U.S. Government: "U.S. Citizen 'Enemy Combatants' Have No Legal Rights.

Great Debates
101

minty green,

thanks for the info on the Cuban land.
Does the US claim this area in perpetuity?

My point about the detainees was that we only have the statement by the US military that these people are terrorists.
If any of them are Taleban militia, then the Geneva Convention certainly applies. (Or are you saying the Taleban don’t count as a legal army?)

As I’ve posted, I think the US is storing up trouble by acting in this way, even if these detainees are terrorists.

The fact that the US have gone to incredible lengths to keep them out of court suggests to me that there is no evidence which organisation they belong to.

102

First, allow me to say that I agree with Hamlet’s excellent analysis of Quirin, especially the point that the case arises out of a declared war. I cannot fathom how the administration is relying on Quririn in the absense of a declared war. I think I’ve mentioned this before, but I really believe these cases are finally going to force the courts to do some separation-of-powers analysis when it comes to the president as commander in chief versus Congress and its sole authority to declare war.

Second, sailor, I don’t want to reopen the Geneva Convention debates (especially now that pjen has been summoned from the grave), but the Geneva Convention only requires proceedings to determine a prisoner’s status as a POW if doubt has arisen about their status. To my mind, nobody has adequately demonstrated facts that show the Guantanamo prisoners fall within any of the enumerated categories of POWs; hence, no status adjudication is legally required. Whether they are desireable as a matter of policy is a somewhat different issue, of course.

I think you participated in some of the Geneva Convention debates that were swallowed in the board crash. If not, just do a search on my name and “Geneva Convention” over at http://www.boardreader.com and plenty will appear. I think my best explanation of the applicable treaty provisions was in the last couple pages of the “Kidnapping” thread.

Note to pjen: I am not interested in reopening that discussion.

103

glee, I do not believe that the Taliban prisoners in Guantanamo qualify as POWs under the Geneva Convention (although the argiment there is much closer than for the al Qaeda prisoners, who are indisputably not eligible for POW status). Again, I don’t want to open that particular can of worms, so I invite you to do the boardreader search I just described to sailor. The debates are no longer on the SDMB server, but are still available on the boardreader archives.

104

Therein lies the rub. "We don’t have to accord these U.S. citizens any due process rights because they were acting as “illegal enemy combatants.” “Ok, go to court and prove it.” “We don’t have to. Since they were acting as ‘illegal enemy combatants’ they have no due process rights.”

This is as embarrassing an example of assuming the conclusion as you’ll find anywhere.

[hijack]
The basic problem here is that the U.S. government is trying to shoe horn this situation into a set of rules that simply don’t fit. There is no “war” in the sense the word is used in international treaties. From the perspective of international law, the U.S. intervened in favor of the recognized government in a civil war. As far as traditional international law goes, the U.S., therefore, has no business deporting combatants from Afghanistan. Their fates ought to be simply a matter of Afghan law, such as it is.

That is, of course, not really the post 9/11 situation. The complexities of the new situation have no prior parallel. The only even vaguely similar problem with a legal framework is piracy.

The U.S. government is making up convenient rules as it goes along and opting for expediency over principle. This is fine as long as you’re the unchallenged top dog. But when you’re not, or even if you have a credible rival, sauce for the goose becomes sauce for the gander and the expedient rules you made up come back to bite you. Remember the good old cold war days when proxy freedom fighters fought proxy governments. Or was it proxy governments valiantly resisting proxy terrorists? I forget. How soon we all forget.
[/hijack]

105

—Apos, if I justify one act of violence I don’t automatically justify all acts of violence. If I vow to eat one type of ice cream, I am not obligated to try all types of ice cream.—

Which was exactly my point. If one act of terrorism is justified, others may not be. But creatively defining “terrorism” to exclude all the cases we woudl consider justified is disingenuous.

—Almost any two events can be considered “the same” when we are allowed to pick and choose the context and ignore what was happening.—

However, in this case, we are not discussing “events” but tactics.

—The context of Hiroshima was a world war.—

Right, and this context can do a lot to tell us whether a particular act was justified or not. But it can’t tell us whether a particular act was terrorism or not!

—The context of the WTC attack was not a world war. This alone should give one pause in trying to link them.—

When discussing what is and is not terrorism, I don’t see what that context changes as far as the definitions of things, anymore than war/not war changes the fact that killing someone is killing someone. Are you really arguing that whether something is terrorism or not depends on whether the perpetrator is a government or not and has passed a resolution declaring war? A group of people gets together, be it called a government or not, and decides to, instead of attacking a military target in order to win a conflict, attack civilian targets in order to “send a message.”

106

I agree with Hamlet’s analysis also. I have never said that in times of emergency special measures should not be available. In the thread about the military tribunals I said i had two main objections to them and one of them was that they were only for non-citizens. This is patently unfair. If the American people are in an emergency that requires such measures those measures should be acceptable for citizens who are accused of the same crimes. Citizenship should not be a permit for terrorism and whatever measures are necessary for the defense of the country should be applied equally to all who attack it. At any rate, there’s no need to redo that thread here.

I do not remember participating substantially in a thread about the Geneva Convention although I may have posted. These matters can get very technical and I tend to see more the morality of the issues and the practicality. As I say, something may be technically legal but it oes not necessarily mean it is moral and it does not mean it should be done or that it is in the long term interest of the US to do it.

So, no need to rehash military tribunals or geneva convention, I agree. I think those may be just particular examples of the larger picture which we are discussing here.

The way I look at it is quite simple. It may not be technically exact from a legal standpoint but it is the way things should be.

Prisoners of war are not criminals. They can be held for the duration of the hostilities and should be afforded the rights and protections of the Geneva convention.

Ok, so the US government has a bunch of guys and says they are not POWs. minty says they are not POWs and I have no reason to dispute that. The only other reason any government on the face of the Earth has to hold a human being prisoner is that he is suspected or accused of committing a crime. In this case the detained person should be afforded due process of law which can mean different things but should not depend on whether the accused is of a certain nationality, race, religion or whatever. There should be at least minimal guarantees regarding separation of powers, judicial review, etc. Anything else is just autocratic rule, not rule of law.

As I said, POWs are not criminals and are not subject to any criminal proceedings or punishment. They are just prisoners for the duration and are entitled to their POW status. Anyone who is not a POW, must then be an “illegal combatant”. An illegal combatant is a criminal and subject to due process of law. You cannot have it both ways. Either you are a POW and immune from criminal prosecution or you have committed a crime and are subject to punishment after due process of law.

To say the executive has the power to hold people at will, to punish people, without any judicial process is horrendous. I am just saying there should be separation of powers. A judge should be able to review the case. I am not saying it should be an open jury trial. I am saying that, whatever it is, it should be the same process for anyone accussed and should be reasonably speedy. Holding people prisoners without accusation, whether they be citizens or not, is an abomination that we thought happened in the Soviet Union and China and Cuba but not in the USA.

If the government has evidence which is so damning, what’s wrong with letting a judge see it? Are judges not to be trusted?

So, I am not discussing the military tribunals or the geneva convention. I am discussing whether the government of the USA is and should be subject to the rule of law. And just saying the law is such that the government can do as it sees fit, can hold anyone prisoner without trial, that is no law, that is autocracy.

107

Duh. Some of them were even appointed by that other President. :smiley:

108

Let’s look ahead.

Presumably there are only 5 alternatives for the detainees:

  1. They are released without charge.

  2. They are eventually brought before a court.

  3. They confess without a trial.

  4. They die in custody without a trial.

  5. They are executed without trial.

  6. is rather embarrassing for the US Government. Why were there all these extraordinary measures taken, when there was no evidence that would stand up in court?

Only a sceptic would suggest that they will all be released without publicity the day after Bush is re-elected. :rolleyes:
2. is going to lead to legal challenges about the original detention conditions before the trial even starts.

SDMB defence lawyers are welcome to offer their strategy. :cool:
3. is reminiscent of dictatorships all over the world (previously condemned by the US).

It also sets an unhealthy precedent for any captured Americans.
4. qualifies the detainee for martyrdom.

I can’t think of anything more likely to produce further terrorist attacks against the US all over the world - except of course for 5.

109

That is the position this administration has taken in their latest brief; basically saying that the court system has no power to review the decisions of the Executive in this area. However, if you read my post, you would see that I agree with the Supreme Court in Quirin that held that the judiciary CAN and SHOULD review the determination that a person is an “enemy belligerent”, but allowing that determination to be made doesn’t mean that the person then gets all the rights under the Constitution.

I agree that this kind of “war” is completely new, and we are left fumbling through old cases, old treaties, and old Conventions and we try and fit the current situation into them. It isn’t going to work. In America, we are at a crucial time of history in determining major issues regarding the powers of the 3 branchs of government. And the executive branch is off and running and trying to grab as much of it as it can, before the judiciary gets involved.

But don’t think the International Community is in any better shape, because the Geneva Convention is really tough to apply in this case, and the Al Qaeda are not an internationally recogized organization, complete with uniforms, and a basis in land, etc. Until now, most groups that were like Al Qaeda were involved in Civil Wars in whatever country, but now AL Qaeda is entering the realm of an international war, and the treaties and conventions in place are ill equipped to deal with it too.

110

Which groups are you comparing Al Qaeda to?
The IRA, ETA, Shining Path etc don’t wear uniforms and are not internationally recognised.

I’m also not sure what you mean by Al Qaeda entering the realm of an international war.
I’m not well up on their aims, but I thought one was to get the US military bases out of Saudi Arabia. Presumably they see themselves as resistance fighters, not an army.

(Obviously I don’t support them in any way, but it’s important to understand your enemy.)

111

i do not agree with the idea that “this is new”. There have been in the past pirates and other groups which were not recognised nations. At any rate, for my analysis this is irrelevant. I say that the only valid reasons a country has to keep and individual prisoner are that he is a prisoner of war (which, as I have said, is not a criminal) or that he is suspected or convicted of commiting a crime. A person suspected of commiting a crime should be subject to a reasonably speedy trial to determine his guilt or inocence. This legal process should be done in accordance with internationally recognised standards (cursory trials, with no possibility of defense and no appeal are not acceptable) and the accused should be set free if he is determined to be not guilty of the accused crime. If he is convicted he can be sentenced to prison time but not to cruel punishment. This should be universal, regardless of what government is doing the trying and the nationality of the accused. The power of any government should be limited and it should not have absolute, unlimited power, over any person’s life regardless of nationality.

112

The idea that the government can act without regard to law or limitation when the good of the country requires it is very old and has been called “reason of state”. Already in the sixteenth century it was being discussed whether it was acceptable or even convenient.

Those who say the end justifies the means just do not know how bad things get when societies think like that. You can look at communist and totalitarian regimes to see what happens when it is OK to trample over the rights of one person to benefit that vague notion called “the group”. Nobody is safe.

113

Thought that I’d bump this thread because of this:
"Supreme Court to Hear Guantanamo Appeals
43 minutes ago Add Top Stories - AP to My Yahoo!

By ANNE GEARAN, Associated Press Writer

WASHINGTON - The Supreme Court will hear its first case arising from the government’s anti-terrorism campaign following the Sept. 11 attacks, agreeing Monday to consider whether foreigners held at a U.S. Navy (news - web sites) base in Cuba should have access to American courts.
The appeals came from British, Australian and Kuwaiti citizens held with more than 600 others suspected of being Taliban or al-Qaida foot soldiers. Most were picked up in U.S. anti-terrorism sweeps in Afghanistan (news - web sites) following the attacks of two years ago.
The court combined the men’s appeals and will hear the consolidated case sometime next year.
Lower courts had found that the American civilian court system did not have authority to hear the men’s complaints about their treatment."
http://story.news.yahoo.com/news?tmpl=story&cid=514&u=/ap/20031110/ap_on_go_su_co/scotus_guantanamo_prisoners_9

Additionally, BBC news Ceefax today was carrying a story that another British citizen has possibly been kidnapped in Pakistan and abducted to Guantanamo. The Pakistan government is being presented with a writ of habeus corpus to prove that the person has not been illegally transferred to Guantanamo.

114

They don’t. They are a massive gang of francs tireur who happened to temporarily displace the UN recognized government of Afghanistan. The UN recognized government then formed the Northern Alliance.

Thus, the Northern Alliance was a legal army. The Taliban were simply a gang.