# Khalid Sheik Mohammed can be held indefinitely without trial, says Obama administration **URL:** \ **Category:** Great Debates\ **Created:** [November 15, 2010, 3:10pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743 "2010-11-15T15:10:06Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 16, 2010, 5:39pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/121 "2010-11-16T17:39:40Z")
> [@Ravenman](#): > > First we have to agree what the battlefield is. In your mind, what defines the battlefield? Is it law? Is it the presence of hostilities? Is it only certain countries that you select for arbitrary reasons? I would like to know how you see this question. War, like torture, transcends definition. And yet, it’s defined. The [ICRC](http://www.icrc.org/eng/resources/documents/article/review/review-878-p351.htm) (click on PDF) has stated a few factors to determine when a legal battlefield (called ‘armed conflict’) exists: > [@](#): > > ‘First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations’. So, armed conflict vs. law enforcement depends on (1) are the rebels organized? (2) sporadic crime or systematic, (3) Do the rebels control territory?, and (4) What is the Gov’t response? Al Qaeda is organized and has a command structure, even if it appears poorly implemented. Their “crimes” are systematic (US symbolic targets/dates with the goal of removing them from the Middle East). Not much on territory, maybe pockets. Government response is massive. It could go either way, but it’s not like their the Bloods or Crips. Also, a law can’t define an armed conflict. It’s solely limited to a de facto situation; it must exist in real life (when it’s against a non-state). When an armed conflict exists, the law of war is in effect (law of war = law of armed conflict = international humanitarian law). ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 5:46pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/122 "2010-11-16T17:46:30Z")
So we’re \*never \*going to know why TWAT is a war and not a law-enforcement operation? Shitfire, are we ever even going to be able to define who the enemy _is_? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 16, 2010, 5:51pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/123 "2010-11-16T17:51:54Z")
> [@ElvisL1ves](#): > > So we’re \*never \*going to know why TWAT is a war and not a law-enforcement operation? Shitfire, are we ever even going to be able to define who the enemy _is_? Dark’uns. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 6:18pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/124 "2010-11-16T18:18:34Z")
Well, yeah, but is there at least some fig-leaf rationalization available for it that isn’t totally laughable? ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 16, 2010, 6:19pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/125 "2010-11-16T18:19:31Z")
> [@ElvisL1ves](#): > > So we’re \*never \*going to know why TWAT is a war and not a law-enforcement operation? Shitfire, are we ever even going to be able to define who the enemy _is_? It _is_ a war because Congress authorized it. The President is treating it as one. The Supreme Court said that the detainees before them captured in it were caught in an armed conflict. So, authorized as war, treated as war, and confirmed as war. Kind of full circle there. If you want law enforcement; repeal the authorization and stop treating it as war. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 16, 2010, 6:21pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/126 "2010-11-16T18:21:17Z")
> [@Bricker](#): > > Not true. > > The concept is contemplated in the Geneva Convention itself, where it lays out the criteria necessary to claim POW status. So are you claiming that we are according the Guantanamo detainees the rights they would be accorded as POW’s under the Geneva Convention? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 6:23pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/127 "2010-11-16T18:23:48Z")
**CHC:** Congress authorized Bush to “defend the national security of the United States against the continuing threat posed by **Iraq** ; and enforce all relevant United Nations Security Council Resolutions regarding **Iraq**.” Since that doesn’t apply here, what else covers it? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 16, 2010, 6:30pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/128 "2010-11-16T18:30:24Z")
> [@ElvisL1ves](#): > > **CHC:** Congress authorized Bush to “defend the national security of the United States against the continuing threat posed by **Iraq** ; and enforce all relevant United Nations Security Council Resolutions regarding **Iraq**.” > > Since that doesn’t apply here, what else covers it? The Authorization for the Use of Military Force passed in 2001: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” One can debate the wisdom of whether that authorization for war should have implicitly declared a war unconstrained by geographic boundaries, but there it is. That’s the war Congress authorized. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 16, 2010, 6:37pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/129 "2010-11-16T18:37:09Z")
> [@Little\_Nemo](#): > > So are you claiming that we are according the Guantanamo detainees the rights they would be accorded as POW’s under the Geneva Convention? You are fundamentally misunderstanding the Geneva Conventions. To give a thumbnail sketch, they say that anyone detained during the war is entitled to a basic level of humane treatment (Common Article 3). Then, for those who are prisoners of war, who must meet a particular definition (such as having a uniform or carrying arms openly, among others) are entitled to other specific standards of treatment. All prisoners of war are detainees, not all detainees are prisoners of war. To use another example, if Pineland recruits pirates to attack US shipping, pirates would be entitled to humane treatment, but they would not have the privileges of POWs. Also, it is clear that the detainees were not always treated humanely, such as when a number of them were waterboarded. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 6:40pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/130 "2010-11-16T18:40:40Z")
I had the wrong declaration, thanks. My error. But the AUMF still, if you think it authorized a war, automatically invokes Geneva. If you think it authorized military support of a law enforcement operation, automatically invokes various parts of the Constitution regarding the rights of the accused. Only by pretending it’s somehow neither and both can denying all rights to prisoners be rationalized. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 16, 2010, 6:51pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/131 "2010-11-16T18:51:21Z")
> [@ElvisL1ves](#): > > But the AUMF still, if you think it authorized a war, automatically invokes Geneva. Yeah, I agree. The authorization isn’t needed to invoke the GC. The existence of hostilities, declared or undeclared, invokes the GC. _But that doesn’t mean that everyone captured is a POW, by the literal terms of the GC itself._ > [@](#): > > If you think it authorized military support of a law enforcement operation, automatically invokes various parts of the Constitution regarding the rights of the accused. There’s nothing in the law to support that interpretation. Whomever says that is literally making things up. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 7:01pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/132 "2010-11-16T19:01:18Z")
> [@Ravenman](#): > > Yeah_But that doesn’t mean that everyone captured is a POW, by the literal terms of the GC itself._ Literal terms that do not include “unlawful enemy combatant” or whatever the hell KSM is being called. Any exceptions you may find in Geneva are not met here. > [@](#): > > There’s nothing in the law to support that interpretation. Nothing at all? Really? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 16, 2010, 7:01pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/133 "2010-11-16T19:01:32Z")
My point is that the Geneva Convention doesn’t divide up all detainees into two groups. It doesn’t say that Group A are detainees who are prisoners of war and they’re entitled to these rights and Group B are detainees who aren’t prisoners of war and they’re not entitled to those rights. The Geneva Convention says that certain people can be classified as prisoners of war and may be detained and are entitled to certain rights. But there are no provisions in the Geneva Convention for detaining people who are not classified as prisoners of war. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [November 16, 2010, 7:02pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/134 "2010-11-16T19:02:21Z")
> [@Bricker](#): > > No? Then may God have mercy on your soul. You know, God? The entity for which no objective evidence exists, but since we have no way to know He’s there, we should assume He is? > > Or does your formula only work on stuff you want it to? It works for things that are physically possible and logically consistent, unlike God. And for things that are merely an extension of what we’ve already seen, and which is behavior we’ve seen before. Also unlike God. Comparing God, one of the stupidest and most impossible ideas in human history with a simple extrapolation of behavior we’ve already seen is silly. > [@Gyrate](#): > > Amusingly, the exemplar for both could be “Jesus”. 😃 ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 16, 2010, 7:04pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/135 "2010-11-16T19:04:40Z")
> [@ElvisL1ves](#): > > But the AUMF still, if you think it authorized a war, automatically invokes Geneva. If you think it authorized military support of a law enforcement operation, automatically invokes various parts of the Constitution regarding the rights of the accused. Only by pretending it’s somehow neither and both can denying all rights to prisoners be rationalized. Correct. I mentioned earlier, a law can’t legally make something an armed conflict (against a non-state). It depends on how it’s treated. I think it’s being treated as a war. So as you say, that _automatically_ invokes Geneva. However, it gets complicated as to what parts of Geneva get invoked. Geneva is not written as an all or nothing. All Articles can be invoked in some wars (State v. State), some don’t in others (non-state v. state). We (the US) now know, that **at least** Article 3 is invoked no matter what. As **Ravenman** stated, Article 3 is a fundamental level of humane treatment (no waterboarding, some due process, ect). It does not entitle you to POW status (you can **never** be a Geneva POW in a non-state vs. state war). You could be treated as one, though. We used to always treat the captured enemy as a POW as a matter of policy (not because we were legally obligated). Bush tried to invoke the power to detain, and find a legal loophole to drop the power to treat people humanely. That’s wrong. The Supreme Court has said, yes, you do have the power to detain, but you must treat them humanely. That’s where we stand today. The Supreme Court’s protections are as good as they would get if they were POW’s (except they don’t get combatant immunity). Even if the detainees were POW’s, they’d still be detained until the end of hostilities. They just couldn’t be tried for any pre-detainment (war) crimes. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2010, 7:05pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/136 "2010-11-16T19:05:11Z")
> [@Little\_Nemo](#): > > My point is that the Geneva Convention doesn’t divide up all detainees into two groups. It doesn’t say that Group A are detainees who are prisoners of war and they’re entitled to these rights and Group B are detainees who aren’t prisoners of war and they’re not entitled to those rights. > > The Geneva Convention says that certain people can be classified as prisoners of war and may be detained and are entitled to certain rights. But there are no provisions in the Geneva Convention for detaining people who are not classified as prisoners of war. As nicely as I can say this… …have you read and reviewed the Geneva Conventions prior to making this remark? ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 16, 2010, 7:21pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/137 "2010-11-16T19:21:14Z")
> [@Little\_Nemo](#): > > My point is that the Geneva Convention doesn’t divide up all detainees into two groups. It doesn’t say that Group A are detainees who are prisoners of war and they’re entitled to these rights and Group B are detainees who aren’t prisoners of war and they’re not entitled to those rights. > > The Geneva Convention says that certain people can be classified as prisoners of war and may be detained and are entitled to certain rights. But there are no provisions in the Geneva Convention for detaining people who are not classified as prisoners of war. Yes it does. Those combatants who are not POW’s only get Article 3 protections\* as **Ravenman** already pointed out. This has been confirmed by the Supreme Court. See this [ICRC](http://www.icrc.org/eng/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm) link. Regular combatants, Marines/Iraqi Republican Guard, are treated as POW’s. Irregular combatants (that guy in the building with the AK), _can_ be treated as a POW as long as he fulfills certain requirements (the carrying arms openly, wearing a uniform, ect). If he doesn’t, he’s not a POW. He still gets Geneva protections, Article 3. (Bush initially tried to claim he didn’t even get that). Some (European) countries however, do only classify people as Geneva POW’s or Civilians. That’s as a matter of policy, though. It’s not a legal requirement…yet. \*Because that’s all they get, Article 3 is becoming a sort of commerce clause, where it can mean anything and everything. But that’s a good thing. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 16, 2010, 7:21pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/138 "2010-11-16T19:21:32Z")
> [@jayjay](#): > > > [@](#): > > > > So we’re never going to know why TWAT is a war and not a law-enforcement operation? Shitfire, are we ever even going to be able to define who the enemy is? > > Dark’uns. So now the theory is that Obama is holding KSM indefinitely because we hate dark people? I’m wondering if anyone else sees a flaw in this. Regards, Shodan ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 16, 2010, 7:22pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/139 "2010-11-16T19:22:51Z")
> [@ElvisL1ves](#): > > Nothing at all? Really? Why don’t you point out where the AUMF makes reference to using the military for law enforcement purposes? It specifically and clearly states that the President may use the military to use force. As in, bombs, machine guns, killing, destruction, war. Then it goes on to invoke the War Powers Act, further removing any ambiguity that the resolution is specifically authoring the President to make war on the enemies identified in the resolution. My conclusion is that if anyone is saying that the AUMF authorized the military to carry out police functions, they are making stuff up. If you can point to something in the resolution that actually supports such a claim, I invite you to prove me wrong. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2010, 7:39pm UTC](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743/140 "2010-11-16T19:39:23Z")
It’s implicit in defining who force may be used _against_. Not a state, but individuals and organizations. [Previous page](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743.md?page=6) [Next page](https://boards.straightdope.com/t/khalid-sheik-mohammed-can-be-held-indefinitely-without-trial-says-obama-administration/560743.md?page=8)