Crimes, War Crimes and the War on Terror

[wm]

The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

The simple answer is that this what a civilized, law-abiding nation does with people who act outside the bounds of accepted behavior (laws and civilized customs in other words).

Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

Protections of one's rights, as codified in the U. S. Constitution and its amendments, are viewed, rightly or wrongly, as the sine qua non of how to treat someone who has been accused of infringing on the rights of others. Another way of saying this is that when one infringes on the rights of others, the infringer does not thereby forfeit his or her own rights. To adopt the alternative position that one forfeits rights as a result of misconduct would be tantamount to adopting a position that "two wrongs make a right," a position that my parents and grandparents (and probably most other readers' as well) taught me was wrong (morally).

In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.

Undermining the rule of law is very different from changing poor laws. It may well be the case that sometimes one must use other than peaceful means to change laws, but even in those cases, there are lawful and unlawful ways to do so. By the way, I think it is open to argument whether what may have passed for the rule of law in Taleban-controled Afghanistan really was a version of the rule of law in the eyes of the rest of the cvilized world.

[Air-On]

Vir prudens non contra ventum mingit

Right you are, my friend!
Thank you and all posters on this thread for all the correct reasoning on the fate of terrorist prisoners. It all comes down to the simplest definition of our Torah: "don't do to others what is abhorrent to yourself". The rest is just explanation...
As you all certainly remember, Israel recently discussed downgrading the inprisonment conditions of hamas terrorists in our jails - to bring them to the level of existence (if he has not , G'd forbid, been murdered already) of kidnapped corporal Shalit. Arab prisoners in Israel have privileges like the right to cook their own "halal" food, cable tv, marital visits, study up to college level... Israel is highly moral, these guys live better than many honest-to-G'd people. Even then, the world paint us worse than the devil - but that is another story.
The Israeli officer that refused to let this motion follow through bravely said: "-I want to be able to look at my face on the mirror, when i wake up every morning."). It is a moral stance, and it sets us apart from the savagery of these NSA... Indeed, it is refreshing to see this sane debate, makes me proud of humbly "lurking" here and learning from decent people. Why, just yesterday the Jerusalem Post informed that two women had their fraud-preventing inked fingers cut off by the barbarian talibans ).
But!!! thanks also for The Hearty Laugh!!! I studied Latin in College, so I could understand: "Vir prudens non contra ventum mingit":a wise man does not piss against the wind... A saying in Brazil goes "don't ever spit upwards: it will fall flat on your face"

[jmm99]

Judge Gladys Kessler in May entered a merits decision on the habeas petition of Alla Ali Bin Ali Ahmed of Yemen, ordering his release, which is discussed here and here.

Judge Kessler has decided a second Yemeni case, Mohammed Al-Adahi, whose release was also ordered.

Difficulty in justifying detention
Friday, August 21st, 2009 8:16 pm | Lyle Denniston

A federal judge’s lengthy but heavily censored opinion released on Friday demonstrated anew the difficulty that the Pentagon and U.S. intelligence agencies are having in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba. A prisoner with family links to terrorist leader Osama Bin Laden, with personal encounters with Bin Laden, with at least a brief round of training in an Al-Qaeda military camp, with close knowledge of some of bin Laden’s bodyguards, and with other alleged links to Al-Qaeda soldiers — all of that was not enough, singly or together, to justify the detention of a Yemeni national, Mohammed Al-Adahi, Senior U.S. District Judge Gladys Kessler ruled. ...

Judge Kessler's opinion is heavily redacted (references to classified evidence are blacked out).

My comments to Judge Kessler's first decision apply equally here. In short, the judge accepted the legal definitions of the DoJ, as well as admitting its evidence; but found, as a matter of fact, that the USG had failed to make its case. So, no law was made (one way or the other) in this case.[*]

You may judge for yourself, after reading Judge Kessler's opinion, whether you would have found the same lack of facts supporting the USG's case.

-------------------------
[*] Judge Kessler did clarify one legal standard. The "Miranda" and like rules of exclusion do NOT apply to these proceedings (p.21 n.14):

14. Petitioner's counsel argues that all ex parte statements made by Petitioner must be excluded from the record. Pet.'s Mot. at 18 -20. They maintain that because Petitioner was represented by counsel as of February 7, 2005, and all interrogations after that date were not consented to by counsel, Constitutional and ethical rules require that evidence from those interrogations be excluded. Id.

The Court concludes that the ex parte statements are admissible for the following reasons. First, under Supreme Court and Court of Appeals precedent, only defendants in the criminal context can claim Sixth Amendment protections. Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009) (stating that Sixth Amendment "guarantees a defendant the right to have counsel at all 'critical' stages of the criminal proceedings.O) (emphasis added); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986) (finding that right to counsel attaches "only after the initiation of 'adversary judicial criminal proceedings, I e.g., formal charge, preliminary hearing, indictment, information, or arraignment."). Petitioner is not involved in a criminal proceeding, and thus the Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of certiorari).

Second, Petitioner argues that the Government's conduct amounts to a violation of ethical rules. The interrogators in this case were not the attorneys representing the Government in habeas litigation; rather; they were agents conducting an investigation. There is no evidence that Government attorneys controlled or guided interrogations of Al-Adahi. Consequently, there were no ethical violations. See United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973); Sutton, 801 F.2d at 1366.

In the end, the detainee's statements did the government no good. In general, Judge Kessler found no inculpatory statements proving AQ membership and a number of exculpatory statements, which she accepted.

[jmm99]

The Justice Department formally notified a federal judge on Monday that it has carried out the court order to return the Afghan detainee, Mohammed Jawad, to Astan, ending nearly a seven-year stay in U.S. military custody, most recently at Guantanamo Bay, Cuba.

The DoJ court filing, the DoJ press release and the ACLU press release are online - Jawad was represented by the ACLU and U.S. Air Force Major David Frakt (whose statement is included in the ACLU release).

The issue of whether Jawad threw, or was an accessory to throwing, the grenade (which was the reason he was detained in the first place), was never tried on the merits. I'm reminded of the Onion Field - book & movie.

[jmm99]

CIA inspector general's report on interrogation during the war on terror is online at the Wash Post (also linked earlier on SWJBlog) - 234pp.

[jmm99]

Al Odah was caught with AK in hand on the border near Tora Bora, leading Judge Colleen Kollar-Kotelly (who is an old pro in the Intel area) to deny his habeas petition in a now-unclassified opinion, analysed at SCOTUSBlog:

Al Odah loses challenge, after five years
Monday, August 31st, 2009 11:01 pm | Lyle Denniston

More than five years after the Supreme Court ruled that a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al Odah, had a right to challenge his detention at Guantanamo Bay, a federal judge has decided that challenge, upholding Al Odah’s captivity. Al Odah’s challenge was the second oldest of the Guantanamo cases in U.S. District Court, but went to the Supreme Court in 2003 as part of the first test of presidential detention power. (Al Odah’s case was a companion to Rasul v. Bush, the first-filed Guantanamo case; the two cases were decided together on June 28, 2004.)
....
In deciding Al Odah’s case, the judge borrowed from other District judges a definition of presidential detention power that is less expansive than those proposed by both the Obama Administration and, before it, the Bush Administration. Still, she concluded that the government had met that standard after finding that Al Odah had gone to Afghanistan and engaged there in a series of actions that, together, showed he “became part of Taliban and al Qaeda forces.”

The key inquiry, Kollar-Kotelly said, in “whether an individual has become part of one or more” of the Taliban, al Qaeda or “associated forces” is “whether the individual functions or participates within or under the command structure of the organization — ie., whether he received and executes orders or directions.”

Judge Kollar-Kotelly's opinion (32 pages), as compared to the opinion of Judge Gladys Kessler a week ago, gives far more credence to the USG's evidence and the logical inferences to be drawn from it. In short, as every trial lawyer knows, the disposition of the trier of fact in the most critical factor in a merits hearing.

[Fuchs]

"Fear was no excuse to condone torture"

http://www.miamiherald.com/opinion/o...y/1227832.html

Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994.