Prisoner Processing and Management
It is my understanding that today the United States has prisoners in Iraq and elsewhere around the world, arrested for crimes committed during the Global War on Terror and for a variety of other criminal actions. (Please don't read this as sympathy, just a statement of facts written at 0100.)
Our US due process requirements would demand certain criteria be met in order to hold a trial and adjudicate the defendant appropriately, within a reasonable period. (Again, not an ACLU lawyer) It is further my understanding that these suspects/defendants/often zealot murderers are going beyond what the American citizen considers reasonable. My question to this group is - what is the cause of this and what steps are we as a force taking to expedite these hearings?
As a former attorney, I am surprised to hear that we are holding these prisoners for so long without complete processing, and I recognize that the postings on detention operations above are key for a successful counterinsurgency. (I would suggest that an expedited detention rapidly loses efficacy, if you hold prisoners without tangible evidence and without a trial.)
Recognizing that some of this information may be sensitive, please PM me if you are uncomfortable answering in the public forum.
"Law" is a broad area and much of it is not black and white
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Originally Posted by
wm
Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law.
You may be right, but we probably talk way too much these days about "the rule of law." The fact is that the rule of law, or blackletter law, has never been adequate in providing justice. I had a contracts professor who was as brilliant as he was ecentric, and his area of specialty was "Equity," or the common law. Concepts such as "good faith" and "fair dealing" are central to the concept of equity; and are a hedge against black letter law that at times leaves little room for "justice" in its pursuit cleancut right and wrong.
http://en.wikipedia.org/wiki/Equity_(law)
So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.
"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.
Poor Jason Port asked his question three times...
Finally answered himself. :wry:
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"what is the cause of this and what steps are we as a force taking to expedite these hearings?
. . .
While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.
. . .
The question still remains - what system or processes are in place to facilitate this occurring?
the answer:
Quote:
Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. ... Again, I don't suspect that we will find resolution here.
True, not likely to be a success -- but the only real option we have ever had. As for right to a hearing, etc. -- true under US law and and general practice but not really appropriate for a combat area, it's in the 'too hard' and 'negative return for effort expended' boxes. IOW, it would be nice but realistically it would turn into a legal and political bucket of worms that would satisfy no one.
As to the specific issue - Iraq ...
the SOFA, linked here, tells us what we have to do - subpara 4 is most material.
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Article 22
Detention
1. No detention or arrest may be carried out by the United States Forces (except with respect to detention or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi law and pursuant to Article 4.
2. In the event the United States Forces detain or arrest persons as authorized by this Agreement or Iraqi law, such persons must be handed over to competent Iraqi authorities within 24 hours from the time of their detention or arrest.
3. The Iraqi authorities may request assistance from the United States Forces in detaining or arresting wanted individuals.
4. Upon entry into force of this Agreement, the United States Forces shall provide to the Government of Iraq available information on all detainees who are being held by them. Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by them. The United States Forces shall act in full and effective coordination with the Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities pursuant to a valid Iraqi arrest warrant and shall release all the remaining detainees in a safe and orderly manner, unless otherwise requested by the Government of Iraq and in accordance with Article 4 of this Agreement.
5. The United States Forces may not search houses or other real estate properties except by order of an Iraqi judicial warrant and in full coordination with the Government of Iraq, except in the case of actual combat operations conducted pursuant to Article 4.
I don't see any other law which is material to the specific question.
PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).