As soon as Al-Qaeda surrenders, Bin Laden turns himself in for trial, and all terrorist groups disarm and stop acts of violence against civilians, then the war is over and KSM and everyone else in Guantanamo can go home.
I mean, I laugh as I read that sentence, but isn’t that what we demand in other armed conflicts?
We didn’t demand that Saddam step down from his position after he was defeated in 1991.
It does seem like our legal position here boils down to “We’re holding a bunch of people in captivity because we want to. And nobody’s big enough to make us stop doing it.”
If you ignoreall the cites you’ve been given, all the existing laws, and the entirety of history, I suppose you could feel that way. Luckily, some if us don’t ignore all that.
I think it is outside the bounds of the discussion, to be honest. I feel it was brought up just because some posters can’t stay on the ball and have a reflexive need to stir up arguments that have been argued many times before.
Do you deny that the discussion was about detentions specifically? I think we’re all aware it’s part of a bigger picture and more has been going on. However, the Bush administration wasn’t vigorously defending the concept of “torturing detainees to death.” They did defend the use of some forms of interrogation techniques most people would consider torture, but the real thing that got people outraged was the detainees detention itself. The torture was just a sensationalist icing on the cake.
I’ve read the cites. None of them refute what I wrote. And I know history has numerous examples of “might makes right” but I like to think the United States lives by better principles than that.
Are you actually arguing that the Geneva Convention says that a state can confine lawful enemy combatants but not unlawful ones?
The cites, from Quirin to Article 4 to the historical information, all provide the legal and historical justifi ation for the detention of" unlawful combatants". Simply dismissing them as" might makes right" ignores all that.
When you read the cites, did you skip over any parts you didn’t understand?
You linked Article 3 of the third Geneva Convention; all that says is that in a war not of an international character (meaning a non-state war) then signatory states to the GC must not:
Those are things that they specifically cannot do, no matter the character or nature of the war. The third GC as relates to the treatment of POWs is vast, and while Article 3 says you should adhere to all the Articles in a non-traditional war, it is not a treaty obligation.
Aside from those four prohibitions, it also puts one “required action” on the signatory power, namely they must take care and render care to the wounded and sick.
There is no prohibition against detention of persons, and the GC is not like, say, American constitutional law. There aren’t “presumptions” aside from the presumptions made about the traditional conduct of wars. What that means is, if it isn’t specifically prohibited by the GC or specifically required, then it is just sort of assumed states will behave as states always have in armed conflicts.
If you actually read through the GC you will see that nothing in it contradicts exactly what I’ve said, namely that:
During the American Revolutionary War, spies were hanged (Major John Andre, Nathan Hale), but regular soldiers were usually returned home (see: the British captured at Saratoga, Yorktown, the Germans captured at Trenton.) While some of them may have died while in captivity, it was generally the goal that those persons would be released at the end of the fighting.
The American Civil War followed a similar formula.
The whole structure of the GC clearly accepts and in fact establishes the concept of there being combatants who are to be afforded the specific rights of POWs, and combatants who are not afforded those rights but are given some protections. One of those protections is not “protection from detention.”
Where Bush and the United States went off the rails is the traditional and customary way to handle unlawful combatants (saboteurs, spies, and privateers) was to either a) try them and hang them or b) release them when the war was over. If you think in the contexts of history, prior to the “War on Terror” it would not have been in the interest of state powers to hold people indefinitely. What is there to gain from that? No, instead if you had combatants who had you felt were criminal, you usually had them executed (but you did give them a form of criminal trial–Andre and Nathan Hale were tried, and that was over 200 years ago.) If you were holding a large number of such combatants, maybe you just released them when the war was over if you didn’t really feel they were that egregious. This was probably more common for Privateers than for saboteurs and spies, mainly because granting of letters of marque was very common. However, that was a practice of the 17th and 18th century so the treatment of those persons was not held to any real international standards. Some states would recognize captured privateers as state agents and may eventually release them, many others simply had them hanged as pirates.
What was controversial, and I maintain this, was not holding people captured during war time as “something other than POWs.” It was holding them “indefinitely”, it has always been understand that even POWs would be held indefinitely in terms of “time.” Meaning, it was always understood a POW would be held til the end of the war, but how long that war would be of course could not be known during the fighting itself. When prisoners first started being taken to Guantanamo Bay, we didn’t even know if the government would release them after the end of hostilities in Afghanistan (or anywhere else.) They essentially existed in limbo, and that was out of sync with history. It wasn’t uncommon at all to hold unlawful combatants and then eventually release them. Nor was it uncommon to hold them and eventually try them and execute them.
Compare it to members of Iraq’s military we captured during the invasion of Iraq, they were held as POWs and it was understood they would eventually and definitely be released (aside from the ones who were being prosecuted for various war crimes/crimes against humanity committed before or during the conflict.)
I wasn’t following the discussion closely enough to judge whether it was a red herring; I posted simply because it seemed that Der Trihs was being called a liar for stating something for which there is clear and convincing evidence.
You describe the torture discussion as sensationalist, but many people consider the torturing of detainees to death to be pretty important and, if anything, under-hyped. My sense is that people like you and Bricker are simply unaware of the evidence suggesting that dozens of people were killed, some intentionally, as a result of their “enhanced interrogation.” That’s why I posted the documents.
I encourage you both to read the HRF report, at least. You can find many of the supporting documents cited in that report in the ACLU archive. Some of the deaths have only some evidence suggesting they were the result of torture. But many of them not only involve strong such evidence, but low-level officers were actually successfully prosecuted on the basis of it.
I was actually refuting the very specific claim of Der Trihs which was in response to this specific thing I said:
[QUOTE=Martin Hyde]
What was new with the War on Terror is Bush wanted to hold the unlawful combatants forever.
[/quote]
To which he responded:
[QUOTE=Der Trihs]
And torture them, sometimes to death.
[/quote]
What I was specifically refuting was that torturing unlawful combatants to death was something new, only begun with the Bush administration. Sorry, but despite what many people on the SDMB think, George W. Bush didn’t invent evil. Read accounts from any war and you will read accounts of prisoners of all types being tortured to death.
The reason holding them forever is new is because states just weren’t in the business of keeping large numbers of people locked up for long periods of time before the modern era. You either released people you captured in war, killed them when they surrendered (almost universally done up through the 17th century with exceptions for the nobility), or if they were some form of criminal you punished them (usually with hanging, in the historical periods we’re talking about.)
So:
Holding unlawful combatants forever = New thing, not seen much in history, because states traditionally have not liked, cared to, or benefited from incarcerating belligerents either traditional front line soldiers or illegal combatants such as saboteurs/spies.
Torturing captured unlawful combatants = Not new, do you really think Bush is the one who came up with the idea to torture these people, for the first time ever? You don’t think any spies, saboteurs, or other form of “non-protected combatant” was ever tortured before the War on Terror?
I wasn’t interested, am not interested, and will not really engage in a debate about the specifics of persons “tortured to death” during the War on Terror. I’m not interested in debating whether it has happened or not. I’m not interested in debating the morality of it. I’m not interested in reading or acknowledging anything you link about it, period.
Not because I don’t care, at all, but because it’s been done before, I’ve seen it before, I’m aware of it, and I’m not interested in arguing about it in this thread. Finally, because I was interested in the main conversation of this thread I wanted to avoid it splintering and fragmenting into a general back and forth about all the ill deeds, accused ill deeds, and perceived ill deeds of the United States under the leadership of George Bush, that also has been done to death and does not interest me. It also has a very strong track record of essentially destroying any thread in which such debates erupt.
Ok. I think you’re refuting something Der Trihs never said (and could not possibly believe) because you’re incorrectly parsing his language to apply to the whole of your sentence instead of just the second clause, but that’s neither here nor there. I’m happy to end the hijack here.
Bricker, you’re not usually this condescending. If you have a point to make here, say it. Stop coyly asking “Did you check the law, hmmm?” and “Did you check all of the law?” and “Did you understand that law?” and “Are you sure you didn’t miss anything?” If you know of a law that authorizes the detention, cite it and quote it. This isn’t an episode of The Paper Chase.
If memory serves me right, Bush felt he could declare a man an enemy combatant and lock him up forever. Obama is looking for an American place to have a trial. He finds that it may be impossible after all. So he is looking again at a military trial.
If these stances are exactly the same BRICKER is correct. They are not the same, so he is wrong.
What I said was “The problem is that the government has invented a new category which apparently has no rules. This new invented category - “unlawful enemy combatants” or “unprivileged belligerents” or “people we just want to keep in prison” - has no legal foundation. We have no more legal authority to hold these people than the Iranians had to hold our embassy staff back in 1979.” (post 117).
Bricker (in post 120) and Ravenman (in post 129) then specifically cited the Geneva Conventions as authorization.
To which I responded “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.” (post 133).
As you pointed out there’s nothing in Article 3 which authorizes the detention I described. If you’re going to claim that Article 3 doesn’t specifically prohibit the detention of anyone, then you might as well claim your authorization exist in the Pure Food and Drug Act of 1906. Like Article 3 of the Geneva Convention, that law doesn’t specifically prohibit detaining unlawful enemy combatants.
I also quoted Article 75 (in post 167) which does specifically prohibit holding people indefinitely. It says “Any person arrested, detained or interned for actions related to the armed conflict … shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.”
This is true,
I understand that the key point was in the WaPo reference but I have a hard time taking seriously a site that refers to Eric Holder as the “Alien General”.
Little Nemo: WRT Article 75, are you saying that the reasons for detaining KSM have ceased to exist?
In any case, I think a number of us have patiently explained that the GC is not the only source of international law, that the GC does not prohibit detention of non-POW combatants, and that international obviously allows for detention of combatants (whether POW or not) for protracted amounts of time without trial. Your own cite of Article 75 makes that last point very well, in fact.
But again, I think KSM should be tried for the thousands of murders that he conspired to commit. And also that the US has ample justification to hold him until that trial can take place.
No, it isn’t.
But it’s not clear to me how you could read Ex Parte Quirin and say:
To review, you asked Hamlet: “Can you point out the part where it authorizes the confinement of unlawful enemy combatants?”
He replied, “Ex Parte Quirin discusses that issue in depth. ‘By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.’”
If you had read the case itself, which he linked to, you would have also seen the next words: “The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
If you had reviewed the Third Geneva Convention, you would have read: "Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
And of course Article 4 lays out the categories we have already discussed, such as:
So as early as 1949, it was clear to the contracting parties of the Geneva Convention that there would be people captured on battlefields that did not merit “prisoner of war” designation. Determining that status was the job of a “competent tribunal.”
And Art. 45.3 of Protocol I makes that crystal clear: “Any person who has taken part in hostilities, who is not entitled to prisoner‑of‑war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.”
This status was invoked by the Angolan MPLA at the famous “Luanada Trial” in 1976 against British and American mercenary fighters; perfectly legal under the Geneva Conventions.
So it’s really impossible for me to believe you read that wealth of information and still said that our argument amounts to “our legal position here boils down to ‘We’re holding a bunch of people in captivity because we want to. And nobody’s big enough to make us stop doing it.’”
You either didn’t read, or didn’t understand what you were reading, because that’s not remotely a fair summation of the information above.
So, since I take you at your word that you read it all, I ask again: did you skip over any parts that you didn’t understand?