It's not easy, running a gulag

[Banquo's Ghost]

It seems that every time the law brushes up against Guantanamo (http://news.bbc.co.uk/1/hi/world/americas/6720315.stm) internment camp, the Bush administration comes off worse.

Such experience explains why the administration wants to cut out any dalliance with legality, but does it foster any more qualms amongst supporters of the policy? Or shall we dismiss the whole story as a mere technicality?

Guantanamo pair's charges dropped

A US military judge has thrown out charges against two Guantanamo Bay detainees, casting fresh doubt on efforts to try foreign terror suspects.

Both cases collapsed because military authorities had failed to designate the men as "unlawful" enemy combatants.

In one case a Canadian man, Omar Khadr, was accused of killing a US soldier in Afghanistan with a grenade.

Charges were also dropped against Salim Ahmed Hamdan, a Yemeni accused of being Osama Bin Laden's driver and bodyguard.

The BBC's James Westhead in Washington says the rulings deal a stunning blow to the Bush administration's attempt to bring its detainees at Guantanamo Bay to trial.

Under a new system of military justice approved by Congress last year, detainees facing trial must be designated "unlawful enemy combatants".

When they were assessed years earlier they were described only as "enemy combatants". The word "unlawful" did not appear, giving the new tribunals no jurisdiction.

It seems the same may apply to all the other 380 detainees, leaving the tribunal system in legal limbo while Bush administration lawyers race to clarify the situation.

The US government has basically three options, our correspondent says:
throw the whole system out and start again, which would be very embarrassing for the Bush administration:

a)throw the whole system out and start again, which would be very embarrassing for the Bush administration

b)redesignate all the detainees as "unlawful enemy combatants", which would require a separate administrative hearing

c)appeal against the ruling - but this would need to be handled by an appeals court, the military commissions review, which has not yet been established
Tribunal issue

Defendant Omar Khadr, 20, appeared in court on Monday wearing a prison uniform, light sandals and a straggly beard.

He was just 15 years old when he was captured in Afghanistan, and was accused of killing a US soldier during a battle at a suspected al-Qaeda base in 2002.

He appeared in court charged with murder, attempted murder, conspiracy and providing support for terrorism.

The judge left open the possibility that Mr Khadr could be re-charged if he appeared before an official review panel and was formally classified as an "unlawful" enemy combatant.

He said prosecutors could lodge an appeal within 72 hours, although it was not immediately clear who they could appeal to. Prosecutors have indicated they intend to appeal.

All charges were dropped in the case of Salim Ahmed Hamdan, accused of serving both as chauffeur and bodyguard to al-Qaeda leader Osama Bin Laden.

Lawyers for Mr Hamdan said: "It was a victory for the rule of law and the law of war."

Legal limbo

The tribunal's chief defence counsel, Marine Colonel Dwight Sullivan, said the rulings were not a technicality, but another demonstration that the system did not work.

Senator Chris Dodd, a Democratic presidential candidate, said the system was corroding America's foundation of freedom.

Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, told the New York Times that Monday's ruling could prompt Congress to re-evaluate the legal rights of detainees.

"The sense I have is that there's an unease, an uncomfortable sense about the whole Guantanamo milieu. There's just a sense of too many shortcuts in the whole process," he said.

The Guantanamo Bay facility was set up by the US in January 2002 to detain foreign prisoners suspected of links with al-Qaeda or the Taliban.

About 770 inmates - many from the conflict in Afghanistan - have been at the camp on Cuba, which is not subject to normal US court rules.

[English assassin]

I've said it before, but lawyers are teh bomb. well, Bush's lawyers are obviously not teh bomb. They are teh low watt bulbs. But in general, lawyers are teh bomb.

This is as far from a technicality as can be imagined. Being an enemy combatant is perfectly lawful, which will come as good news to members of the US and UK armed forces who would otherwise be criminalised en masse. Charging and proving that these were unlawful enemy combatants is absolutely central.

[Spetulhu]

When has Bush the Divine Messenger cared about embarrassment? He's right and, well, that's it. The lawyers and judges here are clearly un-American terrorist supporters. If the administration puts time and money on locking up suspects without due process then the legal system should cooperate! :furious3:

Nah, good to see that the rule of law is still in the fight.

[Odin]

It seems that every time the law brushes up against Guantanamo (http://news.bbc.co.uk/1/hi/world/americas/6720315.stm) internment camp, the Bush administration comes off worse.

Such experience explains why the administration wants to cut out any dalliance with legality, but does it foster any more qualms amongst supporters of the policy? Or shall we dismiss the whole story as a mere technicality?

Guantanamo pair's charges dropped

A US military judge has thrown out charges against two Guantanamo Bay detainees, casting fresh doubt on efforts to try foreign terror suspects.

Both cases collapsed because military authorities had failed to designate the men as "unlawful" enemy combatants.

In one case a Canadian man, Omar Khadr, was accused of killing a US soldier in Afghanistan with a grenade.

Charges were also dropped against Salim Ahmed Hamdan, a Yemeni accused of being Osama Bin Laden's driver and bodyguard.

The BBC's James Westhead in Washington says the rulings deal a stunning blow to the Bush administration's attempt to bring its detainees at Guantanamo Bay to trial.

Under a new system of military justice approved by Congress last year, detainees facing trial must be designated "unlawful enemy combatants".

When they were assessed years earlier they were described only as "enemy combatants". The word "unlawful" did not appear, giving the new tribunals no jurisdiction.

It seems the same may apply to all the other 380 detainees, leaving the tribunal system in legal limbo while Bush administration lawyers race to clarify the situation.

The US government has basically three options, our correspondent says:
throw the whole system out and start again, which would be very embarrassing for the Bush administration:

a)throw the whole system out and start again, which would be very embarrassing for the Bush administration

b)redesignate all the detainees as "unlawful enemy combatants", which would require a separate administrative hearing

c)appeal against the ruling - but this would need to be handled by an appeals court, the military commissions review, which has not yet been established
Tribunal issue

Defendant Omar Khadr, 20, appeared in court on Monday wearing a prison uniform, light sandals and a straggly beard.

He was just 15 years old when he was captured in Afghanistan, and was accused of killing a US soldier during a battle at a suspected al-Qaeda base in 2002.

He appeared in court charged with murder, attempted murder, conspiracy and providing support for terrorism.

The judge left open the possibility that Mr Khadr could be re-charged if he appeared before an official review panel and was formally classified as an "unlawful" enemy combatant.

He said prosecutors could lodge an appeal within 72 hours, although it was not immediately clear who they could appeal to. Prosecutors have indicated they intend to appeal.

All charges were dropped in the case of Salim Ahmed Hamdan, accused of serving both as chauffeur and bodyguard to al-Qaeda leader Osama Bin Laden.

Lawyers for Mr Hamdan said: "It was a victory for the rule of law and the law of war."

Legal limbo

The tribunal's chief defence counsel, Marine Colonel Dwight Sullivan, said the rulings were not a technicality, but another demonstration that the system did not work.

Senator Chris Dodd, a Democratic presidential candidate, said the system was corroding America's foundation of freedom.

Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, told the New York Times that Monday's ruling could prompt Congress to re-evaluate the legal rights of detainees.

"The sense I have is that there's an unease, an uncomfortable sense about the whole Guantanamo milieu. There's just a sense of too many shortcuts in the whole process," he said.

The Guantanamo Bay facility was set up by the US in January 2002 to detain foreign prisoners suspected of links with al-Qaeda or the Taliban.

About 770 inmates - many from the conflict in Afghanistan - have been at the camp on Cuba, which is not subject to normal US court rules.

Lets dismiss it as a technicality. Why?

Source
b)redesignate all the detainees as "unlawful enemy combatants", which would require a separate administrative hearing

Obtaining a new administrative hearing smells like a technicality to me, but I dont want to ruin yet another thread beating the dead horse that is george bush. :2thumbsup:

Go ahead fella's line up, all you have to do is cut and paste your prior posts. :laugh4:

[English assassin]

Obtaining a new administrative hearing smells like a technicality to me, but I dont want to ruin yet another thread beating the dead horse that is george bush

Well, I would hope not. "Administrative" should not be a dirty word. Presumably the hearings at which people are designated unlawful or not have some content, and apply criteria. If I want to designate something as a spade it has to be a long handled, bladed digging impliment, and if someone presents me with a fork is not open to me (lawfully) to designate it as a spade.

Point taken that no one is very likely to change their minds on Gitmo on this one but it is still comment-worthy.

[Odin]

Well, I would hope not. "Administrative" should not be a dirty word. Presumably the hearings at which people are designated unlawful or not have some content, and apply criteria. If I want to designate something as a spade it has to be a long handled, bladed digging impliment, and if someone presents me with a fork is not open to me (lawfully) to designate it as a spade.

Point taken that no one is very likely to change their minds on Gitmo on this one but it is still comment-worthy.

Well thats the rub. Bush was granted the power to determine the title of the combantants under war powers resolution act after 9/11. In that legislation, he can issue a presidential military order, and he did the order (http://en.wikipedia.org/wiki/Detention%2C_Treatment%2C_and_Trial_of_Certain_Non-Citizens_in_the_War_Against_Terrorism).

thus its really a technicality, because the war powers resolution has not been recinded by congress, he still has the same auhtority to make the designation. It was ruled unconstitutional but upheld by the supreme court, and replaced in 06, but military commissions, as convened by the president still make the designation(unless I have read it wrong)

The article is a nice read but its more beating of the dead horse that is Bush, while I dont have a problem with it, it hardly progresses the argument.

Yep we all know he's an idiot and bad for the world overall, lets get on with it all ready.

[English assassin]

Yep we all know he's an idiot and bad for the world overall, lets get on with it all ready.

That bang, my fellow euroweenies, was the sound of our fox being shot :laugh4:

[Pindar]

It seems that every time the law brushes up against Guantanamo (http://news.bbc.co.uk/1/hi/world/americas/6720315.stm) internment camp, the Bush administration comes off worse.

Such experience explains why the administration wants to cut out any dalliance with legality, but does it foster any more qualms amongst supporters of the policy? Or shall we dismiss the whole story as a mere technicality?


Changing an accused person's filing status from "enemy combatant" to "alien unlawful enemy combatants" is not a legal set back. The individual cases were dismissed without prejudice. This means once the change is made a trial can then proceed per normal. The article and any larger judgement confuses minutia with substance.

As to the thread's title: to equate Guantanamo with the Gulag where millions died under the Soviets is both hyperbolic and irresponsible.

[Papewaio]

As to the thread's title: to equate Guantanamo with the Gulag where millions died under the Soviets is both hyperbolic and irresponsible.

So magnitude is more important then direction?, So size matters? :beam:

I agree that it is hyperbolic, but is it really irresponsible to equate the two? Can you name a more accurate example?

[Samurai Waki]

I agree that it is hyperbolic, but is it really irresponsible to equate the two? Can you name a more accurate example?

Japanese Internment Camps :laugh4:

[KafirChobee]

Geesh, thank zeus the inmates at Gitmo don't have any rights - like to a speedy trial. Five years to trie a child, now a man? Sad, and now he probably will be a full blown terrorist should he ever get out of the "Bush" system.

The entire affair stinks. Had Bush let our justice system work for him, rather than trying to create one, all this would be behind us - and he might even have justification for some of it. Instead its just one more example of the ineptness we've put up with for six years.

2008 can't get here soon enough, for me.

[PanzerJaeger]

The thread title is highly disrespectful towards all those who suffered under soviet oppression.

Maybe some deeper reading into what actually took place at the real gulags is in order? Those poor souls would love to only have to endure standing for a long time and unscented deodorant. :shame:

Edit. Pindar made my post redundant..

[Navaros]

Thread title is highly misleading in my view.

Bush in fact has a very easy time running a gulag. He has proven he can do whatever he wants irrespective of any laws, and absolutely nothing will be done about it. Where is the "hard part" in that for him?

[Pindar]

So magnitude is more important then direction?

Magnitude is important, so is direction. The referent fails on both counts.


I agree that it is hyperbolic, but is it really irresponsible to equate the two?

Yes.


Can you name a more accurate example?

Is this a serious question? The answer(s) should be obvious.

[Banquo's Ghost]

As to the thread's title: to equate Guantanamo with the Gulag where millions died under the Soviets is both hyperbolic and irresponsible.

gu·lag [goo-lahg]
–noun (sometimes initial capital letter)
1. the system of forced-labor camps in the Soviet Union.
2. a Soviet forced-labor camp.
3. any prison or detention camp, esp. for political prisoners.
[Origin: 1970–75; < Russ Gulág, acronym from Glávnoe upravlénie ispravítel?no-trudovýkh lageré? Main Directorate of Corrective Labor Camps]

My emphasis. The word is widely used in the context I presented, especially when lacking the capital letter.

I'm irresponsible for using a rhetorical device to highlight human rights abuses? :laugh4:

If you are more concerned with possible hyperbole in the Backroom than the appalling abuses of human rights going on in Guantanamo Bay, then I shall leave you to enjoy PanzerJager's outraged company.

:bow:

[Pindar]

gu·lag [goo-lahg]
–noun (sometimes initial capital letter)
1. the system of forced-labor camps in the Soviet Union.
2. a Soviet forced-labor camp.
3. any prison or detention camp, esp. for political prisoners.
[Origin: 1970–75; < Russ Gulág, acronym from Glávnoe upravlénie ispravítel?no-trudovýkh lageré? Main Directorate of Corrective Labor Camps]

My emphasis. The word is widely used in the context I presented, especially when lacking the capital letter.

You had no intention of suggesting any connection to the Soviet Gulag?

Note: a political prisoner is typically one held by the state because of his ideas. It turns on notions of free speech and authoritarianism. Is that the direction you want to go to attempt to justify your language?


I'm irresponsible for using a rhetorical device to highlight human rights abuses? :laugh4:

Reference to "using a rhetorical device" is telling.

As to human rights abuses: what human right are you referring to?


If you are more concerned with possible hyperbole in the Backroom than the appalling abuses of human rights going on in Guantanamo Bay, then I shall leave you to enjoy PanzerJager's outraged company.

:bow:

I am concerned with uncritical assumptions and judgments, whether it be by ignorant authors of articles on law proceedings or others. :bow:

[Papewaio]

Magnitude is important, so is direction. The referent fails on both counts.

Not really the vector has certainly not reached the same magnitude but it is certainly on the go from Western to Eastern justice systems. It is a mini-me gulag not a diet coke evil one.

Direction is going towards:
Torture
Worse conditions for prisoners.
Length of time increasing between detention and trial
Less and less standard defendant means to address the crime they have been accused of.
etc

Also the occasional prat party thrown in. You know naked pyramids and dog bites.


Yes.

No. A system that is degrading faster then normal is not in a good state of affairs. If it was a brand new car it would be referred to as a lemon.



Is this a serious question? The answer(s) should be obvious.

Yes it is, and no the answer isn't.


I am concerned with uncritical assumptions and judgments, whether it be by ignorant authors of articles on law proceedings or others

I must be ignorant but that post seems to refer to others (being posters) as being ignorant?

[HoreTore]

As to human rights abuses: what human right are you referring to?

I can't speak for him, but I'll name the obvious ones:

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

[Pindar]

Not really the vector has certainly not reached the same magnitude but it is certainly on the go from Western to Eastern justice systems. It is a mini-me gulag not a diet coke evil one.

Direction is going towards:
Torture
Worse conditions for prisoners.
Length of time increasing between detention and trial
Less and less standard defendant means to address the crime they have been accused of.
etc

I don't understand your examples. It sounds like you are confusing criminal and martial legal codes. One thing I'll point out is there is no requirement under the law that trials be held. They are discretionary.


Also the occasional prat party thrown in. You know naked pyramids and dog bites.

Are you talking about Guantanamo Bay or something else?


No. A system that is degrading faster then normal is not in a good state of affairs. If it was a brand new car it would be referred to as a lemon.

If we assume system degradation that is faster than normal degradation (I'm not sure what you're referring to) that equals gulag?


Yes it is, and no the answer isn't.

I see. Those in Guantanamo were primarily captured in a theater of war as illegal combatants. The closest parallel would be POW Camps minus the legal designation as prisoners.


I must be ignorant but that post seems to refer to others (being posters) as being ignorant?

Did other posters write an article on the legal proceedings?

[Pindar]

I can't speak for him, but I'll name the obvious ones:

Article 5....

Hello,

Are you making a legal argument?

[Papewaio]

Did other posters write an article on the legal proceedings?


I am concerned with uncritical assumptions and judgments, whether it be by ignorant authors of articles on law proceedings or others.

The article quoted would be the authour you refer to. The others is a blanket statement that may or may not include posters in this thread and may or may not refer to them as ignorant. I am asking for a clarification of the sentence before I pass my own. :rulez:

[PanzerJaeger]

Wow - I thought moderators were at least supposed to make an attempt at objectivity. :inquisitive:

[Papewaio]

Yes, I only ever give warning points to lawyers, Jesus and the right, apart from when I'm giving warning points to hippies, satanists and the left that is. :inquisitive:

So hard being a Kapo in the Gulag, everyone thinks you are against them...

[PanzerJaeger]

It may just be me, but it seems like quite a long stretch to come up with anything objectionable about that statement, and it seems like you're making that stretch(along with the vague threat that accompanied it) due to the position you've taken in this thread.

I dont know if he meant to question anyone's intelligence, but I do know that it is commonplace in the backroom and in all political debates, in far less refined ways. Your rather limited (to one patron) crackdown on the practice is telling.. or, like I said, it may just be me. :yes:

[Banquo's Ghost]

You had no intention of suggesting any connection to the Soviet Gulag?

No. The Backroom is the equivalent of a pub where friends go to discuss ideas. The word "gulag" is a common shorthand (at least where I reside) to denote an internment camp where human rights abuses are common. I could have used "concentration camp" which would have been accurate to the original meaning of the phrase, but that has acquired other popular connotations which may well have been overly hyperbolic.


Reference to "using a rhetorical device" is telling.

I'm not at all sure what else you think it was. I might venture that you defensiveness is also quite telling.

I am a writer, and use words to express ideas, provoke responses and elicit emotions. Metaphor and simile are tools of my trade. The practise of law may well require much more precision, but we are not in a court of law here. Of course, I would never suggest that a lawyer may have used language to sway judgments towards their point of view.

For example, I have, in past posts, referred to the United States as a great beacon of liberty that I admire. I do not recall you objecting to my imprecise language that clearly inferred your country was an enormous bonfire upon which sundry freedoms were burning.

The thread title was intended to be a slightly wry attack on the inadequacies of the Bush administration. Even if you dismiss the setback as a mere technicality (and there are many lawyers across the world that disagree, including one member here) it demonstrates the woolly thinking of the administration you admire so much, insofar as they cannot get their own terminologies accurate enough to pass a judge. The lack of precision of which you accuse me is surely more properly challenged in your political officers, even if you believe Guantanamo is a good thing.


Note: a political prisoner is typically one held by the state because of his ideas. It turns on notions of free speech and authoritarianism. Is that the direction you want to go to attempt to justify your language?

Since inmates are not being accorded rights under the Geneva Conventions, but on an intepretation of the law that is unique to the United States, they are clearly political prisoners.

I don't intend to "justify" my language to you beyond the explanation given above. Swallowing camels whilst straining at gnats is not (if I may mix metaphors shamelessly but in the fine tradition of cartoons) my cup of tea.


I am concerned with uncritical assumptions and judgments, whether it be by ignorant authors of articles on law proceedings or others. :bow:

I understand your concerns, but there are quite a number of lawyers who disagree with your position, including the Colonel Sullivan quoted in the article. They are not all ignorant.

********************

@PJ:


Wow - I thought moderators were at least supposed to make an attempt at objectivity.

Then you would be wrong. I am as entitled to post my opinions as anyone else.

Objectivity applies when exercising our job in enforcing the forum rules. We are still human, and thus err occasionally, but it is possible to separate our personal views from our actions as moderators.

You of all people should be aware of how even-handedly the staff behave.

If anyone has a problem with the way staff moderate the forum, the Backroom Watchtower or PMs are there to help resolve the issue.

[Banquo's Ghost]

Here's a different lawyer's view (http://comment.independent.co.uk/commentators/article2621597.ece). No doubt his language is imprecise too, uncritically equating the camp to a metaphorical inferno where billions of souls are condemned to eternal agony by a just and loving God, but at least he's had the advantage of actually having been to Guantanamo.

Zachary Katznelson: In Guantanamo, men shadow-box for their lives

Have your hopes dashed enough and you start to question if there is ever a way out
Published: 07 June 2007

Imagine that this is your world: a 6 ft by 8 ft cell where everything is steel - the walls, the floor, the ceiling, the toilet, the sink, the bed. Walk two steps in any direction and you hit a wall. There are no windows. The lights are on 24 hours a day. You are allowed out of your cell two hours a day, sometimes at 6am, sometimes at midnight. For those two hours, you are placed in a 6.5ft by 16.5ft outdoor cage with a deflated football. You can go weeks without seeing the sun.

Imagine five and a half years away from your family, your wife, your children. You can't call them. They can't visit. Mail takes months to get through. When it does, it is heavily censored. Imagine being beaten, stripped naked, humiliated, again and again and again. This is the life of my clients in Guantanamo Bay.

Since 2005, my colleagues and I at Reprieve, a legal charity based in London, have been representing 37 prisoners in Guantanamo. Two of us have passed through the United States military's screening process and have been to the base. We are the only people in Britain who can actually go and talk to these men.

Every time I visit them, the prisoners ask for just one thing: a fair trial. "I know mistakes are made," Jamil El Banna, a British refugee from Jordan, told me when we met last month. "I'm not upset about that. But why has it taken this long to correct them? I've been here for years and I've never seen a judge. Put me on trial. Just give me a chance. Doesn't anyone care that I'm an innocent man?"

No prisoner in Guantanamo will see a judge any time soon. On Monday, military judges threw out the charges against the only two prisoners actually charged with crimes. As a result, their trials are on hold and no one else's will start.

Sadly, there is no question that trials in Guantanamo will be unfair. The judges can hear evidence gained from torture. They can sentence someone to death based on hearsay evidence - second, third or even fourth-hand information. The prisoner is not allowed to see the evidence against him. It's like shadow-boxing for your life.

But despite the patent illegality of the trials, in the bizarre universe of Guantanamo, many of the men actually want to appear before a military commission. The prisoners look at David Hicks, an Australian citizen who pleaded guilty to supporting terrorism and was sent home to Australia to serve a nine-month sentence. They see this result, and they see hope. Maybe they too could cut a deal, whether they are guilty or not. They too could go home. The hell of Guantanamo would end. Then they learn of a ruling like the one on Monday. They are happy, because the process masquerading as justice has been exposed. But at the same time, it means yet another door has slammed shut. And as it does, it crushes that kernel of hope.

Have your hopes dashed enough and you start to question if there is ever a way out. Three men apparently took their own lives last year. Days ago, another man was found dead in his cell; the cause of death is unknown, though he had been on hunger strike for an extended period. Virtually all my clients have told me they have thought about killing themselves.

Despite the fact that they desperately want to be home with their families, despite the fact that Islam prohibits suicide, many have tried. I am a lawyer, but far too often, my role when I visit Guantanamo is social worker and psychologist. I am a poor tool in this regard, but I am all the men have.

Ahmed Belbacha seems to shrink a bit every time I see him. We meet alone in a claustrophobic, windowless room, monitored constantly by a video camera. You can hear the camera shift to track us if we change position. As he sits across from me, shackled to the floor, Ahmed is despondent. "My cell is like a grave," he said to me four weeks ago. He tells me how everything echoes off those steel cell walls. Doors slam constantly as guards come and go. Large fans drone and screech. Even footsteps seem cacophonous. There is no such thing as quiet in Camp 6. There is no peace. "If I could just sleep..."

Ahmed has never been charged with a crime. He has never been before one of those military judges. Yet, finally, after five and a half years, Ahmed has been cleared to be released. He should be celebrating. But his nightmare may just be beginning. Ahmed is originally from Algeria. He fled there to the UK, seeking asylum after he was threatened repeatedly by Islamic extremists because he worked for a government-owned oil company. But now, the UK is washing their hands of him, refusing to help because Ahmed was a resident, not a citizen. As a result, the United States wants to send him back to Algeria.

The Algerian intelligence services have told Reprieve that if Ahmed returns, they cannot ensure that he will be safe - from their own personnel. And so Ahmed sits in that steel box, freezing in the constant flow of air-conditioning. The only things in his cell are a Koran and an inch-thick mattress. He is denied even a pen. He has nothing to do but contemplate his fate. Does he resign himself to the likelihood that he will go back to abuse and torture in Algeria? Or does he let himself believe the British government might change its mind, that Gordon Brown will have the courage to act where Tony Blair has not? Can he allow himself to hope?

The writer is senior counsel for Reprieve

[Don Corleone]

Woah, everyone calm down and take a deep breath. Let me work this in reverse order here....

@BG: Panzer was referring to Pape's cheeky 'allow me to review the judgement before I pass my own'. I don't think he was in any way stating that you weren't entitled to open a thread to take a stance and then defend said stance.

@PJ: You're really reaching to imply that Pape was being threatening. If he wanted to pull a Soly, the clever witticisms would come out after he issued the warning point.

Now, as to the topic, calling it a technicality is inaccurate by means of oversimplification. Being no serious student of the law, I'm sure my interpretation will be legally inaccurate. But that doesn't really matter, because even more than a legal question, Guantanomo poses some pretty serious political questions. Yes, Bush is 'election-proof', and one could assume he is above petty politics, vying for votes. But 'poltics' means something larger than just dodgy behavior to gain votes.

Some of the questions I see raised:

-President Bush, after being ordered by the Supreme Court to release the prisoners at Gitmo or charge them, managed to coeerce the Congress into passing a law effectively stating that when it comes to enemy combatants, red is blue, if he says so. Even with such broad sweeping powers, he managed to screw up the designations on prisoners at Gitmo. Regardless of your views on the legality or morality of Gitmo, it doesn't speak highly of the White House. Frankly, I think it confirms my own personal suspicion that the White House is so arrogant in their assumption of unchecked power, they are grossly inept and bumbling, because they believe themselves to be beyond reproach.
In other words, when you have the power to declare somebody an unlawful enemy combantant handed to you on a silver platter, how do you still manage to screw this up?

-Now, let's not just gloss over that whole ethical/moral question. Gitmo goes a long towards telling the world what kind of people we ourselves are. Suspending Habeus Corpus, for whatever you want to call the planefuls of people getting shipped over from Afghanistan and Pakistan, was dicey at best. But the one caveat that made it even vaguely palatable was the assurance from the top that these represented 'the worst of the worst', men so dangerous that normal POW camps would just become a platform from which they may launch more mayhem. Now, 5 years down the road, we're starting to hear things like "Abdul's cousin's friend's hairdresser's gardener once heard that Abdul might have attended a training camp once (after we gave him a $10K reward)". Hmmm, not exactly what I had in mind for the 'worst of the worst'. In fact, as time goes on, and one after another, EVERY prisoner at Gitmo is being shown to be of questionable detention-worthiness. The so-called 'worst of the worst', and I do agree they exist, never came to Gitmo. They're at prisons we're not even aware of. With the benefit of 5 years of hindsight, I'm left to draw one conclusion about Gitmo: It was a PR move that blew up in the Administration's face. They wanted to show the American people just how tough they could be. When we reacted with "Wait, aren't you going overboard", they immediately responded with a defensive lie about the dangers posed by those interred. Now they're stuck: They cannot release the prisoners without admitting the lie.

I'm sorry, I'm willing to tolerate a lot in the name of safety for the US. I have no problems with special rendition WHEN IT HAS BEEN SHOWN TO MAKE SENSE. But so many of these practices, especially Gitmo, come down to one statement made by the White House "Trust Us". In light of the gross mishandling, the bungling, the deliberate misrepresentations... I don't. I don't trust any of them as far as I can throw them any more. For all we know, the 500 down in Gitmo were randomly selected off the streets of Kabul. And frankly, based on the way the White House has acted, and continues to act towards the detainees, its more likely that they actually were.

We like to tell ourselves that life in Gitmo isn't that bad anyways? What has that got to do with the price of tea in China? I don't care if Hef and the Playmates swing by once a month for mojitos. Every day we continue to hold people in that state of 'no defined status but indefinite detention and we cannot say why' is another victory we hand the terrorists around the globe. We are destroying our own good name far better than they ever could and for what? So that the White House doesn't have to admit it made a mistake in the first place as far as I can tell.

Stop the ride, I want to get off.

[Banquo's Ghost]

Thank you Don, for pointing out my mistake.

I'm sorry PJ, for misunderstanding your post.

:sorry:

Don, your summary was well constructed and whilst I can't agree that Guantanamo and special rendition were ever necessary, your analysis bears a lot of reflection.

:bow:

[HoreTore]

Hello,

Are you making a legal argument?

You asked which human rights Guantanamo Bay violated, I copied the relevant ones from the human rights charter...

[PanzerJaeger]

Thanks for clearing that up Don. :bow:

Pap's a good guy and moderator and definitely no Soly so you are probably right. It just seemed as though in that one instance he may have been blurring the line between his personal opinions and his moderator duties. No big deal, though.

[Pindar]

The article quoted would be the authour you refer to. The others is a blanket statement that may or may not include posters in this thread and may or may not refer to them as ignorant. I am asking for a clarification of the sentence before I pass my own. :rulez:

Clarifying a sentence. This is the sentence in question:

"I am concerned with uncritical assumptions and judgments, whether it be by ignorant authors of articles on law proceedings or others."

It is divided by a comma. The first clause makes a general statement. That statement is: the subject (me) is concerned (takes note of, worries about) uncritical assumptions and judgments. This is a categorical. What follows the comma then further qualifies the categorical. It says this concern applies to ignorant authors who write on law proceedings and others. The first qualifier is quite specific: ignorant authors writing about a specific topic. The second qualifier is actually redundant as the first clause has already stated a categorical: my concern whenever there are uncritical assumptions and judgments. "Others" therefore applies to all I encounter at anytime and anywhere in the universe who make uncritical assumptions and judgments. It is this phenomenon I am concerned with.

[Pindar]

No. The Backroom is the equivalent of a pub where friends go to discuss ideas. The word "gulag" is a common shorthand (at least where I reside) to denote an internment camp where human rights abuses are common. I could have used "concentration camp" which would have been accurate to the original meaning of the phrase, but that has acquired other popular connotations which may well have been overly hyperbolic.

I see. So where you reside gulag is not hyperbolic, merely noting a place were human rights abuses are common, but concentration camp is hyperbolic.

You didn't answer my earlier question: what human rights are you referring to that are being commonly abused?



For example, I have, in past posts, referred to the United States as a great beacon of liberty that I admire. I do not recall you objecting to my imprecise language that clearly inferred your country was an enormous bonfire upon which sundry freedoms were burning.

Does this mean you used gulag as a metaphor?


I'm not at all sure what else you think it was. I might venture that you defensiveness is also quite telling...The thread title was intended to be a slightly wry attack on the inadequacies of the Bush administration.

Of course there is the rub. I don't consider the use of gulag as slightly wry any more that I would consider the use of holocaust as slightly wry. For myself, when there are episodes is human history where literally millions die because of some evil I try not to dilute those events by using them for some other issue I disagree with unless of course I believe there is in fact a comparable evil.



Even if you dismiss the setback as a mere technicality (and there are many lawyers across the world that disagree, including one member here)...

Which lawyer(s) across the world and here believes the change in the accused status is not a technicality. This would be odd given the very language of the Court (dismiss without prejudice) implies it is a technicality as it has no baring on the case proper.


Since inmates are not being accorded rights under the Geneva Conventions, but on an intepretation of the law that is unique to the United States, they are clearly political prisoners.

I'm not sure I understand the above. It sounds like you believe those who do not meet the standards laid out in the Geneva Conventions are nonetheless to be afforded the standards of the Geneva Conventions. It also sounds like you have issue with the United States following United States law. The final judgment that 'they' are clearly political prisoners means justice is on their side and 'they' should be freed.


I understand your concerns, but there are quite a number of lawyers who disagree with your position, including the Colonel Sullivan quoted in the article. They are not all ignorant.

You cite the Defense Council as an example? Who are the other lawyers who constitute this "quite a number" who argue the judge's ruling "dismiss without prejudice" is not a technicality?

[Pindar]

Here's a different lawyer's view (http://comment.independent.co.uk/commentators/article2621597.ece). No doubt his language is imprecise too, uncritically equating the camp to a metaphorical inferno where billions of souls are condemned to eternal agony by a just and loving God, but at least he's had the advantage of actually having been to Guantanamo.


Is this meant to bolster the claim of the earlier article that the judge's ruling to "dismiss without prejudice" is a critical set back of some sort? Is this second article meant as an example of critical thinking? If so, would statements like "Sadly, there is no question that trials in Guantanamo will be unfair." be an example?

[Pindar]

You asked which human rights Guantanamo Bay violated, I copied the relevant ones from the human rights charter...

Are you making a legal argument?

[Banquo's Ghost]

Pindar, with all due respect, we have no common ground, and it is my failing to find your style distracting, so I do not intend to debate you.


:bow:

[Pindar]

Pindar, with all due respect, we have no common ground, and it is my failing to find your style distracting, so I do not intend to debate you.


:bow:

As you will. I'll simply repost my initial reply and then allow you to return to the comfort of your own world.

"Changing an accused person's filing status from "enemy combatant" to "alien unlawful enemy combatants" is not a legal set back. The individual cases were dismissed without prejudice. This means once the change is made a trial can then proceed per normal. The article and any larger judgment confuses minutia with substance.

As to the thread's title: to equate Guantanamo with the Gulag where millions died under the Soviets is both hyperbolic and irresponsible."

:bow:

[Xiahou]

One thing I'll point out is there is no requirement under the law that trials be held. They are discretionary.
And I, for one, am not sure why some trials are being sought. We don't typically try prisoners of war for crimes (unless they've committed a specfic crime), do we? Some of the charges are puzzling to me. Killing a US soldier- isn't that the combatants "job"? I realize that unlawful combatant is a lesser status than POW, but still I don't understand some of the charges.

But, that's not an argument for release either.

[HoreTore]

Are you making a legal argument?

I'm not making an argument at all, I'm simply informing you which human rights are violated by gitmo, because you asked...

[Don Corleone]

And I, for one, am not sure why some trials are being sought. We don't typically try prisoners of war for crimes (unless they've committed a specfic crime), do we? Some of the charges are puzzling to me. Killing a US soldier- isn't that the combatants "job"? I realize that unlawful combatant is a lesser status than POW, but still I don't understand some of the charges.

But, that's not an argument for release either.

They're not POW's. If they were, they'd have Geneva convention protections.

They're basically in that limbo that happens when you suspend Habeus Corpus. In other words, they're detained at the whim of the president, no viable reason given.

[Xiahou]

They're not POW's. If they were, they'd have Geneva convention protections.Yes, I know- but it's the closest parallel. They're similar to POWs, except they don't enjoy all the rights and privileges given to those who conduct warfare according to the Conventions.

Again, if we think they committed a warcrime or espionage ect, by all means, try them for it. But charging them for killing a soldier seems pretty stupid to me. You don't need criminal charges to hold a combatant.

[Don Corleone]

There's a fundamental principal in Western law. It dates back over 1000 years. It's called Habeus Corpus, Latin meaning "Show the body". Contrary to proper folklore, it doesn't mean that if you properly dispose of a corpse you cannot be tried for murder. It means that no sovereign, even the king, could detain somebody for 'no reason given'. If somebody was a murderer, you had to say they were, that you were holding them for the murder and who the victim was.

We suspended habeus corpus for those being held in Guantonomo. We claim that we can do this, because we are under no compulsion to recognize their right to Habeus Corpus (the right to be charged with something) because they're not American citizens. I'm not a legal scholar, I can only speak to the Fairness doctrine, and this one fails the smell test. It may be perfectly legal to hold somebody without listing any charges against them, which means that you can effectively hold them until the end of time, but that doesn't make it right.

I see the whole legal justification for holding the detainees as the latest varient on the whole 'can we versus should we' argument. I cannot speak to the 'can'. But I can speak to the should. Unless we have very good reasons for doing it, the credibility hit we suffer seems to make it a poor bargain. What's more, it just seems morally unjustifiable. We were told that in this particular case, we had to be allowed to make this Faustian bargain, because these men were all, every last one, proven to be so absolutely dangerous.

Now, it's come to light that once again, the White House may not have given us the whole story on that last assessment either. They released a large batch of these prisoners without a word to explain why they were detained in the first place. Of the ones they've continued to hold, they simply say "it's too dangerous to the country to tell you why we're holding them. We can't even tell a judge at a tribunal sworn to secrecy, even if it were run by the JAG corps".

So whether they're unlawful alien enemy combatants or they're enemy unlawful alien combatants, or they're blue and green mice from Mars, we should either charge them as criminals for whatever crimes we suspect them of or we should release them. How the very act of charging them, when the court documents could in fact be sealed, violates our security in an unacceptable fashion, 5 years after their original detention, is beyond me. I will say, it doesn't speak very well of the Bush administration's regard for the American citizens who have taken oaths to the court that they cannot trust them to respect sealed indictments.

In other words: If Al Capone and Herman Goerring weren't too dangerous to arraign, how can these guys be?

[HoreTore]

They're still subject to the human rights, as those rights can never, ever be removed, under any circumstances whatsoever.

[KafirChobee]

Argueing the finer points of whether Gitmo's concentration camp facilities qualify as a gulag is a mute point. The fact that it is an illegal detention facility is a reality, a clever circumvention of our laws and a justification for our fears. Argueing it is the size that matters (heard that one before in a different context) on how one defines a facility, as opposed to the actions being conducted within it - is bogus at best. Criminal justification at worst.

That even Amnesty International has raised questions about Gitmo, and has joined forces with other humanitarian organizations to expose it for what it is and shut it down, demonstrates how far we (the USofA) have fallen away from our principles of "do no evil". Now we (some of us) are in the belief of "see no evil", ergo it doesnot exist; and if someone in our government says there is smoke - there must be fire (even when the only smoke is coming from the smoke screen for their justifications for maintaining and sponsoring such an evil place).

Personally, Don Corleon's summation on page one was well thought out and presented in a noncompassionate, thorough manner. As he put it (loosely), it is a more a matter of the Bushys saving face on the matter, than anything else. We all know how much they hate admitting to making an error in judgement - or ineptness.

[Xiahou]

So Don, f they were held as POWs, would you expect Habeas Corpus to apply? I'm not aware of it applying to POWs anywhere in the Geneva Conventions. Yet, you seem to think it should apply to those who have chosen not to fight by the rules of war. You don't charge POWs to be able to hold them, but you say that should be the requirement of unlawful combatants...

Invariable some of those captured are not going to be combatants, but unlike you, I was actually pleased to hear that dozens were released after review by Combat Status Review Tribunal. Comparatively few of those were also not released, but that was because their native country wouldn't take them, or they would be tortured/killed if returned and they were transferred to a separate portion with many more freedoms and recreation available until we figured out where to send them.

The real downside to Gitmo has been the bad politics of it. The politically expedient thing to do would probably be just to send them off to their native countries where they'll never be heard from again. I'm not sure that's the moral thing to do though.

[Hosakawa Tito]

Military lawyers standing tall (http://www.buffalonews.com/opinion/editorials/story/93081.html)
An op piece from the local paper that says it better than I could.

[Don Corleone]

So Don, f they were held as POWs, would you expect Habeas Corpus to apply? I'm not aware of it applying to POWs anywhere in the Geneva Conventions. Yet, you seem to think it should apply to those who have chosen not to fight by the rules of war. You don't charge POWs to be able to hold them, but you say that should be the requirement of unlawful combatants...

Invariable some of those captured are not going to be combatants, but unlike you, I was actually pleased to hear that dozens were released after review by Combat Status Review Tribunal. Comparatively few of those were also not released, but that was because their native country wouldn't take them, or they would be tortured/killed if returned and they were transferred to a separate portion with many more freedoms and recreation available until we figured out where to send them.

The real downside to Gitmo has been the bad politics of it. The politically expedient thing to do would probably be just to send them off to their native countries where they'll never be heard from again. I'm not sure that's the moral thing to do though.

When the detainees first showed up in Gitmo, Rumsfeld and Cheney said "Trust us, every single one of them has been personally verified as terrorists, thugs and more dangerous than we know how to deal with". Three years later, under enormous pressure, the Combat Status Review Panel said "well, we can say for certain that 85% of them aren't guilty of anything". Doesn't that make you want to ask Rumsfeld and Cheney why they were so sure in the first place? How did they get it so wrong, when they were utterly convinced that every last one of them was Bin Laden's henchman?

Beyond that, of the 15% remaining,t he Combat Status Review Panel didn't say "yep, these are the bad eggs". They said they didn't have enough information to say anything. And how did the White House respond? Two more years of 'no status'.

Let me ask you X-man, how long should these guys be held without us charging them before we have to admit we have nothing on them? Why aren't there any penalties for grabbing them and holding them incommunicado for 3 years, then 5 years? I mean, in the first 3 to 6 months, sure, there would have been some hard feelings, but people would have understood. But 5 years? And never an oops. Never a "My bad", never a "I"m sorry?" If these guys were confirmed to be the worst of the worst, why on earth did we let them out? WHy didn't we put them on trial for crimes of unlawful combatants? Because they know full well these 500 guys had committed the sole crime of being unlucky. I told you, there were 'worst of the worst', but they didn't go to a high profile lockdown like Gitmo. They got scuttled away to Turkmenistan, and places like that.

If your conscience is okay with abducting somebody, leaving them to rot in jail for three years, then kicking them loose without a word as to why they ever got locked up in the first place, good on ya. But personally, I can't stomach it. In many ways, the release of the guys after the Combat Status Review Panel was what opened my eyes in the first place. And the fact that the White House never addressed their error in detaining them in the first place is what shows me why the rest of them are there. They're a fig leaf.

Put another way, how many convictions have we gotten out of Gitmo?

[Pindar]

And I, for one, am not sure why some trials are being sought. We don't typically try prisoners of war for crimes (unless they've committed a specfic crime), do we? Some of the charges are puzzling to me. Killing a US soldier- isn't that the combatants "job"? I realize that unlawful combatant is a lesser status than POW, but still I don't understand some of the charges.

But, that's not an argument for release either.

Here's a piece that may interest you. This section speaks to your question somewhat:


"After the U.S. Supreme Court decisions of last year, the military created a special tribunal to decide if each detainee was properly captured. The government informs the detainee why the military is holding him and gives him an opportunity to respond and present his evidence. Some detainees waive their right to participate. In addition, the military created another level of hearings (not required by the U.S. Supreme Court) that determines if the detainee, even if a member of al Qaeda or the Taliban, should nonetheless be released because he is no longer dangerous."

This is by Ronald Rotunda. Rotunda is a Constitutional Scholar and Professor of Law at George Mason University. The piece I quote is from an article with Rotunda published by Sueddeutsche Zeitung.

The news media prominently publicize the mistakes that the United States has made while conducting its war against terror, and they should, because newspaper criticism is an important check on the abuse of power. The recent publicity surrounding the abduction of the Lebanese-born German national, Khaled al-Masri, is an example. Because terrorists, contrary to the Geneva Conventions, do not wear uniforms or other insignia visible from a distance, civilians are put at risk. In this case, Macedonian police apparently turned over al-Masri to agents of the Central Intelligence Agency because the police and agents mistook him for an al Qaeda operative with a similar name. Then, it appears that they wrongly imprisoned him for several months in Afghanistan until they discovered their mistake.
While we should know about such blunders, there is another side of the story -- what the United States is doing in its prison in Guantanamo Bay. I visited several times and was given complete access to all parts of the base I cared to see. I visited the prisoners’ cells, where they were interrogated, where they played volleyball, and where they ate.

It was not what I had expected. The news media talked of each prisoner isolated in their individual cells. Most of the cells are separated by chain-link fence, so the prisoners talk to each other and play games with the checkers, chess, and backgammon that the military has supplied.

This is an American base, so the tap water is drinkable except for a few well-marked locations. The detainees, however, prefer bottled water, so they drink that while their guards drink tap water. The military even flew in fresh dates and other fruits from the Mideast so the detainees could celebrate Muslim feast days like Ramadan and Eid al Fitr in style. The International Red Cross inspects the base on a regular basis.

The detainees receive the same medical care as the soldiers. Some receive, for the very first time, eyeglasses and crucial medicine. When they are released, some have told the press that they were well-treated; others have claimed torture, but that does not mean it occurred, because the al Qaeda training manual advises its members to always claim torture.

There have been unfortunate instances where soldiers behaved very badly, and the military has punished them. For example, one detainee collected his own urine and threw it at a guard, who responded by hitting the detainee; the military responded by punishing the guard.

After the U.S. Supreme Court decisions of last year, the military created a special tribunal to decide if each detainee was properly captured. The government informs the detainee why the military is holding him and gives him an opportunity to respond and present his evidence. Some detainees waive their right to participate. In addition, the military created another level of hearings (not required by the U.S. Supreme Court) that determines if the detainee, even if a member of al Qaeda or the Taliban, should nonetheless be released because he is no longer dangerous.

Through these two proceedings, the military has released several hundred detainees from Guantanamo. Some of these releases are mistakes: about 5 percent to 10 percent of them are later recaptured or killed in battle. Others will return to battle but we will never know that. One released detainee later killed a judge leaving a mosque in Afghanistan. Another detainee, Abdullah Meshoud, bragged that he fooled interrogators into releasing him, so he could return to battle.

In other cases, the government will release someone wrongly held. For example, the military stopped a truck in Afghanistan holding about 21 people, all dressed like local farmers, along with many weapons. One of them said that he was not part of the group and was just a farmer hitching a ride on the truck. The other 20 refuse to talk to the Americans because they are infidels. They were all taken to Guantanamo and, after several months, some of the people, impressed by their treatment, started talking and confirmed the first person’s story. The military released that person. Given the fact that the terrorists masquerade as civilians, these mistakes are both very unfortunate and unavoidable.

Each cell has an arrow telling detainees where to face east when they recite their Muslim prayers. Islamic mullahs minister to the detainees in their own language, and there is a call to prayer five times a day. Each detainee receives a copy of the Quran. Sometimes detainees cut out pages of their Quran to send secret messages to each other. At least once, a detainee threw his copy down a toilet in an effort to obstruct the plumbing. (Rumors about that incident led to story, later found to be false, that a U.S. soldier had intentionally thrown a copy of the Quran down the toilet. However, the rules do not even allow the soldiers to touch the Quran.)

The military is under orders to respect the detainees’ religion. Detainees know that and use that information to their advantage. At Camp Bucca Detention Center in Iraq, the military set up tent as a mosque and told the American soldiers that they could not go there out of respect for the detainees. The detainees used that tent to build a massive underground escape tunnel over 120 meters long. The tunnel’s walls were smooth and sculpted with concrete, water and milk from the food the Americans had supplied. The detainees safely stored their tools and make-shift weapons inside this mosque because it was off limits to the guards. When the guards learned about the expected prison break from a detainee, they stopped it and the detainees fought back, using floorboards as shields, and socks filled with a cocktail of feces, dirt and flammable, slow-burning hand sanitizer. One of these crude bombs even ignited a Polaris all-terrain vehicle. On the fourth day of the riot, the guards called in air support and the detainees surrendered.

The government must treat all detainees humanely because it is the right thing to do and because that is what U.S. law requires. The government will make missteps because all human institutions are fallible. Yet we should know that there is another side to the story and the government is learning from its mistakes.

[Pindar]

I'm not making an argument at all, I'm simply informing you which human rights are violated by gitmo, because you asked...

Alas! You do not understand. If you wish to make a human rights claim you must justify that claim. Since you seem to be citing the U.N. I asked if you were making a legal argument. The reference to legal argument is asking about the kind of justification. Do you see?

[Pindar]

There's a fundamental principal in Western law. It dates back over 1000 years. It's called Habeus Corpus...We suspended habeus corpus for those being held in Guantonomo. We claim that we can do this, because we are under no compulsion to recognize their right to Habeus Corpus (the right to be charged with something) because they're not American citizens. I'm not a legal scholar, I can only speak to the Fairness doctrine, and this one fails the smell test. It may be perfectly legal to hold somebody without listing any charges against them, which means that you can effectively hold them until the end of time, but that doesn't make it right.

Hello Don,

You appear to be making a moral argument. If I may, let me flush out the legal parameters some and then I'll ask about your moral issue.

To habeas corpus: Habeas corpus is not a right under U.S. Law. It is not a categorical principle. If you note from Article One, Section Nine of the Constitution:


The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

It is a privilege and can be curtailed. In 2006 Congress passed and the President signed the Military Commissions Act (MCA) This suspended habeas corpus to aliens determined to be unlawful enemy combatants having been engaged against the U.S. This is the language:


“Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeus corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 Stat. 2742.

In February in Boumediene v. Bush the U.S. Court of Appeals for the District of Columbia Circuit (this is considered the second highest court in the land) upheld the MCA. The Supreme Court upheld this lower decision by refusing to hear the case.

From the Constitution forward I don't know how you can assume a sacrosanct view of habeas corpus. If habeas corpus is not sacrosanct, as I've demonstrated, then your moral objection is a rejection of this standard of the U.S. Legal System? Is that right? If so, what is the force behind this objection?

[Pindar]

Military lawyers standing tall (http://www.buffalonews.com/opinion/editorials/story/93081.html)
An op piece from the local paper that says it better than I could.

See replies 8 and 36 noting the first full paragraph of each.

[Don Corleone]

You are demonstrating that the mechanism for suspending the 'privilege' of habeus corpus was properly executed upon. As I said frequently above, I am not qualified to determine whether your assertions are correct or incorrect. Based on your superior knowledge of the law, I will have to take your word for it.

As you correctly highlight, my argument is a moral one. Prostitution is legal in many counties in Nevada. Does that mean that I condone the behavior of businessmen who engage in such activities, though they are legally entitled to? And in my mind, whoring is an entirely appropriate metaphor here. Let's ask ourselves, in common, every day language, what have we done?

We took the White House at their word that each and every one of the detainees going to Gitmo was 'the worst of the worst', that they were so dangerous, we had to hold them indefinitely, without communication to the outside world and without hope of proving their innocence (they cannot argue their innocence when they have no crime with which they are being charged).

Some time later, a significant portion of these 'worst of the worst' were summarily released with no further explanation. We as a people (and we must take moral responsiblity for the actions of our leaders) turned these people loose without a word of explanation as to why we had deprived them of their liberty for three years. WE continue to hold a large number of them and thus far, have refused to utter one word in support of why, other than the ubiquitous 'trust us' we continually receive from Pennsylvania Avenue. One day, they will be released as well, and there will never be any explanation why they were held either.

And you see no problem with any of this? Do you think a president should be allowed to act without accountability?

[Papewaio]

Other things I issue warning points for... ignorance would be more of a challenge then so, however it would have to be taken within context of the whole. If it was something out of line it would start with a zero point private PM across the bow so we could sort out if it was a communication mismatch between sender and receiver. The context of this one is more of a challenge to bring more proof to the table, however it wasn't the most eloquent or polite of potential challenges I have seen.

Also I think that gulag is used more often to describe any sort of politcal prison not just Soviet ones... otherwise why describe them as Soviet Gulags as it would be superflous.

They do resemble the Boer War concentration camps... prior to starving all the women and children that is. :dizzy2:

WWII Japanese internment camps would be going to lightly, although the Japanese had appalling conditions to say the least and all based purely on racial profiling...

[Xiahou]

When the detainees first showed up in Gitmo, Rumsfeld and Cheney said "Trust us, every single one of them has been personally verified as terrorists, thugs and more dangerous than we know how to deal with". Three years later, under enormous pressure, the Combat Status Review Panel said "well, we can say for certain that 85% of them aren't guilty of anything". Doesn't that make you want to ask Rumsfeld and Cheney why they were so sure in the first place? How did they get it so wrong, when they were utterly convinced that every last one of them was Bin Laden's henchman?

Beyond that, of the 15% remaining,t he Combat Status Review Panel didn't say "yep, these are the bad eggs". They said they didn't have enough information to say anything. And how did the White House respond? Two more years of 'no status'.
I'm not sure where these statistics are coming from. What I've seen said the CSRT found less than 50 out of the (at one time) almost 500 prisoners not to be combatants. That's nothing like 85%. I'm not aware the the CSRT said anything at all about whether the prisoners committed any crimes or not- as it name suggests, I thought that tribunal was only to consider their classification as unlawful combatants. The other, larger portions of the releases, I believe were either because their native countries were allowed to take custody of them or they were deemed to no longer be a threat even if they were one-time Al Qaeda/Taliban fighters.

Thanks for the read Pindar. :bow:

Edit:
WWII Japanese internment camps would be going to lightlyAre you serious?

[Don Corleone]

Oh, so it's only 50% that were wrongfully detained for three years. Silly me, that makes it a whole other story.

[Xiahou]

Oh, so it's only 50% that were wrongfully detained for three years. Silly me, that makes it a whole other story.
Actually, I was guestimating 50 people, not 50%. The real number was apparently 38, though. As I've said, many more were later released to the custody of their native government, or deemed to no-longer pose a threat and released. Of those, something like 5-10% were later recaptured or killed on the battlefield.

It's good that the government took a good, hard look at the detainees and made a real effort to determine their status and release those that should've been. However, there's plenty of room for criticism in how the administration dragged ass in doing so.

[Don Corleone]

I see. So you've seen evidence indicating that the ones still in custody and the ones released to their governments for further questioning were actually culpable of something? Perhaps you'd care to share your findings with me?

[Soulforged]

Alas! You do not understand. If you wish to make a human rights claim you must justify that claim. Since you seem to be citing the U.N. I asked if you were making a legal argument. The reference to legal argument is asking about the kind of justification. Do you see?
I don't understand. I can agree with your first post, but are you saying that humans are not subject to human rights? As for the violations wich occured inside Guantanamo: what about torture for starters?

[Xiahou]

I see. So you've seen evidence indicating that the ones still in custody and the ones released to their governments for further questioning were actually culpable of something? Perhaps you'd care to share your findings with me?
They were determined to be combatants- there's no additional need for criminal charges. You hold enemy combatants until the conflict is over. There was no "charge them as criminals or release them" outcry for German soldiers during WW2 nor any other war in modern history. If you think the fight in Afghanistan is sufficiently ended to release combatants... :shrug:

[Papewaio]

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.


But surely none of these men were actually invading the US or US citizens who were rebelling so why should they have habeas corpus suspended?
(MCA not included that will be the next question.)



It is a privilege and can be curtailed. In 2006 Congress passed and the President signed the Military Commissions Act (MCA) This suspended habeas corpus to aliens determined to be unlawful enemy combatants having been engaged against the U.S. This is the language:


“Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeus corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” &#167;1005(e)(1), 119 Stat. 2742.


Since these men were already in detention when the MCA was passed surely they should have the older standards applied to them. ?

=][=

Also why don't they get a normal standard by the book military or civilian trial to determine there 'unlawful combatant status'... surely they can't be decided to be guilty of such until after they a trial?

=][=

Would you think it okay for any US citizen to have the same process applied to them by a foreign power?
habeus corpus dropped
predetermined unlawful status that effects their trial rights
retrospective laws applied
etc

[Papewaio]

Edit:Are you serious?

The medical conditions at the Japanese internment camps were not as good as they could/should have been. But a lot of the other conditions were better then Gitmo... freedom to associate, to be with ones family, to write, to join the war effort etc.

[Xiahou]

The medical conditions at the Japanese internment camps were not as good as they could/should have been. But a lot of the other conditions were better then Gitmo... freedom to associate, to be with ones family, to write, to join the war effort etc.
I'd say in terms of conditions and certainly in terms of scope, the Japanese American internments were far worse. Gitmo only affects a few hundred- the other affected tens of thousands. And, no matter what you think of Gitmo, I would think you'd recognize that at least the majority of them were hostile combatants of some sort. In the WW2 internment, they were just the wrong race.

Not that I want to turn this into a debate on the Japanese American internment....

[Papewaio]

I think the American run Japanese Internment Camps (not to be confused with WWII Japanese run camps) were better in some ways to Gitmo at least with respect to rights under the law afforded them... it was probably worse in the end result as good intentions never feeds a person and an internment camp without adequate medical facilities will fail in its duty of care.

Those who are tortured (not necessarily at Gitmo) probably have access to better medical treatment then the Japanese internees... this happens with the advancement of medical abilities and because a dead torture victim doesn't give much information so they can be expected to be 'looked after'.

The size of the cells, exercise, rights under the laws of the land are probably worse on paper for those in Gitmo, but in reality they have so much attention that physically they are probably better off... I still think the Japanese internees would have had a better emotional and mental environment.

Now as for the matter of numbers. Yes the magnitude is less... but is there a cutoff point for when something is right or wrong based on the numbers of people being affected?

[HoreTore]

Alas! You do not understand. If you wish to make a human rights claim you must justify that claim. Since you seem to be citing the U.N. I asked if you were making a legal argument. The reference to legal argument is asking about the kind of justification. Do you see?

Uhm, the human rights are universal, and can never be removed... They always apply... And it should be pretty obvious that the US have broken their human rights.

[Don Corleone]

They were determined to be combatants- there's no additional need for criminal charges. You hold enemy combatants until the conflict is over. There was no "charge them as criminals or release them" outcry for German soldiers during WW2 nor any other war in modern history. If you think the fight in Afghanistan is sufficiently ended to release combatants... :shrug:

Three years after they were originally detained, and held without outside communication, they were determined to be combatants and we started treating them the way we should have all along?

And your statement to Pape, that regardless of how you feel about Gitmo, surely you'd agree that most of the people there are combatants of some sort.... do you have some knowledge supporting the combative nature of those being held of which I am unaware?

Seriously X, I'm not just asking rhetorical questions, I really want to know. It seems to me that we want to have our cake and eat it too. The government originally said taking those people to Gitmo and holding them incommunicado was an absolute necessity for national security, because they were so dangerous. Three years later, they just all of a sudden announce that they are ordinary combatants and they either released them or returned them to their country of origin, with no explanation given for the misidentification. Don't you want to know how we got it so wrong?

[Louis VI the Fat]

Patriotism means unqualified and unwavering love for the nation, which implies not uncritical eagerness to serve, not support for unjust claims, but frank assessment of its vices and sins.

- Alexander Solzhenitsyn

~;)

[Pindar]

You are demonstrating that the mechanism for suspending the 'privilege' of habeus corpus was properly executed upon. As I said frequently above, I am not qualified to determine whether your assertions are correct or incorrect. Based on your superior knowledge of the law, I will have to take your word for it.

As you correctly highlight, my argument is a moral one.

I wanted to be clear you are making a moral argument about habeas corpus and the legality is settled. Since we have clearly shifted from can to should: explain to me the should or rather the should not (unless of course my insightful and always pleasant reasoning below sways you).


And you see no problem with any of this? Do you think a president should be allowed to act without accountability?

I think the President should be able to act within the bounds of the Constitution. I feel the same about the Congress.

As to the first question: in a theater of war a few things happen. One of them is people get killed in pursuit of victory. To achieve victory, one possibility is to liquidate the entire population i.e. genocide. I think that would be a bad thing. This means I think some should be killed and others not. Those who fall into the not category are not always clear. One reason they are not clear is the enemy does not follow the agreed protocols of war i.e. uniforms. This means who constitutes threats and who does not is muddy. Added to the problem is the linguistic/cultural divide (trying to properly discern threats from the nots) and bureaucratic inefficiency i.e. organized bodies make mistakes and this is amplified the larger the bureaucracy. In real terms if one decides not to simply kill all perceived threats then something must be done with the grey.

One solution is detention of possible threats. Now, under normal war conditions those detained would be proper combatants and afforded rights under treaty. Unfortunately, the combatants here are not proper combatants: they do not follow or meet treaty conditions. This leads to a conundrum: does one follow treaty protocols with those who do not recognize the protocols themselves? If one says yes then one is providing legitimacy to a illegitimate body. This undermines the force and purpose of treaties. It is also a problem for a society that claims any deference to the rule of law. If one says no, then the terms of detention remains. One solution is detention under the Military minus POW status. This is because the military is the prosecutor of state action and standard treaty forms are not being recognized. This also means civil code convictions, trials etc. do not apply. The military tribunal system operates at present under three levels. The first is the field tribunal where a base decision is made: release or move to the next step. The second step is transfer to a series of camps. The largest of these is Guantanamo. Here there are two further opportunities for the detainee to challenge their being held. One of these is required by the Supreme Court the other is done simply because the military wants to be more correct as opposed to less. Now, the length of detention is not mentioned. This is because, different from civil breaches of law: confinement is determined by threat level. Under standard treaty conditions a POW would be released when nations signed a peace treaty. If war lasted one month or 100 years is not relevant. Under the current situation detention is based on individual threat level. As long as a perceived threat exists a person is held. Whether this lasts one month or a 100 years is not relevant. This does not mean mistakes are not made: the innocent may be falsly imprisioned and the dangerous released. Regardless, access to civil law is irrelevant.

[Pindar]

Alas! You do not understand. If you wish to make a human rights claim you must justify that claim. Since you seem to be citing the U.N. I asked if you were making a legal argument. The reference to legal argument is asking about the kind of justification. Do you see?

I don't understand. I can agree with your first post, but are you saying that humans are not subject to human rights? As for the violations wich occured inside Guantanamo: what about torture for starters?

No, I am not saying humans are not subject to human rights. I am saying that when someone makes a human rights claim they must be prepared to justify that claim. For example: If I claim there is a human right to listen to disco I must be prepared to justify such. One standard justification is the law. I asked if the human rights claims violations were based on that kind of appeal.

[Pindar]

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

But surely none of these men were actually invading the US or US citizens who were rebelling so why should they have habeas corpus suspended?
(MCA not included that will be the next question.)

The sentence in the Constitution lists: cases of rebellion or invasion and/or the public safety may require it. War may fit under the latter.


Since these men were already in detention when the MCA was passed surely they should have the older standards applied to them. ?

The MCA was passed after a ruling by the Supreme Court (SCOTUS). The Court's rulings are meant to clarify issues of law. There was a previous law that allowed for the Guantanamo detention and detainees legal status. This was the Detainee Treatment Act of 2005, I believe. The MCA is in direct response to SCOTUS's ruling. The MCA therefore clarifies according to SCOTUS's protocols. This is what was expressly stated by Justice Kennedy in his opinion of the 2006 Hamdan Case (a bad ruling, by the way).


Also why don't they get a normal standard by the book military or civilian trial to determine there 'unlawful combatant status'... surely they can't be decided to be guilty of such until after they a trial?

They do not get civilian treatment because they are not civilians, but taken as combatants. They are not given standard military treatment, because they do not recognize or follow the normal protocols established by treaty.


Would you think it okay for any US citizen to have the same process applied to them by a foreign power?
habeus corpus dropped
predetermined unlawful status that effects their trial rights
retrospective laws applied
etc

If an American were engaged in a foreign theater fighting under an organization that did not follow treaty protocols, obviously.

Note: there are no retroactive laws here. Standard combatants i.e. POWs do not normally have trial rights simply from detention. Predetermined unlawful status can be and is determined insofar as a combatant is fighting without a uniform.

[Pindar]

Uhm, the human rights are universal, and can never be removed... They always apply... And it should be pretty obvious that the US have broken their human rights.

So you're not making a legal argument?

[Pindar]

Patriotism means unqualified and unwavering love for the nation, which implies not uncritical eagerness to serve, not support for unjust claims, but frank assessment of its vices and sins.

- Alexander Solzhenitsyn

~;)

Just because some are confused over Guantanamo, I don't think you need to hit them with Solzhenitsyn.

[Don Corleone]

I suppose we're really breaching into two fundamental questions here, so let me address both.

First, as we've agreed, we're talking about the should aspect of this whole question. I'm attempting to make moral, not legal arguments. Yes, theoretically, the president could have gotten the congress to suspend habeus corpus and arrested every last delegate at the Democratic convention in the summer of 2004 and refused to charge them or allow them access to proper redress. That wouldn't have made his actions proper.

Second, I understand the argument about enemy combatants and not being uniformed, regular army. But if that's the case, are our commandos and covert intelligence operatives allowed to be held incommuncado, with no charges levied against them? Even if it's legally possible, should they be? What's more, you touch a fundamental point of this for me, the possiblity that not everyone scooped up is guilty. But in the system orchestrated by JTF down in Guantanamo, what system of redress do the innocent have? What's more, many of the so-called guilty are considered guilty because either A) we have testimony from Afghan tribal leaders that turned them in or B) they subsequently confessed. But on Point A, when we're offering a bounty of up to 25K per head, don't you think the system might be ripe for abuse, and perhaps a system of review would be prudent? And on point B, in another thread, we have discussion of how effective 'harsh measures' such as water boarding is, and that nobody can last longer than 5 to 10 minutes. Let me pose a scenario to you. Suppose 500 innocent people were rounded up. Over time, during an interrogation that includes waterboarding, 480 of them confess to the repeated question of whether or not they're terrorists. We've already ascertained that the waterboarding is an irresistable compunction, by which the interrogator can solicit any statement he so desires. Do you still find these confessions to be reliable?

And regardless of all this, we don't think we need a system of external review?

I'm not arguing about holding unlawful combatants (at least I wouldn't be if we hadn't done it the way we did). I'm saying that we have tainted the water so thoroughly (no offense intended), we cannot hope to ascertain which confessions are valid and which were given under duress. Had we at the time of their initial detention followed a system of judicial review, we would be beyond reproach. But since we decided to keep all this from the light of day, we can no longer have any faith in the process.

Finally, I want to make the practical argument. Rumsfeld assured us that we knew each and every one of them personally was responsible for acts of terrorism. As it turns out, that was later shown to be untrue. Yet, there has been no process of review, so that we might learn how it was that former Secretary Rumsfeld, and AG Gonzalazez and others involved in the formulation of this policy were so wrong, assuming it was an honest mistake, and whether in fact it really was. I've offered an alternate theory on that and I haven't seen it rebutted.

[Xiahou]

I don't have much to add to what Pindar said, but I did want to respond. They were "determined" to be combatants from the beginning- much later they formalized the determination process with the status review tribunal. In the interests of fairness, openness, and just good politics, I think the administration should have done this much earlier than they did and not doing so is a valid criticism.


Three years after they were originally detained, and held without outside communication, they were determined to be combatants and we started treating them the way we should have all along?
I'm not aware of treatment at Gitmo undergoing any great shift- they were treated consistently "all along".


And your statement to Pape, that regardless of how you feel about Gitmo, surely you'd agree that most of the people there are combatants of some sort.... do you have some knowledge supporting the combative nature of those being held of which I am unaware?They were determined (usually several times) by legally constituted tribunals to be unlawful combatants. You seem to be making much of "incommunicado". Regular POWs are not normally allowed visitors, lawyers, ect that I'm aware of. Why should unlawful combatants have more rights? Gitmo is however, visited regularly by the Red Cross which can and does act as an intermediary for detainees. itinerary

Politically, the administration could have done things much better. I think there is certainly room for criticism on their handling of the situation. However, (and I think this is the mistake you're making, Don), just because the administration could have and should have handled some aspects better. it doesn't mean that the very idea of detaining combatants is wrong or should not be practiced.

edit:

Suppose 500 innocent people were rounded up. Over time, during an interrogation that includes waterboarding, 480 of them confess to the repeated question of whether or not they're terrorists. We've already ascertained that the waterboarding is an irresistable compunction, by which the interrogator can solicit any statement he so desires. Do you still find these confessions to be reliable?I think it's pretty wild to think that 480 people were waterboarded, Don. We know of what, 14? And iirc, they weren't held at Gitmo at the time either. Gitmo is said to use a system of increased privileges for cooperation. You can get out of maximum security just for good behavior, but those who cooperate with interrogators are allowed more extras- apparently happy meals were very popular...

[Don Corleone]

It was a hypothetical question, the ratio of confessions extracted through waterboarding. I find a hard time believing 75% (the number claimed by the camp-delta commander) spontaneously admitted to being terrorists of their own free will.

I'm not arguing about whether or not combatants should have been held. I'm arguing that due to the way they were treated, we have no way of knowing if the determination of their status was correctly made. We can't, because we weren't given any information as to how it was carried out. My statement about "being treated properly three years down the road" was more about their access to tribunals. For the first three years, they didn't even have that.

Let me ask you Xiahou, if I'm being alarmist and hysterical and overreaching in my criticism, why does the JAG corps have such a problem with the policy?

[Soulforged]

No, I am not saying humans are not subject to human rights. I am saying that when someone makes a human rights claim they must be prepared to justify that claim. For example: If I claim there is a human right to listen to disco I must be prepared to justify such. One standard justification is the law. I asked if the human rights claims violations were based on that kind of appeal.
~:doh:

EDIT: Correction...your country has an aweful record of signatures without ratifications. I cannot make a legal arguement based on those, even taking into considaration the Declaration of Human Rights. I'll keep looking...

[HoreTore]

So you're not making a legal argument?

I'm sorry, I have no clue at all what you mean.

[Pindar]

I suppose we're really breaching into two fundamental questions here, so let me address both.

First, as we've agreed, we're talking about the should aspect of this whole question. I'm attempting to make moral, not legal arguments. Yes, theoretically, the president could have gotten the congress to suspend habeus corpus and arrested every last delegate at the Democratic convention in the summer of 2004 and refused to charge them or allow them access to proper redress. That wouldn't have made his actions proper.

[quote] Second, I understand the argument about enemy combatants and not being uniformed, regular army. But if that's the case, are our commandos and covert intelligence operatives allowed to be held incommuncado, with no charges levied against them?

Spies or those involved in combat that do not follow the protocols of the Geneva Conventions or similar treaties are not allowed the protections of those treaties. In short, being a spy is dangerous if your caught during war. A simple example from our own history: Nathan Hale was hanged by the British for being a spy. Under the norms of the time, they had every right to do so. It also gave we revolutionaries a good quote for the history books: "I regret I have but one life to give for my country".


What's more, you touch a fundamental point of this for me, the possiblity that not everyone scooped up is guilty. But in the system orchestrated by JTF down in Guantanamo, what system of redress do the innocent have?

There are three disitnct levels of tribunal at present where someone held can make a case for release.


What's more, many of the so-called guilty are considered guilty because either A) we have testimony from Afghan tribal leaders that turned them in or B) they subsequently confessed. But on Point A, when we're offering a bounty of up to 25K per head, don't you think the system might be ripe for abuse, and perhaps a system of review would be prudent?

Making a system more effective is always a good thing. That is a separate issue from the base question of detention. Going to war with an enemy that does not follow the standards of war (Geneva Conventions) requires a different approach to captured combatants if genocide is ruled out as an option. There must be a system whereby combatants can be held so they are no longer a threat. POW status cannot be granted for the reasons already explained in the previous post. Confusing such combatants with someone in the civilian legal code is also flawed.


And on point B, in another thread, we have discussion of how effective 'harsh measures' such as water boarding is...

Our discussion is not concerned with torture or "harsh measures". Torture is a separate issue. This discussion is looking at detention as such.


And regardless of all this, we don't think we need a system of external review?

The military is subject to civilian oversight i.e. the President and Congress. Both have signed off on Guantanamo. The same applies to SCOTUS. Guantanamo also has regular visits by the Red Cross, civilians (the press) and various others (recall the Law Professor I cited earlier). It looks like you are returning to a legal question.


Finally, I want to make the practical argument. Rumsfeld assured us that we knew each and every one of them personally was responsible for acts of terrorism. As it turns out, that was later shown to be untrue. Yet, there has been no process of review, so that we might learn how it was that former Secretary Rumsfeld, and AG Gonzalazez and others involved in the formulation of this policy were so wrong, assuming it was an honest mistake, and whether in fact it really was. I've offered an alternate theory on that and I haven't seen it rebutted.

Bureaucracies err. Soldiers die from friendly fire. Sites get bombed that shouldn't. People get imprisoned that shouldn't. Bureaucrats get information that is wrong. War is messy.

[Pindar]

Second, I understand the argument about enemy combatants and not being uniformed, regular army. But if that's the case, are our commandos and covert intelligence operatives allowed to be held incommuncado, with no charges levied against them?

Spies or those involved in combat that do not follow the protocols of the Geneva Conventions or similar treaties are not allowed the protections of those treaties. In short, being a spy is dangerous if your caught during war. A simple example from our own history: Nathan Hale was hanged by the British for being a spy. Under the norms of the time, they had every right to do so. It also gave we revolutionaries a good quote for the history books: "I regret I have but one life to give for my country".


What's more, you touch a fundamental point of this for me, the possiblity that not everyone scooped up is guilty. But in the system orchestrated by JTF down in Guantanamo, what system of redress do the innocent have?

There are three disitnct levels of tribunal at present where someone held can make a case for release.


What's more, many of the so-called guilty are considered guilty because either A) we have testimony from Afghan tribal leaders that turned them in or B) they subsequently confessed. But on Point A, when we're offering a bounty of up to 25K per head, don't you think the system might be ripe for abuse, and perhaps a system of review would be prudent?

Making a system more effective is always a good thing. That is a separate issue from the base question of detention. Going to war with an enemy that does not follow the standards of war (Geneva Conventions) requires a different approach to captured combatants if genocide is ruled out as an option. There must be a system whereby combatants can be held so they are no longer a threat. POW status cannot be granted for the reasons already explained in the previous post. Confusing such combatants with someone in the civilian legal code is also flawed.


And on point B, in another thread, we have discussion of how effective 'harsh measures' such as water boarding is...

Our discussion is not concerned with torture or "harsh measures". Torture is a separate issue. This discussion is looking at detention as such.


And regardless of all this, we don't think we need a system of external review?

The military is subject to civilian oversight i.e. the President and Congress. Both have signed off on Guantanamo. The same applies to SCOTUS. Guantanamo also has regular visits by the Red Cross, civilians (the press) and various others (recall the Law Professor I cited earlier). It looks like you are returning to a legal question.


Finally, I want to make the practical argument. Rumsfeld assured us that we knew each and every one of them personally was responsible for acts of terrorism. As it turns out, that was later shown to be untrue. Yet, there has been no process of review, so that we might learn how it was that former Secretary Rumsfeld, and AG Gonzalazez and others involved in the formulation of this policy were so wrong, assuming it was an honest mistake, and whether in fact it really was. I've offered an alternate theory on that and I haven't seen it rebutted.

Bureaucracies err. Soldiers die from friendly fire. Sites get bombed that shouldn't. People get imprisoned that shouldn't. Bureaucrats get information that is wrong. War is messy.

[Pindar]

~:doh:

EDIT: Correction...your country has an aweful record of signatures without ratifications. I cannot make a legal arguement based on those, even taking into considaration the Declaration of Human Rights. I'll keep looking...

Something that is not ratified does not have treaty status. Something that is ratified is only a treaty.

[Pindar]

I'm sorry, I have no clue at all what you mean.

If someone wants to make a human rights claim they must justify that claim. Assertion alone is not compelling.

[Soulforged]

Something that is not ratified does not have treaty status. Something that is ratified is only a treaty.
Exactly, that's why I backtracked after shooting myself on the foot...:sweatdrop: However if it was ratified I could at least make a legal arguement. I could investigate on the status of the Middle Eastern countries as per the Human Rights treaties and then the extradition treaties, if any, that they signed with the USA, and even if I did find something to arm myself legally it would still will be hard to fight a battle against one on the inside as yourself... Really I've no time for it, not the will to do it, but I think that the moral arguement is apealing in this case, to say the least...

[KafirChobee]

Gah! Pindar, can you please make a complete analysis without using the "quotes" out of context of others?

I apologize, but trying to follow your line of thought is impossible. It seems you are more intent on putting others positions down than attempting to create a solid base for your own. You do have a position? Right?

Is it that you can justify the inhumanity of Gitmo, because you can cleverly say "if someone wants to claim human rights claim they must justify that claim". What exactly does that mean? That the FBI agents that have visited Gotmo lied about the conditions? That the IRCC lied? That the attorneys attempting to sponsor the inmates there are liars? That former marines that served there are liars?

Take half a moment, and in less than 10,000 (100 would suffice) define your position. For Gitmo, all things done there justifiable by the Constitution and all laws preceeding 9/11.

Are you, Yoo?

[Lemur]

I found a really good blog discussing this issue, with a very practical conclusion (http://charleycarps.wordpress.com/2007/06/05/the-lolis-standard/), admirably devoid of jargon:


All this goes to show that creating a new system from scratch is a terrible idea, especially when we already have systems perfectly well suited for the exact tasks. We have courts that can try people for war crimes, and have done so. We have courts that can try people for crimes, and have done so. We have courts that can provide an independent review as to whether someone is or is not properly held, pending hostilities, under the laws of war. This was done in the 1760s, and can be done as easily now. Now it may not fit the outsized view of execuative power some people find in emanations from penumbras in the Constitution (I’ll just note that people who think their legal theories are correct don’t go around trying to have court jurisdiction eliminated prior to getting rulings) but it fits the actual Constitution that is our patrimony, that was crafted with similar concerns regarding conflict in mind, and was based on the proposition, well tested over the centuries, that diffusion of power best serves the interests of freedom and safety.

[Don Corleone]

Spies or those involved in combat that do not follow the protocols of the Geneva Conventions or similar treaties are not allowed the protections of those treaties. In short, being a spy is dangerous if your caught during war. A simple example from our own history: Nathan Hale was hanged by the British for being a spy. Under the norms of the time, they had every right to do so. It also gave we revolutionaries a good quote for the history books: "I regret I have but one life to give for my country".

And silly me, here I was thinking that the Geneva protocols were established specifically to prevent some of the abuses that took place in 18th century warfare. Nathan Hale very well may have deserved to swing from a tree for spying, but he didn't receive any sort of proper court martial. He was summarily executed by Lord General Howe (or General Lord Howe, however the Brits say that). If General Pedroias (spelling?) started summarily executing insurgents, something tells me there'd be a bit of a stink.



There are three disitnct levels of tribunal at present where someone held can make a case for release. How can they when the charges against them are classified and they're denied legal counsel?




Making a system more effective is always a good thing. That is a separate issue from the base question of detention. Going to war with an enemy that does not follow the standards of war (Geneva Conventions) requires a different approach to captured combatants if genocide is ruled out as an option. There must be a system whereby combatants can be held so they are no longer a threat. POW status cannot be granted for the reasons already explained in the previous post. Confusing such combatants with someone in the civilian legal code is also flawed. I'm not making the argument for giving full civilian legal rights to enemy combatants. I'm making the same argument that the JAG corps is making, that structures within the military justice system exist for giving fair and objective detainee status review hearings. What we currently do for them does not qualify. What's more, if the enemy forces us to espouse his ideals instead of our own, who's winning? It's your argument that we should have had a Bataan death march of our own? Perhaps we should have set up concentration camps for German Americans?



Our discussion is not concerned with torture or "harsh measures". Torture is a separate issue. This discussion is looking at detention as such. Harsh measures (and I'll skip the nuance of whether its torture or not) are relevant when the information gained from harsh measures is the sole evidence offered for said detention. This isn't about harsh measures per se, its about whether the evidence offered for detention is valid and convincing.


The military is subject to civilian oversight i.e. the President and Congress. Both have signed off on Guantanamo. The same applies to SCOTUS. Guantanamo also has regular visits by the Red Cross, civilians (the press) and various others (recall the Law Professor I cited earlier). It looks like you are returning to a legal question. Now who's blurring the lines of moral and legal arguments? :yes: As I said above, the president could have gotten Congress to rubberstamp a suspension of habeus corpus and detained every last Democratic delegate to the convention in the summer of 2004. I will cede that following that mechanism, it would have been legal. I ask you, would it have been proper?


Bureaucracies err. Soldiers die from friendly fire. Sites get bombed that shouldn't. People get imprisoned that shouldn't. Bureaucrats get information that is wrong. War is messy. WHich is exactly why some sort of civilian or even JAG oversight is necessary. As I've said all along, the answer we keep getting from the White House is 'Trust us'. Why? What have they done so far to prove themselves worthy of our trust? They're asking for a lot of us... for us to suspend everything we believe in and hold dear. Whenever facts do manage to bubble up to the surface, as often as not, it turns out they were wrong. Sure, there probably are some thugs in Gitmo. But surely you'd agree, based on what we now know, plenty of them aren't. What's wrong with stopping what we're doing and saying "Okay, let's let somebody objective come in and review what we've done so far?"

[Don Corleone]

I don't have much to add to what Pindar said, but I did want to respond. They were "determined" to be combatants from the beginning- much later they formalized the determination process with the status review tribunal. In the interests of fairness, openness, and just good politics, I think the administration should have done this much earlier than they did and not doing so is a valid criticism. This is the thrust of my argument. That by the time proper detention hearings were held, it was difficult, if not impossible to make a proper determination.


I'm not aware of treatment at Gitmo undergoing any great shift- they were treated consistently "all along". I'm talking about status hearings. I'm not arguing the prisoners were abused (I'm not saying they weren't either, I don't have enough information). I'm agruing against holding them against their will.


They were determined (usually several times) by legally constituted tribunals to be unlawful combatants. You seem to be making much of "incommunicado". Regular POWs are not normally allowed visitors, lawyers, ect that I'm aware of. Why should unlawful combatants have more rights? Gitmo is however, visited regularly by the Red Cross which can and does act as an intermediary for detainees. itinerary How does an unlawful combatant get his status changed to POW? No mechanism exists. Our government assigned a status to these prisoners and no method for appeal or redress applies (and before you say they can appeal, remember that all charges and evidence against them is classified... they have to appeal by guessing why they're held in the first place and hope they get it right).


Politically, the administration could have done things much better. I think there is certainly room for criticism on their handling of the situation. However, (and I think this is the mistake you're making, Don), just because the administration could have and should have handled some aspects better. it doesn't mean that the very idea of detaining combatants is wrong or should not be practiced.

I want to be crystal clear on this: I DO NOT OPPOSE DETAINING ENEMY COMBATANTS. All nations in the world do this. I oppose not following agreed upon conventions while doing it. If you want to claim that they don't qualify for Geneva convention priveleges, fine, offer some proof to the world at large. This mumbo jumbo of "We can't. Even releasing the charges we're holding Mohammed under would jeopradize the US" is ridiculous, and we're better than that.

[HoreTore]

If someone wants to make a human rights claim they must justify that claim. Assertion alone is not compelling.

OK... I've already stated the relevant rights, and they have been/are broken at Guantanamo Bay.... What more do you need?

[Soulforged]

OK... I've already stated the relevant rights, and they have been/are broken at Guantanamo Bay.... What more do you need?
HoreTore, the Convention on Human Rights from the OEA was not ratified by the US, so the US cannot be internationally compelled to oblige. You're also not making an arguement just posting some random articles without relating them to the subject at hand.

[Lemur]

Another angle on Gitmo:

"[E]very morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds. [W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open ... We don't need it, and it's causing us far more damage than any good we get for it," - Colin Powell.

[Pindar]

Gah! Pindar, can you please make a complete analysis without using the "quotes" out of context of others?

Hello,

Where have I used quotes to take something out of context?


I apologize, but trying to follow your line of thought is impossible. It seems you are more intent on putting others positions down than attempting to create a solid base for your own.

That is not my intent.


You do have a position? Right?

I do. I look at the legal issue of detention in post: 49. I look at the conceptual element of detention in post: 66. I have also asked questions of those who made human rights claims.


Is it that you can justify the inhumanity of Gitmo, because you can cleverly say "if someone wants to claim human rights claim they must justify that claim". What exactly does that mean? That the FBI agents that have visited Gotmo lied about the conditions? That the IRCC lied? That the attorneys attempting to sponsor the inmates there are liars? That former marines that served there are liars?

What you quote from me above means that when someone makes a human rights claim, the claim alone is not enough. They must be prepared to give the wherefore of that claim.


Take half a moment, and in less than 10,000 (100 would suffice) define your position. For Gitmo, all things done there justifiable by the Constitution and all laws preceeding 9/11.

See my posts noted above.


Are you, Yoo?

Sometimes.

[Pindar]

And silly me, here I was thinking that the Geneva protocols were established specifically to prevent some of the abuses that took place in 18th century warfare. Nathan Hale very well may have deserved to swing from a tree for spying, but he didn't receive any sort of proper court martial. He was summarily executed by Lord General Howe (or General Lord Howe, however the Brits say that). If General Pedroias (spelling?) started summarily executing insurgents, something tells me there'd be a bit of a stink.

You asked me if spies are covered. Are you challenging this point: "Spies or those involved in combat that do not follow the protocols of the Geneva Conventions or similar treaties are not allowed the protections of those treaties. In short, being a spy is dangerous if your caught during war."


How can they when the charges against them are classified and they're denied legal counsel?

Military Tribunals are not trials.


I'm not making the argument for giving full civilian legal rights to enemy combatants. I'm making the same argument that the JAG corps is making, that structures within the military justice system exist for giving fair and objective detainee status review hearings.

I'm not aware that the JAG Corps has made any argument. I agree, there are structures within the military apparatus for review hearings.



What we currently do for them does not qualify.

Are you arguing that there is a system in place, but we are not following that system?


Harsh measures (and I'll skip the nuance of whether its torture or not) are relevant when the information gained from harsh measures is the sole evidence offered for said detention. This isn't about harsh measures per se, its about whether the evidence offered for detention is valid and convincing.

I don't know that 'harsh measures' have been used as the sole evidence for anyone's detention.


Now who's blurring the lines of moral and legal arguments?

I don't understand.


WHich is exactly why some sort of civilian or even JAG oversight is necessary. As I've said all along, the answer we keep getting from the White House is 'Trust us'. Why? What have they done so far to prove themselves worthy of our trust? They're asking for a lot of us... for us to suspend everything we believe in and hold dear. Whenever facts do manage to bubble up to the surface, as often as not, it turns out they were wrong. Sure, there probably are some thugs in Gitmo. But surely you'd agree, based on what we now know, plenty of them aren't. What's wrong with stopping what we're doing and saying "Okay, let's let somebody objective come in and review what we've done so far?"

I don't understand the above. The Military is given civilian oversight. This includes the President and the Congress. There are others who also have had access. Earlier in this thread I cited Constitutional Law Professor Rotunda as an example.

[Pindar]

OK... I've already stated the relevant rights, and they have been/are broken at Guantanamo Bay.... What more do you need?

See Soulforged's post: 86.

[Pindar]

Another angle on Gitmo:

"[E]very morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds. [W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open ... We don't need it, and it's causing us far more damage than any good we get for it," - Colin Powell.

Do you think the Powell is suggesting we should simply kill everyone instead of detain anyone?

[FactionHeir]

HoreTore, the Convention on Human Rights from the OEA was not ratified by the US, so the US cannot be internationally compelled to oblige. You're also not making an arguement just posting some random articles without relating them to the subject at hand.

Considering the US hasn't ratified it, the US government certainly seems to love bashing other nations for their Human Rights record, even if those haven't signed it.
Talk about hypocrisy

[Lemur]

Do you think the Powell is suggesting we should simply kill everyone instead of detain anyone?
Do I need to answer a rhetorical question?

[HoreTore]

HoreTore, the Convention on Human Rights from the OEA was not ratified by the US, so the US cannot be internationally compelled to oblige. You're also not making an arguement just posting some random articles without relating them to the subject at hand.

I really did think this was obvious, but...

The UN universal declaration of human rights is just that - universal. It applies to every state and person. And this is the US view:

http://www.state.gov/g/drl/hr/

It was made by all the members of the UN, and applies to every member. Also, the US worked hard on it, so it is pretty obvious that it should be applied. On to the rights then:

http://www.un.org/Overview/rights.html

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

- The most obvious one. OK, you may not call what happens at Guantanamo torture, but can you honestly say that rubbing alleged menstruation blood in a persons face is not degrading treatment?

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

- A bit questionable, as the prisoners are not US citizens.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

- Forget Habeus Corpus, it clearly states in article 10 that everyone should know the charge against them. How many in Guantanamo have been given a clear criminal charge? Also I'm quite skeptical at how fair and impartial the military tribunes are...

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

- Can anyone say they have good access to lawyers at Guantanamo? And I'd say that they're treated like they're guilty, and as they haven't been tried in a court, that is a violation of the their rights.

So, happy now? Or should I spoonfeed you more? ~:)

[Alexanderofmacedon]

Reason #459 that Russia is better than the US:

It is easy to run a Gulag.

[Xiahou]

Reason #459 that Russia is better than the US:

It is easy to run a Gulag.
In Russia, the gulags run you. :beam:

[Alexanderofmacedon]

In Russia, the gulags run you. :beam:

Damn that would have made my post perfect. :shame:

[Pindar]

I really did think this was obvious, but...

The UN universal declaration of human rights is just that - universal. It applies to every state and person. And this is the US view:

It was made by all the members of the UN, and applies to every member. Also, the US worked hard on it, so it is pretty obvious that it should be applied.

Hello HoreTore,

Your post is confused on several points. The U.N. does not have extra-territorial authority. This means what is ratified within the U.N. does not have the force of law. For example, if the U.N. ratified a resolution dissolving Norway as a country, Norway does not thereby cease to exist as a nation. Any legal overlay one may want to apply to the U.N. exists as a treaty. Under U.S. law treaties require ratification. There are two points here: one, I don't believe the U.S. has ever ratified the U.N.'s specific declaration of human rights. Two, the ratifying authority always trumps what it ratifies. What this second point means is whatever has force to bind a thing, can also loose that thing. This is why a nation may ratify a treaty and then later reject, or modify the same. This is important for your case as the U.S. Congress passed the Military Commissons Act (MCA) in 2006 (I've previously referred to this in the thread). If you wish to make a human rights legal argument contra the U.S. you need to look into the confines of U.S. law, not the U.N.

Note: several of your citations from the Declaration on Human Rights speak to criminality. That is a civil designation and does not apply to combatants in Guantanamo regardless.

[HoreTore]

Hello HoreTore,

Your post is confused on several points. The U.N. does not have extra-territorial authority. This means what is ratified within the U.N. does not have the force of law. For example, if the U.N. ratified a resolution dissolving Norway as a country, Norway does not thereby cease to exist as a nation. Any legal overlay one may want to apply to the U.N. exists as a treaty. Under U.S. law treaties require ratification. There are two points here: one, I don't believe the U.S. has ever ratified the U.N.'s specific declaration of human rights. Two, the ratifying authority always trumps what it ratifies. What this second point means is whatever has force to bind a thing, can also loose that thing. This is why a nation may ratify a treaty and then later reject, or modify the same. This is important for your case as the U.S. Congress passed the Military Commissons Act (MCA) in 2006 (I've previously referred to this in the thread). If you wish to make a human rights legal argument contra the U.S. you need to look into the confines of U.S. law, not the U.N.

Note: several of your citations from the Declaration on Human Rights speak to criminality. That is a civil designation and does not apply to combatants in Guantanamo regardless.

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET. You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.

It also have an authority in the human rights court(in haag or geneve?), but you're right there, that one requires ratification, and I believe the US has withdrawn from that. However, I wouldn't see that a sign that you're "off the hook", I would see that as a sign to grap a point stick and storm the white house to prevent massive crimes against humanity.

Also, you seem to only argue on the legal issue, and seem quite happy that your country is stomping on one of the most fundamental things in our world to prevent another Hitler? It doesn't bother you the slightest that you are breaking the human rights, if you twist it so that it does not apply to you? I wonder how you sleep at night. BTW, I see no reason at all why you should be upset when Al Qaida is chopping off heads, chrashing planes and cutting off limbs. You're happy that you are doing it yourself, so you should be happy when others do it to you.

What would you say if the Taliban won the war and made a camp like gitmo?

As for the criminal stuff, there is no hint at all that those rights are limited to criminal charges, they are applied to every field and situation. For example, when it states that noone is to be detained without being informed of his charges, that applies to guantanamo bay as well as your average joe robbing a gas station.

[Soulforged]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that.
However the Declaration (when in my post I talked about the Convention mind you) has no legal weight as to the international process of law, is just that a declaration of a purpose. So for the question: Are you making a legal arguement? The asnwer is no, and if you insist on yes (when there's no need for that), then you've to forget about the Declaration, every arguement founded upon that document is legally vacous.

[ajaxfetish]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET. You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.
That is a very, very strong claim. Are you willing to stand behind it? Every single state, every single human being, untouchable, unalterable, period. Where does this declaration get such immense weight behind it that it can never be changed by any body ever, including the body that penned it? Is it a perfect document? What is its claim to universal authority through not only space, but also time? This sounds like the kind of faith placed in religious convictions, not those of secular humanism and law.


Also, you seem to only argue on the legal issue,
That's because he is a lawyer. He asked you specifically if you were making a legal argument to determine whether he should argue with you on legal grounds. You refused to answer the question but continued to argue in a legal fashion, so he responded in kind. If you change your argument from a legal one to something else, such as DC's moral argument, then you may be able to make some headway, but arguing Law with Pindar is like arguing astrophysics with Hawking. You're going to have a hard time coming out on top.

Ajax

[Pindar]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET.

Soulforged has addressed this, but if you are attempting a legal argument to justify a human rights claim then the above is incoherent. If you're not attempting a legal argument for any human rights claim then the U.N. is irrelevant.


You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.

I think you are confused. I'll explain. If someone claims a human right, the claim alone is not enough. As mentioned before: if I claim a human right to disco, my claim carries no weight alone. If the U.N. declares I have a right to disco this also is insufficient for the reasons I explained in the previous post. So, if you wish to argue any human rights position and someone like me challenges or asked the wherefore of the claim, you need to justify that claim over and above simply saying it's universal or just is or some such.


Also, you seem to only argue on the legal issue, and seem quite happy that your country is stomping on one of the most fundamental things in our world to prevent another Hitler? It doesn't bother you the slightest that you are breaking the human rights, if you twist it so that it does not apply to you? I wonder how you sleep at night. BTW, I see no reason at all why you should be upset when Al Qaida is chopping off heads, chrashing planes and cutting off limbs. You're happy that you are doing it yourself, so you should be happy when others do it to you.

I think your passion is running away with you some.


What would you say if the Taliban won the war and made a camp like gitmo?

I would say the inmates would be in a far better situation than say what Daniel Pearl faced.



As for the criminal stuff, there is no hint at all that those rights are limited to criminal charges, they are applied to every field and situation. For example, when it states that noone is to be detained without being informed of his charges, that applies to guantanamo bay as well as your average joe robbing a gas station.

Actually the very notion of a charge implies criminality. The word charge implies a breach of some sort. A captured combatant isn't charged from the capture alone.

[Pindar]

That's because he is a lawyer. He asked you specifically if you were making a legal argument to determine whether he should argue with you on legal grounds. You refused to answer the question but continued to argue in a legal fashion, so he responded in kind.

Quite so.

[Don Corleone]

I think HoreTore is right, a human right should just be 'declared'. I would like to officially go on record as declaring my universal human right to replace our current office administrator with Liv Tyler.

[Louis VI the Fat]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans. :shrug:


@Pindar and Soulforged. You two are responding with legal arguments to HoreTore. Or dare I say, legalistic. He initially did present his case as a legal argument, while failing to come up with a legal argument. But he changed to the sphere of legal philosophy in his last post. If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.
HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.
I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.
It has no direct bearing on the current topic. Gitmo is tiresome and I don't feel like getting into it.

[HoreTore]

Well, I didn't get the lawyer-thingy, I'm not making a legal argument, I couldn't care less about that. You are not technically bound to follow it, but if you intend to make the world livable, you are bound to follow it. And isn't that what the bush administration is claiming to do? Civilized countries have chosen to put the human rights court above their own laws, and I hope the US will follow our example. The HR were created to avoid the atrocities of ww2 to happen again. For that to happen, it will first need recognition, which it has. Second, it will need authority, which it only has in a few places in the world.

And no, a charge doesn't have to mean criminal charge. Take a look at the cases in the human rights court, and you'll see that the definitions of that document are extremely broad catch-all phrases. Also, listen to what human rights organizations are saying about guantanamo. Not a single one of them claim that the prisoners aren't protected by the human rights, or that their rights are not broken.

The HR were created by basically the entire world. It's not like a few people sat down and decided something. And it's special in the case of the US, since they figured heavily in the making of them. If what you claim is correct, then the document is basically completely worthless. Why then do we have a human rights court, and trials where states are punished and they follow the verdict to the letter? So I'll ask you, do you think the document is a waste of paperwork, or is it a good foundation for a civilized society?

As for Ajaxfetish' comment, I fully stand by that claim, except that a new one can replace it, though that should happen in the same context that it was created.

[HoreTore]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans. :shrug:

Quite so.... Along with world governments and such things...

[Soulforged]

If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.Both are philosophers of Law. But if he were indeed a Dworkin he still has no need of the international law.

HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.But this is incorrect Louis. It's not because of the UDoHR that we can argue about contradictions, it's because we've certain moral principles, with or without such Declaration. However Hore clearly wants the Declaration to create a legal obligation. And even if all were right, I don't know why you don't consider it to be an attempt of legal arguement.

I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.EDIT: Philosophically speaking it's incorrect to confuse moral with Law. While there's such a thing as objective Law there's only an objective morality in form of hipotesys and it's not appiable to every time and space on the same form. Both have different origins and don't necessarily affect each other. This doesn't make any moral critique implausible, but it certainly does when the question is: "Wich precepts have been violated?", for this we have to return to the definition of Law. The philosophy of Natural Law tries to apply a moral requirement to law, wich has nothing to do with its definition, and confuses things even more. If we have the Law defined then we can make a plausible arguement against or in favor of the subject at hand, and we can answer that question easily. Anyway if we really don't want to return to the principle of all this discussion and you're looking only for an answer to that question, first I'll say that HoreTore is indeed attempting a legal arguement, second the only coherent answer to Pindar question is a legal arguement, and third even if I failed on both previous accounts HoreTore fails to see the difference between moral and Law for the reasons exposed.


I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.I disagree there's no such self-evident truth, and the americans are one of the best protecting this human rights. It will be nice if they did ratified some convention on human rights to have an insurance above their Constitution and a resource above their national organs, but it seems that they don't really need that.

[Pindar]

I think HoreTore is right, a human right should just be 'declared'. I would like to officially go on record as declaring my universal human right to replace our current office administrator with Liv Tyler.

This will tie in to the other human right to have all governments run by young nubile women under 25.

[Pindar]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans. :shrug:

No, it's just some of us understand the theoretical underpinnings of unalienable rights claims.


@Pindar and Soulforged. You two are responding with legal arguments to HoreTore. Or dare I say, legalistic. He initially did present his case as a legal argument, while failing to come up with a legal argument. But he changed to the sphere of legal philosophy in his last post. If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.
HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.

Our good HoreTore has not made any appeal to natural law. He has simply made assertions. This will not do. I will not do the thinking for my interlocutor.

Note: Dworkin is far far away from any natural law posture.


I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.

I'm always happy to respond to arguments when they are presented. I can't give rebuttal to an argument that doesn't exist.

[Pindar]

Well, I didn't get the lawyer-thingy, I'm not making a legal argument, I couldn't care less about that. You are not technically bound to follow it, but if you intend to make the world livable, you are bound to follow it. And isn't that what the bush administration is claiming to do? Civilized countries have chosen to put the human rights court above their own laws, and I hope the US will follow our example. The HR were created to avoid the atrocities of ww2 to happen again. For that to happen, it will first need recognition, which it has. Second, it will need authority, which it only has in a few places in the world.

I assume HR is Human Rights. HR predates WWII.


And no, a charge doesn't have to mean criminal charge.

If charge has any referent to legal discourse then yes, it does. If charge has no tie to legal discourse then I assume there isn't meant to be any attending procedure to what you cited. If that is the case then the phraseology is vacuous.


The HR were created by basically the entire world. It's not like a few people sat down and decided something. And it's special in the case of the US, since they figured heavily in the making of them. If what you claim is correct, then the document is basically completely worthless. Why then do we have a human rights court, and trials where states are punished and they follow the verdict to the letter? So I'll ask you, do you think the document is a waste of paperwork, or is it a good foundation for a civilized society?

The Declaration of Human Rights (DHR) out of the U.N. is a piece of rhetoric. It cannot be taken for more given the legal standing of the U.N. and the moral absurdity that confronts the U.N.

As to the content of the DHR: by and large I think its good stuff. I'm not sure how you'll tie that to the larger argument about habeas corpus which is the focus.

[Boyar Son]

Dude, in brazil one of my cousins got a hold of a video showing a terrorist beheading someone then putting his head on his corpse.

I guess someone shouldve told that terrorist that guy had uneliable (sp?) rights...:spammer:

:nospam: :hmg:

[HoreTore]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.

[Sir Moody]

correct me if im wrong but the reason the EU "follows" the UN's Human rights is becasue the EU has its own bill of Human rights which all members must adhere too ie nothing to do with the UN but the EU which does have legal power over its member nations (and dont they just love using it)

[HoreTore]

correct me if im wrong but the reason the EU "follows" the UN's Human rights is becasue the EU has its own bill of Human rights which all members must adhere too ie nothing to do with the UN but the EU which does have legal power over its member nations (and dont they just love using it)

Not every european state is a member of the EU.

[English assassin]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law...

I don't think anyone said it was unimportant, they said it did not create individually enforceable legal rights.

Which is also true in Europe.

(BTW you may be thinking of the ECHR, although I am afraid you would still not be right.)

In UK law (it would seem from Pindar's post the US is the same) an international treaty, even if we are a signatory to it, has no effect in national courts until it is passed into UK law. (To be strictly accurate, where there is an ambiguity in legislation, it is a rule of construction that the courts assume that parliament will intend to legislate in a way compatible with our international obligations, but otherwise it has no effect). For many years the UK was a signatory to ECHR but it could not be directly pleaded in UK courts.

Membership of the EU complicates matters. ECHR is not an EU document, and its enforcement is outside the scope of the European Court of Justice. However compliance with ECHR rights is held to be a norm of EU law, and, therefore, again, can inform the interpretation and application of EU law. As most EU law appears to be created by people who imagine that half a dozen vague statements strung together by committee constitutes good legal drafting, applying ECHR to interprete the resulting ambiguous clap trap does indeed give considerable scope for ECHR to have legal effects. And EU law does trump national law.

It remains the case though that you cannot bring an action based directly on an ECHR right. And given the content of many of the rights this is probably inevitable.

Well, you can't in the UK. I can't speak for Norway.

[Boyar Son]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.


Lol u europeans soft on suspected terrorist!!:laugh4:

[ajaxfetish]

There's a difference between terrorists and suspected terrorists, just as there is a difference between criminals and suspected criminals. I think we in the US have too much of a tendency of late to assume guilt in anyone suspected of a crime. This I don't like, and I don't think it's healthy.

Morally, I'm on similar ground to Horetore. I have serious issues with the way things have been run at Gitmo, and I think DC has best expressed the kinds of concerns I have. However, HT's arguments in this thread have been fairly sloppy, making statements he can't support and misconstruing what his opponents say.


As for Ajaxfetish' comment, I fully stand by that claim, except that a new one can replace it, though that should happen in the same context that it was created.
That's a little better, since allowing a new one to replace it is basically the same as allowing it to be altered. The Declaration on Human Rights was written by fallible humans, and is certainly subject to error. While I might agree with you that the larger principle of universal rights is untouchable, I cannot agree about a specific document.

Ajax

[Pindar]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.

You are confused, again. Reread my post or note English assassin's post 116.

[HoreTore]

You are confused, again. Reread my post or note English assassin's post 116.

I'm not confused, I'm simply astonished.

[Don Corleone]

I'm not confused, I'm simply astonished.

You're either confused or you're being dishonest. You railed against Pindar's saying that the Human Rights Charter wasn't important and didn't matter.

He never said any such thing.

I don't agree with him on this issue, but I don't need to resort to putting words in his mouth to make a logical argument.

Edit: On the chance that you are in fact really are confused, allow me to explain. Pindar said the UN Human Rights Charter is a piece of rhetoric. Let's say you assumed he meant that it was unimportant or irrelevant. That's not what he meant. The Declaration of Independence is a piece of rhetoric. So is the preamble to the U.S. Constitution. None of these three documents is enforcable law. They are speech, declaring or defending a position. The UN Human Rights Charter is not a body of laws. The UN is not a government. It's an organization. It has no jurisdiction over any particular citizen. It cannot declare that Don Corleone has too many trees in his yard and must cut half of them down. It CAN issue a statement to that affect and call on the State of New Hampshire, the Town of Kingston and/or the United States Congress to pass such legislation. But that statement, without the law being passed by one of the following appropriate authorities, carries no weight. Pindar is highlighting for you that making a statement and having the enforceability of an actual statute are two different things.

[Louis VI the Fat]

The Declaration of Human Rights (DHR) out of the U.N. is a piece of rhetoric. It cannot be taken for more given the legal standing of the U.N. and the moral absurdity that confronts the U.N.


a natural law position that no legal position that goes against the DHR carries, or rather, should carry, legal status.

But this is incorrect Louis. It's not because of the UDoHR that we can argue about contradictions, it's because we've certain moral principles, with or without such Declaration. However Hore clearly wants the Declaration to create a legal obligation. And even if all were right, I don't know why you don't consider it to be an attempt of legal arguement. I did consider it an attempt at a legal argument, but I wasn't interested in that argument itself, nor Gitmo or anything.

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

Sorry for lumping the two of you together btw.

[HoreTore]

Edit: On the chance that you are in fact really are confused, allow me to explain. Pindar said the UN Human Rights Charter is a piece of rhetoric. Let's say you assumed he meant that it was unimportant or irrelevant. That's not what he meant.

Well, the feeling I was left with after reading his posts, was that he didn't think the declaration was important, and that left me pretty astonished, as I've never met a single human being(barring some of the nazi's here, I don't think they have much respect for it) who doesn't believe it to be one of the most important document ever made.

I apologize if I'm mistaken and read too much into his words, of course.

And as for the legal issue, if I haven't made it clear enough, I'll say that I don't really care about whether it's legal or whatever. What I care about, is that it should be the law, treated like it was the law, and respected by every state. Some countries do that, others don't.

Also, I'll say that it doesn't really matter whether it's in a nations law or not. If the states politicians respect it, it's more than enough. The law doesn't really matter at all to the people who can change it. If a US court says that gitmo is legal, then all it takes, is for the politicians to say that it's not, and that will be the final word. Thankfully, no judge can overturn our elected officials...

[Husar]

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.
That sounds very healthy to me.:2thumbsup:

Isn't that the reason why many countries have something like SCOTUS (Bundesverfassungsgericht/Federal Constitutional Court of Germany, I think is the equivalent here) to see whether a new law is constitutional and possibly moral?
I'm really just asking, my legal jargon, unlike yours, is almost nonexistant so please bear with me.

The way I see it, since these judges decide about laws, they cannot always apply laws, but have to use morals and what I'd call wisdom for their decisions. Whether they succeed in that or not is another matter, however.

[Don Corleone]

I think Louis has hit the nail on the head and said in one phrase what I've wasted pages speaking to. While not a legal argument, the question of the detainees at Gitmo not being charged or allowed to know the charges against them offends 'natural law'. Sure, the law may legally allow the suspension of their rights. The law is written by man. But Louis's very eloquent Natural Law argument is one I wish to second.

[HoreTore]

I think Louis has hit the nail on the head and said in one phrase what I've wasted pages speaking to. While not a legal argument, the question of the detainees at Gitmo not being charged or allowed to know the charges against them offends 'natural law'. Sure, the law may legally allow the suspension of their rights. The law is written by man. But Louis's very eloquent Natural Law argument is one I wish to second.

Seconded again. Or would that be "thirded"? :dizzy2:

[Louis VI the Fat]

I wonder, Husar, whether we aren't having one of those continentals versus the rest discussions. It is by no means coincidental that I would've come up with an example of 'racial and genocidal laws'. There's a history to it, eh? Germany, France or Norway, we, our judicial systems, all messed up last time that legal positivism was in vogue.

Here's a famous legal theorist, exemplary for the shift in opinion in (continental?) legal theory from extreme positivism to natural law after 1945:



Gustav Radbruch, born November 21, 1878 in L&#252;beck; died November 23, 1949 in Heidelberg, was a German law professor and political figure.


Life
Radbruch studied law in Munich, Leipzig and Berlin. He passed his first bar exam ("Staatsexamen") in Berlin in 1901, and the following year he received his doctorate with a dissertation on "The lessons of adequate Causation." This was followed in 1903 by his qualification to teach criminal law in Heidelberg. In 1904, he was appointed Professor of Criminal and Trial Law and Legal Philosophy in Heidelberg. In 1914 he accepted a call to a professorship in K&#246;nigsberg (today's Kaliningrad), and in 1914 he accepted one at Kiel.

Radbruch was a member of the Social Democratic Party of Germany (SPD), and held a seat in the Reichstag from 1920 to 1924. In 1921-22 and throughout 1923, he was Justice Minister in the cabinets of Joseph Wirth and Gustav Stresemann. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Walter Rathenau, the Law for the Protection of the Republic.

In 1926, Radbruch accepted a renewed call to lecture at Heidelberg. After the Nazi seizure of power in 1933, Radbruch was dismissed from his civil service post, as the universities were public entities. During the Nazi period, he devoted himself primarily to cultural-historical work. Immediately after the end of the Second World War in 1945, he resumed his teaching activities, but died in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy.





[edit] Work
Radbruch's legal philosophy derived from Neokantianism, which assumes that a categorical cleavage exists between Being (Sein) and Should (Sollen). According to this view, "Should" can never be derived from "Being." Indicative of the Heidelberg school of Neokantianism to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (Being) and philosophical teachings of values (Should).

In relation to the law, this triadism shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation.

The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and security. Radbruch thereby had the idea of utility or usefuleness spring forth from an analysis of the idea of justice. Upon this notion was based the Radsbrucian formula, which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law."

Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.

The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall--the so-called necessity of following orders. Radbruch's theories are posited against the positivist "pure legal tenets" represented by Hans Kelsen and, to some extent, also from Georg Jellinek.

In sum, Radbruch's formula argues that where statutory law is incompatible with the requirements of justice "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of legal positivism for the ease with which Hitler obtain power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of natural law ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights.

In France, like in Germany, the Conseil Constitutionnel, the constitutional council, tests laws not only for compliance with the constitution, but also, since after the war, with general principles of morality. In effect, against the Declaration of the rights of man and of the citizen of 1789, which is assumed to be universal.
Courts too, from the highest to the lowest, can refuse to follow laws and directives that are contrary to general principles of morality as expressed in declarations of human rights.

[Edit: "I wonder, Husar, whether we aren't having one of those continentals versus the rest discussions". apparantly not, Don C. posted while I was typing this post]

[Husar]

I think when it comes to morals I can almost always agree with Don C, he's almost a continental in that regard. ~;)

I think the word judge in itself says that a judge should be able to do more than follow strict guidelines, he should judge a case based on his wisdom(which he hopefully has) and sometimes according to the law.

IMO laws are originally meant to be the written form of morals which are enforced by the state. Of course today we have a whole "industry" around them and they cover a lot more things, but essentially many of them still say "don't steal", "don't kill" etc. We just managed to make them a lot more complicated.:sweatdrop:

[Soulforged]

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.I've to leave something very clear, I'm all about human rights. Between those human rights (politic rights) there's one called the right to self-determination, this is at the center of the UN spirit, and it doesn't matter how contrived it might seem, the americans have decided that none of the Conventions should be ratified, and on this situation I cannot argue more than from a moral point of view, from that moral point of view I see this detention centers as aberrations, but it's an american aberration only...

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.Judges must return, at least in my legal system, to moral principles only as ultima ratio, there's a lot that they've to observe first in order to reach that point. This is simply because every case has to reach a resolution. My opinion is that that shouldn't change, processes and forms should be respected in principle everytime because outside them there's chaos, and this rule should be observed with more care as we escalate on the importance of the position and the decision. There's a process that we can access in my country outside our legal limits, wich is the international process for human rights. As I said this has to be put on context as the US has not accepted such process before the corresponding organs, though I'm of the opinion that they should have done it. What you said is very important Louis, and if now we have certain moral rules introduced in the rigid and sometimes injust structure of law is because of the estimuli of the philosophy of Natural Law. But this same philosophy confuses doctrine with identification too much for the good of its own coherence. There's no need to accept the premises of Natural Law to gain its advantages.

[Pindar]

I'm not confused, I'm simply astonished.

Your astonishment is a reflection of your confusion. See The Don's post: 121 particularly this: "Pindar is highlighting for you that making a statement and having the enforceability of an actual statute are two different things."


Well, the feeling I was left with after reading his posts...

Not to sound harsh, but when reading my posts the actual language I use is important. It trumps feelings.

[Pindar]

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.

My posts have been in response to the positions offered insofar as I could understand them. I asked specifically about whether legal argument(s) were being made and dealt accordingly with such. I have pointed out the distinction between assertion and argument and hopefully justifiability. In short, my posts have looked at the points offered to the table and not any intention that may or may not lie behind them as such is far too nebulous a business.


But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

If one wants to make an appeal to natural law it can certainly be done. If you are interested in such fair I would recommend Russell Hittinger's work. He is a fine advocate for natural law theory. Here's the rub. One cannot sustain a natural law posture without thereby ascribing to the larger metaphysic that grounds such. This can be a problem for a secular government or individual.

[HoreTore]

Your astonishment is a reflection of your confusion. See The Don's post: 121 particularly this: "Pindar is highlighting for you that making a statement and having the enforceability of an actual statute are two different things."



Not to sound harsh, but when reading my posts the actual language I use is important. It trumps feelings.

You still haven't stated whether you support it or not, nor whether you believe it to be good or not. However, I still have the feeling that you do not, so I'll continue being astonished until you correct me.

[Louis VI the Fat]

Judges must return, at least in my legal system, to moral principles only as ultima ratio, there's a lot that they've to observe first in order to reach that point. Naturally, and rightly so.


I have pointed out the distinction between assertion and argument and hopefully justifiability.Naturally, and rightly so.


I would recommend Russell Hittinger's work. He is a fine advocate for natural law theory. Here's the rub. One cannot sustain a natural law posture without thereby ascribing to the larger metaphysic that grounds such. This can be a problem for a secular government or individual.I had never heard of him before. A quick google led me to this interview (http://www.acton.org/publicat/randl/interview.php?id=472) with Hittinger. Is there any work of his, any online essays, that you'd recommend in particular?

Also, strangely enough, I would say that natural law is one of the areas where secular and religious metaphysics can be reconciled. An American Catholic theocon and a secular Euro liberal could find agreement. :yes:



Here's a very interesting article (http://law.bepress.com/cgi/viewcontent.cgi?article=8181&context=expresso). It's a PDF so I can't quote from it. It explains why the Americans think they have the better legal arguments, yet the Euros accusse them of lawlessness in international affairs. It is so much a recapitulation of this thread and similar ones it's untrue....

[English assassin]

You still haven't stated whether you support it or not, nor whether you believe it to be good or not. However, I still have the feeling that you do not, so I'll continue being astonished until you correct me

He did, actually.


As to the content of the DHR: by and large I think its good stuff.


No, what struck me was the ease with which ...Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law.

Well, if a lawyer is not allowed to have a legalistic view of the law, who can?

I struggle with the idea of natural law, qua law. Obviously it may be said to be a natural law that parents love (should love) their children, but in the context of what we would understand by a law, it is a dangerous concept IMHO. Again with apologies for being a tiresome functionalist, for a law to be a law it must in the final degree be enforceable in a court and give rise to real consequences. Otherwise it is comething else, a "nice idea" or an "interesting theory" maybe. Natural law cannot exist in a state of nature, it can exist only in the context of a legal system.

And, as I understand natural law, how does one examine the courts claim to have the right to enforce this law? At least in the UK parliament can legislate to reverse a decision if need be, or to reformulate a whole area if the courts have got in a tangle. What would one do if the courts idea of natural law differed from the people?

Really, other than your faith that the judges would behave wisely, how does this differ from the Stuart claim to rule above the law?*

(*other than the courts having only judicial functions of course)

[Don Corleone]

Pindar,
I disagree with your hinting that an appeal to Natural Law presupposes a higher power. Hobbes talked about Natural Law as that which went against man's nature and proscribing those acts which by their commitment, man would be destroying his inner self (actually rather apropos here). Similarly, nothing in Locke's writings requires a divine being as the guaranteer (sp?) of those inalienable rights. I happen to agree with you that God ulitmately is, but nothing requires a belief in God to accept the existence of inalienable rights and the fundamental nature of man.

I think you're assuming by Natural Law, Louis is borrowing from Aquinas. That's one version of Natural Law, the perfection of the law under man's limited intelligence that approaches, but does not equal divine law. But that's not the only usage.

As long as we're talking about moral imperatives, couldn't I argue that the detention of somebody and depriving him of his liberty without offering proof as to the danger he poses a very un-Christian thing to do? Unlike St. Paul, who I'll grant you seems to endorse better treatment towards Christian brothers than the world at large, Christ Himself actually argues that we are under moral compunction to treat all in the best fashion possible, Christian and non-Christian alike. There is no exception for the 'other'.

[Soulforged]

I disagree with your hinting that an appeal to Natural Law presupposes a higher power. Hobbes talked about Natural Law as that which went against man's nature and proscribing those acts which by their commitment, man would be destroying his inner self (actually rather apropos here). Similarly, nothing in Locke's writings requires a divine being as the guaranteer (sp?) of those inalienable rights. I happen to agree with you that God ulitmately is, but nothing requires a belief in God to accept the existence of inalienable rights and the fundamental nature of man.The concept of Natural Law in Hobbes corresponds the Natural State of the contractualists, it has nothing to do with the philosophy of Natural Law. However, Pindar never said that one has to accept a higher being, what you have to accept is a metaphisical conception of law previous to human positive action, wich is greater than the latter and therefore this one has to fit the previous one. The first one always emmanates from a higher authority, be it God or the Self Evident principles of Law that are presumed known by everyone through rational process.

[Xiahou]

As long as we're talking about moral imperatives, couldn't I argue that the detention of somebody and depriving him of his liberty without offering proof as to the danger he poses a very un-Christian thing to do? Unlike St. Paul, who I'll grant you seems to endorse better treatment towards Christian brothers than the world at large, Christ Himself actually argues that we are under moral compunction to treat all in the best fashion possible, Christian and non-Christian alike. There is no exception for the 'other'.
Only if you're going to claim that it's "un-Christian" to hold POWs, Don.

[Don Corleone]

Alright, fine, perhaps Hobbes was a bad example. What about Immanuel Kant and the Categorical Imperative. Surely you'd agree that's a Natural Law argument, yet he does not rely on the existence of a presupposer that imbued actions with their morality. That was his whole point, some actions are good and morally required just because they are.

I didn't say Pindar said a belief in a higher power was required. I said he implied it. I had not thought of the extension you make of a metaphysical reality, the Just Law, in the absence of human positive action, and you are right, that would satisfy the requirement he issued.

At the end of the day, I don't know how you would describe it in legal circles, or philosophy of law circles. I call it the sniff test. Some things you just don't do, they strike you as wrong even when they may technically permissable. It's not illegal to foreclose on a young widow who just lost her husband in Iraq and has 3 kids. A banker would be well within his rights. But would you want to have a guy like that for a friend?

[Don Corleone]

Only if you're going to claim that it's "un-Christian" to hold POWs, Don.

No, because in the case of POW's, two statements below are true that are not true with the detainees:

1) POWs are allowed contact with the outside world.
2) POWs know at what point they may be released, the cessation of hostilities. Detaining somebody for 3 years is much different than detaining somebody until I get tired of doing so.

I'm not arguing that holding the detainees is immoral. I'm arguing the way we've done it is.

[Xiahou]

No, because in the case of POW's, two statements below are true that are not true with the detainees:

1) POWs are allowed contact with the outside world.
2) POWs know at what point they may be released, the cessation of hostilities. Detaining somebody for 3 years is much different than detaining somebody until I get tired of doing so.

1) As I've already said, they have contact with the Red Cross, who acts as intermediaries with family members, including the sending of letters.
2) Do you know at the outset of a conflict when or if it's going to end? Or are you saying the conflict in Afghanistan is over and the Taliban has ceased hostilities?


I'm not arguing that holding the detainees is immoral. I'm arguing the way we've done it is.I'm afraid you're drinking too much of the Democrat kool-aid when it comes to how it's been done. Specific examples don't speak for the whole. The detainees have been vetted over and over. Is it possible that some non-combatants are still being held? Yes, it's possible. Have some still-dangerous combatants mistakenly been released? Definitely.

To me at least, it seems like you're conflating issues that have happened outside of Gitmo with Gitmo itself. I'm not comfortable with everything the administration has done- but I don't have a big problem with our government detaining combatants at gitmo or elsewhere.

[Don Corleone]

I see. So its your contention that each of the detainees at Guantonomo received a fair hearing at the time of your detention. Each of them was given a list of the charges against them and was made aware of the evidence against them so that they could offer rebuttal. Each and every one of them either failed to make a convincing case that they had been inappropriately identified as combatants, or that they chose not to do so in the first place. And finally, with the appropriate measures taken for the passing of classified data, an autonomous review panel has found that the hearings held above were done in accordance with the spirit of American law, and that basically, there's a massive conspiracy afoot to hide the fact that all these detainees actually had these hearings? If you're right about all of this, than I apologize. But I don't think you are. Do you know when the first military tribunal was held? I'll give you a hint, it wasn't even close to when the detainees got picked up in the first place.

[Don Corleone]

1) As I've already said, they have contact with the Red Cross, who acts as intermediaries with family members, including the sending of letters.
2) Do you know at the outset of a conflict when or if it's going to end? Or are you saying the conflict in Afghanistan is over and the Taliban has ceased hostilities?

1) I don't think this is correct. The Red Cross has been allowed to tour the camps. I don't think they're allowed to visit all the detainees, and I'm pretty darned sure they're not allowed to carry mail back and forth.

2) I didn't say you'd know exactly what date, but at least there's some finite timeline. What's to keep us from holding the detainees for the rest of their natural lives?

[Pindar]

You still haven't stated whether you support it or not, nor whether you believe it to be good or not. However, I still have the feeling that you do not, so I'll continue being astonished until you correct me.

I'm getting the impression you don't actually read my posts. Reread post: 111 and/or English assassin's post: 134.

[Pindar]

I had never heard of him before. A quick google led me to this article with Hittinger. Is there any work of his, any online essays, that you'd recommend in particular?

I haven't read his most recent work: First Grace: Rediscovering Natural Law in a Post-Christian world. This collection of essays: The Tradition of Natural Law: A Philosopher's Reflections (http://www.amazon.com/Tradition-Natural-Law-Philosophers-Reflections/dp/0823206416/ref=sr_1_2/105-9724659-1973205?ie=UTF8&s=books&qid=1181926010&sr=1-2) is good. I didn't see on Amazon another essay collection: "Natural Law Theory" where Hittinger has some good work. I would be surprised if its gone out of print. I've read several journal pieces from him. I think I still have notes from some symposia I attended with him back in the day.


Also, strangely enough, I would say that natural law is one of the areas where secular and religious metaphysics can be reconciled. An American Catholic theocon and a secular Euro liberal could find agreement.

Maybe, but that concord is not apparent.



Here's a very interesting article (http://law.bepress.com/cgi/viewcontent.cgi?article=8181&context=expresso).

Thank you. I liked the article.

[Pindar]

I struggle with the idea of natural law, qua law. Obviously it may be said to be a natural law that parents love (should love) their children, but in the context of what we would understand by a law, it is a dangerous concept IMHO. Again with apologies for being a tiresome functionalist, for a law to be a law it must in the final degree be enforceable in a court and give rise to real consequences. Otherwise it is comething else, a "nice idea" or an "interesting theory" maybe. Natural law cannot exist in a state of nature, it can exist only in the context of a legal system.

And, as I understand natural law, how does one examine the courts claim to have the right to enforce this law? At least in the UK parliament can legislate to reverse a decision if need be, or to reformulate a whole area if the courts have got in a tangle. What would one do if the courts idea of natural law differed from the people?

Really, other than your faith that the judges would behave wisely, how does this differ from the Stuart claim to rule above the law?*

(*other than the courts having only judicial functions of course)

Quite so. Law void of function and legislation is problematic if not the seeds of despotism.

[Pindar]

Pindar,
I disagree with your hinting that an appeal to Natural Law presupposes a higher power. Hobbes talked about Natural Law as that which went against man's nature and proscribing those acts which by their commitment, man would be destroying his inner self (actually rather apropos here). Similarly, nothing in Locke's writings requires a divine being as the guaranteer (sp?) of those inalienable rights. I happen to agree with you that God ulitmately is, but nothing requires a belief in God to accept the existence of inalienable rights and the fundamental nature of man.

Soulforged has answered already. Hobbesian natural law is quite different and has nothing to do with our concern. Locke's view of Natural Law depends on Deity and fits into the larger Christian notion from the Medievals. You mentioned Kant in a separate post so I'll throw that in here. Kant's Categorical Imperative is not natural law. It does not have content, only form. Moreover, it only speaks to the possible coherence of the good will, but remains distinct from the good will. If this isn't clear I can give you counter examples that will demonstrate the point.

To clarify the issue: natural law claims cannot exist in a vacuum. If one says: there is natural law X they need to justify the claim. For example, if I claim a natural law guaranteeing I can listen to disco the wherefore of the claim is before me. Any metaphysical posture that is appealed to runs into the problems inherent with any such appeal. Moreover, a secular polity operates without any necessary grounding metaphysic. This creates a further issue.


As long as we're talking about moral imperatives, couldn't I argue that the detention of somebody and depriving him of his liberty without offering proof as to the danger he poses a very un-Christian thing to do?

You could, but Christian ethics do not determine U.S. policy.

[Xiahou]

1) I don't think this is correct. The Red Cross has been allowed to tour the camps. I don't think they're allowed to visit all the detainees, and I'm pretty darned sure they're not allowed to carry mail back and forth.Well, it is correct-They can meet with all detainees including KSM after he was transferred to Gitmo. Usually they're even allowed confidential meetings. They regularly visit Gitmo and they do carry mail.
The Red Cross also can take messages the detainees write, subject to military censorship, for delivery to their family members, he said. linky (http://www.cbsnews.com/stories/2006/10/12/national/main2085345.shtml)



2) I didn't say you'd know exactly what date, but at least there's some finite timeline. What's to keep us from holding the detainees for the rest of their natural lives?Once Afghanistan is settled, one way or the other, I expect our government to resolve the situation at Gitmo- either prosecute who's still there or release them to their government. If it is settled and we still want to inter them at Gitmo indefinitely and with out charge, come talk to me and I'll be on your side. Since the Taliban and Al Qaeda are very much alive and kicking in Afghanistan, I think we're justified in holding combatants.

[KafirChobee]

Well, it is correct-They can meet with all detainees including KSM after he was transferred to Gitmo. Usually they're even allowed confidential meetings. They regularly visit Gitmo and they do carry mail.linky (http://www.cbsnews.com/stories/2006/10/12/national/main2085345.shtml)


Once Afghanistan is settled, one way or the other, I expect our government to resolve the situation at Gitmo- either prosecute who's still there or release them to their government. If it is settled and we still want to inter them at Gitmo indefinitely and with out charge, come talk to me and I'll be on your side. Since the Taliban and Al Qaeda are very much alive and kicking in Afghanistan, I think we're justified in holding combatants.
Errrrrrrrr? Do you actually read your own links?