It's not easy, running a gulag

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Originally Posted by Papewaio

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.

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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....

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?

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Originally Posted by 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?

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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.

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Originally Posted by Xiahou

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:

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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?

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

~;)

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Originally Posted by 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.

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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).

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

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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.

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Originally Posted by Me

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?

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Originally Posted by Soulforged

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?

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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.

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Originally Posted by Me

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.

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Originally Posted by Papewaio

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.)

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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.

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

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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).

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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?

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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.

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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
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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.

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Originally Posted by HoreTore

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.

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So you're not making a legal argument?

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Originally Posted by 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

~;)

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

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.

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.

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Originally Posted by Don Corleone

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?

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I'm not aware of treatment at Gitmo undergoing any great shift- they were treated consistently "all along".

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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?

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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.

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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?

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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...

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?

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Originally Posted by Pindar

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.

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~: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...

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Originally Posted by Pindar

So you're not making a legal argument?

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

[QUOTE=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.

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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?

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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".

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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?

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

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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?

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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.

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

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

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

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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.

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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.

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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.

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Originally Posted by Don Corleone

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?

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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".

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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?

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

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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?

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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.

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

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

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

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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.

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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.

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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.

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Originally Posted by Soulforged

~: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...

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

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Originally Posted by HoreTore

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

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

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Originally Posted by Pindar

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

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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...

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?

I found a really good blog discussing this issue, with a very practical conclusion, 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.

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Originally Posted by Pindar

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".

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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.

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

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

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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.

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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?

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

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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.

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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.

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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?

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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.

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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?"

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Originally Posted by 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.

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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.

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I'm not aware of treatment at Gitmo undergoing any great shift- they were treated consistently "all along".

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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.

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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

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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).

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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.

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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.

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Originally Posted by Pindar

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

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

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Originally Posted by HoreTore

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

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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.

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.

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Originally Posted by KafirChobee

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

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Hello,

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

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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.

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That is not my intent.

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You do have a position? Right?

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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.

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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?

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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.

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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.

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See my posts noted above.

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Are you, Yoo?

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Sometimes.

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Originally Posted by Don Corleone

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.

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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."

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

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Military Tribunals are not trials.

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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.

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

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What we currently do for them does not qualify.

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

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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.

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

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

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I don't understand.

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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?"

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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.

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Originally Posted by HoreTore

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

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See Soulforged's post: 86.