Crimes, War Crimes and the War on Terror

[Jedburgh]

The Challenges of Trying Terrorists as Criminals

Because of the asymmetric effects of many terrorist acts, the public and the press ensure that governments place a very high value on the prevention of terrorism. But dealing with terrorists is problematic for the executive branch, charged as it is with protecting the public. As Alexander Hamilton put it in the Federalist Papers: “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates . . . to be more safe [nations] at length become willing to run the risk of being less free.” Certainly, if they consider it is not possible for terrorists to be convicted, governments will consider
• changing criminal procedures and truncating the rights of accused terrorists to facilitate convictions
• detention without trial
• rendition (in all of its senses
• military or paramilitary solutions
• specialist courts or tribunals.

Most if not all of those responses may infringe the rule of law. Equally, there is much at stake for the judicial branch in this context. Thus, when terrorism charges are brought, courts must strive to balance the rights of the parties, particularly the accused, on the one hand and national security on the other. Special and sometimes unique questions that arise in such cases include justiciability, deference to the other branches of government, admissibility of evidence, prosecutorial duties of disclosure, and the effect on the press and on public confidence of any departure from open justice.

These issues, which are at the heart of public debate in the United States and a number of ally nations, require continued and close attention. An interdisciplinary colloquium held in January 2008 in Washington, D.C., considered some of them. A feature of the conference was the bringing together of lawyers (including judges, prosecutors, and human rights and international lawyers), strategists, terrorism experts, and intelligence, and law enforcement officials. International representatives also attended, bringing perspectives of U.S. allies, notably, the United Kingdom and Australia, to the debate. A summary of the course of discussion follows.

[Schmedlap]

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?

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).

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.

[marct]

Hi Schmedlap,

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?

There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it). The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.

If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory. Thus we end up with attempts to create a new category that is not covered under international law. But this attempt has been viewed, both within the US and internationally, as way of operating outside of international law and contravening the UN charter. This is one of the legal reasons for giving them trials.

A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way. This process is well summed up in the poem First they came attributed to Martin Niemöller.

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.

How about laws against polygamy and polyandry ? Almost any law that enforces a moral code can, and will, be laughed at by people who don't agree with that code. For example, there are, I believe, still some laws on the books in parts of Ontario that make it illegal for an unmarried couple to dance within 12 inches of each other. And, as far as I know, it is still illegal to drive your flock of sheep down Younge street in Toronto between the hours of 1 and 3 PM.

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.

[Ken White]

There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it).

True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.

The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.

What's ridiculous; the US position or the GC failure to protect illegal combatants?

If, as the Bush administration has held, they are not "legal combatants", then what are they? ... This is one of the legal reasons for giving them trials.

True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy...

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

That is subject to debate due to the legal combatant distinction.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.

We didn't try to create an uncovered category; we applied a covered category far too broadly, came up with an abysmally stupid plan to hold and interrogate and then developed a really dumb legal 'process' to attempt to cover the stupidity. We get max marks for stupid, no question -- but I disagree we've been illegal (other than in a very few specific individual cases -- and those were probable no matter what had been done ).

[Schmedlap]

If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory...
A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way.

Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease? It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.

That sounds about right, even to my unsophisticated brain. The lawyers seem to outnumber the chiefs and the indians.

[jmm99]

I love Ken White's "... the Lawyers totally blew it in an effort to outsmart themselves." We do that everyday; but it's not always noticed !

Also, like Wolfsberger's quoting the GC provisions - RTFO is a good rule.

The two L & C articles most pertinent to the present discussion seem to be:

Tung Yin, Enemies of the State: Rational Classification in the War on Terrorism, 11 Lewis & Clark L. Rev. 903 (2007)
http://www.lclark.edu/org/lclr/objec...4_Art3_Yin.pdf

Mark Weisburd, Al-Qaeda and the Law of War, 11 Lewis & Clark L. Rev. 1063 (2007)
http://www.lclark.edu/org/lclr/objec...8_Weisburd.pdf

Despite being a U of M law grad, Weisburd's Conclusion seems quite rational.

Tacitus and I have to talk about the Nuremburg and Tokyo trials someday - but not today.

Also, Jedburgh citation of Rand's James Renwick, Gregory F. Treverton, The Challenges of Trying Terrorists as Criminals (2008), provides an overview of the practical procedural problems in the "Common Law, Magna Carta" jurisdictions.
http://www.rand.org/pubs/technical_r...RAND_CF249.pdf

[marct]

Hi Schmedlap,

Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease?

On the surface, it makes sense. The unfortunate thing is that "terror" is not a nation state. How can that "war" end? Will the President for Life of "Terror" sign a peace treaty ? Sorry, the sarcasm is coming from being incredibly frustrated with the confusion caused by assuming rhetoric as reality - it's certainly not with you or your question!!!

The GCs assume a state on state conflict, so keeping someone as a POW makes sense, and they can be returned after the end of hostilities. I do think that the Taliban should be counted as a "government" (government in exile). For them, and their fighters, this would mean that the "war" would end IFF (if and only if) they are brought back into negotiations with the Afghan government and some accommodation is reached. AQ and the other irhabi groups are another matter...

It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

I definitely agree that we need to change international law and the GCs to account for the current reality. We have to be able to account for para-state groups such as Hamas, Hezbollah, etc. as well as groups of the irhabi-network types. It might be an idea to go back to examine the situation in the Holy Roman Empire just after the Treaty of Westphalia and use that as an example for further consideration. After all, you had a really odd situation where "states" were members of another "state" (the HRE).

Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Hmmm, I think the problem is with the precedent being established. For example, there is a general agreement that citizens of one country may be tried by the legal system of another country for crimes committed in their jurisdiction and will enjoy all the legal protections of the country in which they are tried. There is also precedent for trying your citizens for actions in another country that contravene the laws of your country. But there really isn't much of a legal precedent for holding citizens of one country with whom you are not at war without trial.

Khadr, and I'm sticking with him right now, is a Canadian citizen and his continued incarceration in Gitmo is being viewed by some as a breach of treaties with Canada. Think about it for a second.. If we captured a US citizen in Afghanistan fighting as a Taliban and held him in Canada without trial, what would the US reaction be?

[Ken White]

the Lawyers totally blew it in an effort to outsmart themselves. Use of 'PW' instead of 'detainee' and keeping them in the nation where picked up -- or in Afghanistan for those from Pakistan or elsewhere -- would've been the simple solution and far better PR (and, no Lawyer but IMO, legal) decision. All that detainee foolishness and the arch stupidity that was and is Gitmo couldn't have been much worse if the bad guys were the planners.

Hmmm...

On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.' The world is absolutely determined not to see that and to deny it if it appears that way; been that way all my adult life and it's really not much worse now than it has been since about 1947 or so; we just communicate far more widely and rapidly today so it seems worse. Not as bad now as it was during Viet Nam.

So on the PR front (since the late 40s) as well as the international terrorism front (since 1972) we refuse to adapt to reality; "It must be done as we wish it done." Get over it, Washington, not going to happen...

NOTE: This was addressed to Shmedlap's post; Marc beat me

[marct]

Hi Ken,

On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

Too true! Isn't there a Biblical saying about "the meek shall inherit the Earth - a 6" x 6' x 3' plot"?

On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

[Ken White]

...On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic )

I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

[wm]

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...
I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to. Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact. If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

[Ken White]

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to.

Agreed and that was a large part of my point in the comment. I believe Churdhill had it right when he said "You can always rely on the Americans to do the right thing -- after they have tried every conceivable alternative." We do generally try but our governmental system is conducive to false starts and that is exacerbated by the bureaucracy -- and too often enhanced by stupidity in high places...

Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

Perhaps, however my less benign take is that the lawyers screwed the pooch in the process.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact.

That too is possible but I'm strongly inclined to believe that it's simply the aforementioned Churchill syndrome in action. As they say, never ascribe to evil what is due to stupidity.

If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

Those types of apologia always appear after every traumatic event; self justification is strong instinct...

I'd submit that in the case of the two you cite, the former is indicative of the fact that those, like Bush (and a lot of Generals), who want 'people they know and trust' in positions of power are the progenitors of the Peter Principle and that the latter author is added proof of that, due to Cheney doing the same thing, as well with the fillip of a massive ego in government not being an asset.

We do the right thing far more often that not and that is a good thing. Generally when we do not do so it's due to a person; a squeaking wheel, in the wrong place at the wrong time who takes deliberate or inadvertent advantage of the governmental system and the bureaucracy to effect an action that he or she believes to be required. Usually, the system catches that, albeit slowly, then corrects itself.

Unfortunately, due again to the system, the correction is frequently an over correction, thus we seem to lurch about like a drunk from one extreme to the other before finally getting it right. It confuses the daylights out of the rest of the world who prefer to take it slow and easy and do not recognize that we are taking it slow -- just not easy. It's not the American way.

The annoying thing to me is that has been a feature (or a bug?) in our government for a great many years. Seems to me that a workaround for that should be developed. It could be easily done -- except for the fact that each new Administration will reject anything that has gone before and try to do it their way. That is just ego driven stupidity.

I can hardly wait until this time next year...

[wm]

the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic )

[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.

[yvonne]

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?

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).

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.

To Schmedlap:

It is not the US Constitution that is the basis of providing the Taliban with a trial. It is the International Humanitarian Law & Law of Armed Conflict, which are both international customary laws that all countries follow. Even if the terrorist do not, civilized nations must. Because the Afghanistan government is a sovereign nation, the conflict they are fighting with the Taliban falls under Common Article 3 of Geneva. Terrorism, insurgency, rebels, they are nothing new and the laws have applied.

The international issue with how the US handled "terrorist" was because they created the "War on Terror" which is a war without a State and then categorized the terrorist or Taliban as a third category outside of the law's categories of combatants and noncombatants. Even if the US says that the Laws of Armed Conflict under Geneva do not apply, there are still the International Humanitarian Laws which state that all humans have rights to ask why they are being held by any government. There is more to it than that and the way it is written basically they are stating that humans have a right to a trial. I don't think they explicitly use the word "trial" but based on the rights, that is what it amounts to. My source:

Solis, Gary, D., The Law of Armed Conflict/International Humanitarian Law, 2010

[jmm99]

the Schmedlap and Yvonne posts is that no one is defining what they mean by "trial". More likely than not Schmedlap is questioning whether a detainee (call him a Gitmo detainee for clarity) has a right (from any source) to a criminal trial before a US military commission or a US Federal court. He can confirm or deny that.

The pages of posts in this thread (going back to 2008) report all of the relevant opinions re: detainees by SCOTUS, DC Circuit and DC District. No opinion having present precedential value has held that a detainee has a right to be tried as a criminal either before a military commision or a Federal court. All legislation and executive orders have been to the contrary.

What detainees do have is a right to contest their detainment via a merits hearing before an impartial magistrate. The two avenues of contest are by claiming either EPW status under GC III or civilian status (without being a security risk) under GC IV. In practice, the habeas petitions have claimed non-participation in or non-material support of AQ, Taliban or associated groups (as required by the 2003 AUMF) - that is, reduced to its salient point, the basic argument is that "I was a civilian who was not a threat under GC IV." No Gitmo detainee has claimed EPW status in the DC habeas proceedings - no surprise because that dog doesn't leave the kennel for the hunt.

With respect to Common Article 3, it does provide rules re: the treatment of detainees taken in an armed conflict not of an international character. Obviously, CA 3 contemplates detention - and so have all US courts (SCOTUS, DC Circuit and DC District). To those courts, the 2001 AUMF is the triggering mechanism for Common Article 3 (and other informative rules accepted by the US under the Laws of War, aka LOAC and aka International Humanitarian Law):

Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

From the associated commentary on Common Article 3:

Sentences and executions without previous trial are by definition open to error. "Summary justice" may be effective on account of [p.40] the fear it arouses, but it adds too many innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of war.

We must be very clear about one point; it is only "summary" justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.

As can be seen, Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4. A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals.

"Detention" is not an "execution", nor is it a "sentence" - that is the lesson learned from three years of habeas decisions. The law from those cases (20+ pages in this thread) establish that, on legal issues, the far out position held by such as John Yoo has gone done in flames. The substantive legal positions on detainment itself, advanced by attorneys for the detainees, have also gone down in flames. The habeas cases that have been won have been won on the basis of the lack of facts presented by the DoJ and DoD, and/or on evidentiary exclusionary rules.

Citing Gary's textbook might be a winner in his classroom. It carries no more weight here than my opinions, or those of Andy Worthington, have - based on reference to and discussion of the original sources that are applicable,

Regards

Mike