Obama administration asserts indefinite detention of enemy combatants without trial

[Cylinder]

Solicitor general nominee says 'enemy combatants' can be held without trial

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.

Kagan's testimony can be found here

 

[Texas]

Solicitor general nominee says 'enemy combatants' can be held without trial



Kagan's testimony can be found here

When GITMO closes wait until the detainees get a look a SuperMax detention.

 

[KoihimeNakamura]

Now that is rather disappointing.

 

[Texas]

Now that is rather disappointing.

It's the first encouraging stance I have seen from this administration.

 

[Puppycow]

Are they saying that just the suspicion absent compelling evidence is sufficient grounds to hold a suspect indefinately?

Shouldn't there at least be a formal procedure to determine the facts and a requirement that the suspect be released if there is no compelling evidence that the individual is an illegal combatant?

 

[Texas]

Are they saying that just the suspicion absent compelling evidence is sufficient grounds to hold a suspect indefinately?

Shouldn't there at least be a formal procedure to determine the facts and a requirement that the suspect be released if there is no compelling evidence that the individual is an illegal combatant?

That is already in place with the latest USSC order that all detainees are allowed to challenge their status in court.

 

[Tsukasa Buddha]

Well duh, he is the most liberal president ever.

 

[Texas]

Well duh, he is the most liberal president ever.

Nah he is just having to make presidential level decisions now. He said many things to get elected, as all candidates do, but he is now in the real world and it is really ugly.

 

[BPSCG]

I'm waiting for the left wing that daily accused Bush of "trampling on the Constitution" and demanding his impeachment for holding POWs indefinitely to start in on Obama.

This is me holding my breath until I turn blue...

 

[cwalner]

To me it seems as if the major difference between the Bush and Obama policy is that Obama is giving them status as prisoners of war and explicitly making thier captivity subject to the accords of the Geneva Convention. I still don't know what this will turn out to mean in terms of practical difference, though.

 

[Upchurch]

Is he planning on grabbing US citizens out of US airports and holding them without charges or council for years until the courts forces him to allow due process?

 

[drkitten]

To me it seems as if the major difference between the Bush and Obama policy is that Obama is giving them status as prisoners of war and explicitly making thier captivity subject to the accords of the Geneva Convention. I still don't know what this will turn out to mean in terms of practical difference, though.

To them, possibly not much, because the Constitution has already been trampled on so much by the previous administration. But it's a very encouraging precedent.

For example, Texas points out that the prisoners have the right to challenge their detention in court, courtesy of a SCOTUS decision. Had the prisoners been given POW status, such a status hearing would have been automatic and provided within days of their capture, not after a delay of 5+ years.

Furthermore, he also neglects to mention that these status challenges were granted only by a SCOTUS decision over the active and systematic opposition of the Bush administration.

This is therefore already a major shift from the Bush administration; the Obama administration acknowledges that they are being held as POWs, which gives them a laundry list of rights that Bush has systematically denied and violated, many of which have not (yet) come up in court. For example, the Geneva Conventions explicitly state that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity." (Article 13) This goes far beyond legalistic arguments about "torture"; the well-publicized Koran burning violates the GC.

Similarly, "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." In other words, you can't even be unpleasant to POWs in an attempt to get information out of them.

Prohibiting detaininees from contacting the outside world or holding them incommunicado is likewise forbidden: "Prisoners of war shall be allowed to send and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war, the said number shall not be less than two letters and four cards monthly."

Also: "Prisoners of war shall have the right to make known to the military authorities in whose power they are, their requests regarding the conditions of captivity to which they are subjected.

"They shall also have the unrestricted right to apply to the representatives of the Protecting Powers either through their prisoners' representative or, if they consider it necessary, direct, in order to draw their attention to any points on which they may have complaints to make regarding their conditions of captivity.

"These requests and complaints shall not be limited nor considered to be a part of the correspondence quota referred to in Article 71. They must be transmitted immediately. Even if they are recognized to be unfounded, they may not give rise to any punishment."

Do the Gitmo detainees currently have the unrestricted right to communicate with the Red Crescent?

Does the Red Crescent even have the authority to enter Gitmo without restricted? The GC says it does: "Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter.

Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure."

So I think it's a significant change....

 

[Azure]

I'm waiting for the left wing that daily accused Bush of "trampling on the Constitution" and demanding his impeachment for holding POWs indefinitely to start in on Obama.

This is me holding my breath until I turn blue...

My friend, you will wait a while longer.

The nature of the support the left has for Obama will never allow them to reverse their support in the policies he will intact.

 

[Texas]

To me it seems as if the major difference between the Bush and Obama policy is that Obama is giving them status as prisoners of war and explicitly making thier captivity subject to the accords of the Geneva Convention. I still don't know what this will turn out to mean in terms of practical difference, though.

If he places them in SuperMAX prisons with 23 hour per day solitary confinement then he is treating them "worse" than Bush did. There is no way he can politically put them in more moderate facilities on US soil. The Governor of Colorado, which has the largest SuperMax in the country,has already stated that he would take them.

http://en.wikipedia.org/wiki/Supermax#Prisoner_life

In SHU, prisoners are generally allowed out of their cells for only one hour a day; often they are kept in solitary confinement. They receive their meals through ports, also known as "chuck holes," in the doors of their cells. When Supermax inmates are allowed to exercise, this may take place in a small, enclosed area where the prisoner will exercise alone.

Prisoners are under constant surveillance, usually with closed-circuit television cameras. Cell doors are usually opaque, while the cells may be windowless. Conditions are spartan, with poured concrete or metal furniture common. Often cell walls, and sometimes plumbing, are soundproofed to prevent communication between the inmates.

 

[WildCat]

Obama is giving them status as prisoners of war

When did this happen?

 

[WildCat]

If he places them in SuperMAX prisons with 23 hour per day solitary confinement then he is treating them "worse" than Bush did. There is no way he can politically put them in more moderate facilities on US soil. The Governor of Colorado, which has the largest SuperMax in the country,has already stated that he would take them.

http://en.wikipedia.org/wiki/Supermax#Prisoner_life

You can't put enemy combatants in a prison. That is a clear violation of the GC, they can be detained only with other captured combatants.

The only way they could be put in Colorado's Supermax is if it was first emptied of all criminal inmates.

 

[Texas]

You can't put enemy combatants in a prison. That is a clear violation of the GC, they can be detained only with other captured combatants.

The only way they could be put in Colorado's Supermax is if it was first emptied of all criminal inmates.

But that is what Obama intends to do.

http://www.thedenverchannel.com/news/18548622/detail.html

The Obama administration is considering whether to transfer terrorism suspects from the controversial prison at Guantanamo Bay in Cuba to the federal Supermax prison in southern Colorado

 

[Puppycow]

I'm waiting for the left wing that daily accused Bush of "trampling on the Constitution" and demanding his impeachment for holding POWs indefinitely to start in on Obama.

This is me holding my breath until I turn blue...

You can exhale.

In fact I think this actually predates your post so you never needed to hold your breath in the first place. But please be my guest.

ETA: I'm waiting for the right wing who supported Bush's policies to start voicing full-throated support for Obama's policies.

This is me holding my breath until I turn blue...

 

[gumboot]

Do the Gitmo detainees currently have the unrestricted right to communicate with the Red Crescent?

No. Only the ICRC has authority to access detainees. The Red Crescent agencies are local national agencies, and do not have this authority. The ICRC has been given complete access to Guantanamo Bay by the US military and conducts regular assessments of conditions there.

 

[Texas]

You can exhale.

In fact I think this actually predates your post so you never needed to hold your breath in the first place. But please be my guest.

ETA: I'm waiting for the right wing who supported Bush's policies to start voicing full-throated support for Obama's policies.

This is me holding my breath until I turn blue...

I applaud Obama for this decision.