Most reasonable people can agree that Gitmo detainees not proven to be enemy combatants at all (e.g. persons pulled off the street on whom we’ve never had anything more than suspicion) should be freed. The tougher question is, what about those obviously working for the enemy, but who are acquitted of committing war crimes.
Mark Kleiman points out that it would still be lawful to detain (not imprison) these individuals as PoWs.
Imagine that the Russians had captured Waffen SS Gruppenfuhrer Klaus Heinrich Schmidt in the summer of 1941 and put him on trial for, let’s say, ordering the massacre of civilians. And imagine that he was acquitted, because he was able to show that the massacre was actually ordered by another Gruppenfuhrer named Heinrich Klaus Schmidt.
Now what? Should the innocent Gruppenfuhrer Schmidt be sent back through the lines so he can resume fighting? I don’t think so. He goes to a PoW camp, to be held until the war is over. As a PoW, he has certain rights (he can’t be pressed for information other than name, rank, and serial number, or be forced to work) but the right to go back to fighting is not among them.
He points out we’ve been at war with the Taliban since 2001 and al-Qaeda with us since 1998 or so, so I think the natural question is just how long can we reasonably detain a PoW for? of course the legal answer is:
… as long as the conflict lasts, even if that turns out to be forever.
This being the case, I think we should consider changing our laws to better satisfy our desires for civil liberties and human rights in the new age of endless “wars”. Some random ideas:
- PoWs should be given the conditions that must be met for the war to be considered “over” and these should be public along with the evidence we have on them.
- Human interaction must be allowed and PoWs should retain their human dignity.
- Detainments should grow more comfortable over time and the public should be kept aware of those conditions.
- Simple soldiers/workers should age out.