If torture was used to obtain evidence, then we cannot use that evidence to try those people no matter what IMO but are again left with a very troubling set of alternatives. We can release them outright, but that might amount to releasing enemy soldiers on to the battlefield or, worse, into the United States itself.

My point is that there is no perfect answer, only imperfect answers that must struggle with tradeoffs and moral dilemmas. And what I am criticizing from the activists is their outright refusal (Glenn Greenwald is currently ignoring another email, this one sent in direct response to an email FROM him) to struggle with these questions AT ALL.

P.S. Jeb is factually wrong about when the relevant conventions were written.

Really, I thought most of the relevant provisions for our current situation were added or amended with protocol II in 1977.

the fact is that the French campaign in Algeria … cannot, therefore, be used as an example of how easy or practical they are to comply with

I would say the opposite. I brought this up to illustrate that the type of asymmetrical engagement we are facing is not new and that protocol II of the Geneva Conventions was written after this engagement.

That’s what causes problems with trying people using civilian criminal justice standards. If those standards cannot be met, the law says that the defendant must be released without conditions. Unfortunately, we know from experience that many of these people actually are terrorists even though we can’t meet the standards of civilian criminal justice to try them (any more than we could meet those standards if applied to POWs in a state-vs-state war). Releasing them outright risks simply returning enemy soldiers to the battlefield.

Furthermore, if we are legally required to release them, the normal standard is to release them to their country of origin. But if they present a case that they might be persecuted or mistreated, they would be released within the United States.

This all adds up to a legal requirement (because we are misapplying civilian criminal justice standards to the problem of international non-state combat) that we release enemy soldiers on to U.S. soil. The only way to prevent this from occurring is to somehow adjust the legal framework we are using so that it bridges the gap between civilian criminal justice (which is inadequate to the situation) and international law of POW treatment (which is inapplicable to a war with no definable end state). While Marc is correct that the problem is similar to piracy, he is flatly wrong in his claim that there exists a clear international law solution to the problem. As I am addressing in an article I am writing right now (hopefully for submission to an international law journal), piracy law has atrophied to the point that it is fundamentally incompatible with human rights treaty commitments that bind the United States and most of the rest of the countries of the world. Both international and domestic law require review and redesign to bridge the gap.

Unfortunately, those who have adopted this issue as their cause for activism (e.g. Glenn Greenwald, Kastanj) refuse to even acknowledge the dilemma and instead demand a purist civilian criminal justice approach with no modification or even discussion of the problem.

And that is what I am criticizing them for.

Jason Arvak :

1) Where there exists good evidence that the detainee was or is a member of al-Qaeda and/or would take up arms against the U.S. if released BUT the evidence obtained (by military or intelligence personnel operating in a foreign country under extreme time pressures and even under fire) does not meet the normal standards required for chain of evidence for criminal trials?

I believe Obama has backtracked on military commissions. Isn’t this type of evidence allowed there? Or is it not? Maybe not, since he even has to consider PD. Not sure if you’re talking about torture evidence or not, which I know Obama plans to ban under new military commissions.

Just asking some questions before I respond fully.

2) What about detainees where it is illegal under international law to release them to their home countries due to the threat of persecution or mistreatment?

Try them here? Seems simple to me.

The Geneva Convention is not holy writ. Rather, the rules it sets down are modern warfare’s equivalent of the Marquis de Queensbury rules of gentlemanly boxing. It would be great if they still applied.

However, modern terrorists are more like pirates of old than soldiers and deserve to be treated with the same rule – no quarter.

Finally, someone on the conservative side seems to realize that a War on Terrorism never actually ends, because there will always be terrorism.

Who on the conservative side said that the War on Terrorism will completely end or who didn’t say it would be a very long process?