Obama: No rights for Bagram prisoners.detainees.

[MarshalPurnell]

The people we picked up from the Afghans or Pakistanis may very well be wrong-place, wrong-time. Or may have pissed off some local bigwig, or maybe had some zealous local official bag to meet his quota and impress the Americans. On the other hand, how many people would go to Afghanistan to "study Islam" and not be at least sympathetic to fundamentalism?

A full-scale review of every case is certainly worthwhile to weed out the people who are manifestly no threat. That said, I doubt the US military or CIA is in the habit of abducting purely innocent people for the thrill of torturing infidels or whatever the forum stereotype is. How to deal with people captured in a military campaign that is not legally a military campaign, where the other side does not meet the criteria to be considered a combatant and has nothing but contempt for the laws of war, is vexing beyond belief. Treating them as mere criminals as absurd, and their routine indulgence in wanton barbarism rather stretches the definition of Prisoner of War. Some sort of judicial process is needed to separate the sheep from the wolves, so to speak, but what do you do with a violent terrorist committed to his ideology and willing to suffer death to kill Americans, any Americans, but for whom there is not necessarily evidence of criminality that would stand up in a court of law? Make it a crime to engage in armed combat with American troops and try them for that? Hold them as prisoners of war until the end of the War on Terror, which we all know will never end?

[Illuminatus Primus]

It doesn't require your absurd strawman of abducting purely innocent people out of malice or sadism, it simply requires manifest incompetence and no one really in charge because its all shady law.

[Darth Wong]

What are the Geneva Convention rules about prisoners of war?

[Kanastrous]

Most of the treatment-of-prisoners stuff seems to be in the Third Geneva Convention.

I was going to cut-and-paste but it's probably more text than I should try to stuff into a single post.

[MarshalPurnell]

It doesn't require your absurd strawman of abducting purely innocent people out of malice or sadism, it simply requires manifest incompetence and no one really in charge because its all shady law.

Lord of the Abyss has stated that he has no cause to believe that any of the detainees are terrorists or Taliban prisoners. Now, incompetence may very well have resulted in significant numbers being essentially harmless. I pointed that out myself, thank you. Now, if one does not believe the American government is doing the best under the circumstances to detain genuine enemies at these sites, then what is it doing? Nor does it look likely that all objections are simply based on the issue of efficiency of the process of detainment in sorting out genuine threats from innocent people, but on the nature of detainment itself.

[salm]

Lord of the Abyss has stated that he has no cause to believe that any of the detainees are terrorists or Taliban prisoners.

Where do you get that from? To me it seems that he is saying that the American government is no reliable source. Therefore a significant number of people imprisoned might not be Taliban or terrorists. This doesn´t imply that he believes that non of the prisoners are terrorists or Taliban.

[MarshalPurnell]

He asked three times how we knew given detainees were part of Al Qaeda or the Taliban, then stated his disbelief in anything the American government had to say. In which case, obviously, he can't be sure that any detainee at all is a terrorist, since the only source of information on them are either the American government and allied states, or the families and spokespeople for the detainees. It seems far more likely than not, even assuming incredible incompetence, that the majority of people detained are likely to be involved with terrorist organizations and so the operative question is largely how to deal with those people. Maintaining non-terrorists in indefinite detention is neither desirable nor useful and something that can be addressed in an administrative manner, which is I trust a non-controversial point.

[Ford Prefect]

What are the Geneva Convention rules about prisoners of war?

Do you mean, by any chance, how do the Geneva Conventions define a combatant of a prisoner of war? I think, and someone will correct me if I am wrong because I last did anything with the Conventions years ago, but Article 4 of the Third Geneva Convention on its own does not protect insurgents and guerillas, but Protocol I of 1977 extends the protections of the Conventions to them. Except that the US does not, as far as I am aware, recognise Protocol I.

EDIT: Just to clarify, what I mean by protect is that Article 4 defines prisoners of war to be prisoners taken from uniformed militaries of states.

[Illuminatus Primus]

It doesn't require your absurd strawman of abducting purely innocent people out of malice or sadism, it simply requires manifest incompetence and no one really in charge because its all shady law.

Lord of the Abyss has stated that he has no cause to believe that any of the detainees are terrorists or Taliban prisoners. Now, incompetence may very well have resulted in significant numbers being essentially harmless. I pointed that out myself, thank you. Now, if one does not believe the American government is doing the best under the circumstances to detain genuine enemies at these sites, then what is it doing?

Being incompetent? You just said it yourself. How is "doing your best under given circumstances" necessarily include, rather than exclude, incompetence? I would say if they were doing their best they wouldn't have fucked up as bad was we have already heard they have. You know, erring on the side of caution would mean not torturing detainees if it turns out for political or legal reasons the only thing you can really do is try them as a criminals - which you now, in this scenario, have queered from the start by betting against it in favor of the benefits of dubious methods whose efficacy has not been well established. I would've thought "conservatism" means erring on the side of caution and sobriety. Guess not. And I would've expected all the above to be included in "the best we can do". Apparently the only criteria you demand in order to establish "the best we can do" is that the doers are American.

[MarshalPurnell]

The treatment of people confined is a separate issue from the nature of the people being confined. There is no incentive, real or imagined, such that the government would want to fill detention centers with innocent people rather than people it has reason to believe are terrorists. One does not have to go far to find rationalizations for coercive interrogation techniques, and even less so to find examples of misconduct sanctioned or otherwise; but very few people would argue that punishing or detaining people who are obviously innocent is a good idea. It may be complacent to assume that the large majority of people being detained are in fact dangerous enemies, but it seems excessively paranoid to assume that a majority are not.

[Stark]

Excessively paranoid to notice all the scandals regarding people picked up for absurd reasons, people eventually released due to lack of evidence, tribunals deciding there's no case on large numbers of detainees, etc?

The statement that there's 'no incentive, real or imagined, such that the government would want to fill detention centers with innocent people rather than people it has reason to believe are terrorists' basically sums up your perspective - that what the government believes has some kind of legal weight.

It's ironic to be that the kind of person who blindly supports evidence-free detention and other rights violations are right-wingers, who DESPISE GOVERNMENT INTERVENTION and wish to SEE IT'S POWER REDUCED.

[MarshalPurnell]

Cases of people picked up for putatively absurd reasons are more likely to stand out in the mind than cases of people picked up for germane causes and still being held. And in many cases the issue of detention may be rather less clear-cut than critics of the detention policies may admit, such as people detained from Pakistan who claim they were merely going there for religious instruction. Relatively "honest" mistakes also happen and may very well account for a larger fraction of innocent people being maintained than criminal negligence or officially sanctioned misconduct. In the absence of any hard data offered thus far, it still seems more reasonable to assume that the large majority of detainees are being held for legitimate reasons rather than to assume that detention is entirely arbitrary and so inefficient or incompetent that it mostly sucks in completely and easily provably innocent people. One may very well hear about, for example, the scandals in the LAPD and still assume with some reason that the majority of people in the California prison system are still in prison for reasons that do not involve police and prosecutorial misconduct, and hold opinions based on the probability that there is not a majority of innocent people being detained there.

That in no way is incompatible with agreeing in a system of reviews for cases, nor have I ever said that it was. The specific form that should take is a matter for debate, since the exact status of the detainees as such is difficult to deal with. They are neither criminals nor soldiers, and we are not technically at war with anyone but the (guilty) detainees are engaging Americans in combat or plotting to carry out acts of terrorism. Charging them in court with attempted murder of American soldiers doing their best to kill the detainees during combat is obviously problematic, and proving involvement in a terrorist conspiracy beyond a reasonable doubt may not be possible for various reasons. These people still need to be prevented from carrying out further attacks, and that inevitably means some form of detention. If the present system sweeps in too many innocent people and takes too long to free them, or allows for abuses like torture, that is one thing and can be fixed with administrative measures; if the entire system is illegitimate, that is another problem altogether and requires another solution to be chosen.

[Ender]

What are the Geneva Convention rules about prisoners of war?

Treatment is stipulated in Article 3, but these guys are not POWs. They are captured personnel, which means they get the same rights as POWs in terms of treatment, but until the POW assessment tribunals required by Article 5 are convened their POW/nonPOW status is indeterminate and we can't move forward in legally processing them until we know which system to try/free them under. It is incredibly unlikely they will be found to be POWs in any case, as they are pretty much in complete opposition to the criteria in Article 4, which means they will get get tried under criminal law, not the UCMJ.

[Ender]

What are the Geneva Convention rules about prisoners of war?

Do you mean, by any chance, how do the Geneva Conventions define a combatant of a prisoner of war? I think, and someone will correct me if I am wrong because I last did anything with the Conventions years ago, but Article 4 of the Third Geneva Convention on its own does not protect insurgents and guerillas, but Protocol I of 1977 extends the protections of the Conventions to them. Except that the US does not, as far as I am aware, recognise Protocol I.

EDIT: Just to clarify, what I mean by protect is that Article 4 defines prisoners of war to be prisoners taken from uniformed militaries of states.

Not quite. Article 4 covers both irregulars and conventional forces. Section 6 covers irregulars. But Al-Queda forces meet none of the criteria of Section 6.

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.

Al-Queda forces are largely foreigners (not inhabitants) who were in pre-formed highly organized groups (so they were neither spontaneous and had organized into regular cell units), who did not carry arms openly and openly flaunt the fact they don't respect the laws and customs of war (videoa of beheadings, deliberate targeting of civilians etc).

They get covered under the second part of article 5

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.

With regards to basic treatment as prisoners, but being a captured person is not being a POW. Different legal systems.

[Lord of the Abyss]

That is pretty paranoid. I'm pretty sure the US government is competent enough to identify people who are shooting at them.

According to them. Again, why should I believe proven liars who say that someone was shooting at them ? And any confessions on the part of the prisoners can't be trusted either, with our habit of torturing people.

There is no incentive, real or imagined, such that the government would want to fill detention centers with innocent people rather than people it has reason to believe are terrorists.

The government hasn't cared for years if someone was a terrorist or not; not since 9-11. The "War of Terror" was never anything but an excuse for other things, like the conquest of Iraq.

As for an incentive for innocent people being grabbed as "terrorists", how about our habit of offering bounties ? Don't like your neighbor ? Sell him to the Americans ! Are you a terrorist in need of money ? Sell some random guy to the Americans ! It doesn't matter if there's any evidence; we'll torture them into admitting to being terrorists.

[Dominus Atheos]

The Judge told Obama to go to hell

Habeas Ruling Is a Blow to Administration

A federal judge ruled yesterday that three detainees at a U.S. military prison in Afghanistan may challenge their confinement before a U.S. court, handing the Obama administration one of its first legal defeats on a claim of executive power.

U.S. District Judge John D. Bates rejected the government's argument, first made by the Bush administration and later adopted by the Obama Justice Department, that it could detain prisoners indefinitely in a "war zone."

In a 53-page ruling, Bates said that the situation of the three detainees at Bagram air base -- who were captured elsewhere and transported to Afghanistan by U.S. forces -- is "virtually identical" to that of prisoners held by the military at Guantanamo Bay. A landmark Supreme Court ruling last year accorded habeas corpus rights to detainees at that facility in Cuba.

The ruling is likely to complicate the administration's ongoing review of detainee policies. President Obama criticized his predecessor's denial of rights to and treatment of alleged terrorists and during his first week in office ordered Guantanamo Bay to be closed this year. A high-level administration task force is studying what to do with detainees deemed too dangerous to release.

For the moment, the ruling lays to rest some of the concerns voiced by human rights groups that Bagram, a secretive prison that has generally escaped public scrutiny, could become a replacement destination for suspected terrorists. A Justice Department spokesman said no decision has been made on whether to appeal the decision.

The government has more than 600 prisoners at Bagram, and the military is building a new prison there designed to hold more than 1,000, four times the number held in Cuba. The ruling yesterday potentially applies to only a few dozen detainees: Afghan citizens and those captured on the Afghan battlefield are not included.

"The only reason the [prisoners] are in an active theater of war is because [the government] brought them there," Bates wrote in denying a government motion to dismiss lawsuits brought by the detainees in D.C. federal court. He ruled that the detainees -- two Yemenis and a Tunisian -- have a right to habeas corpus, a centuries-old legal doctrine that permits prisoners to go to court to challenge their detention.

Human rights groups and attorneys for the detainees hailed the ruling as a major victory in their efforts to ensure judicial oversight of such prisons.

Ramzi Kassem, an attorney for one of the men, said: "This is a great day for American justice. Today, a U.S. federal judge ruled that our government cannot simply kidnap people and hold them beyond the law."

Legal scholars said the opinion is significant because it challenges the government's long-held position that it can detain people without cause in active combat zones.

"It raises the possibility that there can be judicial involvement elsewhere in the world," said Robert Chesney, a professor of national security law at Wake Forest University. "Whether this is a good or bad thing it's not entirely clear."

Bates emphasized that his decision to grant habeas rights to those at Bagram is limited and that it applies only to prisoners captured outside Afghanistan. The detainees' attorneys say the three men were picked up outside the country and later imprisoned at Bagram. They have been held there since at least 2003.

Most other Bagram prisoners were captured in Afghanistan during fighting, and Bates took pains to avoid addressing legal issues linked to them.

"It is one thing to detain those captured on the surrounding battlefield at a place like Bagram," the judge wrote. "It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach."

Referring to last year's Supreme Court ruling on Guantanamo Bay, Bates wrote: "Such rendition resurrects the same specter of limitless executive power the Supreme Court sought to guard against in Boumediene -- the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely."

The government has not disclosed how many Bagram detainees were captured outside Afghanistan, though government sources have put the number at about 20.

Bates deferred ruling on whether a fourth detainee who was part of the habeas petition can also challenge his detention. Lawyers for that prisoner said he was captured in the United Arab Emirates. But he is also an Afghan citizen. The judge said he did not think he had the authority to grant the Afghan the right to habeas corpus because it could cause "friction" with the Afghan government, which leases the base to the United States. He asked lawyers to submit further legal briefings in that case.

The question of what to do with suspected terrorists considered too dangerous to release, or too difficult to try, is a vexing one for the Obama administration. "The truth is, this is a huge challenge," a senior defense official said.

In an interview with the New York Times last month, Obama said his administration would "have to think about" how to deal with a clearly "dangerous person" captured by U.S. forces. He said any decision would have to match international law and "my very clear edict that we don't torture, and that we ultimately provide anybody that we're detaining an opportunity through habeas corpus to answer charges."

Yet when given an opportunity by Bates to change the Bush administration's position on the then-pending Bagram case, the Obama Justice Department told the court it would "adhere" to the Bush administration's contention that the men were not eligible for habeas review.

I'm glad there's someone in this country who's willing to apply the rule of law. I was worried it might be dead, but it looks like it's been granted a reprieve.

[MKSheppard]

I've said it before, and I'll say it again; FDR was right.

[Tiriol]

I've said it before, and I'll say it again; FDR was right.

Meaning what, exactly?

[Redleader34]

Good Judge, Good Ruling. I do not want the USA to start acting like my mother nation does, and like it or not we have to be the good guys if these guys don't want to play by the "rules" (and in before posts of hyperbole and saying BUT TORTURE IS GOOD/HUMAN RIGHTS? THEY ARE ISLAMISTS) we must.

[Dominus Atheos]

I've said it before, and I'll say it again; FDR was right.

Meaning what, exactly?

I assume he's referring to the forced internment of over 100,000 people of Japanese ancestry during World War II. I also assume he doesn't know (or doesn't care) that in 1944 the Supreme Court ruled that those interned did have the right of Habeas Corpus, in 1984 those forced internments were ruled to be illegal by writ of coram nobis, and that in 1987 Congress and Reagan passed a bill apologizing for it and admitting it was illegal.

There really isn't a whole lot of debate about this anymore except by right-wing think tanks desperately groping for some kind of justification for Gitmo.

[MKSheppard]

I assume he's referring to the forced internment of over 100,000 people of Japanese ancestry during World War II.

Lol no.

July 2, 1942
No. 2661

DENYING CERTAIN ENEMIES ACCESS TO THE COURTS OF THE UNITED STATES

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage or other hostile or warlike acts, should be promptly tried in accordance with the law of war;

NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America and Commander in Chief of the Army and Navy of the United States, by virtue of the authority vested in me by the Constitution and the statutes of the United States, do hereby proclaim that all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States, or of its States, territories, and possessions, except under such regulations as the Attorney General, with the approval of the Secretary of War, may from time to time prescribe.

IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of the United States of America to be affixed.

DONE at the City of Washington this 2nd day of July, in the year of our Lord nineteen hundred and forty-two, and of the Independence of the United States of America the one hundred and sixty-sixth.

FRANKLIN D ROOSEVELT

By the President:
Cordell Hull
Secretary of State

Follow this by a military tribunal of captured German Saboteurs, followed by their quick execution shortly thereafter. I've seen one of the desks used in said tribunal, at a Newseum exhibit.

[Dominus Atheos]

Did you actually bother to read what you just posted? It only applies to people who enter the United States. The people being held at Gitmo and Bagram were captured in their own countries. Also it only applies to people convicted of sabotage, the entire point of this ruling is that the people being held haven't even been charged with anything. This ruling allows people to get trials and either be convicted or acquitted. That article doesn't apply even a little bit to this situation.

But whatever. I mean after all, they are just a bunch of sand-niggers, so they don't even qualify as people at all. lol, *I'm a smarmy asshole* shep?

OH GOD I'M CHANNELING ELFDART, SAVE ME!!!!!

[Elfdart]

OH GOD I'M CHANNELING ELFDART, SAVE ME!!!!!

Feel the power you have discovered!

It would be funny if this went to the Supreme Court and the Republitard justices upheld this decision to not only embarrass Obama, but to make him either fish or cut bait. If he abides by the decision and these people face trial in front of real courts, almost all of them will walk. If he takes the Andrew Jackson route and tells the Court he's keeping them locked up in Bagram anyway, he will not only validate the crimes committed by the Crawford Caligula and Dick Vader, he will be complicit in them, too. A win-win for the Torture Party.

[Big Phil]

OH GOD I'M CHANNELING ELFDART, SAVE ME!!!!!

Feel the power you have discovered!

It would be funny if this went to the Supreme Court and the Republitard justices upheld this decision to not only embarrass Obama, but to make him either fish or cut bait. If he abides by the decision and these people face trial in front of real courts, almost all of them will walk. If he takes the Andrew Jackson route and tells the Court he's keeping them locked up in Bagram anyway, he will not only validate the crimes committed by the Crawford Caligula and Dick Vader, he will be complicit in them, too. A win-win for the Torture Party.

Perhaps the lose-lose situation Obama faces with regard to prisoners of the "war on terror" is precisely the reason he has no desire to address the issue. It might not be particularly brave or honorable, but it is eminently logical.

[Cecelia5578]

I assume he's referring to the forced internment of over 100,000 people of Japanese ancestry during World War II.

Lol no.

July 2, 1942
No. 2661

DENYING CERTAIN ENEMIES ACCESS TO THE COURTS OF THE UNITED STATES

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage or other hostile or warlike acts, should be promptly tried in accordance with the law of war;

NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America and Commander in Chief of the Army and Navy of the United States, by virtue of the authority vested in me by the Constitution and the statutes of the United States, do hereby proclaim that all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States, or of its States, territories, and possessions, except under such regulations as the Attorney General, with the approval of the Secretary of War, may from time to time prescribe.

IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of the United States of America to be affixed.

DONE at the City of Washington this 2nd day of July, in the year of our Lord nineteen hundred and forty-two, and of the Independence of the United States of America the one hundred and sixty-sixth.

FRANKLIN D ROOSEVELT

By the President:
Cordell Hull
Secretary of State

Follow this by a military tribunal of captured German Saboteurs, followed by their quick execution shortly thereafter. I've seen one of the desks used in said tribunal, at a Newseum exhibit.

What Shep is referring to is the incident that led to Ex parte Quirin, 317 U.S. 1, the Supreme Court case in World War 2 that upheld FDR's military commission order. Initially, the Germans were picked up by the FBI, who would have tried them in a civilian court, most likely not getting the death penalty. It was FDR who railroaded the military commissions, most likely to save face at having Germans actually succeed in infiltrating the US, not getting caught by the military or FBI, only one of the members turned himself in. No less a wimpy leftist hippie than Antonin Scalia wrote in his and Justice Stevens' dissent in Hamdi v Rumsfeld, 542 U.S. 569, that it was "not this Court's finest hour."

The original per curiam opinion was devoid of legal reasoning, and merely upheld the government's position; the full opinion was written three months later. It should also be noted that in 1944, two other German agents were caught; they were not tried by the same military commission.