David Hicks The farce of Gitmo continues.

[fishbob]

snipped up and numbered for my convenience:

1 - Who says we lose our process? We follow that process whenever we deal with criminals. Those that declare themselves to be holy warriors are something else and get a different process; one that gives them much fewer rights.
. . . . . .
2 - Because they wage war. That’s the reason.
. . . . .

3 - You understand I could say the same about you, right? The Bill of Rights and the US criminal justice system applies to US citizens who commit crimes within the United States. This conversation is about a foreign born non-citizen who waged war against us abroad. Common sense should tell you that a different set of rules might apply.
. . . . . . .

4 - There is nothing unreasonable in saying that those who wage war against us get different treatment from those who merely break our laws.

1 - We lose our process when we arbitrarily change the rules what the offenders declare themselves to be.

2 - They wish they were waging war. What they are doing looks very much like thuggery, thievery, and murderer.

3 - Making up your own definition of war so that you can apply a different set of rules is stretching the boundaries of legalality. And the same conversation is equally relevant to a couple of US citizens that we have talked about at length.

4 - OK. But making up your own definition of war so that you can apply a different set of rules is not particularly reasonable. It is making an end run around the rule of law - and to what purpose? What purpose is served by this different treatment? Showing the rest of the world that the US is hypocritical and sleazy is not in our interest.

 

[athon]

Who says we lose our process? We follow that process whenever we deal with criminals. Those that declare themselves to be holy warriors are something else and get a different process; one that gives them much fewer rights.

Why do you believe this is justified? Rights are not subjective to your acts as a person, but because you are a person. They are declared 'rights' because they mark our behaviour as humans, and exist in order to preserve rationality and humanity.

Again you seem to think that eye-for-an-eye thinking is valid, and somehow rational. It is not. It is emotional and reactive. Do I really need to explain to you why emotionally based responses to social threats don't work?

I don’t see anyone abandoning reason; they’re just applying reasoning you disagree with.

It is emotional reasoning, one based on anger and the desire for retribution rather than addressing the problem at hand. Ok, it might by definition be a form of reason, but it is a poor one.

And there are some situations where this process doesn’t apply. One of those situations is with enemy combatants.

Why? Because you hate them more?

War is a threat to our security, as is any criminal act. Law and defence both endeavour to prevent others from doing us harm. Claiming that 'because it is war' means we create an alternative process which does not reflect the same fundamental ideals as a system of social laws makes no sense.

I’m not concerned about religious thinking, I’m concerned about sub-national groups waging war on civilization. If we were talking about neo-Nazis, communist saboteurs, Survivalists or Reverend Fred Phelp’s church members training themselves in secret terrorist camps in Afghanistan to kill civilians by the thousands, the same would apply to them.

So if it was a national group, it would be different? Why clearly mark out sub-nationals? I'm curious...

As for 'war against civilisation', it's more a 'war against western culture and ideology'. That hardly makes it any better, but it's more a honest description.

You understand I could say the same about you, right? The Bill of Rights and the US criminal justice system applies to US citizens who commit crimes within the United States. This conversation is about a foreign born non-citizen who waged war against us abroad. Common sense should tell you that a different set of rules might apply.

Again, why? The very fact you see your laws as only relevant to US citizens means you loose the very idea of what a legal response to an act is about. Yes, you are right; the letter of your law refers to US citizens. The letter of Australian law is relevant to Australians. However, simply because you're an American who committs a crime here we don't take you out back and shoot you. We retain a sense of proceedings that reflects the fundamental ideals of the law in the first place, ammended to take into account your foreign status. Typically it might mean trialling you according to our laws and sending you home to serve your sentence, as that is perceived as fair and just.

Once again, justice is not served because of any sentimental sympathies we hold or do not hold for the criminal. It is a mark of a rational society.

I think your evaluation of our criminal justice system is a bit utopian. In all honesty we punish our criminals and hope they won’t want to be criminals anymore. The civilizing factor is that it takes the revenge factor away from the individual and places it in the hands of the government. Maybe someday we will be more civilized yet and work on rehabilitation.

Conversely, I think it's sad you seriously embrace the notion of a retributive society. The 'they are bad therefore we'll do bad things to them' results from a sense of satisfaction that they suffer as we suffered. It might be emotionally satisfying for you, but it doesn't work at all at addressing the threats we face.

The treatment of David Hicks does not mark any desire to address the threat; it is one that feels that because he threatened a country's peace and security, he does not deserve justice. For a country to deny anybody justice, and punishes on presumption of guilt without a due process, it says less about the criminal and more about the adolescent immaturity of the government administering it.

Athon

 

[Giz]

Why do you believe this is justified? Rights are not subjective to your acts as a person, but because you are a person. They are declared 'rights' because they mark our behaviour as humans, and exist in order to preserve rationality and humanity.

Again you seem to think that eye-for-an-eye thinking is valid, and somehow rational. It is not. It is emotional and reactive. Do I really need to explain to you why emotionally based responses to social threats don't work?



It is emotional reasoning, one based on anger and the desire for retribution rather than addressing the problem at hand. Ok, it might by definition be a form of reason, but it is a poor one.



Why? Because you hate them more?

War is a threat to our security, as is any criminal act. Law and defence both endeavour to prevent others from doing us harm. Claiming that 'because it is war' means we create an alternative process which does not reflect the same fundamental ideals as a system of social laws makes no sense.



Athon

Enemy combatants in an international war costing thousands of lives are treated differently to common criminals. This is not neccessarily due to morality but instead is driven by practicality.

Sometimes being adult means recognising that the real world is not amenable to perfect solutions. Why do you characterise that as "emotionally based" when your - rather naive - views get a pass?

 

[SimonD]

Well I agree with you, but unless you're claiming David Hicks was raped then your statement is out of place in this discussion.

Are you claiming Hicks was raped?

If so, what is the evidence to support your claim?

Mycoft, that's twice now you have failed to understand what is being said. Go back, start from the beginning post and read from there. It will all make sense then.

I'm I the only one around here who reads the entire thread?

 

[athon]

Enemy combatants in an international war costing thousands of lives are treated differently to common criminals. This is not neccessarily due to morality but instead is driven by practicality.

Really? How is it more practical to deny an enemy human rights, when those same rights are granted to baby rapists? How is it more practical to abandon the process -- a process established in order to make rational decisions about potential threats to society, without passion or undue bias -- simply because it is war?

Your logic means if it is impractical to trial and sentence a suspect captured under allegation of rape, we should just jail him anyway. It is not a question of supposed practicality; it is one of justice, rationality and an unempassioned way of dealing with threats to society.

Sometimes being adult means recognising that the real world is not amenable to perfect solutions. Why do you characterise that as "emotionally based" when your - rather naive - views get a pass?

Are you telling me the reactions of many here towards David Hicks, characterised as 'human garbage', where the support for his denial of legal process and justice is on the grounds of his ideals, his actions and his beliefs, is not emotionally driven? If you honestly feel that, then your 'naive' claim is rather hypocritical.

Athon

 

[Giz]

Really? How is it more practical to deny an enemy human rights, when those same rights are granted to baby rapists? How is it more practical to abandon the process -- a process established in order to make rational decisions about potential threats to society, without passion or undue bias -- simply because it is war?

You're honestly asking why people picked up in firefights, or from al quaida/taliban camps are given different treatment to ordinary criminals? In your world I dont see how one could ever defeat a guerilla insurgency... as long as the enemy didn't wear uniforms, carry photo ID, and carry a signed confession on them, how could any suspects picked up be processed with the same timeliness that we expect of our domestic police?

Given the conditions where these guys are picked up it just doesn't seem practical does it. Now does that mean we should treat them like any other enemy in any other war, or should we effectively declare ourselves voluntarily impotent against them?

Are you telling me the reactions of many here towards David Hicks, characterised as 'human garbage', where the support for his denial of legal process and justice is on the grounds of his ideals, his actions and his beliefs, is not emotionally driven? If you honestly feel that, then your 'naive' claim is rather hypocritical.

Athon

Nice argument from blinkered personal perspective there. Now I don't speak for others, and doubtless people do dislike him (can't think why), but he and his colleagues threaten society in a way that your "baby rapist" does not. Perhaps they feel that imprisoning the enemy for the duration of the war - which has always been standard practice in war - a reasonable, practical, and on balance moral, course of action.

 

[Mycroft]

Since you have more than adequately shown that you are unable to understand when two different issues are being discussed in the same thread, I doubt that I could explain it to you in any terms that you could comprehend.

 

[a_unique_person]

You're honestly asking why people picked up in firefights, or from al quaida/taliban camps are given different treatment to ordinary criminals? In your world I dont see how one could ever defeat a guerilla insurgency... as long as the enemy didn't wear uniforms, carry photo ID, and carry a signed confession on them, how could any suspects picked up be processed with the same timeliness that we expect of our domestic police?

Given the conditions where these guys are picked up it just doesn't seem practical does it. Now does that mean we should treat them like any other enemy in any other war, or should we effectively declare ourselves voluntarily impotent against them?

Are we to treat them as pows? OK, do that then. The conditions the people are being held in a Gitmo do not accord with the Geneva Convention. As it is, there were several UK citizens held there, who were all released, and subsequently set free.

 

[Mycroft]

Are we to treat them as pows? OK, do that then. The conditions the people are being held in a Gitmo do not accord with the Geneva Convention. As it is, there were several UK citizens held there, who were all released, and subsequently set free.

In what specific ways does Gitmo not conform to the GC?

 

[Mycroft]

Why do you believe this is justified? Rights are not subjective to your acts as a person, but because you are a person…

We are not talking about inalienable rights but rights granted under law. The law has always recognized that different people in different circumstances have different rights.

They are declared 'rights' because they mark our behaviour as humans, and exist in order to preserve rationality and humanity.

Says who? Who’s being emotional here?

You’re pulling this argument out of your arse because this is how you feel things aught to be, you’re not describing things how they are.

Again you seem to think that eye-for-an-eye thinking is valid, and somehow rational. It is not. It is emotional and reactive. Do I really need to explain to you why emotionally based responses to social threats don't work?

It has nothing to do with eye-for-an-eye. If that’s what it was about then I’d be all for just summarily executing your baby-killer too.

A soldier is not a policeman. They serve very different functions in society. If you try to turn a soldier into a policeman, he will no longer be able to function as a soldier.

It is emotional reasoning, one based on anger and the desire for retribution rather than addressing the problem at hand. Ok, it might by definition be a form of reason, but it is a poor one.

No. Retribution would be outright killing Hicks. All I’m saying is there is nothing wrong with having kept him prisoner for 5 years. Why? Because he’s not a criminal and doesn’t get a criminal’s rights. He’s an illegal enemy combatant.

Why? Because you hate them more?

No, that’s your straw-man. Hate has nothing to do with it. It’s a simple practical matter where in war enemies can be captured by the thousands or even tens of thousands. Merely being an enemy doesn’t automatically make you a criminal, but it does mean you can be held prisoner.

It’s always been that way.

War is a threat to our security, as is any criminal act. Law and defence both endeavour to prevent others from doing us harm. Claiming that 'because it is war' means we create an alternative process which does not reflect the same fundamental ideals as a system of social laws makes no sense.

Look, the laws of war are different from social laws. It’s always been that way.

So if it was a national group, it would be different? Why clearly mark out sub-nationals? I'm curious...

Other groups that would be comparable to AQ would also be sub-national groups.

As for 'war against civilisation', it's more a 'war against western culture and ideology'. That hardly makes it any better, but it's more a honest description.

I disagree.

Consider Afghanistan as it was under the Taliban to understand what I meant by “against civilization.” Also consider similar Islamic terrorist acts being carried out in Thailand, Indonesia, Jordan, Egypt, India and other non-Western places to understand why your “war against western culture” description is inaccurate.

Again, why? The very fact you see your laws as only relevant to US citizens means you loose the very idea of what a legal response to an act is about.

If you get arrested within the United States, you also get the benefit of the US system of criminal justice, but because you’re not a US citizen, your “rights” may be a bit different. One example is that you could be subject to deportation after you serve your sentence if you are convicted.

That’s life. Not a US citizen, things may work differently for you in the USA.

Of course, if you’re arrested for a crime in Australia, then the rights afforded to a US citizen don’t pertain to you at all, do they?

This isn’t about “the very idea of what a legal response” is, it’s about the nit-picking details of actual law.

Yes, you are right; the letter of your law refers to US citizens. The letter of Australian law is relevant to Australians. However, simply because you're an American who committs a crime here we don't take you out back and shoot you.

No, but you might treat me differently than you would an Australian citizen. Yet another demonstration that sometimes your rights are different depending on who you are and what the circumstances are.

Conversely, I think it's sad you seriously embrace the notion of a retributive society. The 'they are bad therefore we'll do bad things to them' results from a sense of satisfaction that they suffer as we suffered. It might be emotionally satisfying for you, but it doesn't work at all at addressing the threats we face.

I don’t “embrace” anything of the kind, I only recognize what is. “Justice”, at least as it’s practiced by the criminal justice system of any nation, is about taking retribution away from the individual and handing it over to the state. There is a lot of room for improvement in the system.

For a country to deny anybody justice, and punishes on presumption of guilt without a due process, it says less about the criminal and more about the adolescent immaturity of the government administering it.

What makes you think his time at Gitmo is about punishment?

 

[Zep]

IIRC, Hicks was captured in an urban area while riding a bus.

So you are saying that they don't have buses where the Taliban hold sway in Pakistan?

Or that Hicks was actually living in a "populated" area when captured? Or even in a city? If so, doesn't that say even more that he was not really a "Taliban hiding-in-the-hills soldier", and thus his "capture" is even more of a farce?

 

[Mycroft]

So you are saying that they don't have buses where the Taliban hold sway in Pakistan?

No, I'm saying you're making an assumption when you claim Hicks was captured in a tribal region where the Pakistani government doesn't have control.

 

[Zep]

No, I'm saying you're making an assumption when you claim Hicks was captured in a tribal region where the Pakistani government doesn't have control.

He was captured in Pakistan by the Pakistani forces. Doesn't that mean the Pakistani government had/have control of that area? At least a little bit? In daylight hours? I mean, they have buses and it's urban - it's not like it's halfway up the Hindu Kush or anything.

And if Hicks was a "Taliban chief instructor and booster", as claimed by those accusing him of same, wouldn't that same location logically be approximately near where the Taliban were/are? And thus where it might be conceivable that OBL was/is?

Just a thought...

 

[gumboot]

We need some cleaning up of definitions here or things will get confusing...

International Armed Conflict - any trans-border conflict of arms involving two or more national armed forces or armed organisations or militias. Under the Hague Conventions a nation is required to declare a state of war before partaking in an armed conflict, however failure to do so does not in any way affect the "international armed conflict" status of the ensuing conflict.

Enemy Combatant - any person involved directly or indirectly in the waging of the armed conflict, that belongs to the opposing side.

Protected Person - those persons located inside the theatre of armed conflict that are afforded special status under the Hague Conventions, Geneva Conventions, and Additional Protocols. These include:
A) - civilian populations - people not involved directly in the armed conflict who normally live in the theatre of armed conflict.
B) - Refugees - people not involved directly in the armed conflict who have been displaced by the armed conflict.
C) - Diplomats - persons having diplomatic status
D) - UN Peacekeeping Forces - Any armed or unarmed military or civilian forces operating under the flag of the United Nations in a Peace Keeping function.
E) - Prisoners of War - any enemy combatant (see above) who has surrendered their arms, has been processed, and is being detained by your forces.

Unlawful Combatant - Any person partaking in an armed conflict unlawfully (such as a mercenary or spy). Unlawful Combatants are not afforded protection under the Laws of War and will often face summary execution. However, if detained they must be treated as a Protected Person (see above) until such time as a Military Tribunal determines their Unlawful Combatant status.

Let's try use the correct terms to avoid confusion.

-Gumboot

 

[Zep]

So Hicks is designated as not an "unlawful combatant"??

 

[gumboot]

So Hicks is designated as not an "unlawful combatant"??

Frankly I'm not sure what the US considers him to be, and I'm not sure they know either!

But according to my understanding of the law, since he has been detained, he has to be treated the same as a POW until such time as his "unlawful combatant" status is determined by a Military Tribunal.

This is where the USA have gone TOTALLY off the rails. They seem to be preparing to bring CHARGES against him and put him to TRIAL.

Until such time as a Military Tribunal determines his status (and note, this is NOT a trial in any way, shape or form) he is a POW, and here's the kicker... you can only charge a POW with crimes he has committed WHILE IN YOUR CUSTODY. For example if it's illegal under US law to kill someone, and a POW murders someone (be it a guard or another POW) they can be charged with murder under US law and tried accordingly. However the US are not charging him with crimes committed while in US custody.

The whole thing is lost in la-la land. And I'm frankly finding it utterly amazing that a number of alleged law experts making comments about the case are making all sorts of stupid remarks that clearly show they are thinking in civil terms, not in armed conflict law terms, yet at the same time everyone seems to be ignoring the ACTUAL legal requirements and facts as per laws of armed conflict.

Frankly the whole detainee thing has me convinced the entire western world has totally lost the plot.

-Gumboot

 

[Zep]

It seems to me to be a case of making up the rules to suit their own prejudices, and then acting pouty petulant when (1) someone pointed out they couldn't do that after all, and (2) people demanded they cease and desist. That is, a bunch of spoiled bullies.

I must point out that this opinion does not extend to all the USA, just a very select bunch of people.

 

[gumboot]

It seems to me to be a case of making up the rules to suit their own prejudices, and then acting pouty petulant when (1) someone pointed out they couldn't do that after all, and (2) people demanded they cease and desist. That is, a bunch of spoiled bullies.

I must point out that this opinion does not extend to all the USA, just a very select bunch of people.

Yeah but what's so stupid is if they followed the law they could more easily get what they want.

Put it this way.

Under the laws of armed conflict, you don't need to put someone on trial to determine their status. You put them before a military tribunal. The rules for evidence, the rights of defendant, etc... in a military tribunal are very different to a civil court.

Once he has "unlawful combatant" status he's screwed, no trial needed. By ruling of the tribunal he is in violation of international law, has no rights whatsoever under the Geneva Conventions, and can be executed at the US Military's leisure, no appeal permitted.

Seems to be, the US Government has forged their own brain-bending path because they're trying to keep the liberals happy who would go into fits if the US Government did what I've described above.

Those that want to try apply civil law to an international armed conflict want to see each of the detainees put through a speedy fair American civil trial, found not guilty or whatever charge is invented through lack of evidence, and set free.

The problem is there's nothing whatsoever in the laws of armed conflict that guarantees fair civil trial to a detainee, and indeed, until such time as a military tribunal determines they are unlawful combatants, it's completely ILLEGAL to put the detainees on trial.

I'm getting a headache...

-Gumboot

 

[a_unique_person]

Yeah but what's so stupid is if they followed the law they could more easily get what they want.

Put it this way.

Under the laws of armed conflict, you don't need to put someone on trial to determine their status. You put them before a military tribunal. The rules for evidence, the rights of defendant, etc... in a military tribunal are very different to a civil court.

Once he has "unlawful combatant" status he's screwed, no trial needed. By ruling of the tribunal he is in violation of international law, has no rights whatsoever under the Geneva Conventions, and can be executed at the US Military's leisure, no appeal permitted.

But what makes him an 'unlawful combatant'?

 

[Zep]

That may all be so - I have no doubt that military justice can be very different to civil justice.

But it would seem VERY clear that until such time as Hicks does appear before a military tribunal and has his status determined, he DOES have certain rights accorded to him...which seem to be being denied even now. What's worse is the attitude that deliberately attempts to ignore the requirement.