Why aren’t we conducting trials at Gitmo anyway? I’m sure we have/can get the manpower to do it, so why aren’t we doing it? Is it that the goal of these camps isn’t to convict people of terrorism, but to extract information from them? Is it that the administration considers a life of uncertain limbo in a prison camp as more threatening to potential terrorists than a speedy trial with either death or life in prison with a reputation as a martyr as a result?
Why are we denying them the ability to see their family or get a lawyer? Why deny them protection under international law or US domestic law? What does that accomplish exactly?
Well, they are not being held as terrorists. Terrorism in a civil crime. You go to trial and jail for it.
They are being held as enemy combatants. (Or ‘illegal combatants’ as the Bush Administration would have it.) In any case, they are not criminals. They committed no crime. Why would you charge them with ‘fighting against the Americans?’ That is not illegal.
They were captured on the battlefield and are being held until the war is over. Same as every other war. No difference.
The Usages and Customs of War prohibit a capturing nation from subjecting detainees to ‘victors justice.’ They are protected from being forced to face an American judge for some made-up charge. What you propose would be illegal, immoral and perhaps fattening.
So we hold them until the war is over. What would you have us do with them? Kill them on the battlefield? Release them to rejoin the fight against us? Both options are immoral.
Better to follow the rules and keep them detained until peace is reestablished.
When did I say charge them with ‘fighting against americans’? What i’m wondering is why deny them coverage under the US domestic criminal system or international law. What does that accomplish?
The war on terror will never end. Its not like the war against Japan when the war comes to an instant stop the second the emperor says ‘we surrender’. There is also the fact that a good deal of them are innocent or are just taliban conscripts. Only some are actual Al Qaeda operatives who actually pose a threat to the US.
We have already released a good number of enemy combatants. The goal should be to find the ones who are actual terrorists and release the rest. How does denying them protection under international or domestic law help with that? Even if it does help, why does that make it ok?
I’m not sure I get what you’re saying. Are you saying because they are foreign terrorists that what they do is not criminal, and as a result we’d have no choice but to release them under international law?
The war on terror will take a long, long time. Its not, as I said, a political war like the war with Japan was where the second the politicians change their mind the war ends, this is a war born out of emotions of violation and hate which pervade hundreds of millions of people. Virtually no governments actually support terrorism (at least not the way that they support normal military action), so the war ‘cant’ come to an end until the terrorists get bored and stop wanting to be terrorists. That could take 50+ years.
Even if not trying them is not legal or moral, why deny them protection under domestic & international law?
Because the idea of being killed or being held indefinitely might give someone pause when they are considering joining the “holy jihad”, propaganda about seventy virgins notwithstanding.
The problem is many of them are not jihadists. If you want to hold them indefinitely, why not give them trials and life sentences for the ones who really are Al Qaeda operatives? Is the evidence too flimsy to hold trials and as a result the US gov. has just averted that whole legal area for that reason?
This title is not very good at describing what I meant with my post. Can a moderator change it to ‘why is the US depriving suspects at Gitmo of protection under domestic & international law’.
Even lawful combatants who have violated the laws of war can be prosecuted. GC3, in articles 82 through 88, gives precise circumstances under which a POW can be prosecuted in military courts for offenses either during their detention or offenses prior to their detainment. The GC3 specifically says "A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. … Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention. "
The only real limitation to prosecution is that detainees must be subject to the detaining power’s law, and must be tried by military court or an independent civil judiciary, depending on some circumstances. Those who are detained in war can, and have been, prosecuted for crimes. There’s certainly no need to tell you about spies and sabateurs being lawfully shot for their activities.
What’s more, the US has slews laws on the books that pertain to individuals who support terrorist organizations or activity. If the people we’re picking up and throwing in GTMO are, indeed, terrorists, then they have violated US law and can be prosecuted.
The only limitation on why these prisoners have not been tried for crimes is that the Administration does want to do it. That is the reason, from A to Z.
So we catch a fellow on the battlefield. Are you saying we can try him under the RICO statute? A Pakistani in Afghanistan tried for violating an American law? The only laws I know of that even claim such universal jurisdiction would be the British Prevention of Terrorism Act.
We are holding them as we have always held POWs because they took up arms against us. Once in custody, the GC allows us to try them under the same law that applied to our forces. (So, in theory we could court-martial them for missing the morning run or something.) They can only be punished by the same mechanisms and to the same degree as our own soldiers are.
We cannot try them for the ‘Crime’ of being the enemy. Being an enemy is perfectly legal. We will hold them until the war is over.
If that is next year, fine. If it is in the next decade, that is too bad for them.
There is no reason to change the Usages and Customs to make it easier for the Detaining Power to haul enemy soldiers in front of a judge or a gallows. That is exactly what the Law of War is designed to prevent.
The EU has accused the US of having extraterritorial laws for years, most notably the Helms-Burton law on companies trading in Cuba (which has, for the most part, never been put into effect) and the Iran-Libya Sactions Act. The PATRIOT Act extended extraterritoriality to certain financial related crimes. I recall some disputes during Clinton’s administration about drug laws being in the same vein, too. I would not be at all suprised if our terrorism laws have similar provisions, as they should.
It will take a lawyer to parse all this out, but I don’t see any reason why someone would be exempt from the law of one country if that individual’s actions directly effect the country in question. Al Qaeda attacked the United States, and it’s my view that anyone who knowlingly gave material support to Al Qaeda could well be legally culpable for Al Qaeda’s offense.
I don’t advocate putting people on trial for being in opposition to the US. I advocate putting people on trial because they have murdered, conspired to murder, or gave material support to murder, and God knows how many other crimes. If these people ever received a US dollar from UBL, if they ever participated in some way in plotting an attack on the US, until proven otherwise its my belief that they have violated US law, and should pay for it.
Please provide a cite that says that it is illegal to try those captured on the battlefield for crimes. I have already cited the articles of the Third Geneva Conventions which clearly and specficially allow for prosecutions.
I don’t get this air of legitimacy people are giving the very dubious and nebulous term: “The war on terror”.
Terrorism is a TACTIC.
It is a concept, an unconventional way to wage war. It has existed probably since the first time a hairy ancient human decided he was going to throw a stone instead of using a club, and continued from that time through out the ages, and will continue to be used as long as there are people who wish to fight for a cause, land, whatever, and do not posses the required resources to wage an open war on the same level as it’s opponents.
The war on terror will never end, because it cannot be won.
Even if you equiped every nation in the world who had a beef with us with the resources to engage us in legitimate warfare (helicopter gun ships, radar, satellites, aircraft, tanks, etc, etc), the moment we would engage them, and should we win, they’d resort to terrorism to expell us, as I’m 100% certain WE OURSELVES would should they win the fight.
Who the hell beleives there is a real purpose to the “war on terror”??? Who the hell beleives it isn’t anything more than a meaningless phrase meant to inspire patriotic feelings on the lowest common demonitor?
Raven you ask a good and fair question for a cite that it is illegal to try a Detained Person for being an enemy. Let me poke around for it. At the moment I am late for my afternoon swim and you know how I get if I miss my swim.
In any case, I used to teach classes at the Infantry School on this subject, and I think I am right.
But I must ask you again. If a Pakistani is in Afghanistan and plots to kill Americans in Iraq, does he commit an action illegal under US law? Which statute?
Found a little something:
"163. Penalties
a. Treaty Provision.
Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts."
(Chapter three of the US Army manual on the Law of Land Warfare, as shown here.)
So if it is actionable to try an American soldier for a crime we may try a detained person using the same statute, procedure and punishment. I would hold that an American soldier is not liable for (say) a killing as such a killing is not illegal. In the same way a Pakistani can shoot at Americans and be protected from legal or quasi-legal retribution.
The US forces are not capturing them on the battlefield, you are being egrariously disengenuous and you know it.
Many, if not most are being turned in after being reported to US military forces.
Those doing the reporting have their own reasons for doings so, from personal scores, to collecting reward money, to getting someone out of the way whilst they ransack their posessions.
By indicting them there would be some chance of setting things straight, are they combatants or not ?
There is absolutely no independant assessment of this, and no chance to refute any claims.
If the US is ‘capturing’ combatants, then it should say exactly who those individuals are, and under what circumstances they were held, at the moment the only reason they are defined as comabatants is becasue someone in the US military finds it useful to do so, not because they were actually caught on the battlefield.
Your comment comes quite close to being a personal insult. Please do not go down that road.
I am unaware of why you would doubt my claim that these people have been detained on the battlefield. Please elaborate.
The names of detained persons are to be given to the Protecting Power (a nicety the US has ignored from time to time). There is no requirement to release the names to the public. To do so would hold these people up to public curiosity, which is specifically prohibited by the U&C.
They are not criminals. Criminal law does not apply to them. The last time I can recall a combatant country using the Civil Law against military personnel was when the Japanese tried and executed American aircraft crew shot down over that country. This is obviously an abuse, and we ought not to copy it.
I admit, I think Nuremburg was a step in the wrong direction. I udnerstand the motive, and both the Nuremburg and Jopanese war crimes trials were not unjust. I have a problem with that sort of post-hoc judiciation, although I understand why it was important for the victorious powers at the time to show the world their actions were just and to expose the villainy of the losers.
In the present caes, many of these people are being taken in the context of their operations as undercover (in some way) agents of a hostile power. Because they do not wear uniforms and identify themselves, they are subject, IMHO, to basically anything we want to do. If we catch them doing something or even have good evidence of it, we can execute them on the spot legally under the conventions of war. Many of them do get released for one reason or another, but as I see it we have the right to hold them as suspected spies (technically, they’re guerrilla fighters, but the same code applies).
I disagree with using criminal law against them for two reasons: first, Afganistan was a soverign ntion, albeit one with an odious government. That government secifically encouraged the killing of Americans. Two, I never liked applying American law to other people; it seems unfair and arbitrary. Believe it or not, I think we should hold them if we choose because it’s a morally and ethically superior action to putting them on trial.
I actually would have no objections to, say, taking Manuel Noriega, but only so long as we took him in his role as effective head of state, not putting him on trial as if he were an American citizen. I may be getting the details of his case, wrong, as it was a long time ago and before I was born.
Pineapple face? I was there. I helped make it happen. He was tried for crimes he committed in the US. (Of course he also violated the Marylyn Monroe Doctrine, you screw with a President and you are going to die.)
In any case, we cannot execute people who are in civilian clothes on the spot. That is prohibited. Spies must be adjudicated by a tribunal (as a practical matter, a General Court Martial) and then can be sentenced to death. This would be automatically appealed to the Court of Military Appeals.
Spies are not war criminals. They are executed simply to make the use of spies dangerous, difficult and unproductive.
Fighters attempting to hide in the civil population, that is using the civil population as a shield (or, if you prefer using our obligation to protect the civil population against us) is a war criminal. As a result they are not soldiers and can be tried.
The trial would be held in the same manner and under the same statute as a similar trial of an American soldier. If found guilty, he could be punished as an American soldier would be.
A person detained on the battlefield is to be given the presumptive status of a POW, that is to say the highest protected status until and unless a competent authority determines he is unworthy of the protections the U&Cs offer soldiers.
why doesn’t the US try these people? Almost certainly because for the vast majority they are innocent or the claims are not provable. According to one of the military investigators Erik Saar who was involved in examining the inmates there (from http://www.motherjones.com/news/qa/2005/05/saar.html )
“We have people there and we don’t know what their affiliations with terrorism are. We ourselves cannot verify that they were enemy combatants picked up on the battlefield, as General Miller has repeatedly said to the media. A number of them were turned over to us by foreign governments, and the Northern Alliance, who were paid a bounty for them. There wasn’t this extensive vetting process, as the Pentagon would lead you to believe. What extensive vetting process allows an 88-year-old to end up at Guantanamo Bay?”
Oddly all the pro GB dopers here have stated as a recieved fact that all these people at GB are dangerous or guilty without any cites or backup information. This is a nation that prides itself on a fair legal system? Is it now guilty until miraculously proven innocent?
Another piece of evidence. The UK is one of the few governments with enough clout to put pressure on the US. This resulted in all (or at least 95%) of the UK nationals at GB being released. Once they were back here it was quickly realised that there was no evidence at all or that would stand up for two minutes in a court of law and they are now essentially free (though some may have reprting restrictions etc). [It is true that many went to Afganistan to support the Taliban (before 9/11 happened). However the Taliban as repulsive as they are not al Queda and were the de facto government of Afganistan (even if not recognized widely) and were at one time supplied with weapons by the US when it suited them]
Are you telling me that the same level of guilt is probably also not true for all the other people at GB, or are the UK detainees somehow special or unrepresentative?
Its just a big mess that the US has got itself into that it has no idea how to get out of. It cant release all the inmates that it probably knows are innocent (or at least not dangerous or not proven - possibly up to 90% of the remaining according to Saar) without looking even more stupid than it does now. However keeping them there only makes the US look as despotic as the governments they feel justified in replacing