This seems to have gone well for the bad guys.
Very sorry story IF true.
This seems to have gone well for the bad guys.
Very sorry story IF true.
Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"
- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
Wilfo,
I could not agree more, although the facts in these releases are usually skewed. I only see more of this as the President delivers on his promise to close GITMO. I believe in basic human rights and dignity, I continually argue with myself over how I feel about GITMO. One thing is for sure I dont feel that non-state actor combatants should be given the same rights and privileges under the law that a US citizen has. But I also know you cant lock'em up and throw away the key. I still dont understand why a military court is considered insufficient for alot of Americans when it comes to trying terrorists.
AGR (detainee 008) has a long Gitmo record, which is summed by Wiki. His statement given in his CSRT hearing.
After his initial CRST hearing, there were three annual reviews. The first two (for which we have unredacted records) continued his detention. As to the third hearing, we have a nada record - everything is redacted; and soon after, he was released by Gordon England. From Wiki (footnotes 13-15 are in above link):
No MCA charges were brought vs. Rasoul. I am not aware of an individual DC habeas case - although he may have been included in one or more of the multi-detainee filings.Third annual Administrative Review Board hearing
One January 9th, 2009, the Department of Defense published two heavily redacted memos, from his Board, to Gordon England, the Designated Civilian Official.[13][14] The Board's recommendation was unanimous. The Board's recommendation was redacted. England authorized his transfer on 2007-04-23. He was transferred back to Afghanistan on December 12, 2007.[15]
His release, based on the facts in Wiki, was solely the decision of the Bush administration in 2007 - motivated by ????
Based on the facts in Wiki, and comparing those to the habeas cases where Judge Leon found "enemy combatant" status, Rasoul most likely would have been found an "enemy combatant" by such as Judge Leon.
As the history of the Bush II Gitmo era becomes better known, I expect we will find more and more evidence of inconsistent policies in regard to the Gitmo detainees.
PS: Anthony - you may want to slog your way through this thread (started by David), which will answer some of your questions - and probably cause you to ask others.
Last edited by jmm99; 03-12-2009 at 04:29 PM. Reason: add PS:
Below are two paragraphs taken from this longer general article (also on the main thread on these issues):
http:/Link broken, see below fix by JMM
'He might, as he insists, be innocent of any wrongdoing. But the risks of taking the protestations of innocence of a former Guantánamo detainee at face value have been graphically demonstrated this week by the revelation that another inmate, Abdullah Ghulam Rasoul, has re-emerged as one of the Taliban's most effective commanders in southern Afghanistan.
During the six years he was held at Guantánamo, Rasoul, now known as Mullah Abdullah Zakir, managed to convince his American interrogators that he had never held a military command, even though it turns out he was a high-ranking commander close to Mullah Omar, the Taliban's supreme leader. Rasoul was eventually released after claiming he wanted to return to his family and farm. British officials believe he is the mastermind behind the deadly surge in roadside bombings in Helmand since last spring'.
davidbfpo
Last edited by davidbfpo; 03-13-2009 at 09:10 PM. Reason: Broken link update
David, your link to the excellent Telegraph article was broken, so here it is.
I am shifting my discussion about Rasoul and others (since Rex has posted a related Canadian situation) to the main thread, which is now up to here.
Ah, what the heck. During the offensive to Baghdad the troops were forced to let nothing but military aged men dressed in civilian clothes continue to push south in the opposite direction; i.e. behind ally lines. This turned out to be a mistake. So, we let few guys go from Gitmo and they end up shooting and bombing again. What is the solution?
"But suppose everybody on our side felt that way?"
"Then I'd certainly be a damned fool to feel any other way. Wouldn't I?"
I'm surprised that there hasn't been more chatter in the media that the alternatives to Gitmo, with the exception of of just releasing them, will be exponentially crueler. At Gitmo the detainees have their bond as Muslims brothers to sustain them. Sending them to a maximum security prison in the U.S. will leave them in solitary confinement. Sending them to Egypt or Jordan where water boarding would be laughed at as child's play, is every more chilling. Which is why it has been pretty much ruled out - leaving the maximum security prisons as the remaining option. It looks like many of the 'do gooders' are completely oblivious to how bad the detainees lives are about to become.
Great Points. The media doesn't say anything because it would run smack in the face of someone they love to love...no matter what.
Boot
Foley makes some good points - I suppose the "humane" alternative is to build a Gitmo clone somewhere else. La, la, Blazing Saddles, etc.
Sorry, Slap, this particular case is definitely not this:
Nope. Go through the sources for this case, which I posted above in post #3.Slap
Good example of the Enemy using Lawfare to their advantage.
The decision to release this particular detainee was a decision made in Gordon England's office in 2007 - a political decision or a screw-up or both. Federal and military judges had nothing to do with it.
An example of Lawfare, whether advanced by the enemy or by useful idiots, would be to get rid of the AUFM options, as shown in the last two chart rows in this post.
Boot, the media, whether Fox or MSNBC, don't know Sierra about these cases; their punditry usually is Bravo Sierra; and the politicians on both sides are worse.
Should have played it 'straight' with Gitmo from the outset - a POW Camp. All prisoners being exactly that - with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts. We have to adapt our legal framework as well as fight within it. Gitmo serves a valuable purpose, but its reputation has been corru[ted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy.
of numbering your post:
so that I could address the issues it raises in some order.from Cold....
[1] Should have played it 'straight' with Gitmo from the outset - a POW Camp. [2] All prisoners being exactly that - [3] with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts. [4] We have to adapt our legal framework as well as fight within it. [5] Gitmo serves a valuable purpose, [6] but its reputation has been corrupted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy.
Firstly, however, some general issues need discussion.
One is the use of the pronouns "we" and "our". While we are allies in armed conflicts (and not-so-armed conflicts) vs various groups, I believe that US and UK laws are quite different in how to handle detainees taken in the course of those conflicts. Now, "different" does not necessarily mean "bad" - vis a vis the two constructs. Each may work well in its own jurisdiction.
Secondly, I am not a SME on UK military law; and neither is my cohort David who contributes the UK input on the War Crimes thread. Since you are available, I would appreciate enlightment as to how the UK forces have classified and processed detainees in Iraq and Astan (cf., our FM 3-21.10 & .20 quoted below). This is a serious request. Based on David's input, I have a fair idea about how AQ-Taliban (and associated) types are handled in the UK itself.
Thirdly, UK law is very much influenced by its ratification of the 1977 Additional Protocals I and II to the GCs (albeit with some reservations as to AP I), which have not been ratified by the US (and by most all nations located in the present theatres of operation). The UK is also bound by a number of conventions (some based on EU considerations), which also have not been ratified by the US. Finally, the UK has been more influenced by the judicial phliosophy of such as the Eminent Jurists Report than the US.
-------------------------------------
Now, briefly to address your points.
Solely as to conditions of confinement (living conditions), I carry no particular brief. Gitmo and Bagram are military bases; and, if the commands there want to run the camps under EPW conditions of confinement, so be it. My legal objections (under US law; what the UK does is clearly your business) are to your next statement in para materia to the statement above.[1] Should have played it 'straight' with Gitmo from the outset - a POW Camp.
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No, AQ-Taliban and associated types are not EPW. The various US options for handling those types are broader I believe than those available in the UK because they include the AUMF flows, which include "detain" as well as kill. See this chart and explanation.[2] All prisoners being exactly that [JMM: POWs, based on point 1]
From a US military doctrinal standpoint, the guidance to (let us say) infantry COs, is clear at both company and battalion levels:
FM 3-21.10 (2006) (Company):
and FM 3-21.20 (2006) (Battalion):11-89. All persons captured, detained, or retained by US Armed Forces during the course of military operations are considered "detained" persons until their status is determined by higher military and civilian authorities. The BCT has a military police platoon organic to the BSTB to take control of and evacuate detainees. However, as a practical matter, Infantry squads, platoons, companies and battalions capture and must provide the initial processing and holding for detainees. ... [JMM followed by explicit procedures]
So, under clear US legal and military doctrine, all prisoners are not EPWs.10-300. All persons captured, detained or retained by US Armed Forces during the course of military operations are considered "detained" persons until their status is determined by higher military and civilian authorities. The BCT has an organic military police platoon organic to the BSTB to take control of and evacuate detainees (Figure 10‑13). However, as a practical matter, Infantry squads, platoons, companies, and battalions capture and must provide the initial processing and holding for detainees. Detainee handling is a resource intensive and politically sensitive operation that requires detailed training, guidance, and supervision by the Infantry battalion leadership and staff. ... [JMM followed by explicit procedures]
-----------------------------------
This may be true of the UK; it is not true of the US - see the War Crimes thread for what US laws (and the options) are in handling violent non-state actors.[3] with a legal code drafted to clarify the status of non-state combatants as our legacy law of armed conflict protocols deal only with nation-state conflicts.
-----------------------------------
Again, this may be a UK military issue; but it is not a US military issue as far as the basic legal framework is concerned. As in anything military and operational, "adapt" is a useful concept to be kept in mind. I expect more "adapting" in specific areas by both the Obama administration (DoJ & DoD) and the Federal courts in the next 12 months; but I do not perceive a push to overhaul the basic legal framework.[4] We have to adapt our legal framework as well as fight within it.
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Agreed, you have to detain these folks somewhere - some for a very long time.[5] Gitmo serves a valuable purpose,
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Partial agreement. The "corruption", which is presently the hot button, mostly centers on the CIA box (extraordinary renditions, "CIA prisons" & interrogations - see here), which were activities beyond its primary chartered functions - and which also were outside the two main flow paths: FBI-DoJ and DoD under AUMF.[6] but its reputation has been corrupted by the absence of a clear legal framework that gives us the tools we need to fight this new type of enemy
That "corruption" and other problems were corrected in the last few years of the Bush II administration, but the hangover continues.
-------------------------------
I hope this clears up some questions. I would much appreciate input re: the UK military doctrines as to EPW and other detainees (especially the latter). In that area, I confess present ignorance.
Cheers - Quis Separabit
Mike
Last edited by jmm99; 05-30-2009 at 10:44 PM. Reason: change title
I agree with your case analysis, but I belive it is an example of lawfare from the standpoint of all this should have been resolved before we invaded a country. If the legal issues were decided before.... the enemy would not have benefited by either default or design. But you are the lawyer...I just had to get them to jail
in the sense that failures in the law enforcement and legal areas were "lawfare" perpetrated against ourselves by ourselves - a form of legal suicide. As in the looters running about in reckless abandon - at which point, you (as I) saw the future as being negative.from Slap
but I believe it is an example of lawfare from the standpoint of all this should have been resolved before we invaded a country. If the legal issues were decided before.... the enemy would not have benefited by either default or design.
"Lawfare" (as I would define it) is the manipulation of legal tools by our opponents (could be our enemies or competitors) to take effect presently or in the future (as in the 1977 Additional Protocals to the GCs). It is a form of hardball international politics - not warfare in its true sense.
The same manipulation and its effects can result from folks who are not connected to our opponents - and may be doing it because of their own, independent beliefs. The "useful idiots of parallel paths" in my jargon.
Look at the links in this post, particularly Childers' 2008 thesis which does a case study (1977 APs to GCs) in hardball international politics.
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