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New Rules Won't Make Military Commissions Fair

By TChris, Section Terror Trials
Posted on Wed Sep 21, 2005 at 09:42:00 PM EST
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by TChris

David Glazier explains why new rules for the military commissions that try suspected terrorists held at Guantanamo -- rules that are supposed to assure the fairness and accuracy of the commissions' decision-making process -- fail to achieve their goal. One of the glaring problems: trial procedures that permit a defendant to be convicted on the basis of "secret evidence" that the defendant is never entitled to see. Is someone in the Bush administration a fan of Kafka?

Glazier's recommendation:

If the Bush administration is really interested in granting the Guantanamo detainees "full and fair trials," as it says, it should start over. Regular court-martial procedures would comply with the Third Geneva Convention without jeopardizing prosecutors' chances of winning their cases. Courts-martial, after all, find defendants guilty all the time. And the court-martial system also has rules for protecting classified evidence, as do the federal courts. There is no need for the United States to violate the customary law of war in the process of prosecuting others for allegedly doing just that.

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    New Rules Won't Make Military Commissions Fair | 29 comments (29 topical)
    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#1)
    by cpinva on Sat Dec 17, 2005 at 01:04:10 PM EST
    kafka couldn't possibly have conceived the bush administration, in his wildest imagination. it makes "the trial" seem reasonable by comparison.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#2)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:11 PM EST
    et al - Glazier refers to the GC. When you read the GC you find two sections of interest. Article 4 defines who is covered. Reading it shows that these people are not covered. Article 5 says:
    Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
    Now, since no doubt has risen, they don't rate a tribunal.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#3)
    by cpinva on Sat Dec 17, 2005 at 01:04:11 PM EST
    ppj, are you truly as much of an intellectual masochist as you appear on here?
    Now, since no doubt has risen, they don't rate a tribunal.
    no, since the administration claims it has no doubts, not quite the same thing. the GC further provides that, where a detainee claims a status different than that asserted by the detaining entity, an objective tribunal will be established to hear those claims, and make a determination based on all evidence. of course, this hasn't been done, because, well, gee, george just knows!

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#4)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:11 PM EST
    cpinva - These people do not meet the qualifications stated in Article 4. They aren't in uniform, they don't carry weapons openly, no identified superiors, etc., etc. So there is no doubt. Period. But, since we have given over 500 tribunals in Gitmo alone, the point appears moot. BTW - Could you provide the article on the "detainee claims?"

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#5)
    by The Heretik on Sat Dec 17, 2005 at 01:04:11 PM EST
    Regarding the Geneva Conventions, it is simply astounding that some can look at the words and come to some dubious conclusions as to the word doubt. Article Five clearly indicates that where there is any doubt at all about whether the person is question is a combatant or has committed a belligerent act, that person shall have full protection of the Convention until that doubt is removed. Since the trials at Guantanamo are themselves cited as attempts to answer these questions, the prisoners should have protection: From Article Five: The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. More on this >HERE For those who take some comfort in the idea that the people at Guantanamo are getting what they "deserve," the presumption exercisized by this government ninety miles from our shores in Cuba might venture across the Florida Straits to our own country sooner than you might think. If you believe arbitrary standards of "justice" apply there, you may not be so comfortable if it is applied to you here, in secret,where you may not tell your story, nor know the entire story told about you.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#6)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:11 PM EST
    The Heretik: What I think is astounding that you make such a claim. Go back through Article 4 and show me where the EC's are covered. And then tell me why the tribunals in Gitmo don't also cover the "doubt" question.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#7)
    by Sailor on Sat Dec 17, 2005 at 01:04:11 PM EST
    The term 'enemy combatant' was made up by bushco, that's why it doesn't appear in the GenCons. It is a meaningless term, like 'compassionate conservatism', or 'axis of evil', they are all concocted PR terms to sell a product.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:11 PM EST
    Charley... Great questions..... I doubt you'll get any legitimate answers here tho?

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#9)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:11 PM EST
    The Heretik and cpinva - Hey guys, I await your answers.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#10)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:12 PM EST
    "These people do not meet the qualifications stated in Article 4. They aren't in uniform, they don't carry weapons openly, no identified superiors, etc., etc" Well, heck, I guess the administration WAS right when it locked up those Kabul taxi drivers, then!

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#11)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:12 PM EST
    Charley... From rea -- Well, heck, I guess the administration WAS right when it locked up those Kabul taxi drivers, then! I rest my case!

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#12)
    by squeaky on Sat Dec 17, 2005 at 01:04:12 PM EST
    CharBBppj-Sad to see how unamerican you all are. You all believe that the rule could never be applied to you as you are all good patriotic Americans. Well you may not always be seen that way by our government, or security forces. What if some one gets elected to be president that decides that you are trouble for him or her. With the enemy combatant rule, you could be locked up forever with no hope of a trial, just because the president decides you are no good and a threat th America. Fortunately for you your hated ACLU will fight to get you out. I would tend to say throw away the key as you lobbied for your own unfair punishment.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:12 PM EST
    Squeaky... Sad to see how unamerican you all are Well, see... I happen to think that wanting to punish people that want to kill Americans is VERY American! Well you may not always be seen that way by our government, Yes...especially if I'm caught running through the streets with an AK-47 shooting at American troops! What if some one gets elected to be president that decides that you are trouble for him or her. As an American citizen (which these combatants are not) I'll take my chances.... but thanks for your concern anyway. Right now, I'm more worried about things happening right now... not what might happen in someones dream way down the road.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#14)
    by Dark Avenger on Sat Dec 17, 2005 at 01:04:12 PM EST
    Some people just don't get it:
    More: There is no law against that. Roper: There is! God's law! More: Then God can arrest him. Roper: Sophistication upon sophistication. More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. Roper: Then you set man's law above God's! More: No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God.... Alice: While you talk, he's gone! More: And go he should, if he was the Devil himself, until he broke the law! Roper: So now you'd give the Devil benefit of law! More: Yes. What would you do? Cut a great road through the law to get after the Devil? Roper: I'd cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
    Link

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#15)
    by john horse on Sat Dec 17, 2005 at 01:04:12 PM EST
    PPJ,
    But, since we have given over 500 tribunals in Gitmo alone, the point appears moot.
    Where are you getting the "500 tribunals" from (please provide link)? According to the article "Two months later (after 9/11), he (Bush) authorized special military commissions to try suspected terrorists. Four cases got under way last August."
    These people do not meet the qualifications stated in Article 4. They aren't in uniform, they don't carry weapons openly, no identified superiors, etc., etc
    Most Americans "aren't in uniform, don't carry weapons openly, and have no identified superiors". Are they illegal combatants. By the way, PPJ, are you in uniform? do you carry weapons openly? Do you walk around with identified superiors? I await your answer.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#16)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:13 PM EST
    John H - For you.
    Special Defense Department Briefing on Status of Military Tribunals - Date 12/20/04
    Again, for explanation/clarification, CSRTs, Combatant Status Review Tribunals, that is the determination if someone is or is not an enemy combatant. So it strictly is or is not an enemy combatant; that's the only determination made by those boards. And if an EC -- that is, if an enemy combatant -- then detained, and then they're scheduled for an administrative review board. So administrative review boards' annual review, they determine if someone should continue to be detained after a determination of an enemy combatant status. So they're the two boards and I'll give you a status of where we are, this time at the end of this year. So as of this morning, we have conducted 507 CSRT tribunals. So we've had hearings for 507 tribunals or for 507 detainees as of this morning.
    Link

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#17)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:13 PM EST
    John H - The discussion was about the GC relative to EC's. So we have determined they are EC's. Some have been released. Over 10 have been recaptured or killed in combat. So. They are EC's they do not meet the requirements under Article 4 or 5.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#18)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:13 PM EST
    Squeaky – You should view this as a progression. The comment I made noted that the EC’s fail to meet the requirements to be covered by the GC under Article 4. I then note that since there is no doubt, Article 5’s requirement for a tribunal to determine status does not apply. cpinva makes a claim that if the prisoner makes any claim then a panel must be used to determine. Where he gets that I do not know, and I have invited him to provide specific details. As of this moment, he has not. I note that the whether or not there is “no doubt,” over 500 tribunals have been provided to determine their status. So actually that point is moot. John H wants a link re the tribunals, which I happily supply. So let us review. Some of these people have been captured in battle. That makes them EC’s. They do not meet the req’s of Article 4 or 5. That removes them from the GC. Some of these people have been captured otherwise. Over 500 per my link have been giving tribunals. Some have been released. The remainder have been designated EC’s and remain in prison. Of those released, at least 10 have been recaptured fighting against the US or killed in combat, so it appears that the burden of proof that the military must provide is strenuous. Of the remaining EC’s some are deemed to have committed crimes worthy of tribunal to determine guilt or innocence. This has been deemed constitutional and was used in WWII. Now, if the above is un-American in your mind, then I suggest that one of us has a serious misunderstanding on several levels. And I suggest that that person is you.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#19)
    by john horse on Sat Dec 17, 2005 at 01:04:14 PM EST
    PPJ Thanks for that information on the tribunals. Lets review the tribunals. The burden of proof is on the accused. The detainees were not provided lawyers to represent them. The detainees could be denied information about how, where, and from whom incriminating information about them originates. Hearsay evidence is admissable. Requests from detainees to present witnesses in their defense were often denied on the ground so being "irrelevant". The question that this raises is how fair this procedure was? If the detainees are required to have tribunals, shouldn't the tribunals be fair?

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#20)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:14 PM EST
    JimakaPJJ The major problem you people have is that the rest of the world looks at the prisoners in Guantanamo as unlawful, indecent and downright criminal. It is the US gulag. And the most obvious proof is that you do not even dare to keep them in the US, they are hidden away in a murky military base somewhere in central america. And you can sit there throwing paragraphs and circular arguments left and right as you want, but this, along with the falsehoods surrounding going to war in Iraq and the cockblocking of a treaty on stemming global warming has made the US look like a nation of ignorant fools.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#21)
    by roger on Sat Dec 17, 2005 at 01:04:14 PM EST
    Jim, I think that you would agree that anyone whose status is in doubt would be entitled to a "competant tribunal". The only question then is whether the current tribunals are "competent". I would suggest that unless these tribunals meet american standards of due process, they are not "competent" tribunals. The problems include such things as burden of proof. As BB states, some prisoners who have been released are actually terrorists. This does not reflect well on the tribunals "competence". The US justice system is not half bad, we don't need to make up a new one.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#22)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:14 PM EST
    John H - In my view the tribunals are fair. You cannot have a US based CJ type system. As I noted, the number released, and the recaptured/killed of quite a few of them indicate the military is working fairly. Adrazar writes:
    They are hidden away in a murky military base somewhere in central america.
    Gitmo is in Cuba, a well known island located in the Caribbean, not Central America. I hope the rest of your information base is not as flawed as your geography. As for the rest of the world, I would remind you that in the past 20 years they have done precious little except sit in the UN and run their mouths while we finished off the Cold War, supported the only democracy in the ME, stopped Iran from taking over the ME, and then Saddam. Since then we have also put down genocide in Kosovo, liberated Afghanistan and removed a supporter of terrorism from power and are in process of giving democracy a chance in Iraq. In the midst of all of these good works, the "rest of the world" let genocide kill hundreds of thousands in Rwanda, Moslems slaughter Christians in Darfur, thousands more in Somali and the Sudan. So I trust you will now understand why I care nothing about what they rest of the world thinks.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#23)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:14 PM EST
    Of course I know Gtanamo is in Cuba, it does not contradict the fact that it is a murky military base in central(ish) america :) And then... Everything that has gone wrong in the world the last 20 years is somebodies others fault and what has been a success is the work of the US. Amazing analysis. What do they feed you at that institution you are in? USA won the cold war all by itself? I am not even going to start on this argument, there is not enough deodorant in the world... Yes, you supported Israel, and you still do. Even though they occupied countries left and right, gave the US along with everyone else the finger when UN security council tried repeatedly to tell them they could not send a whole nation into ghettos (ironic, isnt it) and you still supported them when they developed and produced a couple of hundred nuclear wepons. And that they run some of the most oppressive and murderous occupations the world has seen the last 50 years is of no consequence to the US. The prime minister in that country that personally oversaw the mass murders in Sabra and Shattilla and can not come to several EU countries because he is a wanted war criminal, he is buddy-buddy with your president...And you try to use it yo your countries credit that you uncritically support that country through any crap they pull of? It is a non argument. It is a dud. Any decent person must be critical of this only democracy in the ME (which is not the only democracy in the ME, but thats besides the point). US could not find anything good enough on Saddam so the government had to cook up a coctail of fictous terrorist relations and non existant WMD's. The US president DID have the decency to apologize to the world for letting Rwanda happen...the only people that reacted were some french from the foreign legion, though outnumbered. You did do your part in Bosnia, along with NATO and the UN. And in Afghanistan you actually did the right thing and you have every country in the world with you there. That was a justified war and a noble cause. I do not think you should start bringing up Africa...you have nothing to be proud of there. But this is all nonsense really. The US is a fantastic country, filled with great people and some of the most remarkable minds of today. I dont want to sit here sounding like myself, or everyone I know are fundamentally against the US. But these are lousy times, filled with bad causes, driven by ignorant people. No one can sit by and just say nothing. I think so at least. And so do everyone I know.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#24)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:14 PM EST
    Adrazar - Give it up and look smarter. Cuba isn't in Central America, and most likely hasn't been since the meteor strike that zapped the dinosaurs an eon or so ago.
    What do they feed you at that institution you are in?
    Snarky comment aside, I never said the following:
    Everything that has gone wrong in the world the last 20 years is somebodies others fault and what has been a success is the work of the US
    Why do you write such an obvious inaccurate statement and attribute it to me? I merely noted what we have done while the "rest" has mostly sat on their butts. Your logic needs some of whatever the institution is feeding me. Your rant regarding Israel is noted. It would be more effective if you could show us that if Israel disarmed they would last more than fifteen minutes before their Moslem neighbors destroyed them. Of course you can't, so there goes another illogical position. And we had the "decency" to apologize for letting Rwanda happen? Sir, do you think that it is the job of the US to be the policeman of the world? If so, please be so kind as to start doing what we tell you and quit complaining. Perhaps you can send us a few 100 billions EU to pay for our expenses in Kosovo, keeping the Soviets at bay, etc. Otherwise, tell us why Europe shouldn't clean up Europe's mess and leave us out. Colonialism, etc and etc. I also note the close proximity of Kosovo to "Europe." And the UN only went in after the fact. I guess all the first class airline seats were booked prior to our taking the lead. That and the fact there was no Oil For Food program to steal children's medicine and food money from. Corruption’s color is now pale blue.
    I think so at least. And so do everyone I know.
    You desperately need to study some history. And you obviously need a whole new group of friends.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#25)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:14 PM EST
    Roger - As with most things the devil is in the details. First, these people are not accused of robbing a bank, or even an ordinary murder of passion or for profit. They have been captured/arrested in regards to attacks on the US, and are driven by a fanatic belief that their God wants them to kill non-believers. Obviously the ones captured in battle, etc., are not even in the discussion. Not only have they failed to pass Article 4 and 5, they have also had a tribunal. So they are EC's, not protected under the GC and are lucky to be held by a just and merciful country. In the past they would have been executed with no additional discussion. The ones who have been arrested based on other information are the ones under discussion. As I noted to John H, I think we are giving them a fair hearing. You do not. Let's have a beer and argue football.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#26)
    by roger on Sat Dec 17, 2005 at 01:04:14 PM EST
    Jim, Sorry, I don't watch football ;-) While (on this issue) I aggree with much of what you say, I don't think that the Article 4/5 status has been determined unless the tribunal comports with due process. Due process includes notice, and an opportuntity to be heard. Neither of these requirements appears to have been met in Cuba. Notify them of the allegations, give the lawyers discovery, and have at them. If they are illegals, then you are right, they can be executed under international law. Do it right, and save the housing costs. You could also save on food and lawyers.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#27)
    by john horse on Sat Dec 17, 2005 at 01:04:15 PM EST
    PPJ,
    In my view the tribunals are fair. You cannot have a US based CJ type system.
    If our justice system was run like the tribunals in Guantanamo, would you think that fair? If not, why not? After all, you think that the tribunals in Guantanamo are fair.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#28)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:04:15 PM EST
    John H - We have gone through this before. I do not consider non-citizens to have the same rights as citizens. The base problem is that if you do, and you start to extend US CJ "due process," they will all walk out and 99% of 'em back into combat against us. Like it or not, sometimes you just have to depend on people, in this case the military, to do the right thing and the best thing they can do. Life is not fair. BTW - I have previously commented that I would treat US citizens much more harshly than non-citizens. Membership has its privileges. It also has its responsibilities.

    Re: New Rules Won't Make Military Commissions Fair (none / 0) (#29)
    by john horse on Sat Dec 17, 2005 at 01:04:15 PM EST
    PPJ, Based on your comments, I believe you would agree that if our court system was like the system set up in Guantanamo, a person could not get a fair hearing. Why is a system that would be unfair to citizens, not also unfair to noncitizens?

    New Rules Won't Make Military Commissions Fair | 29 comments (29 topical)