"Bad" people go to Gitmo?

[Camillus]

I am but a bear of little brain and something's been pulling at the loose thread in the back of my bean over this business. Perhaps someone can help?

The Geneva Convention, as I understand it, governs the acceptable behaviour of combatants during times of war (declared or not). It requires certain standards from all those involved and allows leeway for those who follow the rules to deal with those who do not.

However I am not sure about the timing of when the GC ceases to apply. What happens once that state of war ceases to exist? What does the GC say about the disposal of captives at the end of hostilities? Does the GC allow prisoners to be held indefinately or does it require that they pass through some sort of process to determine whether they should be released or tried for a crime?

I ask because I understood that the wars, in the legal sense, were over in both Afghanistan and Iraq and that we had won. While we are still engaged in police actions against violent, desperate and well armed criminals surely that falls outside the GC? Or does the GC apply to any situation in which an army operates on foreign soil, even if no state of war exists?

 

[Cylinder]

What happens once that state of war ceases to exist? What does the GC say about the disposal of captives at the end of hostilities?

Convention III; Article 118:

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

POWs must be repatriated without delay.

Does the GC allow prisoners to be held indefinitely or does it require that they pass through some sort of process to determine whether they should be released or tried for a crime?

Convention III; Article 119:

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.

They can be held for the duration of the proceedings and, if convicted, the sentence.

I ask because I understood that the wars, in the legal sense, were over in both Afghanistan and Iraq and that we had won. While we are still engaged in police actions against violent, desperate and well armed criminals surely that falls outside the GC? Or does the GC apply to any situation in which an army operates on foreign soil, even if no state of war exists?

"Active hostilities" is the standard. The practical limit of the length of detention is more likely to expire with the mandates provided in the respective use of force resolutions except for those with pending criminal proceedings.

US forces are still in an active hostility phase both in Afganistan and Iraq and al Qaeda is still promoting attacks against the United States.

 

[corplinx]

Because a nation not built on law is...a rogue nation?

Now your just being argumentitive for the hell of it. You're not being socrati. You're just being a twit.

The US is composed of 50 member states each with their own laws. Their federation is also based on law.

The idea that we are no longer built on law because you believe we have made some infraction of treaty is simply ridiculous.

 

[CFLarsen]

You're changing the topic.

Read the opening post.

No changing of topic. Want to address it?

 

[Manny]

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

Thank you for your thoughtful comments. I disagree, obviously, but it's helpful for both sides when people make cogent arguments backed by facts or by reasonable speculation rather than the all-or-none rhetoric that all too often characterizes debates.

I think each of your points individually has some merit but that as regards Guantanamo they are overstated and collectively they paint an unfair picture of the facility there and of the people sent to it.

For example, I agree (and did before, of course) that some people have been sent there in error. And I'm confident that at least some of that is a result of an institutional failing that the military shares with most other institutions, the instinct of people to want to make their problems turn magically into someone else's problems. But because of the review process it seems that it's pretty rare. Rear Admiral James M. McGarrah testified yesterday that of 558 detainees given hearings at Guantanamo so far 520 were properly classified as enemy combatants. Most of those who were improperly classified have already been released.

I think some of the misunderstanding here is because of the unusual circumstances of the detainees. They are not POWs, but there are also not civilian detainees. The US has no obligation to let these guys go before hostilities cease. (Four Americans Wounded three days ago, One American Killed less than a week ago). It's not like the US criminal courts where even a single error is intolerable -- the military is expected to and allowed to bat less than 1.000 here. It sucks, but that's war.

These guys, if not released, have to go somewhere. And the enemy itself make it difficult to determine who might be eligible for release because they do not identify themselves as combatants and frequently lie to try to be released themselves. As noted, we've already re-encountered released detainees on the battlefield.

Again, I assert that collectively the Guantanamo detainess have already received more review than any other group of wartime detainees in the history of the world. And I believe that conditions at Guantanamo are better than conditions at many other detention facilities.

I'd encourage you to read the testimony of Rear Adm. McGarrah and the other witnesses at yesterday's Judiciary Committee hearings. You can find their testimony here. I'd like to year your thoughts after giving their views a hearing.

 

[Mycroft]

Read the opening post.

No changing of topic. Want to address it?

It's a change of topic from what I said. Do you care to address the questions I put forth?

 

[CFLarsen]

It's a change of topic from what I said.

It's not a "change of topic" from what you said. It's the opening post. How can that be a "change of topic"?

Do you care to address the questions I put forth?

 

[Mycroft]

It's not a "change of topic" from what you said. It's the opening post. How can that be a "change of topic"?

Do you care to address the questions I put forth?

No. I've seen how these go with you before. I'll just watch.

 

[Camillus]

"Active hostilities" is the standard. The practical limit of the length of detention is more likely to expire with the mandates provided in the respective use of force resolutions except for those with pending criminal proceedings.

US forces are still in an active hostility phase both in Afganistan and Iraq and al Qaeda is still promoting attacks against the United States.

Thanks for the answers. A couple mroe questions:

How does one define "active hostilities"? I'm curious because elections and the institution of new governments have occured in both Afghanistan and Iraq. I would have thought that elections could not have been held if "active hostilities" were ongoing. Can elections held during periods of "active hostilities" be free and fair and represent the view of the people?

Also I thought that al Qaeda was a political organisation rather than part of a government. I didn't realise you could declare war on an organisation. Can you? If you can what are the precedents for and the rules governing the conduct of that war?

 

[Cylinder]

How does one define "active hostilities"? I'm curious because elections and the institution of new governments have occured in both Afghanistan and Iraq.

To answer the question in the abstract, I would apply a common-sense definition. Troops deployed on a combat footing and regular armed conflict between opposing forces are hallmarks of active hostilities. To answer the question in the context of the current conflicts you can add the abstract definition with the respective use of force resolutions still in force for both conflicts. Since 1973, our President can only send US forces in hostile operations for 90 days without approval of Congress. If Congress authorizes the use of military force by either a declaration of war or statutory authorization under the War Powers Act, the President is required to report to Congress at least every six months to report the status of on-going operations and the planned duration of the conflict. At some point the President will report to Congress that operations under the authority of the use of forces resolutions have expired at which time active hostilities will have ended as a matter of US law.

I would have thought that elections could not have been held if "active hostilities" were ongoing. Can elections held during periods of "active hostilities" be free and fair and represent the view of the people?

I suppose "free and fair" is a subjective term which leads the answer to the realm of opinion. Were any elections held during the Battle of Britain? I don't know. Since many polling places during the Jan. 30 Iraqi election existed in decidedly hostile areas there was a good case for many Sunni Arabs being effectively disenfranchised as well as some Shia populations in Baghdad. That being said, the UN has signed off on the elections and I think at least a reasonably representative assembly has been drawn from the population. Time will tell.

Also I thought that al Qaeda was a political organization rather than part of a government. I didn't realise you could declare war on an organisation. Can you?

We have not declared war on al Qaeda. Congress responded to their attacks on the United States by authorizing the use of military force against them and their allies. Since the question you posed is splitting the hair in the first place, I can only respond with that narrowly-defined answer. There is no precedent that I am aware of for a country to declare war on a "political organization" (as you term it) though their are many instances of countries authorizing the use of military force against them, such as The Troubles (if I am using that phrase correctly.) al Qaeda is actually a militia force or terrorist organization.

If you can what are the precedents for and the rules governing the conduct of that war?

In the sense of conduct toward combatant detainees, there are real differences. The classifications are built around the requirements for that class, not the political nature of the conflict.

 

[NoZed Avenger]

I think this thread has run its course.

A few points before it sinks 'neath the waves again, however:

First, there are quite plausible objections that can be raised against coercive interrogations, even given the limitations imposed by US policy. Serious discussion about Gitmo could concentrate on serious historical analogies (such as the U.K.'s actions and laws passed in the 1970s while fighting the I.R.A.), rather than to hyperbole such as some of the terms thrown by prominent news-makers about on the news recently.

Invoking the Holocaust, the Soviet genocide, or the Pol Pot genocide trivializes those events and draws attention away from valid criticisms.

Second, each prisoner at this point has gone before a military tribunal in order to assess whether sufficient evidence exists to hold them (June 13/14 briefing from Rumsfeld, transcript at http://usinfo.state.gov/) These tribunals follow the rules set out in the Supreme Court caseHamdi - which established due process standards for similar tribunals. There are also annual reviews by an administrative review board to determine whether holding the prisoner any longer can be justified.

Third, (from us.gov link above) there have been hundreds of separate media visits to Guantanamo Bay by more than 1,000 journalists to date. Approximately 180 congressional representatives have visited the facility for oversight. Continuous access has been given to the International Committee of the Red Cross, whose representatives are allowed to meet privately with the detainees.

There are a number of substantive changes that I would or could support to the process. there are others that I am not necessarily in favor of, but could be convinced if a serious attempt at argument or discussion is made.

So the initial question appears to be somewhat flawed. Prisoners are getting trials (which is why 200+ have been released to date), access to the prisoners is being granted.

There are certainly legitimate topics for discussion in this area. However, I do not see how that discussion can take place as long as it is seriously contended that a turban and arab dress qualify as a uniform for the Geneva Conventions.

It is especially hard to understand why the first few pages of discussion have an adamant position taken that these fighters qualify as POWs because they clearly have a distinct unifrom, and then the next page or two is spent demanding answers regarding how we can possibly tell al al Queda member from another Afghani.

Do you not see the fundamental contradiction in those two positions? How can both positions be held at the same time?