Popular right-wing news site proposes executing Guantánamo detainees, which would be quite illegal

A legal expert says National Review's Kevin D. Williamson's argument "is absolutely wrong" and has no basis in law

Published February 26, 2016 9:30PM (EST)

  (Reuters/Shane T. McCoy)
(Reuters/Shane T. McCoy)

"Why not shoot them?" asks prominent right-wing magazine National Review, in an article proposing that the U.S. government execute Guantánamo detainees instead of transferring them.

President Obama issued a new plan this week for closing the U.S. prison at Guantánamo Bay. In lieu of spending time and energy working on transferring the remaining 91 detainees, National Review proposes that it would be both legal and moral for the government to simply kill them and get it over with.

The problem is this would be very illegal — not to mention immoral. A legal expert told Salon the argument "is absolutely wrong" and has no basis in law.

Author Kevin D. Williamson begins his article correctly pointing out that Obama has expanded the drone assassination program "to include the extrajudicial execution, i.e., murder, of U.S. citizens" — namely Anwar al-Awlaki and his 16-year-old son Abdulrahman al-Awlaki.

The ultimate irony, and paradox, in Williamson's argument, however, is that he (rightfully) chastises the Obama administration for executing U.S. citizens without trial, yet simultaneously openly defends mass extrajudicial execution of scores of people whom the government is holding in indefinite detention.

This is the reality of the situation, a reality Williamson completely fails to acknowledge: very few of the people detained in Guantánamo have faced due process for their alleged crimes.

National Review claims the prison is "currently home to 91 sundry villains captured abroad during our ongoing national confrontation with the forces of radical Islam," while ignoring the fact that, since the prison was opened in January 2002, almost 90 percent of the approximately 780 detainees who have been held in it have been transferred, including just under 540 by the Bush administration alone.

Also unacknowledged is the fact that roughly 86 percent of the detainees who have gone through the Periodic Review Board process (which is still not a trial, but rather an administrative process run by the U.S. military) have been approved for transfer.

Williamson — who asks "Why not shoot them?" four times in the article (five if you consider the headline) and proposes "the relatively straightforward expedient of shooting them" — appears to believe that it is okay to carry out extrajudicial executions against non-U.S. citizens, and that it is only U.S. citizens who deserve the right to due process.

In order to justify his own defense of extrajudicial execution, Williamson takes a jab at interpreting international law — and greatly distorts it in the process.

Salon reached out to a legal expert, who explained that Williamson's argument has no merit whatsoever.

"Any claim that international law permits the summary execution of Guantánamo detainees or anyone else is absolutely wrong," said Wells Dixon, a Center for Constitutional Rights senior staff attorney who specializes in challenging unlawful detentions at Guantánamo.

In his piece, Williamson argues that the "prisoners held at Gitmo are, for the most part, what is known under international law as 'francs-tireurs,' non-uniformed militiamen who conduct sabotage and terrorism operations against occupation forces."

He cites "Article 4 of the Geneva Conventions," which he says stipulates that "fighters eligible for the protections extended to prisoners of war are obliged to meet several criteria, including the wearing of uniforms or fixed insignia and — here's the rub for the Islamic State et al. — conducting their operations in accordance with the laws and customs of war."

"Non-uniformed militiamen and insurgents sawing the heads off of Wall Street Journal reporters do not qualify for Geneva Convention protections," Williamson writes. "They are, under the applicable international law, subject to summary execution, as are captured spies, terrorists, and the like."

For starters, Williamson's attempt to conflate ISIS with Guantánamo is a clever trick, but is ultimately dishonest. The U.S. prison at Guantánamo was opened in January 2002, and was most active under the Bush administration. The extremist group that calls itself the Islamic State, on the other hand, has only existed since early 2014.

Moreover, once again, Williamson fails to grasp the basics of the international law he's citing, the Center for Constitutional Rights expert explained.

"The 'Article 4 of the Geneva Conventions' referred to by Williamson is evidently a reference to Article 4 of the Third Geneva Convention, which is the article that dictates whether someone is entitled to be treated as prisoner of war," Dixon told Salon. "There is also a Fourth Geneva Convention, which applies automatically by default to anyone who is not given prisoner-of-war status under the Third Geneva Convention."

"It's binary; upon capture you're either a POW under the Third Geneva Convention or you're a protected person (civilian) under the Fourth Geneva Convention," Dixon continued. "Civilians can be prosecuted criminally for things like sabotage and terrorism, but not summarily executed."

Dixon furthermore pointed out that "the Third and Fourth Geneva Conventions only apply in the context of 'international armed conflict,' which is basically nation-states fighting each other (think U.S. v. Germany)."

"The other kind of armed conflict, referred to as 'non-international armed conflict,' applies to conflicts not between nation-states (think the conflict with al-Qaeda)," the attorney added. "The Supreme Court has said that the conflict with al-Qaeda is non-international in nature, and the Obama administration has conceded as much."

"This matters because the only provision of the Third and Fourth Geneva Conventions that applies in non-international armed conflict is Common Article 3 (so-called because it is the same across all four of the Geneva Conventions)," Dixon said. Common Article 3 states:

"In the case of armed conflict not of an international character... Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely... To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons... violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

Dixon concluded noting that the "idea that there is a category of detainee not entitled to the protections of the Geneva Conventions or other international law died with the Bush Administration and John Yoo," the latter of whom, as deputy assistant attorney general, crafted the legal argument for Bush's so-called War on Terror, and authored the infamous "Torture Memos."

Besides, "not even they claimed that Guantánamo detainees could be summarily executed," Dixon added.

The Center for Constitutional Rights lawyer noted that he is critical of the Obama administration's new plan to close Guantánamo, which he said "is not sufficient to actually achieve closure" and really proposes "nothing new."

Calling National Review's article "irresponsible," Dixon also criticized Obama for failing to take action on U.S. government crimes.

"Unfortunately, these sorts of irresponsible statements are a direct consequence of the administration’s failure to ensure accountability for CIA torture and other war crimes," he said.

By Ben Norton

Ben Norton is a politics reporter and staff writer at AlterNet. You can find him on Twitter at @BenjaminNorton.

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