I am a former soldier, not a lawyer. I view the recent majority rulings of our Supreme Court concerning unlawful combatants such as in Hamdi, Rasul, Hamdan, and Boumediene as adding, not detracting, to the bloody chaos of war. In addition, the entire debate about using intelligence as evidence against the unlawful combatants, even that which was derived by coercive techniques, is flawed. Perhaps we should not pull the wings off flies like Salim Ahmed Hamdan and Khalid Sheikh Mohammed during this War on Terror but misery should be an unlawful combatants only lot in life.
Beyond extending our Constitution protections to non-citizens outside our borders and territories, we have ceded legal protections to unlawful combatants that wholly operate outside modern civilization’s Laws of Wars. Lawyers, including many who have worn military uniforms for decades, seem to have lost all sight of why those laws evolved and deliberately left unlawful combatants unprotected.
Thirty-four years ago, as a shorn of hair and sleepy Private, I was startled awake in Basic Training as an officer in 18th century uniform walked across the screen in the film projected on a classroom wall. He kept reloading his flintlock pistol and administering the coup de grace to wounded enemy soldiers. Nearby, stretcher-bearers hauled off those wearing uniforms similar to his, presumably for treatment.
Then, this was every American soldiers’s introduction to the conduct expected of them during war.
We were taught that unlawful behavior by members of the holding state, including Americans, was subject to punishment, be it by court-martial under the Uniformed Code of Military Justice or war crime tribunal convened by a foreign power. Captured lawful warriors would be treated in accordance with the Geneva Conventions. Regardless of how we personally felt, all lawful warriors rendered combat ineffective were protected and eventually would be repatriated.
Further, we learned what actions placed us outside of those protections and rendered us subject to summary judgment by foreign powers (or prosecution under the UCMJ). We were not to alter our uniforms, wear the enemy’s uniform (or operate wholly within its instruments of war such as captured tanks, planes, and ships), conduct military operations while wearing civilian attire, or conduct combat operations during mutually agreed upon periods of truce. Such conduct made us legally eligible to be shot on sight. While civilian populations were not to be intentionally targeted, saboteurs, spies, and insurgents operating out of uniform could be fully engaged and held, if captured, for war crimes.
All the instruments of war lawful enemy combatants possessed, be it their weapons, equipment, or information that might be gathered during interrogations, was solely for the furtherance of our military efforts. While self-incrimination was irrelevant, lawful combatant were only required to provide their names, ranks, dates of birth, and identification numbers.
Generally, those were the Laws of War; that was how we were to conduct ourselves and what civilization expected of all nations.
There was this striking difference: lawful combatants presented themselves as such and were thus afforded those protections; unlawful combatants did not act within civilization’s requirements and could expect little mercy from a holding power.
When America captured prisoners, while neither category of enemy combatant had earned or was then afforded Constitutional protections, all that was or could be derived from unlawful combatants was generally considered evidence of their war crimes. Lawful combatants enjoyed humanity’s protections. Yet unlawful ones received little more than the quarter they were due — none was due them. Indefinite detention was the best the latter could hope for; more likely, they would feel the hangman’s rope.
War, by its very nature, is inhumane enough. America’s legal minds must take pause.
If we unilaterally afford those protections enjoyed by lawful warriors, as set forth in the Geneva Conventions and Laws of War, to those who conduct uncivil and illegal war, we begin the walk back towards a time when uniforms solely marked targets and the wounded crying out for humanity were quieted with single shots to the head.
1 comment for “America owes no quarter to unlawful combatants”