# Supreme Court issues decisions on Guantanamo and terrorism suspects **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2004, 3:20pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556 "2004-06-28T15:20:24Z")\ **Posts on this page:** 19\ **Page:** 4
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [July 1, 2004, 4:40am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/61 "2004-07-01T04:40:04Z")
And of course until such tribunals _are_ afforded all GC protections. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 1, 2004, 4:55am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/62 "2004-07-01T04:55:24Z")
I think we’re definitely heading into the Smartass Steel Cage Death Match Zone here. Not that I approve. This popcorn is a coincidence. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 1, 2004, 6:35am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/63 "2004-07-01T06:35:43Z")
> [@sevastopol](#): > > Kindly refrain from insolence in future. > [@minty green](#): > > Fat fuckin’ chance. You know, guys, I’d really appreciate it if you’d both cool it. > [@elucidator](#): > > I think we’re definitely heading into the Smartass Steel Cage Death Match Zone here. Not that I approve. This popcorn is a coincidence. Given that posts of the “pulling up a lawn chair/I brought popcorn” genre [aren’t allowed in the _ **BBQ Pit** _](http://boards.straightdope.com/sdmb/showthread.php?t=127729), is it really necessary that we waste valuable space on the front page with another sticky saying we don’t want them in Great Debates either? ---
**Author:** ![hawthorne](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@hawthorne](https://boards.straightdope.com/u/hawthorne)\ **Post date:** [July 1, 2004, 6:37am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/64 "2004-07-01T06:37:00Z")
Human Rights Watch’s [position](http://hrw.org/press/2002/01/us012802-ltr.htm) on the “doubt” and “recognised government” issues. They note that > [@](#): > > […] the four-part test of Article 4(A)(2) applies only to militia operating independently of a government’s armed forces, not to members of a recognized (Article 4(A)(1)) or unrecognized (Article 4(A)(3)) government’s armed forces. Thus, whether a government is recognized or not, members of its armed forces are entitled to POW status without the need to meet the four-part test. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 12:18pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/65 "2004-07-01T12:18:37Z")
Last time I checked, Human Rights Watch was just a bunch of guys with no legal authority, correct? And so why am I supposed to defer to their interpretation when it renders the phrase “regular armed forces” completely meaningless? Because you prefer the outcome to the one indicated by the text of the treaty? > [@sevastopol](#): > > The main reason is that he has an emotional investment in the outcome. If the GC protections are established, it is likely friends and relatives of him, people he esteems, have acted in contravention and are properly described as war criminals. Save your armchair pscyhology for somebody you actually know. I have no friends or family in the armed forces, and certainly none who are in any way involved with any of the issues in this thread. And truth be told, I’d be very happy if the GC was rewritten to more sensibly deal with modern warfare–it is a relic of the standard army-to-army clashes of the first half of the 20th Century, not terribly well suited to the guerilla conflicts of the 21st Century. That does not, however, mean that we must ignore the text of the document as it stands right now and as it governs some situations and not others. > [@](#): > > It is like in a criminal trial. MG faces the hurdle of proof beyond reasonable doubt. In fact a higher hurdle in this case, as the test is “any doubt.” You’re reversing the burden of proof. It is the detained person, or his supporters, who have to raise doubt about his status in order to be entitled to a tribunal. The detaining power does not have to stick everyone in front of such a tribunal and prove their status beyond a reasonable doubt. Again, I invite you or anyone else to come forward with facts that show the Taliban were “regular armed forces.” If you can do that, then I will happily concede that they are entitled to tribunal determination of their status. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 1:45pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/66 "2004-07-01T13:45:33Z")
Getting back to the original topic, there is a [reasonably interesting column](http://writ.news.findlaw.com/hamilton/20040701.html) this morning at Findlaw, arguing in part that what produced this result was the passage of time between 9/11 and today. The emergency nature of the crisis in the fall of 2001 has dissipated, the writer argues, and with it has gone the discretion of the executive in deciding how to deal with the crisis. It’s sort of a legal realism argument, but there is, I suspect, something to it. ---
**Author:** ![hawthorne](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@hawthorne](https://boards.straightdope.com/u/hawthorne)\ **Post date:** [July 1, 2004, 2:07pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/67 "2004-07-01T14:07:58Z")
> [@](#): > > _minty green_ > Last time I checked, Human Rights Watch was just a bunch of guys with no legal authority, correct? And so why am I supposed to defer to their interpretation when it renders the phrase “regular armed forces” completely meaningless? Because you prefer the outcome to the one indicated by the text of the treaty? No, because I think it doesn’t make sense the way you interpret it. Here’s why: 1. If there’s doubt that someone qualifies or if they clearly do, they have to be afforded the protecions of the Conventions (we agree on this). 2. If there is doubt and a tribunal is held and someone is found not to qualify, then they no longer get the protections (this too). 3. You say that there is doubt only when someone can show some evidence that they _are_ a member of a protected group (a difficult thing to do from Camp X Ray). 4. I say that there is doubt if there is an argument that they may be a member of a protected group. 5. If you are right, why would the Conventions state that if there is doubt the detainee should have all the rights of a POW until their status is determined? Surely they would _not_ have the rights until they _were_ found to member of a protected group if the onus was on them to show they are members of a protected group. Your interpretation makes (1) incoherent. (1) is clearly intended to mean that everyone gets the protections until they are shown not to deserve them and that the way they get to be found not to deserve them is by a finding by a competent tribunal. * * * It’s a shame this thread has got so thoroughly hijacked into this question. The original topic is interesting and perhaps we can get back to it soon. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 2:46pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/68 "2004-07-01T14:46:18Z")
> [@hawthorne](#): > > 1. You say that there is doubt only when someone can show some evidence that they _are_ a member of a protected group (a difficult thing to do from Camp X Ray). You are not in Camp X Ray. I am asking you, who asserts that doubt exists, to demonstrate it–not for the sake of actually obtaining anyone a tribunal, but for the sake of showing in this argument that a tribunal is actually required under the circumstances as we understand them. > [@](#): > > 1. I say that there is doubt if there is an argument that they may be a member of a protected group. Anyone can make an argument. I can argue that the moon is made of cheese. That doesn’t entitle the moon to a tribunal resolution of its status. > [@](#): > > 1. If you are right, why would the Conventions state that if there is doubt the detainee should have all the rights of a POW until their status is determined? The key to that requirement is that it only applies “[s]hould any doubt arise” about their status. Once again, I ask you to demonstrate facts capable of creating doubt as to the Taliban’s status as “regular armed forces.” > [@](#): > > Surely they would _not_ have the rights until they _were_ found to member of a protected group if the onus was on them to show they are members of a protected group. You’re jumping ahead of the game. The initial determination of whether the prisoner is subject to POW status is, of necessity, made by the detaining power. It is only after that determination is made–and made against POW status, of course–that the “should any doubt arise” provision kicks in. Otherwise, you’d automatically have to have a tribunal determination of the status of every prisoner not automatically granted POW status, and that is clearly not a requirement of the Convention. > [@](#): > > Your interpretation makes (1) incoherent. (1) is clearly intended to mean that everyone gets the protections until they are shown not to deserve them and that the way they get to be found not to deserve them is by a finding by a competent tribunal. Once again, you are ignoring the plain text of the document, which states that Article 4(A)(1) applies to “armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.” It is absurd to suggest that “everyone” qualifies as a POW under that provision. If that were the case, there would once again be no need for the multiple remaining categories described in Article 4. Now, that doesn’t mean that it would not be _desirable_ to treat everyone like a POW. But that is a different question from whether the GC _requires_ the signatories to treat everyone as a POW, since it clearly does not. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [July 1, 2004, 3:24pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/69 "2004-07-01T15:24:59Z")
> [@minty green](#): > > The key to that requirement is that it only applies “[s]hould any doubt arise” about their status. Once again, I ask you to demonstrate facts capable of creating doubt as to the Taliban’s status as “regular armed forces.” > > You’re jumping ahead of the game. The initial determination of whether the prisoner is subject to POW status is, of necessity, made by the detaining power. It is only after that determination is made–and made against POW status, of course–that the “should any doubt arise” provision kicks in. Otherwise, you’d automatically have to have a tribunal determination of the status of every prisoner not automatically granted POW status, and that is clearly not a requirement of the Convention. \*\* minty green \*\*, I would ask that you check out a thread that I started here: > **[...on completly missing the point... (Guantanamo related, for Beagle...)](https://boards.straightdope.com/sdmb/showthread.php?t=243819)** > > …with respect Beagle, you seem to completely miss the point. From this thread… Abassin Sayed was an inmate number 671 at Guantanamo Bay. He was released after thirteen months of captivity. According to Sayed, he was driving his Taxi in Gardez... …my citations show that many of the detainees were not captured on the battlefields of Afghanistan, but were business men in Ghana, Taxi Drivers, Bakers, Taliban prisoners, Farmers, playing with thier kids in Pakistan, on the “do not send list” but due to bureaucratic bungling ended up at Guantanamo. and released prisoners from Bosnia. In fact, its sad to say, that there is very little evidence that any of the prisoners at Guantanamo are either Taliban or Al Quada, and that they were captured on the battlefield. For those prisoners who obviously were not captured on the battlefield-how would you suggest they be treated-and what status should they recieve? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 3:56pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/70 "2004-07-01T15:56:51Z")
My comments have been directed towards the status of captured Taliban soldiers, not innocent taxi drivers and other non-combatants. I certainly do not claim that such persons should be taken prisoner and transported halfway across the globe without criminal charge or trial. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [July 1, 2004, 4:08pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/71 "2004-07-01T16:08:29Z")
> [@minty green](#): > > My comments have been directed towards the status of captured Taliban soldiers, not innocent taxi drivers and other non-combatants. I certainly do not claim that such persons should be taken prisoner and transported halfway across the globe without criminal charge or trial. …how many prisoners at Guantanamo Bay are confirmed Taliban fighters? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 4:42pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/72 "2004-07-01T16:42:09Z")
We both know the answer to that question: We don’t know. What _is_ known, or at least widely acknowledged by every party from CNN to Human Rights Watch, is that there are a significant number of Taliban fighters interned at Guantanamo Bay. Surely you don’t deny that? ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [July 1, 2004, 5:28pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/73 "2004-07-01T17:28:21Z")
> [@minty green](#): > > We both know the answer to that question: We don’t know. What _is_ known, or at least widely acknowledged by every party from CNN to Human Rights Watch, is that there are a significant number of Taliban fighters interned at Guantanamo Bay. Surely you don’t deny that? …from “one of your party’s” Human Rights Watch… > [@](#): > > The Bush Administration asserts that all of its detainees at Guantanamo are enemy combatants in the war against terrorism and therefore properly detained until terrorism is vanquished. High-level administration officials have repeatedly characterized the detainees as the “worst of the worst.” In response to questions about their fate, President George W. Bush has called the detainees “bad people” and Secretary of Defense Donald Rumsfeld has labeled them “hard core, well-trained terrorists.” > > Yet these blanket characterizations stand in sharp contrast to what is known about at least some of the detainees. At Guantanamo there are three children, between the ages of thirteen and fifteen, who have been held for about a year. The military is also jailing an undisclosed number of children aged sixteen and seventeen who are held in the adult camp, rather than separately as required by international standards. > > Guantanamo may also hold a significant number of civilians. Anti-Taliban forces in Afghanistan regularly cast a wide net, sweeping up non-combatants, and many of those they captured were delivered to U.S. officials, and in at least some cases in exchange for bounty payments. According to several sources, ranging from interviews with former detainees to press reports citing U.S. officials in Afghanistan, as many as several dozen detainees sent to Guantanamo were simply farmers, taxi drivers, and laborers with no meaningful ties to the Taliban or al-Qaeda—not the enemy combatants the Bush Administration claimed. [http://hrw.org/english/docs/2004/01/09/usdom6917.htm](http://hrw.org/english/docs/2004/01/09/usdom6917.htm) …whats to deny? President Bush states that “the only thing we know for certain is that these are bad people and we look forward to working with the Blair government to deal with the issue”. “Let me just say, these were illegal combatants. They were picked up off the battlefield aiding and abetting the Taliban”-which, considering my citations in the previous thread, is a either a complete lie, or the President has been fed poor information-again. Of course there are Taliban fighters at Guantanamo-however your assertion that the number is significant cannot be proved. Look at the prison situation in Iraq-where several human rights groups estimated that 60-90% of those being held were innocent-and just for a moment consider the possibility that maybe the prisoner round-up was not as effective as it should have been. Look at my citations-does the pattern of detentions not follow the same basic pattern as those in Iraq? People gathered up in random sweeps? Coerced confessions? People turned in for bounty payments? People sent to Bagram from Ghana, only so they can be forwarded to Guantanamo? There are a hell of a lot more questions than answers-don’t you agree? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 1, 2004, 5:45pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/74 "2004-07-01T17:45:52Z")
Just so. The fact that a “significant number” of the detainees are detained for good reason buggers the question. (And oh! what a multitude of prevarication is hidden within that word, “significant”. One, five, a hundred? “Significant” appears to be a word choice prized for what it hides, rather than what if reveals…) We face an enemy that does not share our civility and concern for the rule of law, and the equitable and just application of the law. If we surrender our own civility and concern for justice, then we are no better than our enemies, we lend a valildity and credibility to them they do not, by any stretch, deserve. We have released some innocents, which is all to the good, but it cannot be counted a positive since they were, in fact, innocent. And keeping a child in a cage for fear of his dread enmity? Whom are we kidding, here? Is there any chance, any at all, that we have not made bitter enemies of each of that child’s relations? Can we honestly say they don’t have good and valid reason for that enmity? Not easy wearing the “white hat”. It is our purpose, is it not, to make it easier? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 6:03pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/75 "2004-07-01T18:03:20Z")
**Banquet Bear:** As I clearly stated a couple posts back, “My comments have been directed towards the status of captured Taliban soldiers, not innocent taxi drivers and other non-combatants.” I am not arguing about the legal status of detainees who are _not_ captured Taliban soldiers. Again, for clarity, “I certainly do not claim that such persons should be taken prisoner and transported halfway across the globe without criminal charge or trial.” Is there any part of that which is unclear? And if not, why do you insist on responding to my comments about the Taliban soldiers with your own argument that not everyone is a Taliban soldier? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 6:07pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/76 "2004-07-01T18:07:38Z")
**elucidator:** The discussion has been about what the Geneva Convention requires, not what the best thing to do would be. You profoundly misinterpret my remarks if you understand me to be making any kind of endorsement of Rumsfeld/Cheney/Bush’s policy decisions with respect to these issues. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [July 1, 2004, 7:40pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/77 "2004-07-01T19:40:43Z")
> [@minty green](#): > > Special Forces types appear to be covered by Article 4(A)(1): “Members of the armed forces of a Party to the conflict . . . .” Nevertheless, it could easily be argued that you lose that status if you don’t wear uniforms and such, so they could be in trouble if they wear civilian clothes as a disguise. They would not be covered by any protection, and most armies would quite certainly execute them summarily. “Guerrilla war” doesn’t mean not wearing uniforms, though. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 1, 2004, 9:28pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/78 "2004-07-01T21:28:53Z")
> [@minty green](#): > > **elucidator:** The discussion has been about what the Geneva Convention requires, not what the best thing to do would be. You profoundly misinterpret my remarks if you understand me to be making any kind of endorsement of Rumsfeld/Cheney/Bush’s policy decisions with respect to these issues. Duly noted. My remarks were intended in a general sense, and in no wise reflects any disagreement. I took your exposition as stating the facts of the law, and not any judgement as to the justice, or lack thereof. You may take it as given that I assume you know your shit, and that I presume no standing to correct. If I ever, at any time, suggest that you are in league with the aforementioned unworthies, I give you leave to screw my wife, shoot my dog, and steal my pickup. Or whichever arrangement you find more agreeable. (Well, he’s from Dallas. You never know with those guys…) ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 1, 2004, 10:20pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/79 "2004-07-01T22:20:50Z")
Your pickup’s been rusted away by too many winters out on the tundra, your wife’s as crotchety as you are, and I’ve already got a dog. But I might help see if you’ve got anything worth drinking in the liquor cabinet. [Previous page](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556.md?page=3)