Infinite Detention Without Trial - what does it mean?

gnome said:
I imagine that we'll be waging our "war on terror" with Congressional approval indefinitely, which seriously undermines the idea behind holding someone until the end of hostilities.
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Al Qaida is so diminished it has resorted to kidnapping, which means it's mostly the Taliban now.

And we can still release those who have been determined to no longer be a threat, in fact most of the Gitmo detainees have been released. And some of those went right back to the fight...
 
Tapio said:
This sounds weird. I wonder, what difference does it make?
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Congress was in a furor over Obama wanting to bring some Gitmo detainees to the US to try them in civilian courts. Not even the Dems in Congress supported this, and certainly the GOP doesn't. So they stuck this in the defense bill to give Congress exclusive right to determine custody of the detainees.
 
WildCat said:
US citizens are exempted from the law.
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I believe you're mistaken. There was a last minute change related to the status of US Citizens with respect to this law, but it affected whether they were REQUIRED to be brought before a military tribunal rather than the government having the choice. This was the basis upon which Obama was threatening to veto the bill--because he wanted that choice.

That change does not limit the government's ability to detain US citizens.

If you think I'm the one that's mistaken about this I will go hunt it down for evidences...
 
WildCat said:
"Indefinitely" applies to every war ever fought.
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If someone wanted to hold me as an enemy combatant for Japan, I could bring forth evidence that Japan surrendered to prove that hostilities are over.

What evidence could a person contesting their detention under AUMF bring forth to prove that hostilities had ended, if the time comes to release them but the government is dragging their feet?
 
BenBurch said:
Wow, wouldn't know that the way it is discussed!
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I blame the news media for that. That sort of fact-checking is quick and easily done. While I admit that I don't understand exactly what this provision of the law does, it's plain to read that it doesn't apply to U.S. citizens.

But again, as far as the issues that have mostly been discussed, the Constitution doesn't make a citizen/non-citizen distinction.

I'm willing to accept Wildcat's word that what the law does is not what people have been saying it does. That's why I've been careful to offer my comments in the form, "If the law does x, then it's not constitutional".

ETA: Except perhaps for the broad statement that any detainee can be tried without access to any civilian court. I understand what they mean (they mean no access to civilian courts lower than the level of the SCOTUS), but I always point out that ALL courts are below the SCOTUS, which is a civilian court. The Supreme Court is the final appellate court for all courts, even military courts.
 
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BenBurch said:
Wow, wouldn't know that the way it is discussed!
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I know, it's crazy what politics can do. One poster here claims this bill means an Army private can sexually assault a woman in a bar and declare her boyfriend to be an enemy combatant, thus subjecting him to $500,000 in legal bills.
 
WildCat said:
Al Qaida is so diminished it has resorted to kidnapping, which means it's mostly the Taliban now.

And we can still release those who have been determined to no longer be a threat, in fact most of the Gitmo detainees have been released. And some of those went right back to the fight...
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I realize that the justification for AUMF can come to an end, and the government can and does release detainees. My concern is for a situation where the government isn't being so cooperative and has to be forced in court.
 
gnome said:
If someone wanted to hold me as an enemy combatant for Japan, I could bring forth evidence that Japan surrendered to prove that hostilities are over.
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You couldn't do that in 1942...
 
WildCat said:
"Indefinitely" applies to every war ever fought.
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No. That's still a misuse of the term*. A prisoner of war can only be held until the end of major hostilities. This is not indefinite detention. Indefinite means with no definition of conditions for release. No one can be held indefinitely.

Further, if you're talking about someone accused of a crime in connection with the 9-11 attacks, those detainees have the right to writs of habeas corpus (must be charged or released) or its equivalent.

*ETA: At the very least, you're equivocating when you pretend that other people are using "indefinitely" the way you are.

ETA again: Article 118 of the Geneva Convention in question, makes it clear that the definition of conditions for release must be stipulated (one way or another) and communicated to the detainee. There's nothing open-ended about it.

Article 118

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

In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph.

In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.
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Since conditions for release must be defined, it's not correct to say they're being held indefinitely.

And again, since terrorism is a crime, anyone accused of terrorist activity gets the rights of the accused (habeas corpus or equivalent, notably), and the "War on Terrorism" isn't about prisoners of war anyway. However, if one attempts to construe it that way, I think it's obvious that the elimination of terrorist crimes cannot be said to be the conditions for release (cessation of active hostilities) because such a condition is unattainable.

I think attempting to equate the war in Afghanistan with the "War on Terrorism" is unreasonable. One is a war in the sense of the Geneva Conventions' rules for the treatment of prisoners of war, and the other is not.
 
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WildCat said:
You couldn't do that in 1942...
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I refer to when hostilities ARE arguably over but the government's official position is that they are not--if you look at the second part of my post. In the case of war against a nation, documents exist to prove the end of hostilities. What will exist when the hostilities authorized by AUMF have expired?
 
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gnome said:
I realize that the justification for AUMF can come to an end, and the government can and does release detainees. My concern is for a situation where the government isn't being so cooperative and has to be forced in court.
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I don't know if such a thing has ever come up because, as I just pointed out in my most recent ETA, the Geneva Convention on the treatment of POWs says that you've got to have an agreement ahead of time as to the definition of cessation of hostilities. That POWs can be detained indefinitely is a fantasy (or abuse of language). And your concern, I think, illustrates the equivocation of using the word indefinitely that way. You are using the word as it conventionally is used --that one doesn't know for sure what conditions must exist for the release of these non-criminal prisoners. Using that meaning of the term, POWs cannot be detained indefinitely.
 
I am willing to back off that claim, if it can be described how a detainee can force government to release them if there has been an actual cessation of hostilities as described in the AUMF, but the government chooses to contest it.
 
gnome said:
I refer to when hostilities ARE arguably over but the government's official position is that they are not--if you look at the second part of my post. In the case of war against a nation, documents exist to prove the end of hostilities. What will exist when the hostilities authorized by AUMF have expired?
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If the AUMF is repealed then that's your document. If the Taliban sign a peace agreement that is your document.

This isn't that hard.
 
Upchurch said:
Well, Jose Padilla,
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No, he wasn't. He was tried for a conspiracy to "murder, kidnap, and maim".

But I suppose that a charge of treason would technically be a charge of being an enemy combatant, but that only applies to US citizens since foreigners can't be charged with treason against the US.
 
WildCat said:
No, he wasn't. He was tried for a conspiracy to "murder, kidnap, and maim".
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After being held for three years or so with no charges filed. He was finally charged with something after legal action forced the Bush administration's hand.

That's disingenuous, to say the least.
 
Upchurch said:
After being held for three years or so with no charges filed. He was finally charged with something after legal action forced the Bush administration's hand.

That's disingenuous, to say the least.
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Legal disputes take time to resolve, especially when the SCOTUS rewrites the rules midstream. And of course Bush et al made a lot of stupid decisions.

But what's funny is that Padilla appealed his 17 year sentence, and the appeals judge ruled that indeed the sentence was flawed, he didn't get enough prison time. Have fun in Supermax Jose! :p
 
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