Is Guantanamo legal?

Yesterday in the NYT, Morris D. Davis, an Air Force colonel and chief prosecutor for the military commissions set to try the Guantanamo inmates, defended U.S. policy and practice regarding detainees. He pointed out that they are now been held in "clean, safe" prison facilities and that the military commissions provide them with all of the basic legal rights customarily given to international war criminals.

But it is this point--that the detainees are being treated as war criminals (i.e. "unlawful combatants") rather than prisoners of war--that should give us pause. Ever since President Bush's military order on November 13, 2001, all members of al Qaida (and subsequently the Taliban) have been treated as war criminals and not POWs. The detainees are outside of international law. Although Colonel Davis cites a passage of the Geneva conventions (a passage that does not apply to POWs), the Military Commissions Act explicitly prohibits defendants from appealing to the Geneva Conventions for protection. Once designated 'unlawful' by a combat status review tribunal--the proceedings of which, as Col. Davis notes, may be classified and closed to the detainee--the detainee is no longer protected by the Geneva Conventions and is held essentially on our whim.

If Col. Davis' account of Guantanamo is right, then we have certainly fulfilled our legal obligations to these detainees. The trouble, as I see it, is that by designating them 'unlawful' we have made these obligations very light indeed. When people, even if they are not citizens, are allowed to slip through the cracks of our legal system, falling outside the scope of both international treaties and domestic law, we should begin to worry about the independence and strength of our legal system...and our republic.