Monday, June 02, 2014


Can we step back for a minute? Isn't the whole basis rationale for people in Guantanamo is that they are "unlawful combatants" who were captured on a battlefield and not criminal defendants? While I'm not a proponent of the policy, those who are characterize the detainees as a kind of prisoner of war without the rights of a regular POW. Instead they can be held indefinitely, at the discretion of the executive branch (i.e. the President) or until all hostilities end.

But if that is true, then there would be nothing wrong with the President using them for a prisoner swap. Prisoner swaps are a normal part of war. Plus the hostilities relating to the American war in Afghanistan are (slowly) coming to an end. Normally releasing prisoners would be a part of that (John McCain, of all people, should know that. That is how he came back from Vietnam)

Critics of the swap seem to be confusing Gitmo detainees for criminals. But if they were criminals, they should have been put on trial by the criminal justice system. I realize that the Bush Administration made up the "unlawful combatant" designation specifically to make sure that the Gitmo folks are not subject to any of the ordinary rules for criminals or POWs. But in doing so, they also put the fate of that new classification squarely in the hands of the executive branch. Which means that they essentially gave Obama the discretion to do something like this if he thinks it is worth the trade.