Ex-Gitmo detainee reportedly gets al-Qaida role

[Berzerker]

given that neither version is explained in the text, this is speculation, just as my speculation is.

well, its a rather important part of the equation. I suspect that means they have even less evidence of terrorism prior to being picked up. As for how we got these people, some were captured, some were paid for with bounties, and some were in the wrong place. But are they AQ? If they're/were just Afghans fighting other Afghans they aint terrorists. We did overthrow the regime, many fighters were just defending themselves from attacks as our Afghan allies took ground.

The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries.

Not invade countries and start nation building.

The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.

The Constitution allows for ignoring all that, time of war, insurrection, rebellion, whenever the public safety requires it. The question is not whether the military should be used, but the scope of the operations. We invaded 2 countries to get a gang of thugs who simply ran across the border to hide. Now we're stuck and we're making more enemies while they sit in Pakistan planning attacks. Well, it really dont matter where they hide and plan, we're policing terrorism by default ever since we didn't get them in Afghanistan. We should have never invaded either country... We should have shown patience, complied with Taliban requests for evidence, and started pinpointing their camps instead of spooking the rabbits with a bungled invasion.

[Darius871]

Conspiracy to do what? Train?

If that training was conducted with a present intent to accomplish the organization's criminal purpose, with an implication of agreement between conspirators to that effect, then yes technically the crime of conspiracy exists. The same theory is used against gangs and drug cartels on a regular basis. I think you're confusing conspiracy and complicity, which are two different things.

[Naked Gents Rut]

To commit a terrorist act.

A trainee isn't even a member of the organization yet. Convicting them of a conspiracy to commit a terrorist act is ludicrous, but so is the whole idea of treating enemy soldiers as criminals...

If that training was conducted with a present intent to accomplish the organization's criminal purpose

What if they were just training to carry an AK and fight the Northern Alliance in Afghanistan? How can you prove that someone who hasn't been involved in the planning or preparations for a terrorist act was involved in a conspiracy?

The fact that we should even worry about things like this is absurd.

[Darius871]

What if they were just training to carry an AK and fight the Northern Alliance in Afghanistan? How can you prove that someone who hasn't been involved in the planning or preparations for a terrorist act was involved in a conspiracy?

The fact that we should even worry about things like this is absurd.

A) Things like this can be implied by the court and are all the time. Since people have been successfully prosecuted under the Smith Act for mere CPUSA membership because the CPUSA doctrinally advocated violent overthrow and some other members of it had committed violent acts for that purpose, I fail to see how there'd be less luck with someone who is not only a member of AQ but also flies halfway around the world to train shoulder-to-shoulder with people who actually do want to attempt terrorist acts.

B) Conspiracy is usually just an abstract theory applicable to any substantive crime whether its penal statute mentions conspiracy or not. Nobody here is saying Congress couldn't pass a brand-new statute distinctly defining "conspiracy to commit terrorism" and including "attending at any time a training facility operated by a designated terrorist organization" amongst the definitions. Regardless of the accused's intent, all the prosecution would have to prove is the attendance, which our discussion is taking as a supposition anyway. What would be the problem with such a rule in practical implementation?

[Ramo]

And even if you can't convict on conspiracy, you can easily convict on material support.

[Naked Gents Rut]

Since people have been successfully prosecuted under the Smith Act for mere CPUSA membership because the CPUSA doctrinally advocated violent overthrow and some other members of it had committed violent acts for that purpose

And this doesn't frighten people more than Gitmo? Why are our civil libertarians so short-sighted?

I fail to see how there'd be less luck with someone who is not only a member of AQ but also flies halfway around the world to train shoulder-to-shoulder with people who actually do want to attempt terrorist acts.

The AQ trainees that get tracked into the cannon-fodder career path generally aren't the ones from who fly in from halfway around the world. I don't see how you can nail an illiterate Pashtun trigger-puller on conspiracy to commit terrorist acts unless you consider everyone who's ever been involved with Al Qaeda to be part of the conspiracy.

I guess that could be done under the standard enumerated above. Of course, that brings up the question of why the U.S. government doesn't just declare that every member of the Taliban was also involved in a conspiracy to commit terrorist acts. Once you abandon any sort of good-faith attempt to determine whether an individual was actually involved in planning and perpetrating terrorist acts, where do you draw the line on who's a criminal and who isn't?

What would be the problem with such a rule in practical implementation?

I don't see a problem in the practical implementation. I just don't understand why we need to abandon a perfectly workable system for dealing with Geneva-compliant POWs and non-compliant enemy combatants and replace it with a court-driven system that will need to prosecute enemy soldiers on trumped-up conspiracy charges in order to keep dangerous individuals in custody. The whole concept seems far more damaging to the rule of law than Gitmo ever was.

[Ramo]

And this doesn't frighten people more than Gitmo?

No one has been prosecuted with the Smith Act for decades, and such a prosecution would get thrown out by even the most right wing court.

I just don't understand why we need to abandon a perfectly workable system

[Ramo]

I don't see how you can nail an illiterate Pashtun trigger-puller on conspiracy to commit terrorist acts unless you consider everyone who's ever been involved with Al Qaeda to be part of the conspiracy.

You nail the illiterate hired hand on material support, or not prosecute, depending on the circumstances.

[Naked Gents Rut]

Well, I guess you and Darius can argue about whether the Smith Act precedent would allow the US to successfully prosecute Al Qaeda members who weren't involved in the planning and execution of terrorist acts for conspiracy to do so. I'll just stay over here, arguing that the application of American criminal law to foreign battlefields is a stupid idea with potentially corrosive effects on domestic civil liberties.

[Ramo]

The fruits of a perfectly workable system:

By WILLIAM GLABERSON
Published: January 18, 2009

For nearly six years, Haji Bismullah, an Afghan detainee at Guantánamo Bay, has insisted that he was no terrorist, but had actually fought the Taliban and had later been part of the pro-American Afghan government.

Over the weekend, the Bush administration flew him home after a military panel concluded that he “should no longer be deemed an enemy combatant.”

Asked about the panel’s decision, which was not publicly announced and seemed to acknowledge a mistake of grand proportions, a Pentagon spokeswoman said, “Mr. Bismullah was lawfully detained as an enemy combatant based on the information that was available at the time.”

[...]

Lawyers for Mr. Bismullah, 29, presented sworn statements from officials of the American-supported Afghanistan government of Hamid Karzai that indicated Mr. Bismullah had been named as a terrorist by collaborators of the Taliban who wanted to take over his position as a provincial official. In fact, after Mr. Bismullah was shipped to Guantánamo, a local official said in a sworn statement, one of his accusers stole his car and drove it for two years.

http://www.nytimes.com/2009/01/19/washington/19gitmo.html?_r=1&ref=us

[Ramo]

I'll just stay over here, arguing that the application of American criminal law to foreign battlefields is a stupid idea with potentially corrosive effects on domestic civil liberties.

Yeah, you're the civil liberties guy who approves of arbitrary, indefinite detention by the government. Right.

[Naked Gents Rut]

The fruits of a perfectly workable system

I can find far worse stories from the American justice system.

Yeah, you're the civil liberties guy who approves of arbitrary, indefinite detention by the government.

Why wouldn't I? It's worked well in every other American war.

[Ramo]

It wasn't arbitrary. There used to be a legitimate legal procedure that adjudicated your status. See the AR 190-8 tribunals.

[Ramo]

I can find far worse stories from the American justice system.

Which is really relevant. Because it's not like the American justice system is a few orders of magnitude larger than Gitmo.

[Naked Gents Rut]

It wasn't arbitrary. There used to be a legitimate legal procedure that adjudicated your status. See the AR 190-8 tribunals.

If the use of military tribunals to adjudicate the status of detainees means that a process isn't "arbitrary", then the process at Gitmo isn't arbitrary.

Which is really relevant.

How is it not relevant? You want to replace a perfectly workable detention system under military control with a system under the control of the U.S. criminal justice system. Shouldn't we look at the failings of the U.S. criminal justice system to determine if that's a wise decision or not?