Ex-Gitmo detainee reportedly gets al-Qaida role

[Naked Gents Rut]

Or I could just be consistent by believing the entirety of the Geneva Convention is based on an obsolete conception of war and should be completely revamped.

True. The vast majority of the opponents to Gitmo don't take this position, however.

This isn't an international law question but a policy question: what process do we want?

I agree, which is why I'm annoyed by people who try to frame it as an international law issue in order to rain moral opprobrium down upon their opponents. I have no problem with closing Gitmo to achieve some clear policy goal, but there's no convincing reason in international law for doing so.

[Naked Gents Rut]

Members of the Taliban by and large don't fall under US criminal jurisdiction, unless they were involved in a terrorist action.

So you agree with my original point then? Why did you even start an argument if you're just going to agree with me in the end?

[Rufus T. Firefly]

Still, Gitmo's not the only issue. As a "symbolic gesture" it's taken by many, including probably Slowwy, as a harbinger of an overall policy shift toward starting to give GWOT detainees some modicum of constitutional due process beyond what the bare-minimum laws of war would require. Regardless of what you or I subjectively find "just" or not in terms of fundamental human rights, we must both admit that the more substantive and procedural rights a non-citizen detainee has in the process of challenging whether his detention was justified, the more often people will be released who are in fact unabashed terrorists despite inadequate evidence or improper process.

Of course, but all Obama has said so far is that he's going to follow the decision of the Supreme Court and the terms of the Geneva Convention -- which, because we signed it, is the Law of the Land. That's all. So yes, it's a harbinger of a policy shift -- toward Rule of Law. Anyone who has a problem with that frankly does not have an opinion worth careful consideration. I realize that encompasses many people, who have placed fear and/or desire for vengeance above a concern fro Rule of Law. I do not feel inclined to take those fears and desires seriously.


. . .

Hence, the real issue is whether it's worthwhile to inevitably set "some" actual terrorists free - adding slightly to the risk that civilians of various nationalities will die and adding greatly to the risk that U.S. and Iraqi soldiers will die - in the name of "justice" for its own sake. Personally I'm willing to take that risk because quite frankly any increase in freedom is likely to be at the cost of human life (blood is liberty's "natural manure" as Jefferson put it), which is why we already take that risk regarding epidemic criminality, but if someone like Slowwy thinks the price is too high, I at least understand the viewpoint.

No, absolutely not. You're essentially arguing that the US has a choice about whether or not to follow its own laws and the treaties to which it is a signatory, and that advocates for either side of this question have equally valid viewpoints. I reject that categorically. If Obama following the law results in more terrorists freed, then the"fault" lies in the law and not with Obama. In spite of what Bush and especially Cheney have suggested for the last eight years, the executive branch does not just get to do whatever the hell it wants to. And, again, Americans who think otherwise betray a profound ignorance of their own history and law. I understand why such opinions must be taken seriously when making political calculations, but there's no argument for taking them serious intellectually.

I don't accept that at all. Boumediene was decided 5-4 with strong arguments on both sides of what were first-time ambiguities, and Kennedy was the tie-breaking wild card as usual, so it was far from predictable. For crying out loud, even freaking Scalia surprisingly led the freedom-loving side of Hamdi (arguing in dissent that there existed no constitutional or statutory power for Bush to detain absent either suspension of habaeus corpus or a normal criminal trial), so nothing was predictable about where the scale would tip on this topic.

That's my point. The legitimacy of indefinite detention was a gigantic roll of the dice -- and if it failed, it was going to mean taking guys you had tortured for years and releasing them back in the wild. Under such circumstances, the prudent thing to do would have been to make sure the guys you grabbed were going to be guys you could keep.

That aside, I fail to see how Boumediene even nears a PR coup for al-Qaeda anyway. How many average Americans have even heard of it, let alone on the Arab street?

Ok, my cracks about the lawyers was just venting frustration. But, seriously, this kind of thing is a huge PR coup for Al Qaeda, which has a very sophisticated spin machine. It's not about who has heard of Boumediene. It's about telling a much simpler story: that the Great Satan could capture our Holy Warriors, but could not hold them and now they have returned to wreak more vengeance. It's a powerful story, and a powerful recruitment tool, and we pretty much handed it to them when we decided to grab guys first and sort out the legal niceties later.

I actually think GePap's right: if the Bushie position was that these guys have no rights (and I've sat in at least one Pentagon briefing where lawyers came very, very close to arguing that), then go whole hog: take them to black sites in Eastern Europe and Central Asia, torture them with impunity; and when you finally discover that they have no useful information (the usual outcome of torture), kill them, dump the bodies, and keep it all a secret. But to argue that treating them as if they have no rights is consistent with US law and philosophy is absurd.

Still, to you. I appreciate a response and thoughtful and well reasoned as yours. It's better articulated than my own, surely -- but only because this topic makes me apoplectic, in no small part because its been my job to apologize for and/or explain away Gitmo to foreign counterparts these last few years, and it's been an ugly job indeed.

[Darius871]

Or I could just be consistent by believing the entirety of the Geneva Convention is based on an obsolete conception of war and should be completely revamped.

True. The vast majority of the opponents to Gitmo don't take this position, however.

This isn't an international law question but a policy question: what process do we want?

I agree, which is why I'm annoyed by people who try to frame it as an international law issue in order to rain moral opprobrium down upon their opponents. I have no problem with closing Gitmo to achieve some clear policy goal, but there's no convincing reason in international law for doing so.

Ah. I agree 100% to that extent then, but as far as policy goes I see no problem with trying non-citizen terrorists (whether AQ or any other stripe) in federal courts for violating existing or future terrorism/conspiracy statutes, using the same basic procedural rights as any citizen or resident alien would have, with two exceptions:

1) Don't apply the 6th Amendment right to a jury in criminal trials at all, and limit all cases to highly specialized D.C. Circuit judges with top secret security clearances, since cases like this would obviously disclose a huge amount about our intelligence apparatus' methodology, sources, and extent of knowledge. Alternatively a jury could be drawn randomly from a roster of people in the D.C. area who hold a top secret clearance, though I can't guess if this would be more biased or less.

2) Don't strictly apply the 4th Amendment to them; specifically, admit evidence obtained from warrantless searches and seizures which occurred off American soil (or involved an electronic communication in which at least one recipient/sender was off American soil), since excluding it would rule out most of what our foreign intelligence apparatus obtains about terrorist operations.

3) Don't strictly apply the 6th Amendment's Confrontation Clause to them; specifically, A) if a co-conspirator had made relevant statements regarding the accused during interrogation but is either dead or unwilling to testify, then admit as valid testimony any written, video, or audio statements made by the co-conspirator and limit impeachment to compelled testimony by the interrogator, since excluding such evidence would rule out another huge chunk of what our foreign intelligence apparatus obtains about terrorist operations. B) Also admit written, video, or audio testimony from undercover operatives or foreign assets if they're still in the field or will be in the future. If they're retired and within jurisdiction, subpoena them to appear and be impeached.

4) Don't strictly apply the 6th Amendment's right to compel witnesses; specifically, only allow them to compel witnesses not restricted by 3B above.

5) Require a preponderance of the evidence standard rather than proof beyond a reasonable doubt. (This doesn't even violate a constitutional right, only the SCOTUS' dubious opinion that it's implied by Due Process.)

I don't think I'm leaving anything out.

[Ramo]

So you agree with my original point then? Why did you even start an argument if you're just going to agree with me in the end?

No, I don't. Your point as it related to AQ was ridiculous bull****. As for the Taliban, you're right insofar as that they generally don't fall under criminal jurisdiction. But that makes them prisoners of war with relatively well-defined rights, not "enemy combatants" who can be treated arbitrarily. The Kabul authorities have dealt with a fairly large number of Taliban prisoners. They're not all in Gitmo.

[DaShi]

What's your point, Ramo? Do you understand what was said?

Yip! Yip! Yip!

[Naked Gents Rut]

As for the Taliban, you're right insofar as that they generally don't fall under criminal jurisdiction.

I know I'm right. I'm glad you've gotten over your pointless hissyfit and am now agreeing with me.

Your point as it related to AQ was ridiculous bull****.

I don't see how an AQ footsoldier or trainee is functionally different from a Taliban fighter. Not everyone in Al Qaeda is involved in terrorist acts, especially in Afghanistan before the U.S. invasion.

But that makes them prisoners of war, not "enemy combatants."

No, it doesn't. Read the Geneva Convention.

[Ramo]

Not everyone in Al Qaeda is involved in terrorist acts

If they were some random trainee and had absolutely nothing to do with any terrorist acts (no conspiracy charges, etc.), they shouldn't be detained. That's the whole point.

Read the Geneva Convention.

Even G Dub believes that it's applicable.

The president applied the Geneva Conventions to Taliban fighters because Afghanistan was a party to the 1949 treaty, though the United States never recognized the Taliban as Afghanistan's legitimate government.

With Thursday's announcement, the Bush administration recognizes the Taliban troops as members of a "state" army.

http://archives.cnn.com/2002/US/02/07/ret.bush.detainees/index.html

[Naked Gents Rut]

If they were some random trainee and had absolutely nothing to do with any terrorist acts (no conspiracy charges, etc.), they shouldn't be detained. That's the whole point.

So you let them go so they can go back to training and possibly attack America in the future? Good plan.

Even G Dub believes that it's applicable.

No one ever accused W of having a surfeit of intelligence.

[Ramo]

So you let them go so they can go back to training and possibly attack America in the future? Good plan.

This hypothetical person apparently had absolutely no idea what he was doing. Why would he attack America? I mean, besides the torture.

[Naked Gents Rut]

This hypothetical person apparently had absolutely no idea what he was doing.

Yes, because lots of people just accidentally end up at an Al-Qaeda training camp in Afghanistan.

[Ramo]

Which is why a conspiracy charge would be a pretty easy case to make.

[Naked Gents Rut]

Conspiracy to do what? Train?

[Darius871]

Of course, but all Obama has said so far is that he's going to follow the decision of the Supreme Court and the terms of the Geneva Convention -- which, because we signed it, is the Law of the Land. That's all. So yes, it's a harbinger of a policy shift -- toward Rule of Law. Anyone who has a problem with that frankly does not have an opinion worth careful consideration. I realize that encompasses many people, who have placed fear and/or desire for vengeance above a concern fro Rule of Law. I do not feel inclined to take those fears and desires seriously.

. . .

No, absolutely not. You're essentially arguing that the US has a choice about whether or not to follow its own laws and the treaties to which it is a signatory, and that advocates for either side of this question have equally valid viewpoints. I reject that categorically. If Obama following the law results in more terrorists freed, then the"fault" lies in the law and not with Obama. In spite of what Bush and especially Cheney have suggested for the last eight years, the executive branch does not just get to do whatever the hell it wants to. And, again, Americans who think otherwise betray a profound ignorance of their own history and law. I understand why such opinions must be taken seriously when making political calculations, but there's no argument for taking them serious intellectually.

I never suggested that the U.S. can disregard a treaty (well, technically as sovereign with no contrary constitutional provision it certainly can abrogate any treaty it likes, but only by disregarding the principle of rule of law as you said); as I said in my post to NGR, "the Congress, President, and courts have the power to fashion that process however they damn well please so long as its rights are equal to or in excess of those granted by the third convention." I've never been convinced that the letter of Geneva grants POW protections to terrorists to begin with, since the unratified Protocol I is not in any way binding on the United States as you know, and none of the third convention's POW definitions apply to the typical terrorist, who is in the armed forces of no state and violates at least 3 if not 4 of the dispositive requirements of a "militia" member. To the best of my knowledge, no interpretation to the contrary comes from a source that is binding on the U.S., whether it be by the ICJ, an ad hoc tribunal, an ICRC commentary, or whatever else. If you can show me one document the U.S. ratified, or one document from a tribunal to which the U.S. expressly subjected its sovereignty, I'll gladly eat my hat.

Until I see that, only the SCOTUS could offer a decisive interpretation, but of course the SCOTUS has never adjudged any GWOT detainee to have prisoner of war status. In fact, in Hamdan the lower court had declared the defendant a Geneva POW but the SCOTUS explicitly reserved judgment on that question: "Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” ... Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened ... the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved." And of course Boumediene was strictly limited to habaeus corpus, without discussing POW status at all.

But even supposing hypothetically that terrorists are given POW protections, that only pertains to harsh conditions and not whether the detention can be indefinite; Article 118 clearly states that release is only mandatory "after the cessation of active hostilities," and I think you'd agree that this moment would never occur in a "war on terror." Lo and behold, the SCOTUS said just that about 118 in Hamdi. Since my entire point earlier was about the danger of indefinite detention on questionable factual grounds, and not whether detainees should be treated badly, 118 makes Geneva irrelevant. Even a POW could be detained until the day he dies if the fighting lasts that long, so virtually any process to determine "guilt" and release grants "rights equal to or in excess of" Geneva, a realm in which the sovereign has total discretion. My point was that this discretion should be used to grant more rights than the steady state of lifelong detention. Unless you think Geneva prohibits being nicer than Geneva, but you're smarter than that of course.

That's my point. The legitimacy of indefinite detention was a gigantic roll of the dice -- and if it failed, it was going to mean taking guys you had tortured for years and releasing them back in the wild. Under such circumstances, the prudent thing to do would have been to make sure the guys you grabbed were going to be guys you could keep.

I don't buy that. If Bush & Co. had just adopted a test that'd have an 80% chance of passing SCOTUS muster instead of their actual test that had a 50/50 shot, detainees with weak cases against them would have been released back into the wild anyway. Also harsh treatment wasn't a factor in the Boumediene decision or any post-9/11 SCOTUS case I'm aware of, so I hope you're not suggesting that torturing people less would have had any effect on the outcome.

[Ramo]

Conspiracy to do what? Train?

To commit a terrorist act. Body guards and drivers have been prosecuted on such grounds. Look at Hamdan.