Crimes, War Crimes and the War on Terror

[Tacitus]

If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.

I’ll take a crack at this one. If grabbed as a suspected terrorist by US troops, I don’t know who decides you go to Gitmo. Or how it is decided. But, it seems possible, if whoever thinks you belong there has the power to make it happen. The accusation or suspicion or terrorism, itself, provides sufficient justification for you to be held there.

Once you get your orange jumpsuit, you’ll have plenty of time to ruminate. Martin Luther King, Henry David Thoreau, and Adolf Hitler all decided to write about their circumstances while behind bars. I don’t know if you’d be allowed that privilege, or not. I haven’t noticed any jailhouse manifestos from Gitmo in my local bookstore, yet.

Tacitus' opinions don't carry much weight, of course. Of more importance on this issue, let's hear what Senators Obama and McCain think about this.
http://www.cfr.org/publication/14751...008%2Ftrackers
Both of these gentlemen have several times said they plan to shut this thing down, Obama suggesting trying the accused in a U.S. criminal court or by a military court-martial. I think McCain has suggested just moving this thing to Fort Leavenworth, and using what is already in place there.

Since your case is unlikely to be resolved before Inauguration Day (January 20, 2009), there’s a fair chance you’ll have your day in court somewhere else.

I wouldn't take any false comfort from that, though. They probably wouldn't have grabbed you for nothing, and might could get you on a charge of spying for terrorists, if not being one, yourself. The last British spy that I remember us dealing with was Major John Andre. He was denied a soldier’s death by firing squad, and instead hung. And he wasn’t even Al Qaeda.
http://en.wikipedia.org/wiki/John_Andr%C3%A9

[JJackson]

They probably wouldn't have grabbed you for nothing

This is the part of the process that bothers me.
I have never been in a situation like this but assume it is fairly chaotic. Some of the insurgents will be local, some from further afield and if the engagement is in a town or village will include a whole spectrum from completely uninvolved through sympathisers, non combatant supporters, lookouts, fighters and their commanders. I assume they all get rounded up and all claim innocence then what? How many were just in the wrong place at the wrong time and if they are not going to get a hearing then how can they escape the nightmare? This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
In the UK we had a whole spate of IRA miscarriages of justice releases and apologies for fabricated evidence against individuals who the police 'knew' were guilty but could not provide evidence. With the public baying for blood and their superiors for convictions, they just helped the cases along. This is very understandable given the circumstances at the time, but also very wrong.
As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.

[Tacitus]

JJackson: I hear you loud and clear about not trusting what a government says about people in jail, just because it says so. It doesn't mean they are innocent, just that nobody has proven anything. You know this, “Well, if the government is holding them, they must be guilty of something” argument. What’s lurking behind behind this has to do with how strongly a person feels about habeas corpus. Obviously, some don’t feel it is such a big deal--at least as long as somebody else is on the business end of it. You might count Abe Lincoln in that category. But that is a different thread.

Warning to any Lurkers: Ancient History Follows. But it is a pretty interesting story.

Once upon a time, the British created their own version of Guantanamo Bay, and dispatched undesirable prisoners to garrisons off the mainland, beyond the reach of habeas corpus relief. The man who did this was Edward Hyde, 1st Earl of Clarendon. Lord Clarendon is buried in Westminster Abbey. He was, for want of a better word nowadays, what would probably be called today the Prime Minister, and he was the main advisor to the king in a civil war in which the king was killed.
http://en.wikipedia.org/wiki/Edward_...l_of_Clarendon

There were two sides. You’ve got the monarchists, and then you’ve got the Puritans, who murdered the king because they said the kingdom was debauched and decadent. We Americans see Puritans as kindly settlers sitting down to Thanksgiving dinner. Brits loyal to the king saw them as SOBs and religious fundamentalists. Puritans believed all they had to do was overthrow the government, and the reign of Jesus Christ would come once more among them. So this was sort of a battle of civilizations, a battle of religious ideologies.

Some of the Puritans were among the most persecuted after the restoration of the monarchy. This is when the whole sending people away to offshore islands took place. Consider what it might have felt like for Clarendon and the monarchists. They’d been in exile for years. Many of their friends and supporters had been locked up or killed. The Puritans had been vicious; they had killed the king. And many of them who had done it were still at large, plotting out there. Clarendon may have been paranoid. The Monarchists saw plots everywhere. But some people said they had good reason to be paranoid.

The exact location of Lord Clarendon’s Gitmo is unknown. Historians think it was probably in Jersey or Guernsey, which today are nice seaside tax havens for the very rich. But suspending habeas corpus didn’t work out well for Lord Clarendon. He was impeached. At his impeachment trial, he was accused of sending people away to “remote islands, garrisons and other places, thereby to prevent them from the benefit of law, and to produce precedents for the imprisoning of any other of his majesty’s subjects in like manner.” He had to get the hell outta Dodge and move to France.

The outcome of all of this was the Habeas Corpus Act of 1679, which specifically forbade what Clarendon had done, and made it illegal to send a prisoner into “Scotland, Ireland, Jersey, Guernsey, Tangier or into parts, garrisons, islands or places beyond the seas which are, or any time hereafter shall be within or without the dominions of His Majesty.”
http://en.wikipedia.org/wiki/Habeas_Corpus_Act_of_1679

[Schmedlap]

This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.

And among those released, several returned to the field of battle and were captured yet again or detonated themselves and killed many innocent civilians. On the other hand, some just returned to a normal life. And that is why this is not such a clear issue regarding humane treatment of detainees. We've taken tens of thousands of detainees in Iraq/Afghanistan, yet less than one-thousand are at Gitmo and several thousand of the rest have been released. This information does not lead me to the suspicion that we're spending millions of dollars on the Gitmo detainees just to satisfy someone's desire to oppress or torture. I have the suspicion that we are incurring this expense and this loss of political capital for some legitimate reason, rather than for the sake of watching the President's approval ratings plummet. I suspect that our government is speaking truthfully when it says that there is good reason to believe that these folks are extremely dangerous. Hence, I do not lose much sleep at night over the thought that some Gitmo detainees are uncomfortable because their thermostat is at 66 instead of 68 and their eggs were served over easy instead of sunny side up.

This is very understandable given the circumstances at the time, but also very wrong.

That is why much of this falls into the category of "moral dilemma" - there is no correct answer.

As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.

This may be one of the areas in which representative democracy works best. Lots of people like you will clamor for action from one side of the issue. Lots of people from the other end will clamor for action on their side. This continual back and forth helps to provide corrective adjustments to the actions of the government that you fear, as it deals with the terrorists whom others fear.

[jmm99]

re: JJackson - ... then what? ... how can they escape the nightmare?

This is generic, not aimed at US military policies and procedures. Just some blah-blah from a knuckle-dragging neanderthal, who prefers the compamy of "chiefs and indians" over lawyers.

1. Assume village complex X, ca. 500 pop., designated as insurgent (I) controlled, with possible classifications (with probable overlaps and shadings between classes):

IPI (insurgent political infrastructure)
IMF (insurgent main force)
IAF (insurgent auxilliary force)
ILF (insurgent logistics force - money & materiel)
IS (insurgent sympathizers)
NEU (neutrals)
CIS (counterinsurgent sympathizers - known & potential)

Assume CIF (counterinsurgency force, strike and screening components integrated) sufficient to execute tasks - no time, money, personnel and logistic constraints.

2. CIF tasked with (1) secure area; (2) intern population; (3) census population; (4) dossier each person in population; (5) screen & classify each person in population; (6) adjudicate each person's status and initial disposition by on-site CIF; (7) transfer dossier (and person, if applicable) to higher-level CIF.

3. Tasks (1) and (2) are military issues; the remaining tasks are paramilitary and police functions. Forms and procedures would vary with the military culture. Some points:

a. Preservation of evidence and witnesses; co-ordination between strike and screening components, if separate units, especially as to IMF and IAF suspects (evidence most likely from strike foirce personnel as to armed combatant status).

b. Reasons stated for classification ("probable cause" - not necessarily in a strict judicial sense). Responsibility on officers and senior NCOs.

c. Reasons stated for adjudication (on-site). Bring in the prosecutor and judge - no way; police officers do this every day. Possible adjudications: (1) release with possible follow-up; (2) transfer to a higher level (IMF persons, for example); (3) execution (assuming military and civil culture allows that; cf., Trinquier's concepts of "confession and redemption" for terrorists, pp. 17-20).

d. Persons transferred are Ps (not PW/POWs). Standards of treatment based on military culture. Possibly, a person could be subject to both criminal justice and military administrative processes. A person, as a criminal or combatant, should be an OR (inclusive "or"), not an XOR (exclusive "or").

e. End status and disposition of a P determined at higher-level CIF, based on the initial record (a-c above) and on-site adjudication, with later acquired data (if any). At that point, IHL, citizenship and other I Law issues may well come to the fore.

4. Logistics and personnel; you get what you pay for.

5. Timeline is not a quick in and out, since multiple steps are involved. A large amount of discretion has to be vested in on-site officers & senior NCOs. If you can't trust them (as a group), your system is shot to hell and FUBAR, anyway. And, their actions are subject to higher-level review (where standard principles of administrative control and review apply).

[jmm99]

1. Country Study.

We have some of the picture of Village X, and of some Ps moving toward higher-level CIF; but we need a bit of background for our fairy tale.

Village X is located in the independent nation of Flatland. That name from the 1884 math "sci-fi" book which describes the culture of a 2-dimensional world.

http://en.wikipedia.org/wiki/Flatland

Flatland's government is strongly "libertarian" (but still has a military). The insurgency is strongly "statist". Thus, they are 180 degrees out of phase on the "diamond test".

http://www.theadvocates.org/quiz.html

The insurgency has an ideological cause supported by many arguments. The incumbancy has a ideological counter-cause also supported by many arguments. The majority of Flatlanders are political sheep. For present purposes, there are no external "Powers" or "Parties" involved in the conflict.

Flatland, like many countries, has a well-developed civil and military jurisprudence: Uniform Code of Civil Justice (UCCJ) and Uniform Code of Military Justice (UCMJ). Flatland also is a signatory to the 1949 GCs, and has ratified them, subject to reservations as to some key provisions.

Flatland's Constitution derives all delegated powers from its people (non-delegated powers being reserved to them). It is the Supreme Law of the Land, which trumps inconsistent internal laws. It also trumps treaties and executive agreements which are inconsistent with either its substantive or interpretative principles (e.g., among the latter, "void for vagueness"). All of this drives I Law theorists nuts because I Law derives its "powers" from states, not from the people of the World.


2. Problems Dealing with the Insurgency

The over-riding concern of Flatland's libertarian government lies in the fact that the available tools to quash the insurgency are - well, frankly - authoritarian. So, the incumbancy must use "statist" methods to crush a "statist" ideology, so as to preserve a "libertarian" ideology ! Will the baby be tossed out with the dirty bath water ? The government's conclusion is: probably not; but we have to be damned careful.

Part of this problem is how to proceed with Ps in detention, adjudication and final disposition. The Flatland government is willing to trust its military to initiate the process to separate the goats (IPI, IMF, IAF, ILF), who may be detained (some could be released for tactical reasons); from the sheep (IS, NEU, CIS), who will be released.

That phase (above post) involves preservation of evidence and witnesses; as well as two administrative adjudications of probable factual status (e.g., IPI, IMF, IAF, ILF), with routing to appropriate detention centers based on each person's dossier. The question is what to do when they get there.

Flatland's government considered use of its UCCJ and UCMJ at that time point. Those codes are fine for their intended use (and provide more safeguards for the accused than exist in most other nations). However, they are designed to remedy the acts or omissions of individuals (civilian or military); so, the civil and military courts, both procedurally and substantively, are not well-designed to adjudicate what are, in essence, networked group military or paramilitary actions.

Moreover, Flatland's government had a greater, long-term concern: "taint" of its UCCJ and UCMJ jurisprudence (for its non-insurgent civilians and military) by decisions made in insurgency cases. Hard cases make bad law. In short, the emotional response to the insurgency could in the end destroy much that is essential to Flatlander jurisprudence and liberties.

The decision was made to institute a Uniform Code of Insurgency Justice (UCIJ), with a separate administrative adjudicative process. That, in general, presented no inherent constitutional problems since Flatland has many administrative agencies with administrative law judges (and its UCMJ is administrative, as well). The government's problem was how to design and implement the UCIJ.


3. Specific Problems under the UCIJ

1. The persons to be adjudicated are detained members of these factual classes, IPI, IMF, IAF and ILF. The majority view in the government was that in all of those classes could be found persons who took an "active part in the hostilities." That view was based on the insurgency's own doctrine of "4GW" and its networked nature, where the IPI and ILF were equally or more important to the end result than the IMF and IAF. The majority concluded that common Art. 3, GCs 1949 does not apply to make them "protected persons" (as well as questioning whether Art. 3 is "void for vagueness"). However, the majority was not adverse to incorporating provisions of Art. 3 into the UCIJ on an item by item basis.

2. The minority positions were along two tracks. One was to find "protected person" status under Art. 3 for all IPI, IMF, IAF and ILF persons, except those who had not "laid down their arms". One soldier asked: "So, this SOB takes two shots at me; tosses his shotgun to the ground; jumps down from the tree; and says, 'sorry, I'm now a protected person.'" Another view (a totally separate track from the Art. 3 track) was to treat the insurgency as a recognized belligerancy, with full PW/POW status granted to its "armed forces" (the IPI, IMF, IAF and ILF, most broadly construed).

3. Agreement was better as to the administrative court and phases of adjudication: (1) a preliminary hearing after the person reached the detention center before an administrative judge to present the substantive charges, determine "probable cause" to hold, and the person's legal status issues, if any; and (2) a trial on the charges before a larger panel of judges. Flatland's UCMJ was rifled for much of the UCIJ's procedures. But, the on-going insurgency required consideration of security clearances and intelligence issues, which were not fully resolved. Also, the final "military-civilian" composition of the trial courts remained open - a number of agencies wished to get into the act.

4. Agreement was generally reached on substantive law; that is, the possible charges and punishments that might be - by adopting a sliding scale of crimes and punishments (from major to minor). An unresolved debate was on the extent to use the death penalty ("we shoot insurgents, don't we ?), or whether to use it at all. A further debate (among death penalty proponents) was about the level where it could or should be imposed (by now, we have four levels of adjudications: on-site military, higher-level military, prelim hearing, trial). Thoughts of Breaker Morant lurked in some minds.

5. Some controversy existed as to interrogation of detainees (if to be allowed at all; if so, the extent allowed); the extent of "coercion" allowed; and the time lapses between adjudications (to allow interrogations), etc. A small, but very vocal, minority expressed a belief that "confession brings redemption" (even if torture be required), following the quasi-religious theory found in Roger Trinquier, Modern Warfare (Praeger 2006), pp.17-20.


Can you help the Flatlanders solve their problems ?

[jmm99]

For those who might be interested:

http://supremecourtus.gov/opinions/07pdf/06-1195.pdf



As I started writing this, 4 political pundits were screaming at each other about this case. No way any of them could have read the case, much less considered it.

Here are the key portions of the holding, as opposed to the dicta:

Cite as: 553 U. S. ____ (2008),

p. 65 (slip):

"In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time."

p. 66 (slip):

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact."

p. 66-67 (slip):

"Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

p. 67-68 (slip):

"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible."

p. 68 (slip):

"These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

So, this seems only the first stage of a longer process. There seems an implication that Congress should amend the statutes to provide a better administrative adjudicative procedure.

Justices Roberts' and Scalia's dissents are worth reading. Roberts is more of a practical and less emotive bent.

[jmm99]

A number of different views on Boumediene and Omar-Munaf (see below) are found at Opinio Juris:

http://www.opiniojuris.org/posts/chain_1213336401.shtml

That discussion seems likely to continue.

--------------------------------------
Omar-Munaf is the case most directly applicable to OIF. Excellent opinion by Justice Roberts with no dissents ("cautionary" concurrence by Justices Souter, Ginsberg & Breyer):

http://www.scotusblog.com/wp/wp-cont...06/06-1666.pdf

Note that Justice Roberts, after finding jurisdiction to hear the habeas petition, felt that the circumstances required a prompt decision on the merits of the habeas petition (slip p.14, and following). Which is exacly what he did:

(slip p.28)

Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.

For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.