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Restore Habeas, Close Gitmo

By TChris, Section Terror Detainees
Posted on Wed Jun 06, 2007 at 02:22:48 PM EST
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The only way to correct the multiple problems (and embarrassments) at Guantanamo is to close Guantanamo. A good first step would be to restore habeas corpus for Guantanamo prisoners. Two editorial voices in today's newspapers agree that it's time for a change.

From the NY Times:

The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.

It is time to get rid of it.

From the Philadelphia Inquirer:

No other trials under the Military Commissions Act should go forward until Congress acts. A good first step would be for Congress to reinstate habeas rights for the detainees, thereby restoring federal court oversight of a legal situation at Guantanamo that's clearly gone haywire.
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    Restore Habeas, Close Gitmo | 33 comments (33 topical)

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    Green as grass (5.00 / 2) (#5)
    by Dadler on Wed Jun 06, 2007 at 04:33:45 PM EST
    "Can someone point me to any actual damage caused because now our allies don't like us?"

    If you do not think our relationship with the world, our ability to lead and influence positively, is not greatly affected by being respected and admired, well, I'd say we disagree about as much as two people could.  We are people, after all, and you cannot lead if you are not respected.  Period.  Unless you think one can lead merely with the fist.  Which we certainly can, but when we do so in error, as we have done here, we see where it "leads": to chaos and failure.

    When totalitarian China is viewed more positively in the world than we are, it takes no amount of thinking to realize this has ramifications.  When no one listens to you, you are the boy who cried wolf.  And that's pretty much how we are viewed now.  

    That polite response out of the way, I must say that you seem Cheshire-cat content, far too content for the situation at hand.  Because you risk nothing.  So easy to armchair quarterback when other people's families are in harm's way.  Join up, Gabe, don't bee a hypocrital coward.  Join up and fight.  We're all waiting.  Put your money where your mouth is.  'Cause right now your mouth is just flapping like a spoiled child's, and you ain't walkin' the walk.  You talk it, but you're not man enough to walk it.  
    Be a man and enlist.  Or you are just a little boy spilling his milk and crying for mommy to clean it up.

    Again? (1.00 / 1) (#6)
    by Gabriel Malor on Wed Jun 06, 2007 at 04:51:20 PM EST
    Dad, you say "we cannot lead unless we are respected." You say "Totalitarian China is viewed as better than us." But you still haven't pointed to any actual damage.

    The Times editorial:

    There is only one path likely to lead to a result that would allow Americans to once again hold their heads high when it comes to justice and human rights.

    But I routinely do asylum applications for Chinese refugees (not to mention Koreans, Mexicans, Guatemalans, Kurds from Turkey, Russians, and Armenians). They certainly don't seem to be too concerned about the "palpable" damage.

    Can someone point me to any actual damage caused because now our allies don't like us?

    Dad, you once wrote:

    In its common usage, Chickenhawk refers not to disallowing OPINIONS of those who haven't served, but to confront those in power who eagerly SEND others to war having never served themselves.  

    I had the feeling you wouldn't be able to stick to that claim, and now I see that you've changed your mind and joined the "Put up or shut up crowd."

    You say "hypocrite," you say "coward," you say "little boy," you compare me to the Cheshire Cat. That's fine, boo hoo. You don't know anything about me but what I've told you.

    But you don't say what's wrong with my arguments. That's your failure. And that's why I keep coming back.

    [ Parent ]

    no damage at all (none / 0) (#7)
    by Jen M on Wed Jun 06, 2007 at 04:57:33 PM EST
    assuming you never want to trade or make treaties with anyone.

    [ Parent ]
    Oh? (none / 0) (#9)
    by Gabriel Malor on Wed Jun 06, 2007 at 05:03:34 PM EST
    Perhaps you could name a country who has refused to make a treaty or trade with us...

    [ Parent ]
    wait (5.00 / 1) (#17)
    by Jen M on Wed Jun 06, 2007 at 08:26:20 PM EST
    its like pre-iraq invasion, you know, a WARNING

    which occurs BEFORE what you are warning about actually happens?

    You have heard of the concept, I'm sure.

    [ Parent ]

    Here you go. (none / 0) (#21)
    by Edger on Thu Jun 07, 2007 at 08:56:06 AM EST
    Can someone point me to any actual damage caused because now our allies don't like us?

    Here.

    [ Parent ]

    Dadler (none / 0) (#11)
    by jimakaPPJ on Wed Jun 06, 2007 at 05:20:11 PM EST
    You still keep on bringing up the family bit.

    Why?

    You don't want to remember, but it was the Left that wanted the draft eliminated. You got what you wanted, but now you don't want what you got.

    I have commented time and again that I strongly favor Universal Military Service.

    Will you join me in this? And if not, don't you find it hypocritical to complain about people who are merely following the law??

    [ Parent ]

    Super Power of the Universe (none / 0) (#15)
    by squeaky on Wed Jun 06, 2007 at 06:04:33 PM EST
    I strongly favor Universal Military Service.

    Fantasies of world domination, like the Chimp? No, it is now fantasies of domination of the Universe.

    I guess your center of the Universe approach explains why you advocate for neo colonialism.

    Iraq, Iran, Syria, Lebanon, Afghanistan and many others are there for the taking.

    [ Parent ]

    Squeaky (none / 0) (#20)
    by jimakaPPJ on Thu Jun 07, 2007 at 08:48:27 AM EST
    Nope, I'm for fairness.

    You need to serve your country just as much as anyone else.

    [ Parent ]

    I serve (5.00 / 1) (#24)
    by squeaky on Thu Jun 07, 2007 at 12:57:37 PM EST
    every day, without a gun or uniform.

    [ Parent ]
    Do you have any :more: reports from the front? (none / 0) (#22)
    by Edger on Thu Jun 07, 2007 at 09:18:34 AM EST


    [ Parent ]
    edger (none / 0) (#23)
    by jimakaPPJ on Thu Jun 07, 2007 at 12:54:50 PM EST
    needs to serve....also..

    But I doubt the military could survibe him.

    [ Parent ]

    Uhh, no. (none / 0) (#18)
    by Nowonmai on Wed Jun 06, 2007 at 09:42:03 PM EST
    I have commented time and again that I strongly favor Universal Military Service.

    Will you join me in this? And if not, don't you find it hypocritical to complain about people who are merely following the law??

    Considering you are ineligible for being sent to war, I find this 'offer' of yours hypocritical on your part.

    You won't be a target if an IED, you won't be shot at, you won't be screwed over for daring to voice your constitutionally guaranteed freedom of speech after you are discharged.

    Now while I don't agree with what seems to be a 'soldier class' of poor kids who find the military is the only way to get a decent post high school education, I find conscription even worse. One is taking a chance with your life and that you might be called to serve in a battlefield. The other is slavery. There is also the (non)issue with gays in the military, and women in all aspects of the military (there are still areas where women are excluded/barred from serving. And before you tell me to CITE, go to google or army website and look. There are too many to be listed). Unless you want to have yet another subclass of citizens.


    [ Parent ]

    Nowonmai (none / 0) (#19)
    by jimakaPPJ on Thu Jun 07, 2007 at 08:42:01 AM EST
    First, I served 10 years in Naval Aviation, so let's lay the old double standard straw man aside.

    My proposition is simple. Everyone serves two years between high school and college, or age 20 and 22, whichever comes first. This first cut will need to be defined better, but you get the point.

    After that everyone is in the  ready reserve for four years, with two weeks annual training and bi-monthly weekend meetings. After that everyone is in the inactive ready reserve for four years.

    No exceptions except for severe physical or mental problems.

    Anyone who qualifies can join the service, as they can now. The volunteer military would continue much as they do now.

    The purpose of UMS is to provide a ready source of trained people when needed that can be quickly upgraded in their MOS and available for duty.

    1. It is fair. Everyone serves.

    2. Politicians will have the same interest as everyone else. No one's children is left out.

    3. It continues our tradition of having a "citizen army" that can pick up their weapons and defend the country.

    4. It exposes everyone, rich and poor, to the military. Everyone can see the benefits of a military culture, and the downside of a military culture.

    5. This experience will help prevent the professional volunteer military from being isolated from the rest of America.

    UMS is not a Jobs Corp. While it might be used during civil emergencies, that is not its purpose.

    From your comments I take it you have not served.

    Your other culture issues really need to be thought through.

    Conscription was used in the battle to eliminate slavery in this country.

    The issue of Gays seems to be somewhat solved by Don't Ask Don't Tell. Obviously that isn't perfect, and will have to be modified for UMS.

    There are many tasks that can be done that have nothing to do with physical size or strength. If you want women in combat and they can do the job, that certainly works for me.

    So now. Will you join me in my call? Or will you continue to live in a world where your freedom is paid for by someone else while you complain about side issues?

    [ Parent ]

    OFF TOPIC (none / 0) (#32)
    by Sailor on Fri Jun 08, 2007 at 11:25:01 AM EST
    the topic is restoring habeus and closing gitmo.

    [ Parent ]
    Bad facts = bad editorials. (none / 0) (#1)
    by Gabriel Malor on Wed Jun 06, 2007 at 03:39:06 PM EST
    Both editorials suffer from the same problems. In their efforts to decry the state of affairs at Guantanamo Bay, they misunderstand the state of the law and the situation that has developed in the last few days.

    First, neither editorial understands how the designations "enemy combatant" and "unlawful enemy combatant" are applied to detainees or the significance of either designation.

    Referring to the fact that Kahdr and Hamdan were designated "enemy combatant" but not "unlawful enemy combatant" by their CSRBs, the Inquirer puts it like this:

    Now it turns out the Pentagon didn't pay close attention to even the justice-lite procedures for detainees provided by Congress.

    This is strikingly misleading. At the time of these detainees' CSRBs, the military didn't know that they had to declare that the detainees were "unlawful combatants" because the Supreme Court in Hamdi only required the designation of "enemy combatants." Years later, Congress wrote the MCA 2006 and limited the use of military commissions use to "unlawful enemy combatants."

    So, yes, each detainee is going to get a new CSRB to determine the lawfulness of their combatancy. That's a setback for anyone who would like to see the military commissions over and done with, including the detainees. But it's surely not the fault of the military, who couldn't have predicted that Congress would up and change the rules after the fact.

    This is an evolving area of law, and one which the Supreme Court doesn't even understand fully.

    Second, the Times editorial actually advocates immediately freeing those detainees who will not be tried:

    By the administration's own count, only a small minority of the inmates actually deserve a trial. The rest should be sent home or set free.

    Such an act--freeing combatants during war times--is expressly contradicted by international law, which provides that combatants can be held for the duration of hostilities. Justice O'Connor, writing in the 2004 Hamdi case noted that so long as the conflict in Afghanistan continues, Taliban and Al Qaida fighters captured in Afghanistan can be held.

    The Times seems to think that all detainees "deserve a trial" or they must be set free, but that is expressly forbidden by the Geneva Conventions. Only those detainees who fall outside the protection of the Geneva Convetion relating to Prisoners of War can be put to trial. The rest cannot under any circumstances be tried by the United States.

    Quite simply, the Times editorial staff have no clue about the requirements of international law. But that hasn't stopped them from writing misguided pieces like this.

    Finally, I was amused to catch the usual refrain of "But what about our image?" in both editorials. The Inquirer phrased it:

    The damage to America's image as a democracy has been palpable.

    This is a common wail these days, but--as always--I have to ask: who cares? Can someone point me to any actual damage caused because now our allies don't like us? It's not like the French weren't willing to take the lead on talks with Iran. It's not like the Russians refused to sit down at the table with us and North Korea. It's not like China decided to stop selling to us and buying from us.

    I celebrated the Fourth of July in London last year where, at a club, the bartenders (two British, One Danish, and One Czech) put American flags (which we'd brought with us) in their hair or shirts and gave us free drinks. Other club-goers wished us all "Happy Independence Day" (which we really laughed about since no one says it like that back here in the states) and danced the night away. Now maybe it's because there were a whole bunch of Americans there. But no one seemed to mind or mention America's tarnished image.

    This year I'll be in Costa Rica for the Fourth. I'll be sure and keep my eye out for the "palpable" damage to America's image.

    LOL (none / 0) (#3)
    by Jen M on Wed Jun 06, 2007 at 04:24:48 PM EST
    oh yeah, Costa Rica where any vaguely germanic/english accent at all marks you as a norteamericano. With a large population of pensionados. What you hear and what they feel might not be the same thing.

    Especialy if you don't live there.

    [ Parent ]

    Of course they don't (none / 0) (#12)
    by Sailor on Wed Jun 06, 2007 at 05:25:55 PM EST
    First, neither editorial understands how the designations "enemy combatant" and "unlawful enemy combatant"
    Those are fictional terms made up by bushco. They don't exist in American law or International law.

    Any regime that kidnaps people, puts them in secret prisons, and tortures them used to be anathema to American ideals.

    It still is to most Americans.

    And if you don't think our reputation is damaged, travel around the world and see how you get treated by our former allies when they see your passport.

    And frankly, I don't give a f**k that you think your tiny sample of repressed and downtrodden folks convinces you we are still a shining beacon. They are screened before you ever see them. I'm sure the millions of expat iraqis would rather live here than the country we destroyed ... but bushco refuses to let them even apply. Bad sample = bad science.

    BTW, Russia want's to restart the cold war. The US can't get anything done in the UN. The World Bank is rejecting US policies. Latin America is uniting against us etc, etc, etc.

    [ Parent ]

    Again. (none / 0) (#25)
    by Gabriel Malor on Thu Jun 07, 2007 at 01:32:54 PM EST
    Sailor writes:

    Those are fictional terms made up by bushco. They don't exist in American law or International law.

    He has no support for this outrageous claim. That hasn't stopped him from making it repeatedly for at least a year now, despite my sincerest efforts to educate him.

    Once more: determining the legality of combatants has been a central feature of international law since before the Geneva Conventions were created. For example, the Supreme Court in Ex Parte Quirin, a 1942 case involving German prisoners, ruled that they were unlawful combatants and had no right to habeas corpus. The Court described the difference between lawful and unlawful combatants under international law:

    By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

    The Geneva Conventions retained this feature and the Supreme Court has continued to recognize it in recent cases. Justice O'Connor, writing in the 2004 case Hamdi v. Rumsfeld described the effect of combatancy status:

    The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incidents of war. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.

    For whatever reason, upstanding members of the "reality-based" community continue to ignore clearly established international law. Sailor's declaration that the term "unlawful combatant" is something new is one example. The NYTimes editorial which claims that POWs should get trials is another (as I noted upthread, the Geneva Conventions explicitly prohibit giving POWs trials).

    [ Parent ]

    there are no such terms in the GenCons (5.00 / 1) (#26)
    by Sailor on Thu Jun 07, 2007 at 02:20:26 PM EST
    unlawful or illegal combatant.

    and apparently POWs can be tried:Article 93
    Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed during his escape or attempt to escape.

    If they aren't POWs they have to have trials. If they are POWs they can't be compelled to answer questions.

    Torture, kidnapping and secret prisons are illegal under any circumstances.

    [ Parent ]

    Ex Parte Quirin (none / 0) (#27)
    by Sailor on Thu Jun 07, 2007 at 03:36:05 PM EST
    is from before the GenCons and doesn't apply. And my apologies, I had confused the 'unlawful combatant' term with 'enemy combatant' which was bushco's nonsensical made up term.

    [ Parent ]
    Take it up with O'Connor. (none / 0) (#29)
    by Gabriel Malor on Thu Jun 07, 2007 at 03:50:20 PM EST
    Justices O'Connor, Rehnquist, Breyer, and Kennedy approved the designation. Souter and Ginsburg said that Congress had to specifically allow for the designation (which it now has, post-MCA 2006).

    It's all here.


    [ Parent ]

    Combatancy (none / 0) (#28)
    by Gabriel Malor on Thu Jun 07, 2007 at 03:47:01 PM EST
    Sailor writes:

    there are no such terms in the GenCons, unlawful or illegal combatant.

    And he is right: the terms "unlawful combatant" and "illegal combatant" do not appear. (Neither do their opposites.) But that doesn't mean that the concept of lawful combatancy isn't part of international law, nor does it mean that the concept of lawful combatancy isn't included in the Geneva Conventions.

    Sailor, you don't want to believe so strongly that you ignore the evidence in front of your eyes. The Supreme Court agrees with me. It routinely applies the terms of combatancy when discussing detainee cases. Moreover, if you don't believe me or the Supreme Court, you can read the Geneva Conventions for yourself.

    They protect: (1) wounded or sick servicemen, (2) prisoners of war, and (3) civilians. That's it. "Prisoners of War" are defined as the following and no others:

    (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 militias and members of other volunteer corps, including those of organzied resistance movements, belonging to a Party to the conflict...provided that such fulfil the following (cumulative) conditions:
         (a) that of being commanded by a person responsible for his suboardinates;
         (b) that of having a fixed distinctive sign recongizable 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 armed forces without being members thereof (e.g. journalists, non-military medics, etc.)
    (5) Members of the merchant marine and crews of civil aircrafts.
    (6) Inhabitants of a non-occupied territory, who on approach of the enemy spontaneously take up arms to resist. (Levee en masse.)

    And that's it. Other combatants are not protected. Their combatancy is unlawful and they can be subjected to trial for their unlawful acts of belligerancy.

    Second, you are also right to note that I was careless in the final paragraph of my comment. I said that POWs couldn't be tried. What I should have said was that POWs cannot be tried for acts of combatancy. That is made clear if you actually read the quoted paragraph from Quirin.

    But you obviously are having trouble understanding Article 93. It says that a POW can be tried for "an offense committed during his escape or attempt to escape." But not for acts of belligerancy. That is foreclosed by Article 99.

    [ Parent ]

    I have read the GenCons ... (none / 0) (#33)
    by Sailor on Fri Jun 08, 2007 at 12:14:27 PM EST
    ... it's bush who hasn't.
    Other combatants are not protected. Their combatancy is unlawful and they can be subjected to trial for their unlawful acts of belligerancy.
    Not true. And no one in the world is allowed to kidnap, send to secret prisons and torture prisoners of any sort.

    And here's what the GenCons say about it: Article 4
    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.The folks in gitmo were held for years before any tribunal whatsoever saw them.

    And then there's Protocol 1:

    Article 75.-Fundamental guarantees
    [...]
    2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
    (a) violence to the life, health, or physical or mental well-being of persons    , in particular:
    (i) murder;
    (ii) torture of all kinds, whether physical or mental;
    (iii) corporal punishment; and
    (iv) mutilation;

    (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
    (c) the taking of hostages;
    (d) collective punishments; and
    (e) threats to commit any of the foregoing acts.

    POWs are a red herring because bush declared the detainees not to be POWs. (p.s. Quirin doesn't apply anymore, it has been superceeded  by international treaties. And it wouldn't apply anyway, it was about spies on US soil.)

    [ Parent ]

    So... (none / 0) (#2)
    by jarober on Wed Jun 06, 2007 at 04:07:37 PM EST
    When exactly did illegal combatants who are not US citizens get habeas corpus rights in our courts?

    Combining this theory with your open borders stance on immigration, perhaps you could explain to me what the benfits of citizenship are?  If illegals can vote (advocated by you in the past), and illegal combatants get the rights of citizens in the court system, then why do have borders at all?

    since (5.00 / 1) (#4)
    by Jen M on Wed Jun 06, 2007 at 04:25:47 PM EST
    the magna carta

    [ Parent ]
    Depends. (none / 0) (#8)
    by Gabriel Malor on Wed Jun 06, 2007 at 05:02:42 PM EST
    When exactly did illegal combatants who are not US citizens get habeas corpus rights in our courts?

    Those that were held on U.S. territory got habeas corpus rights by statute in 1789. Those that were held outside of U.S. territory never had them until the Supreme Court in 2004 decided in Rasul v. Bush that habeas rights would extend to aliens held at Guantanamo Bay even though that facility is not U.S. territory.

    Aliens held in U.S. custody but not within either U.S. territory or Guantanamo Bay (and who have no other connection to the U.S.) still have no habeas rights.

    [ Parent ]

    Clarification (none / 0) (#10)
    by Gabriel Malor on Wed Jun 06, 2007 at 05:08:04 PM EST
    I should have said that aliens that were held in U.S. territory  got habeas rights by statute in 1789.

    Aliens that were held outside of U.S. territory had no habeas rights until the Supreme Court declared in 2004 that such rights are statutorily extended to Guantanamo Bay.

    And finally aliens held outside of U.S. territory (or Guantanamo Bay) do not have habeas corpus rights.

    Citizens retain the right to habeas corpus at all times, however that right can be limited by appropriate Congressional legislation (as per Justice OConnors opinion in Hamdi).

    [ Parent ]

    Blah, blah, blah (none / 0) (#13)
    by Sailor on Wed Jun 06, 2007 at 05:33:44 PM EST
    The US has always considered that bit of soil on Cuba as American soil. Which is why Cuba didn't attack it. America has a lease and attacking it would be grounds for war. Just like any US embassy in the world is American soil.

    The whole bizarre legal construct that it isn't American soil is only believed by Anal Roberts' law school students and bushco appointees. (pretty much the same thing.)

    [ Parent ]

    Legally Speaking.... (none / 0) (#16)
    by jarober on Wed Jun 06, 2007 at 06:11:16 PM EST
    Gitmo is leased, not owned

    In that case (none / 0) (#30)
    by Repack Rider on Thu Jun 07, 2007 at 07:39:17 PM EST
    Shouldn't the prisoners get their trials in Cuban courts?

    [ Parent ]
    Wha? (none / 0) (#31)
    by Gabriel Malor on Fri Jun 08, 2007 at 12:52:35 AM EST
    No, Cuban courts do not have jurisdiction over the detainees.

    [ Parent ]
    My point exactly (none / 0) (#34)
    by Repack Rider on Sun Jun 10, 2007 at 09:53:06 AM EST
    Cuban courts do not have jurisdiction over the detainees.

    Thank you for seeing my point after I shook it in your face.  As my Dad used to say, "You have a remarkable grasp of the obvious."

    According to the Department of Defense, neither do American courts, so these prisoners have no opportunity to have the reasons for their confinement considered by a disinterested party, nor do they have any information about the duration of the confinement.  We are already aware that they have been tortured while in confinement.

    Since this summary imprisonment and accompanying torture violate the foundation of Western Democracy, I'm sure you agree that these actions on the part of our government literally define the condition we call "unAmerican," and should be grounds for criminal prosecution of those taking part and impeachment proceedings against those who authorized such treatment.

    If you do not agree, please supply your reasons for believing that the Executive Branch does not need a court's permission before imprisoning and torturing any human being they choose to label an "enemy of the state."  

    If you will recall, after the WMD lies were exposed, the revised explanation for the invasion was this exact sort of action on the part of Saddam.  Now we are not only continuing in Saddam's tradition of summary imprisonment and torture, we are doing so in part in facilities built by Saddam for that purpose.

    If you are not ashamed of these actions taken by your country and in your name, you are not a patriot.

    [ Parent ]

    Restore Habeas, Close Gitmo | 33 comments (33 topical)

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