# Life in prison for Gitmo inmates because of insufficient evidence to charge them? **URL:** \ **Category:** Great Debates\ **Created:** [January 2, 2005, 3:30pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694 "2005-01-02T15:30:38Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 3, 2005, 8:55pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/61 "2005-01-03T20:55:51Z")
You know what each and every one of these kids did _how_? Because that’s what emerged from their hearings? Please. > [@](#): > > The “Mission Accomplished” quite clearly referred to the overthrow of Saddam Hussein’s government. Then, by your own argument, such as it is, what we have now is indeed no longer a war. Please. ---
**Author:** ![Avenger](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Avenger](https://boards.straightdope.com/u/Avenger)\ **Post date:** [January 3, 2005, 9:16pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/62 "2005-01-03T21:16:00Z")
> [@](#): > > The US isn’t responsible for their loss of childhood. Their childhood was gone when they took up arms against the United States and/or engaged in terrorist activities. The US didn’t make them do that. The US _was able to present no credible evidence that they had done that._ Hence, they eventually released them. > [@](#): > > However, their status as POWs has nothing whatsoever to do with how long the US can hold them. Or is it your contention that the US can hold POWs until the cessation of combat, but they can’t hold enemy combatants until the cessation of combat? So if a combatant follows the rules of war, then they can be held indefinitely, but if they violate those rules they must be released immediately? No it is my contention that standards are clearly established for Prisonners of War. If people are Prisonners of War, these should be adhered to. If they are ‘illegal combatants’ then there is no need to hold them as you would Prisonners of War. They have committed crimes (hence **illegal** combatents, they should be charged with those crimes and given a trial that conforms to the standards that one would expect from a democratic country. It’s really not that hard. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 9:38pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/63 "2005-01-03T21:38:47Z")
> [@jjimm](#): > > Sure, some of them may have taken up arms against the US, in a Geneva-defined “illegal” manner, but _how do you know they did_? Occham’s Razor. In order for there to be innocent prisoners captured in the “fog of war” and still held captive, after so many prisoners have been released, there would have to have been a series of events so unlikely, and involving so many people’s intentional malfeasance, that the American military could only be populated by Dickensian caracatures and the poor prisoners would have to be the unluckiest bastards in the history of the world. I admit that it takes some small measure of faith in my government, but not much. Having said that, I’m with Dick Lugar and **Mr Moto** in that I agree there needs to be some resolution to this situation. I just tend don’t particularly go in for conspiracy theories that would make the X Files look tame by comparison. > [@jjimm](#): > > Indeed, how dare you impugn people who may be innocent and haven’t been tried? It’s not that difficult. It’s the same process by which you dare to impugn the American military without any evidence that they’ve committed wrongdoing. > [@ElvisL1ves](#): > > Then, by your own argument, such as it is, what we have now is indeed no longer a war. Please. Attaboy. If you don’t like what I say, just take one sentence out of context and call the matter settled. Because if you’d kept quoting, you’d have seen this: > [@Age Quod Agis](#): > > It did not refer to the cessation of our involvment in Iraq and Afghanistan, and it did not refer to the cessation of hostilities against Hussein and Taliban loyalists and terrorists in general. See e.g. Fallujah. Any particular reason you cut my quote off where you did? I mean, except intellectual dishonesty? Speaking of which, I have above quoted **ElvisL1ves** arguing that the war in Iraq is over. And here is **ElvisL1ves** [mocking the use of the phrase “Misson Accomplished” when the war clearly isn’t over](http://boards.straightdope.com/sdmb/showpost.php?p=4465818&postcount=18): > [@ElvisL1ves](#): > > The fighting “winding down”, you say? On what factual basis? The same one that led to the “Mission Accomplished” banner so long ago? Who needs consistency when you’re criticizing the Bush Administration? ---
**Author:** ![Avenger](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Avenger](https://boards.straightdope.com/u/Avenger)\ **Post date:** [January 3, 2005, 9:47pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/64 "2005-01-03T21:47:16Z")
> [@](#): > > Occham’s Razor. In order for there to be innocent prisoners captured in the “fog of war” and still held captive, after so many prisoners have been released, there would have to have been a series of events so unlikely, and involving so many people’s intentional malfeasance, that the American military could only be populated by Dickensian caracatures and the poor prisoners would have to be the unluckiest bastards in the history of the world. You are joking right? The fact that they haven’t been released is ample evidence for you that they should not be released? > [@](#): > > It’s the same process by which you dare to impugn the American military without any evidence that they’ve committed wrongdoing. There is clear evidence that the American military has committed wrongdoing (actually the civilian command really, but hey ho). The existence of Guantanamo is a clear affront to normal standards of democracy and human rights. Even if everyone who was ever taken there was guilty, which appears extremely unlikely and, given the way the prisonners have been handled, there’s no way we will ever know now, that would still be the case. ---
**Author:** ![jjimm](https://avatars.discourse-cdn.com/v4/letter/j/ba8739/32.png) [@jjimm](https://boards.straightdope.com/u/jjimm)\ **Post date:** [January 3, 2005, 9:58pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/65 "2005-01-03T21:58:03Z")
> [@Age Quod Agis](#): > > Occham’s Razor. In order for there to be innocent prisoners captured in the “fog of war” and still held captive, after so many prisoners have been released, there would have to have been a series of events so unlikely, and involving so many people’s intentional malfeasance, that the American military could only be populated by Dickensian caracatures and the poor prisoners would have to be the unluckiest bastards in the history of the world. I believe this is known as “[the fallacy of improper transition](http://www.fallacyfiles.org/imptrans.html)”. > [@](#): > > I admit that it takes some small measure of faith in my government, but not much. A great deal of faith in some quarters. > [@](#): > > It’s not that difficult. It’s the same process by which you dare to impugn the American military without any evidence that they’ve committed wrongdoing. Nonsense. I have not in fact impugned the US military. I have not said that the US military is wrong or right in its suppositions; just that these suppositions are not proven. There is no doubt that the US military is indeed the captor of the people in Guantanamo bay; but there is doubt that the captives are guilty; the burden of proof of guilt is therefore on the US military. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 10:05pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/66 "2005-01-03T22:05:09Z")
> [@Avenger](#): > > The US _was able to present no credible evidence that they had done that._ Hence, they eventually released them. No, there’s a big difference between “not able to” present credible evidence, and “not willing to” present credible evidence. The US doesn’t think they’re required by international law or common sense to call soldiers out of battle to give each captured combatant a full-scale trial. I agree with the US on that point. [Note Benet: this actually works in favor of your argument. The US hasn’t presented credible evidence of what _any_ prisoners have done. So as far as I know, they haven’t released any prisoners for lack of evidence. But I find it hard to believe that they have kept in captivity any people that they think is innocent of wrongdoing and without any articulable and helpful intelligence. Again, I don’t believe the US military is populated with sadistic bastards. But maybe that’s just me.] Moreover, despite the conentions of many in this thread, I don’t believe the articles linked say that the US is imprisoning these people without trial **because** the US can’t present evidence that they’ve committed crimes or violated the Geneva Conventions. The US is imprisoning these people at the same time that the US is acknowledging that it can’t or won’t present evidence of crimes these people committed. One does not necessarily cause the other, even when it would make for a wonderful argument. > [@Avenger](#): > > If they are ‘illegal combatants’ then there is no need to hold them as you would Prisonners of War. They have committed crimes (hence **illegal** combatents, they should be charged with those crimes and given a trial that conforms to the standards that one would expect from a democratic country. It’s really not that hard. But it doesn’t actually work that way. The punishment for violating the Geneva Conventions is that you’re not entitled to its protections. Moreover, merely violating the Geneva Conventions is generally not a “crime” in the sense that it can be prosecuted by the US court system. The US Courts generally lack jurisdiction to prosecute foreigners for crimes committed during war in foreign lands. Moreover, even if the US Courts had jurisdiction over such crimes, there aren’t any laws on the books setting forth punishments for violations of the Geneva Conventions. So even then, US Courts couldn’t sentence anyone for their violation. So the US lacks evidence to charge these prisoners with crimes because they _haven’t committed any crimes punishable by the US._ Which, in my opinion, is still a long ways away from saying that they should be set free. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 3, 2005, 10:18pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/67 "2005-01-03T22:18:28Z")
> [@Age Quod Agis](#): > > … Again, I don’t believe the US military is populated with sadistic bastards. But maybe that’s just me… No, not at all. All such persons who agree with you clearly have the correct point of view. Its only those persons who disagree with you who hold such obviously false and deplorable views. ---
**Author:** ![Avenger](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Avenger](https://boards.straightdope.com/u/Avenger)\ **Post date:** [January 3, 2005, 10:20pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/68 "2005-01-03T22:20:04Z")
> [@](#): > > The punishment for violating the Geneva Conventions is that you’re not entitled to its protections. I’m not sure how these people can be in violation of something that doesn’t apply to them. > [@](#): > > Moreover, merely violating the Geneva Conventions is generally not a “crime” in the sense that it can be prosecuted by the US court system. The US Courts generally lack jurisdiction to prosecute foreigners for crimes committed during war in foreign lands. Moreover, even if the US Courts had jurisdiction over such crimes, there aren’t any laws on the books setting forth punishments for violations of the Geneva Conventions. So even then, US Courts couldn’t sentence anyone for their violation. That’s just plain wrong. The US government has proposed setting up military tribunals to try and sentence some of these people. Which, according to you, can’t possibly be done. Apparantly it can. Well, then, it could have been done years ago with proper standards of justice. > [@](#): > > So the US lacks evidence to charge these prisoners with crimes because they haven’t committed any crimes punishable by the US. Which, in my opinion, is still a long ways away from saying that they should be set free. You know, really, I don’t see that I need to rebut that. So I’ll just quote it and let it speak for itself. Just because a person hasn’t committed a crime punishable by the US government doesn’t mean that the US government shouldn’t lock them up. Hey, **Age Quod Agis** , you just remember that if they come for you one day… ---
**Author:** ![Sample\_the\_Dog](https://avatars.discourse-cdn.com/v4/letter/s/8797f3/32.png) [@Sample\_the\_Dog](https://boards.straightdope.com/u/Sample_the_Dog)\ **Post date:** [January 3, 2005, 10:20pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/69 "2005-01-03T22:20:08Z")
I hate to sound like a broken record – for those of you who can recall what that sounds like – but we’re not even talking about trials here. All we’re talking about is granting 5th Amendment habeas corpus rights to persons (non POWs) held under US jurisdiction. The issue currently at hand does not involve giving these folks attorneys, making charges, and sentencing, but rather the executive having to pony up to someone other than itself and show that there is some shred of evidence that it is not abusing its power by detaining people unlawfully. It is totally immaterial whether the people currently in custody actually should be detained. Let’s assume that each and every one of them still in custody was involved in a plot to cut the unborn babies from the wombs of cookie-baking soccer moms. The issue remains whether the executive should have the right to do as it pleases without anyone to look over its shoulder. We’re talking about checks and balances against executive power (i.e., Justice and Defense). The Bush regime is claiming the right to detain anyone anywhere in the world it can get its hands on, without granting them even the right to have a court look at the evidence and determine whether it is sufficient to classify them in the way the administration claims they should be classified. If the executive is doing its job correctly, it should have no qualms with cooperating with the judiciary. Don’t forget, if the Bush administration can do this today, then subsequent administrations can do it tomorrow. Bush _et al_ are not claiming any special privilege due to circumstances, but rather that this is their right _de facto_. Failure to provide a judicial review of the decisions of the executive (don’t forget that the US President is Commander in Chief of the armed forces as well as head of the executive branch of civil government) is an open invitation to tyranny. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 10:25pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/70 "2005-01-03T22:25:06Z")
> [@jjimm](#): > > I believe this is known as “[the fallacy of improper transition](http://www.fallacyfiles.org/imptrans.html)”. Sorry, but this is one that I’ll have to think about. I don’t yet see how I have that fallacy fits. Could you please expand on your reasoning? What I was trying to suggest (apparently rather inartfully) was that the US is keeping these prisoners for a couple of reasons: (1) they still have valuable intelligence; and (2) so they don’t return to battle and/or terrorist activities. After approximately 3 years of interrogation, I’m guessing that the interrogators will have some passing familiarity with the prisoners. If the prisoner was originally innocent of wrongdoing, was picked up in the “fog of war,” and has been interrogated for approximately three years, then I’m guessing his interrogators would have to be pretty malevolent to want to keep him around despite the fact that he doesn’t pose a threat or have any valuable intelligence. It’s possible that I’m still guilty of the fallacy which you have ascribed to me, but I haven’t figured out how yet. If you could help me out, I’d appreciate it. > [@jjimm](#): > > I have not in fact impugned the US military. I have not said that the US military is wrong or right in its suppositions; just that these suppositions are not proven. A fair point. But by that same analysis, I haven’t impugned the people imprisoned, but merely suggested that it hasn’t been proven yet that any of them deserve to be free of imprisonment. > [@jjimm](#): > > There is no doubt that the US military is indeed the captor of the people in Guantanamo bay; but there is doubt that the captives are guilty; the burden of proof of guilt is therefore on the US military. What would you have them be proven guilty of? And by what means would you have the trial? ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [January 3, 2005, 10:30pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/71 "2005-01-03T22:30:41Z")
“Innocent until proven guilty.” What a _quaint_ notion. ---
**Author:** ![Avenger](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Avenger](https://boards.straightdope.com/u/Avenger)\ **Post date:** [January 3, 2005, 10:40pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/72 "2005-01-03T22:40:01Z")
> [@](#): > > What would you have them be proven guilty of? And by what means would you have the trial? Wait, _you’re_ the one defending their detention. _You’re_ the one who is sure that evidence must exist against them, otherwise they wouldn’t be in prison. They should be charged (and proven guilty if that is indeed possible) of whatever it is they are supposed to have done. The means of having the trial would be to appoint an impartial judge, allow the prosecution to present the evidence that you say exists, appoint a defence lawyer to provide the best defence possible and have the judge decide whether the case has been proven. It is truly scary that we have reached the point where the concept of a fair trial has to be explained and justified. ---
**Author:** ![jjimm](https://avatars.discourse-cdn.com/v4/letter/j/ba8739/32.png) [@jjimm](https://boards.straightdope.com/u/jjimm)\ **Post date:** [January 3, 2005, 10:47pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/73 "2005-01-03T22:47:22Z")
> [@](#): > > So as far as I know, they haven’t released any prisoners for lack of evidence. You’re wrong. [They have](http://news.bbc.co.uk/1/hi/world/south_asia/3280439.stm). [Several times](http://news.bbc.co.uk/2/hi/south_asia/3669496.stm). Some of them detained for [three years on no evidence whatsoever](http://news.bbc.co.uk/2/hi/uk_news/3959635.stm). > [@](#): > > The US doesn’t think they’re required by international law or common sense to call soldiers out of battle to give each captured combatant a full-scale trial. I agree with the US on that point. But the [US’s own ruling](http://en.wikipedia.org/wiki/Illegal_combatant) on the GC says: > [@](#): > > 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. (My emphasis.) They’re enduring the punishment already. Where’s the trial? > [@Age Quod Agis](#): > > But I find it hard to believe that they have kept in captivity any people that they think is innocent of wrongdoing and without any articulable and helpful intelligence. What they _think_ is irrelevant. You seem to be of the impression that the checks and balances required by the rest of the democratic world in civil and political life don’t need to be applied to the US military because… well because you have “some small measure of faith” in it. > [@](#): > > So the US lacks evidence to charge these prisoners with crimes because they _haven’t committed any crimes punishable by the US._ Which, in my opinion, is still a long ways away from saying that they should be set free. Here it seems you’ve given up the rule of law. It scares me that so many people in the US are prepared to justify this travesty. On preview: > [@](#): > > It’s possible that I’m still guilty of the fallacy which you have ascribed to me, but I haven’t figured out how yet. If you could help me out, I’d appreciate it. Your entire post before this paragraph is _assuming their guilt_. You’re saying words to the effect of “the US military is so honourable that they don’t need anything to check the detention of these people”. Your entire argument is based on this. This is the “smoke without fire” fallacy. > [@](#): > > I haven’t impugned the people imprisoned Yes you bloody have. You said “Their childhood was gone when they took up arms against the United States and/or engaged in terrorist activities.” That’s pretty rude, isn’t it? Even when you’re not advocating unconvicted people being locked up indefinitely. > [@](#): > > What would you have them be proven guilty of? The alleged crimes for which they’re being locked up. > [@](#): > > And by what means would you have the trial? I’d rather have them tried by a judge and jury; but in the absence of this, how about what they’re promised by US law: “trial and punishment by military tribunals”. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 11:00pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/74 "2005-01-03T23:00:49Z")
> [@Avenger](#): > > I’m not sure how these people can be in violation of something that doesn’t apply to them. Once again, I appear to have been unclear. The Geneva Conventions apply to every combatant. However, in order to be entitled to the Geneva Conventions’ _protections_ (POW status and all its benefits, etc.) you have to abide by the Geneva Conventions’ _mandates_ (avoid intentionally targeting civilians, wear distinct clothing, etc.). So the Geneva Conventions’s mandates apply, but when those mandates have been violated, the Geneva Conventions’ protections don’t apply. > [@Avenger](#): > > That’s just plain wrong. The US government has proposed setting up military tribunals to try and sentence some of these people. Which, according to you, can’t possibly be done. Apparantly it can. Well, then, it could have been done years ago with proper standards of justice. Sorry, but that doesn’t logically follow for a couple of reasons. First, what’s been suggested here are either trials or 5th Amendment habeas corpus proceedings. A military tribunal won’t satisfy the requirement of a trial, nor will it even satisfy a writ of habeas corpus. See e.g. [Ex parte Quirin](http://www.agh-attorneys.com/4_ex_parte_quirin.htm), 317 U.S. 1 (1942) (finding that individuals designated enemy combatants were not entitled to habeas corpus hearing nor civil trial on guilt after they were sentenced to death by military tribunal). Second, just because the US government has proposed setting up a military tribunal to try _some_ of these folks doesn’t mean that they can set up a military tribunal to try _all_ of these folks. Third, just because the government proposed in the past to do it sometime in the future does not mean that they could have done it “years ago.” (I assume this was just harmless hyperbole, but I thought I should respond to it just in case.) > [@Avenger](#): > > You know, really, I don’t see that I need to rebut that. So I’ll just quote it and let it speak for itself. Just because a person hasn’t committed a crime punishable by the US government doesn’t mean that the US government shouldn’t lock them up. Hey, **Age Quod Agis** , you just remember that if they come for you one day… Will do. The US government is allowed to kill people without finding them guilty of a crime. It’s called war. And the Executive’s authority to kill people under those circumstances seems pretty clear. Similarly, the US government can detain people without finding them guilty of a crime. This power can be placed under the heading of espionage or intelligence, but I think it’s actually a sub-heading of the government’s war powers. That’s what we’re dealing with here. Just because these people may not be guilty of a crime punishable in by US courts doesn’t mean that they their detention is not vital. ---
**Author:** ![Avenger](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Avenger](https://boards.straightdope.com/u/Avenger)\ **Post date:** [January 3, 2005, 11:12pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/75 "2005-01-03T23:12:34Z")
I’d be rehashing really if I posted anything further and there’s not a huge ammount of point trying to argue logically against an approach of ‘my government is doing it, so it must be right’. One day, when you wonder where your freedoms went, remember these times. ---
**Author:** ![Sample\_the\_Dog](https://avatars.discourse-cdn.com/v4/letter/s/8797f3/32.png) [@Sample\_the\_Dog](https://boards.straightdope.com/u/Sample_the_Dog)\ **Post date:** [January 3, 2005, 11:30pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/76 "2005-01-03T23:30:35Z")
But again – and now I’m starting to think that a broken record is in order – we’re not talking about trying these folks for crimes. We’re talking about judicial review of the evidence justifying their detention in the first place. Y’all are getting way ahead of the game. And I repeat, the issue of the “guilt” or “innocence” of anyone currently under detention is completely irrelevant. The current US administration is attempting to assert a right to detain anyone it can get its hands on without having to show that such detention is justified. The issue here is the balance of powers – specifically, a check against abuse of executive power. The supposed rules by which detention is lawful become effectively null and void if there is no mechanism to determine whether those rules have been followed. And that is the issue at stake in claiming the right to habeas corpus. If the executive is allowed to deny habeas corpus (that is, a review of sufficiency – i.e., whether the guidelines, whatever they may be, have actually been met) then it is free to ignore any set of rules that are established. This is the [central issue](http://msnbc.msn.com/id/6631668/) being argued currently. > [@](#): > > Under detailed questioning by a federal judge, government lawyers asserted Wednesday the U.S. military can hold foreigners indefinitely as enemy combatants at Guantanamo Bay, Cuba, even if they aided terrorists unintentionally and never fought the United States. > > Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green. > > “She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her. The military detains her, the military decides whether she stays in detention. No review. That, my friends, is the issue. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 11:31pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/77 "2005-01-03T23:31:03Z")
> [@jjimm](#): > > > [@Age Quod Agis](#): > > > > So as far as I know, they haven’t released any prisoners for lack of evidence. > > You’re wrong. [They have](http://news.bbc.co.uk/1/hi/world/south_asia/3280439.stm). [Several times](http://news.bbc.co.uk/2/hi/south_asia/3669496.stm). Some of them detained for [three years on no evidence whatsoever](http://news.bbc.co.uk/2/hi/uk_news/3959635.stm). None of the articles you’ve linked make any comment on the guilt, innocence, or the amount of evidence to establish the guilt or innocence of any of the prisoners. Nor do any of the articles suggest why the individuals were released. The articles show that the prisoners were all against their own detention (which seems natural), but they don’t suggest that either innocence of wrongdoing or lack of evidence against them. In fact, in the 3rd article, even the lawyer for the individuals suing the government does not suggest that his clients were innocent. Please note that he has not filed suit for “wrongful imprisonment.” Instead, he suggests that the US should be held liable for torture, holding prisoners for indefinite periods without access to counsel, and violating international treaties. > [@jjimm](#): > > But the [US’s own ruling](http://en.wikipedia.org/wiki/Illegal_combatant) on the GC says: > > > [@](#): > > > > 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. > > (My emphasis.) Errrr, that doesn’t say what you seem to think it does. It says that enemy combatants are **subject** to military tribunals. It does not suggest that they have a right to military tribunals. If the Supreme Court was suggesting that unlawful combatants have a right to military tribunals, then that sentence would also mean that they have a right to “capture and detention.” That wouldn’t make any sense. > [@jjimm](#): > > You seem to be of the impression that the checks and balances required by the rest of the democratic world in civil and political life don’t need to be applied to the US military because… well because you have “some small measure of faith” in it. That’s not what I’m _trying_ to suggest. 😉 What I’m trying to suggest is that the realities of governing in the real world mean that you can’t realistically give everyone a trial. I don’t think the US is unique in this regard. In fact, I’m willing to bet that the "the rest of the democratic world " have engaged in their fair share of war, espionage, and custodial interrogation without trial. > [@jjimm](#): > > On preview:Your entire post before this paragraph is _assuming their guilt_. You’re saying words to the effect of “the US military is so honourable that they don’t need anything to check the detention of these people”. Your entire argument is based on this. This is the “smoke without fire” fallacy. Thanks for taking the time to clarify this. But I have to disagree. What I’m suggesting is that there are valid reasons to believe that the individuals are guilty. So the entire post does not rely on the assumption of their guilt. Part of the post is intended to establish why I believe that we can assume they’re in custody for a valid reason (even if they’re not technically guilty of a crime). > [@jjimm](#): > > Yes you bloody have. You said “Their childhood was gone when they took up arms against the United States and/or engaged in terrorist activities.” That’s pretty rude, isn’t it? Fair enough. I suppose I have asserted that they’re guilty. I concede the point. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 11:45pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/78 "2005-01-03T23:45:49Z")
Sorry. This should have gone in the post below. :smack: > [@jjimm](#): > > > [@Age Quod Agis](#): > > > > What would you have them be proven guilty of? > > The alleged crimes for which they’re being locked up. But as I understand it, they aren’t being held captive because of _crimes_ they’ve committed. As I said before they’re being held because they have valuable intelligence, and/or to keep them from returning to the battlefield and/or engaging in terrorist activities. Engaging in terrorist activities may be a crime, but I doubt you can be charged with having valuable intelligence or possibly returning to the battlefield (after all, it’s not _illegal_ for a foriegner to engage in war against the US). ---
**Author:** ![Sample\_the\_Dog](https://avatars.discourse-cdn.com/v4/letter/s/8797f3/32.png) [@Sample\_the\_Dog](https://boards.straightdope.com/u/Sample_the_Dog)\ **Post date:** [January 3, 2005, 11:46pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/79 "2005-01-03T23:46:10Z")
> [@Age Quod Agis](#): > > What I’m suggesting is that there are valid reasons to believe that the individuals are guilty… Part of the post is intended to establish why I believe that we can assume they’re in custody for a valid reason… This means you don’t understand what’s going on in the courts right now, as I explain above. The guilt or innocence of anyone currently in custody is totally irrelevant, just as the guilt or innocence of a US citizen accused of a crime and held by the state is totally irrelevant to the issue of whether the state is required to justify the detention of that prisoner. If no justification is required, if no review is allowed, then you grant the state the right to imprison people arbitrarily. Whether they’re doing it in this case, or in any case at the present time, matters not a bit. Imagine that your worst enemy is elected President. Do you want this person to have the right to detain people on any grounds, no matter how strict, if there is no mechanism to determine whether they have actually followed the rule of law and not begun to use their power to imprison people they merely dislike? If the executive is allowed to do this, it could then (in future administrations) imprison, say, supporters of foreign politicians vying for power against friends of the administration, or religious groups whose views clash with their goals. Think about it. Really think about it. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [January 3, 2005, 11:51pm UTC](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694/80 "2005-01-03T23:51:05Z")
> [@rjung](#): > > “Innocent until proven guilty.” > > What a _quaint_ notion. “Innocent until proven guilty” has never applied to the government’s actions against POWs and/or enemy combatants. Once again, please see [Ex parte Quirin](http://www.agh-attorneys.com/4_ex_parte_quirin.htm). [Previous page](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694.md?page=3) [Next page](https://boards.straightdope.com/t/life-in-prison-for-gitmo-inmates-because-of-insufficient-evidence-to-charge-them/282694.md?page=5)