Right protection


Discussion Questions: An armed terrorist from Syria is captured during a firefight with Marines in Afghanistan. Is the terrorist entitled to all the protections that are afforded to any American citizen who is being detained in a prison under control of the United States? Why or why not?


1.      The 9/11 attacks and the United States’ response have tested the U.S. Administration and its stance on humanitarian law. When it comes to issues pertaining to those captured in Afghanistan and how they should be classified and treated, the issue remains unresolved. While President Bush characterized the 9/11 attacks as acts of war, he promptly commenced a war on terror in self-defense (Sanders, n.d., p. 28). His administration later conferred prisoner of war status on the Taliban fighters and continued to classify the al Qaeda prisoners-captured fighting alongside the Taliban. Later, they were held with them in Guantanamo Bay-as “unlawful combatants.” Since then, there has been special attention given to the Geneva Conventions and the enforcement regime that grew alongside these legal instruments Sanders, n.d., p. 28). The treatment of prisoners of war under the Geneva Conventions after that created a controversy as the U.S. decided that Taliban and Al Qaeda fighters were unlawful combatants and thus not subject to the Geneva Convention’s prisoner of war (P. O. W) protections Sanders, n.d., p. 28). The U.S. also claimed that the U.S. President had the right to determine prisoners’ status and that prisoners had limited, if any, rights to challenge that classification Sanders, n.d., p. 29). The U.S. determined that any alleged terrorists would be tried before U.S. military tribunals. In response to international outcry the U.S. adjusted its position by saying that prisoners would receive almost all of the P. O. W. protections but would still be subjected to controversial forms of detention and interrogation. Therefore, the armed terrorist captured in Afghanistan would not b entitled to protections from the United States.

2. “Historically, citizenship has been thought of as the relationship of an individual to a sovereign government, encompassing the obligations of each to the other. The citizen enjoyed the protection of the government and its laws in return for his allegiance and obedience to the laws. The relationship between the state and aliens, on the other hand, was defined more in terms of obligations between the state and the alien’s home state.” (Elsea, 2014) The laws and safeguards granted to American citizens amount to a social contract between the citizens and the government. Extending this contract to individuals from other countries in times of war, does not automatically afford the individuals captured to the same protections.  Terrorists operating in foreign countries that are captured by the U.S. are not treated as citizens of the U.S., they are considered “enemy combatants”. (Americanbar.org, 2020) In this scenario, the terrorist that was captured was not from Afghanistan, and so they would not be placed into the custody of the Afghan government. As the terrorists is considered an enemy combatant, they can be detained without due process afforded to U.S. citizens. This leaves our Geneva Convention, and Human Rights obligations as the primary source of our treatment of enemy combatants which do not state that enemy combatants be given the same protections afforded to American citizens. Our obligations to foreign nationals engaged in active warfare with us overseas are outlined in international rather than domestic laws. America is obligated to “the protection against arbitrary deprivation of life” (OUNHCHR, 2008), but that does not grant any of the other freedoms and protections given to Americans. We cannot kill someone who was captured, but at the same time, we do not have to give them the full due process afforded to our own citizens.

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