# Guantanamo:  why are only US citizens allowed civilian legal representation?

**URL:** <https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418>\
**Category:** Great Debates\
**Created:** [July 5, 2003, 6:32pm UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418 "2003-07-05T18:32:36Z")\
**Posts on this page:** 16\
**Page:** 7

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**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [July 15, 2003, 4:41am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/121 "2003-07-15T04:41:14Z")

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> [@](#):
>
> \*Originally posted by DrDeth \*  
> \*\*  
> Note that the ICRC website specifically says “In any case, the US has the right to legally prosecute any internee at Guantanamo bay suspected of having commited war crimes or any other crimes punishable under US law prior to or during the hostilities”. \*\*

DrDeth- you have entirely missed the real point of this thread (the fact that Guantanamo detainees are not being tried under the same auspices as US citizenry captured in Afghanistan, not the treatment of prisoners being held).

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**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 15, 2003, 5:35am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/122 "2003-07-15T05:35:17Z")

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> [@](#):
>
> _Originally posted by sailor_  
> Again, if you had read the thread you would see I quoted the Geneva convention which says in article 8……… it says “himself”, not through the Red Cross, not through others but "himself.

Allow me to re-quote the Convention:

> [@](#):
>
> _Article 8_  
> As soon as possible, every prisoner must be enabled to correspond with his family himself, **under the conditions provided in Articles 36** et seq.
> 
> _Article 36_  
> “Each of the belligerents shall periodically determine the number of **letters and postal cards** per month which prisoners of war of the various classes shall be allowed to send, and shall inform the other belligerent of this number. These letters and cards shall be transmitted by post by the shortest route. They may not be delayed or retained for disciplinary reasons.  
> Within a period of not more than one week after his arrival at the camp, and likewise in case of sickness, every prisoner shall be enabled to **write his family a postal card** informing it of his capture and of the state of his health. The said postal cards shall be forwarded as rapidly as possible and may not be delayed in any manner.

But seriously, did you really think that the 1929 Geneva Convention requires us to allow POWs to make telephone calls? Or are we supposed to let them out on week-ends so they can visit the family or what? I’ll just add that the 1949 Convention also calls only for letters and “cards.” (See Articles 69 through 77)

> [@](#):
>
> _Originally posted by sailor_  
> Please post cites saying the Prisoners are being given all the rights and protections of the Geneva convention.

> [@](#):
>
> “President Bush said the United States would regard the Geneva Conventions as applying to Taliban detainees under U.S. control – but not Al Qaeda detainees.
> 
> Defense Secretary Donald Rumsfeld said today the United States would continue to treat all detainees humanely and **in accordance with standards set by the Geneva Conventions.** “ _DoD Press Release; Feb 7, 2002_
> 
> “Let there be no doubt," a visibly perturbed Rumsfeld said. "The treatment of the detainees in Guantanamo Bay is proper, it’s humane, it’s appropriate and it is **fully consistent with international conventions**.
> 
> "No detainee has been harmed. No detainee has been mistreated in any way. And the numerous articles, statements, questions, allegations and breathless reports on television are undoubtedly by people who are either uninformed, misinformed or poorly informed
> 
> We are giving them the treatment that is **appropriate under the Geneva Convention**. _LA Times; Jan 23, 2002_
> 
> “I would rather be in an 8-by-8 cell with a (tropical) breeze than to be locked down at Folsom Prison,” Feinstein said **after her own close-up look at conditions inside X-Ray** , an arid patch beneath Guantanamo’s hills where Haitian refugees were once held. Another Democratic Senator, Hawaii’s Daniel Inouye, said the U.S.‘s treatment of the detainees’ was “not only humanitarian but (perhaps) overly so.” _Time; Jan 28, 2002_
> 
> _Note that the above applies to Camp X-Ray, the temporary facility where conditions were acknowledged to be somewhat “rough.”)_  
> “The British officials responsible for the interviews gave the detainees full opportunity to express concern about their treatment, including sensory deprivation. None complained of ill-treatment and they all appeared to be in good physical health.” _Mr. Bradshw, discussing in the House of Commans a visit to Camp X-Ray by a British delegation in Jan, 2003_
> 
> “Consistent with American values and the principles of the Geneva Convention, the United States has treated and will continue to treat all Taliban and al Qaeda detainees in Guantanamo Bay humanely and consistent with the principles of the Geneva Convention.” _Statement by the Press Secretary on the Geneva Convention; May 7, 2003_

> [@](#):
>
> _Originally posted by sailor_  
> I am sure you have cites showing this is being done. Please show some cites proving the prisoners are being housed in quarters similar to that of the American soldiers.

> [@](#):
>
> “Camp Delta…………is not a place of visible humiliation or cruelty. **Some of its key facilities, from medical care to the food, are exactly the same as those provided to the guard force of US military police**.  
> The call to prayer is piped through the cells five times a day, and each inmate has a copy of the Koran, prayer beads and holy oil. \* The Telegraph (by a reporter who has actually visited Camp Delta); May 24, 2003\*

The only so-called violation is that they are held in cells, just like suspected war criminals in WWII, Korea, Vietnam, **THE HAGUE re YUGOSLAVIA** , etc……As I’ve already pointed out, this is allowed by your own cite which calls for dormitories “ **except** as an indispensable measure of safety…………”

> [@](#):
>
> _Originally posted by sailor_  
> Prisoners held in small open air cages.

I’m disappointed to see you stooping to the level of the _Guardian_. After all, what, exactly, is the difference between a “cage” and a “holding cell?” It’s especially pathetic now given that these so-called cages were temporary structures used only at Camp X-Ray which has been closed for well over a year.

As a point of reference, when the US complained about the use of “cages” by the Vietnamese they were talking about 4 x 4 boxes which didn’t even allow the POWs to stand up.

> [@](#):
>
> _Originally posted by sailor_  
> Prisoners are denied access to lawyers and are under constant interrogation.

Really? Constant interrogation? Geez, I’m starting to feel kinda sorry for the interrogators. They must be tired by now. Seriously, if you suspect that the US is interrogating them for an excessive amount of time, shouldn’t you at least find out just how much they actually are being interrogated?

As for lawyers, POWs in general don’t get lawyers. Period. End of story. When they are charged with a crime they get a lawyer:

> [@](#):
>
> No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.  
> _Article 99_

We’ve already covered this. The Military Commission rules state that every single one of these men who is charged with a crime will have a lawyer. End of story.

**dutchboy208** …this thread veered away from that topic some time ago, it’s hardly fair to blame **DrDeth**

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**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\
**Post date:** [July 15, 2003, 7:34am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/123 "2003-07-15T07:34:47Z")

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**zigaretten** , I have never said most of the things you attribute to me so I am not going to bother responding to your post. You should be extremely careful attributing things falsely because it can get you into some serious trouble here. I am going to assume it was an honest mistake as what you attribute to me was said by other posters. Please be more careful.

In any case, the USA does not allow the prisoners to write home themselves as required by the geneva convention and it does not house them or treat them in accordance with the provisions of the Geneva Convention. Any cites from the USA saying they are doing this are just self-serving lies. I would like to see cites from the ICRC or other NGOs supporting this point of view. Frankly, the US government is an interested party in this and lately is lying every time it talks.

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**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 15, 2003, 8:06am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/124 "2003-07-15T08:06:40Z")

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> [@](#):
>
> \*Originally posted by sailor \*  
> **zigaretten** , I have never said most of the things you attribute to me…

Again I blow it! You are correct. Those last two quotations belong to **antechinus** and I was entirely in the wrong to attribute them to you.

Apologies also to **antechinus** , of course!

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**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 15, 2003, 8:26am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/125 "2003-07-15T08:26:37Z")

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> [@](#):
>
> \*Originally posted by sailor \*  
> In any case, the USA does not allow the prisoners to write home themselves as required by the geneva convention…

> [@](#):
>
> As time passes in Guantanamo Bay, the ability to send and receive Red Cross messages ( **brief personal letters to relatives** ) is assuming ever greater importance for the more than 600 people interned there by the United States, and for their families abroad.
> 
> In the year since the first internees began to arrive in Guantanamo Bay, some **3,300 Red Cross messages** have been exchanged. They represent a lifeline of contact; especially for internees whose families live in remote areas not covered by postal services, they are often the only way to stay in touch with their relatives.
> 
> _ICRC; Jan 13, 2003_

Just saying something doesn’t make it so, **sailor**.

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**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\
**Post date:** [July 15, 2003, 10:24am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/126 "2003-07-15T10:24:45Z")

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> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*
> 
> You may be right, but if so, it wasn’t invented by this administration………… \*\*

Maybe you should educate yourself on when the Geneva Conventions were written. Or did you want to suggest that the fact that the Nazis murdered thousands of people a time justifies acting that way?

The Geneva Conventions very much have provisions on what to do with saboteurs, spies and other irregular combattants.

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**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\
**Post date:** [July 15, 2003, 10:40am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/127 "2003-07-15T10:40:36Z")

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> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*Just saying something doesn’t make it so, **sailor**. \*\*

Exactly. Everything I have seen and heard since Camp Guantanamo was set up leads me to believe the prisoners are not being treated humanely or being given very basic rights. I believe they have been interrogated and not in a benign way. I believe they have been psychologically abused and maybe physically too. I believe some have been threatened with being sent to Egypt and/or other countries where they would be tortured. I believe they are being held in inhumane conditions. I believe the reason the US government will not even release their names is to hinder any efforts from the outside to help assure their fair treatment. And I believe all this is wrong and should stop.

Now, I may be mistaken and I wish I was mistaken. I wish tomorrow I could read some convincing information showing these prisoners were never mistreated and were always afforded all their rights but for now I remain unconvinced and therefore you and I will just have to agree to disagree until further evidence changes my mind. I will note that several governments around the world have also expressed concern about the condition at the camp so it is not like I am alone in my concerns. I would love the see the governnment of the UK and some NGOs proclaim that the prisoners are being treated humanely and all their human rights respected. Believe me, there is nothing I would like to see more than that because it would ease two things which worry me : (a) the mistreatment of the prisoners and (b) that it is being done by the US.

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**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\
**Post date:** [July 15, 2003, 10:56am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/128 "2003-07-15T10:56:24Z")

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> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*
> 
> The only so-called violation is that they are held in cells, just like suspected war criminals in WWII, Korea, Vietnam, **THE HAGUE re YUGOSLAVIA** , etc……As I’ve already pointed out, this is allowed by your own cite which calls for dormitories “except as an indispensable measure of safety…………”  
> \*\*

Sorry, that doesn’t cut it. That such is necessary would have to be shown on an individual level.

> [@](#):
>
> \*\*  
> As a point of reference, when the US complained about the use of “cages” by the Vietnamese they were talking about 4 x 4 boxes which didn’t even allow the POWs to stand up. \*\*

Irrelevant as a point of reference. Neither are you dealing with Vietnamese, nor does one violation justify another. Unless, of course, you wanted to show a point of reference that the US is close to sinking to Vietnamese levels of conduct.

> [@](#):
>
> \*\*  
> As for lawyers, POWs in general don’t get lawyers. Period. End of story. When they are charged with a crime they get a lawyer:  
> \*\*

They don’t get a lawyer because they aren’t supposed to be herded like cattle. They are suppose to enjoy life on a similar level of comfort as the local troops. And if they are to be charged with a crime, they are to be charged speedily, and trials have to comply with certain standards. More, in case of POWs, they are strictly not to be interned for more than three months.

> [@](#):
>
> Article 103
> 
> Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

The Geneva Convention demands a lawyer _of the prionser’s choice_, not just _a_ lawyer.

> [@](#):
>
> \*\*  
> We’ve already covered this. The Military Commission rules state that every single one of these men who is charged with a crime will have a lawyer. End of story.\*\*

The end of the story is that the military commissions neither comply with the standards for trials demanded by the Geneva Conventions (which impose strict limits on what crimes can be tried at all, and in what cases the death penalty can be administrated). In fact, the military commission rules leave the defendant less rights than South African apartheid courts, let alone english terrorist courts in Northern Ireland. The end of the story is that the very person which decides who is tried is the one who gets the final say on whether the death penalty is actually applied, and technically has a command function over the so-called ‘lawyer’.  
Whether the commissions are even capable of acknowledging the fact that 'The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. ’ is a matter that deserves its own discussion.

And all these apply solely if the prisoner is indeed considered a prisoner of war. If they are indeed considered ‘illegal combattants’ and the POW convention does not apply, articles 5 and 64+ of the convention on the treatment of civilians are applicable, most importantly:

* * *

Article 5

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Article 64

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

Article 65

The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language. The effect of these penal provisions shall not be retroactive.  
Article 68

Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that, since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

## In any case, the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offence.

More, under these circumstances, it is questionable whether the US is actually allowed to try the case at all:

–Article 77

Protected persons who have been accused of offences or convicted by the courts in occupied territory shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory. ----

Which suggests that they should be handed over to Afghanistan and left for the new Afghan administration to try them.

Not the least, while the Convention does not preclude military trials, a trial in Guantanamo would be a flat violation:

Article 66

In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied country.  
You can turn it as much as you want, but by any standard remotely comparable, the Military Commissions qualify as Kangaroo courts which deny the defendants critical rights.

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**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 15, 2003, 2:52pm UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/129 "2003-07-15T14:52:58Z")

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**Sailor** ………sounds fair enough to me.  
**In Re: Prisoners in cells**

> [@](#):
>
> _Originally posted by OliverH_  
> Sorry, that doesn’t cut it. That such is necessary would have to be shown on an individual level.

This matter has been dealt with on an individual basis. Remember that the vast majority of persons taken into custody in Afghanistan are not at Guantanamo. Only those _individuals_ who were deemed to be suspected of war crimes were sent to Guantanamo.

**Re: Vietnamese/Cages**

> [@](#):
>
> _Originally posted by OliverH_  
> Irrelevant as a point of reference. Neither are you dealing with Vietnamese, nor does one violation justify another. Unless, of course, you wanted to show a point of reference that the US is close to sinking to Vietnamese levels of conduct.

I believe you’ve missed my point here. (As I missed your point in your first post). My whole point is that the US has **not** sunk to the level of the Vietnamese and that it is unfair for critics to use _inflammatory_ language that implies that we have.

> [@](#):
>
> _Originally posted by OliverH_  
> They don’t get a lawyer ……….

Good……….we agree.

> [@](#):
>
> _Originally posted by OliverH_  
> More, in case of POWs, they are strictly not to be interned for more than three months.

Good point. The trouble with your logic is that POWs are, by their very nature, confined. Article 103 is referring to confinement “above and beyond” everyday confinement, if you will. This is made even more clear by 103’s direct reference to Articles 97 and 98, both of which deal with _disciplinary_ confinement. So far as I know, none of the detainees at Guantanamo has been placed under any sort of special confinement due to up-coming trials.

The extra security at Guantanamo results from from the threat of an “uprising” amongst the prisoners, which threat is made worse by their knowledge that they are suspected of war crimes. That’s why I specifically cited the _Human Rights Watch_ statement.

> [@](#):
>
> _Originally posted by OliverH_  
> The Geneva Convention demands a lawyer of the prionser’s choice, not just a lawyer.

Come on **OliverH** , read the thread. That’s been covered.

> [@](#):
>
> _Originally posted by OliverH_  
> …the Geneva Conventions (which impose strict limits on what crimes can be tried at all, and in what cases the death penalty can be administrated)

I actually find the Geneva Convention rather vague on this point, since their rules would vary from country to country. Military Commission Order No 1, on the other hand, spells out exactly what offenses can be tried.

> [@](#):
>
> _Originally posted by OliverH_  
> ……the very person which decides who is tried is the one who gets the final say on whether the death penalty is actually applied, and technically has a command function over the so-called ‘lawyer’…………

Not true on several levels. Although the charge that there is no “review” of these cases has been bandied about quite a bit, I have **already** pointed out that every finding is _automatically_ reviewed and no sentence is _final_ until it has been approved by a review panel and by the President or Secretary of Defense. I might also point out that civilian lawyers (or should I say “so-called lawyers”) aren’t called “officers of the court” for nothing.

> [@](#):
>
> _Originally posted by OliverH_  
> Whether the commissions are even capable of acknowledging the fact that 'The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. ’ is a matter that deserves its own discussion.

Firstly, no sentence for any crime may be fixed without the above considerations (see Article 87). Secondly, I see no reason why we should have even the tiniest trouble pointing the above out to the court. Ought to take about 13.5 seconds. I timed it.

**Re: Convention Relative to the Protection of Civilian Persons in Time of War**

Firstly, the US has already agreed to abide by the Geneva Convention Relative to the Treatment of Prisoners of War.

Secondly, the reason that using this Convention seems to be a bit of a “neat trick” is that it never says anything about how to treat **combatants**. And that’s because it is meant to apply to **civilians**. Assuming that the detainees were captured while taking part in combat, this convention simply does not apply.

But let’s assume that it does…………

The US can still arrest, prosecute and convict suspected war criminals:

> [@](#):
>
> Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, **with the exception of breaches of the laws and customs of war**.
> 
> _Article 70_

Articles 64 and 65 simply wouldn’t apply to the detainees at Guantanamo because they deal with non-war-crime offenses.

But Article 68 could apply. The trouble is that Article 68 says that the US can imprison people for the sort of crimes we’re talking about with regards to Guantanamo, and the US can still execute them so long as these crimes were punishable by death, in Afghanistan, prior to the invasion. From _Amnesty International_:

> [@](#):
>
> Taleban Shari’a courts, whose procedures fall short of international standards for fair trial, continued to impose cruel, inhuman or degrading punishments. **At least a dozen people convicted of murder were executed by shooting** — usually carried out by the victims’families. More than a dozen people were subjected to amputations and at least six were flogged. Thousands of people, among them children as young as five years old, were either encouraged or forced to attend the public execution of these punishments in former sports stadiums. Children as young as 14 were assigned the task of displaying the severed limbs of victims to the spectators.  
> _Annual Report, 2000_

So I don’t think Afghani laws are likely to be an impediment.

True, it would appear that we would have to hold trials in Afghanistan, but that wouldn’t be any great difficulty.

As for handing them over when the occupation ends, that may actually be forbidden. I would call your attention to Article 45:

> [@](#):
>
> Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody.
> 
> In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her **political opinions** or religious beliefs.

Given Afghanistan’s history of civil war and “tribal” violence it might not be possible to hand members of the Taliban or Al-Queda over to new authorities for a great many years.

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<div class="post-metadata">

**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\
**Post date:** [July 15, 2003, 4:33pm UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/130 "2003-07-15T16:33:20Z")

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> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*  
> This matter has been dealt with on an individual basis. Remember that the vast majority of persons taken into custody in Afghanistan are not at Guantanamo. Only those _individuals_ who were deemed to be suspected of war crimes were sent to Guantanamo. \*\*

Deemed by whom? The fact that they are suspected of war crimes hardly establishes that they are as an individual a threat of a level justifying confinement.

Fact is that you are wrong. They are _not_ only those accused of war crimes, but those accused of being in any way complicit with the Taliban or Al Qaeda. British citizens detained at Guantanamo are accused of having " attended terrorist training camps and may have been involved in such activities as financing al-Qaeda, providing protection for Osama bin Laden and recruiting future terrorists”. Those are grave crimes, but regular crimes, not war crimes.

A fact file established by the DoD states that the military commissions are designed to try non-U.S. citizens selected by the president, to include al Qaeda members, people involved in acts of international terrorism against the United States, and people who knowingly harbored such terrorists.

> **[U.S. Department of Defense](https://www.defense.gov/)**
>
> The Department of Defense is America's largest government agency. With our military tracing its roots back to pre-Revolutionary times, the department has grown and evolved with our nation.

Probably the very cite you used to support your point about lawyer choice. It seems you are prone to selective reading - or prone to adopting Pentagon Orwellian ‘Newspeak’ defining everything a war crime that they’d like to try by military commission, rather than what has been laid down in international law as such.

> [@](#):
>
> \*\*  
> I believe you’ve missed my point here. (As I missed your point in your first post). My whole point is that the US has not sunk to the level of the Vietnamese and that it is unfair for critics to use _inflammatory_ language that implies that we have.  
> \*\*

I believe you missed my point, not vice versa. That he US has not sunk to the level of the Vietnamese hardly shows its actions are in line with the conduct of a civilised nation. Worst case scenarios are hardly gold standards. Compared even with the South African apartheid regime, the US is on a lower leve.

> [@](#):
>
> \*\*  
> Good point. The trouble with your logic is that POWs are, by their very nature, confined. Article 103 is referring to confinement “above and beyond” everyday confinement, if you will. This is made even more clear by 103’s direct reference to Articles 97 and 98, both of which deal with _disciplinary_ confinement. So far as I know, none of the detainees at Guantanamo has been placed under any sort of special confinement due to up-coming trials.  
> \*\*

Sorry, but you are mistaken. POWs are not confined by their very nature, other than being restricted to certain areas such as a camp -not a cell on a camp. POWs are to have the same standard of living as members of the detaining army, UNLESS they, individually, are a security and safety threat.

> [@](#):
>
> \*\*  
> The extra security at Guantanamo results from from the threat of an “uprising” amongst the prisoners, which threat is made worse by their knowledge that they are suspected of war crimes. That’s why I specifically cited the _Human Rights Watch_ statement.  
> \*\*

Sorry, but generalised, blurry paranoia isn’t a sufficient ledger for the Convention. Human RIghts Watch is not an accepted interpreter of the Conventions. That pertains solely to the Protecting Powers, and organizations directly authorized by them, such as the ICRC.

> [@](#):
>
> \*\*  
> Come on OliverH, read the thread. That’s been covered. \*\*

Yup. It’s been covered that you think that half the world’s press is paranoid and can’t get their facts straight. Cf. the table from the Economist cited on

> **[CalPundit.com is for sale | HugeDomains](https://www.hugedomains.com/domain_profile.cfm?d=calpundit&e=com)**
>
> Get set up with a new domain name right away. Affordable payment plans to fit any budget. Friendly customer support.

(Original article is paid-only)  
as well as The Times of London, which in an article criticised that ‘The Pentagon controls the judge and jury, as well as vetting who can be a defence lawyer.’  
The Times is hardly known as a liberal rag, but feel free to claim so. Maybe the British Government, which has voiced grave concern about the standards as well is also just ‘blowing smoke’.

Choice of lawyer would also be limited by the ability of lawyers to actually take such cases. Since, absent funds the defendant possesses, they’d have to pay for their own security clearance, that is highly questionable.

> [@](#):
>
> \*\*  
> I actually find the Geneva Convention rather vague on this point, since their rules would vary from country to country. Military Commission Order No 1, on the other hand, spells out exactly what offenses can be tried.  
> \*\*

You are mistaking a feature for a bug. The purpose is precisely to prevent occupying powers from installing measures fixed against members of the occupied country’s forces.

> [@](#):
>
> \*\*  
> Not true on several levels. Although the charge that there is no “review” of these cases has been bandied about quite a bit, I have already pointed out that every finding is _automatically_ reviewed and no sentence is _final_ until it has been approved by a review panel and by the President or Secretary of Defense. I might also point out that civilian lawyers (or should I say “so-called lawyers”) aren’t called “officers of the court” for nothing. \*\*

You start out ‘Not true’, then go on confirming what I said. A review by the very people who dragged someone to court is hardly impartial. You seem to have a strange view of what impartiality looks like.

> [@](#):
>
> \*\*  
> Firstly, no sentence for any crime may be fixed without the above considerations (see Article 87). Secondly, I see no reason why we should have even the tiniest trouble pointing the above out to the court. Ought to take about 13.5 seconds. I timed it. \*\*

That doesn’t mean that it will actually figure into their assessment.

> [@](#):
>
> \*\*  
> Secondly, the reason that using this Convention seems to be a bit of a “neat trick” is that it never says anything about how to treat combatants. And that’s because it is meant to apply to civilians. Assuming that the detainees were captured while taking part in combat, this convention simply does not apply.

\*\*

You shouldn’t assume too much. You also assumed they would all be accused of war crimes. The Convention very much applies to individual engaging in acts causing the death of representatives of the occupying power.

Not the least, however, many provisions are parallel in both Conventions.

As for the US stating that the detainees will be treated in compliance with the Geneva Conventions, that is a declaration of alleged intent, not proof of anything. As for the lack of ICRC complaints cited by others, that is a misunderstanding of the way the ICRC operates. If the ICRC finds violations, it does not make such findings public, but adresses them directly with the detaining power. “The ICRC does not comment publicly on the situation in Guantanamo Bay. As a general rule, the ICRC discusses all matters concerning its visits to places of detention exclusively with the authorities concerned. This stops sensitive information from being exploited for political gain and ensures the ICRC’s continued access to detainees.” (From [http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/5C867C1D85AA2BE541256C94006000EE](http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/5C867C1D85AA2BE541256C94006000EE) )

> [@](#):
>
> \*\*  
> The US can still arrest, prosecute and convict suspected war criminals: \*\*

Never said otherwise, but the Convention has strict provisions on how to go about doing so.

> [@](#):
>
> \*\*  
> Taleban Shari’a courts, whose procedures fall short of international standards for fair trial, continued to impose cruel, inhuman or degrading punishments. At least a dozen people convicted of murder were executed by shooting — usually carried out by the victims’families. More than a dozen people were subjected to amputations and at least six were flogged. Thousands of people, among them children as young as five years old, were either encouraged or forced to attend the public execution of these punishments in former sports stadiums. Children as young as 14 were assigned the task of displaying the severed limbs of victims to the spectators.  
> Annual Report, 2000

\*\*

Nice try, but without showing that their acts would actually have been regarded as murder by Taliban courts, the cite is meaningless.

quote]\*\*  
Articles 64 and 65 simply wouldn’t apply to the detainees at Guantanamo because they deal with non-war-crime offenses. \*\*  
[/quote]

You just cited murder. That IS a non-war-crime offense. In any case, that does not establish US jurisdiction.

> [@](#):
>
> \*\*  
> True, it would appear that we would have to hold trials in Afghanistan, but that wouldn’t be any great difficulty.  
> \*\*

So you admit that the US is in violation of this provision?

> [@](#):
>
> \*\*  
> As for handing them over when the occupation ends, that may actually be forbidden. I would call your attention to Article 45:  
> …
> 
> Given Afghanistan’s history of civil war and “tribal” violence it might not be possible to hand members of the Taliban or Al-Queda over to new authorities for a great many years. \*\*

You are mis-citing Article 45. It refers to transfers to third parties, not the original country. One can equally well argue that treatment without political or religious persecution is impossible in US custody, given the demonstrated tendency of the US to ‘round up the usual suspects’ (Demonstrated by the hundreds of people rounded up for nothing but their ethnicity, most of which were later released without charges).

Let’s recap:

The detainees have been abducted into a legal limbo, beyond control of any third parties. They are denied basic rights in a fashion that even conservative British papers, who have plenty of experience reporting on terrorist trials, are plain and simply abhorred.

In fact, additional protocol I to the Geneva Conventions (which the US conveniently didn’t ratify) lists numerous additional rights in trial, such as ‘(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;’ -a right the US does not even grant terrorist defendants in a regular court. The same article also states ‘7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:  
(a) persons who are accused or such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and  
(b) any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.’

But since that Protocol hasn’t been ratified by the US (which has found numerous other provisions also too restrictive and is in quite routine violation of them), let’s just look at what the ‘Lawyers Committee on Human Rights’ has to say:

[http://www.lchr.org/us\_law/us\_law\_09.htm](http://www.lchr.org/us_law/us_law_09.htm)

Hardly a stamp of approval for the military commission process as fair and impartial.

---

<div class="post-metadata">

**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 16, 2003, 10:06am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/131 "2003-07-16T10:06:30Z")

</div>

> [@](#):
>
> _Originally posted by OliverH_  
> Deemed by whom? The fact that they are suspected of war crimes hardly establishes that they are as an individual a threat of a level justifying confinement.

Deemed by the “detaining power,’ namely the US of A. The same power which captured them (in many cases) and the same power which assumes both the risks and the responsibilities associated with holding them. As for the rest, there’s no logic there. Each person captured during the hostilities in Afghanistan was subject to an individual assessment which determined whether he would be sent to a regular “POW” camp or sent to Guantanamo. (I don’t pretend here that this assessment was subject to rigorous controls or that it was always correct, but it is a decision which **must** have been made, by necessity) Each camp was designed to provide the level of security which was “deemed” necessary for the particular group of people held in that camp. At Guantanamo, it was “deemed” that a higher than usual level of security was required due to the nature of the detainees. This is all very much in line with the Geneva Convention on Prisoners of War (as I have pointed out repeatedly).

> [@](#):
>
> _Originally posted by OliverH_  
> They are not only those accused of war crimes, but those accused of being in any way complicit with the Taliban or Al Qaeda.

That simply isn’t true. Thousands of people suspected of being members of Al Queda and the Taliban have been captured in Afghanistan:

> [@](#):
>
> There were serious concerns about the treatment and conditions of detention of thousands of captured Taleban and al-Qa’ida fighters who had been wounded or had surrendered and were being held by the United Front.  
> _Amnesty International; Annual Report 2002, Afghanistan_
> 
> Hundreds of suspected members of the Taleban and al-Qa’ida were arbitrarily detained by Afghan authorities and remained in prisons throughout the country without charge or trial.  
> _Amnesty International; Annual Report 2003, Afghanistan_

If the US has captured thousands of Al Queda and Taliban (suspects) but only sent about 600 to Guantanamo then it would appear obvious that those who are sent to Guantanamo have been singled out for some reason.

So…….in November of 2001 President Bush issued an Executive Order allowing “terrorists” to be tried by Military Tribunal.

During the war the Defense Department announced that they were screening the thousands of “combatants” who were being captured in order to find suspected “terrorists.” These are the people who were taken to Guantanamo. This suggests to me that the US intends to charge these people with crimes and hold trials.

In May of 2003 the Defense Department issued Instructions for Military Commissions which state, in reference to what crimes fall under the jurisdiction of the Commissions, “…….These crimes and elements derive from the law of armed conflict, a body of law that is sometimes referred to as the law of war. They constitute violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military commission. Because this document is declarative of existing law, it does not preclude trial for crimes that occurred prior to its effective date……………” That suggests to me that the crimes with which these people will be charged are “war crimes.”

> [@](#):
>
> _Originally posted by OliverH_  
> British citizens detained at Guantanamo are accused of having " attended terrorist training camps and may have been involved in such activities as financing al-Qaeda, providing protection for Osama bin Laden and recruiting future terrorists”. ”. Those are grave crimes, but regular crimes, not war crimes.

That is not the official charge, it is just a generic description of what sort of people are going to be tried in this initial group. To the best of my knowledge, the Pentagon has not yet released the “official charges” and hasn’t said when it’s going to do so. If you know otherwise then I’m very interested.

The Pentagon has indicated that this first group will consist of “small fry.” So let’s assume for a moment that they are only accused of providing protection for Osama. They could then be charged with “Accessory After the Fact” (as an example).

For this charge to hold the prosecution would have to prove that the accused “….received, comforted or assisted…….” some person who has committed a war crime. They would have to prove that the accused knew that the person in question had committed a war crime or “…….believed such person had committed a similar or closely related offense……” (I include this phrase because I’ll admit that I don’t really understand the significance of this part). **And** the prosecution would have to prove that the actions of the accused were “……intended to hinder or prevent the apprehension, trial or punishment of…….” the person in question.

Now keep in mind that in order to do this the prosecution will have to prove that the person in question was guilty of a major crime (murder, rape, hijacking etc.) and that the major crime in question “…….took place in the context of and was associated with armed conflict……”

Now, keeping in mind that “Accessory After the Fact” is included in the section entitled “Other Forms of Liability and Related Offenses” as opposed to the sections which are headed “Substantive Offenses,” I’ll offer the opinion that if the prosecution proves the above then I’ll be satisfied that the accused is guilty of a violation of the “laws of armed conflict.”

You are, of course, free to disagree.

> [@](#):
>
> _Originally posted by OliverH_  
> Sorry, but you are mistaken. POWs are not confined by their very nature, **other than being restricted to certain areas** such as a camp -not a cell on a camp.

Dictionary: Confine……”to restrict to a particular place”

You have a strange sense of humor.

> [@](#):
>
> _Originally posted by OliverH_  
> That pertains solely to the Protecting Powers…………

There were and are **no** Protecting Powers in the Afghanistan conflict.

> [@](#):
>
> _Originally posted by OliverH_  
> Probably the very cite you used to support your point about lawyer choice.

Wrong again. As already posted:

> [@](#):
>
> From Military Commission Order No 1: “The Accused may also retain the services of a civilian attorney of the Accused’s own choosing and at no expense to the United States Government…………”

> [@](#):
>
> _Originally posted by OliverH_  
> I believe you missed my point, not vice versa.

Yeah, whatever.

> [@](#):
>
> _Originally posted by OliverH_  
> ……The Times of London, which in an article criticised that 'The Pentagon controls the judge and jury, as well as vetting who can be a defence lawyer.

This is the case in all military trials in the US and the system has been deemed acceptable for a very long time (forgive me for not looking up how long, but this getting a little tiresome).

> [@](#):
>
> _Originally posted by OliverH_  
> Choice of lawyer would also be limited by the ability of lawyers to actually take such cases. Since, absent funds the defendant possesses, they’d have to pay for their own security clearance, that is highly questionable.

The same is true of every case that is tried in civilian courts in the US. If I want a high-priced attorney or if I want some east coast attorney to fly out to the west coast to defend me then I have to pay for it. If I can’t afford it then I take what I can afford or what the government gives me. And given the case load of most public defenders I dare say that these defendants will receive a greater percentage of their attorney’s attention than is the case in most civilian trials involving public defenders.

The bottom line is that the Military Commissions clearly meet the requirements called for in the Geneva Convention Articles 99 – 108. There is nothing that says that if the guy wants his brother-in-law to defend him then the government has to pay his way through law school.

> [@](#):
>
> _Originally posted by OliverH_  
> A review by the very people who dragged someone to court is hardly impartial.

Trouble is, that’s the same complaint I’ve heard repeatedly from people caught up in the civilian courts. “The prosecutors, the judges, the review courts; they’re all a part of the same system and they’re all out to get me.”

> [@](#):
>
> _Originally posted by OliverH_  
> That doesn’t mean that it will actually figure into their assessment.

Well, just to be an asshole, I’ll point out that the Convention doesn’t actually say that it has to “figure into their assessment.” But seriously, why do you think that military judges, men who are probably a lot more sensitive than the rest of us to questions of duty, battlefield responsibility, where to draw the line between legitimate combat and war crimes; etc……would not take this into consideration. And why do you believe that these women would want to convict innocent people, civilian or combatant, of war crimes? Don’t you think it’s just possible that they actually want to see justice done?

> [@](#):
>
> _Originally posted by OliverH_  
> The Convention very much applies to individual engaging in acts causing the death of representatives of the occupying power.

But not in combat circumstances.

> [@](#):
>
> _Originally posted by OliverH_  
> Nice try, but without showing that their acts would actually have been regarded as murder by Taliban courts, the cite is meaningless.
> 
> You just cited murder. That IS a non-war-crime offense. In any case, that does not establish US jurisdiction.

Don’t let me have all the fun. Feel free to prove that the Taliban did **not** regard the intentional killing of one or more unarmed civilians as a crime.

And when such killing involves victims who are “…….protected under the law of war…….” and takes place “……in the context of……” and “………associated with armed conflict…….” as specified in Military Commission Instruction No 2, then it is a war crime.

> [@](#):
>
> _Originally posted by OliverH_  
> So you admit that the US is in violation of this provision?

I happily admit that **if** the Geneva Convention on Civilians applied then it would appear, at least at first glance, that the US would be in violation of this provision. It isn’t entirely clear because Article 49 states:

> [@](#):
>
> The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

………so an argument could be made that the US had to remove them from Afghanistan for their own safety. But as this Convention doesn’t apply anyway………….

> [@](#):
>
> _Originally posted by OliverH_  
> You are mis-citing Article 45. It refers to transfers to third parties, not the original country.

> [@](#):
>
> In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her **political opinions** or religious beliefs.

Somehow I interpret this to mean that if a country had found itself holding German Jews during WWII, it should not have returned them to Germany under any circumstances. Do you think otherwise?

> [@](#):
>
> _Originally posted by OliverH_  
> In fact, additional protocol I to the Geneva Conventions…………

_………anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him………………_

> [@](#):
>
> The Accused may have Defense Counsel………cross-examine each witness presented by the Prosecution who appears before the Commission.  
> _Military Commission Order No 1_

_…………and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him………._

> [@](#):
>
> The Accused may obtain witnesses and documents for the Accused’s defense, to the extent necessary and reasonably available as determined by the Presiding Officer. Such access shall be consistent with the requirements of Section 6(D)(5) and subject to Section 9.
> 
> The Appointing Authority shall order that such investigative or other resources be made available to the Defense as the Appointing Authority deems necessary for a full and fair trial
> 
> The Accused may have Defense Counsel present evidence at trial in the Accused’s defense……
> 
> - Military Commission Order No 1\*

---

<div class="post-metadata">

**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\
**Post date:** [July 16, 2003, 11:47am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/132 "2003-07-16T11:47:04Z")

</div>

> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*Deemed by the “detaining power,’ namely the US of A. The same power which captured them (in many cases) and the same power which assumes both the risks and the responsibilities associated with holding them. As for the rest, there’s no logic there. Each person captured during the hostilities in Afghanistan was subject to an individual assessment which determined whether he would be sent to a regular “POW” camp or sent to Guantanamo. (I don’t pretend here that this assessment was subject to rigorous controls or that it was always correct, but it is a decision which must have been made, by necessity) Each camp was designed to provide the level of security which was “deemed” necessary for the particular group of people held in that camp. At Guantanamo, it was “deemed” that a higher than usual level of security was required due to the nature of the detainees. This is all very much in line with the Geneva Convention on Prisoners of War (as I have pointed out repeatedly).  
> \*\*

Hardly. The Geneva Convention in fact restricts the detaining power in its right to make such decisions. It is the community of protecting powers which determine whether a certain passage applies. By your assessment, any party is freely reinterpret the Convention so that it is in fact compliant.

> [@](#):
>
> \*\*  
> That simply isn’t true. Thousands of people suspected of being members of Al Queda and the Taliban have been captured in Afghanistan:  
> \*\*

It is telling that you would claim so, given that I already provided you with citation. It seems that reality is too tough for you to accept.

> [@](#):
>
> \*\*  
> If the US has captured thousands of Al Queda and Taliban (suspects) but only sent about 600 to Guantanamo then it would appear obvious that those who are sent to Guantanamo have been singled out for some reason.\*\*

It would appear obvious to someone who will gladly accept anything the government does in the name of ‘security’. Unfortunately, reality proves your appearances naive.

> [@](#):
>
> \*\*  
> In May of 2003 the Defense Department issued Instructions for Military Commissions which state, in reference to what crimes fall under the jurisdiction of the Commissions, “…….These crimes and elements derive from the law of armed conflict, a body of law that is sometimes referred to as the law of war. They constitute violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military commission. Because this document is declarative of existing law, it does not preclude trial for crimes that occurred prior to its effective date……………” That suggests to me that the crimes with which these people will be charged are “war crimes.”  
> \*\*

Which suggests to me that you consider assertions as fact merely because they are voiced by the Defense Department. US law ceases to be relevant outside US borders. As such, any so-called ‘law of war’ is laid out in international treaties and conventions.

> [@](#):
>
> \*\*  
> That is not the official charge, it is just a generic description of what sort of people are going to be tried in this initial group. To the best of my knowledge, the Pentagon has not yet released the “official charges” and hasn’t said when it’s going to do so. If you know otherwise then I’m very interested. \*\*

You’d be interested what you would find if you actually read the posts you replied to.

For example:'British citizens detained at Guantanamo are accused of having " attended terrorist training camps and may have been involved in such activities as financing al-Qaeda, providing protection for Osama bin Laden and recruiting future terrorists”. ’ (Incidentally from The Times)

> [@](#):
>
> \*\*  
> The Pentagon has indicated that this first group will consist of “small fry.” So let’s assume for a moment that they are only accused of providing protection for Osama. They could then be charged with “Accessory After the Fact” (as an example). \*\*

Please cite the Convention which outlaws such behavior.

> [@](#):
>
> \*\*  
> For this charge to hold the prosecution would have to prove that the accused “….received, comforted or assisted…….” some person who has committed a war crime. They would have to prove that the accused knew that the person in question had committed a war crime or “…….believed such person had committed a similar or closely related offense……” (I include this phrase because I’ll admit that I don’t really understand the significance of this part). **And** the prosecution would have to prove that the actions of the accused were “……intended to hinder or prevent the apprehension, trial or punishment of…….” the person in question. \*\*

All standards arbitrarily established by the US, with the intent of being able to accuse those arrested at all.

> [@](#):
>
> \*\*  
> Now, keeping in mind that “Accessory After the Fact” is included in the section entitled “Other Forms of Liability and Related Offenses” as opposed to the sections which are headed “Substantive Offenses,” I’ll offer the opinion that if the prosecution proves the above then I’ll be satisfied that the accused is guilty of a violation of the “laws of armed conflict.” \*\*

And I’ll be satisfied that you are willing to support ex post facto jurisdiction.

> [@](#):
>
> \*\*  
> Dictionary: Confine……”to restrict to a particular place”
> 
> You have a strange sense of humor.  
> \*\*

You should read more in that dictionary. You might learn the meaning of ‘other than’. But I take it that you consider the difference between having a dog on a leash and one in a kennel trivial and irrelevant.

> [@](#):
>
> \*\*  
> There were and are no Protecting Powers in the Afghanistan conflict.  
> \*\*

In itself a violation. But thanks for making that clear.

> [@](#):
>
> \*\*  
> This is the case in all military trials in the US and the system has been deemed acceptable for a very long time (forgive me for not looking up how long, but this getting a little tiresome).  
> \*\*

No need to look it up, since how long it has been deemed acceptable by the US is completely and utterly irrelevant. It may be hard to accept that for you, but the world is not a US colony, and when stepping outside US borders, there are rules and regulations on how to act.

> [@](#):
>
> \*\*  
> The same is true of every case that is tried in civilian courts in the US. If I want a high-priced attorney or if I want some east coast attorney to fly out to the west coast to defend me then I have to pay for it. If I can’t afford it then I take what I can afford or what the government gives me. And given the case load of most public defenders I dare say that these defendants will receive a greater percentage of their attorney’s attention than is the case in most civilian trials involving public defenders.\*\*

Why will they get a greater attention? Because their lawyer, if they actually find any, will be physically restricted from doing other cases. Lawyers in a civilian court also will not have to pay for security clearances. As such, your claim that the same is true for cases tried in a civilian court is a bold-faced lie.

> [@](#):
>
> \*\*  
> The bottom line is that the Military Commissions clearly meet the requirements called for in the Geneva Convention Articles 99 – 108. There is nothing that says that if the guy wants his brother-in-law to defend him then the government has to pay his way through law school. \*\*

The bottom line is that you think everyone can define compliance as he sees fit. That, on the other hand, would render the whole process moot, since the accused could define themselves into compliance. Which illustrates quite well that all these commissions are is giving an official cover paint to lynch mob justice.

Once more: Whether YOU accept the standards has no bearing whatsoever on whether they are compliant with the Geneva Conventions. Neither does the fact that the DOD considers them compliant.

> [@](#):
>
> \*\*  
> Trouble is, that’s the same complaint I’ve heard repeatedly from people caught up in the civilian courts. “The prosecutors, the judges, the review courts; they’re all a part of the same system and they’re all out to get me.”\*\*

Trouble is, what you have heard is entirely irrelevant. The review courts in the civilian system are hardly the ones who decided to drag the defendant to court in the first place. Feel free to prove how that is, in fact, the case. It will be difficult, however, given that the Lawyer’s Comittee on Human Rights thinks there are serious differences between regular standards and those of the military comission.

> [@](#):
>
> \*\*  
> Well, just to be an asshole, I’ll point out that the Convention doesn’t actually say that it has to “figure into their assessment.” But seriously, why do you think that military judges, men who are probably a lot more sensitive than the rest of us to questions of duty, battlefield responsibility, where to draw the line between legitimate combat and war crimes; etc……would not take this into consideration. And why do you believe that these women would want to convict innocent people, civilian or combatant, of war crimes? Don’t you think it’s just possible that they actually want to see justice done?  
> \*\*

The question is ‘Justice to whom’? To these people, or to their own comrades who they believed were killed by the same scum they are about to try? As for being more sensitive to questions of drawing the line between legitimate combat and war crimes, allow me to be amused. The use of cluster bombs near villages and the use of tanks against hotels full of civilians hardly suggests being very sensitive to drawing such a line.

Historic precedence shows quite well that in war crimes trials similarly constructed, the trials tend to be staked against the defense, not the least by the lose standards of evidence and the unwillingness of the court to heed objections by the defense.

In the Yamashita case, happily waved through by a majority of SCotUS, the dissenting justice Rutledge noted

"A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself.

It acted accordingly. As against insistent and persistent objection to the reception of all kinds of ‘evidence,’ oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for admissibility and probative value, the commission not only consistently ruled against the defense, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, reprimanded counsel for continuing to make objection, declined to hear further objections, and in more than one instance during the course of the proceedings reversed its rulings favorable to the defense, where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumor, report, at first, second, third or further hand, written, printed, or oral, and one ‘propaganda’ film were allowed to come in…"

The Tokyo trial’s Indian member, judge Pal, likewise complained

“The so-called trial held according to the definition of crime _now_ given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in war. A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more a political than a legal affair, an essentially political objective having thus been cloaked by a juridical appearance”

These very complaints are equally well applicable to the new military commissions, especially those by Pal.

> [@](#):
>
> \*\*  
> But not in combat circumstances.  
> \*\*

_yawn_

It would in and of itself first have to be shown that the individual actually acted in combat circumstances.

> [@](#):
>
> \*\*  
> Don’t let me have all the fun. Feel free to prove that the Taliban did not regard the intentional killing of one or more unarmed civilians as a crime.  
> \*\*

Depends on who the civilians were. After all, we have heard plenty of calls to kill the infidels. You want to say that after doing what they were told, they would have been tried for their crimes?

> [@](#):
>
> \*\*  
> And when such killing involves victims who are “…….protected under the law of war…….” and takes place “……in the context of……” and “………associated with armed conflict…….” as specified in Military Commission Instruction No 2, then it is a war crime. \*\*

By the arbitrary decision of the US administration set up with the specific intent to try these people. I hate to break it to you, but the Military Commission Instruction No 2 is not international law, and as such does not define acceptable standards of international interaction.

> [@](#):
>
> \*\*  
> ………so an argument could be made that the US had to remove them from Afghanistan for their own safety.  
> \*\*

Which hardly translates to the other end of the world.

> [@](#):
>
> \*\*  
> But as this Convention doesn’t apply anyway………….  
> \*\*

The only reason why you have a basis for such a claim is that the US was subjected to immense international pressure to abandon its stance of denial of POW rights, which it originally adopted.

> [@](#):
>
> \*\*  
> Somehow I interpret this to mean that if a country had found itself holding German Jews during WWII, it should not have returned them to Germany under any circumstances. Do you think otherwise? \*\*

Read the entire article, rather than tearing bits and pieces out of their proper context in order to prove a point.

> [@](#):
>
> \*\*  
> ………anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him………………\*\*

The US government has already demonstrated its unwillingness to provide for such measures, even if compelled by a court to do so. As such, assurances are merely testimonies of hypocrisy, and your citations proof of your inability to critical thinking regarding government statements.

> [@](#):
>
> The Accused may obtain witnesses and documents for the Accused’s defense, \*\*to the extent necessary and reasonably available as determined by the Presiding Officer.  
> \*\*

Read: The accused and his defense may be denied access to witnesses and documents providing exculpatory evidence.

It is telling that you skirted making any statements to the opinion of the ‘Lawyers Comittee on Human Rights’.

---

<div class="post-metadata">

**Author:** ![zigaretten](https://avatars.discourse-cdn.com/v4/letter/z/91b2a8/32.png) [@zigaretten](https://boards.straightdope.com/u/zigaretten)\
**Post date:** [July 16, 2003, 12:11pm UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/133 "2003-07-16T12:11:14Z")

</div>

Well, I concede. **OliverH** , your incredible grasp of logic, your flexuous argumentation and your uncanny grasp of the English language leave me no choice but to allow that my time would undoubtedly be better spent on more promising endeavors.

I will write to the President immediately. Rest assured that **heads will roll**!

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [July 17, 2003, 12:11am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/134 "2003-07-17T00:11:30Z")

</div>

Are we done here?

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<div class="post-metadata">

**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\
**Post date:** [July 18, 2003, 4:14pm UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/135 "2003-07-18T16:14:21Z")

</div>

> [@](#):
>
> \*Originally posted by zigaretten \*  
> \*\*Well, I concede. **OliverH** , your incredible grasp of logic, your flexuous argumentation and your uncanny grasp of the English language leave me no choice but to allow that my time would undoubtedly be better spent on more promising endeavors.
> 
> I will write to the President immediately. Rest assured that **heads will roll**! \*\*

Too bad it won’t be british heads, since the US just agreed not to try them. But quite probably the british didn’t pressure them on these prisoners, having complete and utter trust in the military commissions.

But hey, what should I expect from someone whose entire line of argumentation is “Whatever the government says is the truth, the whole truth and nothing but the truth.”

---

<div class="post-metadata">

**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\
**Post date:** [July 31, 2003, 11:23am UTC](https://boards.straightdope.com/t/guantanamo-why-are-only-us-citizens-allowed-civilian-legal-representation/186418/136 "2003-07-31T11:23:30Z")

</div>

Spies have their day in court in spite of the government having to protect their sources etc. I cannot imagine why the prisoners in Guantanamo cannot be similarly tried by a civilian court.

> [@](#):
>
> [http://www.cnn.com/2003/US/07/30/spy.documents/index.html](http://www.cnn.com/2003/US/07/30/spy.documents/index.html)
> 
> In February, a federal jury in Alexandria found Regan guilty of attempting to sell military secrets to Iraq and China and of gathering national defense information. He was acquitted of attempting to provide U.S. secrets to Libya.
> 
> The jury rejected the government’s request to impose the death penalty and Regan is now serving a life sentence.
> 
> “If the jury had known all this it would have been a different story,” said one official who asked not to be identified. “There was more we couldn’t say than what we could say.”

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