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The Bush administration is missing a golden opportunity to demonstrate to the world what the United States stands for by its apparent failure to afford minimal due process to the detainees in Guantanamo Bay (Gitmo). At worst, it is creating customary international law that could come back to haunt our own soldiers. The United States may be entirely justified in classifying the prisoners as unlawful combatants rather than prisoners of war. According to the Geneva Conventions, to be classified as a POW upon capture, one must be a “lawful combatant.” Lawful combatants are required to wear fixed insignia visible from a distance, operate under the control of a commander authorized to issue orders that must be followed, bear arms openly and comply with the law of war. Terrorists fail on at least three of these grounds and often all four. The Geneva Conventions require a process including a competent tribunal by which the determination of status of detainees is to be made. It appears we are not following that process. There are important legal considerations, including the unique status of the territory at Gitmo, whether and to what extent the Constitution applies and, if it does not, what legal rights or protections the detainees may have. The most compelling arguments in favor of affording the detainees some sort of minimal due process, however, transcend legalism. The United States is demonstrating to the world what we stand for and what the rule of law means. We need to be the greatest nation in every way, not just militarily. Greatness carries with it responsibilities and duties. Preserving and enhancing the rule of law in the world order is the only convincing rationale for our willingness to shed blood. History will record how we treat the detainees in Gitmo and will judge us by our deeds, not our rhetoric. Periodically releasing detainees without any indication of why they were released or by whom or by what standards they were judged is not sufficient; such secrecy undermines our credibility. We dare not fail in this. We need to shine a light on the process — if one exists. We must live up to our aspirations and not down to our base instincts. After all, what goes around, comes around. The administration has said that detainees will be tried by military tribunal. The president ordered tribunals, and the rules implementing them have been in place for almost two years. Yet no one has been prosecuted. Presumably, the first cases, if there are any, will be against those alleged terrorists who are the worst of the lot or against whom the prosecution has the best, most convincing cases. That is logical, but it leaves others to languish indefinitely or be released without explanation. Whether we like it or not, we are creating customary international law. More than any other nation on earth, it is important for the United States to ensure that men and women who are captured by an enemy are afforded certain rights and protections. No other nation has as many soldiers deployed as we do. Our soldiers surely will be taken prisoner in the future as they have in the past. How they will be accounted for and treated will be largely dictated by what we do, or don’t do, now. What if al-Qaida held 600 U.S. prisoners in a cave in Afghanistan now? Or if terrorists held Americans in the Iraqi desert? Would we want them to be imprisoned until the “cessation of hostilities” (as defined in the Geneva Conventions) without some sort of accounting and determination of status? Would releasing some periodically satisfy the need to know who was held and why? Having stepped down from the high ground, we are forgoing the opportunity even to argue for that. These are terrible people we’re fighting. We can’t expect them to give us any quarter, but certainly not if we give them an excuse not to. The oft-cited World War II experience is not an appropriate model. The nature of this war is different. World War II was 60 years ago — and 60 years before that the cavalry and the Indians were killing and scalping each other out West. Warfare evolves, as it should. We can’t freeze the refinement of the law of war in 1945. Some events occurred during World War II that we are not proud of now; we can’t pick and choose our precedents. At the very least, the military can explain to the world what it’s doing, what the standards are, what the process is. It can offer some level of due process satisfying the rule of law and public opinion without great difficulty. The second-best thing would be for the U.S. Supreme Court to decide that U.S. courts have jurisdiction to oversee the process and order that the administration commence hearings to determine the status of each detainee. The hearings should include fundamental due process rights such as military counsel, access to evidence and a written record. The best thing would be for the administration to start these hearings immediately without being ordered to do so by the court, with the process and standards made public. It would be at the discretion of the hearing officer whether to make the hearings themselves public. The rule of law cannot be applied only when convenient or to benefit those whom the U.S. favors. John Hutson is the dean of the Franklin Pierce Law Center.

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