Why deprive Gitmo detainees legal protection (renamed)

Great Debates
21

Paul, what the Pakistani in Afghanistan could be tried for is quite obviously a case by case sort of thing. I would imagine that the universe of charges could include conspiracy to commit murder (should the individual have something – even indirectly – to do with Khobar Towers, 9-11, the Cole, the Philippines airliner plot, or God knows what other events), various financial crimes (handling funds illicitly sent to a terrorist organization), trafficking in drugs or weapons… there’s really hardly an end to the possible crimes that members of Al Qaeda can be charged with, in my view.

Lookit John Walker Lindh, for crying out loud. It can be done.

But I think I’ve put my finger on what differentiates our view on this issue. It seems to me that you lean toward treating Al Qaeda terrorists, as much as feasible, as captured soldiers in a regular military.

I disagree with that view, and I think in a very limited sense, the Administration is right not to treat these terrorists as if they are POWs. They clearly are not soldiers or militia (don’t have distinguishing uniforms, don’t carry arms openly, don’t respect the laws of war, etc). In my view, they should have the status of spies and sabateurs, which is to say that they may be dealt with as little more than criminals found on the battlefield.

But I have one other question, Paul, concerning their possible release: Let’s say next week we kill UBL and a host of his lieutenants in one fell swoop. The core of Al Qaeda is simply destroyed, and the AQ affiliates from the Philippines to Iraq to Indonesia to Germany to everywhere else simply move on to claim that they are no longer under the Al Qaeda banner. All these terror groups still exist, but they universally acknowledge that Al Qaeda is dead, but they will continue to carry on in their missions nonetheless.

Under that situation, in which the core of AQ is dead, but these loose affiliates continue in their efforts to destabilize Iraq, bomb Bali nightclubs, etc., should we release Khalid Sheik Mohammad? Under what situation might you see us releasing KSM? What about someone further down the food chain, someone who might be considered a rank level equivalent to a 1LT in Al Qaeda? Do we have to wait until all AQ affiliates everywhere are destroyed before releasing such a lower-ranking person?

22

If these had been picked up, with a hot gun in their hands, at a scene of combat, you might actually have a case for saying they were combatants.

This is not what is happening, at least not to a larege percentage.

What is happening is that they are being indicated by other locals, the US patrols go in and make ‘arrrests’ whilst they are miles from any scene of combat, and the pointers are then being paid for their service.

In a poverty stricken nation, where fifty dollars is a very significant amount of money, and where there is tribal rivalry that has existed for generations, are you so blind that you cannot see the inherant weaknesses in this strategy ?
They may, or may not be combatants, or they may, as has happened in more than just a few cases, be simply in the wrong place at the wrong time.

Those Britons who were over there and picked up, are easy targets for the locals to sell, because there is no possibility of there being any local tribal problems, and in any counrty, when there is easy money, and poverty, they are a very useful source of income, this in a nation where kidnap and ransom have been a way of life since, well certainly since the Victorian era and probably before.

So even the provenance of the detainees is not clear,

Maybe you think this is just my opinion, I wish it were, and I cannot imagine how you have not come across the following, since you seem to be well informed, and if you are well informed, given you are making what should be informed comments, then you must be ignoring these reports.

http://news.yahoo.com/s/ap/20050531/ap_on_re_la_am_ca/guantanamo_prisoners_for_sale_1

http://www.usatoday.com/news/nation/2004-11-03-gitmo-detainees_x.htm

There are loads of such reports, what you are doing is simply trotting out the official US line.

Since you are well informed, I reason that you must be aware of these reports, and for some reason you have completely chosen to ignore them, if I am mistaken, and in fact you are ignorant, then all I can suggest is read the links and do a few google searches, taking care not to get dragged in by partisan sources.

23

When will the war be over? I do not know. You ask a good question, Raven, I have no answer.

Also Casdave says that it is unjust that these people, many of whom are almost certainly innocent people are being held. You are right. War is very, very unjust. Some people get shipped off to Cuba and some people have their families killed.

The civil justice system is designed to minimize injustice. The military is not bound by this on the battlefield and can impose a great many unjust things for the greater good of shortening the war. Once the war is over we can reestablish civil justice.

24

Is there a declared war? Under international law are we at war with anyone?
You also claim they were captured on the battlefield. All of them, or just most of them? The problem is that under the new and non specific terms of the war on terror this administration is making up rules as they go with little regard for established guidelines. Terrorism is a danger but so is unchallenged authority.
Is this the standard of democracy we set for the rest of the world? Is this the example of human rights? In case you didn’t notice the President declared the war in Iraq to be over.

25

All right, here’s a simpler question: How will we know when the “war” is over?

26

It is immoral to hide behind the lack of a declaration of war. In fact, there is a war. To hide behind a legalism would be to deny these people the protection they deserve as combatants. If we accepted the argument that there is no state of war, then these people could be hauled in front of some sort of court and sentenced (perhaps even to death).

The lack of a declaration does not free the combatants from obeying the Law of War. (That is in Chapter One, and I bet Page One of the pervious cite, I bet.)

OK, so since we are now discussing where the battlefield is, I presume that we now admit that the treatment of these people is (im)perfectly in keeping the Usages and Customs of War. Now we are discussing detail, and I have to go to work.

I do not know how we will know when the war will be over.

Please do not think I am ignoring you. I have to get to the office.

27

Then why is that presumptive status not being accorded to “illegal enemy combatants”? As I understand it, they have been automatically classified as such by military officers in the field (or civilian bureaucrats in the DOD or DHS – that part isn’t always clear) without their status being adjudicated by any “competent authority” such as a court-martial or military tribunal.

28

But as it stands now, the Guantanamo detainees are in a rightless legal limbo. They enjoy neither the protections of POWs under international law and the usages and customs of war, nor the protections of criminal suspects under Anglo-American common law and the U.S. Constitution. How is that any more moral?

29

The problem is not that we are treating these individuals as prisoners of war. The problem is that even prisoners of war have some legally-recognized rights, and those rights are not extended to the Guantanamo Bay detainees. We could justify calling the people captured suspected criminals, and we could justify calling them prisoners of war. Either way, they have some rights which must be recognized. But we can’t justify making up a new category of “Enemy Combatant” for them without any rights.

We’re only obligated to treat them as soldiers if they act as soldiers, which means, among other things, wearing uniforms and following clear chains of command. Given that they don’t do these things, we’re legally in the clear to arrest them as criminals. At the very least, any non-soldier who fights against us can be charged with attempted murder, and anyone who helps other non-soldiers to fight against us can be charged with conspiracy to commit murder.

30

Paul, the Supreme Court of the United States ruled a year ago that the “enemy combatants” at Guantanamo could not be held without access to due process. They have the right to have access to legal representation and the judicial system. The Bush Administration has been using stalling tactics since that ruling, but there has been some action.

Since they are not POWs and protected by the Geneva Conventions, they have a right to have charges brought against them and to stand trial. They are presumed innocent until proven guilty.

That’s right. The 520 prisoners in Guantanamo are innocent in the eyes of the law of this country and the President of this country wants to imprison them indefinitely.

31

Cite for this either-or?

32

furt if you think there is another option, perhaps you could suggest it? They are undoubtedly being held prisoner. They could be prisoners of war. They could be charged with a crime and be on remand. What other options are you aware of?

Paul your whole position is a castle in the air. There is no war. You cannot have a war on a method.

There is just a crime (or several of them) for which the perps need to be punished when found guilty.

Litmus test: a bunch of moslem guys (wearing, let’s say, red scarves as the uniform of their particular group) are stopped while attempting to blow up a building (which would have killed many) in the US as part of their particular religious campaign against prominent Christian nations. Would you be happy for them to be POW’s, standing no trial, not being charged with attempted murder, not going to the chair, and being allowed to go home once the war’s over (even if that’s the week after next) because they’re just enemy soldiers fighting a war, not terrorists?

33

“None of the above.”

In another thread, I pointed to pirates as a group that didn’t fit in either category; Paul has pointed out that spies are another.

The Geneva Conventions are very specific on who qualifies as a POW; civil law also pretty clearly says that courts can’t rule on things outside their jurisdiction. These guys fit under neither. Maybe they’re a new category, maybe we stick with the generic “unlawful combatant.”

But just because something isn’t a dog doesn’t mean it’s a cat.

34

The only reason that these individual fit neither criminal nor POW, is simply because the US administration has chosen its own definition, and then only so as to deny them any rights either to those defined toward POWs in GC or those under criminal law.

You will note that ‘illegal combatants’ are not defined by the UN or in any internationally meaningful sense of the word, because the rest of the world recognises that there are perfectly good legal instruments to deal with them.

There are lots of rules governing terrorists, but these also involve indictments and accusations.

Its fairly clear the US has some problems, possibly in working out wether it actually has any jurisdiction over those arrested outside US territory at all, and wether fighting against an invading US force in any way at all is actually a crime.

The US could have availed itself of powers given under UN resolutions in Afghanistan, being recognised as an enforcing authority, but the US doesn’t want to acknowledge the endosing authority of which the UN is capable, probably because it has no such authority given to it over actions in Iraq, or at least, these are disputed and most inconvenient.
It would not be easy to square up following or using UN authority in Afghanistan and have a much less clear postion in Iraq.

Gitmo is a US-only run facility, but given that this was a UN sanctioned action, it should be run under those auspices, but then it would not be as easy to carry out acts of torture in such an environment.

35

and

Sure, but they’re not pirates, no one’s suggesting they are, so why bother with that? And if they were spying that’s a crime, and they’d have to be charged with that, and tried.

So you still haven’t come up with an alternate, at least not one that isn’t ludicrous.

Agreed

Sure, but where do you see the jurisdictional problem? They are being held captive on US territory, that would give a degree of jurisdiction. And assuming they’ve actually done something to US persons or property, that’s probably going to give a ground for jurisdiction.

I think there’s a whole lot of excuse making going on around here.

36

Certainly the Usages and Customs of War are being made outmoded by these people. They need to be updated.

Perhaps, the world should adopt the idea that since they kill our guys, we can kill theirs. That would be a very bad thing to do.

Perhaps we could decide that since the were not in uniform, and not fighting under command, they are common criminals. Each nation could pass some sort of law against such a thing, try and execute these people. Maybe that will fly.

I prefer to think they are POWs. I think they fall under the broadest possible interpretation of the levee en masse rule. This will protect them from execution as criminals, and from tit for tat reprisals. This seems most reasonable to me.

Frankly the world is in a foul mood right now and any international convention called right now would be likely to result in a lot of yelling and screaming and no consensus. The world is simply still making up its mind on how to deal with these new style combatants.

Until we do make up our collective mind, I say go with the highest level of protection. Make them POWs and hold them until the war is over.

Really, there are few things that POW status would gain these people. The Americans seem to have been remiss in some small things, paying these people a monthly stipend, letting them write home. Other abuses (hiding people from the Protecting Power) are more serious.

In any case, these guys seem to be neither fish nor fowl and we ought to be careful, err on the side of caution and given them the highest level of protection until we decide on the proper thing to do with them.

37

They did not commit a crime on US property, and they may well not have harmed US persons or property; they may have merely been attacking forces allied with the US. Even if they were, as Paul pointed out, engaging in combat isn’t a crime. ISTM the burden is on you to explain what they’re supposed to be charged with.

No, I can’t say exactly which category they fall in; neither can you, and neither can the Bush administration. That’s because they don’t fall in any of the traditional categories. Until the last decade or two, no one much contemplated the threat of nonstate actors and how to deal with them. None of the major accords address them much.

The admin recognizes the enormous, and insane, precedent they’d be setting if thy declared that de jure all unlawful combatants will be considered criminals under US laws and prosecuted as such.

Are you really certain a judge wouln’t throw out charges against an ObL or one of his underlings because he wasn’t read his rights when taken into custody, or because the prosecution’s DNA evidence gathered on the battlefield might be contaminated, or because no American jury can be considered impartial?

Is it really a step forward to announce that all persons everywhere whose actions are deemed to harm America will be subject to prosecution in our courts? That’s the sort of talk I’d think you’d find presumptuous.

38

Please forgive me for not replying to this specific a moment ago.

Actually, a group of people caught under these circumstances would be enemy soldiers and ought not to be tried. We do this so our guys (no doubt wearing blue scarves) will not be tried when captured by their military.

I would not want them tried. I would oppose it, presuming they met the requirements outlined in the rules to be treated as soldiers.

39

You are still missing the point that many of these individuals were not arrested or detained during the course of actual engagement.

Many were simply pointed out by others, for their own motivations.

They are not necessarily any kind of combatants at all, though there certainly will be some among them.

What is happening is that there is no judicial process of sorting out which is which, its pretty unforgiveable, and the only justification there is for holding likely innocent people is, that they might be suspects.

‘Gee, if we release some of them we might let some of the bad ones go free’

Try fly that in a US court of law, how do you think the judiciary would react to preventative detention ?

40

Poorly, I suspect. But that is why the civil law does not apply in war. The law of war does not require a person be guilty to be deprived life, liberty or property. It only requires military necessity.

Certainly unjust, but as I said before war in infinitely unjust.

Should the Americans work to reduce this injustice. Yes, certainly for any number of practical and moral reasons. Will these palliative steps reach the level of protection offered by the civil law in peacetime? Most certainly not.

As Lawrence Chamberlain once said, ‘There is nothing quite so much like God on earth as a general on a battlefield.’ The actions of a commander are not tied by the need to submit to civil law. He has another set of laws he must follow in order to reestablish peace.

Can he and his soldiers do whatever he likes? No, not at all. The military justice system and the Usages and Customs of War limit him, and threaten him with punishment should he go astray. But the burden of proof ‘beyond a reasonable doubt’ does not apply. Instead he must judge military necessity for his actions and view them with an eye toward historical president.

He is limited to what he can do to the enemy in his hands. One of the things he cannot do is punish them for fighting on the wrong side, something posters on this thread have advocated. This is simply victor’s justice. He must treat them humanely and release them when their detention is no longer required. He cannot jail them, he cannot execute them.

He can detain them but must also protect and care for them.

Certainly some people the Americans are holding are innocent. No doubt about it. Also no doubt some of the people the Americans have killed were killed by mistake. Some of the property destroyed was bombed due to misunderstandings. But was William T Sherman said ‘War is cruelty and you cannot refine it.’