This man was captured in Afghanistan. I presume any offences he is accused of took place in Afghanistan. How would US law apply to a non-US citizen, not in the US?
He’s not being prosecuted for criminal offenses, but was rather being detained as an enemy combatants. There is no jurisdictional issue that would preclude their detention.
I think the judge should have somewhat of a better attitude, knowing that these are prisoners with no financial resources, no easy access to defense attorneys, cut off from the rest of the world, and with an unclear legal jurisdiction in the first place. How is the prisoner supposed to know what law would apply to him? Or did the judge sit down and give him a tutorial?
That’s what I was alluding to earlier. But we don’t know the circumstances, and it’s possible that the guy was purposely being disruptive. The fact that the judge said:
leads me belive that he probably was.
Just for some clarification on general principles of international law as applied to the US:
There are two types of treaties. Self-Executing and Non-Self-Executing. Self-Executing treaties do not require any implementing legislation to become effective. Non-Self Executing treaties require implementing legislation.
If a treaty is self-executing, then generally, yes, a US court is bound to uphold its provisions. However, the court will not uphold a provision that clearly violates the US Constitution. In gray area cases, the courts will generally try to read treaty provisions such that they do not conflict with US Consitutional jurisprudence.
If the treaty violates previously passed Congressional legislation (that is legislation passed by both houses), we get into more of a gray are. Clearly, it would be nonsensical from a structural standpoint to give effect to a treaty passed only by one house over legislation passed by both houses. Generally, the most recent legislation will be seen to override previously passed conflicting treaty provisions. But once again, here, the court will attempt to read the treaty and the legislation so that they don’t conflict.
The thing to keep in mind is that its not an either-or option. There are multiple ways a court can approach an issue to keep from negating treaty provisions. They could just not rule because of procedural issues (such as standing). They could bounce the issue to Congress to sort out. There’s the interpretation technique I mentioned earlier. Etc.
But to say courts are not bound by international law is false. They are. The questions you have to ask are (1) is the treaty self-executing or non-self-executing? (2) does the treaty conflict with the Consitution or legislation? (3) how will the treaty be interpreted in light of such a conflict?
I don’t have specifics on the GC, since I haven’t gotten to this in school yet.
Just wanted to add that since I’m still in school, I welcome corrections or clarifications to my post. I have many years to become a pompous know-it-all.
Was this guy allowed to have the advice of counsel so that he would know enough to conduct his defense in a manner you would deem appropriate?
I don’t even know if that’s relavent. Was the tribunal referenced in the OP supposed to be for the purpose of determining his POW status? I didn’t think it was.
Concerning the status of POWs, the GC says:
I don’t know how that’s interpreted, but I can’t imagine that it means that if any detainee claims he should be a POW, that he automatically has to be treated like one until he gets a tribunal. If we capture bin Laden, and he claims to be a POW, are we required to treat him as one? And what constitutes a “competent tribunal”?
Customary international law. http://www.crimesofwar.org/news-CIA.html
Maybe he was. If I were in a trial where I wasn’t allowed to see the evidence against me,
(from the OP)
I might become disruptive too.
Well, if it was for the purpose of determining whether or not he was a POW, the default position seems to be that he is to be treated as one until a determination is made.
If the hearing wasn’t for that purpose then in order to conduct a proper defense he really needs the advice of counsel. That’s one reason the detention is done in Guantanamo Bay. So that the government won’t have to put up with all the foledrol.
Not to make light of Guantanamo in general-- as an American citizen, I am ashamed and angered by the entire sorry affair-- but I’d feel a lot better about my country if I thought that the specific allegations cited in the OP were the worst of what’s going on. Imprisoning people indefinitely without charge, widespread allegations of torture-- this is a legacy unbecoming any civilized nation. The complaints in the OP, on the other hand, mostly just sound weird and goofy.
Color me ignorant, but are there really Islamic sects who believe that being wilfully misdirected into praying in the wrong direction places your soul in mortal jeopardy? Surely there has to be some sort of exemption for that sort of situation. What happens if you’re shipwrecked or something? I imagine that this problem might often be used as the setup for cruel “snipe-hunt”-type pranks at Muslim summer camp: “I told Hisham that his prayer rug was pointed toward Mecca, but he’s really praying to the Louisiana Superdome!” snicker
Frankly, I’d love to believe that religious extremists in the future will take inspiration solely from Mr. Abbasi’s experiences when they have Americans at their mercy in the future:
"So, yankee dog, for three days we have confined you in this cell with only food, water… and an American flag. No doubt, as a patriot, you have gained solace by pledging alliegance to it daily, yes? But I wonder, my friend… did you first take care to examine it thoroughly? Ah, you see? This flag has fifty-one stars! It is not, in fact, a genuine American flag at all! Moreover, by viewing it with these polarized glasses, you can see that it is actually… a giant poster of Yakov Smirnoff! Mu-hahahaha!!!.. "
If it was, yes.
Did the article indicate that he didn’t have counsel?
Some people would pay money for that.
Article or no article it’s a safe be that he didn’t.
I wonder which US law allows international abduction and incarceration without charge ?
Since he was detained in another country, and is a citizen of another, and abducted to a place where US law does not apply, which laws should the court be considering ?
Abduction is the correct word here because there has been no legal process until this appearance in this tribunal, and since there is no access to defence, it is questionable that any legal process has taken place at all.
Abuses seem, on balance, to have taken place, but even if it were not true the very fact of the location of the detention centre and lack of judicial oversight makes the US wide open to allegations, and the nature of this detention and lack of correct supervision creates exactly the circumstances where abuse is more likely to take place.
Personaly I think all relgion is nuts BUT religion is the at the core of many people. Religion is one of those things that should be respected. Christianity seems easy, it seems to have got rid most of the weird old biblical stuff (buttons, shellfish, pork etc) but other religions still have very strict rules. Laughing at those rules is one thing. Actively stopping a believer from following those rules is another.
Even if those rules include flying airplanes into buildings?
While I partake in overly broad generalization at times, the above is just plain dumb. On many levels.
True enough, I suppose. I’d certainly be happy to learn that any such abuses were being guarded against; I don’t reckon that overt religious harassment should have any more place in military detention than it should in the American civil justice system.
That said, I was actually sort of serious with my question about Mecca. I’m severely Islam-impaired, but I guess I can see how it’s considered important to be pointed in the right direction before you pray. But are there actual spiritual consequences for missing the target, even as a result of being lied to? Or is Mr. Abbasi just objecting to having his beliefs mocked? I’m mildly curious about how that whole system works; I’ve never considered prayer as an exercise in ballistics.