The war against the Taleban is over; that government has fallen. A new government, engineered by us, is now in power in Afghanistan.
What is my point? This: there are still prisoners being held at Guantanamo bay. The United States refused to give these individuals “Prisoner of War” status in spite of heavy international pressure, ostensibly because war against the Taleban was never declared by congress, ergo the Taleban fighters were not truly “opposing army soldiers” at all. Instead, we chose to call them “Enemy Combatants.”
As civil rights cases questioning the legality of the “Enemy Combatants” designation wound their way through the US courts system, the 4th U.S. Circuit Court of Appeals (the highest court which has yet ruled on the matter) found that courts should defer to the military’s designations, such as those of Enemy Combatants, in wartime. Legal scholars were uniformly shocked at this assertion of governmental authority in the face of international law — but law it has become, at least inside the United States.
But an interesting problem now exists. Either we were at war with the Taleban, in which case the prisoners should have been given Prisoner of War status, or we were in wartime with the Taleban (by our own courts’ standard), in which case the prisoners fell under our own Enemy Combatant designation. But regardless of whether we were at war with the Taleban or in wartime with the Taleban, that conflict is now over. There can be no argument on this point; the Taleban no longer exists, its leaders having disbanded and fled to any number of countries, replaced by Hamid Karzai and the new interim government largely as a result of our efforts.
And so, in spite of ourselves, we are once again not only in violation of international law (with which we have yet to comply on this issue by most nations’ measures), but with our own law as well. According to the Geneva Conventions to which we are signatory, regardless of the nature of the conflict or the direction of their loyalties, these prisoners must be returned to their homes once the conflict has ended and cease fire has been achieved. By any reading of the Conventions, this must be the case under either standard — whether “at war” or using our own “in wartime.” If on the other hand they are being held not as the result of such a conflict, but rather as the result of some criminal or civil act in violation of U.S. statute, then both U.S. law and international law dictate that they be given due process, i.e. a trial.
But neither has occurred. These men can no longer legally be held either as Prisoners of War or as Enemy Combatants, yet they remain imprisoned at Guantanamo bay — not a single one has been returned home. The only legal grounds for further detention would lie along lines which would guarantee them due process under law, yet they have not received it — not a single one has been given a lawyer or been arraigned on any charges, much less tried before a jury (or even a judge or tribunal!) in legal proceedings.
These men are, in effect, in a concentration camp. Our concentration camp.