Obama closes Gitmo and officially bans torture by Executive Order

[Headless Thompson Gunner]

That's part of the problem.  Even if you've commited warcrimes, you're still considered a POW, and must be treated as such until the trial is over.  From my understanding of the issue, we have a couple of determinations to make:

1.  Were they actually a combatant, deserving to be a POW?  If we can satisfy this requirement, it's an easy 'we can hold them, under the rules and regulations on POWs, for as long as the conflict is going on'.
2.  Did they commit crimes justifying holding a trial, or at least reason to believe they did?  Matters become more complicated if they weren't holding a gun or building a bomb.

It has nothing to do with them committing warcrimes vs not committing warcrimes.

POW status is a privilege reserved for soldiers who were fighting lawfully and honorably.  It's a gentleman's agreement, if you fight honorably we'll treat you honorably if we capture you.  POW status a reward of sorts for doing the right thing in the war: wearing a uniform, not targeting civilians, and so forth. 

We are under no legal or moral obligations to treat terrorists as POWs.  Spies, terrorists, and other such "dirty" fighters aren't awarded any consideration whatsoever under the Geneva Conventions.  This was done deliberately.  These types of people didn't receive any special privileges because they don't deserve any special privileges.

[Headless Thompson Gunner]

I find myself in a similar situation tonight.  I hold the position that the overwhelming majority of the folks in Gitmo don't have any real ties to terrorism and if released they don't pose a threat to the US.  I'm not the only one here that believes that.

In response to that position you whip out an article that says 89% of those released have no ties to terrorism and don't pose a threat to the US.

Who ever said that preventing recidivism was the sole and entire reason people are held in Gitmo?

[De Selby]

It has nothing to do with them committing warcrimes vs not committing warcrimes.

POW status is a privilege reserved for soldiers who were fighting lawfully and honorably.  It's a gentleman's agreement, if you fight honorably we'll treat you honorably if we capture you.  POW status a reward of sorts for doing the right thing in the war: wearing a uniform, not targeting civilians, and so forth. 

We are under no legal or moral obligations to treat terrorists as POWs.  Spies, terrorists, and other such "dirty" fighters aren't awarded any consideration whatsoever under the Geneva Conventions.  This was done deliberately.  These types of people didn't receive any special privileges because they don't deserve any special privileges.

This is completely inaccurate.

POW status is not a privilege with respect to treatment-it is primarily a prohibition on criminal liability for acts that otherwise meet the requirements of criminal statutes (ie, shooting someone).

Because you can't be held criminally responsible for your acts as a POW, other punishments (like being confined to a black hole or tortured) are banned.

Spies and other non-uniformed combatants do in fact have status under the geneva conventions, and are considered as criminals to be treated exactly as....criminals.  In other words, spies and guerrillas get all the same rights that a criminal defendant does.   What they do not get is immunity from punishment for their conduct.  That is reserved for people who meet the requirements for POW status.

[roo_ster]

This is completely inaccurate.

POW status is not a privilege with respect to treatment-it is primarily a prohibition on criminal liability for acts that otherwise meet the requirements of criminal statutes (ie, shooting someone).

Because you can't be held criminally responsible for your acts as a POW, other punishments (like being confined to a black hole or tortured) are banned.

Spies and other non-uniformed combatants do in fact have status under the geneva conventions, and are considered as criminals to be treated exactly as....criminals.  In other words, spies and guerrillas get all the same rights that a criminal defendant does.   What they do not get is immunity from punishment for their conduct.  That is reserved for people who meet the requirements for POW status.

Bzzt!

Lawyer-boy finds a way to lawyer up the process of carrot & stick on the battlefield.

Every non-lawyer derived reference on this topic runs towards HTG's explanation.

[MicroBalrog]

The problem is that this is completely irrelevant. Here is why:

Ahmad is a non-uniformed illegal combatant. He gets captured by Our Guys in Afghanistan while shooting his AK-47 vaguely into the air in their general direction and screaming 'Allah Aqbar'. Nobody here doubts, I think, that this is an illegal combatant and is not accorded the benefits of the Geneva convention or civilian courts.

However, Mahmoud is a suspected Al-Quaeda conspirator. He is captured by Saudi operatives in that country, or perhaps by UK police in London, while supposedly on his way to a terrorist cell meeting. This guy is not an illegal combatant, he is a terrorist suspect.

The problem with Gitmo, IMO, that it holds way too many guys like Mahmoud.

[Headless Thompson Gunner]

Why should hypothetical guys like Mahmoud not be held?

[cassandra and sara's daddy]

supposedly on the way

[MicroBalrog]

Why should hypothetical guys like Mahmoud not be held?

Because they're not combatants. There's a legal system already in place for terrorist suspects like that. They should be tried either under whatever legal system they have in the home country, or (if you insist on trying them in the US for some bizarre reason) in the same one that was used to try domestic terrorists like Tim McVeigh.

[Headless Thompson Gunner]

Because they're not combatants. There's a legal system already in place for terrorist suspects like that. They should be tried either under whatever legal system they have in the home country, or (if you insist on trying them in the US for some bizarre reason) in the same one that was used to try domestic terrorists like Tim McVeigh.

You're kidding, right?

Most terrorists have the tacit support of their home governments.  Many of these countries don't have a meaningful court system at all.  Expecting them to be tried by their home countries is just plain stupid.  Our country doesn't even have a court system that can properly handle these guys, yet you think places like Saudi Arabia and Pakistan would be better choices?

[ronnyreagan]

Most terrorists have the tacit support of their home governments.

terrorist suspect != terrorist.
You keep talking about terrorists, we keep talking about suspects, which is what we're dealing with at Gitmo. How can you justify their imprisonment without a trial, or at the very least decent evidence that they are indeed terrorists?

Our country doesn't even have a court system that can properly handle these guys

Maybe that's something we should have considered before imprisoning them. If that is the case (which I'm not convinced of) then we need to develop a system that can handle them or release them - not just hold them indefinitely without trial.

[roo_ster]

Maybe that's something we should have considered before imprisoning them. If that is the case (which I'm not convinced of) then we need to develop a system that can handle them or release them - not just hold them indefinitely without trial.

I do suspect that system will, in many cases, involve a dead terrorist "suspect" if caught any place outside of CONUS or W Europe.

[Headless Thompson Gunner]

terrorist suspect != terrorist.
You keep talking about terrorists, we keep talking about suspects, which is what we're dealing with at Gitmo. How can you justify their imprisonment without a trial, or at the very least decent evidence that they are indeed terrorists?

Terrorist != common criminal

Confusing terrorists with common criminals is a fundamental error.  They are not similar in any substantive way.  Most of the processes that are ideal for crime and criminal justice are not at all fair, sensible, or judicious when applied to terrorism.  In some cases what works for criminals is not even possible when applied to terrorists.

Maybe that's something we should have considered before imprisoning them. If that is the case (which I'm not convinced of) then we need to develop a system that can handle them or release them - not just hold them indefinitely without trial.

I agree that we should have created a court system capable of fairly handling terrorists and terrorism.  I think the Bush admin didn't push nearly hard enough for this.  I also think the sputtering hatred and condemnation of Bush and Gitmo were a major factor in preventing the creation of a proper court.  In the end thee just wasn't any political will to do this right.

We could fix the existing Gitmo tribunal system so that it would be effective and fair.  We could scrap that system and make a new, better system from scratch.  Or we could stubbornly refuse to do anything sensible in regards to Gitmo and the detainees, and push the detainees through criminal courts that can't do them any sort of justice.  Guess which alternative Obama is going to choose?

[Headless Thompson Gunner]

I do suspect that system will, in many cases, involve a dead terrorist "suspect" if caught any place outside of CONUS or W Europe.

Indeed.  If the official system cannot cope with terrorists, then it may be necessary to use unofficial "solutions" in the field.  And that's unfortunate.

Gitmo at least kept the terrorists alive, healthy, well fed and well cared for.

[MicroBalrog]

Terrorist != common criminal

A terrorist suspect is not a terrorist.

You state that America doesn't have a court system that can deal with terrorists. Yet America has had terrorists - anarchists in the late 19th and early 20th century, right-wing terrorists like the Minutemen in the 1960's, Weathermen, some militant Black nationalist off-shoots, god knows what else - throughout its history. And America got along quite fine with the legal system it had in place at the time to handle them.

Yes, America has a legal system to handle terrorists, and its been in place since Colonial times. It's called jury trials.

[lupinus]

However, Mahmoud is a suspected Al-Quaeda conspirator. He is captured by Saudi operatives in that country, or perhaps by UK police in London, while supposedly on his way to a terrorist cell meeting. This guy is not an illegal combatant, he is a terrorist suspect.

In that case, he should be tried on the evidence.  I am fine and well with a closed court room or a military tribunal in the interest of national security.  But he should be tried in some way, shape, or form.  I'm also OK with him being held in Gitmo in the mean time and interrogated for any information he has, as well as after his trial or tribunal should he be found to in fact be a terrorist.

Guy caught on the battle field with a gun in hand do not require a trial to be held as a POW IMO.  Short of herding his goats in the general area and armed for his own protection or some other legitimate reason to be in the area and be armed.

[Headless Thompson Gunner]

A terrorist suspect is not a terrorist.

You state that America doesn't have a court system that can deal with terrorists. Yet America has had terrorists - anarchists in the late 19th and early 20th century, right-wing terrorists like the Minutemen in the 1960's, Weathermen, some militant Black nationalist off-shoots, god knows what else - throughout its history. And America got along quite fine with the legal system it had in place at the time to handle them.

Yes, America has a legal system to handle terrorists, and its been in place since Colonial times. It's called jury trials.

Terrorist suspect is a non sequitur.  It presumes that there is a process for convicting terrorists of the crime of terrorism.  There is no such system extant at this time.

Modern foreign terrorists aren't very comparable to domestic groups like the Weathermen or the Minutemen.  I suppose that's a little better than comparing terrorists to common criminals, but it still misses the mark.

A much better comparison would be against other foreign agents representing foreign powers at war with the United States. 

The Dasch/Pastorius incident in WWII is a good comparison.  The participants were foreign agents, acting on behalf of foreign powers, conducting war (unlawfully) against the United States.  The solution in that case was a good one.  FDR convened a military tribunal (not a criminal jury trial!) and used it to hang the participants.

Why shouldn't we use a similar military tribunal for the folks at Gitmo?

[De Selby]

Bzzt!

Lawyer-boy finds a way to lawyer up the process of carrot & stick on the battlefield.

Every non-lawyer derived reference on this topic runs towards HTG's explanation.

Why would you be looking for non-lawyer advice on a hugely complicated set of laws that were drafted primarily by...lawyers?

Might that be a good way to skip out on the actual meaning of the law in order to achieve whatever this government or that government wants, as opposed to say, following the letter of the law?

The Geneva conventions are clear on this: POW status is premised on the principle that you can't be tried for conduct that is within the rules of war, even though the same conduct would constitute a crime in the civilian world.

Terrorists and other non-POW category fighters are to be treated as criminals.

The conventions (and every other law on the subject, international AND US) ban torture and indefinite detention without trial absolutely and without exception.

There is absolutely no gray area on this in anyone's law: if the .gov wants to imprison people for life, it must show criminal responsibility.  And if the .gov wants to torture people, it becomes an outlaw government just like Burma.

[MicroBalrog]

Why shouldn't we use a similar military tribunal for the folks at Gitmo?

For the same reason we shouldn't threaten to pack the courts?

[Headless Thompson Gunner]

Why would you be looking for non-lawyer advice on a hugely complicated set of laws that were drafted primarily by...lawyers?

Might that be a good way to skip out on the actual meaning of the law in order to achieve whatever this government or that government wants, as opposed to say, following the letter of the law?

The Geneva conventions are clear on this: POW status is premised on the principle that you can't be tried for conduct that is within the rules of war, even though the same conduct would constitute a crime in the civilian world.

Terrorists and other non-POW category fighters are to be treated as criminals.

The conventions (and every other law on the subject, international AND US) ban torture and indefinite detention without trial absolutely and without exception.

There is absolutely no gray area on this in anyone's law: if the .gov wants to imprison people for life, it must show criminal responsibility.  And if the .gov wants to torture people, it becomes an outlaw government just like Burma.

Ah,  the smugness!  I love it.  Only a lawyer is qualified to read and understand a relatively simple document like the Geneva Convention.

Sorry, SS, but I don't think you'll find many people around here willing to suspend their own thought processes and defer to our supposed "betters" like you lawyers.

[MicroBalrog]

And on this argument you can, of course, ignore most of what SS said.

[De Selby]

Ah,  the smugness!  I love it.  Only a lawyer is qualified to read and understand a relatively simple document like the Geneva Convention.

Sorry, SS, but I don't think you'll find many people around here willing to suspend their own thought processes and defer to our supposed "betters" like you lawyers.

Yeah, the ticket here is that the geneva conventions are actually quite easy to understand-it's pop theories about what they actually contain that set the lawyers off.  This is a case of not reading the law and then pretending that it says something it doesn't, not a case of lawyers having a clever argument about what the law says.

The international documents, including the geneva conventions and protocols, are quite clear on this subject-the only people who dispute the rules are those who want to torture and imprison without trial.

It's sad, but absolutely true, that at least one whole class of accused criminals have more rights, and the government must prove more before it can punish them, in Iran than they do in the United States.

You can judge that something is seriously wrong with your policies when the Iranian mullahs can't even do to their own citizens what your own government can to you.

[Don't care]

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