Redstate

By Pejman Yousefzadeh Posted in Al Qaeda | Enemy Combatants | Law | Torture--Or The Lack Thereof — Comments (3) / Email this page » / Leave a comment »

This is going to be rather inside-baseballish but James Ho, the future Solicitor General of Texas, is under attack because he wrote a memo along with John Yoo, stating that unlawful enemy combatants are owed neither the status of POWs nor the status of criminal defendants. This has attracted some criticism, with Charles Kuffner writing that "One could very reasonably argue that an administration that had already shown a willingness to embrace torture would clearly not take the measured path, and thus any assistance given to them on the issue, no matter how defensible on its own merits, is at best questionable."

It is nice to know that lawyers may not be allowed to give "any assistance . . . no matter how defensible on its own merits" to the Bush Administration on the issue of enemy combatants and what to do with them. Because Charles Kuffner says so. However, the law on this issue is at least slightly more complicated.

Under Convention I, Chapter II, Art. 13 of the Geneva Conventions, even the wounded and sick must meet the following qualifications to be considered covered under the protection of the Geneva Conventions:

"... 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; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war." (Emphasis mine.)

Command and control responsibilities in terrorist organizations are looser than they are in regular armies fighting symmetrical warfare. Terrorist insurgents generally do not have "fixed distinctive sign[s] recognizable at a distance," the better to blend in with the population at large and to be able to conduct and launch the surprise attacks that are so characteristic of terrorist warfare. Along the same lines, terrorists do not "[carry] arms openly" and terrorism does not constitute "conducting operations in accordance with the laws and customs of war." Additionally, Protocol I, Part III, Sec. II of the Geneva Conventions mandates that:

"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."

To be sure, this section of the Geneva Conventions recognizes that "there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself," but as the Website for the Geneva Conventions notes, "these protocols aren't as widely accepted as the four 1949 conventions," and even if they were, they still mandate that a combatant "[carry] his arms openly" if he is to be placed under the protection of the Conventions.

This is wholly in line with the traditional laws of war. Consider the following statement from General Order No. 82 of The Lieber Code and the Laws of War:

"Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

It should be noted as well that Ho's belief that unlawful enemy combatants do not deserve POW or criminal defendant status is in no way immoral as a statement of the law or policy. As this link (subscription required) points out, the Ho and Yoo finding "does not inherently lead to the condoning of torture or false imprisonment without remedy." Indeed, any treatment of enemy combatants is now subject to the strictures of the Supreme Court's ruling in Hamdi v. Rumsfeld, which states that enemy combatants who are American citizens may challenge their detention before an impartial judge. Note that the Hamdi decision does allow the government to detail unlawful combatants, however.

Of course, this issue prompts a lot of passionate discussion and argument. But that is no excuse for getting the facts wrong. James Ho may have made an argument regarding a policy matter that is a hot button for a whole host of people. But that shouldn't penalize him as he goes forward to work on behalf of the people of the State of Texas as their new Solicitor General. Especially given the fact that he got the law right.