"Nice try". Try at what? You seem upset.

The fact that 250 prisoners have been repatriated as you say after years of imprisonment with no charges filed tells me they were either wholly innocent or the government didn't have a case. If they did, why wouldn't they bring charges? It would certainly strengthen the government's position.

Same with the first point you refute. Four years of imprisonment and the government won't stipulate exactly what the offense or affiliation is. If they could, it would vastly support the argument that these are bad guys. How much more time would like to give them, 5, 10, 20 years?

As to the second point, from the section you quote, what strikes me is this:
"This expansive definition of membership in al Qaeda could thus be applied to anyone who the Government believed ever spoke to an al Qaeda member."

Speaking to does not equal being recruited by. When I was young and naive(r), I accepted an invitation from a pretty girl on campus to attend a 'study group.' They turned out to be a perfectly nice Christian Evangelical group that I nonetheless wanted no part of. Guilt by association is a slippery slope.

Our military so exceeds the moral conduct of any force in the history of the world that comparison is almost laughable.

Are we more moral than the British army? Or the Australians? Canadians?

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You sir, are my new hero! - Trifan 11/13/2008

Casey, you are a wise man - blueraider_mike 11/13/2008

Casey, This is an astute observation. - Slowbern 11/17/2008

Note that the magician waves the hand of saying "never spoke to an Al Qeda member" so you won't notice the "recruit someone" up his sleeve. The person referenced in this quote from Kohlman was still recruited by someone he believed to be a member of Al Qeda. I'd say that's pretty strong grounds for defining "association with" Al Qeda. So much for point number 3.

I haven't heard spin like this in a long time.

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You sir, are my new hero! - Trifan 11/13/2008

Casey, you are a wise man - blueraider_mike 11/13/2008

Casey, This is an astute observation. - Slowbern 11/17/2008

Apparently we're damned if we do and damned if we don't. Don't release them and we're evil managers of a gulag...do release them and we should never had held them in the first place.

Wake up, please, and smell the coffee. These people were policed up off a battlefield in which we faced the only state to openly support and protect the organization that bombed the World Trade Center, the USS Cole, and American embassies. Did we cast a wide net when we apprehended them? Yes we did. Have we attempted to sort out those who were either apprehended mistakenly or now pose no further threat? Yes we did, and the process is ongoing.

Should we have been more selective when we apprehended them in the first place? You obviously think we should have been, which suggests to me that you failed to grasp the meaning of what happened on 11 September. This enemy deliberately targets innocent civilians. He pays no attention whatsoever to the rules we have developed over centuries to attempt to limit the horrors of war to the extent that we can. He hides within free societies in order to murder its members on a grand scale.

Last time I looked, niether Al Qeda nor the Taliban publish directories. It is reasonable, given the circumstances under which these detentions took place, and consquences of error, to place a greater burden of proof on refuting the accusation of complicity with Al Qeda or the Taliban.

Is the best of all possible worlds? No, it isn't. But a fundamental fact of life in the REAL world, as opposed to an ivory tower, is that sometimes the choice is not between good and bad, but between bad and worse.

What amazes me about you and others who share your opinions is how reluctant you are to recognize that there is evil in the world...at least, in the world outside of the Bush Administration.

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Reverisco!

"Nice try" "Wake up" "People like you" We can stick to the subject or you can throw stones at me. I'm happy to discuss the former and happy to leave you ranting by yourself if you choose the latter. It's entirely up to you.

I'm quite happy that some prisoners were released, but it doesn't change the fact that they shouldn't have been there in the first place. And that's not me saying it, it's the government that's been unwilling or unable to find anything to charge them with.

According to you, the burden of proof for proving one's innocence lies pretty squarely with the accused. BTW, the "accused" haven't actually been charged with anything and aren't allowed access to attorneys. There is no standard, no burden of proof, nothing but an endless gray area within which anyone can be held indefinitely.

If that doesn't bother someone, than there is no point in discussing it any further. Fortunately, it does bother some of us, including the JAG officer who took Hamdan's case before the Supreme Court.

"People like us" are present in military, civilian, academic, and pot-smoking hippy circles. We still believe in the rule of law, as does the Supreme Court.

Lastly, the CIA just closed down its bureau responsible for tracking and defeating the "people who attacked us". I'm sure the responsibility is being picked up in other departments, but, once again, according to the President, "I'm really not that concerned about him [bin Laden]".

"People like you" is hardly throwing stones. I lump you in with peole who share your opinion, which is not an ad hominem attack, merely a reasonable generalization.

"Wake up," is also not an ad hominem attack, merely a strong statement of my belief that you have failed to realize the gravity of the situation in which America finds itself right now. Maybe it's more real to me because I have to wear body armor whenever I leave my "neighborhood."

And yes, I believe the burden of proof in this case is significantly different from that which obtains within the US criminal justice system.

I believe in the rule of law, as well. In this case, the law of war. These peole were apprehended on a battlefield and classed as illegal combatants. As such, they fall outside the protections afforded legal combatants captured as prisoners of war. Our treatment of them is already more generous and more even-handed than it has to be. Even legal combatants may be held for the duration of the conflict.

Again, I point out to you that the Supreme Court has not ruled on their detention, but on the legality of military tribunals.

These people were not scooped up walking down the streets of New York City. They were apprehended by our forces on the battlefield, who made a determination on the ground that they were involved with our enemies, or they were given to us by our allies in this conflict who told us they were involved with our enemies. It is likely that some of them were taken mistakenly, or owing to malicious intent by some of our allies. We have attempted to determine cases where that occurred, and have repatriated a significant percentage of the original detainees based on that determination.

We are at war, we are at war, we are at war. We are at war with a ruthless enemy who's stated intent is to murder civilians. It is not a war we declared, but one declared against us by Al Qeda, aided and abetted by the Taliban.

The number of detainees in Gitmo (less than 500 remaining) shrinks to insignificance when compared to the numbers of persons (US CITIZENS, no less!) imprisoned with much less justification by the administrations of Presidents Lincoln, Wilson, and Roosevelt in time of war. I think the small number, and the repatriation process, speak volumes about how much MORE circumspect we have become in suspedning habeous corpus in times of war.

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Reverisco!

I appreciate your opinion is colored by your daily reality. Nonetheless, military personnel past and present are just as troubled by the current state of affairs as some of the rest of us.

You mention Roosevelt and I assume you're reffering to Japanese internment. An act for which the US has formally apologized and made restitution. It would be nice to think we're learning from admitted past mistakes.

A couple of points regarding war. I'll repeat, this is a war that will not end in our lifetimes. It is a war that has been with society throughout history and will continue. The British regarded the American Revolutionaries as insurgents/enemy combatants, etc... and denied them the protected status of prisoner of war. No, I'm not equatting Islamist terrorists with American revolutionaries other than to say there are many historical precedents for this kind of conflict. It was, is, and will continue to be a sad reality. We are now, then, in a permanent state of war.

We are at war, but we don't classify our enemies as soldiers. The Supreme Court additionally ruled that detainees are entitled to Geneva Article 3 protection which expressly forbids cruel, degrading, or humiliating treatment.

If we both believe in the rule of law, then this should be simple. Show me the law. Show me even the foundations for a law regarding the detainees. Let's have a public debate. I've never said that accused terrorists should be afforded the criminal rights of US citizens, but then what are the laws that pertain to them? That's the problem. The government has refused to give them any rights and reserves the right to change the rules as it pleases.

That is not law by any sense of the word. That is, for lack of a better word, totalitarianism. The argument that it is only in small, isolated measure affecting a relative few non-Americans doesn't soften the blow enough. We are the good guys, and should hold ourselves to a higher standard.

To address your points as they arise.



Yes, I am referring to the internment of Japanese in WWII and I offer it not as an excuse or a rationale for our current detention of detainees, but as an example of how much more careful and deliberate we have become in the exercise of such power in wartime.





Yes, the conflict may last a long time. I don’t believe the length of the conflict is a material issue in the law regarding detainees, however I will concede, as I did in a previous post, that some mechanism for determining the end of the conflict out to be developed.



We don’t classify the detainees in Gitmo as POWs because, under the 3rd Geneva Convetion (relative to prisoners of War) they are not:



Article 4



A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.



Finally, regarding your request that I show the law:





4th Geneva Convention CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR



Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favor of such individual person, be prejudicial to the security of such State.



Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.



In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power.



Nowhere in the 4th Convention can I find a requirement to provide a trial, merely the injunction that in case of a trial, the detainee not be deprived of the rights of a fair and regular trial.



The prisoners are Gitmo are not subjected to cruel, degrading or humilating treatment.



And, one minor correction, totalitarianism is a form of government in which the ruler is an absolute dictator (not restricted by a constitution or laws or opposition)."

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Reverisco!

We seem to disagree, among other things, on the matter of scale. Incarcerating merely hundreds of potentially innocent people is better than incarcerating thousands. Pragmatically, sure, morally, no. We haven't learned enough from the past.

We also disagree about the length of the conflict. Whereas previously, extraordinary powers were granted to the executive branch specifically during times of war, if a state of war is now the norm, then the breadth of those powers have to be reconsidered.

I'm familiar with the argument against POW status and don't necessarily disagree with it.

The 5th Article, by itself, as applied to a war without end, is no law at all. The attempt to classify detainees as enemy combatants is specifically designed to put detainees beyond the reach of any law.

In fact, Article 5 of the 3rd Geneva Convention states:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

I'm not sure what you base your statement that:
"The prisoners [at] Gitmo are not subjected to cruel, degrading or humilating treatment."

There is, in fact, only one strict legal definition of torture under US law:
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002340----000-.html

I can cite reports by the International Red Cross and others that say abuse is present. Perhaps you can explain why you believe otherwise.

My use of the word totalitarianism does in fact stray from the mark. You're right and I need to find a word that better describes the situation. Perhaps militarism:
http://en.wikipedia.org/wiki/Militarism#References

All of this is well and good, if you think that these guys have earned or deserve ANY protection under the Geneva Conventions. The administration doesn't think so, and a solid majority in both houses of Congress don't, either. It'll be simple enough to carve out a workable-to-the-SC process that'll address that issue.

What they deserve is what they're getting, which seems to be better treatment at our hands than does the average prisoner in the Atlanta federal penitentiary or at San Quentin, from the looks of things. They're detainees, and they can be held for "the duration". Even the SC tooks pains to say that it wasn't even looking at that issue.

Lastly, how can we be expected to adhere to the Conventions when we absolutely know that there's no entity, willing or otherwise, on the other side to do the same for our folks? I'm sure PFCs Menchaca and Tucker and Specialist Babineau would've loved to have the protections of the Conventions for their own P.W. status, however shorted-lived that might have been. And I don't think that the so-called "lower ourselves to their level" argument holds any water in this matter. We don't lower ourselves in any way by giving these detainees the status that they currently hold.

I'm not saying that these bad guys should be treated in any worse manner than their current circumstances. I'm just saying that we're wasting a lot of valuable energy over a bunch of folks who don't deserve or merit the energy in the first place. They're bad men, and they're where they belong.

T.

"Lastly, how can we be expected to adhere to the Conventions when we absolutely know that there's no entity, willing or otherwise, on the other side to do the same for our folks?"

International law to which the US is a signatory. Your example seems to extend beyond Guantanamo to any conflict in which the other side doesn't reciprocate treatment. In other words, you would like the US to withdraw from the Geneva Convention altogether. I'd be happy if the administration proposed it, so at least there could be an open debate.

"What they deserve is what they're getting."

If you believe it's alright to round up innocent civilians in a dragnet that doesn't discriminate between guilty or innocent, detain them indefinitely, torture them(yes torture), and deny them any contact with the outside world, then the argument is really over. We're on opposite sides of the fence with no give either way.

Yes, they would be treated worse at any number of appalling penitentiaries around the world, including, sadly, ours. The argument, then, goes that we pick the worst possible example, and treat our prisoners just a little bit better allowing us to maintain moral superiority. Again, I'm not moved by it.

We waste a lot more time and energy in the US debating Miranda rulings, DNA evidence, and the like. Why? That's what it means to be ruled by law rather than having a 'decider'.

So there you have it. Stalemate.

I challenge your very first statement, and believe this is where our critical disagreement lies. You say "Incarcerating hundreds of potentially innocent people..." I say "incarcerating hundreds of persons known to us to be, or represented to us as being, members, or abettors, of an organization with the expressed aim of murdering innocent civilians by the thousands." In the latter case, I think we are fully justified in being VERY careful about letting ANY of them go without proof to the contrary. I know that shifts the burden of proof. I simply do not care that it does. We have been VERY circumspect in our detentions, and earnest in our attempts to identify and repatriate the innocent.

I say again and again, I do NOT condone the suspension of habeous corpus by Lincoln, or the arrest and imprsionment of thousands of innocents by Roosevelt and Wilson. I cite them to show that we HAVE learned from the past, because we have nto done likewise in this conflict.

You can't cite Article 5 of the 3rd Convention in this case, because there is no doubt about the fact that these guys do not fall into any of the categories in Article 4, which I posted above. Therefore, they fall under the 4th convention.

Gitmo detainees get 3 squares a day, shelter from the elements, and religious texts provided their captors. How does the ICRC know ANYTHING about Gitmo? Because they have been allowed to visit the facility regularly for the last 4 years, and because the US Department of Defense has created an Office of Detainees Affairs which works with the ICRC to resolve its concerns.

When allegations have been made that they have been mistreated, the person(s) responsible have been investigated and, where necessary punished under the UCMJ.

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Reverisco!

Nearly 600 detained at Guantanamo alone, 10 charged, 250 or so released without charge. I don't see the challenge. Did the military release 100s of terrorists they knew to be guilty?

"I know that shifts the burden of proof. I simply do not care that it does."

Clearly. How exactly does one prove one's innocence? Especially when denied access to the outside world.

I understood your point on previous historical detentions and understand you're not a proponent.

There's no doubt regarding Article 5? Is there a tribunal at which this is determined and at which evidence is given? What is the burden of proof. Or is there simply no doubt because someone, somewhere in the US military or civilian administration says so.

"represented to us as being"

Please refer to my original post in which this representation was given by Afghan warlords who were being paid bounties for turning over bodies to the US military.

Yes, the IRC has visited Gitmo and made their views clear, that tactics used are tantamount to torture. I doubt any military personnel following orders to abuse detainees(for interrigation purposes, etc...) are being charged for misconduct.

Please tell me if you feel the following are humane:
- forcing a detainee to wear a bra and have a thong placed on his head during interrogation;
- tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks;
- forcing him to dance with a male interrogator;
- stripping him naked;
- pouring water on the detainee during interrogation 17 times.
- being forced to urinate on yourself
- preventing a detainee from sleeping

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Reverisco!