The Jurisdiction of Rights Allotted to Prisoner of War
Shane Smith

Abstract
The jurisdiction and control of prisoners of war have historically been left solely to the military forces that held them captive; the application of rights and treatment being guided and controlled by various treaties and conventions signed by governments. This straightforward, conventional process was, and is, undisputable and logical in its application when it is applied in a conventional ‘civilized’ war; there is room for improvement, but it works. On the contrary, when fighting an unconventional war, with non-state sponsored combatants, the policies need to be reassessed.

The Jurisdiction of Rights Allotted to Prisoner of War
Our history shows a pattern of war making that is clearly defined, easy to follow, and reasonably undisputable: declaration of war, combat, surrender, treaties and or rebuilding. During the combat phase enemy combatant prisoners are taken, either by force or surrender, and both sides can agree that this is a better alternative to killing. With the exception of prisoner exchanges, these prisoners are held until the conflict is completed. At that time the general prisoners are released and those accused of war crimes are tried. Note that this is not policy, just a general pattern, but it works for a conventional war, a war where the losing side surrenders and both sides announce a cease fire. The problems arise when fighting an unconventional war, such as the war in Iraq.
When America declared war with Iraq in its Operation Iraqi Freedom, under the general umbrella of the Global War on Terrorism, it did not anticipate such a swift “war” followed by years of conflict with non-state sanctioned combatants. The official war in Iraq lasted approximately three weeks. That is the point in which their government was defeated and American military forces fully occupied the country, but the hostilities and fighting has continued for over five years since that date.
This issue gained an increased public awareness in the case of Boumediene v. Bush in 2008, in which prisoners held at United States’ detention camp in Guantanamo Bay, Cuba claimed that they should be granted rights under habeas corpus. Their claim was that they had been held by the Americans, some for over six years, without a trial and that they should either be tried in a court of law or released. The first of a series of habeas corpus cases were held, starting with Rasul v. Bush in June 2004 and the debate went back and forth, each time citing historical reference cases and ending with renewed acts that claimed to resolve the issue, yet none did until Boumediene v. Bush. The question to be answered is what to do with the captives from this extended conflict, and how to categorize them?. Are they prisoners of war or are they simply criminals against America? Does jurisdiction fall to the U.S. military, or do they fall under the U.S. government? How do the Iraqi government and its judicial system fit into this problem set? In this paper I will explain, or summarize, some of the referenced historical cases and the Acts enacted by the American Government in the hopes of shedding some additional light on this topic in this paper.
Johnson v. Eisentrager, 339 U.S. 763 (1950). In the case of Johnson versus Eisentrager, a situation was that German war criminals were captured in China and extradited to American detention facilities inside occupied Germany. This involved Germans that were convicted of violating laws of war by continuing hostilities after the cease fire had been ordered by the Germany government. A few points of discussion were that the Germans committed the acts after their government surrendered. Also of note was that they were being held in American facilities, which as the courts deemed were not under American jurisdiction, having stated in the case: “No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States” (Johnson). This brings to light the question that if the German Government has surrendered to the Allies, and these allies (the United States included) have occupied areas and established bases of operation, then why these areas are not considered soverenty of the individual nations? Could they not offer asylum if an individual came to their base in Germany? Are these bases not categorized the similar to embassies in foreign lands? Furthermore, the Supreme Court rulled that the “Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States”, yet neither were the acts themselves committed during a time of declared war, nor were the individuals acting in an official capacity for their government.

The Antiterrorism and Effective Death Penalty Act of 1996 is sometimes cited as a reference in the determination of habeas corpus for the prisoners held at Guantanamo Bay detention facilities due to the fact that it speaks to the granting of this right to individuals accused of terrorists acts during peace time. The issue with the applicability of this act is that it requires a determination of constitutional right to habeas before the individual can apply for a writ of habeas corpus. More specifically, to paraphrase: ‘the individual has a one-year period from the date on which the constitutional right asserted was initially recognized by the Supreme Court to apply for an application for writ of habeas corpus’ (Antiterrorism, Title 1, Sec. 101). This act does, in fact, give authority to grant trial of terrorist, but where it fails is to determine if these particular individuals fall within the jurisdiction of the United States Judicial system. What was needed next was the ability to determine the status of these prisoners, and the U.S. Government found it, partially, in the Combatant Status Review Tribunals of 2004.
The U.S. Government established the Combatant Status Review Tribunals in an effort to “to allow the detainees to contest their status as enemy combatants” (Elsea). Before this they had relied on the Third Geneva Convention guidelines, which stated that: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” (Geneva, Article 5). This set of tribunals was established to determine the category for the prisoners as enemy combatants or prisoners of war; since this was not a “traditional war” the traditional means used to determine their status may not have been applicable. In 2005 there had been 520 detainees confirmed as enemy combatants and 38 who were determined not to be enemy combatants (Elsea). Further tribunals were held in the following years to continue the process on new detainees, but it was a step in the right direction.

The Detainee Treatment Act of 2005 was enacted following the initial previous mentioned tribunals, and was to establish, not only guidelines for the tribunals, but also address the treatment of detainees. Although it set an invaluable precedence in its rules for the “prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government” and it establishment of procedures for training Iraqi forces in treatment of detainees, its verbiage toward Combatant Status Review Tribunals was more limiting. It provided more limitations by stating that “no court” shall have jurisdiction to hear a case by an alien detained by the Department of Defense at Guantanamo Bay, Cuba who is currently in military custody (Detainee).
The obvious limitations provided in the Detainee Treatment Act that met with criticism prompted, almost immediately, the Military Commisions Act of 2006. The purpose of this act was “To authorize trial by military commission for violations of the law of war, and for other purposes” (Military). When in fact all it appears to have done, in respect to habeas corpus to detainees was to reiterate, and clarify, what was originally stated in the Detainee Treatment Act by stating that no court shall have jurisdiction over an application for a writ of habeas corpus filed by an alien detained by the United States who they have determined is properly detained as an enemy combatant or is awaiting such determination (Military, Sec 7(1)). It furthermore states that no court shall hear actions relating to how the detainees are treated (Military, Sec. 7(2)). It then goes on to limit possibility of using the Geneva Convention by saying that “no person may invoke the Geneva Conventions in any habeas corpus proceedings” (Military, Sec. 5 (a)). Therefore the Military Commisions Act of 2006 appears to have done little more than state that the Department of Defense will hold commissions, and that the United States Judicial System should not play a part.
Justice Scalia, in his brief on the case of Boumediene v. Bush, stated that “all enemy combatants detained during a war” in an area over which the United States exercises absolute control “may seek a writ of habeas corpus in federal court”. At the completion of the case, five detainees were freed. Although he may have been a little optimistic in saying “during a war”, I believe he had the right idea. Traditional war has traditional rules and established procedures for dealing with detainees, this is not a traditional war. During war time the Geneva Convention gives rights and procedures, at the completion of war and the when the Iraqi Government stood up in 2005, the United States should have immediately started proceedings that included their government, much like it has done with the Afghanistan ran detention facilities. This is a subject that should be clearly defined and monitored to prevent the opposite of happening: battlefield justice. Military commanders should be educated in how important this is with an emphasis on how important it is to continue to capture, versus kill, enemy combatants.
This subject strikes home to a lot of service members that I have spoke with, because not only does it dictate how they should treat enemy detainees, but it also started the process of how American service members are handled by foreign nations. Some service members are concerned with the most recent ruling that allows them to be tried and sentenced in Iraqi courts, according to Iraqi rules for crimes they commit in their country.

References
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
Detainee Treatment Act of 2005, 109-359, 109th Congress, Report of House of Representatives.
Elsea, Jennifer K. (July 20, 2005). "Detainees at Guantanamo Bay: Report for Congress" (PDF), Congressional Research Service. Retrieved on 21 December 2008.
Geneva Convention (III) relative to the Treatment of Prisoners of War, http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument, Retrieved on 24 December 2008.
Johnson, Secretary Of Defense, Et Al. v. Eisentrager, Alias Ehrhardt, Et Al., Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit. No. 306., Argued April 17, 1950., Decided June 5, 1950.
Military Commissions Act of 2006, Public Law 109–366, 109th Congress
Rivkin, David B. and Casey, Lee A., Wall Street Journal. (Eastern edition). New York, N.Y.: Dec 6, 2007. pg. A.19