Habeas Corpus Restoration Act

[Garrette]

..which is provided for by the MCA - including civilian review of tribunal convictions - same as it ever was. In 1942 (?), when the Quirin petitioners sought relief by way of writs in federal court, they were refused for lack of jurisdiction until the tribunal system had rendered judgment. At that point, the courts granted their writ of certiorari but found that the defendants did in fact fall under the class of persons for whom writs of habeas had been suspended by Congress and that Congress did have the power under the US Constitution to suspend writs.

I'll defer on this point as I have exactly zero legal expertise on the topic.

Speaking as a military person, do you believe that combatants whose main tactic is acts of perfidy against civilian population should be subject to the same rules of treatment as uniform combatants that as a whole obey the laws and customs of war?

It is either that or treat them as civil criminals. In the former case, they are entitled to certain rights, humane treatment, release upon cessation of hostilities, and contact with the outside world (through the IRC or equivalent). In the latter case, they have protections for basic rights, including legal representation and, at some point, identification of charges and a subsequent trial.

If there is a third option, please outline it for me.

Let's put you in charge of a platoon tasked with clearing a stretch of highway for an upcoming logistics sortie. After reaching the first village, you follow your ROEs issued by HHQ and ask the local imam for a visit to the mosque. You are invited for the tour the following morning. That night, your platoon is engaged from the mosque with heavy losses. After you re-form and lick your wounds, you resume the clearing op in the next village. You pull out your trusty ROEs and pay a visit to that local imam to ask for a tour...

I don't understand your point here. The scenario involves combat from an unexpected quarter. Does my hypothetical ROE prohibit me--contrary to Geneva-Hague--from returning fire on the mosque? If so, I challenge you to find a similar ROE in real life.

And to be a bit persnickety, if I took heavy losses, it is unlikely I would resume my clearing op.

Combatant responsibilities aren't little technicalities should be overlooked in order to give a sense of warm-n-fuzzies - they are a promise to the opposing force that if they agree to work to ameliorate the affects of armed conflict on the surrounding non-combatant population that this agreement will not be used as a tactical advantage to the extent possible.

Those who are signatories to such agreements have such responsibilities. If the local insurgent cell does not represent a signatory, then it has no legal requirement under the Laws of War to do such. You and I may agree it has a moral requirement, but that is a different thing altogether.

The reward, as set by the Hague and latter the Geneva Conventions is a special set of protections for captured combatants among others.

Yes. I still don't follow your point.

 

[gnome]

Detainees are sorted by the Combatant Status Review Tribunal - which goes well beyond the Article 5 requirement of a finding by a "competent tribunal." Putting aside the separation of powers issues for a moment, do you really think that a jurisdiction-shopped federal judge is equipped to set rules of engagement for combatant commanders serving in a war zone thousands of miles away?

A couple of responses...

Simple answer? No, I don't think so.

Regardless...

1. If there is no right to habeus corpus what if a detainee was NOT sorted by the CSRT? They have no right to challenge their detainment anyway.

2. I do not wish to put aside the separation of powers issue, for that is paramount in the matter of improperly held detainees.

3. It is not the in-battle rules of engagement I have issue with, but the fate of the detainee once they are safely detained.

ETA: You seem to be under the mistaken impression that I want field commanders to second-guess their decisions on whether to hold someone. I don't. They should do what they feel they must--and in almost all cases, they should suffer no repercussions if it later turns out the detainment was invalid...

Also I am concerned with other prisoners that had nothing to do with the battlefield being shunted into this loophole.

 

[gnome]

Still out there, Cylinder...? It was just getting interesting.

 

[WildCat]

Yes. I still don't follow your point.

I think his point is what is the incentive for combatants to follow the laws and customs of war if they are to receive the same protections under Article 4 anyway?

 

[Mephisto]

The Constitution allows for the removal of habeus corpus. But it should only be removed when the situation does not allow us to perform a proper investigation or an extreme emergency exists.

Those in Gitmo may or may not be guilty. As a skeptic, wouldn't you want to see evidence of guilt BEFORE locking someone away?

I agree. I think it's also relevant that the US was so concerned about the treatment of the British Marines and Sailors yet we're willing to do far worse to our "detainees."

Here is some interesting info:

Most Gitmo detainees freed after transfer

Four-fifths of ‘vicious killers’ released after return to home countries

The Pentagon called them "among the most dangerous, best-trained, vicious killers on the face of the Earth," sweeping them up after Sept. 11 and hauling them in chains to a U.S. military prison in southeastern Cuba.

Since then, hundreds of the men have been transferred from Guantanamo Bay to other countries, many of them for "continued detention."

And then set free.

Decisions by more than a dozen countries in the Middle East, Europe and South Asia to release the former detainees raise questions about whether they were really as dangerous as the United States claimed, or whether some of America's staunchest allies have set terrorists and militants free.

http://www.msnbc.msn.com/id/16227791/

Also pertinent:

Four-fifths freed after transfer
But through interviews with justice and police officials, detainees and their families, and using reports from human rights groups and local media, The Associated Press was able to track 245 of those formerly held at Guantanamo. The investigation, which spanned 17 countries, found:

Once the detainees arrived in other countries, 205 of the 245 were either freed without being charged or were cleared of charges related to their detention at Guantanamo. Forty either stand charged with crimes or continue to be detained.
Only a tiny fraction of transferred detainees have been put on trial. The AP identified 14 trials, in which eight men were acquitted and six are awaiting verdicts. Two of the cases involving acquittals — one in Kuwait, one in Spain — initially resulted in convictions that were overturned on appeal.
The Afghan government has freed every one of the more than 83 Afghans sent home. Lawmaker Sibghatullah Mujaddedi, the head of Afghanistan's reconciliation commission, said many were innocent and wound up at Guantanamo because of tribal or personal rivalries.
At least 67 of 70 repatriated Pakistanis are free after spending a year in Adiala Jail. A senior Pakistani Interior Ministry official said investigators determined that most had been "sold" for bounties to U.S. forces by Afghan warlords who invented links between the men and al-Qaida. "We consider them innocent," said the official, who declined to be named because of the sensitivity of the issue.
All 29 detainees who were repatriated to Britain, Spain, Germany, Russia, Australia, Turkey, Denmark, Bahrain and the Maldives were freed, some within hours after being sent home for "continued detention."

 

[Cylinder]

Still out there, Cylinder...? It was just getting interesting.

Yup - I'm still here.

 

[Cylinder]

I think his point is what is the incentive for combatants to follow the laws and customs of war if they are to receive the same protections under Article 4 anyway?

In a nutshell,yes. My little hypothetical was trying to illustrate that violations of the Article 4 requirement is not mainly a crime against the opposing force but mainly a crime against the surrounding, non-combatant population. In that case, it does not take a trip to War College or 20 years in to realize that the second mosque will suffer some degree of loss of protection because of the actions of the persons occupying the first.

In the late 1980s, when I was first introduced to the Laws of Armed Conflict in the USAF, it was made very clear that by virtue of being a party to a conflict out-of-uniform forfeited Geneva protections that otherwise would have been afforded them. When we prepared the LOAC briefing in anticipation of our wing's deployment to Saudi Arabia during the Operation Desert Shield, it was made clear to us that the uniform requirement was written into regs.

When the Conventions were drafted in the aftermath of WWII, great care was taken to adopt them in manner that lived up to their purpose - the amelioration of the affects of armed conflict against classes of individuals likely to be found in the conflict area such as those in distress, those carrying out humanitarian missions and the surrounding non-combatant populations.

There has been no other case in history that I am aware of that a party to the perfidious acts that are the strategy of the main within al Qaeda and their Taliban allies have been treated with more process of law. The precedent to date has been fairly summary execution.

 

[gnome]

Yup - I'm still here.

Awaiting your response to my comments.