"Bad" people go to Gitmo?

[Cylinder]

Let's talk legalities here. What are the legal reasons for keeping citizens from other nations incarcerated indefinitely, without a fair trial?

Article I; Section 8 of the US Constitution:

Congress shall have the Power...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Article II; Section 2 of the US Constitution:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

SJ Res. 23:

...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Third Geneva Convention; Article 21:

The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter.

Hamdi v. Rumsfeld:

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

 

[Batman Jr.]

And this is where the murkiness sets in. Under article 52 of Convention 1, A charge that these men are due protection by the conventions would have to be brought by a party to the combat, in this case Al Qaeda, and then the US and Al Qaeda would have to agree on a neutral thrid party to form said tribunal. They have made no effort (that I can find, anyway) to do so. I have my doubts as to whether they even could. In effect, the extra-legal nature of Al Qaeda has dropped these guys into a legal limbo.

Article 52 of the First Geneva Convention
At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.

If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.

Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.

Would Article 52 actually have an effect on Article 5 of the Third Geneva Convention when the tribunal has nothing to do with "any alleged violation of the Convention"? The tribunal's job is not to look for violations, but instead to clear up designations of status which are potentially apocryphal. Vacillation between assigning different rights does not constitute an infringement on a person's human rights nor the Conventions, and it is exactly that which a tribunal would attempt to amend and terminate.

 

[Cylinder]

No tribunal hearings have been provided for any of the detainees and hence, we see clear negligence of the provisions of the Geneva Conventions taking place.

Not true.

 

[Batman Jr.]

Not true.

The problem many human-rights advocates have seen in this is described at the bottom of the article you cite. The detainees are not permitted to have lawyers and do not have access to certain pieces of secret evidence used against them. It could be argued that the tribunal doesn't meet the "competent" requirement as a result.

 

[CFLarsen]

OK, I'm falling behind here.

Article I; Section 8 of the US Constitution:

This is about declaring war. It does not say anything about the legal reasons for keeping citizens from other nations incarcerated indefinitely, without a fair trial.

Article II; Section 2 of the US Constitution:

This is about declaring war. It does not say anything about the legal reasons for keeping citizens from other nations incarcerated indefinitely, without a fair trial.

SJ Res. 23:

This is about those who were behind the 9/11 attacks. Prisoners at Gitmo are there because they were caught fighting US troops in Afghanistan.

Third Geneva Convention; Article 21:

Not applicable, since the prisoners are not prisoners of war (which is the claim).

Hamdi v. Rumsfeld:

This is about American citizens. We are talking about people of other nationalities.

What are the legal reasons for the US to keep foreign citizens incarcerated indefinitely, without a trial, and without declaring them prisoners of war?

 

[Cylinder]

OK, I'm falling behind here.

This is about declaring war. It does not say anything about the legal reasons for keeping citizens from other nations incarcerated indefinitely, without a fair trial.

When someone cites Constitutional privilege, I tend to assume that they have actually read it. Sorry - it won't happen again. Article I; Section 8 clearly delegates a certain power to Congress, to wit:

The Congress shall have Power To declare War ...and make Rules concerning Captures on Land and Water;

Detaining enemy combatants is a well-established war power. To quote the opinion of Justice O'Connor in Hamdi v Rumsfeld:

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 time has long passed when ‘no quarter’ was the rule on the battlefield..

Are you asserting that detention of enemy combatants during the course of a conflict is illegal a priori?

This is about declaring war. It does not say anything about the legal reasons for keeping citizens from other nations incarcerated indefinitely, without a fair trial.

See above. Article II; Section 2 of the US Constitution delegates certain powers to the President, to wit:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Since Armies and Navies have the power to capture enemy combatants that is well-established both in international treaty and common law and the President is, in fact, the Commander in Chief of the US Army and Navy, it follows that the President has this well-established power. The President is just as much a part of this process as the member of a rifle squad who accepts the surrender of a enemy combatant or soldier in the first place. To this end, President Bush issued an executive order in November 2001 that states:

By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:
...
It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

Nowhere is the detentions asserted to be indefinite or without applicable due process. "Fair trial" is not the standard to uphold detention.

This is about those who were behind the 9/11 attacks. Prisoners at Gitmo are there because they were caught fighting US troops in Afghanistan.

Read the AUMF again:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,

Since al Qaeda has been determined to have authorized and committed the Sept. 11, 2001 attack and the Taliban has been determined to aid and harbor al Qaeda, the AUMF and the president's executive order provides specific statutory authorization for these detentions.

Not applicable, since the prisoners are not prisoners of war (which is the claim).

The Third Geneva Convention, among other treaties and law-of-war precepts, establish and carry forward the right of a party to a conflict to capture and detain non-protected enemy combatants - without criminal charge - until the the end of the conflict. For instance, Convention III; Article 118 states:

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

By the very act of defining protected persons in Article 4, Convention III establishes that some detained combatants may not meet these requirements and thus will not benefit from the enumerated protections. Article 5:

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.

Article 119 extends the deadline for repatriation of prisoners until the end of criminal proceedings:

Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.

Article 21 allows detainnes to be paroled before the end of the conflict at the discretion of the detaining power:

Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. No prisoner of war shall be compelled to accept liberty on parole or promise.

According to the third Convention, captured belligerents may be held until the end of hostilities, some of these belligerents may not meet the requirements as a protected person and captured persons must be repatriated unless the detaining power has initiated criminal proceedings against that person. The argument can be made that, with an Article 5 determination that a detainee is not a protected person, Article 119 protections do not apply. I suspect that will not be the case, since Article 21 paroles have already been granted.

This is about American citizens. We are talking about people of other nationalities.

In Hamdi v Rumsfeld, the court found that:

The AUMF authorizes the President to use “all neces-sary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

The narrow scope of the status of citizen-detainees notwithstanding, the Court has held that Congress has authorized these detentions even in respect to US citizens. Subsequent petitioners challenge jurisdictional issues in light of that finding - even in respect to non-citizen detainees.

What are the legal reasons for the US to keep foreign citizens incarcerated indefinitely, without a trial, and without declaring them prisoners of war?

This is an appeal to pity. Indefinite detention has never been asserted. "Trial" is an overly broad term that encompasses many types of proceedings that have already been granted. "Prisoner of war" is a narrowly-defined subset of legally detained persons as established by the existing laws and customs of war.

 

[Cylinder]

The problem many human-rights advocates have seen in this is described at the bottom of the article you cite. The detainees are not permitted to have lawyers and do not have access to certain pieces of secret evidence used against them. It could be argued that the tribunal doesn't meet the "competent" requirement as a result.

I can understand the argument, but Article 5 does not require the same standard for other proceedings that are specified elsewhere in the Convention, such as in Article 99 or those required by Section III in general:

No prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel.

It is probably not the same standard. I have no problem with habeas corpus petitions being granted (as they are) as long as it does not become an al Qaeda circus or a political football played by NGOs with a separate agenda. The US has the authority to hold combatant detainees, for instance, where some of the information relevant to their capture is classified and subject only to in camera review.

 

[CFLarsen]

Cylinder,

I think you are missing the point.

This isn't about the US detaining prisoners of war. This is about the US detaining people, caught fighting in a war, whom the US renamed "illegal combatants" because, if they had been declared prisoners of war, the US had to follow the rules.

As it is now, the US can round up any citizens from anywhere on this planet and detain them forever.

That's the point.

 

[banquetbear]

Huh? Does anybody seriously doubt that thousands of people were captured during the liberation of Afghanistan? Or that only a few hundred of them were sent to Guantanamo? Or that numerically foreigners outnumbered Afghani nationals? I didn't even think that was a point of contention. Heck the some anti-war sites are claiming that thousands of prisoners died in Afghan custody, let alone those who didn't.

...well, you see, this is entirely the point. A few hundred sent to Guantanamo? Absolutely. Are they members of Al-Qaeda or the Taliban? Well, after being held in detention for over three years, how are we supposed to know?

In Iraq, the International Red Cross estimated just after the Abu Ghraib scandal hit the headlines that between 70-90% of the people in detention were deprived of their liberty by mistake. After the release of the report, US General Miller planned to get the prison numbers from 3800 to between 1500 and 2000 prisoners...

cite
cite 2

...many of those held at Abu Ghraib and at other bases around Iraq and were imprisoned as a result of false confessions of those "softened" up in the prisons. Others were put there because of family or tribal disputes; ie somebody would complain about a family enemy to US troops claiming they were insurgents, the US would go and arrest them. Others were gathered up in mass sweeps. This pattern, according to human rights groups, was started in Afghanistan.

We know that many in Guantanamo were bakers, and farmers, and taxi drivers, and businessman. We had people taken from their beds in Pakistan. We had British businessman sheparded off from Ghana. We had terrorist subjects released due to lack of evidence in Bosnia trundled off to Guantanamo. In fact, to be honest, (and I'm sure you'll happily trump up a cite for me) there is very, very little evidence in the public domain that anybody at Guatanamo were captured on the battlefields of Afghanistan at all. The first prisoner released from Guantanamo Bay was nicknamed "Wild Bill."

"He would eat his own feces, dump fresh water from his canteen and urinate in it and drink it," the senior interrogator said. CIA, FBI and psychiatric experts "concluded he was insane."

I'm sure that "Wild Bill" was just a gold mine of information. How did he end up at Guantanamo? Well, despite your assurances in a later post about military screening teams, I have a hard time believing they did a good enough job. Who really got shipped? Maybe the troublesome detainees who were annoying the Military Police...

According to classified Pentagon guidelines, Guantanamo Bay was meant to be a long-term detention facility for Al Qaeda operatives, Taliban leaders, "foreign" fighters and "any others who may pose a threat to U.S. interests, may have intelligence value, or may be of interest for U.S. prosecution."

But from the beginning, prisoners who didn't meet those criteria were sent, sources said. In some cases, military police seemed to have more influence over flight lists than intelligence officers, lobbying commanders to ship out troublesome detainees.

Other detainees seemed to get caught up in the military's bureaucratic machinery. In many cases, low-value prisoners caught early in the war were placed at the bottom of prioritized lists. But as planeloads of prisoners were sent to Cuba, names at the bottoms of the lists drifted to the top, and some started showing up on flight manifests.

Once they appeared on the manifests, sources said, removing them proved almost impossible. Doing so required senior intelligence officers in Kuwait or Afghanistan to work through thickets of military red tape. It also required them to trust the judgment of junior intelligence officers, something they were loath to do given the stakes.

( All bolding mine) Looks like, to me, the screening process was anything but infaliable. People ended up on the Guantanamo List by mistake? Transfered there because of red tape?

We do know, and you yourself conceed, that some innocents ended up getting locked up at Guantanamo as well the guilty. You yourself said:

There may be people who are currently at Guantanamo who don't belong there.

So what would the effect of indefinate detention have on an innocent man? Lets say you got locked up, made to piss your pants, told you were never getting out, threatened with dogs, blindfolded, and left outside for periods of time. Lets, for the sake of debate, conceed that "torture", does not take place. Lets say that the people questioning you say that you will never get out of this place, but if you co-operate, you will get moved into a better cell and your treatment will improve. What are you likely to do? If you are innocent with no prospect of release, do you not conceed that it is possible that you will "make up" intelligence, to help inprove your situation?

There are reasons why the "stress" techniques used at Guantanamo are not used by the majority of western police forces around the world. People tend to "confess", even if they are not guilty, this is a well documented phenomena...
http://www.washingtonpost.com/wp-dyn/metro/md/princegeorges/government/police/confess/

Combine stress techniques with seemingly-random-detentions with no due process and undefined lengths of detention with reward programmes for those who co-operate, and you end up with the clusterfuq that is Guantanamo Bay. Whatever good intelligence that may have come out of the place would be out-weighed by the bad-and with three years going by, any physical evidence that may prove somebodies innocence would be long gone. It wouldn't surprise me if some of those in detention didn't know if they were innocent or guilty any more...

Guantamano Bay was an ill-concieved idea, that has done more harm to The War Against Terror (tm) than it has good...

 

[CFLarsen]

"any others who may pose a threat to U.S. interests, may have intelligence value, or may be of interest for U.S. prosecution."

(Emphasis mine)

Who is not included in that definition?

 

[Cylinder]

The standard for detention is not the same for law enforcement. One does not have to have committed a crime or even be suspected of a crime to be subject to detention during a time of war under either international law or US law. Most detainees will and should be released without being criminally charged. We tried the law enforcement approach during the 90s and it failed spectacularly.

al Qaeda declared war on the US and the Taliban tossed in their hats. That's how we got to where we are. Why no outrage at their choice not to provide sanctuary to innocent civilians by obeying the laws and customs of war? Is that not trendy enough or does it just not fit into your world-view or political agenda?

 

[NoZed Avenger]

Cylinder,

I think you are missing the point.

This isn't about the US detaining prisoners of war. This is about the US detaining people, caught fighting in a war, whom the US renamed "illegal combatants" because, if they had been declared prisoners of war, the US had to follow the rules.

All right. As you appear to contend that the US has arbitrarily done this, back it up:

Show that the persons held in Gitmo qualify as prisoners of war under the Geneva Conventions and then show the rules that are not being followed.

Cite specific sections, please, and a brief summary showing how ununiformed combatants fit within those rules.

 

[CFLarsen]

All right. As you appear to contend that the US has arbitrarily done this, back it up:

Show that the persons held in Gitmo qualify as prisoners of war under the Geneva Conventions and then show the rules that are not being followed.

Cite specific sections, please, and a brief summary showing how ununiformed combatants fit within those rules.

The person I know most about is the Dane, Slimane Abderahmane. He left Denmark to fight for Muslims, and was caught in Afghanistan. He spent 2 years in Gitmo, before he was released. No charges. No evidence was ever put forward. He was never declared a POW.

We don't know the full list, but we do know that people fighting US troops in Afghanistan ended up in Gitmo. They qualify as POWs because:

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.


Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

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.
Source

The rules are not being followed, e.g.:

Article 13

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Article 14

Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

...

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

 

[Renfield]

How can you blame people for being suspicious about what goes on at Gitmo, especially Iraqi's and Muslims, when you consider how other prisons have been run by the US, and what's gone on there. If the prisoners are guilty, and there isn't anything wrong going on there, then the prison should have nothing to hide, yet Gitmo is practically a black hole.

 

[Cylinder]

The person I know most about is the Dane, Slimane Abderahmane. He left Denmark to fight for Muslims, and was caught in Afghanistan. He spent 2 years in Gitmo, before he was released. No charges. No evidence was ever put forward. He was never declared a POW.

Move along - nothing to see here...

We don't know the full list, but we do know that people fighting US troops in Afghanistan ended up in Gitmo. They qualify as POWs because:

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

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.

Taliban and al Qaeda fighters for the most part do not qualify as members of an regular armed force becuase they do not wear uniforms.

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

 

[Cylinder]

How can you blame people for being suspicious about what goes on at Gitmo, especially Iraqi's and Muslims, when you consider how other prisons have been run by the US, and what's gone on there. If the prisoners are guilty, and there isn't anything wrong going on there, then the prison should have nothing to hide, yet Gitmo is practically a black hole.

Camp Delta is far, far from a legal black hole. Detainees now have access to federal courts, Article 5 tribunals and unimpeded ICRC inspections.

The US authorities unhesitatingly gave the ICRC access to Guantanamo Bay - a natural progession of what we had already started in Afghanistan. Despite the US having refused to give the prisoners Prisoner of War status - the process by which this was reached having been publicly disputed by the ICRC - they nevertheless committed themselves to treating the prisoners in accordance with the Geneva Conventions. They also respected the ICRC’s global working practices: that is unimpeded access, being able to speak to every prisoner without witness and arranging for the exchange of Red Cross messages between prisoners and their families.

 

[NoZed Avenger]

The person I know most about - [snip] -

You wouldn't allow anyone else to pull that as an answer, Claus -- not to these questions:

Show that the persons held in Gitmo qualify as prisoners of war . . . . and a brief summary showing how ununiformed combatants fit within those rules.

Your quoted section refers to signatories of the conventions and apply, by their terms, to uniformed combatants.

So is there something showing that ununiformed combatants qualify as prisoners of war and fit within those rules?

They appear to not qualify for Article IV protections, but instead (probably) fall under the Article III "common" protections offered there: that provision forbids, for example, "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." It specifically does not include the full panoply of protections given to uniformed fighters.

The basic aim of the conventions was to "civilise" warfare -- with the aim of protecting civilians. Terrorists/un-uniformed fighters -- who hide among civilian populations, store munitions in civilian facilities, and launch attacks from amongst civilians -- do not fit within the Articles.

I think the current conventions have gaping holes in these sorts of areas and probably need a major re-vamp.

 

[CFLarsen]

Taliban and al Qaeda fighters for the most part do not qualify as members of an regular armed force becuase they do not wear uniforms.

They don't need to. Read it again:

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories

The first category is the one I quoted. The second category is the one you quoted. All they need to do is belong to the first category.

They do. Ergo, they are covered by the Geneva Convention.

Your call.

 

[CFLarsen]

You wouldn't allow anyone else to pull that as an answer, Claus -- not to these questions:

Hey, I gave a real-life example, that can be verified.

Your quoted section refers to signatories of the conventions and apply, by their terms, to uniformed combatants.

Nope. Read my recent reply to Cylinder.

I think the current conventions have gaping holes in these sorts of areas and probably need a major re-vamp.

I quite agree. That goes for all Conventions, Constitutions, etc.

 

[Grammatron]

They don't need to. Read it again:

The first category is the one I quoted. The second category is the one you quoted. All they need to do is belong to the first category.

They do. Ergo, they are covered by the Geneva Convention.

Your call.

They do not fit into the category you quoted either as they are not part of the armed forces.