Unless, that is, if a patrolman asked me that question.

Your comment about “deprivation of habeas” suggest that you believe that the detainees at Gitmo are criminal suspects and thus deserve to be treated the way we treat criminal suspects – with Miranda rights, habeas, etc. But that’s my whole point – if they are enemies captured in a war, we can detain them to the end of hostilities, and they have no habeas rights, no Miranda rights, no right to counsel, etc. They only have the right to be treated humanely, which is a pretty minimal standard. The fact that they might also be suspected of committing war crimes is interesting, and may subject them to criminal liability, but doesn’t change their legal status or our right to hold them for the duration of hostilities. We are not holding them because they are suspected of committing crimes. We are holding them because we captured them engaged in a war against us. That is the law of war.

The issue is whether you consider a state of war to actually exist when one party cannot actually declare war on the other party. If a terrorist somewhere in Somalia rams a boat full of explosives into a US Navy ship, does that mean that a terrorist somewhere in the Philippines, who has never heard of the Somalian organization, is automatically at war with the US? How do you even define the Filipino as a terrorist? Is it the simple criteria of “deliberately plotting attacks to injure U.S. civilians?” Then by that criteria you should also declare war on every individual in the nuclear strategy departments of Russia, China, and Pakistan as well, since that’s their job.

The point is, you can only have a “war on Terror”, not a “war with Terror” because terrorists can’t really declare war on you. Then it becomes pretty amorphous as to who you can call a terrorist or not–and by extension, who you are at war with, and who you aren’t. When you can potentially, unilaterally, get the US to declare war on every single person on Earth simply by a single national security agency labeling them a terrorist, that isn’t a world of peace–that’s a world gone mad.

My point is, treating the long twilight struggle against terrorists in the same legal way you treat a war puts the country in a very difficult position internationally. It opens the floodgates for other countries to do the same and sacrifices the reputation the United States has built for keeping its coercive mechanisms under the rule of law–a reputation Americans have spent the past two-and-a-half centuries building up.

“We are holding them because we captured them engaged in a war against us.”

Except the vast majority of those held at Guantanamo were not captured under arms. The US government has consistantly refused to treat them as POWs, instead relying on a separate ‘enemy combatant’ status as a way of avoiding giving them the rights they would have either as criminal suspects or as prisoners of war.

http://tealeafnation.com/2012/06/global-times-china-has-long-been-a-type-of-democracy/

“The lowest common denominator of democracy is the way leaders leave power”
Ok, GT, the CCP has achieved lowest-common-denominator democracy status. And there was glee throughout the land, and dancing through the streets.

But as you acknowledge, this current “war on terror” is not a war in any conventional sense, so even the experts are divided as to whether the offenses constitutes war or crime. So if their status is unclear, then how can it be justified that the perpetrators automatically be treated as of the “war” category? If we consider the “war on terror” to be somewhere between war and crime, shouldn’t those captured also be treated according to some ‘middle ground’(which of course is as yet undefined)?

All that notwithstanding, I certainly agree that this is not comparable to the CCP in China, where people who haven’t even committed a crime are subjected to treatment worse than POWs.

I appreciate your response, but I still don’t think you see the issue. Let’s put the waterboarding aside for the moment. Let’s assume for the sake of argument that waterboarding is illegal whether of detainees in a war or criminal suspects, even to discover where the next, ticking bomb has been planted. Where does that leave us?

Your comment about “deprivation of habeas” suggest that you believe that the detainees at Gitmo are criminal suspects and thus deserve to be treated the way we treat criminal suspects – with Miranda rights, habeas, etc. But that’s my whole point – if they are enemies captured in a war, we can detain them to the end of hostilities, and they have no habeas rights, no Miranda rights, no right to counsel, etc. They only have the right to be treated humanely, which is a pretty minimal standard. The fact that they might also be suspected of committing war crimes is interesting, and may subject them to criminal liability, but doesn’t change their legal status or our right to hold them for the duration of hostilities. We are not holding them because they are suspected of committing crimes. We are holding them because we captured them engaged in a war against us. That is the law of war.

On the other hand, if we are not fighting a war, and if they are just criminal suspects, then they have the rights to a Miranda warning, counsel during interrogation, habeas, a speedy trial, etc., and can only be held if there is probable cause to think they committed a crime.

A lot of academics think the current conflict with al qaeda is somewhere in between war and peace and that we need new rules from Congress going forward. That may or may not happen. The Democrats resolutely opposed any effort to create a new statutory regime when President Bush was in power. I don’t think President Obama has proposed any legislation, and I don’t know how it would be received if he did. I’m pretty sure that one of the reasons he’s dropping drones on al qaeda fighters and killing them outright rather than capturing them is doubts about the current legal situation for prisoners.

I hope I’ve explained where you seem to have gone off track.

Your repeated snide comments about Guantanamo are getting wearisome. Most thinking, educated people by this point recognize that the issues involved are very difficult and very serious. In a war, the Government can kill and detain the enemy at will. If a state is not engaged in a war but just fighting crime, criminals are entitled to due process. Is the conflict with al qaeda and its affiliates a war or a criminal investigation or something else? President Obama and the State Department Legal Advisor, Harold Koh, apparently find this to be a very difficult problem, as did President Bush before them. I suspect you would, too, if you spent a little time reading the literature and thinking about the issues.

China is not facing any such quandry. No foreign group has declared war on China and killed 3,000 of its people. All of the problems that China faces are purely political disputes (dissent) or ordinary criminal matters (like corruption). How many dissidents in the US or politicians opposed to the ruling party have been tossed into prison in the US, denied due process, repeatedly tortured, etc? I must have missed the stories about President Bush having Cong. Pelosi waterboarded or President Obama having Mitt Rommney kept incommunicado for months. No, there is no similarity between what China is doing and what the US has done. The US has a robust, functioning system of rule of law. It is struggling with how and to what degree that applies in the context of a twilight war against foreign enemies who have already killed thousands of Americans. China has no rule of law of any kind whatsoever. Even ordinary commercial disputes are subject to arbitrary decision by the local Party committee telling the presiding judges what to do. So, please, Richard, give it a rest.

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This comment got stuck in my moderation queue and I’m going to briefly address it right here.

My comments on Gitmo are not snide. I hate what we do there and was deeply disappointed at Congress’ refusal to close it down. Where is the snideness? I never said the government cannot take whatever legal action is necessary to combat terrorism. The key word: “legal.” Torture is not legal and is not permissible. There are aspects of how “justice” has been carried out by post-911 America that that I believe are not legal and definitely should be questioned, especially the torture of prisoners in Gitmo who are later found to have done nothing wrong and are released. The US, I’ve always said, does have a functioning if often flawed legal system and I applaud the rule of law and freedom of speech here, usually. I always, literally always, criticize China for not having any meaningful rule of law and draw a contrast as to how things are done in the US. Not perfect, but the US does offer recourse to those accused, again usually, and they can have their cases heard and hold media interviews, etc. I keep saying usually because in post-911 America there have been some egregious exceptions, but all in all our system of laws and checks and balances is infinitely more sound than China’s. It is just too bad that some of those laws don’t apply when it comes to Gitmo and dark prisons, where American values have been compromised by Americans who have brought shame to the nation. Yes, we are struggling with how to deal with possible terror suspects, but torture and deprivation of habeas corpus are not the answers.