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Defending Detainees in WWII:

Eric Muller has an interesting post on Is that Legal? on the representation of Japanese detainees in World War II. It provides some interesting historical perspective on the Stimson flap. Notes Muller, "In World War II, the federal government and the American Bar Association explicitly called on American attorneys to undertake the legal representation of internees of Japanese ancestry -- citizens and aliens alike."

AntonK (mail):
Comparing Japanese detainees in WWII to the great majority (if not all) of the prisoners at Guantanamo is ridiculous.

The Japanese detained were not committed to the mass casualty attacks on Protected Persons. The extremists taken on the battlefield in Afghanistan, Iraq, and elsewhere are. They are by their own words, creed, and actions.
1.17.2007 8:28am
J. F. Thomas (mail):
The Japanese detained were not committed to the mass casualty attacks on Protected Persons. The extremists taken on the battlefield in Afghanistan, Iraq, and elsewhere are. They are by their own words, creed, and actions.

Can you provide any evidence whatsoever for your assertions? Just saying it over and over again doesn't make it so. I don't think even the government has made this claim. When they are pressed on their overblown unsupported claims that the detainees at Guantanamo are the "worst of the worst" they will back off and claim that the majority of detainees are nothing more than footsoldiers who were fighting for the Taliban or Al Qaeda in Afghanistan. Fighting in a civil war for a government that was recognized by three of our allies in the war on terror (Pakistan, Saudi Arabia, and the UAE), even if the U.S. government's dubious claims are true, hardly makes each and every one of them "committed to the mass casualty attacks on Protected Persons."

Not one person at Guantanamo has yet been charged with so much as plotting an act of terror, let alone participating in one. The first "terrorist" we have chosen for trial is nothing more than OBL's driver. All he is accused of is being present at terrorist planning meetings--not participating mind you, just being present. Apparently he was there to fetch tea and sweets. So basically he stands accused of being OBL's butler.
1.17.2007 9:37am
A.S.:
What a completely inapt comparison. The detainees at Gitmo were not people living in America and then removed to a detainee camp. They were people who were picked up in Pakistan or Afghanistan or somewhere else in the Middle East.

If Muller can show me an advertisement for legal representation for Japanese POWs picked up on (e.g.) Iwo Jima, THEN he'll have something. THAT would be an apt comparison. But I'm 100% confident that never happened, because during World War II, it would have been considered ridiculous to give Japanese POWs picked up on Iwo Jima legal representation.
1.17.2007 10:00am
Houston Lawyer:
I'd have to agree with AS. When the federal government begins interning all Muslims here in the United States, citizen and alien alike, we'd have a good analogy.
1.17.2007 10:15am
JB:
There's no WWII analogy. These guys are neither US citizens nor Japanese soldiers, they're random people taken under murky circumstances somewhere in Afghanistan or Iraq, including Taliban soldiers, Al Qaeda operatives, and unlucky Muhammad bin Shmoes. I guess the closest analogy would be random Okinawans picked up under murky circumstances in the closing stages of the war...
1.17.2007 10:35am
chris s (mail):
was there a KS Muhammed among the japanese interned in Calif?

I agree that not everyone at Gitmo is like KSM, and that some kind of fair review should be done for the ones who don't fall in that clear category. But to suggest that Gitmo detainee = japanese internee is a huge slur against the latter.

as for J Thomas' objection above - 'Not one person at Guantanamo has yet been charged with so much as plotting an act of terror, let alone participating in one' - we don't have to charge them, esp if as he also says they were soldiers. in that case they're POWs and can be held without charge til the end of hostitlities - as Japanese POWs were in WWII.
1.17.2007 10:37am
JB:
EDIT: I have the comparison.

These guys are like people picked up in France in 1944-45: some hard-core Nazis, some slave soldiers, some French collaborators, some innocent unlucky Frenchmen...of course, back then there were none of these tribunals, but back then we were fighting against our imminent destruction and had no time to contemplate at leisure those captured in haste.
1.17.2007 10:44am
J'hn'1:
It sounds like someone either cannot tell the difference between "internees" and "detainees" or chooses not to.
Either way, the difference is significant, and pertinent to this discourse.
1.17.2007 11:09am
AntonK (mail):
J.F. Thomas asks:

Can you provide any evidence whatsoever for your assertions?


If you mean, have I done or am I embarking on a life's worth of research on the subject? No.

I base my assertions on:

1) Common sense. What is the likelihood that those responsible have nothing better to do with their time, or are malevolant Darth Vader types that simply enjoy detaining your average Mom &Pop found wandering around Kandahar or Fallujah?

2) The words and actions of radical Islamists.

3) This type of information.
1.17.2007 11:19am
Mark Field (mail):

in that case they're POWs and can be held without charge til the end of hostitlities - as Japanese POWs were in WWII.


That's fine, but the Administration refuses to give them POW status. If it would do that, most of the dispute would be over.
1.17.2007 11:32am
FC:




in that case they're POWs and can be held without charge til the end of hostitlities - as Japanese POWs were in WWII.


That's fine, but the Administration refuses to give them POW status. If it would do that, most of the dispute would be over.


Hardly. The detainees' lawyers and other supporters want them treated essentially as criminal defendants, not as POWs. They would certainly object by all legal and political means.
1.17.2007 11:48am
Gabriel Malor (mail):
Mark Field, JF Thomas, and others (I'm sure)

Because you obviously are not aware of international law, you demand that the prisoners be charged with something or released. Unfortunately, such an act with respect to POWs is explicitly prohibited. Futhermore, with respect to unlawful combatants, they also cannot be prosecuted for making war for their countries. Unlike POWs, however, they can be prosecuted for the acts which make their combatancy unlawful.

But that prosecution is entirely at the discretion of the detaining power. That means that, like POWs, they can be held until the cessation of hostilities.

Detention without charge is exactly what international law requires. Why, after 4 years of this war do you not know this?
1.17.2007 12:15pm
A.S.:
That's fine, but the Administration refuses to give them POW status. If it would do that, most of the dispute would be over.

Why would "most of the dispute would be over" in that case?

It seems to me that Mark Field is simply ignorant of international law. The only difference between POWs and unlawful enemy combatants is that POWs, who are lawful combatants, are entitled to MORE protections under international law. For some reason, Mark Field seems to have the preceisely backwards. He wants to give unlawful enemy combatants more protections than POWs. Strange.
1.17.2007 12:27pm
Bpbatista (mail):
I will concede the point: If and when we detain every Arab or muslim in the US, then it would be appropriate for white shoe firms to provide pro bono services.
1.17.2007 12:52pm
Mark Field (mail):

The detainees' lawyers and other supporters want them treated essentially as criminal defendants, not as POWs.


Cite?


Because you obviously are not aware of international law


I'm willing and eager to learn. Let me know when you're available for tutoring.


you demand that the prisoners be charged with something or released.


No, I've made no such demand. On another thread a few days ago, I explicitly disclaimed any such demand.


Why, after 4 years of this war do you not know this?


Whatever the cause -- my own deficiencies or those of others -- I'm sure liberals are to blame.


It seems to me that Mark Field is simply ignorant of international law.


Not just to you; my buddy Gabe thinks so too.


For some reason, Mark Field seems to have the preceisely backwards. He wants to give unlawful enemy combatants more protections than POWs. Strange.


Yes it is strange; very strange indeed. Stranger than truth, even.
1.17.2007 1:47pm
J. F. Thomas (mail):
Because you obviously are not aware of international law, you demand that the prisoners be charged with something or released. Unfortunately, such an act with respect to POWs is explicitly prohibited. Futhermore, with respect to unlawful combatants, they also cannot be prosecuted for making war for their countries. Unlike POWs, however, they can be prosecuted for the acts which make their combatancy unlawful.

Well, problem number one is that we (those of us who are having such a hissy fit) don't believe that the determination of the detainees' status (whether they are "unlawful combatants" or even combatants at all) was even valid from the start. We think that the President short circuited an established system, ignored the advice of the uniformed military and did not establish anything near the "competent tribunals" required by international law to determine the status of the detainees at Guantanamo. This is a position which btw has been upheld at the Supreme Court and only by some maneuvering of questionable legality and constitutionality by both the Congress and the Administration that has denied further review by the courts have the detainees not seen the inside of more federal courts.


Even the administration admits that the majority of detainees were handed over to the Americans by third parties, often for bounties up to $10,000. The current system is both Kafkaesque and Orwellian. The detainees are terrorists and enemy combatants because the government says they are. To question that designation is to aid and comfort the enemy. If the evidence exists to prove that they are terrorists and enemy combatants, no one can see it, because to do so would compromise national security. In fact we may not even be able to try the worst offenders because their trials would reveal too much. They are not entitled to any of the protections of the Geneva Conventions because they are not legitimate combatants. In fact they are not entitled to any legal protections at all except the ones we decide to give them. And we can hold them for as long as we want because this "war" will last as long as we say it lasts, not a minute less.
1.17.2007 1:54pm
J. F. Thomas (mail):
The only difference between POWs and unlawful enemy combatants is that POWs, who are lawful combatants, are entitled to MORE protections under international law.

Well no, the difference between POWs and unlawful combatants is that POWs have not committed any crime and are entitled to all the rights and privileges of a soldier of the corresponding rank in the military of their captors (General Officers in POW camps in the U.S. in WWII lived in detached houses with servants). Unlawful combatants are by definition criminals and international law presumes they will be subjected to some sort of judicial procedure to assess criminal liability for their actions. It does not assume that they will be held indefinitely with absolutely no rights or recourse.
1.17.2007 2:05pm
Gabriel Malor (mail):
J.F. Thomas,

Indefinite detention is exactly what international law presumes for detainees in war, be they POWs or be they unlawful combatants.

The Supreme Court's most recent discussion of the permissible length of detentions is recorded in the much-discussed 2004 case, Hamdi v. Rumsfeld. This is the case which ruled that citizen-detainees must be afforded access to US courts, even those who fought for the Taliban and were captured on a field of battle in Afghanistan.

In his argument, Hamdi challenged the legality of indefinite detentions. The government counter-argued that mid-war detentions during WWII were just as indefinite. This is what the Court had to say:


We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention.
...
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War...
...


Then, Justice O'Connor addressed the way in which hostilities could cease:

[W]e understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. ... If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date.


Indefinite detention is perfectly acceptable under international law, in the sense that no one can definitely say when hostilities will end. Perpetual detention is, of course, prohibited.
1.17.2007 2:31pm
Elliot Reed:
I've said it before but it needs to be said again: the administration has defined "enemy combatants" in such a way that it includes nonenemy noncombatants. That on its own is sufficient to refute any and all claims that extraordinary measures are required because of extraordinary circumstances
1.17.2007 3:07pm
Colin (mail):
Perpetual detention is, of course, prohibited.

You ended your post just as it was getting relevant. I have yet to hear a realistic proposal for determining when hostilities will end. When America is beloved by the world? When Al Qaeda unanimously lays down its arms? When there are no more transnational terrorists? When we cannot articulate a realistic criterion for an "end of hostilities" state, then what would prevent the executive from holding these detainees perpetually?
1.17.2007 3:17pm
J. F. Thomas (mail):
We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention.
...
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War...
...


Well, here I think the Court was hopelessly muddling the distinction between POWs and other noncriminal detainees who are treated pretty much the same as POWs (e.g., civilian employees or citizens of enemy governments who are not covered by diplomatic immunity) and illegal combatants. Illegal combatants are clearly criminals and should be treated as such. That is once their status is determined by a competent tribunal (which in the vast majority of cases at Guantanamo I would argue this basic step has not even occurred yet), they should be charged with a crime. If they haven't committed any offense against the party who is detaining them, how on earth can they be "unlawful combatants"?

And no I am not arguing that they are entitled to the full rights and procedures accorded a criminal defendant has in this country. But they are certainly entitled to more than a conviction based entirely on the uncorroborated hearsay evidence of a Northern Alliance soldier who was paid $10,000 for every "Taliban" or "Al Qaeda" fighter he turned in.
1.17.2007 3:35pm
Gabriel Malor (mail):
Colin,

the Supreme Court was mostly concerned about the War in Afghanistan in Hamdi. In determining whether he could continue to be held (that is, that hostilities had not ceased) Justice O'Connor wrote:(internal citations omitted):

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


Presumably, the same reasoning will apply to detainees who belong to different combatant groups. For example, if a member of the "First Jihadis of Baghdad" is captured fighting in Iraq, the courts would ask if combat against the First Jihadis is still ongoing to determine if the captive could continue to be detained.

Justice O'Connor was not unaware of the potential for ambiguity in a global war on terror. She also wrote:

If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of longstanding law-of-war principles] may unravel. But that is not the situation we face as of this date.


Colin, you have yet to hear a "realistic" proposal for sorting out the cessation of hostilities because to date we haven't needed one different than the "longstanding law-of-war principles" that Justice O'Connor lists in Hamdi.

I agree with the Justice in 2004, that those principles have not unraveled. As evidence, I would remind you that many Guantanamo detainees have been released in the last year. If you think that a new framework for length of detention should be formed, you are the one who carries the burden to propose it. My framework (and the Court's so far) is working fine. Why should I do your legwork for you?
1.17.2007 4:34pm
Colin (mail):
Presumably, the same reasoning will apply to detainees who belong to different combatant groups. For example, if a member of the "First Jihadis of Baghdad" is captured fighting in Iraq, the courts would ask if combat against the First Jihadis is still ongoing to determine if the captive could continue to be detained.

That is a very bold presumption, and I see no basis for it whatsoever. It is one thing to say that Taliban fighters will benefit from a cessation of hostilities with the sovereign nation they once controlled, or a cessation of hostilities with their largely intranational and specific organization. That is not the case with members (or those accused of being members) of large, international terrorist organizations, or tiny splinter cells. In either of those cases, there cannot be a traditional "cessation of hostilities." As long as there is a violent Islamic terrorist organization, there cannot be a "cessation of hostilities" for detainees accused of being Al Qaeda or FJoB adherents. The administration would simply claim, and reasonably so, that the purported "enemy combatant" will carry out their hostile intentions with an extant and ideologically interchangeable organization.

Justice O'Connor was not unaware of the potential for ambiguity in a global war on terror.

I agree. As you wrote, she was focusing on the war in Afghanistan, against the group that controlled that state. I believe that her logic is inapposite when the "hostilities" are against "terror" rather than "the Taliban."

Colin, you have yet to hear a "realistic" proposal for sorting out the cessation of hostilities because to date we haven't needed one different than the "longstanding law-of-war principles" that Justice O'Connor lists in Hamdi.

I disagree. If the G. detainees are going to be held incommunicado until the end of hostilities, we need to be able to articulate the conditions of a realistic "end of hostilities." We can do that with respect to Afghanistan - "a functioning civil society no longer under threat of destabilization from the Taliban or similar entities," for example. I have not seen anyone articulate, or even attempt to articulate, realistic conditions defining the end of hostilities in the Global War on Terror. If we cannot do that, then it is clear that Justice O'Connor's work in Hamdi is not as clearly applicable as you suggest.

I agree with the Justice in 2004, that those principles have not unraveled.

Then can you articulate how they apply to the Global War on Terror?

As evidence, I would remind you that many Guantanamo detainees have been released in the last year.

More have not. And those that have were not sprung because the Global War on Terror ended with respect to whatever organization they were accused of supporting. Many of them were released on account of what the habeas regime would call "actual innocence." Those releases are not relevant to this matter.

If you think that a new framework for length of detention should be formed, you are the one who carries the burden to propose it.

Just as soon as I file suit, I'll be sure to do so. For now, I think it's sufficient to point out that your "framework for length of detention" is meaningless in the context of the War on Terror, because there is no realistic set of conditions creating an "end of hostilities" (other than, as some other commenter suggested, the administration abandoning the rhetoric once it becomes stale).
1.17.2007 5:43pm
chris s (mail):
Colin, your formulation essentially works to give enemy combatants more rights - or at least more of a shot at freedom - than lawful POWs. that seems backwards, and counterproductive.

I also don't agree that the end of hostitlities with a group like AQ is impossible to gauge. For ex, in the 70s Italy was plagued with the Red Brigades. no doubt it seemed they would be plagued with them forever. but gradually the group was brought to heel, recruitment fell off, etc., and at some point they no longer posed a threat to Italian society.

I presume the same will be true of AQ. when that comes, the president in office can decide whether to try any of the remaining detainees, or to release them.

I don't care if that means folks like KSM likely will die in jail without being formally tried. He took that risk when he signed up. If the prospect of indefinite detention scares you, don't sign up for AQ. (btw, I say this with the caveat that there should be some kind of showing made by the govt in the first place that those held in fact likely are AQ members or what have you.)
1.18.2007 9:57am
professays (mail):
Prisoners at Guantanamo = Japanese detainees in WWII = Slavonic prisoners in German concentration camps
1.18.2007 10:04am