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.
A fine display of table-pounding there, Counselor.
Try it sometime if you yourself ever get “thought an enemy combatant”.
Couldn’t read the whole of my post, Elvis? I lay a good deal of it out in there.
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.
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.
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.
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 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.
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”
No, it’s your fundamental misunderstanding of the facts.
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.
- 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).
- 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.
- 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”.
- 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).
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.
About everything except the core matter that all of the rest of us, out here in the reality-based community, have been discussing.
“The government”. Did you keep a straight face while typing that?
Except for Congress and the Courts, that is. As you fucking well know, Counselor.:rolleyes:
What planet have you been on for the last seven years? Those things have been nowhere present!
Address the fucking problem and the fucking facts and you’ll get treated more nicely. Feel free to start any time.:rolleyes:
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. 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.
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.
The possible consequence of error is wrongful killing of an innocent–the death penalty is available, and is being sought in detainee cases. US issues 9/11-related charges against six Guantanamo detainees | Guantánamo Bay | The Guardian
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.
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:
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.
Yes. And I fully advocate treating all detainees as POW’s, whether they fit the definition or not.
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.
The fact that the CSRT’s can be judicially reviewed is such a protection. Judge Leon recently ordered the release of yet another detainee.
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.
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.
The cite to Quirin was merely to point out the long accepted recognition of the difference between lawful and unlawful combatants.
Hence the statutory definition.
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.
There was also a very good UCMJ process and outline that should have been used to deal with detainees in the War on Terror.[sub]tm[/sub] 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.
Indeed so grasshopper. And we agree more than we disagree. Which is always a good sign.
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.
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.
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?
He didn’t have to devise shit. He merely had to follow the law.
Again, why not?
You’d create a new, ad hoc system of law after the fact, instead of using the one we’ve got. Right.
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.
Continued DETENTION, I of course mean.
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. 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.
In what country do you live?
Just so we’re on the same page, the Supreme Court has found the removal of habeas was improper and unconstitutional.
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.
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.
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.
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’ve snipped a bit of your post, because I feel I’ve addressed the issues.
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.
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.
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.
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.
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 (Khalid El-Masri - Wikipedia).
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.
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.
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.
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.
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.