Constitution & Gitmo

These days we are hearing quite a bit of political discussion regarding detainees at GITMO. On June 15 the Senate Judiciary Committee held a hearing on this topic. What follows are comments from the statement made by William Barr at that hearing.

"The United States is detaining all these individuals simply by virtue of their status as enemy combatants. The essence of war is the destruction of the enemy’s forces – either by killing them or capturing them. When the American military captures and holds hostile forces, it does not do so as a punishment or as a prelude to eventual punishment. Our purpose is to incapacitate the enemy by eliminating their forces from the battlefield. Captured enemy forces are normally detained for as long as the enemy continues the fight."

"The determination that a particular foreign person seized on the battlefield is an enemy combatant has always been recognized as a matter committed to the sound judgment of the Commander in Chief and his military forces. There has never been a requirement that our military engage in evidentiary proceedings to establish that each individual captured is, in fact, an enemy combatant. . . ."

"As to the detention of enemy combatants, World War II provides a dramatic example. During that war, we held hundreds of thousands of German and Italian prisoners in detention camps within the United States. These foreign prisoners were not charged with anything; they were not entitled to lawyers; they were not given access to U.S. courts; and the American military was not required to engage in evidentiary proceedings to establish that each was a combatant. They were held until victory was achieved, at which time they were repatriated. . . . "

It seems to me that much of the public conversation that is critical of US actions at GITMO are based upon an assumption that detainees are like people arrested in the US as suspects in crimes. Mr. Barr says this is not the case, and he also points to the experience in WWII to provide perspective. I think Mr. Barr is correct. What do you think? If Mr. Barr is not correct, then did the US make mistakes in its treatment of POWs in WWII?

"I am aware of no legal precedent that supports the proposition that foreign persons confronted by U.S. troops in the zone of battle have Fifth Amendment rights that they can assert against the American troops. . . . ."

. . . . .

"The situation is entirely different in armed conflict where the entire nation faces an external threat. In armed conflict, the body politic is not using its domestic disciplinary powers to sanction an errant member, rather it is exercising its national defense powers to neutralize the external threat and preserve the very foundation of all our civil liberties. Here the Constitution is not concerned with handicapping the government to preserve other values. Rather it is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. . . . "

It seems to me that Mr. Barr's discussion is pretty solidly within the framework of individual liberty. From the liberty perspective we want our national government to be primarily interested in protecting us from harm by people living outside our system of political economy. As such, the rights and liberties we believe we hold as individual members of the United States, are not really rights and liberties we extend to people captured in war, if for no other reason than they are not citizens of the United States and therefore they are not, in principle, parties to our "social contract." Do you agree? Or, does the framework of individual liberty suggest that our government should be taking a different approach than the approach described by Mr. Barr?