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Jewish World Review Jan. 21, 2002 / 8 Shevat, 5762

Jonathan Turley

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"Out of sight, out of mind," but they're still prisoners -- IN 1014, Byzantine Emperor Basil II had a bit of a problem. He had decisively defeated the Bulgarian tsar and taken virtually the entire opposing army captive. Basil II was not keen on feeding and holding more than 14,000 prisoners of war, but he also was not inclined to release an entire army that could simply turn around and resume hostilities. His solution was both chilling and simple: He divided the army into groups of 100 and blinded 99 out of each group. He left one man with one eye in each group to lead this line of wretches back to the Bulgarian tsar.

Basil II's dilemma came to mind last week as the first U.S. prisoners from Afghanistan arrived, hooded and shackled, at Camp X-Ray, the new prison under construction at Guantanamo Bay, Cuba. The U.S. is now coming to grips with one of the oldest problems for a victorious army: what to do with the defeated army.

Of course, most prisoners from the war have been released in Afghanistan. However, thousands remain in custody. The U.S. is convinced that, if released, many of these prisoners would immediately look for the nearest Al Qaeda recruiter. One of the least discussed reasons for continuing the bombing campaign over the objections of local warlords was simple mathematics: more daisy cutters, fewer detainees. Of course, unlike Basil II, the U.S. is restrained in its options by principles of decency and morality. President Bush may have a reputation for Texas-style justice but he is not likely to call for the red-hot pokers and send back a single-file line of sightless prisoners led by their one-eyed mullah. Moreover, he is unlikely to allow the conviction and summary execution of thousands of prisoners.

Yet no politician wants to release an Al Qaeda version of Willie Horton, some parolee of Camp X-Ray who ends up on the evening news holding a release order and a vial of anthrax. This means that a large number of prisoners will need to be held for an extended period. However, while the occupants of a "prison" are normally called "prisoners," the administration has been careful not to use the P word.

Despite international objections, the U.S. has refused to establish the status of these prisoners. The most obvious status is that of prisoners of war, given the administration's insistence that this is a "war" even without a formal declaration of war from Congress. The administration, however, is reluctant to declare the prisoners to be POWs, which would trigger international rules, including the Geneva Convention. Most significant, the U.S. would have to release POWs at the end of the conflict, except for those men accused of war crimes.

The argument used to deny these prisoners the formal status of POWs is as compelling as an "Osama unplugged" diatribe. According to the rules of war, a captive is not a prisoner of war unless he meets certain criteria, including wearing a uniform and insignia. Various experts have argued that the Taliban and Al Qaeda prisoners were not wearing uniforms and therefore are not entitled to be considered POWs. Obviously, many of the international rules have been written by Western military powers, who would not be caught dead in a war without all of the trappings of rank.

Yet many wars are fought by armies that are both impoverished and improvised. Many of our allies in the Northern Alliance were dressed the same as these prisoners and included many Taliban fighters who simply switched sides without changing into something more presentable. Other under-dressed warriors in Afghanistan include American operatives. We would not tolerate arguments that our fighters and allies were not soldiers entitled to international protections if taken prisoner.

For now, the administration has chosen to call its prisoners "detainees" and created a special military tribunal to try and punish them outside of our legal system.

Certainly, these prisoners must be held until their identities and possible war crimes are established. Yet, most of them are obviously not leaders but rank-and-file soldiers. They are fanatics but they were captured in classic combatant roles.

We will need to resolve not just their status but our right to hold them in the coming weeks.

Under the current policy, Bush will not only have unilateral control over the rules governing his military tribunals but he will now operate an entire prison system of his own making. He will have his own prison, created and operated without congressional authorization. Prisoners will be sentenced to some range of time that he finds appropriate and held under conditions that he finds sufficient.

For Basil II, "justice is blind" had a very peculiar meaning. The prisoners in Cuba face a more humane future but we, as citizens, have a right to dictate the conditions for any punishment that is carried out in our name. We have failed if Camp X-Ray merely proves that when it comes to inconvenient prisoners, "out of sight is out of mind."

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.

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11/19/01: What type of 'creature' would defend bin Laden?
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10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2002, Jonathan Turley