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.
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.
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.
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.
The problem is that everywhere is “the war zone” when it’s terrorism.
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.
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.
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.
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 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.
Agreed.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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”.
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.”
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.
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.