From Gitmo to Taliban Command

[William F. Owen]

This seems to have gone well for the bad guys. (http://www.dailymail.co.uk/news/worldnews/article-1161345/Freed-wage-war-British-troops-Guantanamo-prisoner-Taliban-chief.html)

Very sorry story IF true.

[Anthony Hoh]

Wilfo,
I could not agree more, although the facts in these releases are usually skewed. I only see more of this as the President delivers on his promise to close GITMO. I believe in basic human rights and dignity, I continually argue with myself over how I feel about GITMO. One thing is for sure I dont feel that non-state actor combatants should be given the same rights and privileges under the law that a US citizen has. But I also know you cant lock'em up and throw away the key. I still dont understand why a military court is considered insufficient for alot of Americans when it comes to trying terrorists.

[jmm99]

AGR (detainee 008) has a long Gitmo record, which is summed by Wiki (http://en.wikipedia.org/wiki/Abdullah_Gulam_Rasoul). His statement (http://en.wikisource.org/wiki/Summarized_Detainee_Statement_(Abdullah_Gulam_Raso ul,_ISN_8)) given in his CSRT hearing.

After his initial CRST hearing, there were three annual reviews. The first two (for which we have unredacted records) continued his detention. As to the third hearing, we have a nada record - everything is redacted; and soon after, he was released by Gordon England. From Wiki (footnotes 13-15 are in above link):


Third annual Administrative Review Board hearing

One January 9th, 2009, the Department of Defense published two heavily redacted memos, from his Board, to Gordon England, the Designated Civilian Official.[13][14] The Board's recommendation was unanimous. The Board's recommendation was redacted. England authorized his transfer on 2007-04-23. He was transferred back to Afghanistan on December 12, 2007.[15]

No MCA charges were brought vs. Rasoul. I am not aware of an individual DC habeas case - although he may have been included in one or more of the multi-detainee filings.

His release, based on the facts in Wiki, was solely the decision of the Bush administration in 2007 - motivated by ????

Based on the facts in Wiki, and comparing those to the habeas cases where Judge Leon found "enemy combatant" status, Rasoul most likely would have been found an "enemy combatant" by such as Judge Leon.

As the history of the Bush II Gitmo era becomes better known, I expect we will find more and more evidence of inconsistent policies in regard to the Gitmo detainees.

PS: Anthony - you may want to slog your way through this thread (http://council.smallwarsjournal.com/showthread.php?t=4921) (started by David), which will answer some of your questions - and probably cause you to ask others.

[davidbfpo]

Below are two paragraphs taken from this longer general article (also on the main thread on these issues):

http:/Link broken, see below fix by JMM

'He might, as he insists, be innocent of any wrongdoing. But the risks of taking the protestations of innocence of a former Guantánamo detainee at face value have been graphically demonstrated this week by the revelation that another inmate, Abdullah Ghulam Rasoul, has re-emerged as one of the Taliban's most effective commanders in southern Afghanistan.

During the six years he was held at Guantánamo, Rasoul, now known as Mullah Abdullah Zakir, managed to convince his American interrogators that he had never held a military command, even though it turns out he was a high-ranking commander close to Mullah Omar, the Taliban's supreme leader. Rasoul was eventually released after claiming he wanted to return to his family and farm. British officials believe he is the mastermind behind the deadly surge in roadside bombings in Helmand since last spring'.

davidbfpo

[jmm99]

David, your link to the excellent Telegraph article was broken, so here it is (http://www.telegraph.co.uk/comment/columnists/concoughlin/4980955/Britain-is-fighting-a-war---and-we-are-too-soft-on-our-enemies.html).

I am shifting my discussion about Rasoul and others (since Rex has posted a related Canadian situation) to the main thread, which is now up to here (http://council.smallwarsjournal.com/showthread.php?t=4921&page=11).

[Culpeper]

Ah, what the heck. During the offensive to Baghdad the troops were forced to let nothing but military aged men dressed in civilian clothes continue to push south in the opposite direction; i.e. behind ally lines. This turned out to be a mistake. So, we let few guys go from Gitmo and they end up shooting and bombing again. What is the solution?

[jmm99]

from Culpeper
What is the solution?

A starting point is assembling the known evidence (I'm not talking CSI) and keeping it in individual dossiers that can be retrieved. However, the process from the field to the initial and later detention centers is one of separating the sheep from the goats. Some goats will escape.

Obviously, screening of 100000s of Iraqi Army types was not possible given the manpower (does PC demand "personpower" ?) employed in that operation. A lot of this depends on knowledge (intelligence) of the enemy going into the operation. Letting a Taliban officer buffalo and game the system is an example of lack of prior and later intelligence.

IMO: from reading a lot of these cases, is that the more serious omissions did not occur in the field, but with what was done after the detainees were initially detained - more than one case where evidence was lost or misplaced.

[CPT Foley]

I'm surprised that there hasn't been more chatter in the media that the alternatives to Gitmo, with the exception of of just releasing them, will be exponentially crueler. At Gitmo the detainees have their bond as Muslims brothers to sustain them. Sending them to a maximum security prison in the U.S. will leave them in solitary confinement. Sending them to Egypt or Jordan where water boarding would be laughed at as child's play, is every more chilling. Which is why it has been pretty much ruled out - leaving the maximum security prisons as the remaining option. It looks like many of the 'do gooders' are completely oblivious to how bad the detainees lives are about to become.

[slapout9]

This seems to have gone well for the bad guys. (http://www.dailymail.co.uk/news/worldnews/article-1161345/Freed-wage-war-British-troops-Guantanamo-prisoner-Taliban-chief.html)

Very sorry story IF true.

Good example of the Enemy using Lawfare to their advantage.

[Boot]

Great Points. The media doesn't say anything because it would run smack in the face of someone they love to love...no matter what.


Boot

[jmm99]

Foley makes some good points - I suppose the "humane" alternative is to build a Gitmo clone somewhere else. La, la, Blazing Saddles, etc.

Sorry, Slap, this particular case is definitely not this:


Slap
Good example of the Enemy using Lawfare to their advantage.

Nope. Go through the sources for this case, which I posted above in post #3 (http://council.smallwarsjournal.com/showpost.php?p=68078&postcount=3).

The decision to release this particular detainee was a decision made in Gordon England's office in 2007 - a political decision or a screw-up or both. Federal and military judges had nothing to do with it.

An example of Lawfare, whether advanced by the enemy or by useful idiots, would be to get rid of the AUFM options, as shown in the last two chart rows in this post (http://council.smallwarsjournal.com/showthread.php?p=73125#post73125).

Boot, the media, whether Fox or MSNBC, don't know Sierra about these cases; their punditry usually is Bravo Sierra; and the politicians on both sides are worse.

[Coldstreamer]

Should have played it 'straight' with Gitmo from the outset - a POW Camp. All prisoners being exactly that - with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts. We have to adapt our legal framework as well as fight within it. Gitmo serves a valuable purpose, but its reputation has been corru[ted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy.

[jmm99]

of numbering your post:


from Cold....
[1] Should have played it 'straight' with Gitmo from the outset - a POW Camp. [2] All prisoners being exactly that - [3] with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts. [4] We have to adapt our legal framework as well as fight within it. [5] Gitmo serves a valuable purpose, [6] but its reputation has been corrupted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy.

so that I could address the issues it raises in some order.

Firstly, however, some general issues need discussion.

One is the use of the pronouns "we" and "our". While we are allies in armed conflicts (and not-so-armed conflicts) vs various groups, I believe that US and UK laws are quite different in how to handle detainees taken in the course of those conflicts. Now, "different" does not necessarily mean "bad" - vis a vis the two constructs. Each may work well in its own jurisdiction.

Secondly, I am not a SME on UK military law; and neither is my cohort David who contributes the UK input on the War Crimes thread. Since you are available, I would appreciate enlightment as to how the UK forces have classified and processed detainees in Iraq and Astan (cf., our FM 3-21.10 & .20 quoted below). This is a serious request. Based on David's input, I have a fair idea about how AQ-Taliban (and associated) types are handled in the UK itself.

Thirdly, UK law is very much influenced by its ratification of the 1977 Additional Protocals I and II to the GCs (albeit with some reservations as to AP I), which have not been ratified by the US (and by most all nations located in the present theatres of operation). The UK is also bound by a number of conventions (some based on EU considerations), which also have not been ratified by the US. Finally, the UK has been more influenced by the judicial phliosophy of such as the Eminent Jurists Report (http://ejp.icj.org/IMG/EJP-Report.pdf) than the US.

-------------------------------------
Now, briefly to address your points.


[1] Should have played it 'straight' with Gitmo from the outset - a POW Camp.

Solely as to conditions of confinement (living conditions), I carry no particular brief. Gitmo and Bagram are military bases; and, if the commands there want to run the camps under EPW conditions of confinement, so be it. My legal objections (under US law; what the UK does is clearly your business) are to your next statement in para materia to the statement above.

-----------------------------

[2] All prisoners being exactly that [JMM: POWs, based on point 1]


No, AQ-Taliban and associated types are not EPW. The various US options for handling those types are broader I believe than those available in the UK because they include the AUMF flows, which include "detain" as well as kill. See this chart and explanation (http://council.smallwarsjournal.com/showpost.php?p=73125&postcount=308).

From a US military doctrinal standpoint, the guidance to (let us say) infantry COs, is clear at both company and battalion levels:

FM 3-21.10 (2006) (Company):


11-89 (https://rdl.train.army.mil/soldierPortal/atia/adlsc/view/public/23168-1/FM/3-21.10/chap11.htm;jsessionid=krQXKhyRlBJnq2GD0btDXVnlRK12 yfL3HSjswmv0lMhMTLbldWFG!-1598884244#s7-2). All persons captured, detained, or retained by US Armed Forces during the course of military operations are considered "detained" persons until their status is determined by higher military and civilian authorities. The BCT has a military police platoon organic to the BSTB to take control of and evacuate detainees. However, as a practical matter, Infantry squads, platoons, companies and battalions capture and must provide the initial processing and holding for detainees. ... [JMM followed by explicit procedures]

and FM 3-21.20 (2006) (Battalion):


10-300 (https://rdl.train.army.mil/soldierPortal/atia/adlsc/view/public/23432-1/FM/3-21.20/chap10.htm#31). All persons captured, detained or retained by US Armed Forces during the course of military operations are considered "detained" persons until their status is determined by higher military and civilian authorities. The BCT has an organic military police platoon organic to the BSTB to take control of and evacuate detainees (Figure 10‑13). However, as a practical matter, Infantry squads, platoons, companies, and battalions capture and must provide the initial processing and holding for detainees. Detainee handling is a resource intensive and politically sensitive operation that requires detailed training, guidance, and supervision by the Infantry battalion leadership and staff. ... [JMM followed by explicit procedures]

So, under clear US legal and military doctrine, all prisoners are not EPWs.

-----------------------------------

[3] with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts.

This may be true of the UK; it is not true of the US - see the War Crimes thread for what US laws (and the options) are in handling violent non-state actors.

-----------------------------------

[4] We have to adapt our legal framework as well as fight within it.

Again, this may be a UK military issue; but it is not a US military issue as far as the basic legal framework is concerned. As in anything military and operational, "adapt" is a useful concept to be kept in mind. I expect more "adapting" in specific areas by both the Obama administration (DoJ & DoD) and the Federal courts in the next 12 months; but I do not perceive a push to overhaul the basic legal framework.

------------------

[5] Gitmo serves a valuable purpose,

Agreed, you have to detain these folks somewhere - some for a very long time.

-----------------------------

[6] but its reputation has been corrupted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy

Partial agreement. The "corruption", which is presently the hot button, mostly centers on the CIA box (extraordinary renditions, "CIA prisons" & interrogations - see here (http://council.smallwarsjournal.com/showpost.php?p=73125&postcount=308)), which were activities beyond its primary chartered functions - and which also were outside the two main flow paths: FBI-DoJ and DoD under AUMF.

That "corruption" and other problems were corrected in the last few years of the Bush II administration, but the hangover continues.

-------------------------------
I hope this clears up some questions. I would much appreciate input re: the UK military doctrines as to EPW and other detainees (especially the latter). In that area, I confess present ignorance. :(

Cheers - Quis Separabit

Mike

[slapout9]

Foley makes some good points - I suppose the "humane" alternative is to build a Gitmo clone somewhere else. La, la, Blazing Saddles, etc.

Sorry, Slap, this particular case is definitely not this:



Nope. Go through the sources for this case, which I posted above in post #3 (http://council.smallwarsjournal.com/showpost.php?p=68078&postcount=3).

The decision to release this particular detainee was a decision made in Gordon England's office in 2007 - a political decision or a screw-up or both. Federal and military judges had nothing to do with it.

An example of Lawfare, whether advanced by the enemy or by useful idiots, would be to get rid of the AUFM options, as shown in the last two chart rows in this post (http://council.smallwarsjournal.com/showthread.php?p=73125#post73125).

Boot, the media, whether Fox or MSNBC, don't know Sierra about these cases; their punditry usually is Bravo Sierra; and the politicians on both sides are worse.

I agree with your case analysis, but I belive it is an example of lawfare from the standpoint of all this should have been resolved before we invaded a country. If the legal issues were decided before.... the enemy would not have benefited by either default or design. But you are the lawyer...I just had to get them to jail;)

[jmm99]

from Slap
but I believe it is an example of lawfare from the standpoint of all this should have been resolved before we invaded a country. If the legal issues were decided before.... the enemy would not have benefited by either default or design.

in the sense that failures in the law enforcement and legal areas were "lawfare" perpetrated against ourselves by ourselves - a form of legal suicide. As in the looters running about in reckless abandon - at which point, you (as I) saw the future as being negative.

"Lawfare" (as I would define it) is the manipulation of legal tools by our opponents (could be our enemies or competitors) to take effect presently or in the future (as in the 1977 Additional Protocals to the GCs). It is a form of hardball international politics - not warfare in its true sense.

The same manipulation and its effects can result from folks who are not connected to our opponents - and may be doing it because of their own, independent beliefs. The "useful idiots of parallel paths" in my jargon.

Look at the links in this post (http://council.smallwarsjournal.com/showpost.php?p=72342&postcount=4), particularly Childers' 2008 thesis which does a case study (1977 APs to GCs) in hardball international politics.

[slapout9]

in the sense that failures in the law enforcement and legal areas were "lawfare" perpetrated against ourselves by ourselves - a form of legal suicide. As in the looters running about in reckless abandon - at which point, you (as I) saw the future as being negative.


Yes, as in a loophole,etc. that already exist or is not clearly defined that the enemy can exploit. I thought Charlie Dunlap brought this up(maybe not) your definition certainly qualifies though...kinda like intentional offensive lawfare.

[jmm99]

on the subject of Lawfare, the 2001 article (http://www.duke.edu/~pfeaver/dunlap.pdf) cited by me in another thread; and the 2009 article (http://www.ndu.edu/inss/Press/jfq_pages/editions/i54/12.pdf) cited by you in another thread.

He started off the 2001 article with these questions:


Is lawfare turning warfare into unfair? In other words, is international law undercutting the ability of the U.S. to conduct effective military interventions? Is it becoming a vehicle to exploit American values in ways that actually increase risks to civilians? In short, is law becoming more of the problem in modern war instead of part of the solution?

He started off the 2009 article with this Q & A:


If anyone doubts the role of law in 21stcentury conflicts, one need only pose the following question: what was the U.S. military’s most serious setback since 9/11? Few knowledgable experts would say anything other than the detainee abuse scandal known as “Abu Ghraib.” That this strategic military disaster did not involve force of arms, but rather centered on illegalities, indicates how law has evolved to become a decisive element—and sometimes the decisive element—of contemporary conflicts.

I think this a bit hyperbolic, but no doubt that opponents will use the advice of the two Chinese colonels (of "Unrestricted Warfare" fame) to assert that the US breaks its own rules.

------------------------------
Here is an example of Lawfare brought in an individual civil (non-criminal) action against the US (http://www.scotusblog.com/wp/analysis-secrets-and-need-to-know/).


Analysis: Secrets and “need to know”
Saturday, May 30th, 2009 11:05 am | Lyle Denniston

Analysis

NOTE: Nearly a quarter-century ago, in Navy Department v. Egan, the Supreme Court ruled that the President has broad constitutional power — even apart from any grant of power by Congress — to decide who gets access to classified secrets. The Obama Administration, continuing efforts begun in the Bush Administration, has been maneuvering toward a new test — very likely aiming at the Supreme Court – of the authority to decide who has a “need to know” secret data. A filing late Friday night before a federal judge in California intensified that effort.

———————-

The Justice Department, facing an impatient federal judge’s threat to rule summarily that the federal government has engaged in illegal electronic wiretrapping on a Muslim organization within the U.S., asked the judge Friday night to issue a direct order to disclose secret data over the government’s objections that would then set the stage for an appeal on issues “of extraordinary constitutional significance.”

Among those issues is whether a court has any authority to order disclosure of “state secrets” for use by a private party in a damages lawsuit, whether a law allowing such damages lawsuits overrides the government’s claim of a “state secrets” privilege against disclosing classified information, and whether a judge, not the government, can decide what a private party “needs to know” from secret government data for use in a lawsuit. [much more in the article]

In general, I am not a strong proponent of the "state secrets" defense (classified evidence may be safely handled and protected in a number of ways - as the habeas and espionage cases illustrate).

However, the DoJ's filing last nite (http://www.scotusblog.com/wp/wp-content/uploads/2009/05/doj-al-haramain-5-29-09.pdf) suggests that some gaming (Lawfare) is going on here:


(p.8)
Plaintiffs are the Al-Haramain Islamic Foundation of Oregon (“AHIF-Oregon”), an entity designated by the United States as a “Specially Designated Global Terrorist,” and two U.S. citizens who aver that they have “business and other relationships” with AHIF-Oregon. See Complaint ¶¶ 4-6, 22 (Dkt. 1, Item #1 (07-cv-109-VRW)). Plaintiffs filed this action in February 2006 and allege that, in March and April 2004, they were subject to warrantless foreign intelligence surveillance authorized by the President, see id. ¶¶ 18, 19, and they seek to pursue various causes of action related to that alleged surveillance. ....

You can decide whether this case is a form of Lawfare - the named plaintiff cannot be classed as a "useful idiot on a parallel path".

There are similar cases pending. I haven't done much with this kind of case in War Crimes since they involve neither war crimes nor detainees.

Maybe we need a Lawfare thread - possibly in Futurists.

[Coldstreamer]

JMM,

Many thanks for the breakdown - rather than shooting from the hip, I'll dig out our precise legal position on detainees etc. From a practitioners point of view, we only ever maintained detainee holding facilities as an interim measure before seeking to pass them into the judicial system of the host nation - either in Iraq or Afgh. Detainees deemed to pose a significant ongoing threat had their cases reviewed weekly, and some of them spent quite a long time inside - but it was only ever an 'enabling' facility. Obvious problems of putting together a proper case to ensure a conviction when local police judiciaries were compromised themselves by insurgents. Perhaps my gripe that our LOACs haven't adapted fast enough is a UK based observation rather than universal. I'll PM you separately, because I don't want to expose what I feel are vulnerabilities on an open forum.

C

[jmm99]

PM is better - what you were able to say corresponds to my perception of the UK position as gleaned from David and his references.