Freed Gitmo Detainee Rejoins Al-Qaeda, Attacks US

[Meadmaker]

Within the LOAC, there are classes of persons (and objects, for that matter.) One is combatant. Another is POW. Not all combatants are entitled to the protections afforded POWs. To be entitled to that protection, there are a simple tests set forth in Common Article 2 and Article 4; Geneva III.

And...here they are.

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.

......

Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

I think people living in Afghanistan and fighting our troops, or those of our allies within the Northern Alliance, sound a lot like one of those two groups. Of course, some of them did not carry arms openly. The dirty SOBs shot at our guys or our allies not so openly. Well, those people are in a world of hurt, because that makes them spies and/or saboteurs. The GC has a lot to say about them, too. You can even shoot them, after a trial.

Oh, but, well, really, that isn't what we are talking about, because, they aren't really entitled to trial. After all, they were really people who had been plotting terrorist attacks all along. The US forces, and their allies, shouldn't be considered "enemy forces", so much as people trying to arrest a bunch of murderers. Common criminals! Catch them and hang them after a fair trial!

Oh...uhhh..wait...keep the hanging part, but that last bit doesn't really apply.

After all, international law clearly defines a group of people who aren't criminals and are not legal enemy combatants and are not spies and saboteurs. It defines exactly who they are and why pretty much anything can be done to them. It defines that right...uhhh...somewhere. Now where did I put that, because I know it's in here somewhere. Ummm..Geneva convention? No...not here. Treaty? ...uh no. UN declaration of?....ummm..no. No. Can't see it there. US Constitution? Oh stop that! Be serious!

Well darn it I just can't find it anywhere in here. Can someone help me out?

 

[WildCat]

And...here they are.

Oh look, you snipped out the part listing the requirements to qualify for POW status.

I can only assume this is because you have no intention of discussing this honestly, and are driven purely by ideology.

 

[Meadmaker]

And, when all is said and done, you can try all the lawyering you want, but regardless of all the text in all the documents where people might be able to find all sorts of loopholes, it misses the point. Those documents were written trying to embody a basic principle, so to heck with the Constitution or the Geneva Convention or the Magna Carta or wherever there might be some document that might not apply to this particular circumstance, all of those documents were trying to apply a basic principle, and it's that principle that matters.

That principle is that you can't deprive someone of life or liberty without a darned good reason, and you have to demonstrate that you have a darned good reason. We won't take your word for it.

As our forces moved into Afghanistan and started capturing Al-Qaeda and Taliban fighters, we were willing to forego some of the legal niceties in recognition that this wasn't exactly a conventional war and that some of the lines were hard to figure out. We just assumed that any government of the United States would understand the principle behind Habeas Corpus, and that it ought to apply to everyone, everywhere, held for whatever reason. We just assumed that everyone understood that we don't do torture. These weren't bizarre legal theories invented by liberal Supreme Court justices. They were fundamental principles, and while we weren't going to be too fussy about getting the paperwork in order, and demand that people be released on technicalities, we expected that as soon as time was available, the legal arm of the US government would do its best to make sure those principles were applied as quickly as possible in an appropriate manner for this case.

We were sadly disappointed.

 

[WildCat]

And, when all is said and done, you can try all the lawyering you want, but regardless of all the text in all the documents where people might be able to find all sorts of loopholes, it misses the point. Those documents were written trying to embody a basic principle, so to heck with the Constitution or the Geneva Convention or the Magna Carta or wherever there might be some document that might not apply to this particular circumstance, all of those documents were trying to apply a basic principle, and it's that principle that matters.

What a load of bull feces!

The GC were writtten in large part to protect civilians in conflict zones. Play by the rules designed to protect civilians, and if captured you get special priveleges available only to those with POW status.

You have turned this on its head, and act as if the purpose is mainly to protect combatants! And you are willing to throw civilians in conflict zones under the bus in order to do so.

It would be pathetic if it weren't so sickening.

 

[Gangularis]

nonsense

Al-Qaeda has never existed as an international structured organisation. Neocon propaganda believed by many politicians and others.

Please remain civil.

Replying to this modbox in thread will be off topic  Posted By: Tricky

I think this is probably true. I think it's obvious that they're willing to label every terrorist attack as an Al-qaeda attack.. intentionally, or otherwise. Weren't they trying to say the Mumbai Terrorist attacks were from Al-Qaeda for a little while? Really it's just the same ◊◊◊◊, with a different name. If Al-Qaeda restructures and changes it's name, does that mean we're no longer at war?


By the way, love your sig and name, Timmy

 

[Cylinder]

We just assumed that any government of the United States would understand the principle behind Habeas Corpus, and that it ought to apply to everyone, everywhere, held for whatever reason.

Can you cite an example of the privilege of writs of habeas being extended to an enemy combatant?

 

[Cylinder]

BTW, what are the minimum protections that can be afforded combatant detainees facing detention, trial and punishment?

 

[Gangularis]

This doesn't have anything to do with more recent comments in this thread..

I think that as we become a more progressive, civil minded, technologically advanced society, it's important that more transparency is in place, everywhere - including the procedures used to detain supposed prisoners of war, or terrorist prisoners.

You want a gitmo so you can hold your war prisoners? Fine.. but at least let it be known what information you have that proves the people you're detaining represent a real threat to the "war on terror". No more of this "they're a terrorist because we say so" crap..

 

[Smackety]

This doesn't have anything to do with more recent comments in this thread..

I think that as we become a more progressive, civil minded, technologically advanced society, it's important that more transparency is in place, everywhere - including the procedures used to detain supposed prisoners of war, or terrorist prisoners.

You want a gitmo so you can hold your war prisoners? Fine.. but at least let it be known what information you have that proves the people you're detaining represent a real threat to the "war on terror". No more of this "they're a terrorist because we say so" crap..

If you go back to post #92 there is a link to 'what we know' about some of the detainee's (thank you Texas). I read the first PDF at that site and posted the relevant information for what we know on post #96. The reason would never be enough to hold him legally.

 

[Gangularis]

If you go back to post #92 there is a link to 'what we know' about some of the detainee's (thank you Texas). I read the first PDF at that site and posted the relevant information for what we know on post #96. The reason would never be enough to hold him legally.

Oh yeah, I read that. You read through like 62 pages, didn't you?
Well I guess it needs to be said that not only is it important that this info is available, it should also be thrust into the mainstream, and we should actually have some kind of say in how this crap is handled. Since some of this info is available to those who request it, it seems to me that the big issue isn't just transparency, but the media's willingness to bring this information to the forefront for us all to be aware of.

 

[Smackety]

Oh yeah, I read that. You read through like 62 pages, didn't you?
Well I guess it needs to be said that not only is it important that this info is available, it should also be thrust into the mainstream, and we should actually have some kind of say in how this crap is handled. Since some of this info is available to those who request it, it seems to me that the big issue isn't just transparency, but the media's willingness to bring this information to the forefront for us all to be aware of.

Suppose we arrested them on very tenuous grounds - a name on a list, and a common name at that. But then, suppose we interrogated them and found out we were right, and they gave us dozens of names and locations, maybe even operational knowledge. This would help us in the war, and confirm beyond any doubt that we caught one of the 'real' terrorists.

What then? Why hold them without charges at that point? We would have the information to charge them and lock them up legitimately, right? Is a confession under duress inadmissible?

I think most people like to believe that these are all scary-super-evil-killers who we can just lock up for eternity and never feel guilty about. Even people here who are usually incredibly demanding of evidence seem to accept it when all the evidence I have seen (post #92) says that these people are held on very questionable grounds.

 

[Gangularis]

I think most people like to believe that these are all scary-super-evil-killers who we can just lock up for eternity and never feel guilty about. Even people here who are usually incredibly demanding of evidence seem to accept it when all the evidence I have seen (post #92) says that these people are held on very questionable grounds.

You're not alone in that belief.
In the short time that I have been registered here, I have found no shortage of "skeptics" on this forum that seem to be particularly biased and do their own cherry picking when it comes time to be skeptical. I'm sure we're all guilty of that to some degree.. i'm just surprised at how prevalently that seems to run rampant among the collective..
Anyway, I don't disagree with any of your last post.

 

[Meadmaker]

What a load of bull feces!

The GC were writtten in large part to protect civilians in conflict zones. Play by the rules designed to protect civilians, and if captured you get special priveleges available only to those with POW status.

You have turned this on its head, and act as if the purpose is mainly to protect combatants! And you are willing to throw civilians in conflict zones under the bus in order to do so.

It would be pathetic if it weren't so sickening.

Let us accept, for the sake of argument, your contention that that is the purpose of the Geneva Conventions, and that the Geneva Conventions really don't apply here.

In truth, they don't. AFter all, it's quite clear in the Geneva Conventions that they only apply when the parties in the conflict are signatories, and neither Al-Qaeda nor the Taliban were signatories. There it is. Geneva Conventions don't apply. (Of course, the Supreme Court disagrees, but they're a bunch of liberal do-gooders anyway.)

And of course the protections in the Constitution don't apply, because these aren't US citizens.

And the Magna Carta doesn't apply because it only applied in England a long time ago and didn't address Habeas Corpus specifically and is really quite overrated in its human rights content anyway.

You've missed the point. As I said, I'm sure that whatever document could be produced in which rights are defined you could come up with some reason why that document is not applicable to this situation.

I don't care. I don't think that any government, anywhere, should, for any reason, be able to hold people indefinitely without providing grounds for their detention. If they are held as parties in a conflict, then treat them as POWs. If they are held as criminals, of any variety, then produce evidence and put them on trial. Feel free to shoot them if found guilty of a capital crime, including that of acting as a spy in wartime. I have no problem with that.

Secret prisons, on the other hand, I have a problem with. And torture is right out.

Earlier you said it appeared that I was driven by pure ideology. Absolutely true, and proud of it. There are times when a little bit of ideology is good for people. My ideology says that criminals get fair trials and that POWs get humane treatment and that no government gets to round up people and throw them away without legal protections.

 

[Meadmaker]

BTW, what are the minimum protections that can be afforded combatant detainees facing detention, trial and punishment?

Charges must be presented. Trial must be held in a reasonably timely manner. Evidence must be presented. The defendant must have a chance to see the evidence against him and the opportunity to present counter evidence. This isn't hard.


To your earlier question about writs of habeas and enemy combatants. The legal procedure associated with a habeas writ is not afforded to enemy combatants, but it doesn't really need to be. If you are a soldier of an enemy with which we are at war, it's pretty clear why you are being held. However, the principle is there. The government must demonstrate why someone is being held prisoner. Again, this isn't hard.

When Guantanomo opened up in 2001, none of us darned liberals whined about it. (Some probably did, I suppose, but I certainly didn't.) There was a war on. There were lots of people involved. They had to go somewhere.

As 2001 became 2002, and 2003, and 2007, we started to ask questions. Who are these guys? What are the charges against them? Why do we hear that there is torture going on? What's this with secret prisons?

I am extremely confident that Khalid Sheikh Mohammed can be given a fair trial, and then executed. I'm fairly confident that everyone who had been shooting at US soldiers could be declared a POW and detained as a member of a hostile militia, and we could still hold them today on those grounds alone. That's all that us liberals are demanding. We just don't want a government that says that they get to make up the rules as they go along.

 

[Cylinder]

If they are held as parties in a conflict, then treat them as POWs.

The LOAC does not suppose that all combatant detainees are POWs. To be granted POW protection, one must do a certain number of things. It is illegal under the LOAC to send combatant detainees to civilian courts in most instances.

It is "by universal agreement" that the United States holds these combatant detainees - without charge - until the end of active hostilities.

 

[Cylinder]

Charges must be presented. Trial must be held in a reasonably timely manner. Evidence must be presented. The defendant must have a chance to see the evidence against him and the opportunity to present counter evidence. This isn't hard.

The current MCA has all of those features.

To your earlier question about writs of habeas and enemy combatants. The legal procedure associated with a habeas writ is not afforded to enemy combatants, but it doesn't really need to be. If you are a soldier of an enemy with which we are at war, it's pretty clear why you are being held. However, the principle is there. The government must demonstrate why someone is being held prisoner. Again, this isn't hard.

Demonstrate to whom and to what degree? Do we give KSM full discovery? Do we allow him to confront all witnesses against him? Let's drag every brigade commander off the line in the middle of battle to testify in a months-long series of pre-trial motions?

To whom does the Constitution give the power to direct war-fighting strategies?

When Guantanomo opened up in 2001, none of us darned liberals whined about it. (Some probably did, I suppose, but I certainly didn't.) There was a war on. There were lots of people involved. They had to go somewhere.

As 2001 became 2002, and 2003, and 2007, we started to ask questions. Who are these guys? What are the charges against them? Why do we hear that there is torture going on? What's this with secret prisons?

I am extremely confident that Khalid Sheikh Mohammed can be given a fair trial, and then executed. I'm fairly confident that everyone who had been shooting at US soldiers could be declared a POW and detained as a member of a hostile militia, and we could still hold them today on those grounds alone. That's all that us liberals are demanding. We just don't want a government that says that they get to make up the rules as they go along.

These rules existed before the founding of the country. They have been used in every conflict in which the United States has participated. I briefed them to service members in three separate conflicts - none of which occurred during GWB's watch.

Why do you think that governments insist on participants of an armed conflicts to wear some kind of uniform in most instances? What's the reason?

 

[WildCat]

Let us accept, for the sake of argument, your contention that that is the purpose of the Geneva Conventions, and that the Geneva Conventions really don't apply here.

Wow, I call you out for being dishonest by snipping out relevant parts of the GC in a quote, and now in response you post this?!

I have never said "the Geneva Conventions really don't apply here", this is a blatant lie on your part.

The GC always applies. But according to the GC, not all captured combatants qualify for POW status. In fact, the GC lists requirements for combatants they must adhere to to qualify for POW status if captured.

Why should I bother with you any more if your responses will be either outright lies or lies by omission?

 

[Meadmaker]

Why should I bother with you any more ...

Feel free not to. However, if you are so inclined, you could quit dancing around the issue. There's no point in it, really. You can't get a job with the Bush administration anymore.


The Bush administration wanted to hold these people as long as it wanted to hold them, with no defined legal status other than something that amounted to "we'll make something up at some point and tell anyone about it when we feel like it." I didn't think that' was a good idea, and the incoming administration seems to agree.

What we administration critics demanded was that the Bush administration say who these people are and what their legal status is. If that legal status included anything which could be considered criminal, then we demanded that charges be brought in a timely fashion. If they were detained enemy prisoners, but not charged with a crime, then we said they should be treated as POWs, and detained as long as the conflict continued.

Bush didn't think we deserved that. We didn't think we deserved Bush. The Obama administration seems to agree with us.

 

[Meadmaker]

I have never said "the Geneva Conventions really don't apply here", this is a blatant lie on your part.

Would it have made you happier if I had said, "The protections afforded to prisoners of war under the Geneva Conventions, which were in any event designed to protect civilians, do not apply here?"

Whatever.

Let me rephrase. Let us grant, for the sake of argument, that every single thing you have said about the Geneva Conventions is absolutely 100% accurate.

You've still missed the point. Governments shouldn't lock people up without charging them with a crime. The exception occurs when they are combatants in an ongoing conflict, in which case they should be held until the end of the conflict, but treated according to the customs of war as POWs. Well, I won't use that term, because, according to the Bush administration they aren't that, but whatever they are they should be treated the same way we would treat them if they happened to actually be POWs, instead of whatever it is they happen to be. We don't do that because some document says we have to. Those documents exist as they do because they reflect those principles. We should follow those principles, regardless of whether or not there is a document that says we have to.


With respect to the OP: The guy was in Afghanistan. He was aiding the Taliban. We were, and are, at war with the Taliban. We could have kept him on those grounds alone, and treated him as a [insert term here for somebody who isn't a POW, but has most of the features commonly associated with POWs].

 

[Cylinder]

If Al-Qaeda restructures and changes it's name, does that mean we're no longer at war?

No. The AUMF specifies "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."