Closing Guantanamo Bay: Uh, How Is This Going To Transpire?

[DMark]

Glad to hear Obama is planning on closing Guantanamo, but will be interested in seeing exactly how that transpires. I mean, even a totally innocent accountant will be a wild-eyed. maniac terrorist by now...and could you blame him?
Maybe invite them to the White House for dinner, give them a severance check and let them have a few virgins in the Lincoln bedroom?
Not quite sure how to release someone after that horror...have them swallow a GPS chip?
Make them free Americans but not give them a passport for 30 years?
The mind boggles.

[Alex_Dubinsky]

Put them in another prison that's not called "Guantanamo."

Preferrably in a country that is more ironic than Cuba.

[Richard Parker]

There are a lot of ways it could go. The plausible options look something like this, for each detainee:

a) Release to their home country
b) Release them to some third-party country
c) Try them in US criminal court
d) Try them in a new special tribunal
e) Send them to a different US prison abroad (e.g. Iraq/Afghanistan/Poland)
f) Attempt to detain indefinitely inside US without trial

Some detainees will no doubt get (a), (b), or (c). It is, among other things, strategically foolish to go for (d). It both fails to remedy the image problem and the ethical/legal problem. People will languish in detention for another near-decade while the new system gets challenged, and it will not be seen as legitimate anyway. Option (e) suffers from similar failings. It solves the immediate image problem, but people will pretty rapidly figure out that we've merely substituted one gulag for another. It also isn't clear how long-term that solution would be, given the state of things in Iraq and Afghanistan. My guess is that a small handful of detainees for whom (a), (b), & (c) are not options might be sent to other military prisons until something changes, but not in any significant number. Option (f) is probably legally infeasible, suffers many of the drawbacks of (d) and (e), and Obama has explicitly ruled it out.

I think Obama will be politically and legally compelled to go with some combination of (a), (b), & (c). I also think that, security-wise, it's sort of a clusterfuck no matter what. But keep in mind that lots of people who are intimately angry at the US do not become terrorists. Plenty of men have been wrongly imprisoned for decades because of the intentional or negiigent acts of prosecutors/police, and they tend to be angry, but happy for their freedom. Civilian prisons are not Gitmo, but they're no cakewalk either.

The calculus has to be that even if we release a lot of potential terrorists--either because we've radicalized them or because they wanted to harm us to begin with--the departure from American principles that Guantanamo represents is a greater threat to our security than releasing the inmates. The War on Terror is as much about hearts and minds as anything else (as Iraq/Abu Ghraib has clearly shown), and ultimately about the perception of the US among potential jihadists. Maybe it's too late to unspill that milk, but I think that far more than a few hundred people are radicalized by the ongoing US detention of men--some of whom are likely innocent--without trial.

[Magiver]

Put them in another prison that's not called "Guantanamo."

Preferrably in a country that is more ironic than Cuba. That would qualify as change.

[Euphonious Polemic]

There are a lot of ways it could go. The plausible options look something like this, for each detainee:

a) Release to their home country
b) Release them to some third-party country
c) Try them in US criminal court
d) Try them in a new special tribunal
e) Send them to a different US prison abroad (e.g. Iraq/Afghanistan/Poland)
f) Attempt to detain indefinitely inside US without trial



What about the 17 Uighur detainees?
a) home country (China) is likely to torture or execute them
b) no third party country wants them (it would irritate China)
c) The US has pretty much admitted that they have committed no crime
d) see above
e) and f) no Justice with either of these!

[Richard Parker]

Indeed.

Perhaps we will persuade a third-party country to take them. The right thing to do would be to parole them in the US until we find a country that will take them. That might even allow them to claim asylum, which would have lower political consequences than simply giving them US citizenship.

[Euphonious Polemic]

Indeed.

Perhaps we will persuade a third-party country to take them. The right thing to do would be to parole them in the US until we find a country that will take them. That might even allow them to claim asylum, which would have lower political consequences than simply giving them US citizenship.

Trouble is, I can visualize China (via some back-door diplomacy), saying to the potential third party country in effect:

"That's a lovely currency you've got there. It'd be a shame if it got.... broken."

[Richard Parker]

Trouble is, I can visualize China (via some back-door diplomacy), saying to the potential third party country in effect:

"That's a lovely currency you've got there. It'd be a shame if it got.... broken."

Granted, no one wants to make an enemy of China, but China won't be wielding that kind of power for the next few years while it deals with its own economic issues. And I don't think China is going to get all belligerent over 17 Uighurs, despite their rhetoric. So I'm still holding out some hope that they will get placed somewhere.

Incidentally, when I was in China, we used to pretend to be Uighurs just to see how long we could get away with it. The accent was pretty easy, and many people didn't know what Uighur-accented Mandarin was supposed to sound like anyway. I didn't realize until years later that this could have gotten me into some trouble.

[Euphonious Polemic]

You may be right, but I don't really want my government to take the risk. Selfish, I know.

[Lemur866]

Wait, you're so scared of China's reaction that you'd keep innocent people in jail without charges?

You honestly, seriously, think China would destroy their economy over 17 separatists? Knowing that China's political stability depends on their ability to deliver economic growth to the masses, and if China's economy stumbles there are likely to be communist party officials swinging from lampposts all over China?

[Euphonious Polemic]

Wait, you're so scared of China's reaction that you'd keep innocent people in jail without charges?

You honestly, seriously, think China would destroy their economy over 17 separatists? Knowing that China's political stability depends on their ability to deliver economic growth to the masses, and if China's economy stumbles there are likely to be communist party officials swinging from lampposts all over China?

We might be talking past each other at the moment - I was talking about sending them to a 3rd country such as Canada.

Canada did not put the innocent people in Gitmo in the first place. I don't see why a third country should have to bear any risk at all to help get them out.

My preference would be that the US Government gives each of them a green card, $1,000,000 and a nice new hat, and sets them up in Florida somewhere. (of course, they might also expect to be watched carefully as well)

ETA: China could probably seriously damage Canada's economy without even breaking a sweat.

[treis]

We might be talking past each other at the moment - I was talking about sending them to a 3rd country such as Canada.

Canada did not put the innocent people in Gitmo in the first place. I don't see why a third country should have to bear any risk at all to help get them out.

My preference would be that the US Government gives each of them a green card, $1,000,000 and a nice new hat, and sets them up in Florida somewhere. (of course, they might also expect to be watched carefully as well)

ETA: China could probably seriously damage Canada's economy without even breaking a sweat.

Another part of the problem is that these some of these people are guilty of fighting against the U.S., but we don't have the evidence that will stand up in court. Remember that most of these people are POWs, and you don't need the same standards of evidence and doubt to put theim prison. If we have a guy that is legitimately incarcerated, I don't want to give him 1 million and let him loose in the U.S.

[whorfin]

Another part of the problem is that these some of these people are guilty of fighting against the U.S., but we don't have the evidence that will stand up in court. Remember that most of these people are POWs, and you don't need the same standards of evidence and doubt to put theim prison. If we have a guy that is legitimately incarcerated, I don't want to give him 1 million and let him loose in the U.S.

The united states government has spent years arguing that they aren't POWs, and that the only evidence needed is their say-so.

http://archives.cnn.com/2002/US/01/22/ret.guantanamo.detainees/index.html

[treis]

The united states government has spent years arguing that they aren't POWs, and that the only evidence needed is their say-so.

http://archives.cnn.com/2002/US/01/22/ret.guantanamo.detainees/index.html

Do I look like the United States government?

[YogSosoth]

Do I look like the United States government?

So basically you don't even have faked evidence but just know that they are guilty? :smack:

[treis]

So basically you don't even have faked evidence but just know that they are guilty? :smack:

What in the world are you talking about?

[MOIDALIZE]

All of the Guantanamo detainees are completely innocent of any wrongdoing.

Yep.

[Euphonious Polemic]

All of the Guantanamo detainees are completely innocent of any wrongdoing.

Yep.

BZZZZZT! Nobody has come close to saying that.

SOME may be bad, bad, people who were (and will continue be) guilty of trying to harm the United States.

SOME are undoubtedly innocent (some of these have been quietly let go already)
In fact, in regards to the 17 Chinese Muslims currently being held there - The US Government themselves admits that they have nothing to hold them on. Yet they remain there.

[Euphonious Polemic]

If we have a guy that is legitimately incarcerated, I don't want to give him 1 million and let him loose in the U.S.

Bolding mine

That's the problem. How do we know if a person has been legitimately incarcerated or not? The prisoners have not had access to the normal channels of legal representation to determine guilt or innocence.

I agree though that just opening the gates and saying "bye, be good, write soon" might not be a great idea.

[Northern Piper]

In fact, in regards to the 17 Chinese Muslims currently being held there - The US Government themselves admits that they have nothing to hold them on. Yet they remain there.
can you provide more info? I haven't heard anything about this.

[sailor]

can you provide more info? I haven't heard anything about this. http://www.washingtonpost.com/wp-dyn/content/story/2008/10/07/ST2008100702270.html

[Northern Piper]

interesting - thanks.

[clairobscur]

I agree though that just opening the gates and saying "bye, be good, write soon" might not be a great idea.


Just doing so wouldn't be a great idea, indeed. They should receive a lot of money and profuse apologies

[Euphonious Polemic]

interesting - thanks.

Also, that's a fairly old article (Oct 8/08) - the Bush administration later appealed this court order, (http://www.voanews.com/english/archive/2008-11/2008-11-25-voa4.cfm?CFID=92765966&CFTOKEN=65749011&jsessionid=88302a44e453019895071916492a35576204) and the men are still in Gitmo.

And in Yesterday's news, (http://www.radioaustralia.net.au/connectasia/stories/200901/s2465690.htm) pressure is mounting on Australia to act as the "third country" and take in these 17 men.

[Euphonious Polemic]

Just doing so wouldn't be a great idea, indeed. They should receive a lot of money and profuse apologies

For the 17 Uighurs, yes. But there well may be people in Gitmo that you would not want wandering about the streets. Unfortunately, the process is so screwed up that there is no easy way to tell them apart.

[ElvisL1ves]

And, worse, others who were just fine when their neighbor/enemies sold them to us, but who now hate us with a deep passion.

[Little Nemo]

The first thing to do when you're stuck in a deep hole is put down the shovel.

Yes, releasing these prisoners now will be a problem. But holding them to avoid this problem will just make the future problem bigger. It's time for America to bite the bullet.

Review the individual cases. If we have sufficient evidence that an individual committed acts of terrorism or other crimes, then conduct a hearing and give him a sentence. If we don't have sufficient evidence about that individual, then it's time for us to admit we don't and let him go.

What's the alternative? Keep holding them and wait another few decades for everyone, guilty and innocent alike, to die of natural causes?

As for where they're going to go, send as many as possible back to their home countries. If their home country won't take them, try to find some other country that will accept them. If nobody will take them, then let them go free in the United States. Like I said, it's time for us to bite the bullet and start fixing our mistakes.

[Little Nemo]

All of the Guantanamo detainees are completely innocent of any wrongdoing.If you have evidence they committed some wrongdoing than produce it at the hearing and then find them guilty and sentence them to prison. If you don't have the evidence then let them go. You don't imprison people because you have a feeling they're guilty.

[sailor]

What about the 17 Uighur detainees?
a) home country (China) is likely to torture or execute them
b) no third party country wants them (it would irritate China)
c) The US has pretty much admitted that they have committed no crime
d) see above
e) and f) no Justice with either of these!
I believe this issue has already come up in the past and some Uighurs were accepted and settled in Albania.

[whorfin]

If you have evidence they committed some wrongdoing than produce it at the hearing and then find them guilty and sentence them to prison. If you don't have the evidence then let them go. You don't imprison people because you have a feeling they're guilty.

Or, for those actually caught on the battlefield (and I know that doesn't apply to the majority of gitmo prisoners), classify them as POWs with the full rights accorded under the Geneva Conventions.

[Little Nemo]

Or, for those actually caught on the battlefield (and I know that doesn't apply to the majority of gitmo prisoners), classify them as POWs with the full rights accorded under the Geneva Conventions.That and acknowledge that the war's over. Send the POWs home like we did with the Germans and Japanese after WWII.

[Ravenman]

Review the individual cases. If we have sufficient evidence that an individual committed acts of terrorism or other crimes, then conduct a hearing and give him a sentence. If we don't have sufficient evidence about that individual, then it's time for us to admit we don't and let him go.But you're glossing over the heart of the problem. It could well be that we have verified evidence that some guy is really dangerous, but what if that evidence could not be heard in a court?

For example, let's say we waterboarded Khalid. His confession that he was involved in some plot led to the discovery of other evidence that confirmed that he is, indeed, one dangerous dude. However, since the source of the information was tortured out of him, it is hard to see how any of that evidence would stand up in court, or on appeal.

So, the Bush Administration's torture policies have probably prevented us from ever pursuing serious terrorism charges against actual bad guys in court. And yet, for those who really are bad guys, do we really wish to release them?

It is a very tough problem. All I can think is to engage the international community on establishing a standard of how people captured on the battlefield who aren't quite criminals, and aren't quite POWs, should be dealt with. Whatever we end up doing to the actual bad apples in Guantanamo should probably be based on something more than Bush's go-it-alone, unilateralist views, if for no other reason than to give greater legitimacy to the tough decisions that are ahead for Obama and his Administration.

[Richard Parker]

If you have evidence they committed some wrongdoing than produce it at the hearing and then find them guilty and sentence them to prison. If you don't have the evidence then let them go. You don't imprison people because you have a feeling they're guilty.

You're excluding the messy middle. There are some detainees against whom there is more evidence than "a feeling they're guilty," but not enough to win a criminal case under US criminal law standards.

Whether we should apply criminal law to people captured in the War on Terror is a complicated debate, and I don't think it's so obvious that the answer is yes. A lot of the standards and requirements of criminal law are crafted in the particular context of US police arresting criminals. And frequently they are unrelated to the probative nature of the evidence (for example, excluding evidence obtained without a warrant isn't about the quality of the evidence). Many of these rules just don't make sense in the context of people picked up on the battlefield or transferred to us by allies.

I think that, ultimately, putting detainees into the criminal system might be the best option we have. But it is not at all as simple as you make it sound. If we do that, we are certainly going to let some people go because of rationales that have nothing to do with the quality of our proof.

[Cisco]

I knew this was going to be a shit swamp from the moment I started finding out what was going on there a few years ago. How the hell do you fix a problem that someone else created when all solutions seem to have a high probability of resulting in a worse problem? I guess the only thing we can do is get the ones who committed crimes their due process and begin ROYALLY kissing the asses of the innocent ones. And it needs to start now.

[Lightnin']

How is the closing of Gitmo going to transpire?

With much wailing and gnashing of teeth, according to the comments on this Fox News poll (http://onthescene.blogs.foxnews.com/2009/01/12/goodbye-to-gitmo/).

I'm just amazed at how many people are saying that this is a huge mistake on Obama's part- that obviously those terrorists are going to immediately start blowin' shit up when they get out.

[Euphonious Polemic]

I believe this issue has already come up in the past and some Uighurs were accepted and settled in Albania.

Ya, that's not working out so hot for them:

They have now lived for more than a year in a squalid government refugee center on the grubby outskirts of Tirana, guarded by armed policemen.

Cite (http://www.nytimes.com/2007/06/10/world/europe/10resettle.html)


Also:
At least 15 of the 17 Uighurs who remain at Guantánamo have also been cleared for release, but not even Albania will accept them — and neither will the United States. Instead, American diplomats say they have asked nearly 100 countries to provide asylum to the detainees, only to find that Chinese officials have warned some of the same countries not to accept them.

[Cisco]

I'm just amazed at how many people are saying that . . . obviously those terrorists are going to immediately start blowin' shit up when they get out.
Uhh, it's not out of the realm of possibility.

[Little Nemo]

But you're glossing over the heart of the problem. It could well be that we have verified evidence that some guy is really dangerous, but what if that evidence could not be heard in a court?

For example, let's say we waterboarded Khalid. His confession that he was involved in some plot led to the discovery of other evidence that confirmed that he is, indeed, one dangerous dude. However, since the source of the information was tortured out of him, it is hard to see how any of that evidence would stand up in court, or on appeal.

So, the Bush Administration's torture policies have probably prevented us from ever pursuing serious terrorism charges against actual bad guys in court. And yet, for those who really are bad guys, do we really wish to release them?

It is a very tough problem. All I can think is to engage the international community on establishing a standard of how people captured on the battlefield who aren't quite criminals, and aren't quite POWs, should be dealt with. Whatever we end up doing to the actual bad apples in Guantanamo should probably be based on something more than Bush's go-it-alone, unilateralist views, if for no other reason than to give greater legitimacy to the tough decisions that are ahead for Obama and his Administration.The Bush Administration has used up all the trust and good faith it ever had in the bank. It can no longer look America in the eye and ask us to trust it because it knows secret stuff that it can't tell us. That's what got us into this mess.

The best we can do at this point is start over. Put a new administration in and start rebuilding the fiath we've squandered. The worst thing we could do is perpetuate the wrongs that the Bush Administration have committed. We need to show that America as a whole is not just George Bush.You're excluding the messy middle. There are some detainees against whom there is more evidence than "a feeling they're guilty," but not enough to win a criminal case under US criminal law standards.

Whether we should apply criminal law to people captured in the War on Terror is a complicated debate, and I don't think it's so obvious that the answer is yes. A lot of the standards and requirements of criminal law are crafted in the particular context of US police arresting criminals. And frequently they are unrelated to the probative nature of the evidence (for example, excluding evidence obtained without a warrant isn't about the quality of the evidence). Many of these rules just don't make sense in the context of people picked up on the battlefield or transferred to us by allies.

I think that, ultimately, putting detainees into the criminal system might be the best option we have. But it is not at all as simple as you make it sound. If we do that, we are certainly going to let some people go because of rationales that have nothing to do with the quality of our proof.I'm not saying it's simple or non-problematic. If we release these guys some of them may commit future acts of terrorism or other crimes. But as I've already said, what's the alternative? Admit that once we arrest somebody we can never afford to let him go? Start imprisoning people for the rest of their lives because they might commit some future crime?

By now, I think the risk of releasing a possible future terrorist is outweighed by the risk of completely abandoning the rule of law in this country.

[Rysto]

We might be talking past each other at the moment - I was talking about sending them to a 3rd country such as Canada.

Canada would be a bad choice; we'd just detain them indefinitely under a Security certificate (http://en.wikipedia.org/wiki/Security_certificate).

[Lightnin']

Uhh, it's not out of the realm of possibility.

Yeah, I imagine the prisoners who didn't actually do anything are pretty pissed at this point.

[Markxxx]

TIf we release these guys some of them may commit future acts of terrorism or other crimes. But as I've already said, what's the alternative? Admit that once we arrest somebody we can never afford to let him go? Start imprisoning people for the rest of their lives because they might commit some future crime?

By now, I think the risk of releasing a possible future terrorist is outweighed by the risk of completely abandoning the rule of law in this country.

But we already do this, look at people convicted of sexual crimes. We limit where they can live? How close they can go to kids? Require they register their whereabouts online?

So there is precident

[Little Nemo]

But we already do this, look at people convicted of sexual crimes. We limit where they can live? How close they can go to kids? Require they register their whereabouts online?

So there is precidentI said that people shouldn't be held forever just because they were arrested. The people you're talking about had hearings and were convicted. That's a huge difference.

[Ravenman]

By now, I think the risk of releasing a possible future terrorist is outweighed by the risk of completely abandoning the rule of law in this country.Let's momentarily ignore the fact that Khalid Sheik Mohammad is pleading guilty to a military commission for planning the 9/11 attack. He was waterboarded and tortured.

Do you think that this guy, the mastermind of 9/11, really should be put out on the street? Will that actually buy the United States goodwill, since there is nobody aside from Al Qaeda sympathizers who wants this one guy, KSM, out on the loose? Who is going to stand up and cheer to say, "Huzzah, the mastermind of 9/11 is free after spending seven years in an American gulag?"

[Little Nemo]

Do you think that this guy, the mastermind of 9/11, really should be put out on the street? Will that actually buy the United States goodwill, since there is nobody aside from Al Qaeda sympathizers who wants this one guy, KSM, out on the loose? Who is going to stand up and cheer to say, "Huzzah, the mastermind of 9/11 is free after spending seven years in an American gulag?"It's amazing how people keep reading past what's actually written and seeing what they want to see. What part of "If we have sufficient evidence that an individual committed acts of terrorism or other crimes, then conduct a hearing and give him a sentence" did you not understand? I have no problem with convicting and locking up genuine criminals like Khalid Sheik Mohammad. It's locking up the hundreds of other people that haven't been convicted of any crime that I think should stop.

[Ravenman]

It's amazing how people keep reading past what's actually written and seeing what they want to see. What part of "If we have sufficient evidence that an individual committed acts of terrorism or other crimes, then conduct a hearing and give him a sentence" did you not understand? I have no problem with convicting and locking up genuine criminals like Khalid Sheik Mohammad. It's locking up the hundreds of other people that haven't been convicted of any crime that I think should stop.I guess I'm not making my question clear.

There is a difference between having sufficient evidence to know someone is a bad guy and having sufficient evidence to present in court. You seem to be saying that if the evidence will not hold up in court, then we should release the person, even if the guy is pretty high up there on the bad guy list. Unless I'm misunderstanding you, we can move on here.

You also seem to be saying that the US will recapture some of its international standing by releasing those who cannot be convicted in court. I'm asking you, who is going to be happy that the US released unquestionably bad guys, the small number of KSM like people, who are truly dangerous people, but for whom we have no chance of convicting in court because the Bush Administration tortured them to get evidence?

Note, I'm not asking about the cases in which someone has been locked up in Guantanamo on flimsy evidence. I'm asking about the likely much smaller number of guys we've locked up on convincing evidence that has been tainted by torture.

[Little Nemo]

Now we're moving into an area of evidence rules which is a question for legal scholars. I'd be willing to accept a loose definition of what evidence is allowed. Torture is wrong (and what does it say about this situation that we now have to state that?) but if the torture has already occurred, then the evidence exists.

But we need to keep a sense of truth about this. Evidence that was gathered solely by torture or solely by informants is not inherently trustworthy. You can get a person to confess to anything by torture and you can find someone to point the finger at whoever you want if that's your goal. So this evidence must be confirmed by other more objective evidence. Even Khalid Sheik Mohammad should not be imprisoned just because somebody decided he must be guilty and then we tortured him until he agreed.

And as I said above, torture is wrong. We need to stop it now. The fact that I'm willing to accept the results of torture that has already occurred does not mean I condone torture as an investigatory tool.

[Diogenes the Cynic]

There is a difference between having sufficient evidence to know someone is a bad guy and having sufficient evidence to present in court.
No there isn't.

[Diogenes the Cynic]

My answer to the OP is that if there's any evidence to try them for anything, they should be tried under normal criminal proceedings (with their time at Guantanamo accredited as time served if they're convicted), if not, they should be returned to their home countries or the countries of their choice. If their home countries won't take them, they should be given asylum in the US. They should also receive reparations and formal apologies.

[Ravenman]

No there isn't.Really? If a cop pulls someone over, and the results of an illegal search yield six dead hookers and a videotape of the driver murdering them, then the driver isn't a bad guy?

Would you propose that driver is simply misunderstood?

[Diogenes the Cynic]

Really? If a cop pulls someone over, and the results of an illegal search yield six dead hookers and a videotape of the driver murdering them, then the driver isn't a bad guy?

Would you propose that driver is simply misunderstood?
I would propose the cop has enough evidence to prove it in court. I suppose you could say the evidence would be excluded from a trial, but the evidence still exists. In the case of the Gitmo prisoners, it does not. A confession extracted by torture is not evidence either inside a courtroom or outside.

[ElvisL1ves]

No there isn't.
You don't think there's a difference between "probable cause" and "beyond a reasonable doubt"?

[Diogenes the Cynic]

You don't think there's a difference between "probable cause" and "beyond a reasonable doubt"?
Probable cause is cause for suspicion. Raven didn't say you could have enough to suspect, he said you could have enough to KNOW, but not enough to present in court. I'm calling BS on that. If you don't have enough to prove it beyond a reasonable doubt, then you don't have enough to KNOW.

[Ravenman]

I would propose the cop has enough evidence to prove it in court. I suppose you could say the evidence would be excluded from a trial, but the evidence still exists.Well, no kidding, that's what I've been saying for the whole goddamn thread. Thanks for finally picking up on my point.
In the case of the Gitmo prisoners, it does not. A confession extracted by torture is not evidence either inside a courtroom or outside.It is obvious we're guessing here, as none of us know for certain what evidence exists against each of the people at Guantanamo. But I'm sure we can agree that 1) there are people there who have done nothing wrong, and 2) there has been "enhanced interrogation techniques" which are really torture.

Did torture lead to confessions that led to new evidence that confirmed the confessions? For the purposes of this thread, I'm saying there probably has been. In my view, there is no way that this evidence (although not produced directly because of torture, but torture led to a series of discoveries that produced new, solid evidence) should be allowed in a regular court. It would give a green light to cops torturing criminals in hopes that their confessions lead to new clues to search for new evidence.

In other words, I'm asking what we do if we have compelling evidence that a person is responsible for 9-11 or other serious terrorist attacks, and we also know that the evidence could never be heard in court because the law clearly prohibits its admission. So, what do we do?

[Chronos]

There is a difference between having sufficient evidence to know someone is a bad guy and having sufficient evidence to present in court. You seem to be saying that if the evidence will not hold up in court, then we should release the person, even if the guy is pretty high up there on the bad guy list. Unless I'm misunderstanding you, we can move on here.Of course we should release a person if there's not enough evidence to hold up in court. Isn't that the whole purpose of having courts in the first place? Where is there room for debate on this?

[Ravenman]

Of course we should release a person if there's not enough evidence to hold up in court. Isn't that the whole purpose of having courts in the first place? Where is there room for debate on this?If you're willing to say that someone for whom we have overwhelming evidence was directly involved in the 9/11 attack, but that evidence could not (for good reason) be presented in court, and therefore the person has to be released, then we move on to question number two.

Assuming that no other country wants to take an immigrant who they believe is a hard-core Al Qaeda member, which is a very reasonable expectation, do you propose simply dropping him off in downtown Chicago with a bus ticket, $100, and a change of clothes?

[DigitalC]

If you're willing to say that someone for whom we have overwhelming evidence was directly involved in the 9/11 attack, but that evidence could not (for good reason) be presented in court, and therefore the person has to be released, then we move on to question number two.

Assuming that no other country wants to take an immigrant who they believe is a hard-core Al Qaeda member, which is a very reasonable expectation, do you propose simply dropping him off in downtown Chicago with a bus ticket, $100, and a change of clothes?

More like several million.

[Chronos]

Evidence which for good reason can't be presented in court hardly sounds "overwhelming" to me. And if our courts are somehow ignoring overwhelming evidence, then that's a problem with our courts that needs to be fixed.

And yes, if there's no other country to which a detainee found not guilty would rather be released, then we do have an obligation to accept them here, as well as to give them enough resources to enable them to start a new life here. We caused the problem in the first place, so it's our responsibility to do as much as we can to solve it.

[ElvisL1ves]

People have been tried with national-secret information used as evidence before.

One might rightfully ask what secrets still have value after 7 years (other than the "secret" of how they've been treated), or what the detainees might know that would still be useful by now.

[whorfin]

People have been tried with national-secret information used as evidence before.

One might rightfully ask what secrets still have value after 7 years (other than the "secret" of how they've been treated), or what the detainees might know that would still be useful by now.

I'm going to have to ask for a cite on that one if you're talking about courts (and if you mean "tried using information that wasn't given to the defendant during trial," and almost certainly if you mean "tried using evidence that wasn't available to the public at or after trial").

Even the Rosenbergs, IIRC, were tried in open court. (trial in open court, to ensure anyone can watch the procedure and see that it's fair, is one of the hallmarks of our jurisprudence).

IANAL, but the concept of secret evidence doesn't fly under the sixth amendment right to confrontation ("to be confronted with the witnesses against them,") the fifth amendment right to due process (a defendant can't try to oppose or contradict evidence he can't see), and the Sixth Amendment jury right (plus the fact that the U.S. has no official secrets act-so once a trial jury's been shown the evidence, I can't think of a way to stop them from telling whoever they want to).

Doesn't stop the use of what used to be national secrets at trial-but that as I understand it, the prosecutor's choices are "reveal that information" or "don't use it at trial"-so if it was a secret before trial, it won't be afterwards.

I think there are some cases where the witness may not be identified (say, as a police undercover operative or a child)--but those still have the evidence in open court.

[Euphonious Polemic]

This whole thing is certainly a mess, and it just goes to show you what will happen if an administration tries to skate around the pesky rule of law, the constitution and international law regarding POWs.

The really sucky thing is that this problem was all of Bush's creation, yet he seems quite content to let someone else clean up his mess. (quelle suprise!)

[ElvisL1ves]

I'm going to have to ask for a cite on that one if you're talking about courtsThe procedures are defined in this law (http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02054.htm). No, I wasn't referring to information kept from the defense (if that information were real, they'd know it anyway, right?), but to information that the government is keeping restricted from broader public knowledge.

Even the Rosenbergs, IIRC, were tried in open court.IIRC, the prosecution did not require the use of classified information anyway.

[Richard Parker]

Evidence which for good reason can't be presented in court hardly sounds "overwhelming" to me. And if our courts are somehow ignoring overwhelming evidence, then that's a problem with our courts that needs to be fixed.

You're assuming that the only reason we exclude evidence is because of its probative value. That assumption is incorrect. We might exclude evidence because of the institutional effects of doing so (preventing search without warrants, or encouraging people to talk openly with their doctors). But those institutional rules make little sense here. The most relevant of these kinds of rules are those making inadmissible interrogations that occurred without lawyers. Part of the rationale of this rule is a blanket way to prevent coercive interrogation. But it isn't the case that every such interrogation is coercive, so you end up with a lot of confessed information that is inadmissible even though freely offered.

And it isn't just a question of evidence. There are many other issues. For example, what to do about constitutional freedoms. There are some acts constituting material support for terrorism that would be protected from prosecution under free speech laws. Should those protections apply to self-admitted Al Qaeda fighters when being tried on US soil? We also have rules about how open a trial has to be. Are you going to allow, in the case of evidence containing highly sensitive information, a defendant to be convicted without a jury and not in open court?

[Hamlet]

My answer to the OP is that if there's any evidence to try them for anything, they should be tried under normal criminal proceedings I disagree. If any detainees in Guantanamo are US citizens, I agree. But the ones who are not should not be entitled to the full protections of our criminal courts. Which is why there are, should be, and, likely under Obama will be, military commissions to deal with some of them. As long as those commissions are set up in accordance with our treaty obligations and prior Supreme Court rulings, I have no problem with them being used to determine whether the detainees should be held indefinitely.

Edit: These military tribunals would also be able to handle the cases that deal with true national security issues that involve secret information.

[sailor]

I disagree. If any detainees in Guantanamo are US citizens, I agree. But the ones who are not should not be entitled to the full protections of our criminal courts. So, by implication you also believe Americans should not be entitled to the full protections of judicial process when in other countries. An American in Europe or Asia should not have the same guarantees as a native citizen of those countries? I disagree. I would give everybody the same rights. Even Americans deserve them.

[whorfin]

The procedures are defined in this law (http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02054.htm). No, I wasn't referring to information kept from the defense (if that information were real, they'd know it anyway, right?), but to information that the government is keeping restricted from broader public knowledge.

IIRC, the prosecution did not require the use of classified information anyway.

Interesting- I hadn't seen the statute. It may go a little off topic to take this further, but I'm interested (and furthermore, it's probably relevant to how we're going to deal with the class of people who the evidence against is too sensitive to reveal)

From its first paragraph, it seems to be more focused on finding substitutes for classified material or giving the government notice of the disclosures necessary to bring a prosecution, rather than giving a means to admit such evidence against a defendant without letting the defendant see it. I can understand how pretrial discovery/redaction can involve classified material that's kept from the defendant-but I remain confused as to how this can let the material be admitted and used against the defendant while keeping it secret--I read the statute as allowing redaction or summarization of X, and not letting the defense see the original, but I don't read it as allowing the admission of the original while keeping that original from the D and from the jury.

On that point, the statute doesn't mention a jury anywhere in it (either in getting clearances for/ordering nondisclosure from). So I understand how it can work in pre-trial proceedings, but I remain totally bemused as to how it can work at trial as to the trier of fact.

As jury trial is, within the federal system, a constitutional right the defendant can demand and I don't see any way the need to present classified info can trump that. (presumably, a recalcitrant defendant will do so if it makes the government's life harder). Similarly, I can't imagine a jury that is both qualified under the Sixth Amendment and also all has security clearances). So either this relies on a compliant defendant, or it's principally for pre-trial work.

[Diogenes the Cynic]

I disagree. If any detainees in Guantanamo are US citizens, I agree. But the ones who are not should not be entitled to the full protections of our criminal courts. Which is why there are, should be, and, likely under Obama will be, military commissions to deal with some of them. As long as those commissions are set up in accordance with our treaty obligations and prior Supreme Court rulings, I have no problem with them being used to determine whether the detainees should be held indefinitely.
Where does the Constutution say you have to be a US citizen to be protected by the Bill of Rights in US courts? Are you saying that any Canadian tourist arrested in the US would not have the right to an attorney, to a speedy tial, to confront evdienmce against him, etc? Do they have the right to free speech and religion? What is the statutory basis for your claims that non-US citizens don't have civil rights in the US?

[Hamlet]

So, by implication you also believe Americans should not be entitled to the full protections of judicial process when in other countries.If an American abroad is found, by a competent tribunal, to be an unlawful enemy combatant, yes. If the An American in Europe or Asia should not have the same guarantees as a native citizen of those countries? I disagree. I would give everybody the same rights. Even Americans deserve them.Again, I think you misunderstand me. Unlawful enemy combatants and US citizens abroad are not the same thing. Unlawful enemy combatants are not entitled to all the protections of the Geneva Convention, nor to all the protections of the Constitution.

[Hamlet]

Where does the Constutution say you have to be a US citizen to be protected by the Bill of Rights in US courts?The Constitution doesn't only applies to, oddly enough, the US. It does not, nor has it ever, applied to the entire world. I do not expect the prisoners held by the US in Iraq or Afghanistan to be granted all the rights under the US Constitution either. And no court has ever held they are. Are you saying that any Canadian tourist arrested in the US would not have the right to an attorney, to a speedy tial, to confront evdienmce against him, etc? Do they have the right to free speech and religion? What is the statutory basis for your claims that non-US citizens don't have civil rights in the US?Again, I think you are, like sailor, misunderstanding me. Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be.

[whorfin]

Again, I think you are, like sailor, misunderstanding me. Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be.

I think you're misising a "not"-the current administration has been militant in asserting that these prisoners are NOT held on U.S. territory-but on American bases in on the sovereign territory of foreign countries (though, in the case of gitmo, that's more or less a legal fiction).

Further, since "Unlawful enemy combatant" is a classification created by one of the Iraq War-era statutes (I think the DTA, but I'm not 100% sure), and since no non-citizen enemy combatant has been taken to U.S. soil, I don't think any court has ruled on what happens in such a case.

[Diogenes the Cynic]

Again, I think you are, like sailor, misunderstanding me. Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be.
How do you determine whether somebody is an "unlawful combatant" What opportunity or process exists for somebody to prove they are not an unlawful enemy combatant?

That designation basically doesn't mean anything. It's a made up category with no definition and no test for determining validity. It's bullshit.

[Chronos]

Again, I think you misunderstand me. Unlawful enemy combatants and US citizens abroad are not the same thing. Unlawful enemy combatants are not entitled to all the protections of the Geneva Convention, nor to all the protections of the Constitution.That's because the Geneva Convention explicitly doesn't recognize the existence of such a category. They're either criminals, in which case they're owed all of the rights and protections due to criminals, or they're prisoners of war, in which case they're owed all and the rights and protections due to prisoners of war, or there's no grounds for holding them, in which case we're unlawful kidnappers, plain and simple.

[I Love Me, Vol. I]

I'm asking what we do if we have compelling evidence that a person is responsible for 9-11 or other serious terrorist attacks, and we also know that the evidence could never be heard in court because the law clearly prohibits its admission. So, what do we do?IANAL but, in U.S. law aren't we compelled to find those people not guilty? Aren't defendants routinely let off the hook because the apparently damning evidence against them was obtained illegally/improperly?

[sailor]

The Constitution doesn't only applies to, oddly enough, the US. It does not, nor has it ever, applied to the entire world. I do not expect the prisoners held by the US in Iraq or Afghanistan to be granted all the rights under the US Constitution either. And no court has ever held they are. Again, I think you are, like sailor, misunderstanding me. Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be. So if an American is taken abroad and is imprisoned indefinitely without trial, is tortured or is simply dispatched with a bullet to the head it is ok as long as those who did it invent a label like "enemy combatant" or "spy" or "capitalist imperialist pig". Or is it a case of it being different depending on whose ox is being gored?

[Sandwich]

So if an American is taken abroad and is imprisoned indefinitely without trial, is tortured or is simply dispatched with a bullet to the head it is ok as long as those who did it invent a label like "enemy combatant" or "spy" or "capitalist imperialist pig". Or is it a case of it being different depending on whose ox is being gored?

When can we start? There are about 150,000 Americans in London today. Many are bankers, who are complicit in stealing billions of pounds from us. I don't think we can make charges stick against many in a proper court, but I'm sure we could get some confessions and redress if we can use, uh, 'special procedures' to deal with these complex crimes.

[clairobscur]

In other words, I'm asking what we do if we have compelling evidence that a person is responsible for 9-11 or other serious terrorist attacks, and we also know that the evidence could never be heard in court because the law clearly prohibits its admission. So, what do we do?

Release him. That's the price you pay for not playing by the rules.

[clairobscur]

Assuming that no other country wants to take an immigrant who they believe is a hard-core Al Qaeda member, which is a very reasonable expectation, do you propose simply dropping him off in downtown Chicago with a bus ticket, $100, and a change of clothes?

As I wrote before, no. You should give him a very big sum of money to compensate his arbitrary detention and possible torture, along with the bus ticket.

As for the rest, you fucked up, too bad. Keep an eye on the guy in case he would try to commit another crime you could then prosecute under due process of law.


That's why we're democracies. Because we don't arbitrarily arrest people and don't arbitrarily sentence them.

[clairobscur]

If an American abroad is found, by a competent tribunal, to be an unlawful enemy combatant, yes. If the Again, I think you misunderstand me. Unlawful enemy combatants and US citizens abroad are not the same thing.

Indeed, since "US citizen" has a definition, but nobody knows what is an "enemy combatant".

So, how do we determine that someone is an "enemy combatant" hence do not deserve to be tried according to the law, without first trying him according to the law to determine whether or not he is an "enemy combatant"? :dubious:


Can we arrest and sentence without trial American citizens for being "ugly tourists" too? How many new words are we allowed to invent on the fly, apply to whoever someone in the executive wants them to be applied, and use to deny basic rights?

Remember me when exactly the USA had decided that it should be a country with political prisoners who don't benefit from the protection on the law and can be tortured? When will this concept be enshrined in your constitution?

[clairobscur]

Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be.

Sorry, but how do I know that I won't be considered an enemy combatant if I visit the USA? Remember that the USA did things like abducting a German citizen in a foreign country to be detained in a secret prison because he had the same name as someone else who was suspected of being up to no good, for instance. So, what guarantee do I have that I won't be secretly arrested and detained, without any legal recourse because I look like someone that some anonymous guy thinks might have been in relation with a bad guy?

[Hamlet]

Indeed, since "US citizen" has a definition, but nobody knows what is an "enemy combatant".UNLAWFUL enemy combatants.

"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

So, how do we determine that someone is an "enemy combatant" hence do not deserve to be tried according to the law, ... Let me interrupt here for a second. Am I not being clear, that people continue to insist on this idea that unlawful combatants aren't going to be tried according to the law? They are, or should be. Just not the law that applies full Constitutional protections as if they were citizens, and not the law of standard criminal trials? I'm not talking about kangaroo courts, but duly constituted, Court approved, military tribunals that give the detainees due process. I hope that clears it up a bit, so we can avoid any more accusations that this isn't "according to the law".

...without first trying him according to the law to determine whether or not he is an "enemy combatant"? :dubious:Let's start at the beginning about how the process should work. Person A is seized by the military and thought to be an enemy combatant, so he is shipped to Guantanamo. Once there, a "competent tribunal" (to use the Geneva Convention's language), determines if that person is a "enemy combatant", an "unlawful enemy combatant", or a poor schlub who is neither and should be released immediately. This finding justifies the prolonged detention of Person A. With the granting of habeas, that initial determination by the CSRT (Combatant Status Review Tribunal) is reviewable, and would allow Person A to challenge that finding in court.

When the case is ready, then the prosecution actual file charges against Person A, and a full military tribunal to try Person A to see if they are guilty of the charges. If they are, they are sentenced. All "according to the law".

Can we arrest and sentence without trial American citizens for being "ugly tourists" too? How many new words are we allowed to invent on the fly, apply to whoever someone in the executive wants them to be applied, and use to deny basic rights?American citizens are entitled to the FULL protections of our criminal justice system. And "ugly citizens" isn't, as far as I know, a crime. So there would be numerous (ex post facto mainly) problems with your scenario. But if you're trying to draw an analogy between "unlawful enemy combatant" and "ugly tourist", then you're analogy is completely off base. For centuries there has been a recognized difference between lawful and unlawful combatants. And there are a plethora of sources (Geneva Convention, Hague Protocal, Supreme Court cases, and, oddly enough, US law) to make that determination. That's not true with your criminalization of "ugly tourists".

Remember me when exactly the USA had decided that it should be a country with political prisoners who don't benefit from the protection on the law and can be tortured? When will this concept be enshrined in your constitution?Your hyperbolic rhetoric and blatant misunderstanding kung fu is no match for my rational debate with humor kung fu.

[ElvisL1ves]

UNLAWFUL enemy combatants.As already asked, as determined by whom, and how?:dubious:

Am I not being clear, that people continue to insist on this idea that unlawful combatants aren't going to be tried according to the law? They are, or should be. Just not the law that applies full Constitutional protections as if they were citizens, and not the law of standard criminal trials?You are being clear, but evasive. Who gets to decide what protections do not apply, and on what basis?

Let's start at the beginning about how the process should work. Person A is seized by the military and thought to be an enemy combatantYou're skipping over that last part pretty breezily. But that part is the heart of the fucking problem.

[Hamlet]

So if an American is taken abroad and is imprisoned indefinitely without trial, is tortured or is simply dispatched with a bullet to the head it is ok as long as those who did it invent a label like "enemy combatant" or "spy" or "capitalist imperialist pig". Or is it a case of it being different depending on whose ox is being gored?No, but I can see that the hyperbolic rhetoric and blatant misunderstanding kung fu is strong in you. The very idea that I am "OK" with that is, to be honest, so incredibly outlandish that it should be beyond even a 3rd grader on the playground, let alone in a "Great Debate". If you still don't grasp it, might I suggest reading my above post to clairobscur. If you have any other questions or concerns after that, I'll try and answer them. And, if you're lucky, I'll do it without accusing you of it being "OK" to release terrorists into the US to kill Americans.

[ElvisL1ves]

A fine display of table-pounding there, Counselor.

Try it sometime if you yourself ever get "thought an enemy combatant".

[Hamlet]

As already asked, as determined by whom, and how?:dubious:Couldn't read the whole of my post, Elvis? I lay a good deal of it out in there.

You are being clear, but evasive. Who gets to decide what protections do not apply, and on what basis?Like pretty much everything in America, it's the government who decides. The President, Congress, and the Courts all decide, with all the wonderful Constitutional ideas of separation of powers and checks and balances to help the system work. Now, if you still have question after ACTUALLY READING WHAT I WROTE, then ask in a really nice tone, and maybe I'll give you an answer.

[Little Nemo]

Okay, Hamlet, what are the rules you're describing? What does a person do that makes him an unlawful enemy combatant? How is it determined if a specific individual did these things? What is the due process procedure that makes the determination? Who is making the determination? And what is the outcome to the individual if he is determined to be an unlawful enemy combatant?

I'm not being sarcastic - I really do want your opinions. Because if we're inventing some new legal category we need to start enacting some laws to cover it. Especially when it's been five years since we invoked this idea.

[Diogenes the Cynic]

In other words, an "unlawful enemy combatant" is whoever the president says it is. There is no other test or definition, no other process, no opportunity for challenge, no standard of proof, no way to prove innocence, no consequence or penalty if the POTUS wrongly designates somebody as such, no reparation or restitution to victims who have their lives destroyed, and literally, no human being on earth who can't be so designated and locked up on the President's merest whim.


If you want to insist on this contrived exception to granting people full rights, shouldn't you first have to prove that these people fit the exception? The designation itself amounts to a preemtory conviction. It's bullshit.

[Hamlet]

In other words, an "unlawful enemy combatant" is whoever the president says it is.*sigh*. My words worked just fine, I don't know why you felt the need to misrepresent them. Actually, I do know. It's so you could get all outraged, and avoid actual debate in favor for foam flecked rhetoric.

Here (http://www.law.cornell.edu/uscode/uscode10/usc_sec_10_00000948---a000-.html) is the definition of "unlawful enemy combatant" and "lawful enemy combatant" that Congress has enacted. It says:

"(A) The term “unlawful enemy combatant” means—
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

(B) Co-belligerent.— In this paragraph, the term “co-belligerent”, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

(2) Lawful enemy combatant.— The term “lawful enemy combatant” means a person who is—
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."

I have a huge problem with (A)(2), which back dated the findings of the CSRT of unlawful enemy combatants. I think it would have been better to stick with the definition and make the CSRT do findings again to make their determination according to the law. And the definition should have excluded US citizens in their entirety. But it is, at the very least, a workable definition. And not one that is whatever the President says.
There is no other test or definition, no other process, no opportunity for challenge, no standard of proof, no way to prove innocence, no consequence or penalty if the POTUS wrongly designates somebody as such, no reparation or restitution to victims who have their lives destroyed, and literally, no human being on earth who can't be so designated and locked up on the President's merest whim.Is it difficult to fit that many misrepresentations in one post? What kind of disaffect or just plain lack of knowledge does that take? There is a definition. There is a process for the CSRT to follow to make that determination. There is an opportunity to challenge the CSRT's findings, there is a standard of proof, there is a way to prove innocence. And I would support some kind of reparations. And none of it is done "at the President's merest whims"

If you want to insist on this contrived exception to granting people full rights, shouldn't you first have to prove that these people fit the exception? The designation itself amounts to a preemtory conviction. It's bullshit.No, it's your fundamental misunderstanding of the facts.

[whorfin]

UNLAWFUL enemy combatants.

"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Let me interrupt here for a second. Am I not being clear, that people continue to insist on this idea that unlawful combatants aren't going to be tried according to the law? They are, or should be. Just not the law that applies full Constitutional protections as if they were citizens, and not the law of standard criminal trials? I'm not talking about kangaroo courts, but duly constituted, Court approved, military tribunals that give the detainees due process. I hope that clears it up a bit, so we can avoid any more accusations that this isn't "according to the law".

Let's start at the beginning about how the process should work. Person A is seized by the military and thought to be an enemy combatant, so he is shipped to Guantanamo. Once there, a "competent tribunal" (to use the Geneva Convention's language), determines if that person is a "enemy combatant", an "unlawful enemy combatant", or a poor schlub who is neither and should be released immediately.
Your hyperbolic rhetoric and blatant misunderstanding kung fu is no match for my rational debate with humor kung fu.

1). A "competent tribunal" under the geneva convention is adjudicating POW status. Furthermore, until such a tribunal has so adjudicated, the captive is treated as a presumptive POW.

Hence, the CSRTs, which do not appear to be adjudicating POW status, are not such tribunals. Further, it isn't merely a legal fiction to require a presumption of POW status-it underlies the Geneva convention (and in fact most civilized systems of law) that protection is the default-and that it can only be taken away through process.

2) The CSRT does not have the power to release in practice. If you've been reading the news, you might have seen what happened when a detainee was found to not be an enemy combatant by a CSRT: the government held a second, and in some cases, a third, until they got the answer they wanted. Again, in a civilized system of laws, both sides abide by the results of the tribunal. If the government gets to do-over again and again (in a system it designed and implemented), what protection does the CSRT actually give the falsely detained? http://www.nytimes.com/2007/05/15/washington/15gitmo.html?_r=1

One of the primary factors the detainees are pushing for is to have hearings before a neutral tribunal with the power to order release. The CSRT is neither. It also is immensely biased in terms of rules of evidence, standards of proof-hence, why many lawyers involved in them are strongly against them-many of whom want to see the bad guys convicted, but want to see it done in a way that is both unquestionably fair and speaks positively about how America treats prisoners (rather than our current record).

3) Don't quote Quirin to define "unlawful enemy combatant". That term was made-up in the Military Commissions Act this decade (but used before that by Bush to justify holding people). [I see that your latest post at least cites the correct source of law. Even so, your cite itself allows for the existence of a finding of UEC before the statute that defined it--that may trouble you, but it shocks me that we could even consider a rule that let us make the finding first, and then define the term afterwards).

Furthermore, these are not just linguistic definitions-they are terms of art. This is seen by the fact that the military commissions themselves will throw out prosecutions if the detainee isn't found to be an "unlawful enemy combatant."

http://www.nytimes.com/2007/06/05/world/americas/05gitmo.htm

Furthermore, as the cite shows, the CSRT can't even seem to get the terms right itself. Again, if the government's own process isn't capable of adjudicating what it sets out to do, one wonders why anyone would consider it to be capable or reliable.

4) The United States government is doing everything in its power to avoid following "the law' in the process of military commissions. There was a perfectly good geneva convention, which it chose not to obey or to apply. The fact that detainees are suing, and winning in courts on writs of habeas corpus, and that the government is solving that problem by removing the writ again shows that we'd rather change the rules then follow well-established principles that have been shown to produce fairness.

Remember what habeas corpus is. It's a lawsuit by someone claiming to be imprisoned by someone without any right to do so. The Great Writ demands that the jailer 1) produce the prisoner, 2) demonstrate that it has the legal power to detain certain types of people, and 3) Show that the prisoner is in fact one of those people. The standard is extremely deferential to the jailer-if he has the power to imprison, and has fairly adjudicated that the prisoner is within his power to imprison, the federal courts won't intervene. The fact that they are in these cases suggests the military commissions are hopelessly broken--and the solution is not to make the law go away, and then claim that they are in full compliance with "the law".

5) talking about law violations, when the head of the military commission process (and a retired federal appellate judge) herself decides, on full review of the classified record, that one of the detainees was tortured, that is to me presumptive proof that torture went on. (I haven't seen the secret files, but neither have you... and I'm not sure what kind of proof of torture would be clearer than the finding of an independent adjudicator appointed by the Bush Administration).

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011303372.html?hpid=topnews

Torture is not within the "law". If detainees have been tortured at gitmo in the course of preparing to try them, those trials are not within the "law." Civilized nations do not torture at all, but especially do not torture prisoners in the process of acquiring evidence for an upcoming trial-to do so is to hopelessly taint the evidence.

One might say "yes, but the fact that this finding was reached suggests there is some "law" in gitmo". My simple response is that if there were "law" on gitmo, a U.S. military base less than a hundred miles from florida, this wouldn't have happened in the first place.

Further, it's been seven years. We ought to have tried everyone, imprisoned those who were guilty, and released those who were not (Absent a valid claim of POW status).

IANAL, but my kung fu is strong.

[ElvisL1ves]

Couldn't read the whole of my post, Elvis? I lay a good deal of it out in there.About everything except the core matter that all of the rest of us, out here in the reality-based community, have been discussing.

Like pretty much everything in America, it's the government who decides."The government". Did you keep a straight face while typing that?

The President, Congress, and the Courts all decideExcept for Congress and the Courts, that is. As you fucking well know, Counselor.:rolleyes:

with all the wonderful Constitutional ideas of separation of powers and checks and balances to help the system work.What planet have you been on for the last seven years? Those things have been nowhere present!

Now, if you still have question after ACTUALLY READING WHAT I WROTE, then ask in a really nice tone, and maybe I'll give you an answer.Address the fucking problem and the fucking facts and you'll get treated more nicely. Feel free to start any time.:rolleyes:

[Hamlet]

Okay, Hamlet, what are the rules you're describing? What does a person do that makes him an unlawful enemy combatant? How is it determined if a specific individual did these things? What is the due process procedure that makes the determination? Who is making the determination? And what is the outcome to the individual if he is determined to be an unlawful enemy combatant?Let me make something clear. I find that way that the Bush administration has been handling Guantanamo detainees, to be atrocious. They have fought tooth and nail to deny the detainees any protections. And there are some serious issues regarding whether or not the CSRT's constitute "due process". There have been, with the Bush administration, some seriously troubling accusations that the CSRT's have been kangaroo courts. Like here for example (http://www.scotusblog.com/wp/a-new-critique-of-pentagon-detainee-panels/). I am not saying, however, that the CSRT's are flawless, or that they should not be improved. I am saying, however, that the process can be. The latest Supreme Court case on the issue is Boumediene v. Bush, and the majority said: "Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore." If the CSRT's are found by Congress, the President and the Supreme Court, to meet the requirements of due process, I have no problem with their use.

Because if we're inventing some new legal category we need to start enacting some laws to cover it. Especially when it's been five years since we invoked this idea.Again, it's not a "new legal category", it's something that has been recognized for decades. But with the gigantic whole that the Bush administration has dug us; it's going to take a lot of work to start to improve the process and get the respect for our country back. But it is possible to do, and it should be done.

[whorfin]

And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore." If the CSRT's are found by Congress, the President and the Supreme Court, to meet the requirements of due process, I have no problem with their use.

The possible consequence of error is wrongful killing of an innocent--the death penalty is available, and is being sought in detainee cases. http://www.guardian.co.uk/world/2008/feb/11/guantanamo


Again, it's not a "new legal category", it's something that has been recognized for decades. But with the gigantic whole that the Bush administration has dug us; it's going to take a lot of work to start to improve the process and get the respect for our country back. But it is possible to do, and it should be done.

Few of us would have any problems if the current administration was applying the definitions of Quirin and the Geneva convention. As I have cited, "unlawful enemy combatant" in the context of military commissions at gitmo is a new term of art that is not consistent with or applicable to the previous definitions of unlawful combatants. It is certainly related; some of the jurisprudence we applied to prisoners or unlawful combatants in WWII may be applicable. But they are not the same thing, and it's simply wrong to treat them as identical.

[Hamlet]

First things first.

There seems to be a great deal of misunderstanding over what I am advocating. Whether that is through my own inability to make a point, or simply the knee jerk reactions of some posters, I don't know. But the entirety of my initial point is that the system, the CSRT, followed by judicial review, and, sooner rather than later, charges and trials by military tribunal, can and should work. The fact that it hasn't under Bush will get no disagreement from me. But those failures do not mean that the detainees should suddenly be allowed all the Constitutional and statutory protections our criminal justice system affords.

Onward:

1). A "competent tribunal" under the geneva convention is adjudicating POW status. Furthermore, until such a tribunal has so adjudicated, the captive is treated as a presumptive POW.The term "competent tribunal", to me, is not based on what it is determining (POW or unlawful combatant"), but rather whether it meets the strictures for due process. Sorry if I confused you. Further, it isn't merely a legal fiction to require a presumption of POW status-it underlies the Geneva convention (and in fact most civilized systems of law) that protection is the default-and that it can only be taken away through process.Yes. And I fully advocate treating all detainees as POW's, whether they fit the definition or not. 2) The CSRT does not have the power to release in practice. If you've been reading the news, you might have seen what happened when a detainee was found to not be an enemy combatant by a CSRT: the government held a second, and in some cases, a third, until they got the answer they wanted.I actually don't have a huge problem with that. The CSRT's shouldn't have to be a "one and done", where if the prosecution didn't present enough evidence, the guy automatically gets released anymore than it should be a a one and one if the prosecution proves Person A is an "unlawful enemy combatant" that Person gets detained forever with no further hearings. If the prosecution needs to present more evidence, they should have the opportunity to. Again, in a civilized system of laws, both sides abide by the results of the tribunal. If the government gets to do-over again and again (in a system it designed and implemented), what protection does the CSRT actually give the falsely detained? http://www.nytimes.com/2007/05/15/washington/15gitmo.html?_r=1The fact that the CSRT's can be judicially reviewed is such a protection. Judge Leon recently ordered the release of yet another detainee.

One of the primary factors the detainees are pushing for is to have hearings before a neutral tribunal with the power to order release. The CSRT is neither.Nor is it the end all of the process. It is but the very first determination, followed by later hearings, judicial review, appeals, and habeas.
It also is immensely biased in terms of rules of evidence, standards of proof-hence, why many lawyers involved in them are strongly against them-many of whom want to see the bad guys convicted, but want to see it done in a way that is both unquestionably fair and speaks positively about how America treats prisoners (rather than our current record).I agree. The CSRT's under Bush have been pathetic. That doesn't mean the entire thing needs to be scrapped and every detainee gets a criminal trial in the US. It means that the rules should be written to ensure due process and that the rulings should be appeallable to our federal courts.

It is a whole different debate if you want to get into what the exact rules (hearsay usuable?, production of witnesses?, etc.) that would ensure due process. And that's not a debate I'm overly interested in.

3) Don't quote Quirin to define "unlawful enemy combatant". That term was made-up in the Military Commissions Act this decade (but used before that by Bush to justify holding people). [I see that your latest post at least cites the correct source of law. Even so, your cite itself allows for the existence of a finding of UEC before the statute that defined it--that may trouble you, but it shocks me that we could even consider a rule that let us make the finding first, and then define the term afterwards).The cite to Quirin was merely to point out the long accepted recognition of the difference between lawful and unlawful combatants.

Furthermore, these are not just linguistic definitions-they are terms of art. This is seen by the fact that the military commissions themselves will throw out prosecutions if the detainee isn't found to be an "unlawful enemy combatant."Hence the statutory definition.

Furthermore, as the cite shows, the CSRT can't even seem to get the terms right itself. Again, if the government's own process isn't capable of adjudicating what it sets out to do, one wonders why anyone would consider it to be capable or reliable.The cite shows that, if the initial determination is flawed, it affects the later actual trial of the detainees. That's not really a revelation. The CSRT's do need to meet due process standards before I will, or it will, be considered "capable or reliable". The fact that, under Bush, it hasn't been, doesn't, once again, mean you scrap the whole thing and throw them into the US criminal justice system.

4) The United States government is doing everything in its power to avoid following "the law' in the process of military commissions. There was a perfectly good geneva convention, which it chose not to obey or to apply.There was also a very good UCMJ process and outline that should have been used to deal with detainees in the War on Terror.tm But, we need to build a model for the resolution of these issues, rather than sit around and blame Bush. And that model can, and should be, properly run CSRT's that afford due process. So, please excuse me if I snip out more of your post about Bush fucking it all up. It's not a point on which we disagree. Including the stuff on torture.

IANAL, but my kung fu is strong.Indeed so grasshopper. And we agree more than we disagree. Which is always a good sign.

[Hamlet]

TFew of us would have any problems if the current administration was applying the definitions of Quirin and the Geneva convention. As I have cited, "unlawful enemy combatant" in the context of military commissions at gitmo is a new term of art that is not consistent with or applicable to the previous definitions of unlawful combatants. It is certainly related; some of the jurisprudence we applied to prisoners or unlawful combatants in WWII may be applicable. But they are not the same thing, and it's simply wrong to treat them as identical.The Geneva Convention, I think, is ill prepared to deal with the War on Terror. And Bush had a great opportunity to live up to the ideals of our country and devise a fair system for the determination of what, exactly, we should do with these detainees. And, rather than taking that opportunity to show the world what our country stands for, he, for lack of a better term to communicate my disgust with him, fucked it all up.

The solution, however, is not to afford every person in the world who is detained to be tried in a criminal court in the US. The solution, at this point, is to perfect the poorly run CSRT's and devise a military tribunal for trying them. And doing it sooner rather than later.

[ElvisL1ves]

But those failures do not mean that the detainees should suddenly be allowed all the Constitutional and statutory protections our criminal justice system affords.Your refusal to address the core issue of how that distinction is drawn and decided, of how Constitutional and statutory protections can be withheld and from whom and on what basis, is the source of your difficulty here, not "knee jerk reactions" by anybody, or your ability to make a point.

It's good to see that you at least "advocate" in favor of a presumption that POW rights apply, but it's not good to see that you don't consider it to be a given.

[ElvisL1ves]

The Geneva Convention, I think, is ill prepared to deal with the War on Terror.Why? Is it, as Gonzalez claims, "quaint" and "obsolete"? Or what? How is a system of law, domestic and international, built up over a century, and the principles of humanity that underlie it, inadequate?

And Bush had a great opportunity to live up to the ideals of our country and devise a fair system for the determination of what, exactly, we should do with these detainees.He didn't have to devise shit. He merely had to follow the law.

The solution, however, is not to afford every person in the world who is detained to be tried in a criminal court in the US. Again, why not?

\The solution, at this point, is to perfect the poorly run CSRT's and devise a military tribunal for trying them. And doing it sooner rather than later.You'd create a new, ad hoc system of law after the fact, instead of using the one we've got. Right.

[whorfin]

First things first.
I actually don't have a huge problem with that. The CSRT's shouldn't have to be a "one and done", where if the prosecution didn't present enough evidence, the guy automatically gets released anymore than it should be a a one and one if the prosecution proves Person A is an "unlawful enemy combatant" that Person gets detained forever with no further hearings. If the prosecution needs to present more evidence, they should have the opportunity to.

This, I think, points out where I think we disagree most. The CSRT is, at base, reviewing our right to detain individual X. The justification for the DTA (etc, etc) removing habeas jurisdiction is that the CSRT is an alternative. It is, so far as I understand the commission process, the principal tool used to evaluate the factual circumstances of the detention.

Hence, on a due process level, I feel there must be a 1) neutral tribunal 2) evaluating the grounds for continued detention, including a review of the facts, and 3) with the power to order release of detainees when it determines there are no grounds for continued release. I think unless the system contains that, it is not a legal system as civilized nations use. It's simply not a legal system of detention-but an executive fiat--without such a hearing that has the power to release an individual not lawfully detained, there is no protection for those wrongfully detained other than the good faith of the party pushing for their continued detention. I'm not going to bet seven years of my life on that good faith (even before the Bush administration's demonstrated lack thereof).... are you willing to?

Further, you and I agree that the finding of UEC is not a license for indefinite detention. However, it is the current source of authority cited to detain these individuals AT ALL. [that is not to say that other authority may exist-but it is not being asserted, and similar issues of determining the limit of that authority and that it is properly applied to detainee X still apply].

Further you and I agree that the CSRT determines if someone is an unlawful combatant. So I ask what a negative determination means... if the authorities can hold multiple CSRTs until they get a positive result, why hold CSRTs at all?--the postive result is inevitable if we allow continued hearings until a finding of UEC-- we just get to keep trying till we win.

If there is a 'final' negative finding that justifies release, then how many negative findings are needed? Why does the state need one positive finding, and the detainee need several negative findings? At some level, you have to accept that some people in gitmo are probably not UECs. I think we agree they should be released. If we are arguing that the military commissions process is a system of law that ought to be deferred to, it ought to have the power to demand the executive release such a detainee.

Again, it is a fundamental basis of western jurisprudence that the government must show cause to detain someone. Whatever process, whatever system you use, it simply isn't law if we have a system that purports to determine if a detainee is in the category of person that the executive is entitled to detain, but that if the system determines that that individual is not in that category, the executive still detains them.

In general, legal systems are not averse to pre-hearing detention with some process-and detention pending that process. Similarly, there is no trouble if, after a finding that a detainee is not an unlawful combatant, the executive presents another source of authority to detain them, and makes the showing that the individual in question falls under that authority. That is not done after a CSRT finding that an individual is not a UEC.

I challenge you to find a modern legal system that allows continued detention of a prisoner after a finding that the individual is not within the specified power to detain, and without the assertion of an alternative power.

On a practical level, as you have noted, some people we have captured and held in gitmo ought to be released with reparations. I take this further-one of the best recruiting tools terrorists have is how badly we treat people pulled off the streets of afghanistan. We need to be much better- we need a process that will quickly release those who aren't terrorists. We need to send them back home with a hundred dollar bill, a cheeseburger, and stories of humane and gentle treatment. A system that doesn't even hold a hearing for six years, and doesn't release those the hearing finds shouldn't be detained is pointless.

I agree that not everyone gets into U.S. courts. I do think that, at base, the fact that we are a nation of laws means that we do need legal authority to detain individuals, and we need to make a showing of some kind that the detainee is an appropriate target for that individual. The concept of repeated CSRTs goes directly against those principles.

[whorfin]

Hence, on a due process level, I feel there must be a 1) neutral tribunal 2) evaluating the grounds for continued detention, including a review of the facts, and 3) with the power to order release of detainees when it determines there are no grounds for continued release.

Continued DETENTION, I of course mean.

[sailor]

I do not want to live in a country where each and every human being does not get the full protection of a fair judicial process. If nothing less will do for citizens then nothing less can do for non-citizens. Military tribunals cannot and should not be trying crimes which are not strictly military in nature. If the prisoners are POW then they should be afforded the protections of POWs. If they are not then they should be subject to civilian courts with all guarantees and protections. Nothing less will do.

I grew up in a country where there were special laws for terrorists. They were subject to military tribunals because civilian courts were just too good for them. And military courts would dutifully produce the results that were expected from them: death sentences and life sentences. And the government determined who was subject to the anti-terrorist jurisdiction.

In 1965 such a military tribunal sentenced to death a young illiterate peasant who was accused of holding up a store and killing a cop in the process. In reality he never killed anybody and it was not justice, it was making an example of him. He was in death row awaiting his execution until his sentence was commuted to life in prison. In prison he taught himself to read, studied and eventually became a lawyer and writer. He was pardoned in 1981. link (http://en.wikipedia.org/wiki/Eleuterio_S%C3%A1nchez). Countless others were tortured and killed.

No thanks. I do not want to live in a country which condones torture or special tribunals for "bad guys". When you accept that you get Guantanamo, Abu Ghraib, the south American dirty wars and torturing and killing of "communists", the Soviet or Chinese farces that passed for judicial trials. No thanks.

Today I am proud to live in a country which would not dream of denying anyone the full protection of the laws and legal process on any account and least of all nationality.

Ordinary courts are the only ones who can decide who is guilty and every single human being should enjoy the protection of a full judicial process with all guarantees. Nothing less will do.

Military tribunals are not a fair venue for common crimes, no matter how bad. All countries which have taken shortcuts in the judicial process have only produced injustice from sham courts. It is not that those countries did such things because they were bad but that they were bad *because* they did such things. If America continues to go down that path it will end up being no better than the dictatorships it has so long condemned.

Once you take one shortcut it is tempting to take more and you end up with more and more people being labeled as "terrorists". The entire world has told America that what it is doing is wrong and I think president Obama is intelligent enough to understand that the best thing to do is reverse course.

[Richard Parker]

Today I am proud to live in a country which would not dream of denying anyone the full protection of the laws and legal process on any account and least of all nationality.

In what country do you live?

[Hamlet]

This, I think, points out where I think we disagree most. The CSRT is, at base, reviewing our right to detain individual X. The justification for the DTA (etc, etc) removing habeas jurisdiction is that the CSRT is an alternative. It is, so far as I understand the commission process, the principal tool used to evaluate the factual circumstances of the detention.Just so we're on the same page, the Supreme Court has found the removal of habeas was improper and unconstitutional.
Hence, on a due process level, I feel there must be a 1) neutral tribunal 2) evaluating the grounds for continued detention, including a review of the facts, and 3) with the power to order release of detainees when it determines there are no grounds for continued release. I think unless the system contains that, it is not a legal system as civilized nations use.I have one minor objection. The CSRT's decision that a person is either an unlawful combatant or not should be reviewable by the courts. If they find a person is, that should get judicial review. And if they find that there isn't, that too should be reviewed. As I expressed earlier, I don't think that due process requires a "one and one" trial, and I am not offended that the CSRT decision is reviewable before the release of a person.

Further, you and I agree that the finding of UEC is not a license for indefinite detention.If I can beg your indulgence and ask you one question at this point. Since I get my information mostly from television, Hogan's Heroes is a good indicator, people can be held as POW's (if they are found to be a POW by a competent tribunal) under the Geneva Convention until the end of hostilities. Would that not permit the detention at Guantanamo until the end of hostilities with Al Qaeda, Taliban, or other terrorist organizations? And, last time I checked, we're still in hostilities with them.

Which is yet another reason I find the Geneva Convention to be flawed in relation to terrorist organizations. It is a good blueprint and guide, but it is not without flaws. Further you and I agree that the CSRT determines if someone is an unlawful combatant. So I ask what a negative determination means... if the authorities can hold multiple CSRTs until they get a positive result, why hold CSRTs at all?--the postive result is inevitable if we allow continued hearings until a finding of UEC-- we just get to keep trying till we win.Assume for the moment that you trust the CSRT's to do their job properly. At some point, the prosecution will have presented all the evidence it has at its disposal about the detainee. When all the evidence is presented and the CSRT finds the person is not a UEC, and that decision is subject to judicial review, I have no problem with the release.

If there is a 'final' negative finding that justifies release, then how many negative findings are needed? Why does the state need one positive finding, and the detainee need several negative findings?The prosecution shouldn't need just one finding. I think the findings of the CSRT should be reviewed yearly, and, if there is no movement on actually trying the detainees for war crimes, then have yet another CSRT hearing.
At some level, you have to accept that some people in gitmo are probably not UECs.Of course. I think the evidence has shown that a great many of the detainees held at Guantanamo over the years were not UEC's. I think we agree they should be released. If we are arguing that the military commissions process is a system of law that ought to be deferred to, it ought to have the power to demand the executive release such a detainee.Non UEC's should be released. The question is whether the finding of the CSRT based on one hearing should be the final determination. I don't think it should for either party.

I've snipped a bit of your post, because I feel I've addressed the issues.

On a practical level, as you have noted, some people we have captured and held in gitmo ought to be released with reparations.There is the word that I think is at the very heart of our disagreement. Practical. There has always been people who don't play by the rules. Pirates, guerrillas, and terrorists, spies. Call them belligerents. I think that these kinds of people make the ideals much harder to live up to. One of the reasons the Geneva Convention doesn't deal with UEC's that much is that it was devised to try and make everybody comply with it's rules. If you want POW status, or the protections of the Convention, you play by the rules. Terrorism doesn't.

If it helps, I think the adage "Better a hundred guilty men go free than one innocent man go to jail", while a great idea, isn't a goal when dealing with national security and international terrorism. I find the world is a harsh, evil world, with many people who want to destroy as many innocent lives as they can. And stopping that is more important to me than releasing someone who, because of national security, hearsay rules, or the problems on the battlefield, wasn't proven to be a UEC at one singular hearing.

Now, I'm fully aware that by saying that, some posters with .... lesser intellects, will certainly quote that paragraph and allege that somehow I support the detention of innocent people based only on fearmongering. I don't suspect, and I sincerely hope you aren't, one of those kinds of persons. But the reality of the world and terrorism, to me, works against granting people every benefit of the doubt. And that includes the lack of finality of a single hearing into CSRT. If that is the only basis for our disagreements, I think we've reached a place where we can agree to disagree.

[whorfin]

Just so we're on the same page, the Supreme Court has found the removal of habeas was improper and unconstitutional.


Mainly through exhaustion--they were willing to defer for six years, and it's still not clear what level of rights are available. I think we agree that we want a procedure that allows us to do it right, get it over with, and whether habeas petitions do or do not run (I posit they should) is immaterial--as they would be rejected due to the entirely legitimate finding of rightful detention.

I have one minor objection. The CSRT's decision that a person is either an unlawful combatant or not should be reviewable by the courts. If they find a person is, that should get judicial review. And if they find that there isn't, that too should be reviewed.

Sure, in an appellate setting. Not if the "review" is another CSRT, without any regard for the prior finding. Note right now, the system as it exists is not a "rehearing every year" or the like--it's a "we keep rehearing it till we win" system.


As I expressed earlier, I don't think that due process requires a "one and one" trial, and I am not offended that the CSRT decision is reviewable before the release of a person.

And as I point out, there is a significant difference between review and re-hearing.

Further, due process does require a path to release thorough a showing of innocence. Whether that be one, more, or whatever, the CSRT system simply does not have an end-point of "ordered release due to finding of innocence". Detainees have been released by executive fiat, not by the order of a CSRT.


If I can beg your indulgence and ask you one question at this point. Since I get my information mostly from television, Hogan's Heroes is a good indicator, people can be held as POW's (if they are found to be a POW by a competent tribunal) under the Geneva Convention until the end of hostilities. Would that not permit the detention at Guantanamo until the end of hostilities with Al Qaeda, Taliban, or other terrorist organizations? And, last time I checked, we're still in hostilities with them.


To start practically, the administration has been adamant that the detainees are not POWs, do not qualify for POW protection, the conventions don't apply, etc, etc. That may be true, but it also cuts against our ability to contend that they should be imprisoned as POWs

It is probable that at least some of these individuals would qualify for POW status, and more would not technically qualify, but POW status would give us an easy and clear source of authority to detain them. (in my opinion, one of the U.S's biggest mistakes was not to treat everyone as a POW after capture-if nothing else, it would have bought us time to figure out a better system).

In the Hogan's Heroes' example, the question is easy--the detainees are soldiers in an army, captured in a war zone, were making war on the detaining power (and do not deny that)--for them, the authority to detain them as a POW is clear, and if there's a hearing, it's on whether they are POWs or unlawful combatants (i.e. war criminals).

However, many of the gitmo detainees are not "traditional" POWs, and may well dispute that they are involved at all or may be detained at all--rather than whether they are POWs or unlawful combatants. The situation would be similar to you being detained by France---you may or may not have been an unlawful combatant, blowing up garlic fields and the like--but you say you aren't involved at all, and it's pretty clear you're not a soldier. For people like them, the question looks more like "unlawful combatant or private citizen we have no authority to detain" rather than "unlawful combatant or POW."

For example, a german picked up off a bus in pakistan (http://www.nytimes.com/2006/11/04/world/europe/04germany.html), or this guy, kidnapped from Macedonia (http://en.wikipedia.org/wiki/Khalid_El-Masri).

Further, there is a question of what the relevant war is. I agree we can hold POWs for the duration-but what that is is a real question in a "war" that may last a generation--and I don't think POW=life sentence. The end of combat operations in Afghanistan or Iraq would be a fair measure for me (and right, at least for footsoldiers we're holding who were captured in those wars).

Finally, of course, many of these detainees have been treated in truly shocking ways-entirely inconsistent with the rights of prisoners of war. Such treatment may or may not be legal for unlawful enemy combatants (I will presume that it is legal (just to show the problem) though I strongly disagree that it is in fact legal)

This is why the Geneva Convention says we begin with a presumption of POW status-to do otherwise would expose prisoners of war to treatment they have a right not to suffer.

Having started with the presumption that we could treat these detainees like UECs, we did so, and now if we say they are POWs (and consequently they were POWs all along-as the conclusion is based on the finding that they did not wage unlawful war), then we find we have grossly violated our obligations under the geneva convention and the rights of Prisoners of War (who are entitled to those protections as non-criminal fighters on the other side in a legitimate war).

So calling them POWs now comes with a consequence for those who ordered their mistreatment--to do so is a war crime, and we executed people for (more severe) POW abuse after nuremberg.


Which is yet another reason I find the Geneva Convention to be flawed in relation to terrorist organizations. It is a good blueprint and guide, but it is not without flaws. Assume for the moment that you trust the CSRT's to do their job properly. At some point, the prosecution will have presented all the evidence it has at its disposal about the detainee. When all the evidence is presented and the CSRT finds the person is not a UEC, and that decision is subject to judicial review, I have no problem with the release.


I agree the geneva convention is flawed-but it's well-developed, and comes with international approval. We fight with one hand behind our back because we're the good guys. We should be scrupulous about laws of war and prisoner treatment specifically because that says something about us.


The prosecution shouldn't need just one finding. I think the findings of the CSRT should be reviewed yearly, and, if there is no movement on actually trying the detainees for war crimes, then have yet another CSRT hearing.
Of course. I think the evidence has shown that a great many of the detainees held at Guantanamo over the years were not UEC's. Non UEC's should be released. The question is whether the finding of the CSRT based on one hearing should be the final determination. I don't think it should for either party.

I disagree strongly with the concept of annual reviews. If we're saying someone is an unlawful combatant, they either are or they aren't. That turns on what they did while fighting us. It doesn't change after another year at gitmo.

Here, I'd distinguish between authority to detain and decision to prosecute. A finding that a detainee is a UEC gives us 1) the authority to prosecute them, which may well be revised yearly, and, 2) at least for those captured in the war zone, would probably give us the authority to detain them for the duration even under the Geneva convention.


There is the word that I think is at the very heart of our disagreement. Practical. There has always been people who don't play by the rules. Pirates, guerrillas, and terrorists, spies. Call them belligerents. I think that these kinds of people make the ideals much harder to live up to. One of the reasons the Geneva Convention doesn't deal with UEC's that much is that it was devised to try and make everybody comply with it's rules. If you want POW status, or the protections of the Convention, you play by the rules. Terrorism doesn't.


I agree that the concerns are practical. My principal concern is to be able to bring a war crimes prosecution against an enemy who tortures or mistreats a captured American Soldier. We have no legitimacy to do so if we're playing hardball.

Second, whether or not the laws of nations allow us to torture, or even kill captured terrorists to me doesn't matter. I'm not willing to destroy our principles when we can do it right. Don't get me wrong-I want the terrorists captured. I think we can find plenty of judges who're more than ready to try them. But we shouldn't set our standards at the lowest common denominator, even if we can.

Third, I think our only justification for the (broader) war against terror, rather than in a narrow sense against those who attacked us (who, I may note, we still haven't caught) is that we're the good guys.



If it helps, I think the adage "Better a hundred guilty men go free than one innocent man go to jail", while a great idea, isn't a goal when dealing with national security and international terrorism. I find the world is a harsh, evil world, with many people who want to destroy as many innocent lives as they can. And stopping that is more important to me than releasing someone who, because of national security, hearsay rules, or the problems on the battlefield, wasn't proven to be a UEC at one singular hearing.

Let's address these separately. First, I agree that the world is a nasty place, and we have to be careful to protect ourselves. However, I think that gitmo has been one of the best ways to recruit terrorists we could have come up with. I think good treatment of prisoners helps us, and mistreatment helps them.

Further, I think that your justifications of why we shouldn't listen to one hearing might apply on a battlefield, or shortly thereafter. But there have been six years.

Further, the CSRTs are set out to adjudicate cases while making allowances for the difficulty of evidence gathering on a battlefield and national security information. That is as it should be. But they must both allow a detainee who was, in fact, innocent, to challenge his detention, and if successful, ensure he is promptly released. I contend they fail at both, and a major part of that is that they can be repeated endlessly, and will not order a prisoner's release even if he is proven to be totally innocent.

[Hamlet]

Rather than repeat myself, there is only a couple new things to add.

And as I point out, there is a significant difference between review and re-hearing.My concern is only that all the evidence is presented. If each "rehearing" is nothing more than stating the same things over and over, I agree, that's unacceptable. But if there is more evidence presented at a subsequent hearing, I think that evidence should be heard before release.

Further, due process does require a path to release thorough a showing of innocence. Whether that be one, more, or whatever, the CSRT system simply does not have an end-point of "ordered release due to finding of innocence". Detainees have been released by executive fiat, not by the order of a CSRT. It will always be the executive branch, whether it is Guantanamo or your local sheriff, who releases the person. The order by the CSRT for release should have the backing of the judicial system, after an appeal. And many (I think they're up to 50+) of the releases are problematic based on our other obligations.
Further, there is a question of what the relevant war is. I agree we can hold POWs for the duration-but what that is is a real question in a "war" that may last a generation--and I don't think POW=life sentence. The end of combat operations in Afghanistan or Iraq would be a fair measure for me (and right, at least for footsoldiers we're holding who were captured in those wars).The reason I asked was simply to point out that, had the detainees been considered POWs, my understanding is that they could, under the Geneva Convention, still be held without trial, because hostilities are still ongoing and they could return to the "battlefield". My concern isn't with retroactively punishing those who tortured people at Guantanamo, but rather to point out the ideas behind the Geneva Convention and how those ideas should influence our view on how to treat the detainees.
I agree the geneva convention is flawed-but it's well-developed, and comes with international approval. We fight with one hand behind our back because we're the good guys. We should be scrupulous about laws of war and prisoner treatment specifically because that says something about us.Of course we should always do what is right. But the Geneva Convention is sorely lacking in dealing with UEC's. Which is why we need Congress, the Courts, and especially the President, to actually DO something about it, instead of just holding them until the next guy gets sworn in and make it his problem. There needs to be a system for dealing with these issues, and not just for the ones in Guantanamo, but for any future ones we catch. It's an issue that won't go away. And trying them all in US Courts isn't the solution.

Here, I'd distinguish between authority to detain and decision to prosecute. A finding that a detainee is a UEC gives us 1) the authority to prosecute them, which may well be revised yearly, and, 2) at least for those captured in the war zone, would probably give us the authority to detain them for the duration even under the Geneva convention.The problem is that everywhere is "the war zone" when it's terrorism.
Let's address these separately. First, I agree that the world is a nasty place, and we have to be careful to protect ourselves. However, I think that gitmo has been one of the best ways to recruit terrorists we could have come up with. I think good treatment of prisoners helps us, and mistreatment helps them.Agreed. But our disagreement lies in what should happen from here on out. And we both agree that they should be given due process, tried, and released if they are not guilty.

[clairobscur]

Your hyperbolic rhetoric and blatant misunderstanding kung fu is no match for my rational debate with humor kung fu.

That was not hyperbolic. In all your posts, you've been trying to rationalize away the issue.

[whorfin]

Rather than repeat myself, there is only a couple new things to add.

My concern is only that all the evidence is presented. If each "rehearing" is nothing more than stating the same things over and over, I agree, that's unacceptable. But if there is more evidence presented at a subsequent hearing, I think that evidence should be heard before release.


Surely. but that again begs the question of how long we can hold someone while waiting for that evidence to come together. The Court has said that six years is too long-especially when UEC status is the only justification for detention.

It also shows the weakness of reliance on novel theories (based to some extent in existing law) as the source of the authority to detain--had we not abandoned the geneva convention, many detainees could have been unquestionably held as POWs, and we'd have no problem.


It will always be the executive branch, whether it is Guantanamo or your local sheriff, who releases the person.

I think this is more likely to mislead than to inform-- of course, at the end of the day, the jailer is the one who releases a prisoner.

However, there is a vast difference between a system where a prisoner can FORCE the jailer to do let him go by proving his innocence to a neutral judge, and one in which that showing may influence, but does not compel release. There, even if you show you're totally, completely, Mother Theresa-level innocent, you only get out of jail if the president thinks you ought to be let go. Eventually, sure, our system gets there (after four or five trips to the Supreme Court)-but it detains many people we shouldn't have held in the first place for seven years, in terrible conditions.

The ability to challenge the facts being used to justify detention is the core of due process-and inherent in that is that if that challenge is successful, detention necessarily ends.


The reason I asked was simply to point out that, had the detainees been considered POWs, my understanding is that they could, under the Geneva Convention, still be held without trial, because hostilities are still ongoing and they could return to the "battlefield".

I understand your point. I agree with it-that the great shame of Bush's handling of this is that he threw away a very clear justification for holding the detainees, one well-respected in international law, better for our national security (as it would have more reliably held the bad guys), and which would have shown that we were undisputably the good guys. I still can't figure out why-my guess is his continuing desire to increase executive power.

My concern isn't with retroactively punishing those who tortured people at Guantanamo, but rather to point out the ideas behind the Geneva Convention and how those ideas should influence our view on how to treat the detainees.

I understand that's not your concern-but it is a concern. It's a big concern if we now say that the people we're holding are POWs--even things that aren't torture are POW mistreatment, and it's hard to treat them as POWs without conceding that they were horribly mistreated according to the rights of POWs--and then we are squarely faced with the concern-as such mistreatment is a war crime.

Of course we should always do what is right. But the Geneva Convention is sorely lacking in dealing with UEC's. Which is why we need Congress, the Courts, and especially the President, to actually DO something about it, instead of just holding them until the next guy gets sworn in and make it his problem. There needs to be a system for dealing with these issues, and not just for the ones in Guantanamo, but for any future ones we catch. It's an issue that won't go away. And trying them all in US Courts isn't the solution.


Agreed.

The problem is that everywhere is "the war zone" when it's terrorism.

By that definition, there are seven billion people in "the war zone," almost all of whom don't look like soldiers. Since we're detaining these people under the authority to hold enemy combatants, we must quickly figure out if person X who we've captured is someone we're entitled to hold at all, let alone someone who we can try and then punish.

Whatever method we use must efficiently and reliably determine whether we have the right guys or not, and if we don't, let them go. The CSRT doesn't do that, and given the questionable nature of the people we've detained to date, waiting all the way through trial isn't good enough either.

[Hamlet]

Surely. but that again begs the question of how long we can hold someone while waiting for that evidence to come together. The Court has said that six years is too long-especially when UEC status is the only justification for detention.Do you have an easy solution on the time limit? The Geneva Convention doesn't set a time limit for holding POWs (other than an end of hostilities). Is there a magic number that fits "due process", because I don't see it. I don't like waiting 6 years for a trial either.
It also shows the weakness of reliance on novel theories (based to some extent in existing law) as the source of the authority to detain--had we not abandoned the geneva convention, many detainees could have been unquestionably held as POWs, and we'd have no problem.When discussing time limits, isn't that just academic? Again, my understanding is that if the detainees were treated as POW's from day one, we'd be completely in our powers to be still holding them without charges. As I've said, I would like them to be treated as POWs are treated, but if your concern is the length of detention, the Geneva Convention isn't going to help you.

I think this is more likely to mislead than to inform-- of course, at the end of the day, the jailer is the one who releases a prisoner.

However, there is a vast difference between a system where a prisoner can FORCE the jailer to do let him go by proving his innocence to a neutral judge, and one in which that showing may influence, but does not compel release. There, even if you show you're totally, completely, Mother Theresa-level innocent, you only get out of jail if the president thinks you ought to be let go. Eventually, sure, our system gets there (after four or five trips to the Supreme Court)-but it detains many people we shouldn't have held in the first place for seven years, in terrible conditions.Let's put aside the "terrible conditions" and torture stuff. I do not, and will not, support those. Every single detainee our country holds, whether here, Guantanamo, Iraq, and whether POW, UEC, or evil personified, should not be subject to torture.
The ability to challenge the facts being used to justify detention is the core of due process-and inherent in that is that if that challenge is successful, detention necessarily ends.Again, once that challenge is reviewed by the judiciary and there is no more evidence to be presented, I agree completely.

I understand your point. I agree with it-that the great shame of Bush's handling of this is that he threw away a very clear justification for holding the detainees, one well-respected in international law, better for our national security (as it would have more reliably held the bad guys), and which would have shown that we were undisputably the good guys. I still can't figure out why-my guess is his continuing desire to increase executive power.I will except Bush, because I think he's too fucking stupid to think that far, but I do believe the ones who told him what to do and the legal justification to do so were motivated by power.
I understand that's not your concern-but it is a concern. It's a big concern if we now say that the people we're holding are POWs--even things that aren't torture are POW mistreatment, and it's hard to treat them as POWs without conceding that they were horribly mistreated according to the rights of POWs--and then we are squarely faced with the concern-as such mistreatment is a war crime.Again, put aside the torture and mistreatment, things that should never have happened and that have no justification to my mind. And that is true completely regardless of whether they are POWs or UECs. My point is do you think there would be anything different (torture, etc. excepted) in the length of detention or the lack of trial? I don't see it. Which is, again, why we need a President who will step forward, get a fair system for the CSRT's and trials after them, and do what is right. All without having to drag them into our criminal justice system. There are certainly some that can be tried there, but, there are also many that rely too much on confidential information/national security issues that a military tribunal would be better served. That's how we dealt with the war crimes of WWII and that's how we should deal with them now.

By that definition, there are seven billion people in "the war zone," almost all of whom don't look like soldiers. Since we're detaining these people under the authority to hold enemy combatants, we must quickly figure out if person X who we've captured is someone we're entitled to hold at all, let alone someone who we can try and then punish.Agreed. And that determination should not be done by a civilian jury. The CSRT's are preferrable for those determinations. You don't advocate that the UEC determinations be done by civilian juries, do you? Just that the trials be done there? Or am I missing something? Whatever method we use must efficiently and reliably determine whether we have the right guys or not, and if we don't, let them go. The CSRT doesn't do that, and given the questionable nature of the people we've detained to date, waiting all the way through trial isn't good enough either.The CSRT HASN'T done that. But it can, if not being run by complete idiots or fear mongering politicians.

As an aside, thank you for the actual debate, and not relying on hysterics and pointless swipes.

[clairobscur]

Now, I'm fully aware that by saying that, some posters with .... lesser intellects, will certainly quote that paragraph and allege that somehow I support the detention of innocent people based only on fearmongering. [...]. But the reality of the world and terrorism, to me, works against granting people every benefit of the doubt.


Your argument has been used by all people who wanted to curtail liberties, and accepted by all people who didn't care about curtailing liberties as long as it didn't hurt them.

I don't allege. You're doing exactly that. There are innocent people(you admitted so much) who are detained based on fearmongering ("the reality of the world of terrorism", your own words).


I'm proud to claim this lesser intellect that allows me to see the situation in such a simplistic way.

[clairobscur]

I understand your point. I agree with it-that the great shame of Bush's handling of this is that he threw away a very clear justification for holding the detainees, one well-respected in international law, better for our national security (as it would have more reliably held the bad guys), and which would have shown that we were undisputably the good guys. I still can't figure out why-my guess is his continuing desire to increase executive power.


No. The obvious reason is that POWs have all sort of guarantees, rights and protections. There's no basis to even interrogate a POW, for instance.

[whorfin]

Again, my understanding is that if the detainees were treated as POW's from day one, we'd be completely in our powers to be still holding them without charges. As I've said, I would like them to be treated as POWs are treated, but if your concern is the length of detention, the Geneva Convention isn't going to help you.

You misunderstand me. My issue is the legitmacy of detention-part of that is the length of detention insofar as we've made the legitmacy of detention turn on a finding that the detainees are UECs-and then failed to efficiently make that determination.

But my real problem is I want it to be clear why we have a right to detain people, and I want it to be clear that these are people we have a right to detain. For many detainees (at least those caught by our forces in Iraq or in Afghanistan, POW status is an easy answer to that.

Let's put aside the "terrible conditions" and torture stuff. I do not, and will not, support those. Every single detainee our country holds, whether here, Guantanamo, Iraq, and whether POW, UEC, or evil personified, should not be subject to torture.

Again, once that challenge is reviewed by the judiciary and there is no more evidence to be presented, I agree completely.

Well, I think we should need (and I hope we had) some evidence to capture these people in the first place. If that isn't enough to justify holding them, we should let them go. Quickly.

don't get me wrong-I'm not arguing for a high standard to justify mere (Non-belligerent held as POW) detention--If we do in fact have some credible reason to hold a detainee, this shouldn't be hard. If it is hard, I generally suspect it's because we don't really have the evidence.

I am arguing for due process. At a minimum, this includes a hearing before a neutral decisionmaker in which the government must present evidence to justify detention, where the detainee may challenge that evidence, and where, if the government cannot meet its burden, the detainee is released.

As I've already said, this can certainly take into account protecting classified information, or the problems of evidence gathering on the battlefield-as long as it maintains the basic principle of making the government prove it is entitled to detain X, and letting X argue "You have the wrong guy.")

I think other evidence is plenty relevant to whether they should be charged--but it isn't something we should wait for when figuring out if we are justified in holding this person at all.

My point is do you think there would be anything different (torture, etc. excepted) in the length of detention or the lack of trial? I don't see it.

For many of the detainees, those actually caught on a battlefield, no real difference in length of detention, lack of trial-The difference is that we'd be detaining them consistent with the laws of war, and in a way that the world recognizes we're entitled to.

POWs don't need a trial because they're enemy combatants who aren't being held as criminals-but as captured soldiers. POWs may be shown to be war criminals (as we did in WWII) and lose that status, and then be subject to trial.

Now, other people we've detained were either brought to us by afghan warlords to whom we offered a bounty, or were captured elsewhere in the world. They probably aren't POWs-they aren't claiming to be belligerents at all. In their cases, I think it's much more complex to prove we're entitled to detain them at all-and we'll need a process similar to the CSRT to make that determination.


That's how we dealt with the war crimes of WWII and that's how we should deal with them now.

Agreed. And for those who are war criminals, that's how they ought to be treated.

In WWII, most of those we eventually tried were enemy soldiers, first captured and held as POWs, and who both had a hearing to prove that they weren't entitled to be protected as POWs, and then a trial for their war crimes.

Here, at least for some detainees, there should be an extra step--proving that we're entitled to hold them at all (and they're not some dumb afghani villager, or a tourist in the wrong place at the wrong time).

Agreed. And that determination should not be done by a civilian jury. The CSRT's are preferrable for those determinations. You don't advocate that the UEC determinations be done by civilian juries, do you? Just that the trials be done there?

I don't suggest a jury is appropriate for CSRTs. I think that the judge be independent of those arguing for detention, that the government should have to meet some burden to prove that the detainee is properly held, that that there be some mechanism to test the evidence presented by the government by an advocate for the detainee---and most importantly, that if the government can't meet its burden, that it lets the detainee go.

In my mind, this hearing is probably between a judge and two lawyers, all of whom have security clearances. The CSRT is the same kind of thing-but I hope you see how what I propose differs (it might even make sense to separate the two stages-have one hearing to prove that the detainee is a combatant(which need not be held, or can be pretty straightforward if the detainee is captured on the battlefield by American forces), after which he's a POW, and a second to determine if he is an unlawful combatant (and hence can be tried).

As an aside, thank you for the actual debate, and not relying on hysterics and pointless swipes.

Well, thank you--and thanks to you as well. This is a loaded topic, and I agree it's very nice to find someone who can debate it reasonably.

[whorfin]

No. The obvious reason is that POWs have all sort of guarantees, rights and protections. There's no basis to even interrogate a POW, for instance.

The geneva conventions absolutely allow you to interrogate a POW. That's where "Name, Rank, and Serial Number" comes from--it's what the geneva convention demands a POW disclose. Further, just treating them right and asking questions often gets results. Here's one account (and a sad reminder of the days when our interrogators were proud to have standards and not to mistreat prisoners. http://www.washingtonpost.com/wp-dyn/content/article/2007/10/05/AR2007100502492.html

The convention just doesn't let us waterboard them when they don't answer questions.

Article 17
Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

[clairobscur]

The geneva conventions absolutely allow you to interrogate a POW. That's where "Name, Rank, and Serial Number" comes from--it's what the geneva convention demands a POW disclose.

It doesn't allow to interrogate them about their plans, the location of their headquarters, and so on....

I somehow suspect the US administration wouldn't have been satisfied with being able to ask the detainees their names and ranks. And that's why they didn't want to grant them the status of POW.

[whorfin]

It doesn't allow to interrogate them about their plans, the location of their headquarters, and so on....

I somehow suspect the US administration wouldn't have been satisfied with being able to ask the detainees their names and ranks. And that's why they didn't want to grant them the status of POW.

I agree that the U.S. government abandoned geneva in part to ensure they could "interrogate" prisoners-and by "interrogate" they meant waterboard, use physical intimidation, and generally mistreat. After seven years, the fact that they can't point to one genuine thing that interrogations have done for us says a lot to me. (surely they can find something that wouldn't hurt us too much to reveal, seven years down the road).

And again, the geneva convention does allow interrogation. It does not allow mistreatment, or harm when they don't tell us. If you propose we should do that, come out and say it.

As I see it, we were able to do perfectly well in WWII to get lots of useful info using means permitted by the geneva convention, even with die-hard nazis. I don't see why that won't work here-except that it doesn't seem to have been seriously tried by professionals.

[Hamlet]

You misunderstand me. My issue is the legitmacy of detention-part of that is the length of detention insofar as we've made the legitmacy of detention turn on a finding that the detainees are UECs-and then failed to efficiently make that determination.

But my real problem is I want it to be clear why we have a right to detain people, and I want it to be clear that these are people we have a right to detain. For many detainees (at least those caught by our forces in Iraq or in Afghanistan, POW status is an easy answer to that.Maybe it's just a difference of viewpoint, but, to me, both POWs and UECs are detained for the same reason, we don't want them returning to the field to kill us or harm our country. Whether we call them POWs or UECs doesn't really matter to the justification of the detention, only to the legal ramifications of their treatment and eventual release. The issue we both agree on is that there should be a determination by a competent tribunal (due process) that the person is properly detained. And we're both extremely disappointed in the pathetic attempts by our government to do that.

For many of the detainees, those actually caught on a battlefield, no real difference in length of detention, lack of trial-The difference is that we'd be detaining them consistent with the laws of war, and in a way that the world recognizes we're entitled to.And I assert that the "laws of war", international law, US law, and others have all found the detention of UECs to be well within the power of a government. That recognition (that there is a difference between lawful combatants, and unlawful combatants) is a big part of the reason for the Geneva Convention. It was meant, at least in part, to make sure people play by the rules in war, and, if they do they get special protections, but if they don't follow the rules, they don't get the protections.

I've snipped a good part of your post because we've talked about them already or I found myself simply typing "Agreed" over and over. If I missed something, let me know.

[Little Nemo]

Again, it's not a "new legal category", it's something that has been recognized for decades.The definition you linked to is from the Military Commissions Act of 2006. So people were taken in custody in 2001 or 2003 under a law that didn't exist until 2006.

[Hamlet]

The definition you linked to is from the Military Commissions Act of 2006. So people were taken in custody in 2001 or 2003 under a law that didn't exist until 2006.Are you seriously arguing that the US couldn't detain anyone as an unlawful enemy combatant until that term was specifically defined by statute? I guess I'll have to ask for some support for that proposition.

[ElvisL1ves]

The basis for doing so otherwise is pitifully unclear to those of us burdened with "lesser intellects" than yourself. Perhaps you can use your superior understanding to enlighten us as to what authority permitted it before then.

[ElvisL1ves]

BTW, you might want to actually read up on the Geneva Conventions. The fact that you even think it's a singular noun shows you haven't troubled to acquaint yourself with even the basic facts, no matter what you may "assert".

[Little Nemo]

Are you seriously arguing that the US couldn't detain anyone as an unlawful enemy combatant until that term was specifically defined by statute? I guess I'll have to ask for some support for that proposition.No, I'm saying that prior to the Military Commissions Act of 2006, we had to follow the laws that existed at the time these people were taken into captivity. That would be the Geneva Conventions, which said that anyone captured was entitled to the rights of a POW unless they were brought before a tribunal which determined they were not a lawful combatant. And if it was determined they were not a lawful combatant, they were entitled to the legal rights of a non-combatant in custody that existed under the laws of the country which captured them. In other words they're either POW's or criminals, you have a hearing to determine which they are, and then you give them the rights of that group.

The Bush Administration found this too burdensome, so the MCA was enacted. It created the new category of Unlawful Enemy Combatant (the Geneva Conventions have no such classification). The law basically says that a UEC is anyone who the President or Secretary of Defense chooses to designate as such (they have the authority to set up the manner of determining that status) and that once they have defined somebody as a UEC they are not entitled to any rights as a POW or as a criminal. They are also specifically denied any rights that exist under the Geneva Conventions - including the right to a hearing at which they can have their status as an lawful combatant determined.

"What's my status?"
"You're an unlawful combatant with no legal rights."
"How do I get to be a lawful combatant with legal rights?"
"The only way you can get that is at a hearing."
"How do I get a hearing?"
"You don't. Unlawful combatants don't have the legal right to a hearing."

That's some catch, that Catch-22.

[Keweenaw]

So are they going to give the land back to the Cuban government? Or does 'Closing Guantanamo Bay' actually refer to the just the prison itself?

[ElvisL1ves]

Right, just the prison camp itself.

Since you mention it, the US has never claimed the land as its own anyway, so it can't give it back - it's still Cuban territory, on lease. That little fact very conveniently puts anyone held there beyond the reach of any law other than US executive say-so.

The US goes through the annual charade of sending a rent check to Havana via an intermediary, and Havana annually rejects it on the ground that they refused to extend the lease long ago and the US is now squatting there.

[Richard Parker]

That little fact very conveniently puts anyone held there beyond the reach of any law other than US executive say-so.

False (http://en.wikipedia.org/wiki/Rasul_v._Bush).

[ElvisL1ves]

Early skirmishing, still no trial other than the kangaroo type, so not yet the case although it's in the right direction. But thanks for the link anyway.

I'm sure Hamlet will be here momentarily to handwave that away, too.

[Richard Parker]

Early skirmishing, still no trial other than the kangaroo type, so not yet the case although it's in the right direction. But thanks for the link anyway.

No, that's still incorrect.

First, the case directly contradicts your claim about the ownership status of Gitmo affecting the reach of American law. Second, detainees have been released by normal Article III courts under the habeas corpus hearings guaranteed by that case.

[vison]

Right, just the prison camp itself.

Since you mention it, the US has never claimed the land as its own anyway, so it can't give it back - it's still Cuban territory, on lease. That little fact very conveniently puts anyone held there beyond the reach of any law other than US executive say-so.

The US goes through the annual charade of sending a rent check to Havana via an intermediary, and Havana annually rejects it on the ground that they refused to extend the lease long ago and the US is now squatting there.

I thought it was illegal for Americans to do business with Cuba.


Omar Khadr is a Canadian who was captured in Afghanistan when he was 15 years old, has been accused of being a "war criminal" and has been in Gitmo for 7 years. How the hell can a 15 year old boy, no matter what family he belongs to, be charged with "war crimes"?

This whole thing stinks and has stunk for so long it's a wonder we can't smell it here in BC.

Try them or release them.

[BwanaBob]

My answer to the OP is that if there's any evidence to try them for anything, they should be tried under normal criminal proceedings (with their time at Guantanamo accredited as time served if they're convicted), if not, they should be returned to their home countries or the countries of their choice. If their home countries won't take them, they should be given asylum in the US. They should also receive reparations and formal apologies.

I think they should be returned to the country where they were apprehended (if "innocent").

[ElvisL1ves]

How the hell can a 15 year old boy, no matter what family he belongs to, be charged with "war crimes"?Khadr is specifically charged with throwing a grenade that killed an American soldier. If that's true, then he's a murderer however you look at it, even per the International Criminal Court (http://en.wikipedia.org/wiki/War_crime#International_Criminal_Court) definition of war crimes (no, the US is not a signatory, but ftr Canada is). The fuller story. (http://en.wikipedia.org/wiki/Omar_Khadr)

The problem is how to charge and try him in a way that meets conventional standards of civilization. But why are US (or, for that matter, Afghan) criminal courts not suited to the task? Hamlet?

[flickster]

So, after the Senate vote of 90-6 to kill the funding for closing Guantanamo Bay....what's the Administrations next move?


Was this a vote orchestrated by the Administration to give the President an out (at least while workable plans are ironed out)? As in, "Well I tried, I carried through with my promise to close it, but the evil old Senate wouldn't let me"

[Der Trihs]

So, after the Senate vote of 90-6 to kill the funding for closing Guantanamo Bay....what's the Administrations next move? What Democrats always do; cave in to the Republicans.

Was this a vote orchestrated by the Administration to give the President an out (at least while workable plans are ironed out)? As in, "Well I tried, I carried through with my promise to close it, but the evil old Senate wouldn't let me"I expect it's the combination of a President addicted to attempting to compromise with his enemies the Republicans ( who DON'T compromise ), and the Democratic terror of being called soft.

[flickster]

There is no need to compromise with the Republicans, the Administration does not needs their votes in order to pass anything (at least for another 18 months).

[Der Trihs]

There is no need to compromise with the Republicans, the Administration does not needs their votes in order to pass anything (at least for another 18 months).No, there's no need. But Obama will try anyway. The Republicans know that if they are rigid enough that Obama will "compromise" with them; since they don't move their own positions that's effectively a cave in by Obama and the Democrats.

[Krumhorn]

No, there's no need. But Obama will try anyway. The Republicans know that if they are rigid enough that Obama will "compromise" with them; since they don't move their own positions that's effectively a cave in by Obama and the Democrats.

I must have missed the part where he has ever made any attempt at working with the Republicans. What I think is desired is that the Republicans just roll over and go along with the program. That would make nice little Republican puppies out of them and give the libruls plenty of political cover for policies that the American people aren't going to like very much.

Isn't that a more fair assessment?

.............................

[Der Trihs]

I must have missed the part where he has ever made any attempt at working with the Republicans. From the beginning. From before the beginning, with inviting a homophobe to make a speech at his inauguration.

What I think is desired is that the Republicans just roll over and go along with the program. That would make nice little Republican puppies out of them and give the libruls plenty of political cover for policies that the American people aren't going to like very much.

Isn't that a more fair assessment?No, it's not. Obama is a compromiser who can't seem to grasp that the majority of the Republicans are his implacable enemies.

[flickster]

Funny....

According to most conservatives, GW's insistence on trying to "reach across the isle" and work with the Dems was one of the traits that pissed us off so much at him.