Back to Gitmo: When The Heck Will The Prisoners' Fates Be Decided?

[Banquet_Bear]

*Originally posted by manhattan *
**Persons captured on the battlefield, even whether they are illegal combatants or not, are detained for the duration of hostilities. A person wearing the insignia of a medic who engages in combat, for instance, is an illegal combatant. If he’s picked up with a bunch of soldiers, both he and they (POW’s) are held for the duration. He is not “without status”-- he has a status as an illegal combatant captured in battle, as opposed to the soldiers who have the status of Prisoners of War. He may also be subject to charges above and beyond his status as a combatant – if that were to occur, he would be tried by a military tribunal.

That’s exactly what is happening in this instance. **

…your opinion seems to be shared by the current administration.
So who have we actually got locked up in Guantanamo ? Al Queda Terrorists and Taliban sympathisers?

…or bakers, farmers, and taxi drivers?

“There are a lot of guilty (people) in there,” said one officer, “but there’s a lot of farmers in there too.”

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Maj. Gen. Michael E. Dunlavey, the operational commander at Guantanamo Bay until October, traveled to Afghanistan in the spring to complain that too many “Mickey Mouse” detainees were being sent to the already crowded facility, sources said.
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The Afghan and Pakistani governments have raised the issue with Washington. A Pakistani embassy official, who declined to be identified, said his government is convinced that many of the 58 Pakistanis known to be in custody “probably joined the Taliban but didn’t know how to spell Al Qaeda.”
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Others were grabbed by Pakistani soldiers patrolling the Afghan border who collected bounties for prisoners, sources said. One such prisoner was captured at a restaurant near the border where he claimed to have lived and worked for 20 years.

“He had the mental capacity to put flatbread in an oven and that was the extent of his intellect,” the interrogator said. “He never got trained on a rifle, never got pressed into service. But he was Arab by birth so he was picked up and sent away.”

*(note the link is from 2002, prior to several prisoners being released) *

…so how many of the people locked up in Guantanamo are guilty of being in the wrong place at the wrong time? How many were turned in by soldiers after bounties, or by friends or neighbours holding grudges? THIS is I believe trials are an absolutely necessary, so that those who are currently locked up have a chance to plead their case… and unfortunately, this is also the reason why I believe that Rumsfeld doesn’t want trials for the prisoners

…it would be too embarrasing for the admistration…

…I can’t think of ONE compelling reason why open trials cannot be held, and held as soon as possible. (if you can think of one, feel free to enlighten me ) Unfortunately, the length of time that they have already been locked up without legal counsel (sorry, still waiting for either a cite or a concession on this one… ) the questionable interrogation techniques, (that if, as I stated before, if conducted by civilian authorities, would get the case thrown out of court) the rumours that those who pleaded guilty in any cases would get off the death penalty, and the outright bizare things that are going on in the camp now…
…have made me lose hope for fair trials for those in Guantanamo…

…as I stated in a previous thread, my interest in Guantanamo first occured when saw the father of Abassin Sayed
on a BBC broadcast, pleading his son’s innoncence.

http://news.bbc.co.uk/1/hi/programmes/newsnight/2968458.stm

Sayed was a taxi driver in Gardez, who was arrested by the police ( or * gang * , as described by Sayed in the cited transcript ) , because of someone he had in the back of his taxi…

Abassin explains that one of the passengers in his car was someone the gang who ran the checkpoint wanted to capture. In April last year, Gardez was a combat zone. Americans were being ambushed by the Taliban, and they wanted results. Local Afghans were only too happy to oblige by handing over people to them. By having the wrong passenger in his car, Abassin became one of their catch.

Abassin was detained for 13 months,

I arrived tied and gagged. It was the act of an animal to treat a human being like that. It was the worst day of my life.

…Interrogated in a manner if done by the police would get the case thrown out of court because the information would be UNREALIABLE…

The lights were so strong, you couldn’t differentiate between day and light. If you tried to cover your face to sleep the soldiers came in and told you not to do that.

…snip…

I was interrogated for 11 times, for six and seven hours at a time.

…placed in solitary confiment for exercising…

They sent me to a solitary confinement for exercising in my cell. They took me to a container for five days. Inside there was nothing. No blankets, nothing. It was the kind of punishment they give you if they ask you questions you didn’t know the answer to.

…and then when finally released, he was given no certificate of innocence, no compensation for the time spent away from family, and his business, or for any of the related heath problems that he ended up having after a year of captivity…

Among Abassin’s documents, there’s none to declare him innocent, but there’s an agreement he signed with the Americans never to engage with the Taliban or Al-Qaeda, and not do anything that might do harm to the United States.

snip

And he has physical problems, with his eyesight, his skin, and his knees.

…and this case was the most OBVIOUS of innocent cases, with a highly publicised campaign from his father to get him released. Anyone want to hazard a guess how many similar cases are locked up right now? Sadly, Abassin claims his best friend, Wasir Mohamed, is still locked up in Guantanamo, his crime apparently was to ask what had happened to his friend, which led to him being turned over to the American authorities. He wasn’t captured bearing arms, or supporting the Taliban or Al Queda, but because the American authorities took the word of the local police (nee gang).

In the words of Abassin himself, “Don’t worry, you’ll be released, because you’re innocent.”
…but to quote Colonel Rodney Davis, with the Coalition Taskforce, "That’s actionable intelligence. We’re not perfect. It’s not a perfect world. This is a war. But given all the things we’ve been involved in, ** I think we’re doing quite well. " **

…when playing with people’s lives, is “doing quite well” really good enough?

[SentientMeat]

Ah, so articles 4 & 5 are redundant anyway because the Taleban was not party to the Geneva Convention? It was Party to the Conflict but not within its coverage because the Northern Alliance were the recognised government?

Oh, please. Remeber those maps of Afghanistan? Tiny enclaves of Northern Alliance power with enormous tracts of Taleban controlled countryside including the captial?

The Taleban were the de facto government of Afghanistan, and were a Party to a Conflict. To wish their GC coverage away by only “recognising” another faction is absurd. “Hey, wanna detain your enemy’s troops for years, regardless of whether the war is over? Just choose a faction other than the ones controlling the capital, recognise them as the only party covered by the GC, shhot at your enemy and kill or arrest anyone who shoots back!”

Arbitrary recognition, while it may be convenient, is what the Geneva Convention was specifically designed to avoid, agreed?

And we still don’t know how you tell a Taleban soldier from an Al Qaeda operative from a scared civilian caught in a warzone and subsequently taking up arms spontaneously, save for “Well, he looks more Arabic than Pashtun”, without a judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

[SentientMeat]

And let us put this to bed:

For the last time, there is NO SUCH ENTITY as an “illegal combatant” - Sir Tim Garden, Professor of Defence Studies, King’s College London.

[sailor]

The US government has clearly and inequivocally indicated it considers these detainees as wrongdoers. The only way to determine if the US government is right is to try them.

And, BTW, the USA is interrogating them continually which is a practice expressly forbidden for POWs who are only required to give their name and rank.

http://www.miami.com/mld/miamiherald/news/6601339.htm

Inducements such as chewing gum, instant tea and salt packets are given to those who cooperate during their interrogations

Wonderful. Ain’t the Americans nice?!

The USA accuses them of breaking laws. Let the courts determine that. It is a principle embodied in the US constitution and the USA government should respect it. This is a shame and very beneath what America should be standing for. When China did things like this the USA criticized it and rightly so. Now the USA is being criticized by the rest of the world, and rightly so. This has no place in civilized society.

[minty_green]

*Originally posted by Diogenes the Cynic *
What if we shot at them first?

In a war? Fine by me.

Originally posted by Sentient Meat
For the last time, there is NO SUCH ENTITY as an “illegal combatant” - Sir Tim Garden, Professor of Defence Studies, King’s College London.

Your appeal to authority is wrong. Here’s what Sir Tim has to say on the subject:

The US has said that its prisoners are “illegal combatants”. This is not a designation recognised by international law. During an armed conflict combatants are permitted to take a direct part in hostilities, and if captured becomes prisoners of war (POWs). They then are treated according to the requirements of the Geneva Convention. If they are not combatants then they lose the POW protected status, and must be prosecuted as criminals for any attacks on people or property.

It doesn’t matter one tiny bit whether “illegal combatant” is “recognized by international law.” Unless there’s an international law that applies to them, it doesn’t matter what Bush calls 'em, or what he does to 'em. The legal issue is whether they are P.O.W.'s under the Geneva Convention, which they are not. Sir Tim ignores the requirements of Article 4 altogether and merely assumes the conclusion he wishes to reach.

Originally posted by Sentient Meat
The Taleban were the de facto government of Afghanistan, and were a Party to a Conflict.

No, they were not. There is no such thing as a de facto party under the Convention. Either you’re a party or you ain’t, and the Taliban assuredly ain’t. There’s nothing arbitrary about that, either. For all the years of the Talibs were in charge, the U.S. refused to recognize them as the legitimate government of Afghanistan. They were afforded none of the rights and privileges due to a sovereign government under international law, including the Geneva Convention. The Taliban were not obligated to treat captured American soldiers according to the terms of the Convention, and the U.S. was not obligated to treat the Taliban under the Convention.

[sailor]

minty, you are arguing that it is “legal” and we disagree on that. I am convinced it is illegal. We just disagree. The point though is that, even if it were legal (which I do not concede) it is still barbaric and goes against centuries of western civilization and tradition. The USA has criticised it when other countries have done similar things even though they were legal in those countries. It has criticised China, Cuba, North Korea and Iraq for similar things (and very rightly so). Now the USA is being criticised by the rest of the devemoped, civilized, developed, nations, and very rightly so. It is alone against the rest of the world on this issue.

But I suppose that to a person like you, who thinks an independent judiciary is really not a necessity, this matters little.

[SentientMeat]

The legal issue is whether they are P.O.W.'s under the Geneva Convention, which they are not. Sir Tim ignores the requirements of Article 4

An appeal to authority is perfectly permissable if that authority is an expert in the specific context under discussion. I say they are. He says they are. You say they are not, pointing to Article 4, but did you not just say that the entire GC does not apply to an army who had captured the capital city and controlled most of the country but had not yet been recognised as a government? This makes your reference to article 4 in particular all the more perplexing.

the U.S. was not obligated to treat the Taliban under the Convention.

And how do we know they were Taliban rather than civilians who took up arms?

There is no such thing as a de facto party under the Convention.

You believe that, when a nation undergoing a civil war is invaded, the invading army can pick and choose who to bestow PoW status on? That eg. a nation could sweep through most of Africa collecting up possibly millions of people who happened to shoot back when shot at, and denying them GC provisions? The Taliban were clearly Party to the Conflict. Otherwise, what the hell were they firing their guns for?

[minty_green]

I have no problem with international criticism of the Guantanamo detentions. I agree with many of those criticisms. I believe the status of the prisoners, esp. those who are not believed to be affiliated with al Qaeda, should be resolved ASAP. But it is not a legitimate argument to claim that the detentions are illegal under the Geneva Convention, and I darn well don’t have to go along with that false assertion simply because there are other problems with the detentions.

Incidentally, I’d like to see some cites to the effect that the U.S. has criticized other countries for taking prisoners in a war without affording them P.O.W. status. It’s not very persuasive to equate human rights issues generally with this specific situation, which looks to me to be quite unlike any other we’ve ever seen.

[minty_green]

*Originally posted by SentientMeat *
An appeal to authority is perfectly permissable if that authority is an expert in the specific context under discussion.

Not when the purported authority makes no reference whatsoever to the text of the Geneva Convention, and not when his logic is as fractured as that. Show me an expert who can actually put the detainees within the text of the Convention, not some goofball who doesn’t even know what the bloody issue is.

**ut did you not just say that the entire GC does not apply to an army who had captured the capital city and controlled most of the country but had not yet been recognised as a government?

I never said any such thing. Kindly do not put such words in my mouth. While many of the Article 4 provisions require “Party” status, not all of them do. Subsection (A)(3) in particular does not require status as a party–but it does require you to be “regular armed forces,” which the Taliban certainly were not. I’ve been over that already, you know.

And how do we know they were Taliban rather than civilians who took up arms?

So you’re saying that some of those guys were “spontaneous civilians” covered by subsection (A)(6)? Great. Please present your evidence to that effect and I will be happy to concede the point if you are correct. Short of that, you’re just baselessly speculating.

You believe that, when a nation undergoing a civil war is invaded, the invading army can pick and choose who to bestow PoW status on?

No. I believe that they must treat Party prisoners, regular armed forces, and spontaneous civilians under the terms of the Convention. Everybody else must be treated in accordance with all applicable human rights laws. To the extent that the latter has not occurred in Guantanamo, I object.

The Taliban were clearly Party to the Conflict. Otherwise, what the hell were they firing their guns for?

You’re ignoring the text of the Convention again. The Taliban were a participant in the war, but they were not a “Party” to the Geneva Convention and are therefore not subject to its provisions regarding Party prisoners.

[Banquet_Bear]

*Originally posted by minty green *
**
So you’re saying that some of those guys were “spontaneous civilians” covered by subsection (A)(6)? Great. Please present your evidence to that effect and I will be happy to concede the point if you are correct. Short of that, you’re just baselessly speculating.

**

…my links, in the post above, show that “some of those guys” may well indeed be “spontaneous civilians,” in fact I would go as far as to say that they are actual civilians-in a distinct legal limbo…

[SentientMeat]

You’re ignoring the text of the Convention again.

And you’re shifting the burden of proof again. Their default status is PoW until a competent tribunal decides otherwise.

The US army regulations are perfectly clear that this is the default, and that the burden of proof is on those making accusations of criminality: US Army regulation 190-8.

1-5 (2) All persons taken into custody by US forces will be provided with the protections of the GPW [ie. GC relating to POW’s] until some other legal status is determined by competent authority

Rummy doesn’t count.

[sailor]

*Originally posted by minty green *
But it is not a legitimate argument to claim that the detentions are illegal under the Geneva Convention, and I darn well don’t have to go along with that false assertion simply because there are other problems with the detentions.

Personally I have never asserted whether the detainees are or are not to be considered POWs but this is certainly a legitimate question which is to be answered by the courts, not by the executive. From that point on, I consider the detentions illegal.

Incidentally, I’d like to see some cites to the effect that the U.S. has criticized other countries for taking prisoners in a war without affording them P.O.W. status. It’s not very persuasive to equate human rights issues generally with this specific situation, which looks to me to be quite unlike any other we’ve ever seen.

The argument that “this is a new situation, unlike any other we’ve ever seen” is complete and utter Industrial-strength bullshit which not even the government officials who repeat it believe. It is nonsense. The government is accusing these people of belonging to Al Qaeda and of plotting to kill Americans and those are illegal acts under the law. They need to be tried in a court of law for whatever offenses they are accused of. And if they have broken no laws they need to go free. Bills of attainder, ex-post-facto laws have no place in a civilized society, much less holding people indefinitely.

The first person to steal a Segway was arrested not so long ago. Would it be ok for the police to say “gee, we’ve never had this happen before; this situation is unlike any other we’ve ever seen. . . let’s just sent the guy off to Guantanamo until we can think of how to deal with this”? I don’t think so.

The internet is much more of a new situation than AlQaeda. When people are doing things on the internet which are not prohibited but are considered undesirable the answer is to prohibit them. But you cannot just say “it is new so we suspend all rights and guarantees”.

Incidentally, I’d like to see some cites to the effect that the U.S. has criticized other countries for taking prisoners in a war without affording them P.O.W. status.

Again the silly argument. The USA has criticized China, Cuba, Iraq and other countries for holding people and not affording them a fair trial where their guilt or innocence could be determined. China would respond along the lines that “human rights are a western concept which does not apply in China” and the rest of the world would say that “no, human rights apply to all humans”. The Chinese government considered their prisoners as enemies of the Chinese state no less than the USA considers the detainees as enemies of the USA. The USA is wrong. NO other country supports the situation in Guantanamo and most western governments have expressed their concerns and hope that the situation will soon end. The USA is now in the company of dictatorships in the way it is handling the detainees and facing the criticism of the rest of the civilized nations and rightly so.

[minty_green]

*Originally posted by Banquet Bear *
…my links, in the post above, show that “some of those guys” may well indeed be “spontaneous civilians,” in fact I would go as far as to say that they are actual civilians-in a distinct legal limbo…

Okay, great. Now, are those persons still interred at Guantanamo? That article, after all, is nearly a year old.

[SentientMeat]

Now, are those persons still interred at Guantanamo?

The point, as you surely realise, is that other detainees there might be similarly innocent. We just don’t know until they are judged by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

[minty_green]

*Originally posted by SentientMeat *
And you’re shifting the burden of proof again. Their default status is PoW until a competent tribunal decides otherwise.

Again, this is completely false. From the very same Army document you cite:

In accordance with Article 5, GPW, **if any doubt arises[/b[ as to whetehr a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

No doubt = no tribunal, and there sure as hell is no “default status” as a POW.

Rummy doesn’t count [as a “competent authority”].

Why not? Because you say so? I would assert that, since you’re depending on the regulations of the US Armed Forces, the Commander in Chief of those Armed Forces is about as “competent authority” as they come.

[SentientMeat]

No doubt = no tribunal

The presence of farmers and labourers does not constitute “doubt” to you?

the Commander in Chief of those Armed Forces is about as “competent authority” as they come.

Very well, if you could just tell me what legal status, as recognised under international law, that he has competently determined (through due process) that they have, I’ll be on my way.

[SentientMeat]

And, incidentally, your quote was from Section 1-6, which is separate to 1-5. The condition for a tribunal is a red herring. Section 1-5 (2) says All persons are PoWs until otherwise determined.

[minty_green]

*Originally posted by SentientMeat *
The presence of farmers and labourers does not constitute “doubt” to you?

Not really. The ranks of the Taliban were filled out by any number of Afghans. If they were captured or surrendered as part of the Taliban’s armed forces, their civilian jobs are entirely irrelevant. Show me something that says a particular prisoner was not part of the Taliban’s armed forces, or that he was a civilian spontaneously taking up arms against the approach of the Green Berets, and then you’ve got some Article 5 “doubt” that must be taken before a tribunal.

Very well, if you could just tell me what legal status, as recognised under international law, that he has competently determined (through due process) that they have, I’ll be on my way.

They have no particular legal status under international law, nor is it necessary that they should have any particular legal status. They’re just these guys who aren’t POW’s, you know?

Section 1-5 (2) says All persons are PoWs until otherwise determined.

That provision does not apply, since their legal status has been determined by “competent authority,” i.e., the President of the United States, et al. 1-5(2) does not require adjudication by a tribunal.

[SentientMeat]

minty, I think this debate between us might have some value to other readers, and I would hate to think it might become a more personal quarrel, but I think you are stretching the following sentence in, dare I say it, a december-esque manner:

All persons taken into custody by US forces will be provided with the protections of the GPW until some other legal status is determined by competent authority.

Read it again.

All persons taken into custody by US forces will be provided with the protections of the GPW until some other legal status is determined by competent authority.

Now, surely, for the love of Godber:[ul][li] “No legal status” is not “some other legal status”.[/li]“Rummy at a press conference” is not the “competent authority” referred to.[/ul]

[minty_green]

*Originally posted by sailor *
Personally I have never asserted whether the detainees are or are not to be considered POWs but this is certainly a legitimate question which is to be answered by the courts, not by the executive.

Legitimate question, yes. Courts, no. The Convention says nothing about courts, and only provides for tribunals in specific situations that are apparently not present here. Your preference for judicial determination of teh POW question is duly noted, but may and should be ignored by the authorities.

The government is accusing these people of belonging to Al Qaeda and of plotting to kill Americans and those are illegal acts under the law. They need to be tried in a court of law for whatever offenses they are accused of. And if they have broken no laws they need to go free.

Again, you’re just asserting that this is a matter for criminal law, not a matter of armed warfare. I disagree.

[quote]
The first person to steal a Segway was arrested not so long ago. Would it be ok for the police to say “gee, we’ve never had this happen before; this situation is unlike any other we’ve ever seen. . . let’s just sent the guy off to Guantanamo until we can think of how to deal with this”? I don’t think so.

The USA has criticized China, Cuba, Iraq and other countries for holding people and not affording them a fair trial where their guilt or innocence could be determined.

Sorry, not comparable. Those were not prisoners taken in the course of armed warfare. Please try again, as I am unpersuaded by your undifferentiated appeal to human rights.