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NYT on Gitmo Review Boards:
The Sunday New York Times has a fascinating story about the review boards being used at Guantanamo to determine who at Gitmo can be held as an enemy combatant.
Visitor Again:
What a farce. Why even bother? No one is fooled. Every day I'm struck by the similarity between the conduct the U.S.A. commits and the terrorist atrocities it purports to deplore.

That goes for the videotape of the hanging of Saddam Hussein; there's little difference between that and the tapes of the terrorists who cut off the heads of their detainees. Of course Bush claims Hussein got the due process he denied his victims. It is true Hussein had a show trial of sorts, one in which the judge had to be removed for being too favorable to the defense. White House officials were quick to tell us Bush was asleep in Texas when the execution came down and wasn't even woken to be told of it; the intended implication obviously was that Bush had nothing to do with it, it was all down to those Iraqis taking control of their own destiny. Who do these clowns think they're kidding?

At least Hussein was guilty of atrocities, even if never proven at a trial meeting any sort of due process standards. Virtually all these Gitmo victims are most likely innocent. They aren't even getting a show trial.

I never believed I would see the day when this sort of thing could go on for years and years in this country. I thought we'd learned something from the deplorable way the Japanese internees were treated during the Second World War.

I don't care what labels the Bush Administration tries to pin on these men, as if that were an adequate substitute for evidence of guilt; they are human beings and they have been treated as if they are subhuman. These hearings are no better than those sham trials the Saddam Hussein regime conducted for decades. I'm filled with disgust.
12.31.2006 4:19am
Fub:
Visitor Again wrote:
What a farce. Why even bother? No one is fooled. Every day I'm struck by the similarity between the conduct the U.S.A. commits and the terrorist atrocities it purports to deplore.
...
These hearings are no better than those sham trials the Saddam Hussein regime conducted for decades. I'm filled with disgust.
Wow! It really is always September somewhere on the 'net, with a full moon too.
12.31.2006 10:23am
Truth Seeker:
Virtually all these Gitmo victims are most likely innocent.

Amazing how many blog commenters know so much more than the highest echelons of the U S government. And they're able to pass judgment without even seing the evidence! Uncanny!
12.31.2006 10:24am
Grover Gardner (mail):
"And they're able to pass judgment without even seeing the evidence!"

Is the irony here intentional?
12.31.2006 10:31am
Mark Field (mail):

Amazing how many blog commenters know so much more than the highest echelons of the U S government.


Considering how many former Gitmo detainees have been released, the odds of innocence seem higher than on Illinois's death row.
12.31.2006 10:35am
Brogie62:
Mark Field said:


Considering how many former Gitmo detainees have been released, the odds of innocence seem higher than on Illinois's death row.


I think it is important to note that detainees were given hearings and many were released, sounds like due process to me.
12.31.2006 10:42am
Eli Rabett (www):
No, it sounds like a process. Random, arbitrary and capricious.
12.31.2006 12:03pm
PersonFromPorlock:
I'm not all that impressed with the way the government has used word games to justify some of its actions -- if Gitmo isn't subject to the Constitution because of its extraterritoriality, how about Cuban law? -- and for sure the whole idea of natural rights has taken a shot, what with our 'discovery' that they're contingent on citizenship, but the scale of the thing is miniscule. Six hundred or a thousand not-always-innocent people discommoded is a long way from denuding the West Coast of Japanese-American citizens and any comparison of the two is overwrought.

If consistency had any place in government then some of the precedents set would be troubling. But we all know that the government picks its principles according to its goals so the precedents are really meaningless.
12.31.2006 12:07pm
liberty (mail) (www):
"Considering how many former Gitmo detainees have been released, the odds of innocence seem higher than on Illinois's death row."

If they aren't released its assumed that we are holding or killing innocent people, if they are released its proof that we were holding innocent people. Is there any way that you'll believe that some are possibly guilty? Do note that many if not most were picked up on the battlefield.

It is possible, when some judicial process is followed to release people that indeed were guilty - guilty of fighting us in battle, guilty of working with or for terrorists, guilty or something but not necessarily with enough proof or enough culpability to be imprisoned or executed by our own standard and laws.
12.31.2006 12:12pm
J. F. Thomas (mail):
Do note that many if not most were picked up on the battlefield.

Oh really? It is my understanding that most were turned over to us by the Northern Alliance and we were offering bounties of up to $5000 for "Al Qaeda" members. So any Northern Alliance member who had a grudge against a neighbor or knew of a foreigner hanging around the village and wanted to earn a few extra bucks could condemn someone as Al Qaeda.
12.31.2006 12:44pm
Anderson (mail) (www):
I'm reading Michael Burleigh's survey of The Third Reich, and his section on "The Demise of the Rule of Law" is replete with quotations from Hitler et al. on how the law couldn't be allowed to interfere with keeping Germany safe.

Even the Nazi "People's Court," I noted, rejected confessions exacted under duress, which our military commissions are allowed to accept at their discretion.

The situation at Gitmo boils down to the Executive's saying "these people need to be detained because we say so." Anyone who needs the flaw in that "process" explained to 'em, probably isn't persuadable in the first place. God save this country from another Republican administration in 2009.
12.31.2006 1:01pm
Ken Arromdee:
Even the Nazi "People's Court," I noted, rejected

The Nazis rejected a lot of things. So? For instance, they rejected abortion; does this mean that people who support abortion are more extreme than the Nazis?
12.31.2006 1:20pm
Ramza:
Its called stacking the deck. This isn't due process of law, for the burden of proof has been switched to the detainees must proving without a reasonable doubt that there story is correct and the government's one is wrong.

Some people may argue this is necessary to fight the war on terror. If so argue that, don't play a semantic game try to pretend a horse is a cat, when everybody knows this horse is a horse.

For me personally Guantanamo leaves an upset stomach and a bad taste in the mouth. Of course me fighting a war or to perform surgery would have similar results. This is why I am only a sideline watcher.
12.31.2006 1:34pm
AnonLawStudent:
Anyone ever heard of an "act of state," to which notions of "due process" aren't really applicable...

Ramza: The notion of "presumption of innocence" is the real oddity. Large parts of the world, including the "civilized" nations of Europe, presume guilt.
12.31.2006 2:17pm
liberty (mail) (www):
Oh really? It is my understanding that most were turned over to us by the Northern Alliance and we were offering bounties of up to $5000 for "Al Qaeda" members.

1. Since we have soldiers fighting, some with the Northern Alliance and some not, I would think that we have been picking them up ourselves as well. Do you know the exact breakdown?

2. Do you truly believe that we simply fork over $5000 for any man handed over, or do you think possibly that we require some kind of proof?

According to the L.A. Times, fewer than 10% are deemed to be worthless in terms of terrorist intelligence after questioning. Some are picked up by Pakistani authorities or by the U.S. simply because they may have intelligence, they are related to al Qaeda but not considered very dangerous. They are questioned and then released. Others are picked up on the battlefield or somewhere along the Afghan-Pakistan border and are considered dangerous. We know that some have returned to the battlefield after being freed - and we have picked them up again!

I am not defending the prison unconditionally, but it is often mis-represented, and its silly to assume that the prisoners are all innocent simply because they are later freed, or that we are imprisoning innocent men because its somehow obvious that many are innocent and we aren't freeing them.
12.31.2006 2:23pm
AntonK (mail):
Ha, the comments here are just hilarious!

That Orin Kerr, he's such a joker! He knew that posting on the subject of Guantanamo, and using the always reliable and unbiased NYTimes as his source would get you all going.

Good work Orin, you crazy guy you!!

Happy New Year!
12.31.2006 2:30pm
Anderson (mail) (www):
Anyone ever heard of an "act of state," to which notions of "due process" aren't really applicable...

Sure. You can read all about it in that Third Reich book I mentioned above.
12.31.2006 2:36pm
Ramza:

Ramza: The notion of "presumption of innocence" is the real oddity. Large parts of the world, including the "civilized" nations of Europe, presume guilt.

Yes and it was a policy decision to make our legal system based on the presumption of innocence. As a general rule our society views it to be far better to let some "criminals" go free rather than jailing some "innocents." I can then make arguments why in my opinion this is a better choice. (It is my opinion for you have to assign arbitrary values to certain ideals and people can disagree on the weight we should assign these ideals)

If you want to reverse our societies general rule make arguments on why its wise to do so. Don't create strawmens that "see see these terrorists got there hearings and the hearings found them to be enemy combatants, thus they must be enemy combatants and they did get there "due process" of law. It my be semantically accurate for you revoke all legal rights that these people are entitled to, and thus the few that remain are being uphold. Of course in doing so you get rid of the whole point of due process (a word that has a legal definition and implied underlying moral and ethical connections within today's society).

--------------------

In sum I am saying, if you want X argue X. If its a horse call it a horse, instead of trying to dress it up as another animal. Rational and fair debate needs a common language to be successful, winning a debate on semantics or trickery isn't winning the debate on the merits of your proposition. Policy decisions should be decided on there merits, for that is what leads to the best results.
12.31.2006 2:36pm
AntonK (mail):

Virtually all these Gitmo victims are most likely innocent


Yes, and here you can find the biographies of these poor, innocent folks.
12.31.2006 2:36pm
AntonK (mail):

Erik Saar, an army sergeant at Gitmo for six months and co- author of a negative, tell-all book titled "Inside the Wire," inadvertently provides us more firsthand details showing just how restrained, and sensitive to Islam -- to a fault, I believe -- detention facility officials have been.

Each detainee's cell has a sink installed low to the ground, "to make it easier for the detainees to wash their feet" before Muslim prayer, Mr. Saar reports. Detainees get "two hot halal, or religiously correct, meals" a day in addition to an MRE (meal ready to eat). Loudspeakers broadcast the Muslims' call to prayer five times daily.

Every detainee gets a prayer mat, cap and Koran. Every cell has a stenciled arrow pointing toward Mecca. Moreover, Gitmo's library -- yes, library -- is stocked with Jihadi books. "I was surprised that we'd be making that concession to the religious zealotry of the terrorists," Mr. Saar admits. "It seemed to me that the camp command was helping to facilitate the terrorists' religious devotion." Mr. Saar notes one FBI special agent involved in interrogations even grew a beard like the detainees "as a sort of show of respect for their faith."

Unreality-based liberals would have us believe America is spitefully and systematically torturing innocent Muslims at Guantanamo Bay. Meanwhile, our own MPs have endured little-publicized abuse at the hands of manipulative, hatemongering enemy combatants. Detainees have spit on and hurled water, urine and feces on the MPs. Causing disturbances is a source of entertainment for detainees who, as Gen. Richard Myers notes, "would turn right around and try to slit our throats, slit our children's throats" if released.


And indeed, a number of released terrorists from Guantanamo have been recaptured on the battlefield.
12.31.2006 2:46pm
r78:

I think it is important to note that detainees were given hearings and many were released, sounds like due process to me.

Three or 4 years of imprisonment before release is due process?

And indeed, a number of released terrorists from Guantanamo have been recaptured on the battlefield.

Evidence please?

Also, I guess if this is true it raises some interesting questions. If we are releasing actual terrorists who are threats to us, it seems that the selection and review process is deeply flawed.

But, on the other hand, if I were an innocent person who was rounded up or turned over by the Pakastani police (as many were to collect the rewards) and I was then imprisoned in a hell hole for 3 or 4 years, I don't have a doubt that I would spend the rest of my life trying to kill as many Americans as I possibly could. Wouldn't you? So you have to wonder whether the captivity encourages terrorism as revenge.
12.31.2006 2:55pm
AntonK (mail):

And indeed, a number of released terrorists from Guantanamo have been recaptured on the battlefield.

Evidence please?


Here
12.31.2006 3:00pm
crane (mail):

But, on the other hand, if I were an innocent person who was rounded up or turned over by the Pakastani police (as many were to collect the rewards) and I was then imprisoned in a hell hole for 3 or 4 years, I don't have a doubt that I would spend the rest of my life trying to kill as many Americans as I possibly could. Wouldn't you? So you have to wonder whether the captivity encourages terrorism as revenge.


That actually sounds like movie plots I've heard of. The hero is framed for a crime he didn't commit, suffers in prison for years before breaking out, and then spends the rest of the movie tracking down and killing his framers/tormenters in various unpleasant ways.

Maybe the next few years will see Guantanamo revenge movies like this coming out in the middle east.
12.31.2006 3:16pm
liberty (mail) (www):
"Also, I guess if this is true it raises some interesting questions. If we are releasing actual terrorists who are threats to us, it seems that the selection and review process is deeply flawed. "

Right, because normally no prisoner ever set free ever re-commits and there is never a loophole, technicality or legal reason to release a guilty person especially if due process is followed. That was sarcasm in case you missed it.

As to your claim that we are creating terrorists by imprisoning the innocent -- I can only sigh and consider you naive. And, by the way, no I don't think that if I were wrongly imprisoned by a foreign government that I would take up arms and spend my life battling that country. I would come home to America and write a book about it. Would it be different if I were originally from a poor and extremely religious country? I don't know. But I imagine that it would depend on many factors - not the least of which is the treatment I actually received during imprisonment, and whether I gained any respect for the foreign country. There are many stories of prisoners at g. bay actually explaining to the guards how the food, quality of medical care and other treatment at the prison was not only extremely high and better than expected, but that it was actually a better life than they were used to. Some of them gained a whole new respect and understanding of America and our culture.
12.31.2006 3:19pm
Anderson (mail) (www):
So you have to wonder whether the captivity encourages terrorism as revenge.

That's certainly what early visitors to Gitmo concluded: "if they weren't terrorists before, they are now."

By the Kafka-like logic of the Bush administration, that probably justifies holding them for life.
12.31.2006 3:21pm
Bob from Ohio (mail):
The New York Times opposes Gitmo as a policy. The "news" articles they publish select (or invent) some facts and ignore others to "prove" that Gitmo is an affront.

Look at the Public Editor column in today's NYT to see how the NYT handles "facts" on hot button issues.
12.31.2006 3:29pm
Peter Wimsey:
Ramza: The notion of "presumption of innocence" is the real oddity. Large parts of the world, including the "civilized" nations of Europe, presume guilt.


Name a "civilized" nation of Europe that presumes guilt.
12.31.2006 3:33pm
Mark Field (mail):

I think it is important to note that detainees were given hearings and many were released, sounds like due process to me.


Most of those held at Gitmo have never been given any kind of hearing. Many have been released (after several years) with no hearing, many have been held with no hearing.



If they aren't released its assumed that we are holding or killing innocent people, if they are released its proof that we were holding innocent people.


Yes, if the government releases a prisoner we assume the prisoner is innocent. What assumption do you make -- that Bush is releasing the guilty?

Nobody is assuming those still held there are innocent. We're just applying the presumption of innocence. If roughly half of the prisoners ever held there have been released voluntarily, that seems factually appropriate as well as legally so. If the government believes they are guilty of something, hold a hearing.


Is there any way that you'll believe that some are possibly guilty?


I assume this is rhetorical. Give them a fair hearing and we'll believe they're guilty.


Do note that many if not most were picked up on the battlefield.


Depends on how charitable you're willing to be about the meaning of "battlefield". Giving it the broadest possible interpretation, at least 1/3 were NOT captured on the battlefield. Cite.


And indeed, a number of released terrorists from Guantanamo have been recaptured on the battlefield


Cite?


Since we have soldiers fighting, some with the Northern Alliance and some not, I would think that we have been picking them up ourselves as well. Do you know the exact breakdown?


7% were picked up by US forces, 93% by others, mostly Pakistanis. The Seton Hall study (pdf), p. 14.


Do you truly believe that we simply fork over $5000 for any man handed over, or do you think possibly that we require some kind of proof?


The nature and amount of evidence required was minimal. See the Seton Hall study.


Some are picked up by Pakistani authorities or by the U.S. simply because they may have intelligence, they are related to al Qaeda but not considered very dangerous. They are questioned and then released.


We're only talking about Gitmo, the place where they hold the "worst of the worst". Those you describe in these sentences do not fall into that category and there'd be no justification for taking them to Gitmo, much less holding them there.
12.31.2006 3:39pm
chrismn (mail):
I cannot help but commenting on how incredibly unserious the anti-Gitmo commenters are. We are in a war. We've captured people who we have reason to believe have dedicated their lives to killing as many of us as possible. What should be done with them? I don't want to hear what shouldn't be done with them. I've heard enough of that. What is the positive agenda of the anti-Gitmo's for dealing with those we capture on the battlefield? Trials in Federal Court? What?
12.31.2006 3:55pm
Anderson (mail) (www):
The New York Times opposes Gitmo as a policy.

Maybe because it's wrong?

We've captured people who we have reason to believe have dedicated their lives to killing as many of us as possible.

Well, once you start begging the question, the argument becomes remarkably easy, doesn't it?

What is the positive agenda of the anti-Gitmo's for dealing with those we capture on the battlefield?

Tribunals held according to the Uniform Code of Military Justice, with counsel provided, no secret evidence, the right to confront and cross-examine witnesses ... you know, pretty much the same thing you would expect if someone were proposing to lock *you* up for several years.

Probable cause, as required to deny a habeas writ, is not a terribly difficult standard to meet, and it speaks worlds about Gitmo that we're deathly afraid of being expected to satisfy it.
12.31.2006 4:13pm
AntonK (mail):
Peter Wimsey says"


Name a "civilized" nation of Europe that presumes guilt.


See: U.S. Faces Obstacles To Freeing Detainees
12.31.2006 4:37pm
AntonK (mail):

And indeed, a number of released terrorists from Guantanamo have been recaptured on the battlefield

Cite?


Here's the cite
12.31.2006 4:38pm
Anderson (mail) (www):
See: U.S. Faces Obstacles To Freeing Detainees

And it discusses the presumption of guilt where, exactly?
12.31.2006 4:52pm
Toby:

Tribunals held according to the Uniform Code of Military Justice, with counsel provided, no secret evidence, the right to confront and cross-examine witnesses ... you know, pretty much the same thing you would expect if someone were proposing to lock *you* up for several years

Might purty words. IANAL, but

Does the Uniform Code presume military status as defined in Geneva Conventions? Does this apply to a GITMO detainee or not?

If (big supposition) the evidence is from underground sources during a time of war, should those sources be burned or not?

Exactly how do you propose gathering witnesses on a battlefield? Can you cite any battlefield ever on which this has been done.

Actually, if I am taken in battle against the US, I personally would expect to be handled as a traitor. If I am uniformed actor of a state, meaning there is a higher controlling authority, I expect to be handled as an state actor. Please define which category of "You" you mean?

There may be any number of mis-steps in Gitmo, but the assumption that it is or should be business as usual is absurd. It might start with giving them the same treatment that the detainees would have in solitary confinement anywhere in any prison in the US. GITMO appears to have better food / comfort / Q'ran sensitivity / lack of reprisal for attacks on guards than any of them.
12.31.2006 5:00pm
AntonK (mail):
The Nazis at Guantanamo have employed the dreaded Harry Potter readings, the diabolical high volume Red Hot Chili Peppers, the abominable shirt grab and the monstrous belly slap, and much much more.

But now the inhuman Bushitler minions at Guantanamo Torture Facility have devised the most fiendish abuse ever perpetrated by The Man: The Hideous High-Calorie Diet.

A high-calorie diet combined with life in the cell block — almost around the clock in some cases — is making detainees at Guantanamo Bay fat.

Meals totaling a whopping 4,200 calories per day are brought to their cells, well above the 2,000 to 3,000 calories recommended for weight maintenance by U.S. government dietary guidelines. And some inmates are eating everything on the menu.

One detainee has almost doubled in weight, to 410 pounds, said Navy Cmdr. Robert Durand, spokesman for the detention facilities at Guantanamo, a U.S. Navy station in southeast Cuba.

Human rights groups attribute the weight gain to lack of exercise. They cite accounts of released detainees who complained they were allowed to exercise fewer than three times a week outside their small cells.


When combined with the belly slap, the high calorie diet has been known to break down hardened killers within seconds.

Claudia Rosett may have been the first to expose this new horror.
12.31.2006 5:05pm
r78:

"You can't trust them when they say they're not terrorists," he said.

That article, relying largely on anonymous sources, stated that 10 or so of the over 200 people released had been recaptured.

So, the person quoted is correct at least 5% of the time anyway.
12.31.2006 5:06pm
AntonK (mail):
CIA Torture Horror Revealed

The Guardian blows the cover on the nightmarishly brutal torture techniques the CIA wants permission to use. (Hat tip: Allahpundit.)

My friends, can your hearts stand the shocking facts about ... the belly slap?

The techniques sought by the CIA are: induced hypothermia; forcing suspects to stand for prolonged periods; sleep deprivation; a technique called "the attention grab" where a suspect's shirt is forcefully seized; the "attention slap" or open hand slapping that hurts but does not lead to physical damage; the "belly slap"; and sound and light manipulation.

Several of those techniques chime with information gleaned about interrogation methods used against some serious terror suspects. The New York Times recently reported that Abu Zubaydah, the first al-Qaida member captured after the September 11 attacks, was kept in a freezing cell until he went blue, and later assailed with loud Red Hot Chili Peppers music.


It's true. We've lost the moral high ground.
12.31.2006 5:07pm
Visitor Again:
At least Hussein was guilty of atrocities, even if never proven at a trial meeting any sort of due process standards. Virtually all these Gitmo victims are most likely innocent. They aren't even getting a show trial.

I never believed I would see the day when this sort of thing could go on for years and years in this country. I thought we'd learned something from the deplorable way the Japanese internees were treated during the Second World War.


I do believe a large number of the Gitmo detainees are likely innocent--because of the factors a number of commenters mentioned, including particularly the rewards that were offered and the numbers that have been released. But I didn't need to say that much to make my point and perhaps I shouldn't have.

The fact is that despite the questionable circumstances in which many of the detainees were picked up, the detaining authority, the U.S.A., has shown little interest in determining whether or not many of these men pose a threat and no interest in finding out one way or another on the basis of any kind of fair process. The hearings accorded the detainees are a sham, and to pretend otherwise is to engage in farce.

Someone wrote that the scale of all this is miniscule because there are only 600 or so detainees. What a sad commentary that is on what passes for notions of decency and fairness in our society.

My sentiments on this are based not only on concern for the detainees as human beings but also on concern for my country's character as a country. I believe that our collective character is best revealed by how we act in times of difficulty and stress. It seems to me it took very little for us to shunt aside even the most basic notions of decency and fairness--not on the basis of rogue actions committed by a few but as a matter of considered national policy. It is another sad sign of the times that many on this blog apparently view these concerns as an indication that "[i}t really is always September somewhere on the 'net, with a full moon too."

I've always thought Ford's pardon of Nixon--the main legacy of the Ford Presidency--was a travesty. Had he not granted the pardon, Nixon would have had to face the music in criminal court, and the principle that even Presidents may be prosecuted for their crimes in office would have been firmly established. That might have given pause to some of our later Presidents, including Bush. Some who gain power in our country need that kind of restraint, and Bush is one of them.
12.31.2006 5:10pm
godfodder (mail):
What I fail to understand in all this hoopla is what, exactly, do some of you propose we do with prisoners of war? There is a long history of precisely this sort of thing (I mean Guantanamo) Enemy combatants have been detained (and thereby prevented from re-entering the war, and killing more of our soldiers) since time immemorial. At no point in America's history am I aware that we provided some sort of routine judicial process for captured enemy soldiers. Did we provide this for German soldiers captured during the Battle of the Bulge? Did we provide attorneys for all the Japanese captured on Iwo Jima? Do you not see that you are proposing a legal procedure for detaining captured soldiers that is completely unworkable and completely ahistorical? That soldiers on a battlefield don't have time to gather evidence, dust for fingerprints, etc, so that they can "prove" their reports at a later date? We never even contemplated such a thing in WW2, or Korea or Vietnam. Why is it so suprising that it is not happening in Iraq and Afghanistan?

The difference here is that the enemy's army refuses to identify itself as such. They refuse to wear uniforms; they refuse to admit that they are even affiliated with the enemy. This creates some problems, but are they not problems entirely of the enemy's making? What would we have done in WW2 if the German Army decided to take off their uniforms, but continued to prosecute the war? Would we have suddenly decided that the war was over, and all the killing needed to be solved by the local sheriff?

I just don't understand why some of you seem so convinced that there is not a war going on! War operates in a legal universe that is almost entirely separate from civil/criminal peacetime law. As well it should.
12.31.2006 5:22pm
AnonLawStudent:
Peter Wimsley: Name a "civilized" nation of Europe that presumes guilt

See, e.g., Hoang v France 16 EHRR 53 1992 (France, summary available via Westlaw)

Anderson: I'm pleased to see Godwin's law at work. The problem is not with those of us who believe that Gitmo is beyond the realm of judicial intervention. It is with those who persist in applying notions of civilized "law" to a war involving those who do not ascribe to your notions of "law."
I'm certain that the ratifiers of the 5th Amendment would find your notion of binding the nation's acts abroad by its stricture of "Due Procee" quite queer.
12.31.2006 5:23pm
r78:

At no point in America's history am I aware that we provided some sort of routine judicial process for captured enemy soldiers.

Perhaps so, but then again I am not aware of any time in our history that we have received hundreds of prisoners from local police forces from a foreign country (Pakistan) where we offered a bounty for delivery of the prisoners.

Look, if there is a soldier (or armed civilian or whatever) that we actually capture in a battle, then there is a solid defense for treating that person as a prisoner of war. (Just as it is acceptable to kill them during battle.)

But where we have people handed to us by a third party, we do have an obligation to treat that person properly.
12.31.2006 5:45pm
Mark Field (mail):

I'm certain that the ratifiers of the 5th Amendment would find your notion of binding the nation's acts abroad by its stricture of "Due Procee" quite queer.


Who's talking about "abroad"? We're discussing what happens on US territory (Gitmo). As for the 5th Amendment, it specifically applies to persons, not citizens.


The problem is not with those of us who believe that Gitmo is beyond the realm of judicial intervention. It is with those who persist in applying notions of civilized "law" to a war involving those who do not ascribe to your notions of "law."


No, the problem is that there are those who can't seem to understand that the behavior of our enemies is what makes them the "bad guys". What makes us the "good guys" is that we follow certain ethical and legal norms of fairness.


Enemy combatants have been detained (and thereby prevented from re-entering the war, and killing more of our soldiers) since time immemorial.


You're making an unwarranted assumption here. Because of the nature of this conflict and the circumstances of capture -- only 7% by US forces and many of them nowhere near a battlefield no matter how generously defined -- it's not at all clear that the prisoners actually are "enemy combatants". By assuming that they are, you are assuming away the very point in dispute.


I just don't understand why some of you seem so convinced that there is not a war going on!


Because there is no "war" in the usual sense of that term.


My friends, can your hearts stand the shocking facts about ... the belly slap?


It's amazing that the Islamic poor aren't clamoring for entry into Gitmo. They'd much better than they do now and you make the treatment sound so pleasant. Why oh why aren't there boat people washing ashore at Gitmo?


Exactly how do you propose gathering witnesses on a battlefield? Can you cite any battlefield ever on which this has been done.


Essentially every battlefield ever. Armies ALWAYS have to distinguish between civilians and combatants. That's how they decide which ones to hold and which ones to release.

Again, though, you're assuming, with no justification, that the prisoners were actually taken on a "battlefield". This clearly does NOT apply to at least a third of them and probably more.

You're also exaggerating the amount of evidence necessary. If a US soldier says something to the effect of "This guy was shooting at us but threw down his weapon and surrendered", that's all it takes. This can't be very hard -- his commanding officer would ask the same question anyway.


Actually, if I am taken in battle against the US, I personally would expect to be handled as a traitor. If I am uniformed actor of a state, meaning there is a higher controlling authority, I expect to be handled as an state actor.


If you were arrested for treason or any other crime, you'd get the full panoply of due process rights. If you were a POW, you'd get the GC rights. The Bush Administration refuses to extend either of these to the prisoners at Gitmo.
12.31.2006 6:01pm
Mark Field (mail):
The second sentence of my 5th paragraph should have started "They'd eat much better..."
12.31.2006 6:05pm
Anderson (mail) (www):
It is with those who persist in applying notions of civilized "law" to a war involving those who do not ascribe to your notions of "law."

I am not surprised to see someone hide behind Godwin's Law, who thinks that the rule of law has to be suspended whenever we fight a war against someone less wholesome than ourselves. That was one of the favorite Nazi justifications.
12.31.2006 6:16pm
J. F. Thomas (mail):
We've captured people who we have reason to believe have dedicated their lives to killing as many of us as possible. What should be done with them? I don't want to hear what shouldn't be done with them. I've heard enough of that. What is the positive agenda of the anti-Gitmo's for dealing with those we capture on the battlefield?

And what exactly are those reasons and evidence that we have? Just look at the most "dangerous" and most high-profile gitmo detainee that we chose to try first. The guy is a mastermind. He is accused of being nothing more than OBL's driver and being present (not participating in, mind you, just being present--apparently he was there to fetch tea and baclava) at terrorist meetings. So for all this touting the Gitmo detainees being the "worst of the worst", the "worst of the worst of the worst" we can come up with to try first is OBL's chauffer and butler?

Excuse me if I am not buying the administration line.
12.31.2006 6:23pm
Anderson (mail) (www):
induced hypothermia; forcing suspects to stand for prolonged periods; sleep deprivation; a technique called "the attention grab" where a suspect's shirt is forcefully seized; the "attention slap" or open hand slapping that hurts but does not lead to physical damage; the "belly slap"; and sound and light manipulation.

I've blogged at length about these standbys of the Soviet torture handbook. Forced standing for 24-48 hours is incredibly painful &can even cause kidney failure &death. Sleep deprivation is useful mainly to get someone to confess to whatever you want. We have killed a couple of prisoners via hypothermia.

As pointed out ad nauseam, if these techniques are so effeminate as not to merit designation as "torture" or "abuse," then why are we using them? Not because trained interrogators think they work -- quite the contrary.

To quote Burleigh again, since he's so unpleasantly relevant:

Judicial officials were reduced to negotiating with the Gestapo in June 1937 to regularise torture, a phenomenon not unknown in modern states which use violent methods. *** The meeting overlooked such techniques as deprivation of food, light or sleep, which also belonged (and, in some countries, still do) to the torturer's armoury.

I daresay that, writing in 2000, Burleigh could hardly have guessed that "modern states" and "some countries" would include the United States of America.
12.31.2006 6:27pm
J. F. Thomas (mail):
See, e.g., Hoang v France 16 EHRR 53 1992 (France, summary available via Westlaw)

France is a civil law system. As is most of Europe. Both the criminal and civil law systems are non-adversarial, so the presumption of guilt or innocence means different things in such a system but it there is still a presumption of innocence in a civil law system. It also may seem shocking to the conscience that most civil law systems also allow double indemnity and trial by jury is limited, but they manage. In fact, on the whole most civil law systems are much more efficient and deliver justice much more fairly than our system.
12.31.2006 6:35pm
AnonLawStudent:
Anderson: who thinks that the rule of law has to be suspended whenever we fight a war against someone less wholesome than ourselves

War is, by definition, an absence of law, force majeure writ large. What "law" governs the conduct of war consists entirely of agreements for the mutual benefit of the conflicting parties, including rules regarding treatment of prisoners. Hence the distinction between U.S. citizens subject to domestic law ("treason"), lawful uniformed combatants (properly termed P.O.W.s), and unlawful combatants (neither signatory nor following the relevant agreements, and thus not subject to their protection). In short, the intent of the relevant treaties is furthered by harsh treatment of unlawful combatants, not their coddling, so as to properly encourage the "civilized" conduct of warfare. In simpler terms, once you go to war, you put your nuts on the chopping block. It's pretty hypocritical to complain when they get nicked.

Contrary to the assertion of Mark Field, there are no "good guys" and "bad guys." There is us and them, and both sides have decided that they are unable to live at peace with the status quo. Choose. The comprehension of this fact is one of the key demarcations between, for lack of a better term, red staters and blue staters. It is not a traditional war - what we are fighting is a global counter-insurgency. Insurgencies are won by applications of carrots and VERY brutal sticks. As much as it turns my stomach to admit it, I'm sure that most posters here are thankful that a very brutal stick was applied in the post-Civil War South, particularly against the Klan-based insurgencies in Tennessee and Arkansas during Reconstruction.
12.31.2006 6:52pm
Visitor Again:
godfodder:

Because enemy combatants are no longer caught "in flagrante delicto," as it were--in identifiable enemy uniform and/or bearing arms on an identifiable field of battle--you seem to think the U.S.A. should have carte blanche in determining those it may detain as enemy combatants.

You say "soldiers on a battlefield don't have time to gather evidence, dust for fingerprints, etc, so that they can 'prove' their reports at a later date." But that is precisely what our forces did in detaining the Gitmo prisoners--gathered supposed proof that they were enemy combatants. That is precisely why the Gitmo prisoners were detained--on the basis of "evidence" gathered in the field.

Since enemy combatant status is no longer readily determinable, the U.S.A. now detains people indefinitely on the basis of the "evidence" it gathers--by all indications often nothing more than conjecture and rumor and suspicion built on guilt by association or geographical proximity. Common decency and fairness require that this "evidence" be put to the test of fair process--a hearing where both sides have the opportunity to present evidence, to confront evidence and to be represented by counsel.

That we are at war does not justify unfair treatment and unjustified detention for years on end of people who are quite possibly innocent civilians.
12.31.2006 7:35pm
Mark Field (mail):

I'm sure that most posters here are thankful that a very brutal stick was applied in the post-Civil War South, particularly against the Klan-based insurgencies in Tennessee and Arkansas during Reconstruction.


Rightly or wrongly, no such thing was done at all. Instead, the attempt was made to enforce the rule of law by the ordinary course of due process. It's revealing that this course was chosen despite brutality by the Klan which would make Al Qaeda "proud".


What "law" governs the conduct of war consists entirely of agreements for the mutual benefit of the conflicting parties, including rules regarding treatment of prisoners.


Laws of war do exist for this reason, but for other reasons as well. Among the other reasons is the long term interest of the nation. We serve that interest when we remain true to our ideals, not when we depart from them. And even pragmatically, we win "hearts and minds" when we demonstrate our moral superiority, not when we engage in a downward spiral of barbarism.


Contrary to the assertion of Mark Field, there are no "good guys" and "bad guys." There is us and them, and both sides have decided that they are unable to live at peace with the status quo. Choose.


No, this is a false dichotomy. What makes us "us" (or should, anyway) rather than "them" is a commitment to certain fundamental norms. In the absence of that, there is no reason to choose sides. Nor, really, any side to choose.
12.31.2006 7:49pm
Bob from Ohio (mail):
JF Thomas thinks that "OBL's driver" and "butler" should be let go since he was only "present" at terrorist planning sessions. Just a servent.

What kind of man do you think a terrorist organization lets drive for its leader. A saint? Or a hard core murderous thug?

The anti-Gitmo crowd is amazingly unserious.
12.31.2006 7:56pm
frankcross (mail):
What I think is amazingly unserious is people's kneejerk jumping to convenient conclusions.
I would advise reviewing the Seton Hall study, linked above, derived from U.S. government data.
12.31.2006 8:40pm
Visitor Again:
Contrary to the assertion of Mark Field, there are no "good guys" and "bad guys." There is us and them, and both sides have decided that they are unable to live at peace with the status quo. Choose.

No, this is a false dichotomy. What makes us "us" (or should, anyway) rather than "them" is a commitment to certain fundamental norms. In the absence of that, there is no reason to choose sides. Nor, really, any side to choose.


Hear, hear! May we become "us" once again during 2007. In the meantime, Happy New Year to all, even the wrong-headed!
12.31.2006 9:00pm
Mark Field (mail):
I wanted to add that I responded to ALS on his own terms, but his post really is irrelevant to the discussion. Regardless how we should treat the actual enemy, there's no possible excuse for mistreating people who are NOT enemies. As I said above, it begs the question to argue about the treatment of prisoners at Gitmo when it's the status of those prisoners as enemies which is in question.
12.31.2006 9:04pm
PersonFromPorlock:

Someone wrote that the scale of all this is miniscule because there are only 600 or so detainees. What a sad commentary that is on what passes for notions of decency and fairness in our society.

I take it, then, that you'd see no difference between a government that murders dozens and one that murders millions. Given a situation where bad behavior is necessary, the quantity of bad behavior becomes an important moral issue: and I do believe that the Bush administration has done only limited harm to a Constitution that (admittedly and ideally) it ought not to harm at all.
12.31.2006 9:34pm
Visitor Again:
Person from Porlock:

I don't get you. You think in terms that are alien to me.

When it comes to my country, I don't want it mistreating or murdering anyone, and I don't believe it is necessary to do so.

That other countries have done much worse has nothing to do with what I expect from my country. That my own country could have done much worse does not somehow justify that which it has done. That sort of moral relativism is strange to me. It is, of course, an approach that ends up justifying a lot of bad behavior, as you call it.

Quite apart from that, the right to decent treatment is an individual right, and, looking at things from the standpoint of the mistreated individuals, it is little, if any, consolation to the 600 detainees and their loved ones that it wasn't 6,000 or to the dozens murdered in your hypothetical that it wasn't millions.
12.31.2006 10:18pm
Jake (Guest):

No, this is a false dichotomy. What makes us "us" (or should, anyway) rather than "them" is a commitment to certain fundamental norms. In the absence of that, there is no reason to choose sides. Nor, really, any side to choose.
Transnational progressivism summed up in a paragraph.
12.31.2006 10:55pm
Mark Field (mail):

Transnational progressivism summed up in a paragraph.


I assume this is just snark, but it makes no sense. Demanding higher standards of us than I expect from the rest of the world is transnational? Insisting on traditional values is progressive? In the Bush era, I guess maybe it is.
12.31.2006 11:28pm
Visitor Again:
Oh, and Person from Purlock, I didn't appreciate your false statement that I compared the detention of hundreds of thousands of Japanese-Americans during World War II with the detention of the Gitmo 600, to wit:

Six hundred or a thousand not-always-innocent people discommoded is a long way from denuding the West Coast of Japanese-American citizens and any comparison of the two is overwrought.

I made no such comparison, overwrought or not. What I actually said was:

I never believed I would see the day when this sort of thing could go on for years and years in this country. I thought we'd learned something from the deplorable way the Japanese internees were treated during the Second World War.

Since it apparently needs explaining to you, the point was that I thought we had learned about the dangers of unfair enemy combatant detentions from our concededly grossly unfair detention of hundreds of thousands of Japanese-Americans on the basis of mere suspicion that they might be enemy combatants because of their ancestry. A cheap shot by you, boyo.
12.31.2006 11:48pm
Jake (Guest):

I assume this is just snark, but it makes no sense. Demanding higher standards of us than I expect from the rest of the world is transnational? Insisting on traditional values is progressive? In the Bush era, I guess maybe it is.
You just stated flat out that you only want to be grouped with people who conform to your moral/ideological standard, rather than (say) the people who live in your country. That's pretty much the definition of a post-nationalist, and an overwhelmingly likely indicator of a progressive.

I tend to think of the people who are fighting and dying to keep me alive as "us", and the people who are fighting and dying to try to kill me as "them"; but that's just hopelessly provincial thinking, right?
1.1.2007 1:10am
AnonLawStudent:

What makes us "us" (or should, anyway) rather than "them" is a commitment to certain fundamental norms. In the absence of that, there is no reason to choose sides. Nor, really, any side to choose.


In other words, the fact that your "ideals" don't work perfectly in the real world means that the measures necessary to preserve an approximation of those ideals are no different than those of a group who intentionally targets civillians and advocates imposition by force of a theocratic state. Gitmo isn't ideal, but accepting reality is sometimes necessary in order to preserve a larger way of life. Again, it's them or us. And I have a feeling that, push come to shove, you would choose "us." I just find it hypocritical that you fail to do so from the get-go.
1.1.2007 2:17am
Speaking the Obvious:
We've declared a war on Drugs as well as a war on Terror. Does it follow that Bush should be allowed to send putative drug dealers to Gitmo and ignore any of their customarily understood rights, given that we are "in a war"?

Both the war on drugs and the war on terror are open-ended, definitionally amorphous, unable to be won other than by redefining the terms. To claim that someone must be held during the war on terror because he is a terrorist is a very different claim, epistemologically, than the claim that someone must be held during WWII because he is a German.
1.1.2007 2:52am
Harry Eagar (mail):
As a newspaperman myself, I have a hard time taking the Times seriously when it refers again and again to the Geneva conventions in this story. What could the conventions possibly have to do with these men?

As a practical matter, I consider all Muslims to be my enemies, both personally and of the society I am part of. Individual Muslims could provide some evidence that they are not part of a criminal conspiracy against civilization, I suppose, although very few seem inclined to do so.
1.1.2007 3:06am
Michael Edward McNeil (mail) (www):
J. F. Thomas writes:
France is a civil law system. As is most of Europe. Both the criminal and civil law systems are non-adversarial, so the presumption of guilt or innocence means different things in such a system but it there is still a presumption of innocence in a civil law system. It also may seem shocking to the conscience that most civil law systems also allow double indemnity and trial by jury is limited, but they manage. In fact, on the whole most civil law systems are much more efficient and deliver justice much more fairly than our system.

Really? Winston Churchill (who knew a thing or two about the law) put it a bit differently, in his History of the English-Speaking Peoples (also including a bit of prelude for general interest):
It is a maxim of English law that legal memory begins with the accession of Richard I in 1189. The date was set for a technical reason by a statute of Edward I. It could scarcely have been more appropriately chosen however, for with the close of the reign of Henry II we are on the threshold of a new epoch in the history of English law. With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a law common to the whole land and to all men soon took its place. A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son he would feel almost at home. That is the measure of the great King's achievement. He had laid the foundations of the English Common Law, upon which succeeding generations would build. Changes in the design would arise, but its main outlines were not to be altered.

It was in these fateful and formative years that the English-speaking peoples began to devise methods of determining legal disputes which survive in substance to this day. A man can only be accused of a civil or criminal offence which is clearly defined and known to the law. The judge is an umpire. He adjudicates on such evidence as the parties choose to produce. Witnesses must testify in public and on oath. They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge b[ut] by twelve good men and true, and it is only when this jury has determined the facts that the judge is empowered to impose sentence, punishment, or penalty according to law.

All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even to-day, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. He must answer all questions put to him. His right to be represented by a legal adviser is restricted. The witnesses against him can testify in secret and in his absence. And only when these processes have been accomplished is the accusation or charge against him formulated and published. Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty.

These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry II's great-grandson, Edward I had died English criminal and civil procedure had settled into a mould and tradition which in the mass govern the English-speaking peoples to-day. In all claims and disputes, whether they concerned the grazing lands of the Middle West, the oilfields of California, the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.

Reference: Winston S. Churchill, A History of the English-Speaking Peoples, Volume 1, "The Birth of Britain," Dodd, Mead &Company, New York, 1956 (8th Printing, 1962); pp. 221-223.
1.1.2007 8:37am
Anderson (mail) (www):
If we're going to quote Churchill, how about the famous line from The World Crisis:

When all was over, Torture and Cannibalism were the only two expedients that the civilized, scientific, Christian States had been able to deny themselves: and they were of doubtful utility.

One down, one to go.
1.1.2007 10:44am
J. F. Thomas (mail):
Really? Winston Churchill (who knew a thing or two about the law) put it a bit differently, in his History of the English-Speaking Peoples

Winston Churchill was and is simply wrong. He was the ultimate British Imperialist and absolutely believed that everything the British did or invented was the the absolutely the best and most perfect system ever devised by man (or the worst until the alternative were considered).

For the remarkable job he did guiding Britain through WWII, the man was best at creating his own legend and weaseling out of disasters that would have driven lesser men into retirement--usually by shifting blame. He also advocated some truly repugnant policies of the British Empire. As a young journalist in the Boer War, he was an enthusiastic advocate of Concentration Camps (where the term was coined) for Boer women and children, where nearly 30,000 died. He was responsible for the disaster of Gallipolli, because he underestimated the capabilities of the Turks. Of course he tried to shift the blame for his incompetence on the supposedly poor fighting of Australian and New Zealand forces. Then in World War II, in a vicious myth that persists to this day, he ordered British troops to "cut and run" for Dunkirk in 1940, claiming that the French had capitulated and France was lost. It was the British withdrawal from the center of the line, not the French retreat, that caused the line to collapse. The Allies were in a better position, and the Germans weaker, than they were in WWI. To this day we love to call the French "Surrender Monkeys" and mock them for their will to fight the Germans, when it was the British who lost France. Finally, after WWII, Churchill was adamantly against independence for India. He was so incensed by the turning over Britain's "Jewel in the Crown" to the people who actually lived there that he never spoke to Mountbatten (who guided the independence process as the last Viceroy of India again).

What kind of man do you think a terrorist organization lets drive for its leader. A saint? Or a hard core murderous thug?

Or a poor devout Muslim Afghan taxi driver? I'm sorry, but is there anything in the indictment that indicates he is a "hard core murderous thug"? You are, as they say, assuming facts not in evidence.

Regardless, I don't remember saying that we should let this particular detainee go. Perhaps the evidence will show he is a foot soldier for Al Qaeda and deserves to be detained. My point is that of all the people that have passed through Gitmo, and for all the claims that we have the "worst of the worst" there, the one we choose for the first trial (almost five years after capture), is at best nothing more than gofer for OBL. He is not accused of plotting anything, or even participating in a terrorist act or even fighting U.S. or coalition soldiers. Just being in the presence of Al Qaeda leaders. Nothing more.
1.1.2007 10:47am
Mark Field (mail):

You just stated flat out that you only want to be grouped with people who conform to your moral/ideological standard, rather than (say) the people who live in your country.


No, I said the reverse of that: I said I want my country to live up to its own standards. Once again, you'll have to explain how a demand for the US to follow its own standards is "transnational".

But assuming I did say what you claim, so what? Do you want to be grouped with Timothy McVeigh? Jeffrey Dahmer? At some point you choose your company based upon your fundamental moral standards. Mine seem a little further away from Al Qaeda's than some of the posters here.


I tend to think of the people who are fighting and dying to keep me alive as "us"


Nice try. You'll have to remind "us" all just exactly what "fighting and dying" George Bush or Donald Rumsfeld have ever done. It's NOT the Army which is guilty here; the guys who actually do fight and die oppose this crap.


In other words, the fact that your "ideals" don't work perfectly in the real world means that the measures necessary to preserve an approximation of those ideals are no different than those of a group who intentionally targets civillians and advocates imposition by force of a theocratic state.


Good use of false assumptions. First, I never said our treatment of prisoners was "no different than" Al Qaeda. You just made that up. Our treatment may be immoral, but their's is worse.

Second, the fact that they are worse does NOT make the behavior at Gitmo "necessary". Just how is it that the "measures" you defend became necessary? I don't recall George Washington torturing Major Andre.

Finally, you continue to dodge the point: you don't know that the prisoners at Gitmo actually are members of the "group who intentionally targets civillians and advocates imposition by force of a theocratic state." The whole point of a hearing is to decide if they are. Only at that point do the rest of your arguments become relevant.


Again, it's them or us.


No, your "strategy" is to move us closer to them in order to avoid being like them. It's oxymoronic.
1.1.2007 10:52am
Just Dropping By (mail):
"As a practical matter, I consider all Muslims to be my enemies, both personally and of the society I am part of. Individual Muslims could provide some evidence that they are not part of a criminal conspiracy against civilization, I suppose, although very few seem inclined to do so."

And, let me guess, you would say you're not a bigot who is intellectually and morally indistinguishable from a Klansman or Nazi?
1.1.2007 10:54am
liberty (mail) (www):
To this day we love to call the French "Surrender Monkeys" and mock them for their will to fight the Germans, when it was the British who lost France.

Heh. The Brits couldn't "lose France" unless they first had undertaken to win it - in other words, if France could hold her own, it wouldn't have mattered what the Brits had done. France ought to have been a much stronger force given her Imperial history, colonies and general weight in the area. Churchill may have made mistakes, withdrawn troops too soon, been more Nationalistic than we deem appropriate today etc -- but in fact he was the worst except for every other leader of the time; just as America today is the worst except for every other country.
1.1.2007 11:10am
liberty (mail) (www):
My point is that of all the people that have passed through Gitmo, and for all the claims that we have the "worst of the worst" there, the one we choose for the first trial (almost five years after capture), is at best nothing more than gofer for OBL

And what does this prove, exactly? After all that talk of the large scale atrocities of Saddam, when he finally got to trial the first crime he was tried for was only the putting down of a rebellion in a small town, 300 lives lost at most. What does the first trial prove? Perhaps, like with Saddam, this is sort of a trial run.
1.1.2007 11:14am
AntonK (mail):
Anderson say:


See: U.S. Faces Obstacles To Freeing Detainees

And it discusses the presumption of guilt where, exactly?


Well, let's see if we can put 2+2 together here for you, Anderson.

Europeans don't want the Guantanamo detainees because:

1) They're not guilty of anything, and would be productive members of society

2) European countries just can't add 1, or 10 individuals to their current populations, or

3) The Guantanamo detainees are medieval psychotics who would kill as many protected persons as they could get their hands on if given half a chance.

Anderson, a nice scoop of ice cream awaits you if you can pick the right answer.
1.1.2007 11:23am
Daniel Chapman (mail):
Wow...
1.1.2007 11:55am
AnonLawStudent:
Mark Field:

Actually, while Major Andre was tried, he was specifically denied the "civilized" standard of execution by firing squad - he was hanged as a common criminal.

I think that if you gave even a cursory review to history, you would find that extending civilization tends to be a dirty, nasty business, not replete with the "ideals" you advocate. Nor is the history of THIS nation exactly covered in the ideals you are pushing - they are merely a figment of the last two or three decades. Again, it's just a matter of accepting that the real world often doesn't comport with "ideals" - ours, theirs, Marx's, Mao's, whoever's. For most of us, 90% right (or guilty, in the case of Gitmo) is close enough.
1.1.2007 12:05pm
AnonLawStudent:
Mark:

One other intersting note in your cite to Major Andre - his guilt wasn't adjudged via a trial; the "Due Process" in question consisted of an investigation by a "board" of senior Continental Army officers. Hmm... sounds suspiciously similar to Gitmo, except we aren't executing anyone in Cuba.
1.1.2007 12:11pm
Mark Field (mail):

As a practical matter, I consider all Muslims to be my enemies, both personally and of the society I am part of.


A self-fulfilling prophecy if ever there was one.


Actually, while Major Andre was tried


Yes, and that's the issue here, isn't it?


he was specifically denied the "civilized" standard of execution by firing squad - he was hanged as a common criminal.


Yes, and Washington was heavily criticized for it at the time, including by members of his own staff. What's remarkable, and so unlike the poisonous atmosphere of today, is that such opposition could exist without accusations of disloyalty or being a "transnational progressive" (whatever that is).


if you gave even a cursory review to history


Perhaps you have some time available for tutoring.


Nor is the history of THIS nation exactly covered in the ideals you are pushing


The fact that we sometimes fail to live up to our ideals isn't a reason not to try. We failed with slavery in 1787, but we succeeded in 1865. We failed with Jim Crow after the Civil War, but we succeeded 100 years later. We failed the Nisei in WWII, but we paid some recompense 40 years later. Etc.
1.1.2007 12:19pm
Mark Field (mail):

One other intersting note in your cite to Major Andre - his guilt wasn't adjudged via a trial; the "Due Process" in question consisted of an investigation by a "board" of senior Continental Army officers.


For most of those at Gitmo, ANY hearing would be an improvement. But I don't think you really want to compare the fairness of the Andre trial with what's going on at Gitmo.
1.1.2007 12:20pm
Byomtov (mail):
Individual Muslims could provide some evidence that they are not part of a criminal conspiracy against civilization, I suppose, although very few seem inclined to do so.

You mean like living peaceful, normal, lives for example? Is it really your impression that Muslims worldwide take their orders from some sort of secret "Council of the Elders of Mecca?"

Perhaps you could provide some evidence before labeling hundreds of millions of people, including millions of Americans, criminals.
1.1.2007 1:25pm
Speaking The Obvious:
My point is that of all the people that have passed through Gitmo, and for all the claims that we have the "worst of the worst" there, the one we choose for the first trial (almost five years after capture), is at best nothing more than gofer for OBL

Liberty: "And what does this prove, exactly? After all that talk of the large scale atrocities of Saddam, when he finally got to trial the first crime he was tried for was only the putting down of a rebellion in a small town, 300 lives lost at most. What does the first trial prove? Perhaps, like with Saddam, this is sort of a trial run."

What that proves, Liberty, is that the US government didn't want world attention on a trial of Saddam for, say, gassing tens of thousands of Iranians during the Iran-Iraq war, because then he could bring up the defense that he was doing so with the active acknowledgement and encouragement and assistance of the US government. So he's executed for a relatively minor crime. This is the essence of a show trial.
1.1.2007 2:05pm
liberty (mail) (www):
Speaking the Ridiculous: I like how you can believe whatever you want because facts and evidence don't ever come into play.
1.1.2007 2:19pm
Grover Gardner (mail):
"I like how you can believe whatever you want because facts and evidence don't ever come into play."

And with that, ladies and gentleman, we come full circle.
1.1.2007 4:05pm
Anderson (mail) (www):
Anton K: Well, let's see if we can put 2+2 together here for you, Anderson. [Goes into issues irrelevant to legal topic of presumption of guilt in criminal proceedings.]

Obviously, the answer is "no."

Harry Eagar: Individual Muslims could provide some evidence that they are not part of a criminal conspiracy against civilization, I suppose, although very few seem inclined to do so.

Mr. Eagar's "Islamo-fascism" has been noted, but I do have to wonder how I, or he, would provide such evidence that *we* were "not part of a criminal conspiracy against civilization."

Seems to me the Jews under Nazi rule didn't have much luck with that one, either.

--And I'm sure we're all dying to know what newspaper Mr. Eagar brings his talents to. Is the Volkischer Beobachter still in production?
1.1.2007 4:39pm
Fury:
Mark Field writes:


"Nice try. You'll have to remind "us" all just exactly what "fighting and dying" George Bush or Donald Rumsfeld have ever done. It's NOT the Army which is guilty here; the guys who actually do fight and die oppose this crap."


I believe the first part of this excerpt is not germane to the discussion at hand. And some citation that military personnel "oppose this crap" would be helpful to reinforce the point being asserted.
1.1.2007 5:51pm
Speaking The Obvious:
Liberty (surely the nom de plume is ironic) is no doubt comforted by his unwillingness to do any reading of material not vetted by Fox News, but since he asks for some evidence of my claim above, here's some data for him:

Near the beginning of the Iran-Iraq War (do recall the US at the time was backing Iraq--those nasty Iranians had taken our embassy and Saddam was "our strongman" meeting with Donald Rumsfeld--, the Iranians claimed that biological weapons killing their troops had been given to Saddam by the US. Washington denied this. But a Senate document, "United States Chemical and Biological Warfare-related Dual-use exports to Iraq and their possible impact on the Health Consequences of the Persian Gulf War", stated that prior to 1985 and afterwards, US companies had sent government-approved shipments of biological agents to Iraq. These included Bacillus anthracis and Escherichia coli (E. coli). That Senate report concluded that: "The United States provided the Government of Iraq with 'dual use' licensed materials which assisted in the development of Iraqi chemical, biological and missile-systems programs, including ... chemical warfare agent production facility plant and technical drawings, chemical warfare filling equipment."

Nor was the Pentagon unaware of the extent of Iraqi use of chemical weapons. As reported by Robert Fisk, "In 1988, for example, Saddam gave his personal permission for Lt-Col Rick Francona, a US defence intelligence officer - one of 60 American officers who were secretly providing members of the Iraqi general staff with detailed information on Iranian deployments, tactical planning and bomb damage assessments - to visit the Fao peninsula after Iraqi forces had recaptured the town from the Iranians. He reported back to Washington that the Iraqis had used chemical weapons to achieve their victory. The senior defence intelligence officer at the time, Col Walter Lang, later said that the use of gas on the battlefield by the Iraqis 'was not a matter of deep strategic concern'."

Of course, now that Saddam is dead and US forces are in control of his ministries (where all the documentation is kept), this sort of thing becomes more difficult to confirm. But perhaps the reason Bush and Co. were so convinced Saddam had weapons of mass destruction is because they knew we had shipped it to him.
1.1.2007 5:54pm
Mark Field (mail):

I believe the first part of this excerpt is not germane to the discussion at hand.


It was directly responsive to the comment made by Jake. In the context of "us" v. "them", the relevant "us" refers to Bush and Rumsfeld because it's their policies which deny a hearing to Gitmo prisoners and permit their mistreatment. Jake tried to switch the reference to "those fighting and dying for 'us'". I simply pointed out that that characterization didn't apply to the relevant people.


And some citation that military personnel "oppose this crap" would be helpful to reinforce the point being asserted.


Those citations were provided repeatedly when the torture bill was being discussed here (end of September). I'm going out now, but I'll try to find some links when I get back. If Anderson or JaO are around, they may have them before then.

The key point is that the military rejected the expanded list of "interrogation techniques" allowed under the torture bill and limited itself to humane conduct.
1.1.2007 6:05pm
Harry Eagar (mail):
Not criminals, Byomtov. Enemies.

How many times do you have to be labeled a 'great satan' before you begin to get the idea that someone wishes you ill?
1.1.2007 6:11pm
Anderson (mail) (www):
Those citations were provided repeatedly when the torture bill was being discussed here (end of September). I'm going out now, but I'll try to find some links when I get back. If Anderson or JaO are around, they may have them before then.

Since I've not yet been detained for conspiring vs. Western civilization, I'll toss up a couple.

The go-to place for anyone genuinely interested is Jack Balkin's blog; he's recently compiled a list of links by topic (torture, NSA spying, the MCA, etc.) This brief post provides useful links; here's another.

One of the VC threads Mark mentions is here.

Finally, the Frontline special I linked to above has lots of relevant stuff. N.b. especially the interviews with actual interrogators.
1.1.2007 6:59pm
Mark Field (mail):
Thanks Anderson.

Off topic (well, maybe not), but I just saw The Good Shepherd. I highly recommend it.
1.1.2007 9:56pm
Byomtov (mail):
Not criminals, Byomtov. Enemies.

That's just as stupid an accusation, but JFTR, your comment was:

Individual Muslims could provide some evidence that they are not part of a criminal conspiracy against civilization, I suppose, although very few seem inclined to do so.

Do you even read your own comments, or do you just spew hatred?
1.1.2007 10:00pm
Anderson (mail) (www):
Off topic (well, maybe not), but I just saw The Good Shepherd. I highly recommend it.

Wanted to see that over the holidays, but that was inconsistent w/ billing 200 hrs. in Dec. Will have to catch it soon -- thanks for the tip!
1.1.2007 11:25pm
Ken Arromdee:
Anton K: Well, let's see if we can put 2+2 together here for you, Anderson. [Goes into issues irrelevant to legal topic of presumption of guilt in criminal proceedings.]

Obviously, the answer is "no."


These countries are obviously presuming that the Guantanamo prisoners are guilty and applying a punishment (keeping them out of the country) based on that.

It's a nitpick to say this doesn't count because it doesn't take a criminal proceeding to keep someone out of the country. That nitpick doesn't change the basic nature of what these countries are doing.
1.2.2007 2:05am
David M. Nieporent (www):
Nice dishonesty, Speaking the Obvious. The key phrase there is "dual use." I know people like Jon Stewart think it's hilariously funny when they say, "We know he had weapons because he kept the receipts." That's about what one expects from Comedy Central. Iraq bought things that could be used to make weapons because lots of things can be used to make weapons. The only way to prevent them from doing that is to impose sanctions on them (and hope the son of the Secretary General of the UN isn't being bribed to allow them to smuggle other stuff in.) At the time -- things have since been drastically tightened -- there were essentially no controls on these things. Any person could call up a biological supply company, say "I want to do research," and they'd send over all sorts of biological agents. Nowadays you have to fill out all sorts of paperwork and prove you're entitled to it. At the time, not so.
1.2.2007 3:27am
Anderson (mail) (www):
What is the "dual use" of anthrax, btw? I was wondering about that.
1.2.2007 8:58am
J. F. Thomas (mail):
The techniques sought by the CIA are: induced hypothermia;

If you don't think induced hypothermia borders on torture, if not torture itself (not to mention a dubious interrogation technique), then you don't know the first thing about hypothermia. Hypothermia can quickly lead to death and the government admits that at least one detainee died from the use of this technique (which in my book means he was tortured to death). Any medical personnel that participated in monitoring such techniques would certainly be violating their ethics.

Most importantly, hypothermia causes delusions, hallucinations, and confusion. Any intelligence gathered from a person who has been recently been subjected to such techniques would be entirely worthless and unreliable. The only possible reason to use such techniques is pure sadism.
1.2.2007 9:08am
Anderson (mail) (www):
Any intelligence gathered from a person who has been recently been subjected to such techniques would be entirely worthless and unreliable. The only possible reason to use such techniques is pure sadism.

Don't forget the other reason, which Matt Yglesias lit upon a while back. Torture is great for getting the answers you want to hear. That's why it was so handy during the witch craze.

And we have an administration that is *all about* getting the intel it wants to hear. No wonder they like torture.
1.2.2007 12:06pm
chris s (mail):
here's a question for Mark and Anderson and the rest of the anti Gitmo folks:

we hold a hearing for a detainee. he was seized by US troops in Afghanistan. he testifies and says 'it wasn't me who fired shots at the US troops.' those US troops don't testify - perhaps because they're in the field, perhaps because they can't recall what the hell happened years ago, perhaps because they are dead. all the govt has is the statements given by troops at the scene.

what should the hearing tribunal do - let the guy go or hold him?
1.2.2007 12:47pm
Mark Field (mail):

here's a question for Mark and Anderson and the rest of the anti Gitmo folks:

we hold a hearing for a detainee. he was seized by US troops in Afghanistan. he testifies and says 'it wasn't me who fired shots at the US troops.' those US troops don't testify - perhaps because they're in the field, perhaps because they can't recall what the hell happened years ago, perhaps because they are dead. all the govt has is the statements given by troops at the scene.

what should the hearing tribunal do - let the guy go or hold him?


If there's evidence from the military (say, statements or a report from the soldier or his commanding officer) detailing the circumstances of the capture, that's evidence enough for me to shift the burden back to the prisoner to come forward with reasons why he should not be held.

IOW, there's no need to apply every jot and tittle of due process law applicalbe in the US. There's just a need for fundamental fairness.
1.2.2007 1:13pm
David Chesler (mail) (www):
Captain Obvious, 1/1, 2:05pm

What that proves, Liberty, is that the US government didn't want world attention on a trial of Saddam for, say, gassing tens of thousands of Iranians during the Iran-Iraq war, because then he could bring up the defense that he was doing so with the active acknowledgement and encouragement and assistance of the US government. So he's executed for a relatively minor crime. This is the essence of a show trial.

Thank you for explaining that. I'm not unhappy that Saddam is dead, but I'm not comfortable with the cellphone video, and especially uncomfortable with the confusion and lack of dignity and speed of the affair. I didn't think he wasn't complicit in the deaths of tens of thousands, but I did want to see the trial for it all to go on the record.

(I'm not terribly comfortable with prosecuting heads of state. But not only am I happy that deposing Saddam sent the message "If we get attacked on our soil we're going to kick some ass, and if you've been pissing us off it might be your ass that gets kicked", I am happy with the parallel to Gerald Ford's pardon, a precedent that has been applied to foreign situations as well, "If you resign it won't be so bad, so it's good to resign.")

Similarly, as others have said, Guantanamo is leaving a bad taste in my mouth. We may be waging war, but this is not a country at war. "At war" means shortages, and most of the eligible young men actually in uniform, and a single-mindedness that we wouldn't be wasting time and money on other things. If we can keep launching those shuttle missions, and keep playing the World Series, and finish the Big Dig and all the other business-as-usual, we can afford actual hearings for the several hundred detainees.

As for them being captured "On the battlefield", I've been to Gettysburg. As far as I know, there haven't been any battlefields, because there haven't been any battles, since Bush declared victory on May 1, 2003. (Oh wait, he didn't actually declare victory.)

On the other hand, NYT says "Mr. Bush decided in February 2002 that the United States would not observe the Geneva Conventions in fighting terrorism" -- but the February 7, 2002 "Order on Treatment of Detainees" doesn't say that, it says "none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva."

Geneva, and our criminal and UCMJ court systems represent implementations of our ideals, and norms that keep us acting within those ideals. When we do something else where those systems might well be applicable, it is good that we get cautious, and are concerned that what we are doing might not be within our ideals. But I'm not convinced that everything that is outside those court systems is against those ideals either.

(I see Mark Field just said that better, "IOW, there's no need to apply every jot and tittle of due process law applicalbe in the US. There's just a need for fundamental fairness.")

But I guess I'm still confused (and I can't tell folks' positions without a program) when Obvious says (1/1, 5:54pm) But perhaps the reason Bush and Co. were so convinced Saddam had weapons of mass destruction is because they knew we had shipped it to him. is this proof that we're the bad guys because we sold WMDs that Saddam used on Iranians, or is it proof that we're bad guys because Bush lied about Saddam having WMDs?
1.2.2007 2:26pm
Anderson (mail) (www):
what should the hearing tribunal do - let the guy go or hold him?

Ditto what Field said. Cases like that aren't the problem with Gitmo. The problem cases are more like "we can't tell you why we're holding you, but you can trust us to make that judgment." Or "so-and-so Fellow Detainee who we released months ago says you're a really bad guy, sorry he's not here for you to cross-examine." (Or he *is* there, but can't be made available anyway.)

No one's saying to abandon common sense -- rather, let's inject some common sense *into* the proceedings.
1.2.2007 4:07pm
chris s (mail):
And then the detainee comes forward with statements from family, friend, etc - all obtained by his diligent counsel - swearing that he was nowhere near the site in question. I assume you are a lawyer - you know how the game works.
1.2.2007 4:58pm
Mark Field (mail):

And then the detainee comes forward with statements from family, friend, etc - all obtained by his diligent counsel - swearing that he was nowhere near the site in question. I assume you are a lawyer - you know how the game works.


Fine, but I also know that finders of fact can understand the concept of bias and, well, make factual findings. The number of witnesses does not determine the weight of the evidence.
1.2.2007 5:03pm
Harry Eagar (mail):
'No one's saying to abandon common sense'

Joke, right?
1.2.2007 7:37pm
chris s (mail):
sure, Mark, the judge or whoever will make factual findings. but those findings themselves will be based on fragments of info, given the nature of how these guys were detained in the first place, and legit natl security limits on full discovery, among other things.

I'm all for making pretty sure we're holding the right guys, and with holding hearings to do so. but I think a lot of the folks up in arms about Gitmo are being unrealistic about what any hearings can achieve. in the end you will have lots of detainees saying mistaken identity and the like, and the military offering various explanations that boil down to 'trust us, these are dangerous guys, we can't let them go til this whole thing is over.' it has always been that way in war, and it's foolish to think we can wish it away.

ps - i'm focusing my comments on what's needed to detain these guys, a la POWs, not what's needed to try and punish them. i'd agree you need more to do the latter.
1.3.2007 2:57pm
Mark Field (mail):

I'm all for making pretty sure we're holding the right guys, and with holding hearings to do so. but I think a lot of the folks up in arms about Gitmo are being unrealistic about what any hearings can achieve. in the end you will have lots of detainees saying mistaken identity and the like, and the military offering various explanations that boil down to 'trust us, these are dangerous guys, we can't let them go til this whole thing is over.' it has always been that way in war, and it's foolish to think we can wish it away.


Your scenario is pretty much what I'd expect. I don't think I'm being naive about the nature of the evidence or the likely result in such cases. Personally, I doubt many prisoners actually captured on the battlefield would even try to challenge their detention (except to claim POW status).

The big problem here is that most of the Gitmo prisoners were NOT captured by US forces (only 7% according to the Seton Hall study I linked above). "Trust us" isn't very persuasive to me when a Pakistani tribal leader says "here's a bad guy, thanks so much for the 5 large". It's that abuse on which hearings will have a real impact.
1.3.2007 3:22pm
Ryan Waxx (mail):
> My point is that of all the people that have passed through Gitmo, and for all the claims that we have the "worst of the worst" there, the one we choose for the first trial (almost five years after capture), is at best nothing more than gofer for OBL

That's not a point... not even a talking point. Which person we prosecute first, or second, or 13th is totally irrevelant. To give just three possible other reasons he's first, maybe the government felt its evidence was most solid with him.

Or maybe his close day-to-day connection to OBL himself was meant to address fears that we were just picking random people off the street (not that you're fooled, you genius you).

Or maybe his trial was meant to not give hope to the 'secret evidence' crowd who are hoping that by forcing government to withdraw evidence they don't want to gift-wrap for terrorist consumption, they can score points off the U.S. both when we free actual terrorists, AND when some of them show up again killing Americans. They can simultaneously blame Bush for freeing them, AND for locking them up to 'force' them to become enemies of the U.S. Win-Win-Win! What are a few dozen or hundred corpses between friends when there's propaganda to be made!

Fact is, you don't know WHY he was the first, and pretending you're a mind reader just makes you look foolish.
1.8.2007 9:14am
Ryan Waxx (mail):
Visitor Again> What a farce. Why even bother?

Exactly my thinking. We should just kill all the prisoners now. Why not? Idiots are already breaking out the Nazi analogies, it's not like they can become even MORE extreme and delusional if the U.S. actually plays the part that it's already been cast in.
1.8.2007 9:17am