It's not easy, running a gulag

[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.

[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
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?

[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.