GITMO detainees and Obama's promise

[CRGreathouse]

But, are you accusing the Guantanamo bay inmates of war crimes? Then how 'bout prosecuting them at the Hague?

This was directed at mheslep, not me, but I'd like to respond.

My concern, in particular, is for the inmates who committed criminal actions that are not classified as war crimes but would be acceptable were those inmates soldiers of a foreign nation which had declared war.

 

[SW VandeCarr]

My concern, in particular, is for the inmates who committed criminal actions that are not classified as war crimes but would be acceptable were those inmates soldiers of a foreign nation which had declared war.

My logic for what it's worth, is that if the US gov't can get its own courts to accept a much belated reclassification of some detainees as POWs, then:

1. Such POWs, by definition, would not be charged with "war crimes" assuming we determine they were behaving according to the Geneva Conventions as it applies to lawful combatants. This might include placing IEDs by roads. I don't see how this is any different than placing land mines.

2. The remaining detainees would be charged with crimes within some reasonable time allowed by the courts. This could include any violation of the Geneva Conventions for lawful combatants such as the deliberate targeting of civilians.

3, The US would follow the Geneva Conventions for POWs.

 

[nismaratwork]

Execute them summarily, put them on trial, repatriate them. It's pretty simple. If they were tortured (which seems likely), holding them longer isn't going to help matters. Personally, I think that execution would be a VERY bad idea, trial is probably not feasible, and repatriation or organized extraordinary rendition is the best option. We can't run from this one; legal or illegal we look like indecisive fools, and we need to get these people out of limbo. The issue is that none of the politicians involved want to deal with this, or the aftermath; easier to make empty promises and keep these people locked up.

 

[SW VandeCarr]

Execute them summarily

Like you say, a very bad idea.

put them on trial, repatriate them.

Yes

It's pretty simple.

If it were simple, this administration might have figured something out. The politics (national and international) and the legalities are not simple.

trial is probably not feasible

It's the only option the courts will allow for the "bad guys".

and repatriation or organized extraordinary rendition is the best option.

Repatriation for the POWs. Extraordinary rendition? That's history.

We can't run from this one

Agreed

 

[nismaratwork]

Like you say, a very bad idea.



Yes



If it were simple, this administration might have figured something out. The politics (national and international) and the legalities are not simple.



It's the only option the courts will allow for the "bad guys".



Repatriation for the POWs. Extraordinary rendition? That's history.



Agreed

We seem to agree on the simplicity of the solutions, just not the simplicity of the politics. As for ER, it may not be currently on the menu (maybe), but it can be. Perhaps Israel would be willing to handle this group of misfits... they certainly couldn't be more of a target, and they have the experience and the stomach we seem to lack.

Personally I support court for those we can make a case against, as per the laws we should have applied in the first place. That being said, if there truly are some people for whom all evidence has been compromised by torture, but proof that they could be a danger exists, then disappear them one way or the other. I can live with imperfect morals, I can live with people whom we've treated this badly and who will have intimate knowledge of our methods of interrogation going back "home".

Really, this is a problem that could have been avoided if Bush and co. had just followed the damned rules in the first place; they made THEIR lives easier at the price of dumping this in the lap of this administration.

 

[SW VandeCarr]

Perhaps Israel would be willing to handle this group of misfits.

I thought about this. It's another possibility, but I think it would be abusing an ally which has plenty of problems without this one.

Really, this is a problem that could have been avoided if Bush and co. had just followed the damned rules in the first place; they made THEIR lives easier at the price of dumping this in the lap of this administration.

Agreed.

 

[mheslep]

Really, this is a problem that could have been avoided if Bush and co. had just followed the damned rules in the first place;

Sounds so simple. And what should have been done with the majority of detainees instead? Sent them all to Article 3 courts?

they made THEIR lives easier at the price of dumping this in the lap of this administration.

The Bush administration made its life easy by setting up GITMO?

I believe current administration has political problems with GITMO because it made sophomoric and naive claims and comments about it during the campaign.

 

[Gokul43201]

Let me explain the scenario I'm speaking to.

1. A person sets an IED in Afghanistan which kills some people.
2. The person is captured.
2a. The person is declared a POW.
3. Hostilities end in Afghanistan; the US leaves.

In the absence of #2a, the person can be imprisoned for his actions in #1. With #2a he cannot be held past #3 except in special circumstances: his participation in #1 is as an enemy soldier, not as a criminal.

Do you think that setting off an IED should qualify this person as a criminal?

 

[CRGreathouse]

My logic for what it's worth, is that if the US gov't can get its own courts to accept a much belated reclassification of some detainees as POWs, then:

1. Such POWs, by definition, would not be charged with "war crimes" assuming we determine they were behaving according to the Geneva Conventions as it applies to lawful combatants. This might include placing IEDs by roads. I don't see how this is any different than placing land mines.

2. The remaining detainees would be charged with crimes within some reasonable time allowed by the courts. This could include any violation of the Geneva Conventions for lawful combatants such as the deliberate targeting of civilians.

3, The US would follow the Geneva Conventions for POWs.

So at the conclusion of hostilities, we would release those detainees who ("just") set IEDs and shot at US/coalition forces?

 

[CRGreathouse]

Do you think that setting off an IED should qualify this person as a criminal?

Not if they're Geneva Convention POWs, no. That's why I oppose such classification.

If I shot a US soldier, I would be a criminal. But if I was a solider of a nation declaring war on the US and a shot a US soldier, I would *not* be a criminal, merely an enemy combatant. During hostilities I could be detained indefinitely by the US if captured, but at the end of hostilities I would be repatriated (because I did nothing wrong -- I was just acting as a soldier).

 

[nismaratwork]

Sounds so simple. And what should have been done with the majority of detainees instead? Sent them all to Article 3 courts?

The Bush administration made its life easy by setting up GITMO?

I believe current administration has political problems with GITMO because it made sophomoric and naive claims and comments about it during the campaign.

I believe I've already outlined all of the possible options, from death to questionable practices. You're entitled to your (implicit) opinion that the Bush administration somehow made their lives complex with GITMO, but I don't believe that was their intent; they wished to shove people away, and torture them for info. The downside is the resulting legal limbo, and evidence poisoned by questionable means of interrogation makes trial a difficult option. Certainly Obama made outlandish promises during his campaign, which only fools or the truly optimistic could have believed, but that's not my concern here. This only tells us that two administrations have failed in the proper dispensation of justice for a few hundred idiots.

SW VandeCarr: I know what you mean about using Israel harshly, but they might be willing, and after all it is a reciprocal relationship.

 

[CRGreathouse]

Certainly Obama made outlandish promises during his campaign, which only fools or the truly optimistic could have believed

I'm glad you left me an 'out' there.

 

[SW VandeCarr]

So at the conclusion of hostilities, we would release those detainees who ("just") set IEDs and shot at US/coalition forces?

Yes. We've no doubt already released many fighters who engaged in hostile actions against US forces in Afghanistan during the initial invasion in Nov-Dec 2001. Remember, the Taliban controlled most of the country and had been the effective government since about 1996. While I feel the US was justified in invading, I would hardly expect that Taliban fighters would not resist.

There were many foreign fighters involved in addition to the Taliban. I would have focused on them as likely al-Qaida fighters or supporters. They would have been easy to identify. The Afghan Taliban spoke Pashtun while most of the al-Qaida fighters spoke Arabic.

Finally, the "end of hostilities" need not coincide with any future withdrawal of US forces from Afghanistan. Our enemy is al-Qaida. I suspect this is a generational conflict at least.

 

[Gokul43201]

So at the conclusion of hostilities, we would release those detainees who ("just") set IEDs and shot at US/coalition forces?

Yes we should. Is that not the moral thing to do?

 

[TheStatutoryApe]

My logic for what it's worth, is that if the US gov't can get its own courts to accept a much belated reclassification of some detainees as POWs, then:

1. Such POWs, by definition, would not be charged with "war crimes" assuming we determine they were behaving according to the Geneva Conventions as it applies to lawful combatants. This might include placing IEDs by roads. I don't see how this is any different than placing land mines.

2. The remaining detainees would be charged with crimes within some reasonable time allowed by the courts. This could include any violation of the Geneva Conventions for lawful combatants such as the deliberate targeting of civilians.

3, The US would follow the Geneva Conventions for POWs.

Theoretically, according to the GC, all persons detained by a party to a conflict are to be treated with the same care as any POW. They are then to be brought before a tribunal and their status determined. The US decided that this was not a conventional war, that their enemies in the conflict are not conventional soldiers, and so the GC does not apply (this is just a simplification, before anyone decides to jump on me about it).

Even accepting that the GC does not apply and that these detainees are not POWs this only means that the US may now do what ever they choose with them (more or less). If the US decides to release them then they may do so. If the US decides to send them to trial they may do so. The effect of the GC, or a POW status, is only to limit what the US may do with them. It is not necessary to rely upon the GC in order to have any particular options at the US's disposal.

The problem that the US has been running into, as already noted a couple times now, is where to send them if they are released since apparently their native countries do not want them. Their classification is irrelevant.

edit: sorry, responded to the wrong person, fixed

 

[nismaratwork]

I'm glad you left me an 'out' there.

It's not a crime to hope, nor is it stupid; it's a real out. Besides, I tend to become harsh in my rhetoric... it's not your fault that our leaders constantly fail us, or that a Democratic congress would be paralyzed by their own incompetence and fear... which is NOT Obama's fault.

Gokul43201: There's moral, and there's practical. Part of the notion of releasing PoWs is that when the war is over, their role in continuing hostile acts ends as well. If we have people laying mines in Vietnam, when we take them out of Vietnam, they don't go back to that activity of their own accord. In this case, it may well be that you release an individual who assembled and/or placed IEDs can return to that hostile activity. Wars since WWII have been so abnormal and protracted, (hopefully) culminating in this cluster****. The fact is that we still have troops in Iraq (50,000 "advisers") and a war in Afghanistan... how do we repatriate potential combatants when the hostilities have not ended?

 

[alt]

We have no choice but to keep them there. We don't want them to be here.

Problem is we worry too much what other country think. Most of the world hate us because we are strong and our hesitation in various wars since WWII. Every war since WWII, we fight with our hands tided, hesitate to commit. We were so eager to get into a war, but after getting into the war, then we got cold feet, engaging in all the nation building. As a result, a lot of people there got killed……together with our soldiers.

Why are we so worry about how other country think of us, we just have to do whatever it works for us. The important thing is our interest.

The important thing is our interest

By that measure, the important thing to them is their interest.

It then reduces to 'might is right'

 

[nismaratwork]

The important thing is our interest

By that measure, the important thing to them is their interest.

It then reduces to 'might is right'

That sounds like war to me...

 

[SW VandeCarr]

Theoretically, according to the GC, all persons detained by a party to a conflict are to be treated with the same care as any POW. They are then to be brought before a tribunal and their status determined. The US decided that this was not a conventional war, that their enemies in the conflict are not conventional soldiers, and so the GC does not apply (this is just a simplification, before anyone decides to jump on me about it).

OK. I don't know if you're a lawyer, but your username is suggestive. The US Supreme Court has ruled three times on this, most recently in 2008. The detainees have a right to counsel and cannot be held indefinitely without charges.

http://www.msnbc.msn.com/id/25117953/

So what do we do? I thought that by classifying some detainees as POWs we could be hold them until the "end of hostilities"; a point in time which we define. (see my previous post #48). The US needs to find a way to charge the worst of them or I'm afraid the courts will order them released.

As for formal declarations of war, I discuss this in post 23. Since the adoption of the UN Charter in 1946, countries don't declare war on each other any more.

http://pediaview.com/openpedia/Declaration_of_war

 

[TheStatutoryApe]

OK. I don't know if you're a lawyer, but your username is suggestive. The US Supreme Court has ruled three times on this, most recently in 2008. The detainees have a right to counsel and cannot be held indefinitely without charges.

http://www.msnbc.msn.com/id/25117953/

So what do we do? I thought that by classifying some detainees as POWs we could be hold them until the "end of hostilities"; a point in time which we define. (see my previous post #48). The US needs to find a way to charge the worst of them or I'm afraid the courts will order them released.

As for formal declarations of war, I discuss this in post 23. Since the adoption of the UN Charter in 1946, countries don't declare war on each other any more.

http://pediaview.com/openpedia/Declaration_of_war

I am not a lawyer, I just find law interesting. If you would like any sources on any claims I make feel free to ask. The only knowledge I have of the GC comes straight from the document itself and it is freely available and easy to find.

I have read about the USSC decision. Unfortunately the USSC has no teeth, they have no ability to actually enforce their decisions. It makes a decision and it is up to federal or state legislators to actually do something about it. Technically the executive and legislative branches can ignore the Supreme Court if they choose. This is dangerous in a way though and probably why their decision did not include any remedial measures, perhaps concerned about the precedent of Supreme Court instructions being ignored.

Note that I do not agree with the stance that the Guantanamo detainees do not qualify for protection under the GC. We've had that discussion a couple times now and I did not wish to restart it.

 

[alt]

That sounds like war to me...

Indeed !

'Only the dead have seen an end to war' - Plato.

Has the world been without war before or since ? Now ?

All our sophistication is sophisty, we're still living under the barrel of a gun, and might IS right, it seems.

 

[brainstorm]

Both these posts harken back to the globalization/nationalism issues that led to the war on terror in the first place (I mean prior to the 9-11 attacks). The geneva laws are touted but from my limited knowledge of them, they seem to be geared toward organized, bounded national territories which are supposed to act as containers for liberated combatants once peace between nations is declared. How does this logic work in a world where freedom of movement is supposed to be normal and democracy promotes plural decentralized global political interests?

If I shot a US soldier, I would be a criminal. But if I was a solider of a nation declaring war on the US and a shot a US soldier, I would *not* be a criminal, merely an enemy combatant. During hostilities I could be detained indefinitely by the US if captured, but at the end of hostilities I would be repatriated (because I did nothing wrong -- I was just acting as a soldier).

Why does violence classified as part of a war conflict call for different punishment than civil insurrection? I understand the logic as a matter of tradition, but on the other hand I don't see why all violence shouldn't be policed equally. Is it good to designate war zones where reduced penalties for violence and crime are allowed so that people can express their conflicts in relative impunity?

Gokul43201: There's moral, and there's practical. Part of the notion of releasing PoWs is that when the war is over, their role in continuing hostile acts ends as well. If we have people laying mines in Vietnam, when we take them out of Vietnam, they don't go back to that activity of their own accord. In this case, it may well be that you release an individual who assembled and/or placed IEDs can return to that hostile activity. Wars since WWII have been so abnormal and protracted, (hopefully) culminating in this cluster****. The fact is that we still have troops in Iraq (50,000 "advisers") and a war in Afghanistan... how do we repatriate potential combatants when the hostilities have not ended?

This makes sense according to the logic that wars are temporary, contained conflicts between/among organized factions and that once the war is declared finished, the individuals involved do not maintain hostilities and the potential for future conflicts. In reality, this is not how conflicts occur. People surrender to cut their losses but plan and exercise resistance to the "winner" and potentially re-initiate war later or engage in covert guerilla-type activities or even just propaganda/harassment by civil means.

Why do people live in hate and insurrection against each other? And isn't there some way to police them when they do without killing them or containing them behind securitized borders, whether it is a prison or closed national regions?

 

[nismaratwork]

Indeed !

'Only the dead have seen an end to war' - Plato.

Has the world been without war before or since ? Now ?

All our sophistication is sophisty, we're still living under the barrel of a gun, and might IS right, it seems.

It's just a matter of which end of the barrel a given people are at, and when. It's not pretty, and it gives us a reason to aspire to something more, but history seems to indicate that we shouldn't hope to much...

 

[nismaratwork]

Both these posts harken back to the globalization/nationalism issues that led to the war on terror in the first place (I mean prior to the 9-11 attacks). The geneva laws are touted but from my limited knowledge of them, they seem to be geared toward organized, bounded national territories which are supposed to act as containers for liberated combatants once peace between nations is declared. How does this logic work in a world where freedom of movement is supposed to be normal and democracy promotes plural decentralized global political interests?


Why does violence classified as part of a war conflict call for different punishment than civil insurrection? I understand the logic as a matter of tradition, but on the other hand I don't see why all violence shouldn't be policed equally. Is it good to designate war zones where reduced penalties for violence and crime are allowed so that people can express their conflicts in relative impunity?


This makes sense according to the logic that wars are temporary, contained conflicts between/among organized factions and that once the war is declared finished, the individuals involved do not maintain hostilities and the potential for future conflicts. In reality, this is not how conflicts occur. People surrender to cut their losses but plan and exercise resistance to the "winner" and potentially re-initiate war later or engage in covert guerilla-type activities or even just propaganda/harassment by civil means.

Why do people live in hate and insurrection against each other? And isn't there some way to police them when they do without killing them or containing them behind securitized borders, whether it is a prison or closed national regions?

I don't know Brainstorm, if I had an answer to that question I'd be accepting my Nobel. You make a great point... and in history insurrection has only been successfully met with overwhelming and nearly indiscriminate force (decimation for instance). Conversion or destruction of a people is no longer tolerated, but that is the cure for insurrection. I'm not advocating this, just taking some lessons from history.

 

[mheslep]

[...] Conversion or destruction of a people is no longer tolerated, but that is the cure for insurrection. I'm not advocating this, just taking some lessons from history.

Really? N. Ireland and Iraq come to mind - examples of successful defeats of insurrection that did not require destruction of a people. The US at least has detailed http://en.wikipedia.org/wiki/Counter-insurgency" processes in place now: take, hold, build, using X troops per unit of native population, etc. Seems to be at least a rationale alternative, if not a proven guarantee for defeating insurgencies.

 

[SW VandeCarr]

I have read about the USSC decision. Unfortunately the USSC has no teeth, they have no ability to actually enforce their decisions. It makes a decision and it is up to federal or state legislators to actually do something about it. Technically the executive and legislative branches can ignore the Supreme Court if they choose. This is dangerous in a way though and probably why their decision did not include any remedial measures, perhaps concerned about the precedent of Supreme Court instructions being ignored.

Hmmm. Richard Nixon famously said "When the President does it, that means that it is not illegal."



Of course NIxon went down in flames; the only US president to resign in the face of virtually certain conviction by the Senate. The US is a nation of laws and if a suit is brought which leads to a release order by a federal court, how will Obama handle it? How should he handle it? Obey? Ignore it? Stall with appeals? Take a vacation?

Yes, the US Constitution is just a piece of paper (figuratively). As Commander in Chief, the President could surround the Capitol with tanks and order Congress to disband in Cromwellian fashion. He could lock the USSC justices in the Justices' Washroom of the Supreme Court building and proclaim himself to be the Supreme Decider. It has happened before in many other countries.

As far as I know, only one president openly defied the USSC and got away with it; Andrew Jackson. Of course, his action only affected Native Americans, so no one (who counted) cared.

 

[brainstorm]

I don't know Brainstorm, if I had an answer to that question I'd be accepting my Nobel. You make a great point... and in history insurrection has only been successfully met with overwhelming and nearly indiscriminate force (decimation for instance). Conversion or destruction of a people is no longer tolerated, but that is the cure for insurrection. I'm not advocating this, just taking some lessons from history.

Unfortunately, insurrection often resorts to the same intensity of force. The question is what is needed to bring democratic discourse and empowerment to a level that potential insurgents would feel it was worthwhile to pursue their politics by democratic means? Ideally, global democracy should be able to accommodate all reasonable interests - but how much of global 'democratic' discourse is devoted to repression and coercion of other views and interests, and what do you do when that escalates to insurrection and/or war except fight fire with fire?

 

[CRGreathouse]

Yes we should. Is that not the moral thing to do?

No, I think they should be treated like criminals for so doing: sentenced to an appropriate term in prison (minus time served, of course). I'm slightly surprised you feel they should be released without having served that time.

 

[CRGreathouse]

There were many foreign fighters involved in addition to the Taliban. I would have focused on them as likely al-Qaida fighters or supporters. They would have been easy to identify. The Afghan Taliban spoke Pashtun while most of the al-Qaida fighters spoke Arabic.

But you would release these foreign fighters at the end of hostilities, yes? You wouldn't charge them with crimes, try them, and have them sentenced?

 

[nismaratwork]

Really? N. Ireland and Iraq come to mind - examples of successful defeats of insurrection that did not require destruction of a people. The US at least has detailed http://en.wikipedia.org/wiki/Counter-insurgency" processes in place now: take, hold, build, using X troops per unit of native population, etc. Seems to be at least a rationale alternative, if not a proven guarantee for defeating insurgencies.

3 kids were just killed in NI, and Iraq is in chaos and likely to remain so. Your point?

 

[SW VandeCarr]

But you would release these foreign fighters at the end of hostilities, yes? You wouldn't charge them with crimes, try them, and have them sentenced?

I left an out for myself in that I don't define the end of hostilities with foreign fighters as the withdrawal of coalition troops from Afghanistan. Foreign fighters are more likely to be al-Qaida operatives or supporters. When do hostilities end with al-Qaida?

Afghan Taliban fighters were recruited or drafted from the local population. I would expect them to resist an invasion of their country. I would hold Mullah Omar and other Taliban leaders responsible because they chose to protect al-Qaida, but Afghan Taliban fighters were most likely just following orders or acting out of patriotism or local self-interest.

Foreign fighters chose to come to Afghanistan. Why? Most likely to train with al-Qaida. Obviously these assumptions need to be backed by some evidence, but I think we could hold these fighters indefinitely. I would put the onus on them to explain why they were in Afghanistan where Osama-bin-Laden had set up his headquarters and training camps. As POWs, they could not be interrogated but they could be rewarded for information implicating others. In any case, I'm sure we've gotten all we can from "enhanced" interrogation.

In summary. focus on the foreign fighters. Charge who we can and hold the rest indefinitely unless evidence is developed to support guilt or innocence. Not much evidence is needed to charge them. To me, just being a foreigner fighting US forces in Afghanistan in 2001 is enough. For Afghan Taliban fighters, I'm inclined toward early repatriation unless specific evidence exists to try them.

 

[CRGreathouse]

In summary. focus on the foreign fighters. Charge who we can and hold the rest indefinitely unless evidence is developed to support guilt or innocence. For Afghan Taliban fighters, I'm inclined toward early repatriation unless specific evidence exists to try them.

I have no issue with this, but I'm not convinced it's germane. We might very well wish to repatriate them before an end to hostilities.

I left an out for myself in that I don't define the end of hostilities as the withdrawal of troops from Afghanistan for foreign fighters. They are more likely to be al-Qaida operatives or supporters. When do hostilities end with al-Qaida?

Let's say we were really lucky and they ended tomorrow. Would we want to release captured al-Qaida operatives? I would say no, and as a result I don't want to label them POWs. They should be treated like criminals, not soldiers: membership alone would merit little or no penalty (unlike POWs, for whom simply being a member of enemy forces can mean detention until the end of hostilities), while court-proven guilt means imprisonment until the sentence is served (unlike POWs, who are repatriated at the end of hostilities).

 

[mheslep]

3 kids were just killed in NI, and Iraq is in chaos and likely to remain so. Your point?

Your https://www.physicsforums.com/showpost.php?p=2852632&postcount=59", if I understand it, was that a "destruction of a people" is "the cure for insurrection" which sounded to me like something born of too many readings of Gibbon's Decline and Fall. I suggested that is counter to most modern observations of insurrection warfare, thinking we might have some reasonably similar definition of what constitutes such; for me destruction is something close to a genocide, like Rwanda in 1994, the Sudan more recently, Cambodia under Pol Pot, but no not 3 kids killed in NI last month

What's the basis for saying Iraq is 1) in 'chaos', and 2) likely to remain so? Because Iraq's parliament hasn't formed a government? For comparison, the violent fatality rate in Iraq is about twice that of the homicide rate in the US which is tragic, but not what I would call chaos. Pakistan, with the floods, is in chaos. Somalia, rampaged by the psychopathic Ali Mohadum 'Rage' and populated by pirates, is in chaos. Or at least those are the conditions for which I reserve the term.

 

[SW VandeCarr]

I have no issue with this, but I'm not convinced it's germane. We might very well wish to repatriate them before an end to hostilities.

This choice is available. However, as POWs we can hold them indefinitely. I don't see the end of hostilities with al-Qaida and their allies anytime soon. If we do charge them, the right to a "speedy trial" amendment comes into play.

EDIT: To be clear, classification as a POW doesn't foreclose filing charges in the future if new evidence comes to light.

Let's say we were really lucky and they ended tomorrow. Would we want to release captured al-Qaida operatives?

No we would not. However, the possibility of an end to hostilities with the al-Qaida network in the foreseeable future is so remote, it's not worth considering now. They remain active in Iraq, and are expanding into Yemen and Somalia. If such a miracle were to occur, who can anticipate what the terms and conditions of peace might be?

 

[CRGreathouse]

No we would not. However, the possibility of an end to hostilities with the al-Qaida network in the foreseeable future is so remote, it's not worth considering now.

I'm speaking to the correct classification of those captured, which should not be based on the likelihood of military success.

EDIT: To be clear, classification as a POW doesn't foreclose filing charges in the future if new evidence comes to light.

I'm considering the (presumably common) case where conduct of the captured persons was impermissible under ordinary circumstances but permissible if they were waging declared war on the US. Examples: setting bombs and shooting soldiers. If I did either I would be jailed, but if the Duchy of Grand Fenwick declares war on the US and shoots a US soldier, then at the conclusion of hostilities the Duchy soldier would not be liable for that conduct (as the nations were at war).I'm quite honestly stunned that there's any debate on this matter. Perhaps I fail to communicate my point adequately, or perhaps there is some subtlety I miss...?