GITMO detainees and Obama's promise

[russ_watters]

The US Supreme Court ruled in 2008 that the detainees cannot be held indefinitely without charges and that detainees have a right to have their cases heard in civilian courts.

http://www.cbsnews.com/stories/2008/06/12/supremecourt/main4175226.shtml

While I disagree strongly with the ruling, it is moot anyway - it was ruled two years ago, and it hasn't happened yet, even with a new Democratic President!

Perhaps even Obama realizes that the USSC's decision is at odds with historical precedent on how fighters captured during war should/must be treated. The idea that they should have a voice in the courts is unworkable and absurd. This is lawyers thinking lawyers are the solution to all problems. Or maybe he agrees with it in principle (hence the campaign promise), but now that he's in office he has found that the position is unworkable.

 

[russ_watters]

In reading-up on the ruling, it looks like it dealt primarily with the minutae of the status of 'Gitmo as a territory or leased property and the applicability of US laws there and ignored the issue of the status of the detainees themselves. From Scalia's dissent:

According to Justice Scalia, the Court's majority's "analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court."

http://en.wikipedia.org/wiki/Boumediene_v._Bush

We kept POWs in the US during WWII - were any of them granted a writ of habeas corpus?

 

[CRGreathouse]

I think they deserve their day in court. It's not obvious to me that this needs to be in civilian courts, given the amount of war-related confidential information that will surely come up. But as that's the Supreme Court's ruling, I think that's the way it needs to be done. We don't need another Worcester v. Georgia...

 

[russ_watters]

I think they deserve their day in court.

Why? Why does the concept of a "day in court" even apply?

 

[CRGreathouse]

Why? Why does the concept of a "day in court" even apply?

Why not? We need some way to determine if they're guilty of whatever we charge them with, and court is the way to do that. Usually I would expect that to be a military tribunal, but a civilian court may be more appropriate, and regardless that's what the SCOTUS ruled.

I'm not sure if you're arguing that they shouldn't be tried (in which case I disagree), that they should be tried in a tribunal rather than a civilian court (in which case I have no major disagreement, just a general respect for the SC), or something else.

 

[nismaratwork]

nismaratwork did not suggest they should be exported for punishment. And someone captured in a war is most certainly not subject to constitutional rights and protections.

Thanks, I didn't mean ER, just standard deportation, or the classic, "You don't have to go home, but you can't stay here." As you say, I don't know of any law or statute that would stop the deportation of enemy combatants who have never been on US soil to begin with.

 

[nismaratwork]

Why not? We need some way to determine if they're guilty of whatever we charge them with, and court is the way to do that. Usually I would expect that to be a military tribunal, but a civilian court may be more appropriate, and regardless that's what the SCOTUS ruled.

I'm not sure if you're arguing that they shouldn't be tried (in which case I disagree), that they should be tried in a tribunal rather than a civilian court (in which case I have no major disagreement, just a general respect for the SC), or something else.

I don't see how a day in court squares with acts of war. If they committed war crimes, then try them, if they are enemy combatants then there is no NEED for a trial. If they are something else, then as has been the case it's all about making up a line of BS as it goes along. I disagree with the last.

 

[CRGreathouse]

I don't see how a day in court squares with acts of war. If they committed war crimes, then try them, if they are enemy combatants then there is no NEED for a trial. If they are something else, then as has been the case it's all about making up a line of BS as it goes along. I disagree with the last.

Sorry if I wasn't clear about the context. I was talking about those who are criminals, but not war criminals.

 

[brainstorm]

nismaratwork did not suggest they should be exported for punishment. And someone captured in a war is most certainly not subject to constitutional rights and protections.

I don't understand. Wasn't the whole purpose of the declaration of independence and the constitution to validate individuals who stand up to their governments the way that the colonists did vis a vis the British government? Isn't the whole point to say, "if you stand up to a government that you believe is unjust, you have these INALIENABLE rights and freedoms?

 

[nismaratwork]

I don't understand. Wasn't the whole purpose of the declaration of independence and the constitution to validate individuals who stand up to their governments the way that the colonists did vis a vis the British government? Isn't the whole point to say, "if you stand up to a government that you believe is unjust, you have these INALIENABLE rights and freedoms?

The DoI is one thing, but it's the Constitution and current jurisprudence, statutes, and precedents which comprises law. A POW is not a citizen, or even a resident entitled to those protections you refer to. They are enemies combatants until the cessation of hostilities, period, and have only the rights granted by the Geneva Conventions.

 

[mheslep]

I don't understand. Wasn't the whole purpose of the declaration of independence and the constitution to validate individuals who stand up to their governments the way that the colonists did vis a vis the British government? Isn't the whole point to say, "if you stand up to a government that you believe is unjust, you have these INALIENABLE rights and freedoms?

Appears you've ignored the last part of Russ's response there:

And someone captured in a war is most certainly not subject to constitutional rights and protections.

George Washington didn't grant habeas and trials to British uniformed prisoners. I'm of a mind that the GITMO detainees should be treated either as POWs or criminals with a right to trial, and the government needs to pick one. That complication aside, I don't default to everyone picked up on a battlefield is entitled to a trial.

Edit: I see nismaratwork beat me to it.

 

[brainstorm]

George Washington didn't grant habeas and trials to British uniformed prisoners.

Why would the colonists demand certain inalienable rights from their oppressors but fail to recognize the same rights for those they oppress, including those British prisoners? I'm seriously wondering about the logic of this. Is it that the colonists did not declare war but merely independence and therefore when British soldiers committed war against them, they renounced rights they could have claimed had they remained peaceful and resisted British military authority? Is the same true for these detainees? If they had resisted military authority seeking war against the US, would they have had the right to claim constitutional rights?

 

[mheslep]

Why would the colonists demand certain inalienable rights from their oppressors but fail to recognize the same rights for those they oppress, including those British prisoners? I'm seriously wondering about the logic of this. ...

First, using the term 'oppress' regarding an act of self-defense which resulted in captured soldiers who were attacking the colonies is to abuse the term. More generally, there's a history to working out the logic of inalienable rights as they dealt with war, criminals, the insane, juveniles and so on. I'm fairly sure Locke covered it in 2nd Treatise..., which is principle origin of Jefferson's concept.

 

[CRGreathouse]

I'm of a mind that the GITMO detainees should be treated either as POWs or criminals with a right to trial, and the government needs to pick one. That complication aside, I don't default to everyone picked up on a battlefield is entitled to a trial.

I think we're in essential agreement here. I agree with your above statements, with the additional caveat that I think that "criminals" is the right designation for most rather than POWs.

 

[nismaratwork]

Appears you've ignored the last part of Russ's response there:
George Washington didn't grant habeas and trials to British uniformed prisoners. I'm of a mind that the GITMO detainees should be treated either as POWs or criminals with a right to trial, and the government needs to pick one. That complication aside, I don't default to everyone picked up on a battlefield is entitled to a trial.

Edit: I see nismaratwork beat me to it.

My Kung-Fu is strong.

You said it in a more complete fashion however.

CRGreathouse: I think you're right, and that the majority of these are criminals and not POWs, but that means trials, and it remains to be seen if these people can be tried with evidence that isn't tainted by a lack of due process. I can just imagine the "fruit of the poisoned tree" analogy being used almost constantly.

Perhaps it's time that the Geneva Conventions have an addendum to deal with the realities of modern asymmetrical warfare.

 

[brainstorm]

First, using the term 'oppress' regarding an act of self-defense which resulted in captured soldiers who were attacking the colonies is to abuse the term.

My point is that it shouldn't matter whether the colonists were viewed as legitimate in their claims of independence or criminal rebels engaged in insurgency against the legitimate sovereign, the British crown. The reason it should not matter is that the constitution is a document that limits governmental power while at the same time allowing the exercise of power by free agents. So, theoretically, anyone who wishes to exercise power or freedom from it should be able to do so within the ideology of republic. Any "state," including "nation states," globally should at least in theory be able to make reference to the US constitution in defining political representation and checks and balances and any individual should be able to make claims to rights. In other words, the US constitution is not a unique operating system for a particular government - it is a general universal document explaining the rights and freedoms of human life. If people choose to deny the validity of the constitution, it's surely their right and within their power, but the rights enumerated are themselves inalienable (i.e. they are natural rights that come from a power beyond human power, whatever that "nature" may be). I don't understand why people deny this aspect of the constitution. Is it because suppression or denial of natural rights offers opportunities to manipulate people to a greater extent than if natural human rights/powers are recognized?

 

[mheslep]

So, theoretically, anyone who wishes to exercise power or freedom from it should be able to do so within the ideology of republic...

The Declaration didn't mean anyone and everyone, at all times, in an absolute sense. There are caveats. Without digging into Locke, surely you can see that, for example, out of self-defense you are entitled to protect yourself from someone breaking into your home even though you might surely deprive the intruder of rights, even his life?

 

[SW VandeCarr]

I agree with your above statements, with the additional caveat that I think that "criminals" is the right designation for most rather than POWs.

It's not clear to me why you take this view. Nearly all the of the original set of detainees were turned over to US forces by the Northern Alliance in the early fighting. I don't understand why you would assume "criminals" would be the right designation without knowing whether the present lot are mostly non-Afghans and therefore more likely to be al-Qaida operatives or supporters. In any case, at most they could be considered as suspects until they are charged. If they are charged, they become defendants as per the USSC ruling. They become criminals if and when they are convicted.

Earlier, you seemed to categorically oppose the POW designation on general principles.

 

[mheslep]

Locke, 2nd Treatise. War by its nature takes away the appeal to a lawful body governing both parties. Without that appeal, the rights otherwise guaranteed (but not granted) by a lawful body are set aside.

19. This is the plain difference between the state of nature and the state of war. Some men -- notably Hobbes -- have treated them as the same; but in fact they are as distant from one another as a state of peace, good will, mutual assistance and preservation is distant from a state of enmity, malice, violence and mutual destruction. A state of nature, properly understood, involves

men living together according to reason, with no-one on Earth who stands above them both and has authority to judge between them​

Whereas in a state of war

a man uses or declares his intention to use force against another man, with no-one on Earth to whom the other can appeal for relief.​

It is the lack of such an appeal that gives a man the right of war against an aggressor, not only in a state of nature but even if they are both subjects in a single society. [The rest of this section expands on Locke’s version in ways that ·dots· can’t easily
indicate.] If a thief has already stolen all that I am worth and is not a continuing threat to me, I may not harm him except through an appeal to the law. But if he is now setting on me to rob me—even if it’s just my horse or my coat that he is after—I may kill him. There is the law, which was made for my protection, but there is no time for it to intervene to save me from losing my goods and perhaps losing my life (and if I lose that there is no reparation). Furthermore, it is the thief’s fault that there is no time for an appeal to the judge that stands over him and me—namely, the law—and so I am allowed to make my own defence, and to be at war with the thief and to kill him if I can. What puts men into a state of nature is the lack of a common judge who has authority; the use of unlawful force against a man’s person creates a state of war, whether or not there is a common judge and (therefore) whether or not they are in a state of nature.

http://www.constitution.org/jl/2ndtr03.htm

 

[CRGreathouse]

It's not clear to me why you take this view. Nearly all the of the original set of detainees were turned over to US forces by the Northern Alliance in the early fighting. I don't understand why you would assume "criminals" would be the right designation without knowing whether the present lot are mostly non-Afghans and therefore more likely to be al-Qaida operatives or supporters.

I assume they are composed of just those you suspect they are. I don't assume that "criminal" is the right designation in the absence of this information.

In any case, at most they could be considered as suspects until they are charged. If they are charged, they become defendants as per the USSC ruling. They become criminals if and when they are convicted.

Of course you're right here. I'm using shorthand -- I mean that they are to be treated by the usual criminal process, not that we are to assume without evidence that they are criminals.

Earlier, you seemed to categorically oppose the POW designation on general principles.

My feelings have not changed since the earlier discussion, or indeed over the last year. The repatriation requirement convinced me that the POW designation was not the right one.

 

[mugaliens]

Why? Why does the concept of a "day in court" even apply?

Yes, actually, it does, and this ideal forms the foundation of both law and order in most civilized countries today. There are obviously some situations where it is superceded by the immediate need to protect one's life and property, such as when someone kicks you front door in, as has happened to two friends of mine. Even then, however, the rule of law, at least in the state in which I live, allows certain, rather deadly actions in response.

When an individual has been detained alive, however, both U.S. and International law apply with respect to their treatment from that point on, the same as if, after kicking in my door, a criminal throws his hands up in the air in surrender. Although technically I could still shoot him and get away with it, I am morally and legally bound to allow the process of law to run its course.

 

[mheslep]

The analogy is more correctly put between home invasion and war as, the criminal law does not apply to the suspects during the home invasion, and criminal law does not apply to captives of other nations during the war. A more useful focus to my mind: defining the limits the time and place of the declared war, so that then criminal law become sovereign again.

 

[mugaliens]

The analogy is more correctly put between home invasion and war as, the criminal law does not apply to the suspects during the home invasion, and criminal law does not apply to captives of other nations during the war. A more useful focus to my mind: defining the limits the time and place of the declared war, so that then criminal law become sovereign again.

I believe I mentioned "U.S. and International law," which encompasses both criminal law, as well as military law and widely recognized law with respect to armed forces.

Even though a country might declare the cessation of armed hostilities, this doesn't mean that the occupied country's criminal law instantly takes over. Both military and international law remain in effect.