Life in prison for Gitmo inmates because of insufficient evidence to charge them?

[Age_Quod_Agis]

Sample_the_Dog, I understand the tension we’re talking about. I concede that there’s a danger that the American people may elect a President that uses his war powers to declare war on his personal or political enemies.

But that slippery slope slides both ways.

The situation that you’re talking about could result in wars being run by the courts, who are themselves unelected representatives. The situation you’re talking about could result in our intelligence community – which is already held in something less than the highest esteem – being hampered by those same unelected representatives.

The only evidence that these individuals have committed wrongs on the battlefield likely comes from troops in the battlefield. Should we pull troops off the battlefield to give testimony that these individuals didn’t follow the rules of engagement, or had knowledge of terrorist activities? Should we pull interrogators away from collecting evidence so they can testify as to their opinions on whether the individual has more useful intelligence to give? Wouldn’t publicly disclosing the identity of military interrogators place their lives in jeopardy? Wouldn’t proving that individuals have valuable intelligence require disclosing the intelligence already gained? And wouldn’t that act of disclosure mean that the intelligence gained might be spoiled and useless?

Checks and balances are an important part of our constitution. But so is our ability to declare and act quickly and effectively in times of war. In the same way that I wouldn’t want commanders in the field to have to run every decision to attack and kill by Congress, I wouldn’t want our intelligence community to be hampered by the need to present evidence and justify their every move to people less expert in intelligence matters than they.

There is, admittedly, a tension between my desire for a severely limited government and my desire for a safe society. But the check on that power is that the people elect the President, we can elect a new President every four years, or we can impeach the one we currently have. And a President cannot serve for more than 8 years. So the people hold the ultimate check on the President’s war powers. Not to mention Congress’s control over the purse strings on the intelligence and military budgets.

In my opinion, it would be more harmful than helpful to place another limitation on the President’s war powers. Again, I admit that there are dangers there. But this is the real world, and there are dangers on either side.

[ElvisL1ves]

@Age Quod Agis

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

You know that how? Their hearings?

and/or to keep them from returning to the battlefield and/or engaging in terrorist activities.

Gawdamighty. You don’t know where these people were taken from, or why - you can’t, they haven’t had hearings. As to that last point, are we going to lock up everyone who might be mad enough at us to try to hurt us if we let them have a chance? Think that through just a little more.

@AQA

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.

Bullshit. It’s central to what we fucking stand for as a country, what many thousands of us have died to create and build upon, and it’s basic to this alleged beacon of democracy that will enlighten the Middle East. You instead are energetically defending fascism of exactly the type we were purportedly trying to *liberate * the Iraqis from.
Now, once again and slowly, one question at a time: How do you know what the detainees have done?

[ZombiesAteMyBrain]

@jjimm

Prejudice. As in pre judice.

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? How many mistrials have there been in regular criminal prosecutions in the US? How many more are there likely to be with people picked up randomly in the fog of war?

Indeed, how dare you impugn people who may be innocent and haven’t been tried? Are you parroting Bush’s “make no mistake, these are bad people”?

Also, jjimm, I doubt very much if they would have been allowed to go back home last year if there was even a tiny bit of evidence against them that could have been used.

But some members of this board prefer to close their eyes, stick their fingers in their ears and recite the mantra ‘My country can do no wrong - my president is always right.’

[Sample_the_Dog]

Age Quod Agis, you are overstating the case and proposing a level of detail which is not required by the courts. Again, we are not talking about trying these cases.

Not only that, we’re not even talking about war powers. The executive is claiming much broader powers than that.

Green asked how the government defined an enemy combatant who aided terrorists or Afghanistan’s now-toppled Taliban regime.

“It is not limited to individuals who carried a weapon and shot at American troops,” Boyle replied. They don’t have to be on the front lines; they can be strategic advisers, intelligence informants, or supply workers including cooks, he said.

Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.” Some detainees have been picked up in Bosnia and others in Africa.

Noting the Supreme Court said detention was to keep combatants from returning to the battlefield, Green asked, “What and where is the battlefield the U.S. military is trying to detain the prisoners from returning to? Africa? London?”

Boyle: “The conflict with al-Qaida has a global reach.”

Green asked if detainees are told how long they might be imprisoned. “When will this end?” she asked. “Can hostilities last as long as Muslim fundamentalists vow attacks on the United States?”

Boyle replied that was “a question for the president,” not judges.

This administration is asserting nothing less than the right to detain anyone from anywhere at any time for any reason with no review whatsoever beyond its own. And that, sir, is tyranny.

No way in hell do I want to give the executive branch that kind of power. It would have revolted the founders of this nation, who risked their lives to fight such abuses and understood perfectly well the consequences of granting the rights enumerated in the Constitution. I am loyal to the law of the land, not to any President or administration.

Not only that, but this policy presumes to bring the entire globe under the jurisdiction of the US, which is foolish and increases the risk to our own troops.

I find your position not only politically repugnant, but untenable and in the end counter to the security of my nation and my family.

[Age_Quod_Agis]

@ElvisL1ves

As to that last point, are we going to lock up everyone who might be mad enough at us to try to hurt us if we let them have a chance?

And are we going to dismantle the military and intelligence communities?

… What? I’m not allowed to use a little overstatement, too?

@ElvisL1ves

Bullshit. It’s central to what we fucking stand for as a country, what many thousands of us have died to create and build upon, and it’s basic to this alleged beacon of democracy that will enlighten the Middle East.

No, it’s not. It wasn’t so central when Lincoln suspended habeas corpus. The US Supreme Court didn’t think it was so central in Ex parte Quirin, when they rejected the very proposition being argued here. It wasn’t so central that we required it for Rudolph Hess in World War 2. In fact, it’s never been so central to what we stand for as a country that we’ve actually required it before. How central can comething be when it’s never actually existed before?

@ElvisL1ves

Now, once again and slowly, one question at a time: How do you know what the detainees have done?

One more time, and slowly:

I don’t. But I’m not the one suggesting that I need to know what the detainees have done.

[pravnik]

@Age Quod Agis

“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.

Quirin didn’t deal with guilt or innocence or the burden of proof in determining them, though; it was a writ of habeas corpus petition dealing with the government’s power to hold and try the accused spies in military tribunals rather than civil courts. As far as the current military commissions, the State Department has said repeatedly that the burden of proof will be on the government to prove the accusations beyond a reasonable doubt.

Just as in a civilian court of law, a guilty conviction in a military commission carries with it the burden of proof on the part of the prosecution to determine guilt beyond a reasonable doubt, according to the acting chief defense counsel. A review process is also built into the military commission system.

http://usinfo.state.gov/dhr/Archive_Index/military_goals.html

[Sample_the_Dog]

@Age Quod Agis

How central can comething be when it’s never actually existed before?

I repeat, the administration is using an Orwellian war=peace definition which supposes a universal and eternal state of combat. As a result, we are not talking about war powers at all.

Are you actually suggesting that the right to habeas corpus doesn’t exist? That the Constitution is enforceable at the whim of the President? I must be misunderstanding you.

[Age_Quod_Agis]

@Sample_the_Dog

Age Quod Agis, you are overstating the case and proposing a level of detail which is not required by the courts. Again, we are not talking about trying these cases.

Then what are we talking about? What, specifically, would you have the government prove in order to maintain the detention of these individuals? What burden would they be required to meet? How would you force the government to pony up evidence without pulling soldiers out of the field, or interrogators out of interrogation rooms, or without forcing either to reveal intelligence? How else can such matters be proven?

@Sample_the_Dog

Not only that, we’re not even talking about war powers. The executive is claiming much broader powers than that.

War powers extend beyond the power to shoot guns and missiles. It extends to the entire conduct of war, including espionage and intelligence.

@Sample_the_Dog

This administration is asserting nothing less than the right to detain anyone from anywhere at any time for any reason with no review whatsoever beyond its own.

You’re misrepresenting the administration’s claim. Here’s what the article you’ve linked actually says about the extent of the Administration’s powers:

Boyle said the military can pick any foreigner who provides support to terrorists or might know of their plans.

In other words, the power extends as far as the support of or intelligence on terrorism goes. That’s not coextensive with “anyone from anywhere at any time for any reason.”

@Sample_the_Dog

No way in hell do I want to give the executive branch that kind of power. It would have revolted the founders of this nation, who risked their lives to fight such abuses and understood perfectly well the consequences of granting the rights enumerated in the Constitution.

I disagree with your sentiment on how the founders would have felt about this. In fact, I’m willing to bet that the soldiers that we capture in battle currently receive much better treatment than the soldiers that were captured in any war up to modern times. Do you think the Brits and others that fought with the Brits were able to petition the courts for their release in the Revolutionary War? What about the War of 1812? Or the French and Indian War?

@Sample_the_Dog

Not only that, but this policy presumes to bring the entire globe under the jurisdiction of the US, which is foolish and increases the risk to our own troops.

Why? Doesn’t an effective intelligence community, and removing enemy troops from battle decrease the risk to our own troops?

@Sample_the_Dog

I find your position not only politically repugnant, but untenable and in the end counter to the security of my nation and my family.

And yet, I still hold it. Go figure.

[Age_Quod_Agis]

@Sample_the_Dog

Are you actually suggesting that the right to habeas corpus doesn’t exist? That the Constitution is enforceable at the whim of the President? I must be misunderstanding you.

No, I must have been unclear. The right of habeas corpus does exist. However, there is no historical right of habeas corpus, and there is no right to trial by jury, for enemy combatants.

[Age_Quod_Agis]

@pravnik

Quirin didn’t deal with guilt or innocence or the burden of proof in determining them, though; it was a writ of habeas corpus petition dealing with the government’s power to hold and try the accused spies in military tribunals rather than civil courts.

Upon further review, you’re absolutely right, pravnik. It looks like I was applying a step to the Supreme Court’s analysis that was not actually applied by the Court.

I’m sorry for the misrepresentation. Thanks to pravnik for clearing this up.

[JohnClay]

@Age Quod Agis

…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.).

But where is the evidence that every single one of these inmates targeted civilians? Also, maybe the reason they wore ordinary clothing is because they weren’t soldiers…
BTW, what do you think of Indonesia’s approach - they’ve had prompt and public court cases for the Bali bombers, etc.

…Then what are we talking about? What, specifically, would you have the government prove in order to maintain the detention of these individuals? What burden would they be required to meet? How would you force the government to pony up evidence without pulling soldiers out of the field, or interrogators out of interrogation rooms, or without forcing either to reveal intelligence? How else can such matters be proven?..

Is 3 year old intelligence from Afghanistan (a country that the US controls) really that important? Is it important enough to lock up potentially innocent people for years? And can’t interrogators and overseas soldiers take a break from their former duties?

War powers extend beyond the power to shoot guns and missiles. It extends to the entire conduct of war, including espionage and intelligence.

So say we’re talking about people who were captured during the invasion of Afghanistan… (BTW in the case of Australia’s David Hicks, who hasn’t been freed or received a trial, he was a fighter for the TALIBAN [that’s different from Al Queida, a government who until just before the invasion, the US government seemed to view as a legitimate government)…
So when is the war over for those prisoners (“detainees”) captured from Afghanistan? Does it when when (or if) we find Osama? But then there would still be lots of terrorists to replace him… is it over when Al Quedia surrenders or is completely imprisoned or killed off? Or do other terrorist organisations have to be defeated as well? I mean the question of when the war ends is relevant since it determines how long these special “war powers” would last. BTW, what do you think about the ACLU getting info about the FBI and Gitmo Bay? Do you think sensitive information like that should be released during our war?

…In fact, I’m willing to bet that the soldiers that we capture in battle currently receive much better treatment than the soldiers that were captured in any war up to modern times…

In other wars it would be clear that soldiers were involved since they’d be holding guns or something. The “proof” that every inmate was a hostile enemy isn’t as obvious.

[Paul_in_Qatar]

All in all the misunderstanding here seems to on the nature of war and wartime powers. The Executive (the military) can lawfully kill people without trial in wartime this is a very broad and exceptional power.

There was no requirement for the Marines on Iwo Jima to set up courts to determine if they could kill Japanese soldiers.

If we accept that wartime rules apply then both common sense and president shows clearly that the internment are legal and necessary.

If (as some have held) ‘there is no war’ then we ignore the plain facts of the situation, As we try to apply a traditional template on to a (somewhat) unique situation. These people would have us destroyed in order to obey the letter of a law written to cover other times, places and situations. This is foolish.

(At least some of these prisoners) are enemy soldiers. Releasing them is not required by law or custom. They can be held until the end of the war. I would suppose that at least some innocents are caught up in the net. That is (as it always has been) unfortunate but is no reason to release all the prisoners.

War is (as WT Sherman pointed out) hell, part of that is that war is unjust. When peace is restored we can do our best to reestablish justice.

[Age_Quod_Agis]

@JohnClay

But where is the evidence that every single one of these inmates targeted civilians? Also, maybe the reason they wore ordinary clothing is because they weren’t soldiers…

Please, all these requests for me to present evidence that every prisoner is guilty are getting tiresome. Obviously, I don’t have that evidence. And while I’m in favor of some sort of eventual resolution for these prisoners, I’m arguing that until that point, the US does not need to present evidence of guilt or innocence.

@JohnClay

BTW, what do you think of Indonesia’s approach - they’ve had prompt and public court cases for the Bali bombers, etc.

I think it’s great. And if the US had been able to capture the Sept. 11th suicide hijackers, I feel confident that they’d have tried them relatively quickly.

But unfortunately, these are entirely different circumstances.

@JohnClay

Is 3 year old intelligence from Afghanistan (a country that the US controls) really that important? Is it important enough to lock up potentially innocent people for years? And can’t interrogators and overseas soldiers take a break from their former duties?

Possibly, possibly, and possibly.

But the issue isn’t whether it would be possible to try some of these suspects. It’s whether it’s a good idea to force the government to try all of them. And sometimes 3 year old intelligence is that important, and sometimes intelligence is important enough to lock up people who haven’t been convicted of crimes, and soemtimes interrogators and overseas soldiers can’t take a break.

@JohnClay

(BTW in the case of Australia’s David Hicks, who hasn’t been freed or received a trial, he was a fighter for the TALIBAN [that’s different from Al Queida, a government who until just before the invasion, the US government seemed to view as a legitimate government)…

You know, the US government also viewed the governments of Germany and Japan as legitimate before World War II.

@JohnClay

So when is the war over for those prisoners (“detainees”) captured from Afghanistan? Does it when when (or if) we find Osama? But then there would still be lots of terrorists to replace him… is it over when Al Quedia surrenders or is completely imprisoned or killed off? Or do other terrorist organisations have to be defeated as well? I mean the question of when the war ends is relevant since it determines how long these special “war powers” would last.

All very true. The end of every war is indefinite. But while we were fighting it, we also didn’t know when World War 2 would end. For all we knew, we would be fighting it for the rest of our lives.

So does that uncertainty mean that we sacrifice the right to hold enemy combatants? Do we sacrifice the ability to gather intelligence because we’re unsure of when that intelligence will no longer be useful?

Man, I hope not.

@JohnClay

BTW, what do you think about the ACLU getting info about the FBI and Gitmo Bay? Do you think sensitive information like that should be released during our war?

Sorry, but I’d rather stick to the subject at hand. If you want to open another thread, I might be tempted to visit. But right now, I’ve got more responses than I can handle.

@JohnClay

In other wars it would be clear that soldiers were involved since they’d be holding guns or something. The “proof” that every inmate was a hostile enemy isn’t as obvious.

On what are you basing this?

Take a look at Quirin, a World War 2 case. The enemy in that case weren’t wearing uniforms or carrying guns. And the Supreme Court said that they have no right to habeas corpus. So the ease of proof seems to have nothing to do with a prisoner’s right to habeas corpus.

[JohnClay]

Age Quod Agis:
Nevermind about David Hicks.
BTW, what do you think about torture and humiliation of suspects? After all, it is a time of war, and the US can even kill people if it wants to. (or so you might say) What about sleep deprivation, etc. I think sleep deprivation is kind of a torture.
BTW,
http://slate.msn.com/id/2100543/
“there is serious doubt as to whether torture even produces reliable intelligence”
“Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well.”

Though I guess those behind Gitmo don’t care whether the evidence can be used in court…

[ZombiesAteMyBrain]

@Sample_the_Dog

This administration is asserting nothing less than the right to detain anyone from anywhere at any time for any reason with no review whatsoever beyond its own. And that, sir, is tyranny.

Not only that, but this policy presumes to bring the entire globe under the jurisdiction of the US, which is foolish and increases the risk to our own troops.

I find your position not only politically repugnant, but untenable and in the end counter to the security of my nation and my family.

It is sadly ironic, too, that the very things that members of the USA gov’t and court system spoke out about back when we were having terrorist problems here - internment without trial, Diplock courts, mistreatment of prisoners etc. are now considered OK because it’s America that’s been hit by terrorists. How soon people forget! http://www.alternet.org/story/11883/

Occupation, Special Powers, Emergency Provisions, the Prevention of Terrorism Act; internment without trial, mass surveillance, search and seizure; denial of the right to travel, to privacy, a broadcast ban; arrest on suspicion, conviction by “supergrass” or forced confession, juryless Diplock courts, an always-denied British forces policy of “shoot to kill”…UK history is rich in tools to “intercept and obstruct” terrorism. Their effect? Almost without exception, in the British experience, emergency legislation “to defend democracy” only served to undermine people’s rights.

Did it intercept and obstruct? According to Home Office statistics, 97 percent of those arrested under the Prevention of Terrorism Act between 1974 and 1988 were released without charge. Only 1 percent were convicted and imprisoned.

We had no choice in giving up our civil rights - the USA, on the other hand, voted the man behind the Patriot Acts back into office. Don’t you see that reducing the human rights to one sector of society doesn’t stop there - it is a reduction in the civil rights of everyone in the USA. Those who do not learn from history are compelled to repeat it - and the USA seem to be determined to repeat the mistakes the UK made in NI.

[Age_Quod_Agis]

@JohnClay

BTW, what do you think about torture and humiliation of suspects? After all, it is a time of war, and the US can even kill people if it wants to. (or so you might say) What about sleep deprivation, etc. I think sleep deprivation is kind of a torture.

I’m against torture. I’m not against using coercive techniques to get people to talk. As I’ve said before, subjects don’t usually want to talk, and the “fluffy pillow” and “comfy chair” techniques seem to be pretty ineffective.

Sleep deprivation can be torture (hell, sleep deprivation can be fatal). But I don’t think it generally falls under the rubric of “torture.”

@ZombiesAteMyBrain

Don’t you see that reducing the human rights to one sector of society doesn’t stop there - it is a reduction in the civil rights of everyone in the USA.

This isn’t a reduction of anyone’s civil rights. There has never been a right to trial by jury or habeas corpus for enemy combatants.

[JohnClay]

Age Quod Agis:

…But the issue isn’t whether it would be possible to try some of these suspects. It’s whether it’s a good idea to force the government to try all of them.

Have any of them been tried yet though? (I don’t think any have - or at least most haven’t)

And sometimes 3 year old intelligence is that important,

I doubt new evidence from detainees (that is 3 years old) would prevent a new terrorist strike in the US or help capture Osama. If that is possible, it would probably only apply to a small percentage of the detainees.

and sometimes intelligence is important enough to lock up people who haven’t been convicted of crimes,

I thought most haven’t even been accused of any specific crimes either. (besides general things like being an enemy combatant or a terrorist, etc)

and sometimes interrogators and overseas soldiers can’t take a break.

Maybe in 1% of the cases that could be true.

[astro]

@Paul in Saudi

All in all the misunderstanding here seems to on the nature of war and wartime powers. The Executive (the military) can lawfully kill people without trial in wartime this is a very broad and exceptional power.

There was no requirement for the Marines on Iwo Jima to set up courts to determine if they could kill Japanese soldiers.

If we accept that wartime rules apply then both common sense and president shows clearly that the internment are legal and necessary.

If (as some have held) ‘there is no war’ then we ignore the plain facts of the situation, As we try to apply a traditional template on to a (somewhat) unique situation. These people would have us destroyed in order to obey the letter of a law written to cover other times, places and situations. This is foolish.

(At least some of these prisoners) are enemy soldiers. Releasing them is not required by law or custom. They can be held until the end of the war. I would suppose that at least some innocents are caught up in the net. That is (as it always has been) unfortunate but is no reason to release all the prisoners.

War is (as WT Sherman pointed out) hell, part of that is that war is unjust. When peace is restored we can do our best to reestablish justice.

If there were some end game in sight your point might have some traction, but the fact of the matter is that United States has demonstrated an incredibly poor ability to accurately determine whether these prisoners yanked bodily out a 3rd world context, are bona fide, die hard terrorists, hungry locals that were looking for some adventure and 3 squares a day with the Taliban, or some out of luck shepherd sold for a few dollars out by the resident warlord.

That we are seriously considering potential lifetime imprisonment for this group because we can’t parse out the sheep from the goats is morally repulsive, and pays lip service to our core values as a nation, regardless of how many tap dancing “You can’t handle the truth!” rationalizations we want to offer up.

[ZombiesAteMyBrain]

@Age Quod Agis

"This isn’t a reduction of anyone’s civil rights. There has never been a right to trial by jury or habeas corpus for enemy combatants.

Really? Even if some of them are American citizens?

Following September 11, the Bush administration detained over one thousand people presumed guilty of links to or to have knowledge of terrorist activities and it impeded meaningful judicial scrutiny of most of those detentions. It has insisted on its right to withhold from the public most of the names of those arrested in connection with its anti-terrorism efforts. It has designated persons arrested in the United States as “enemy combatants” and claims authority to hold them incommunicado in military prisons, without charges or access to counsel.

Executive Power after 9-11 in the United States

[Age_Quod_Agis]

@ZombiesAteMyBrain

Really? Even if some of them are American citizens?

The Supreme Court has already ruled (at least in part) on this issue. Here’s the US Supreme Court decision in Hamdi v. Rumsfeld.

@case synopsis

Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15.

 Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2-3, 15.

If you’re looking for some good discussion of the Padilla and Hamdi decisions, there have been a number of threads on them.