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Thread: Crimes, War Crimes and the War on Terror

  1. #21
    Council Member Ken White's Avatar
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    Quote Originally Posted by JJackson View Post
    why are they illegal anything?
    Dunno; their choice and I long ago stopped trying to figure motives in people...
    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.
    Only if you had a particularly poor batch of US Troops find you; most exercise some discrimination and if they err, tend to err on giving your story the benefit of the doubt. That is to say far more bad guys talk their way out of a bad spot then are wrongly caught.
    If I declare Ken a non combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.
    Well, you could, I guess but I don't know why you'd lock up a non combatant; we try to avoid that, mostly successfully and concentrate on locking up combatants -- the issue du jour being whether they are 'illegal' or legal combatants.

    That involves the Geneva Convention and those provisions that state aside from combatants (pictured as military force against military force; out of date but there it is), other individuals, including civilians, who commit hostile acts and are captured do not have the protections of the GC. Rightly or wrongly, the US decided to label people in that category 'illegal combatants.' Gives the Lawyers something to do...

  2. #22
    Council Member Ken White's Avatar
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    Default We don't disagree on much...

    Quote Originally Posted by Rex Brynen View Post
    The UN does actually, under some circumstances, produce laws...That's a quibble, however
    A valid one. However, the UN item acquires the force of law only as it is codified by the ratifying state -- and the US is notorious for not ratifying or placing many exceptions in its ratification process.
    More broadly, there are several reasons for playing by the rules of international humanitarian law:...
    I agree with all those. As I said, we may or may not be legal; I'll leave that to the Lawyers, not my field -- but we sure weren't smart (and I minored in Stupidity...).
    I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.
    Nor do I disagree with that -- with the caveat that excessive idealistically derived but legitimate humanitarian concerns sometimes have effects that are not what the originators envisioned. See Steyn, M. and Section 13.1 of the Canadian Human Rights Act. Comes under the heading, I believe, of 'be careful what you wish for, you may get it...'
    There, having established my credentials as a defender the indefensible (lawyers), I'll next defend the Air Force...
    Masochist!

  3. #23
    Council Member wm's Avatar
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    Quote Originally Posted by J Wolfsberger View Post
    The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.
    If this last is in reference to my use of the phrase 'kangaroo court' in a previous post, please note that I put the phrase in double quotes, which is a fairly common convention for identifying that the wording is being applied in a non-standard way. Double quotes are used to indicate that such an attribution of the noun phrase is a degenerative case, not a standard use for the phrase. I do not view the Gitmo Tribunal as a kangaroo court. I was suggesting that part of the US motivation for holding trials might be very pragmatic--to try to prevent other entities from holding kangaroo court proceedings with US citizens as "defendants." (Please again note the use of the double quotes--a person being charged by a kangaroo court is hardly one to whom the appelation 'defendant' is appropriately applied.)

    BTW, I concur with Rex's 4 reasons for abiding by and supporting IHL. I just happen to arrange them in a different priority order. I'd rank the 4 reasons in order of importance as 4, 2, 1, 3 (and 2 is actually a subcategory of 4--it is an example of keeping a promise, which is just another right thing to do.)

    BTW, I follow a linguistic convention in the philosophy of logic and language with my use of single quotes. They are being used as a way of differentiating between using a word or phrase as an operative part of a sentence and mentioning that word or phrase--that is, using the words as a name for the word or phrase found inside the single quotes. For example, snow refers to the white stuff on the ground; 'snow' refers to the name we use for the white stuff on the ground.
    Last edited by wm; 06-05-2008 at 10:09 PM.
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  4. #24
    Council Member Ken White's Avatar
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    Default Hmm. Obviously I've been wrong all these years...

    As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.

    Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.

    I'm snowed, I think I'll go get a drink...

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    Quote Originally Posted by marct View Post
    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.

    Quote Originally Posted by marct View Post
    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.

    Quote Originally Posted by marct View Post
    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.

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    Default Nice discussion.

    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

  7. #27
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    Default The Trial and Punishment of JJackson, Esq.

    Quote Originally Posted by JJackson View Post
    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
    Last edited by Tacitus; 06-06-2008 at 01:41 PM. Reason: punctuation error
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  8. #28
    Council Member marct's Avatar
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    Hi Schmedlap,

    Quote Originally Posted by Schmedlap View Post
    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...

    Quote Originally Posted by Schmedlap View Post
    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).

    Quote Originally Posted by Schmedlap View Post
    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?
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  9. #29
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    Default Orange is not my colour ...

    Quote Originally Posted by Tacitus View Post
    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.

  10. #30
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    Default That English Civil War

    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
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    Quote Originally Posted by JJackson View Post
    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.

    Quote Originally Posted by JJackson View Post
    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.

    Quote Originally Posted by JJackson View Post
    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.

  12. #32
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    Default Some thoughts

    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).

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    Default Flatland's Response to Insurgency

    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 ?

  14. #34
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    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.
    Last edited by Jedburgh; 06-13-2008 at 02:16 AM.

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    Default Boumediene-Munaf "Symposium"

    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.

  16. #36
    Council Member marct's Avatar
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    From CBC.ca

    Guantanamo detainees were tortured, medical exams show
    Last Updated: Wednesday, June 18, 2008 | 5:31 AM ET
    The Associated Press

    Medical examinations of suspected militants formerly held by the U.S. military at the Guantanamo Bay detention centre in Cuba showed evidence of torture and other abuse that resulted in serious injuries and mental disorders, according to a human rights group.

    The study, considered the most extensive medical check of former U.S. detainees published so far, also tracked former suspects held at the Abu Ghraib prison in Iraq, with similar findings.

    For the study, Physicians for Human Rights had doctors and mental health professionals examine 11 former prisoners of Abu Ghraib and Guantanamo Bay.

    The U.S-based human rights organization says it found evidence of U.S. torture and war crimes, and it accuses U.S. military health professionals of allowing the abuse of detainees, denying detainees medical care and providing confidential medical information to interrogators that was then exploited.

    More...
    Full report from Physicians for Human Rights available here.
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
    Institute of Interdisciplinary Studies,
    Senior Research Fellow,
    The Canadian Centre for Intelligence and Security Studies, NPSIA
    Carleton University
    http://marctyrrell.com/

  17. #37
    Council Member Tom Odom's Avatar
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    Default

    McClatchy news service run down on the evolution of the interrogation policies. Draw your own conclusions.

    Tom

    Easing of laws that led to detainee abuse hatched in secret

    WASHINGTON — The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.

    It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.

    The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.

    Documents confirm U.S. hid detainees from Red Cross

    WASHINGTON — The U.S. military hid the locations of suspected terrorist detainees and concealed harsh treatment to avoid the scrutiny of the International Committee of the Red Cross, according to documents that a Senate committee released Tuesday.

    "We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques," Lt. Col. Diane Beaver, a military lawyer who's since retired, said during an October 2002 meeting at the Guantanamo Bay prison to discuss employing interrogation techniques that some have equated with torture. Her comments were recorded in minutes of the meeting that were made public Tuesday. At that same meeting, Beaver also appeared to confirm that U.S. officials at another detention facility — Bagram Air Base in Afghanistan — were using sleep deprivation to "break" detainees well before then-Defense Secretary Donald H. Rumsfeld approved that technique. "True, but officially it is not happening," she is quoted as having said
    If the detainee dies you're doing it wrong'
    Following are excerpts from some of the documents released today by the Senate Armed Services Committee:

    "The CIA is not held to the same rules as the military. In the past when the ICRC (International Committee of the Red Cross) has made a big deal about certain detainees, the DOD has 'moved' them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.

    The origins of aggressive interrogation techniques (view or download PDF)

  18. #38
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    Default Some links to 5 lawyers bios

    re: Tom Odom's 1st link above

    http://www.mcclatchydc.com/detainees/story/38886.html

    The five White House, Pentagon and Justice Department lawyers named in the McClatchy article are David Addington, Alberto Gonzales, William J. Haynes, John Yoo and Timothy E. Flanigan.

    The top two, David Addington, Alberto Gonzales, attended but did not finish at service acadamies. That struck me as a bit odd, especially Addington's reason, if Napolitano can be believed. William J. Haynes was an army CPT (1984-1989). No military service indicated for John Yoo and Timothy E. Flanigan; although Flanigan was born at Fort Belvoir.

    Here are some links to them.

    -------------------------------------------
    David Addington
    http://en.wikipedia.org/wiki/David_Addington

    http://www.newyorker.com/archive/200...?currentPage=4

    After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silver’s restaurant. “The academy wasn’t academically challenging enough for him,” Napolitano said.
    ------------------------------------------
    Alberto Gonzales
    http://en.wikipedia.org/wiki/Alberto_Gonzales

    ... Gonzales enlisted in the United States Air Force in 1973, for a four year term of enlistment, serving two years at Fort Yukon, Alaska before released from active duty to be a cadet at the United States Air Force Academy. Prior to beginning his third year at the academy, which would have caused him to incur a further service obligation, he left the Academy and was allowed out of his enlistment contract ...
    ----------------------------------------
    William J. Haynes II
    http://en.wikipedia.org/wiki/William_J._Haynes,_II
    http://www.usdoj.gov/olp/haynesresume.htm

    http://www.dod.mil/dodgc/gc/gcbio.html

    Born in Texas, Mr. Haynes earned his Juris Doctor degree from Harvard Law School, and his Bachelor of Arts degree from Davidson College, where he was elected to membership in Phi Beta Kappa and Omicron Delta Kappa. After law school, Mr. Haynes clerked for U.S. District Judge James B. McMillan in Charlotte, North Carolina. He also served four years on active duty as a Captain in the U.S. Army [1984-1989, from resume].
    --------------------------------------------
    John Yoo
    http://en.wikipedia.org/wiki/John_Yoo

    http://www.nytimes.com/2005/12/23/po...erland&emc=rss

    From the chambers of Judge Silberman, Mr. Yoo moved on to a clerkship with Justice Clarence Thomas on the Supreme Court, stopping briefly at Berkeley. Justice Thomas helped place him with Senator Orrin G. Hatch, Republican of Utah, as general counsel on the Senate Judiciary Committee.

    Along the way, Mr. Yoo passed up a chance to work in the Washington office of the law firm Jones Day, where he caught the eye of a senior partner, Timothy E. Flanigan. After five years that Mr. Yoo spent at Berkeley, writing on legal aspects of foreign affairs, war powers and presidential authority, the two men met up again when Mr. Yoo joined the Bush campaign's legal team, where Mr. Flanigan was a key lieutenant.

    Mr. Flanigan became the deputy White House counsel under Alberto R. Gonzales. Mr. Yoo ended up as a deputy in the Justice Department's Office of Legal Counsel, or the O.L.C., a small unit of lawyers that advises the executive branch on constitutional questions and on the legality of complex or disputed policy issues.
    --------------------------------------------
    Timothy E. Flanigan
    http://en.wikipedia.org/wiki/Timothy_Flanigan

    Timothy Elliott Flanigan (b. May 16, 1953 in Fort Belvoir, Virginia) is an American lawyer and politician.

  19. #39
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    Default What are they?

    "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."

    They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.

    They are noncomformists to civilization as a whole. No one can explain to me why their rights should be covered under the Constitution at all, much less given more rights than our Soldiers have.

    There is only the argument.
    The supreme court debunking the US Congress in a legal decision raises my awareness to the deep degradation of our legal system. I AM disappointed to say the least.

    Our legal system is for our citizens who have rights. Not phlem flam from some throwback century. The supreme court followed the sheep over a cliff on this one.

  20. #40
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    Default More links

    -------------------------------------------
    A bit more on Timothy E. Flanigan

    http://www.sourcewatch.org/index.php...hy_E._Flanigan

    Prior to joining the Administration [in 2005], Mr. Flanigan was a partner in the law firm of White & Case LLP. ....

    Flanigan served as senior law clerk to the late Chief Justice Warren E. Burger from 1985-1986. ... He served with the law firm of Milbank, Tweed, Hadley & McCloy in Washington, DC, 1988 - 90; and the law firm of Shearman & Sterling, 1986-88. ....
    He also was a partner at Jones Day when he ran into John Yoo (see above).

    Once, it would have been very unusual for someone to be an associate-partner at 4 major law firms. But, that was 40 years ago when I retired from that arena. Looks more like major league baseball today (if Flanigan is anywhere near typical ?).

    --------------------------------------------
    Caveat: Many of the links below present the Lederman-Balkin viewpoint. So, no endorsement from me - I reserve the right to agree, disagree or simply be confused.

    Here is a very large collection of on-topic links

    http://balkin.blogspot.com/2005/09/a...ion-posts.html

    The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC

    Marty Lederman

    For ease of reference, we've grouped together [and updated] our posts on the complex of issues raised by torture, interrogation, detention, war powers, Executive authority, the Department of Justice, and the Office of Legal Counsel.
    Also, another bunch here

    http://balkin.blogspot.com/2006/12/a...ure-memos.html

    The Anti-Torture Memos

    JB

    The Anti-Torture Memos
    Arranged by topic
    Finally, Lederman's comments today:

    http://balkin.blogspot.com/

    Wednesday, June 18, 2008
    By Contrast, Here's an Administration Attorney Who Takes His Public Service Seriously -- Important Revelations from Dan Levin

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