Keep the al-Qaeda prisoners in Cuba

March 6, 2002 -- Because I live in Warsaw, I get most of my TV news from the BBC. Recently I have watched, dumbfounded and amused, the outpouring of concern for the comfort of the al-Qaeda prisoners kept at Guantanamo Bay. They were transported shackled with bags over their heads! They sleep in open cages! Four of them have British passports! Have they all had their Miranda warnings? The fact that they are undoubtedly living in less discomfort than they freely chose to undergo in the field doesn’t seem to register.

I often think that the most common error in reasoning is a kind of category error, the placing of an issue in a category in which it doesn’t belong. The classic example is the “no right to shout fire in a crowded theater” issue, often cited in a free-speech context when it clearly belongs in an implied-contract context.

In this case, the confusion seems to center around whether they are: 1) criminal suspects under arrest and entitled to all due process under law, 2) prisoners of war and entitled to humane treatment defined by the Geneva convention, or 3) something else. That something else could include spies, saboteurs, war criminals, etc.; the Geneva Convention explicitly excludes these people from the protections guaranteed to captured soldiers and, in fact, allows for their execution.

It seems to me that we have lost sight of the purpose of due process for the accused and decent treatment of prisoners. We have an established set of rules for treating people accused of crimes, not because we respect the rights of the guilty, but to insure that the innocent are not wrongfully punished and that even the guilty do not suffer punishment disproportionate to the offense. We establish minimum standards of comfort for prisoners, not because we are solicitous of their welfare, but in our own self-interest. If we are in fact going to release them someday, we should take care that we do not release into society more brutalized individuals than we started with. For prisoners of war, we have evolved reciprocal agreements of what constitutes rights of soldiers taken prisoner, even soldiers taken in the act of invading another’s country. We treat such prisoners as well as possible so that our soldiers will be treated well if taken prisoner.

The men we have in custody claim not to be a group of criminals but an army at war with us. OK, so we take them at their word. Are they prisoners of war under the Geneva Convention? Were they in uniform waging open warfare? In America, no, they wore civilian clothes and practiced various deceptions to attack civilian targets. In Afghanistan, they functioned as members of an organization with the specific goal of committing inhumane acts against civilians in their power.

Which would seem to indicate that they fall into the category of prisoners not entitled to the status of soldiers taken prisoner. Their very presence as captives in territory under our control puts our citizens at risk of retaliatory terrorist strikes and hostage taking.

May I suggest that if we do indeed hold prisoners complicit in the deaths of more than 3,000 of our fellow citizens, their rights are not at issue here. Of first priority is the safety of the men charged with guarding them. Minimal standards of humane treatment are necessary to ensure that our men are not themselves brutalized by what they are required to do in the performance of their duty—and perhaps to show the world how we treat people who have no such concern for our lives and rights, thus demonstrating not only our moral superiority but our strength and confidence as well.

And as for the prisoners with British passports, well I saw on an English talk show that 70% of the callers wanted them kept right where they were.

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