> [@clairobscur](#): > > Here’s the relevant cite, from the article 4 that defines the persons benefiting from the status of POW : > > Other guerilla or resistance fighters are thus covered : Further to that, there is an additional Protocol to the Geneva Conventions from 1977 which among other things addressed the issue of POW status for guerillas. The 1949 convention with WW2 resistance fighters in mind had made some partial protection for them with your quoted text. But it was inadequate as it wasn’t (and isn’t) realistic to expect guerilla or resistance fighters to fight in uniform so the 1977 protocol went further: > [@](#): > > 1. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: > > a ) During each military engagement, and > > ( b ) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. [http://en.wikipedia.org/wiki/Protocol\_I#Part\_III\_METHODS\_AND\_MEANS\_OF\_WARFARE\_COMBATANT\_AND\_PRISONER-OF-WAR\_STATUS](http://en.wikipedia.org/wiki/Protocol_I#Part_III_METHODS_AND_MEANS_OF_WARFARE_COMBATANT_AND_PRISONER-OF-WAR_STATUS) Under this Protocol it’s pretty clear that many of the Iraqi guerillas should be classed as POWs. The United States has never adopted the protocol. As a general point though its wrong to say that killing members of an invading army classes as murder. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [June 21, 2005, 5:13pm UTC](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636/54 "2005-06-21T17:13:20Z")
Thanks for the correction. So it seems under the Geneva Convention you can grab a rifle as a civilian and rush to the front lines if your country is invaded. That would therefore probably cover most of the Taliban fighters and tribal fighters. However, that just entitles them POW status. If they have POW status then they could be held until hostilities are over without being charged with anything. Of course I realize that the real story is that the detainees are expected to resume fighting the minute they are released. But giving them POW status solves the problem, so I think the Bush administration is making a mistake denying them POW status. [Previous page](https://boards.straightdope.com/t/so-what-i-should-i-we-do-with-the-gitmo-detainees/308636.md?page=2)