There is much noise out there in this interweb thingie reference the pending closure of Club Gitmo and the campers currently vacationing on the American taxpayer's dime.
Lets start at the beginning. The enemies of the west (the United States) have conducted operations against US interests at home and overseas for decades. Just because one side is slow to pick up on the clues does not change the fact that a defacto state of war has been in effect. Sense 2001, the left in this country has been all pissie when "all of the sudden" the Commander In Chief of the Armed Forces of the United States of America goes before the Congress of the United States and requests formal authorization. The Congress authorized the use of force. Apparently, The democrats in the Congress did not think that the POTUS would exercise that authority (although POTUS already had congressional authority to use force, given to the last administration).
So, in response to the attack of 11 Sept, 2001, POTUS ordered up a large can of woop ass opened up on the piles of human wreckage the was fingered as the ones responsible.
The Taliban falls as a government in 3 weeks. The US put less than 15,000 sets of boots on the ground for that little party.
That little bag of camel shit in Baghdad was giving the world the finger for the last 10 years. Refusing to live up to it's Cease Fire obligations. TO wit, fully account for all WMD. He did not. HE paid the price for the games that he played. Remember that the 42’nd POTUS allowed the Baghdad punk to act like a spoiled brat by failing to comply with the cease-fire agreement of 1991. This is the reason that you will find it difficult to negotiate with instable leaders of countries hostile to the interests of the United States.
Now on to the meat.
The 225 or so piles of “human” wreckage have a problem. Are they or are they not EPW’s as defined by international treaty. That will depend on who you ask and the details of the manner of how the person comes to be in the custody of the US Military. For the most practical reasons, US forces in the field are trained to treat by default all persons captured/detained in the theater of operations (battle field) as EPW’s (enemy prisoner of war). The guy at the vary point of the spear doesn’t have to time to sort all the different treaty classifications of persons that are found on the battlefield. We have been trained to use the 5 “S’s” search, silence, segregate, safeguard and speed. We are also trained to treat all captured or detained persons as EPW’s. It is not up to the capturing element to make that determination as to their status according to the law of war. That’s the job of the MI/MP unit that runs the PW collection point.
Like I said, we use the 5 S’s
Search – Search the captured person to insure that there is no weapons or any other item of intelligence importance. All items removed from the PW are to be tagged with the date/time and location of capture, capturing unit and evacuated though the S-2 chain. All items of a purely personal nature are to be returned to the person. The PW is to retain any personal safety equipment (helmet, protective mask).
Segregate – Separate captured persons (enlisted/NCO/Officer, male/female)
Silence – keep them quiet. Do not allow them to talk amongst themselves.
Safeguard – The capturing power is now responsible for the personal safety of the PW. Do not allow anyone to harm, harass, or otherwise injure the PW.
Speed – Evacuate the PW to the PW collection point ASAP.
See, at the pointy end of the stick, the options available for the classification of the captured person is zero. Any person grabbed is treated as a EPW the people higher will sort it out at their leisure.
Now, moving right along, when the EPW arrives at the PW collection point, usually at the brigade trains, they are further sorted, initial interviews conducted personal classified and the other treaty required actions are taken care of.
Under international law, (an interesting concept) over time rules of the ‘game’ have evolved to keep the confusion to a minimum. One set of rules is what makes up an ‘authorized player’. Lets go look at the generally recognized rulebook – the Geneva/Hague conventions:
Likewise, there are rules that make a ‘civilian’ into a person deserving of the protections of the above provided they comply with the following:
So, to be on the battlefield is not always a bad thing as long as the rules are followed. Break the rules and things can go very poorly for you if captured by the other side. Set the way back machine to 1945-1946. The city of Nuremburg. It’s post war Germany. The allies are in a foul mood and decided that the persons responsible for certain acts are to be called to account. So trials were set up, held, evidence heard, judgments rendered. Some acquitted, most were convicted. Those convicted were sentenced to long prison terms or to hang by the neck for the crimes that they were convicted of.
So we now have the stage set for the 21st century replay of the military tribunals. The persons (loose definition) being detained at Gitmo were to be tried by duly authorized military tribunals based on the detaining power (US) rights and duty under the laws of war.
According to treaty, any non-military person who violates any portion of the relevant provisions are subject to trial and be sentenced to up to and including death.
There is no ambiguity in this point of the LAW of WAR.