Rebuff for Bush on civil liberties

[Adam]

THE Bush administration may be forced to rethink its war on terrorism strategy after two US courts ruled yesterday that detainees should not remain indefinitely in a legal twilight zone.

http://news.com.au/common/story_page/0,4057,8218275%255E401,00.html

Well, now that a US court has agreed with what the world has been saying for two years...

 

[GENIERE]

These decisions will be tested in the Supreme Court so it’s an open issue at this time. My personal position is that all non-military US citizens must have a speedy, open trial, and access to an attorney irrespective of his crime. The burden of proof must be on the government. Some specific evidence and testimony may need to be presented in secrecy.

Those presumed terrorists held in Guantánamo Bay present a more complex issue. I think they cannot be held indefinitely; perhaps after three years be tried in open court with some restriction on evidence. If released they could, should they desire, sue the US government, with the US picking up the tab.

 

[Jonathan]

unfortunately, I am not well informed on Guantanamo Bay, but from what I've heard recently I'd have to agree that it is ridiculus. To hold someone captive, indefinitly, without charging them sounds like abduction to me.

 

[russ_watters]

Its a tough issue. POW's get held until the end of a war.

 

[Adam]

Originally posted by russ_watters
Its a tough issue. POW's get held until the end of a war.

What POWs?

 

[russ_watters]

Originally posted by Adam
What POWs?

Those prisoners could be granted POW status. It would be a step of from where they are now.

 

[Adam]

You seemed to be saying that those people in Cuba should be imprisoned until the end of this alleged war (against an indefinite enemy, for an indefinite period, with indefinite goals), because they are POWs. Which is odd, since they are not POWs.

 

[Njorl]

The case of the the Guantanamo Bay prisoners is difficult. There are no clear rules laid out by international law for their treatment.

The case of Jose Padilla is one-sided and obvious. In 1971 the US congress repealed the law allowing the president to confine US citizens for national security purposes. They then passed a law specifically forbidding it. It will be interesting to see what kind of balloon animal Nino Scalia ties the Constitution into to justify supporting the president on this one.

Njorl

 

[Adam]

Originally posted by Njorl
The case of the the Guantanamo Bay prisoners is difficult. There are no clear rules laid out by international law for their treatment.

Actually there ARE clear laws laid out regarding the treatment of POWs. That's why the USA refuses to admit they are POWs. The whole rest of the world says they are POWs. The fact is, only military might allows the USA to get away with this crap.

 

[russ_watters]

Originally posted by Adam
You seemed to be saying that...

My point (from my first sentence) is that its a difficult issue. Njorl does a good job explaining further.

Actually there ARE clear laws laid out regarding the treatment of POWs. That's why the USA refuses to admit they are POWs. The whole rest of the world says they are POWs. The fact is, only military might allows the USA to get away with this crap.

[bold added] Thats strange - you seem to be contradicting your last post:

You seemed to be saying that those people in Cuba should be imprisoned until the end of this alleged war (against an indefinite enemy, for an indefinite period, with indefinite goals), because they are POWs. Which is odd, since they are not POWs.

[bold added]

Perhaps (as usual it seems), this issue is just a tad more complicated than you have considered.

 

[Adam]

Geez, russ, think abou it. When I said they are not POWs, I was pointing out the idiocy of the situation. They ARE POWs.

And no, it is not that complicated. They are being held in tiny wire cages, without charge, without legal representation. They should be released.

And no, they will not receive fair trials. Convictions (they won't even bother with charges, they'll just convict them of some unspecified crime) will be given so there is a justification for having kept them locked away so long.

 

[russ_watters]

Originally posted by Adam
Geez, russ, think abou it. When I said they are not POWs, I was pointing out the idiocy of the situation. They ARE POWs.

And no, it is not that complicated. They are being held in tiny wire cages, without charge, without legal representation. They should be released.

Well in that case, this is two contradictions then. If they are POWs then they can be held until hostilities end. And if they are/should be POWs, then they are not entitled to legal representation.

You're picking and choosing contradicting parts of the various statuses. You can't have it both ways - and there are more than just two possible choices. They are currently being held as illegal combatants, a status below that of POWs or criminals.

 

[Njorl]

Originally posted by Adam

And no, they will not receive fair trials. Convictions (they won't even bother with charges, they'll just convict them of some unspecified crime) will be given so there is a justification for having kept them locked away so long.

Actually, quite a few have just been released with admissions from the US that they were wrongly interned. Evidently they had been accused of things by vindictive people in Afghanistan for personal reasons, and the claims had not been well investigated. No recompense to them has been proposed as far as I can tell. The US has simply admitted error and released them.

While I find this despicable, it does belie Adam's paranoid, hateful anti-American prophecies that the prisoners will be convicted without trials to post-justify their internment.

The Guantanamo prisoners should at least have some recourse to clarify their standing. It is entirely possible that there is a mix of genuine POWs, illegal combatants, international criminals, and totally innocent non-comabtants in the camps. If there are individual cases in which national security concerns are deemed to outweigh an individual's rights, those concerns must be entered into an evidentiary record, and the ones making the decision to abridge the individual's rights must be noted, so they can be held responsible if they are found to have acted unjustly. Secrecy and justice are not entirely incompatible.

Njorl

 

[Adam]

russ_waters, you have no idea. Follow the bouncing ball.

1) The prisoners ARE prisones of war.

2) The USA says they are not POWs.

3) POWs are entitled to independent inspection, and their treatment to independent review.

4) The USA refuses to allow any independent intervention.

5) There is no such thing as "illegal combatant" or "unlawful combatant" or whatever doublespeak crap Bush has labelled them.

If you wish to learn what legal status those people should have, read the law that matters: http://www.unhchr.ch/html/menu3/b/91.htm However, the USA is going against an international law they signed up for by not following this.

 

[Zero]

My question is : why NOT confer POW status on the gtmo prisoners?

 

[Adam]

Njorl

The US has simply admitted error and released them.

Fantastic. When will we see the rest of them released? Or will the others face the future I predicted? Will those who were abducted and illegally imprisoned for two years have the opportunity to sue the US government for what has happened to them?

While I find this despicable, it does belie Adam's paranoid, hateful anti-American prophecies that the prisoners will be convicted without trials to post-justify their internment.

1) My words might be considered hateful and based on emotion had I not provided evidence at every turn. Read and learn.

2) I find it pathetic that the first resort of the patriot is to attack any criticism with emotional outburts and accusations of bigotry, rather than discussing the pertinent material.

The Guantanamo prisoners should at least have some recourse to clarify their standing. It is entirely possible that there is a mix of genuine POWs, illegal combatants, international criminals, and totally innocent non-comabtants in the camps.

There is no such thing as a Bushspeak "illegal combatant". Read the law I have provided.

 

[amp]

Wow, the question is begged...

What is legal combat? Russ? When conditions deteriorate so far that combat occurs, hasn't legality exited the arena?

 

[russ_watters]

Originally posted by amp
What is legal combat? Russ? When conditions deteriorate so far that combat occurs, hasn't legality exited the arena?

A legal combatant is a uniformed member of a nation's armed forces. They are required by the Geneva Convention to carry an ID card indicating their status as soldiers.
For more detail:
http://en2.wikipedia.org/wiki/Enemy_combatant

1) The prisoners ARE prisones of war.

2) The USA says they are not POWs.

3) POWs are entitled to independent inspection, and their treatment to independent review.

4) The USA refuses to allow any independent intervention.

5) There is no such thing as "illegal combatant" or "unlawful combatant" or whatever doublespeak crap Bush has labelled them.

#1 contradicts your statements that they should be released.

3 and 4 are wrong: the Red Cross has visited them.

5 - addressed above. (note the list of countries that recognizes the term - there may be some familiar ones there)

Originally posted by Zero
My question is : why NOT confer POW status on the gtmo prisoners?

They have been granted most of the rights of POWs. The difficulty though is in defining the war they are POWs of. If its the "war on terror" then Afghanis should be sent back to Afghanistan or the Hague or Washington to stand trial for applicable crimes. For guys from other countries it gets a lot tougher since as the law indicates you can hold them until the end of the war. But this is a tough war to define.

One thing is for sure though: they are not automatically entitled to POW status because they are illegal combatants.

 

[Zero]

Just a general rule of thumb: never trust anyone who wants to limit the rights of groups of people they don't agree with. If things are on the up and up, there is no reason not to play by the rules that allow the most rights to people. I still don't understand what rights it is important for the U.S. to deny prisoners. Should they not have access to a court, at least, to clarify their status?

 

[Jonathan]

As I've said before, I don't know enough about international law, so I'm avoiding the main topic to say that I disagree with this:

Just a general rule of thumb: never trust anyone who wants to limit the rights of groups of people they don't agree with.

The rule of thumb is: Never allow the continued existence of anyone/group who limits the rights of any other one/group only because they disagree.
It doesn't matter what the former wants to do unless there is reason to believe they will. If the former does limit the rights of anyone/group for a just reason, then it might be justified to limit their rights depending on how they do it and to what extent.

 

[Adam]

russ_waters

A legal combatant is a uniformed member of a nation's armed forces. They are required by the Geneva Convention to carry an ID card indicating their status as soldiers.

While I respect the effort you went to in going to the almighty wikipedia, you're just plain wrong again. An enemy combatant is:

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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

 

[Adam]

russ_waters

Now on to other matters...

#1 contradicts your statements that they should be released.

Dude, please think more before typing. The POWs are POWs. From an illegal invasion. They should not have been abducted in the first place. They are currently POWs, and they should be released because the USA conducted an illegal invasion and is basically in the wrong.

3 and 4 are wrong: the Red Cross has visited them.

Are you telling me the US military has allowed an independent review by a party conforming to the Protecting Powers section of the Geneva Convention relative to the Treatment of Prisoners of War, and that the US military has acted upon the recommendations of that party as it has agreed to? Strange, because to me it looks like those guys are still sitting there in wire cages...

5 - addressed above.

Likewise, addressed above. You're wrong.

They have been granted most of the rights of POWs.

Most, huh? Which rights have they been granted? And why should they not be granted all such rights, according to a law the USA agreed to abide by?

The difficulty though is in defining the war they are POWs of.

Again, read the laws in question. There is no difficulty at all in defining this problem. Here it is:

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

One thing is for sure though: they are not automatically entitled to POW status because they are illegal combatants.

You didn't read the laws I provided. There's no such thing as an "illegal combatant". Stop listening to Bush's five minute hate sessions, and start paying attention to the facts. Once again, because you clearly did not read the material I provided, please read the stuff in my previous post about status of combatants.

 

[amp]

Uh... Adam...

Maybe they are not POWs from the info on the illagality of the innvasion ... they sound more like kidnap victims *gasp*

 

[kat]

Originally posted by Adam
Now on to other matters...


Dude, please think more before typing. The POWs are POWs. From an illegal invasion. They should not have been abducted in the first place. They are currently POWs, and they should be released because the USA conducted an illegal invasion and is basically in the wrong.


Are you telling me the US military has allowed an independent review by a party conforming to the Protecting Powers section of the Geneva Convention relative to the Treatment of Prisoners of War, and that the US military has acted upon the recommendations of that party as it has agreed to? Strange, because to me it looks like those guys are still sitting there in wire cages...


Likewise, addressed above. You're wrong.


Most, huh? Which rights have they been granted? And why should they not be granted all such rights, according to a law the USA agreed to abide by?


Again, read the laws in question. There is no difficulty at all in defining this problem. Here it is:



You didn't read the laws I provided. There's no such thing as an "illegal combatant". Stop listening to Bush's five minute hate sessions, and start paying attention to the facts. Once again, because you clearly did not read the material I provided, please read the stuff in my previous post about status of combatants.

This is probably one of the clearest explanations of the legal stance on POW's and Unlawful combatants...from a legal standpoint. It also explains the pro's and cons of POW status versus Unlawful Combatant status and why Bush may have chose the designation he did. It also goes into the possible differences between the Taliban status and that of the AQ. I strongly suggest both you and Zero read it.
WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:

 

[Adam]

Kat

Originally posted by kat
This is probably one of the clearest explanations of the legal stance on POW's and Unlawful combatants...from a legal standpoint.

It's a rather crappy explanation really. Why? Let's look at the guy's misrepresentation of the Geneva Convention:

The criteria are: "(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; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

In fact, the criteria for being a combatant in a conflict are:

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.[/color]

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict[/color] 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;[/color] (In other words, they must be organised, with commanders and all.)

(b) That of having a fixed distinctive sign recognizable at a distance; (No mention of what that sign must be.)

(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.[/color] (This is an important one.)

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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

Now, as described in part 3, all it takes is for these people to be members of a regular armed force, which does not have to be recognised as legitimate by the invaders. No other consideration is necessary. If they are members of an organised military force, they fall under this act as combatants. The author of the article you linked to conveniently forgot to mention this.

 

[kat]

"fulfil the following conditions"
not a few of the conditions, not one or two of the conditons...not only the conditions that ADAM chooses to be relevant but "the following conditions"

The findlaw article covers those which were not covered, how and why they are relevant.

2b and 2d are particlulary relevant.

 

[russ_watters]

Originally posted by Adam
...you're just plain wrong again. An enemy combatant is:

Well, let me see - there's under command, uniformed, displaying arms openly, obeying the laws of war, civilians who take up arms while obeying the above laws, civilians who accompany armed forces in support roles, etc.

Could you please point me specifically to the portion that discusses airline hijackers, suicide bombers, and other terrorists? It must be in there, but I guess I missed it.

They are currently POWs, and they should be released because the USA conducted an illegal invasion and is basically in the wrong.

Illegal invasion? In the wrong? Says who? I guess I missed the UN resolution that said that - could you quote it for me please? In any case, its not relevant to the issue - a pow has the same status regardless of the legality of the war and as such is held until the end of hostilities. You quoted the relevant passage later in that post, ironically enough.

Are you telling me the US military has allowed...

Again. The Red Cross is the organization in question and they HAVE visited the POWs and affirmed they are being treated humanely. Linky: http://www.redcross.org/news/in/intllaw/guantanamo1.html
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20031010/red_cross_guantanamo_031010/CTVNewsAt11?s_name=
The second link says essentially the Red Cross's only complaint is that the prisoners are upset about not knowing their fate, indicating their physical treatment is humane (otherwise they would have said what was not humane about it).

Strange, because to me it looks like those guys are still sitting there in wire cages...

First, I again must have missed this part of the Geneva Convention. Could you quote the part that specifically says that they can't be held in such a manner?

Second, you must have missed it, but they have built an actual prison there.

Most, huh? Which rights have they been granted? And why should they not be granted all such rights, according to a law the USA agreed to abide by?

Again, the US has decided not to grant them POW status under the same reasoning that YOUR COUNTRY uses.

There's no such thing as an "illegal combatant".

Again - YOUR GOVERNMENT seems to think there is. Inconvenient for you I know, but its something you can't ignore.

It's a rather crappy explanation really. Why? Let's look at the guy's misrepresentation of the Geneva Convention:

Maybe its a reading comprehension problem then - the guy used DIRECT QUOTES of the four criteria and you highlighted the wrong thing.

Now, as described in part 3, all it takes is for these people to be members of a regular armed force, which does not have to be recognised as legitimate by the invaders. No other consideration is necessary.

Thats fine. A regular armed force is one that conforms to the rules above it. The guys in 'Gitmo don't qualify - they broke every one of those four (a-d) requirements.

By your own evidence (thanks for providing the quotes, I didn't feel like searching for them), these guys are NOT legal combatants.

 

[Zero]

I'm STILL trying to figure out why these folks shouldn't have POW status, even if they don't officially qualify. What rights does America want to keep them from having, and why is it important to limit those rights?

Mostly, my general question is 'Why does the government fear openess, access to the courts, and a more formal treatment of prisoners?'

 

[russ_watters]

Originally posted by Zero
I'm STILL trying to figure out why these folks shouldn't have POW status, even if they don't officially qualify. What rights does America want to keep them from having, and why is it important to limit those rights?

Mostly, my general question is 'Why does the government fear openess, access to the courts, and a more formal treatment of prisoners?'

I don't think its necessarily about fear, Zero, I think they just plain don't know what to do with them. Frankly though, I do think they should make up their minds and do whatever it is they are going to do, whether it be just letting them go, declaring them POWs and holding them, trying them in military tribunals, trying them in US court, etc. It is taking too long.

 

[Njorl]

Originally posted by Zero
I'm STILL trying to figure out why these folks shouldn't have POW status, even if they don't officially qualify. What rights does America want to keep them from having, and why is it important to limit those rights?

I think it is due to the nature of the conflict. If they are classified as PoWs captured in a war against Afghanistan, they must be repatriated after the fall of Afghanistan. Many of these men are presumed to be engaged in a war against the US that is not limited to Afghanistan. It is assumed they would likely continue fighting the US in some other venue. I think that assumption is probably correct for many of the internees. I also think that it is virtually impossible to tell for which it is correct and for which it is false. However, international law does not provide guidance for conflicts between nations and non-national organizations. Al Qaeda has no nation. You can't technically be at war with it. So, we can not call them prisoners of some war not involving Afghanistan.

Mostly, my general question is 'Why does the government fear openess, access to the courts, and a more formal treatment of prisoners?'

Nominally, they claim that the prisoners could use openness as a means to communicate orders for terrorist acts. I find it hard to believe. There are surely no more than a few in positions of authority. Even so, are there terrorists out there waiting to act? Are they sitting around a table playing cards just waiting for the word to go. No. If there were leaderless terrorists, they've found or promoted new leaders by now.

The prisoners should have some form of legal recourse to appeal their status.

Njorl