The Legal Framework for Gitmo

[Lemur]

Hot off the presses, the JAG memos from 2003 concerning Gitmo have been declassified, so feel free to give them a read. For context, I found a pretty good commentary on the subject. Representative quote:

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself.

It's always nice to be able to hear a snatch of the real dialogue, and not just pre-packaged spin.

[PanzerJaeger]

Its funny how the whole contrived "Gitmo Contraversy" the media suddenly chose to play up disapeared after the London attacks..

It seems like when people are reminded of just how real the threat is, they arent so receptive to liberal crying about the treatment of terrorists.

[Adrian II]

Its funny how the whole contrived "Gitmo Contraversy" the media suddenly chose to play up disapeared after the London attacks..

Oh, the bomb attacks may have made people temporarily less receptive to the treatment of prisoners at Gitmo, for the same reason people were not receptive to the treatment of Germans after the war.

In the end they will want to uphold certain standards of decency that are at odds with your variety of fascism, such as the presumption of innocence and the humane treatment of detainees who have been found guilty. We don't want to be the next 'Asian' whisked away to Gitmo under the cover of silence or shot in the head eight times on an underground platform, do we?

Another reason why your attitude to torture should be rejected is that it is so ineffective in the fight against terrorism.

That there are soldiers and entire departments in the U.S. military who want to uphold those standards is testimony to the strength of American democracy. I would rather subscribe to what Air Force General Rivers says in the papers:

Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

[Redleg]

That there are soldiers and entire departments in the U.S. military who want to uphold those standards is testimony to the strength of American democracy. I would rather subscribe to what Air Force General Rivers says in the papers:

Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

Ah your getting the jest of the American system now - one of the main reasons I was never overally concerned about Gitmo - because I had faith (and still do) that eventually we would sort out the right way from the wrong way. That it might have created other problems in the mean time - well is also a problem of the American system. But at least we air out our dirty laundry for all to see.

[Hurin_Rules]

Those are fascinating documents. I was especially interested in the way the JAGs noted that the conclusions of the DoD and executive branch were 'contentious' and that some of their recommendations could be considered breaches of domestic US law. When I get more time to look at them, I'll be back.

[PanzerJaeger]

Oh, the bomb attacks may have made people temporarily less receptive to the treatment of prisoners at Gitmo, for the same reason people were not receptive to the treatment of Germans after the war.

In the end they will want to uphold certain standards of decency that are at odds with your variety of fascism, such as the presumption of innocence and the humane treatment of detainees who have been found guilty. We don't want to be the next 'Asian' whisked away to Gitmo under the cover of silence or shot in the head eight times on an underground platform, do we?

Another reason why your attitude to torture should be rejected is that it is so ineffective in the fight against terrorism.

Yet Americans understand the claims of torture to be pure bullshit and that enemy combatants in a time of war do not in fact have the same rights as Americans.

It seems like the MSM saw an opening to pander to the left earlier in the summer. There hadnt been any terror attacks and terrorism had fallen from the spotlight. Senator Durbin made his comments and Gitmo was put up as a sacrificial lamb to the left.

However, to America's credit, people realized just how crazy Senator Durban and those who sympathize with the enemy are and the issue didnt gain any real momentum. The MSM played it up as best they could and still got no where.

The attacks in London put the final nail in the coffin of the Gitmo controversy.. it may rise again like the ugly leftist driven monster it is.. but for now its dead.

[Hurin_Rules]

The attacks in London put the final nail in the coffin of the Gitmo controversy.. it may rise again like the ugly leftist driven monster it is.. but for now its dead.

So the JAGs of the Army, Navy and Air Force are leftist conspirators now? Man, your armed forces must be in trouble...

[Adrian II]

However, to America's credit, people realized just how crazy Senator Durban and those who sympathize with the enemy are and the issue didnt gain any real momentum.

That's where you take the wrong turn time and again, Panzer. Critics of any policy do not, by implication, sympathise with a country's enemies. And doing a 'McCarthy' on every critic of this administration is not going to convince anyone either.

Anyway, the British are going ahead with the prosecution of soldiers suspected of abusing 'terrorists' regardless of the bomb attacks. That's the way to go: you don't shut down democracy in order to save it.

[Redleg]

Panzer.. after Abu Graihb I think it takes a moron to deny that the US Military tortures people.

That was not torture - it was prisoner abuse. While you might think there is no difference - there is a sutle difference. Should I call you a moron because you think different?

[PanzerJaeger]

So the JAGs of the Army, Navy and Air Force are leftist conspirators now? Man, your armed forces must be in trouble...

The JAGs did not call a press conference or stand up on the floor of the US senate and call America a totalitarian country akin to Stalins Russia or Nazi Germany. They did not make such wild statements as "America is shutting down her democracy" like adrian made.

The JAGs acted in the correct fashion. They handled their disagreement with US policy in a respectful, and not traitorous, way.

That's where you take the wrong turn time and again, Panzer. Critics of any policy do not, by implication, sympathise with a country's enemies. And doing a 'McCarthy' on every critic of this administration is not going to convince anyone either.

It seems that I am not the one who needs to convince people of anything. Gitmo was on the chopping block of public opinion and it got no where. People understand the nature of war and what that entails.

Panzer.. after Abu Graihb I think it takes a moron to deny that the US Military tortures people.

And it takes an idiot to assume an isolated incident translates into a policy.

[Red Harvest]

That's where you take the wrong turn time and again, Panzer. Critics of any policy do not, by implication, sympathise with a country's enemies. And doing a 'McCarthy' on every critic of this administration is not going to convince anyone either.

Yep, Dubya has introduced the new McCarthyism and there are a lot of misguided folks swallowing it hook line and sinker. Heaven forbid that one should be tough on terror, yet think the administration is completely bungling this.

[Redleg]

Yet Americans understand the claims of torture to be pure bullshit and that enemy combatants in a time of war do not in fact have the same rights as Americans.

Actually you are incorrect - some of the claims of torture are indeed crap - others have to do with the intent of the laws that govern the military and the treaties that were signed by the United States. The defination of torture and its different interpations lead to this confusion - and its the reasonable and right thing to do - to question the governments actions in regards to its activities. While I don't see minor sleep deprevation, loud music, and other such minor discomfort techinques as torture - it can be argued that these things do indeed fall within the scope of the intent of the anti-torture statues of the United States and International treaties -which I beleive is the jest of the JAG thesis.

It seems like the MSM saw an opening to pander to the left earlier in the summer. There hadnt been any terror attacks and terrorism had fallen from the spotlight. Senator Durbin made his comments and Gitmo was put up as a sacrificial lamb to the left.

Durbin is an politicial animal - he stated what he did to pander to what he believes is his politicial base - it could cost him his next election. Again a free society questions its governments actions. If the governments actions is right - then the defense of the actions by the supporters will have logical basis for their opinion. Emotional appeal - is not a logical method to defend the governments actions.

However, to America's credit, people realized just how crazy Senator Durban and those who sympathize with the enemy are and the issue didnt gain any real momentum. The MSM played it up as best they could and still got no where.

That because many of us understand that it was an emotional appeal - and he got criticized by many groups for his pandering comments.

The attacks in London put the final nail in the coffin of the Gitmo controversy.. it may rise again like the ugly leftist driven monster it is.. but for now its dead.

Oh I don't think it did - Because while I agree holding detainees in GITMO is not against the statues governing the United States Military - nor is it against the Geneva Convention - certain aspects of what is happening there can be seen as illegal according to United States Law and is against the Genva convention.

[Steppe Merc]

Its funny how the whole contrived "Gitmo Contraversy" the media suddenly chose to play up disapeared after the London attacks..

It seems like when people are reminded of just how real the threat is, they arent so receptive to liberal crying about the treatment of terrorists.

Because the media is even easier to distract than a 10 year old with ADD?

I don't think that what the Republicans are doing is McCarythism, however. If that were true, then there would be far more Hollywood actors and directors in jail. In addition don't think any government officials have been accused of being terrorists.

[sharrukin]

These guys are not POW's nor are they civilians. They are 'unlawful combatants', and this means they get due process protections under the UCMJ (Uniform Code of Military Justice), but they are not covered by American constitutional protection, nor the Geneva Convention. They do not get the same protections as a civilian (Noncombatants). Lawful Combatants get the POW protections. Unlawful combatants being saboteurs, spies, bandits and terrorists do not.

Older examples of what was intended.

From 1863 "Lieber Code" (Civil War field manual, art 82):
"Men, or squads of men, who commit hostilities. . . without being part and portion of the organized hostile army, and without sharing continuously in the war . . . are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

http://www.law.umkc.edu/faculty/proj...aw/quirin.html
From Ex Parte Quirin:
". . . an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war . . . "

http://www.genevaconventions.org/

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

In no case does it extend to those who wage war by stealth, in civilian guise, not being commanded by a person responsible for his subordinates, without fixed distinctive sign recognizable at a distance, not carrying arms openly, and not conducting their operations in accordance with the laws and customs of war.

It would IMO apply to the Taliban militia as they are clearly defined as separate from the civilian population (black turbans and scarves) and the PLO militia (again scarves, red checkered IIRC). It would not apply to non-militia terror groups. This doesn't mean these people couldn't be tried for warcrimes, and IMO many of them should be.

In addition the US hasn't signed Protocol I to the Geneva Conventions.

Article 16 of the CAT (Convention Against Torture) would apply as far as I can see.
"undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Guantanamo is under US jurisdiction by any rational standard. Does anyone know why it is held that Guantanamo is exempt from this?

The Uniform Code of Military Justice. Prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134).

The Federal Torture Statute: 18 U.S.C. §§ 2340-2340A clearly applies as well.

I believe that they can be shot (and should be if Al Qaeda) but not tortured. What constitutes torture is of course the question. An execution would require a court or tribunal I believe, but not the extensive kind we are used to. A summary judgement as to the facts would probably be enough.

[Gawain of Orkeny]

McCarthyism, named for Senator Joseph McCarthy of Wisconsin, was a period of intense anti-communism in the United States primarily from 1950 to 1954, when the U.S. government was actively engaged in suppression of the American Communist Party, its leadership, and others suspected of being Communists or Communist sympathizers. During this period people from all walks of life became the subject of aggressive witch-hunts, often based on inconclusive or questionable evidence. It grew out of the Second Red Scare that began in the late 1940s.

Of course the fact that Mc Carthy was for the most part correct is the real falacy here. I suppose there was no communist trying to take over the US. Joe made it all up. If you repeat a lie often and long enough people believe you.

[Redleg]

I believe that they can be shot (and should be if Al Qaeda) but not tortured. What constitutes torture is of course the question. An execution would require a court or tribunal I believe, but not the extensive kind we are used to. A summary judgement as to the facts would probably be enough.

The Hague Conventions of 1907 cover the spefics that a waring party must do in regards to summary judgements for individuals who fall within that catergory.

[sharrukin]

The Hague Conventions of 1907 cover the spefics that a waring party must do in regards to summary judgements for individuals who fall within that catergory.

Thanks I will look into that.