Muddled thinking characterizes a May 6 Wall Street Journal column by Senators Lindsey Graham and John McCain about those confined in American-run prisons abroad. They reject Geneva Convention trial requirements and even military courts-martial, preferring to have Congress write new guidelines for their imprisonment and trials beyond those in the untested and possibly unconstitutional Military Commissions Act of 2006.
Defying war crimes provisions that have been repeatedly upheld by the Supreme Court, they fail to recognize that those collected on Afghanistan battlefields are prisoners of war, are fully covered by the Geneva Conventions, and cannot be held indefinitely. Such prisoners are entitled to hearings to determine whether they are indeed “enemies” or were mistakenly captured.
Indeed, the Bush administration acknowledged that at least 50 of those now in Guantánamo were wrongly detained. Eligible for release today, they cannot be sent back to their torture-prone home countries and are thus technically refugees. Graham and McCain, however, inexplicably want them kept for the rest of their lives, pending an unspecified revelation.
Defying the Supreme Court, they also oppose hearings for those kidnapped outside Afghanistan but now imprisoned either at Bagram Air Force Base, Afghanistan, or at Guantánamo. And, in advance of any sworn testimony alleging their possible culpability or innocence, Graham and McCain want them held indefinitely.
The distinguished Senators also claim psychic powers. Citing a disputed Department of Defense estimate that 10% of those released from Guantánamo have been recidivists, they yearn to keep the other 90% forever. Following their twisted logic, no prisoner should ever be released from civilian jails, where the recidivism rate is higher. That would cover those exonerated of any crime as well as those found guilty of traffic offenses.
Neither Nuremberg nor the Geneva Conventions are mentioned in their essay, and they do not define what they mean by the “law of war,” which they ignore anyway. Engaging in oldspeak by referring to a “war on terror” and to prisoners as “detainees,” they urge violation of the following war crimes:
- Failure to treat captured belligerents as prisoners of war
- Failure to try accused prisoners in a regularly constituted court
- Failure to use a competent tribunal to determine whether to detain prisoners
- Failure to disseminate Geneva Convention provisions
- Failure to put prisoners on trial
- Failure to inform prisoners promptly of charges against them
- Failure to promptly repatriate prisoners eligible for release
- Transfer of children from their home countries to prisons abroad
- Failure to obtain permission from parents or guardians for transfer of their children to prisons abroad
- Indefinite detainment of children
- Presumption of the guilt of child prisoners before trials.
Their thinking appears to be an assignment dutifully carried out in support of a Republican Party leadership that has been repudiated by the American people. Whereas they characterize the “vast majority” of prisoners as opposed to “our way of life,” the two Senators espouse opinions unworthy of the basic constitutional principles and laws of civilized nations—“our way of life”–on which the United States was founded.
Michael Haas is Professor Emeritus of Political Science at the University of Hawaii and the Chairman of the International Academic Advisory Board of the University of Cambodia. He played a role in stopping the secret funding of the Khmer Rouge by the administration of President George H. W. Bush. He has taught political science at the University of London, Northwestern University, Purdue University, and the University of California, Riverside. He is the author or editor of 33 books on human rights, including International Human Rights (2008), International Human Rights in Jeopardy (2004), The Politics of Human Rights (2000), Improving Human Rights (Praeger, 1994), and Genocide by Proxy (Praeger, 1991).
To receive his book “George W. Bush, War Criminal?”(Praeger), from which the information for this article was drawn, please send check in the amount of $32 to Haas at P.O. Box 46127, Los Angeles, CA 90046.