What's All This Then?

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Saturday, February 20, 2010

Either we’re at war or we’re not. Let’s see. We invaded Iraq in 2003. Presumably that was an act of war even if there was no declaration. But the "war" was over in a matter of weeks. Total victory, after which we began an occupation that continues in some degree to this day. So it’s a little hard to consider our current Iraqi involvement as "being at war." But that’s what the current and previous administration calls it even though we don’t seem to be taking prisoners which is what you normally do when you are fighting a war.

We invaded Afghanistan in 2001 following the 9/11 attack, ostensibly to capture Osama Bin Laden and any Al-Qaeda members. We didn’t find Bin Laden but working with Afghan forces, we ousted the Taliban regime and then settled into still another kind of occupation during which we are trying to put down a never ending insurgency by the very same Taliban that apparently wasn’t entirely defeated , costing American lives on a regular basis and now we’re in the process of expanding our presence there at the same time as the president is telling us when our forces will be leaving.. I’m not sure what to call the state of our current Afghanistan involvement other than confusing, but President Bush called it a war and so does President Obama. I presume we take prisoners but I don’t know what they are called or where they are imprisoned and whether there is any program or protocol in place that would lead to their eventual freedom - as in the end of hostilities.

Then we have the "war on terror" which is really the "war" I’m questioning with the headline to this piece. Our enemies in this "war" are individuals who have performed or have attempted to perform acts of terror against us. Acts such as the attacks of 9/11/2001 and attempted acts, such as the now jailed "shoe bomber" and the now in custody "Christmas" or "underwear" bomber. These enemies apparently share a philosophy but not a nation. It is a "war" unlike any we have been engaged in in the past. And the question it poses is, when we capture someone who has committed or is about to commit an act of terror against us , how do we treat that individual? As a criminal or a prisoner of war?

Up to now, it seems that we have been using a mixture of both approaches. We have detained alleged terrorists at Guantanamo and have tried three of them with military tribunals and we have prosecuted and convicted a great many through the Federal court system. It’s hard to get a handle on exactly how many but the numbers one usually hears range from two to three hundred - almost all of them during the G.W. Bush administration. But now, the leaders of the Republican party are demanding that we treat Umar Farouk Abdulmutallab, the so called Christmas bomber, as an enemy combatant and are complaining because he was awarded the sane rights as anyone arrested for an alleged criminal offense, instead of being interrogated for heaven knows how long, using torture if necessary.

To these complaining Republicans, there is nothing contradictory about their position, but to this observer, it would seem that they are trying to mix apples and onions. If we are "at war" and any of the enemy we capture we label "enemy combatants" - do they not become "prisoners of war" - and as such, do we have the right to put them on trial and sentence them to prison terms or even death under the rules of war as we have understood them in the past? The Geneva Convention for example. On the other hand, if they are criminals - and whatever else that may be, they are certainly criminals - should we not treat them as such, or is it perfectly O.K., as these Republicans maintain, to invent an entirely new way of dealing with their kind of crime without the benefit of any laws being enacted to legalize it.

Now we have the controversy over where Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attack should be tried and whether his trial should be in a Federal court or by a military commission. The fact that a "trial" is even being considered for this individual turns logic and the rule of law not just upside down but sideways into some unknown dimension except to writers of science fiction. After being held at Gitmo for years as - your guess is as good as mine but mine would be the handy "enemy combatant" rather than the awkward "prisoner of war" - we now propose to put him on trial, convict him and then put him to death. Our leaders have already said as much. Like The Queen of Hearts - sentence first, verdict afterwards.

But after being imprisoned for years and waterboarded hundreds of times , how on earth can the American tradition of a "fair trial" be realized and what can it accomplish? To demonstrate to the world that we are a nation that abides by "the rule of law?" And what does it accomplish for us? Putting Mohammed on trial anywhere after all these years isn’t going to provide any measure of "closure" to the families of 9/11/ victims.

Despite all the bluster from the right - led by the five time deferred from military service blusterer in chief Dick Cheney - we are really caught between a rock and a hard place over a matter of rhetoric. It should be a simple issue. If we are "at war" then any of the "enemy" that we capture should be prisoners of war. As such, we can’t put them on trial and lock them up in Federal jails as we have been doing. We need to hold them in POW camps until the "war" is "over." And indeed some of the people who were held at Guantanamo have been released, though the "war" continues. If we regard them as criminals, then trial, conviction and imprisonment is appropriate. Long term detention and torture without a trial is not.

I believe Attorney General Holder’s decision to try Khalid Sheikh Mohammed in Federal court was an effort to clarify the status of those we have been calling terrorists and enemy combatants without ever calling them prisoners of war. If so, he seems to have failed. The "trial" may now be moved back to Gitmo and a military court, leaving the idea of the US being at "war" with "terror" intact and the status of those we capture in the act of committing or after they have committed an act of terror, up in the air. That may be all right for Dick Cheney who seems to endorse an approach of "hold and torture" - indefinitely. But for me and I suspect a majority of Americans, it remains a sad state of affairs that needs to be fixed before the terrorists can claim, rightly, that they have "won" by forcing us to change who we really are and what we believe in and what makes us unique among the nations of the world.