LexisNexis Global

In early March, we analyzed the disparate treatment of detainees held by the U.S. military as enemy combatants in Guantanamo Bay versus those held at Afghanistan’s Bagram Airfield. The next day, the U.S. Department of Justice dropped the term “enemy combatant” but retained the disparity, contending that those held in Afghanistan had no right of access to the U.S. court system to challenge their detentions in contrast with the U.S. Supreme Court’s decision that Guantanamo Bay detainees did have such access.

To deal with this confusion, U.S. District Judge John Bates ruled yesterday that the Afghan detainees have the same standing as Guantanamo Bay detainees to challenge their detentions in a U.S. court. The judge rejected the Justice Department’s claim that detention in an overseas war zone as part of a military operation lessened the rights of the Afghan detainees.

Key to this decision appears to be the length of detention. Judge Bates noted that the Afghan detainees had been held for at least six years without a judicial means to challenge their detention.

It is probable that the government will appeal the judge’s decision in part because of  the ruling’s potential to interfere with the military’s detention of prisoners of war. Under this decision, it remains unclear how long a prisoner captured on the battlefield can be held until a right to access the U.S. court system applies. Is the right triggered upon capture or at some other point? Presumably the time period will be less than the six years the Afghan detainees have faced but without clear guidelines, the military will have its hands tied when conducting operations.

Within the interstices of Judge Bates’ decision lurks the sense that Judge Bates and the government may be dancing around to the confused tune of the term “detainees” – it appears that “detainees”, be they Guantanamon, Afghan or other, are the new “enemy combatants”. This latter term created an amorphous third category between common criminal and prisoner of war, which neither the courts nor the military could quite define. For our courts and our military to languish in this terminological no-man’s-land will present a vast opportunity for procedural exploitation by actual captured terrorists, and will likely hamper our troops in the field when engaging and encountering the enemy. Realistically speaking, it makes little to no sense to require a US soldier to have to “Mirandize” (because the prospective prisoner has these rights under the US constitution?) and “Viennize” (because the prospective prisoner is likely a foreign national) a hostile warrior when taking him/her prisoner.

This can have an adverse two-fold effect upon human rights and the rule of law. First, there will be a disinclination to take prisoners during war, thereby increasing the loss of life. Secondly, allied countries that afford fewer rights to detainees will likely take custody of those captured, taking such detainees outside the reach of the U.S. court system.  Traditionally, prisoners of war are held as prisoners so that they cannot return to their own army and rejoin the fight, thus weakening the opposing force for however long that may be. There is no question of trying a prisoner of war, unless there is evidence that the particular prisoner of war as a soldier was engaged in a violation of the laws of war (e.g., attacked a designated non-combatant) or against humanity (e.g., genocidal acts). The prisoner of war is simply held in detention until the end of the hostilities or a prisoner exchange is brokered, all subject to the rules and supervision of the International Red Cross, however long that may be in either case. This persistently re-emerging third category of “enemy combatant/detainee”, if fighting in a war, civil or otherwise, ought to be treated as a prisoner of war; if not, then s/he ought to be treated as a criminal violating the laws of the nation in which they have committed their criminal acts.

If you think there should be a third category, we’d like to hear your opinion – supported in detail with the distinctions to make easy identification of “detainees” as detainees and not POWs, and what particular US constitutional rights and court access detainees should be accorded.