Let's have another blue-ribbon panel ...
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from CSIS
They recommend that the process of closing Guantánamo should be achieved through a policy called R2T2 ... Review ... Release ... Transfer ... Try.
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Implementation of this new policy would be charged to a blue-ribbon panel of eminent Americans tasked to review the files on all remaining Guantánamo detainees. ...
Got news for CSIS - we already have "a blue-ribbon panel of eminent Americans" working on the problem. We call them the Federal judges of the DC District and DC Circuit.
And, unlike a "Gitmo Commission", the present "blue-ribbon panels" have the authority to order compliance with their policy of "R2T2" - including putting offenders into the prisons of their choice.
PS: The next president should simply order DoJ and DoD to get with it and clean up these cases. We are dealing with roughly 400 cases at issue - not a large number.
From which place(s) they should
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Originally Posted by
davidbfpo
So I like some of the thoughts here, send the detainees back to where they were detained, which I understood to be mainly Afghanistan.
never have been removed.
However, they were. No sense crying about it, it's done. Now we're stuck with people who cannot be tried for violation of US Law because making war against any nation outside that nation is not illegal. We could just release them -- and will release many who have IMO been held pretty much by, for and as Schmedlap says -- and as cover for those who should not be released because they are a threat and a significant one at that. They're prisoners of war in a new kind of war the Geneva Conventions -- and most nation's laws -- do not consider.
So we release Ali and he goes back to irregular warfare. So what, you say?
So he kills one American who happens to be one's nephew... Or one German who happens to be a diplomat and thus antagonizes the Germans. Contemplate what the effect would be were he to be far more effective and pull off a real coup of an operation...
We'd be roundly excoriated for releasing him.
Regardless, there is no easy solution; even the NYT admits that (LINK). They're going to be held somewhere without a trial for a while...
Still more grist for all the mills...
Check this Reuter's article (LINK).
Nope, your statement .....
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.... making war against any nation outside that nation is not illegal.
does not offend my "lawyerly sensibilities" - nor any other of my sensibilities (assuming I have any).
My objection is that it is overbroad; and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).
You recognize that distinction when you ask for a statute that makes criminal "the actions of a foreign combatant who does abide by the laws of war". Obviously, there is no such statute or convention because that statement is the same in substance as what I said:
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It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.
The defining "statute" is Common Article 2 of the GCs which makes the conventions applicable to the High Signatory Parties involved in an armed conflict (somewhat broader in scope than a war under Hague); but also to a "Power" involved in that armed conflict - if that "Power" accepts and applies the conventions (e.g., North and South Korea during the Korean War, although practice did not always conform to principle). If that is the case, that Power's armed combatants are lawful and fall into GC III (as PW/POWs) and its civilian adherents into GC IV (as protected civilians).
Now, what of a Power to an armed conflict that does not accept and apply the GCs to its own military actions and its own detainees - even in the minimalist view that the GCs must only be applied (giving an implied acceptance) ? Very simply, its armed combatants are not lawful combatants to which the PW/POW provisions of GC III apply. That is so even if an individual armed combatant of that non-complying Power himself otherwise complies with the "laws of wars" as we understand them.
And, its civilian adherents are not entitled to the protected civilian provisions of GC IV. That is the price that one pays for adherence to a Power that does not apply the GCs. So, do these combatants and civilians have any rights ?
The answer is affirmative - under Common Article 3 of all the GCs, which applies to any non-state actor ("Power") which does not apply the GCs.
Those provisions, which recognize detention of both combatant and civilian adherents of a non-complying Power, require a trial before a competent tribunal before execution, etc. Similar provisions are in the main body of GC III (if a CA 3 detainee claims PW/POW status) and GC IV (if a CA 3 detainee claims protected civilian status). The last two claims are what the DC habeas cases are all about.
We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). Gary Berntsen feels they should be charged and executed if convicted - for which, there are some older precedents under the "common law of war" ("We shoot partisans, don't we ?"). I happen to disagree cuz I don't like "common law crimes".
What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.
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As to your questions:
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If neither of those apply [no criminal charges and not an armed combatant] and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?
The only valid reason for detention would be the civilian's adherence to the non-complying Power (e.g., to AQ). The DoJ claimed this as to the Uighurs and got smacked on the facts. I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.
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Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged ?
Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.
Were you thinking back to your mispent youth as an advisor ? Again, practice did not accord with theory - (e.g., Dan Pitzer, Nick Rowe and Rocky Versace - not a hypothetical).
You keep me up too late.
Many of my statements are that.
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Originally Posted by
jmm99
My objection is that it is overbroad...
Penalty of being old... ;)
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and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).
Always a possibility and I have little doubt that a few have so hidden in most wars but on balance, most get caught at it or killed. It all works out.
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... Obviously, there is no such statute or convention because that statement is the same in substance as what I said:
Huh. That's funny -- I thought that's what I said -- that what you said was what I said. More or less... :D
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We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). ... I happen to disagree cuz I don't like "common law crimes".
What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.
I agree with you and not Berntsen or the apologists...
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...The DoJ claimed this as to the Uighurs and got smacked on the facts.
Dumb cliam by DoJ.
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I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.
That's what I thought and the issue then becomes that he got picked up as a possible fighter -- wrong place at the wrong time -- and it could be exceedingly difficult to prove he was NOT a civilian entitled to GC IV. So either you determine he is such and let him go or you're sure that he was in fact a fighter but you may not be able to prove that so you just hang onto him -- particularly if you think he might return to his old ways...
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Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.
Do I exclude it or can I just not -- or don't wanta -- prove it??? :wry:
Does new WaPo Story on E-bird show way ahead?
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A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.
This is the lead sentence from a story here.
So, could one option be to release all the detainees because the control of evidence has been so botched that the possibility of fair trial no longer exists? The US then just brings all the detainees back to where they were first detained and releases them.
(An interesting twist on the old "catch and release" program:
Announcer: Well, detainees, thank you for playing "Lock Up the Terrorist." Johnny, please tell the contestants, our studio audience, and the folks at home, about the lovely parting gifts we have for them. )
This case raises a number of issues.
The WP article is here. This case and other cases with much the same problems have been posted in "War Crimes". I'll try to get back to this later this afternoon or tonite - and see if I can link to the original declaration.
Judge Leon's decision ...
in the El Gharani case, which is here (post #165), illustrates many points raised in prior posts above.
If the other Federal judges would move with his diligence over the next 6 months, these Gitmo cases could be cleaned as to the issue of detention.
That would still leave the questions of where and how long to detain - as well as the question of what crimes (if any) should be charged against those whose detentions are found valid. Those questions must be addressed by the Obama administration in specific terms.
Your questions aren't hypothetical, J. Wolfsberger.
At least, I don't think they are. I'd be willing to bet a bunch of money that the first 'hypothetical' has occurred, is occurring and will continue to do so due to the "catch and release" policies. Joe is not stupid...
Policy makers sometimes let their idealism or urge to please get in the way of their common sense.
For the second, I don't doubt it'll get that bad in some courts.
For the last, mostly true, I think but there are a few of questionable status who are the cause a lot of friction due to trials by media, adverse publicity and / or some curious actions by DoJ -- most caused, I'm sure by some Intel Agency worried about releasing too much info in an Unclas forum.
However, I think I totally understand your logic and agree...
JW: Answers in reverse order ...
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[3] I'm also confused about just exactly what has gone on. ...
I'll keep this short. The basic problem was that CSRT review was flawed (not so much as it was written, but in how it was run and staffed). The net result was that no one had any confidence that all the bad guys were really bad guys. That was exemplified in the two completed MCA trials, where the military judges re-determined (before the merits hearings) the detainee's status as an "enemy combatant" ("unlawful combatant"). It also has been proved by the 6-3 release score in the habeas cases decided by Judge Leon (not a liberal by any test).
The simple issue of a detainee's status (EC or not) is not rocket science, since it is really a question of whether there is probable cause (50% + a nose) to hold. That question is decided by Federal and state magistrates (lower level judges) in 100s of cases every day. Ken hits on part of the problem (secrecy) which was as much DoD and Bush WH policies as intel. As the Federal court cases prove, classified information is not a valid issue. It has been handled without problems to the US in many detainee cases.
In any event, the DoJ (not the detainees and not the courts) took the initiative to scrap the CSRT process - and the DC Circuit in Bismullah agreed with DoJ, as reported here (#164). So, EC status will have to be re-determined in each of the habeas cases - as Judge Leon is doing.
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[2] ... Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?
As to Miranda - definite "No release" under present MCA rules. If torture (defined in MCA) or "totality of circumstances" proves the unreliability of a statement, the statement must be excluded. But, that does not release the detainee if other evidence proves EC status. See how Judge Leon (link in #35 above) went through the charges and evidence item by item. He was more than willing to remand the detainee to custody if the DoJ could win on only one item. It couldn't make a preponderence on any item.
What I'm seeing in these cases, is that the field investigations were fine. The problems have been loss of evidence (e.g., chain of custody) which was properly collected by troops in the field; and the failure to follow up the leads suggested in that evidence. Those failures were DoD and DoJ failures (in part caused by transfer of detainees and evidence between commands and agencies). IMO that is the main reason for secrecy in these cases - call it CYA. In this area, our troops can walk and chew gum at the same time (without added cops, lawyers and public defenders). The same can't be said for DoD and DoJ.
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[1] Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?
IMO (not a legal analysis) -
The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.
Here is one view from MAJ "Fury". Context: Some AQ surrendered at Tota Bora. A group of them, escorted by Ali's muhj, ran into MSS Grinch (a composite Delta-SBS force of about two dozen).
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Upon seeing the American commandos, the muhj became nervous, clearly not wanting the boys near their prisoners. A rumor had spread after the laughable surrender deal a few days earlier that the Americans would kill all prisoners in cold blood. In a war zone, that wasn't necessarily a bad reputation to have.
The "Grinch boys" and their attached Arab linguist did get near the AQ prisoners and engaged in a brief photo op and debriefing, including one AQ who responded to a question about UBL by saying: "I could tell any Muslim brother where Sheik Usama is; and they wouldn't tell you."
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Every nervous muhj guard present during this exchange thought the next action would be an American commando putting a .45-caliber hard ball into the prisoner's smart-ass mouth. But we are more civilized than our terrorist adversaries, a characteristic seen as a sign of weakness by al Qaeda's ilk, and let them live. In a war zone with these people, such compassion isn't such a good reputation to have.
Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (a good book for JAG officers to consider in advising go and no-go).
I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.
The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).