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Old 01-03-2012   #61
jmm99
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Default Pres. Obama's Signing Statement on the NDAA

Here is the text of Pres. Obama's statement, President’s Signing Statement on National Defense Authorization Act (text and brief comment by Marty Lederman; Opinio Juris, 31 Dec 2011) [from presidential statement as to key provisions in Secs. 1021 & 1022):

Quote:
Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.
It brought on a two-part comment (by folks who are centrists on the left side of that "section" of the political spectrum) - generally favorable to the Obama administration's detention policies, though with reservations if "some bad guy" gets into power.

The NDAA: The Good, the Bad, and the Laws of War–Part I (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011); and

The NDAA: The Good, the Bad, and the Laws of War–Part II (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011).

In response, a position further left, Detention Under the NDAA and the Limits of Analogy (Kevin Jon Heller; Opinio Juris, 31 Dec 2011).

Frankly, all three of these authors are based in the premise that there is a brooding, international omnipresence in the sky - call it the Laws of War (or the Law of Armed Conflict, or International Humanitarian Law). And that, that omnipresence controls all national laws on that subject. In some countries, their national "Basic Laws" do require that result (e.g., Israel and Germany); or that result is required by very broad treaties and other interstate compacts (e.g, as in the EU generally).

In the US, the international "laws of war" become applicable only when they are adopted by the constitutionally empowered branch(es) of government, as in the following graphic:

Name:  I Law Flow 01.jpg
Views: 823
Size:  40.5 KB

Given the unsettled state of international law with respect to detention (see OP in this thread) - especially in conflicts not of an international character (not between states), looking for a brooding omnipresence in the sky is a fool's mission.

Regards

Mike
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Old 02-29-2012   #62
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Default Presidential Policy - Sec. 1022 NDAA Waivers

President Obama's Sec. 1022 Waivers of Military Detention yesterday.

WH 1022 Fact Sheet
Presidential Policy

From the Fact Sheet:

Quote:
Specifically, as certified in the procedures issued today, the President has determined it is in the national security interests of the United States to waive the military custody requirement of Section 1022 in the following circumstances:

• When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;

• When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;

• When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;

• When an individual has been arrested by a federal agency in the United States on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);

• When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;

• When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or

• When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.
Depending on how and how often these waivers are used, they could marginalize military detention and military commission trials of AQ members.
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Old 04-10-2012   #63
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Default Two Astan MOUs

for your consideration:

Memorandum of Understanding between Afghanistan and the United States on Afghanization of Special Operations on Afghan Soil.

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan.

Lest we forget:



First Lieutenant Ben Hall, MTU Class of 2005 and former Cadet Battalion Commander, was killed in action on 31 July 2007 in Afghanistan while fighting with the 2nd Battalion, 503rd Infantry Regiment (Airborne), 173rd Airborne Brigade Combat Team, against Taliban forces on the Afghanistan-Pakistan border.

Regards

Mike
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Old 04-10-2012   #64
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Default

Mike,

Thanks for posting these. This is so long over due. To this point we have held Afghan Sovereignty in complete disregard, demonstrating through our actions the hollowness of our own words when we toss about terms like "Legitmacy" "Sovereignty" "Justice" and "Respect."

Any government elevated into power by an external nation or other source of power is presumptively illegitmate, regardless of any holdings of any offical legal bodies to the contrary. Legality and legitimacy are not the same thing. In our pursuit of effective and efficient defeat of the Revolutionary and Resistance insurgencies in Afghanistan we have to this point placed the very perceptions of the non-Northern Alliance populaces of Afghanistan that are critical for stability far behind what we saw as reasonably necessary authorities and activities to defeat the insurgent threat.

This is what happens when one comes to see their intervention as being "COIN." The host nation, as sovereign, conducts COIN. The intervening party assisting such a government is conducting FID, and fundamental to FID is the subjugation of ones actions to the sovereignty of that host nation. To do other wise is to make a joke of the very government one seeks to support. It places what one needs to be tactically successful secondary to what one needs in order to be strategically successful.

If this were an American colony and all we needed to do was suppress the insurgent fighters so that our puppet government could get on with serving our interests over those of the nation they run for us, then suppression of this nature is good enough. Though that is what the bulk of our COIN doctrine is based upon, that is not our mission in Afghanistan, and that is not "good enough." This is a big step toward getting right with the people of Afghanistan. GIRoA may well fall, but if they fall it will be because they did not deserve to stand. Either way, Afghanistan is finally on a path toward earning true sovereignty and legitimacy in the eyes of not only their own populace, but the entire world,

Now, I do not know if a Northern Alliance judge issuing a warrant in a Kabul court is going to mean F-all to a Pashtun living in the mountains of Uruzgan Province, or the suburbs of Kandahar. We may be applying an American solution to solve an American problem. I suspect a more recognized forum would be a local shura with village, tribal and religious leaders, who then go as a body to the home in question and ask for the offending citizen of their community, backed by appropriate Afghan security forces. One won't likely find very many guys still at home in such an approach, but that in of itself is a metric of how powerful the insurgency to the current government is in much of the country.

We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.
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"The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)
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Old 04-10-2012   #65
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Default Hi Bob:

My primary foci in this "capture-detain" thread and in its sibling "kill" thread have been on US-owned Title 10 - Title 50 direct actions against HVTs (AQ officers being the type cases). We shall see whether the two 2012 MOUs will impact those particular DAs - e.g., a DA against an AQ officer at a target location in Astan, or a DA launched from Astan soil against an AQ officer located in Pakistan.

What I may not have mentioned here or elsewhere is that Afghanistan has acceded (10 Nov 2009) to the 1977 Additional Protocols I and II of the 1949 Geneva Conventions (link and link). In short, that placed Astan on the same legal playing field as ISAF (UN, EU, NATO), but on a footing different from that of the US (non-accession to APs I & II). AP II is fully cited in Section 1.4 (page 2) of the Special Operations MOU; and in Section 1.2 (page 1) of the Detention Facilities MOU.

The language used (in Section 5 of the Special Operations MOU - .pdf snip attached) seems very exclusive of direct US participation in, say, "house clearings". These two MOUs remind me of the 2008 Iraq "SOFA"; and, if so, the consequences will probably be similar.

I don't get what you mean by this:

Quote:
from BW
We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.
- the usual "What we have here is a failure to communicate" - a mutual problem, it would seem.

Regards

Mike
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Old 04-17-2012   #66
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Default The Emerging Law of Detention

When it first came out a year ago, I mentioned The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking, by Ben Wittes and Bobby Chesney, as a useful (free) resource. At least two of the chapters have been updated since then. You can download the full monograph (1.35MB, 179pp), or individual chapters.

The introduction (link above) summarizes the monograph's methodology and scope:

Quote:
This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Courts decisions recognizing federal-court jurisdiction over Guantnamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary.

In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges approaches to the following questions:

the burden of proof;

the substantive scope of the governments detention power;

the question of whether a detainees relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;

whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;

the use of hearsay evidence;

the use of evidence alleged to result from coercion; and

the governments use of a mosaic theory of evidentiary interpretation.
This term of SCOTUS, eight detainee cases have sought review. So far, review has been denied in two cases.

Regards

Mike
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Old 05-07-2012   #67
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Default Why hold senior detainees at all?

From WaPo:

Quote:
KABUL — The United States has for several years been secretly releasing high-level detainees from a military prison in Afghanistan as part of negotiations with insurgent groups, a bold effort to quell violence but one that U.S. officials acknowledge poses substantial risks.

As the United States has unsuccessfully pursued a peace deal with the Taliban, the “strategic release” program has quietly served as a live diplomatic channel, allowing American officials to use prisoners as bargaining chips in restive provinces where military power has reached its limits.
We've discussed something similar on the theory that most detainees are useless rank and file--if even that much. So where do folks stand on paroling senior detainees?
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Old 05-07-2012   #68
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Default A Matter of Discretion and Wisdom

Whether to "parole" a detainee ("senior" or otherwise) is a matter within the discretion of the Executive Branch, subject to Congressional action where Congress elects to take such action. As such, it is a Political Question.

Parole has been around for a long time. For a pre-9/11 look, see, 1998 Brown, Prisoner of War Parole.

In a civil war, POW questions (including parole and exchange) are complicated by the issues underlying the armed conflict. The Lieber Code of 1863 has a lengthy section (119-134) covering parole. That General Order was preceded by the 1862 Dix–Hill Cartel (Wiki and Agreement). Despite the outlines provided by these legal sources, the Chronology of the Prisoner of War Exchange and Parole Cartel amply illustrates that a "one size fits all suit" did not exist.

My view: as a general rule I'd follow Grant (snips from the Chronology link):

Quote:
April 17, 1864 Grant issues orders to Butler essentially forbidding exchanges unless and until the Confederates agree to treat black troops equally with white, and agree to compensate the U.S. for the early release from parole of the Vicksburg and Port Hudson garrisons.
...
August 18, 1864 Grant writes to Butler, "It is hard on our men held in Southern prisons not to exchange them, but it is humanity to those left in the ranks to fight our battles. Every man we hold, when released on parole or otherwise, becomes an active soldier against us at once either directly or indirectly. If we commence a system of exchange which liberates all prisoners taken, we will have to fight on until the whole South is exterminated."

August 19, 1864 Grant writes to Union Secretary of State Seward, "We ought not to make a single exchange nor release a prisoner on any pretext whatever until the war closes. We have got to fight until the military power of the South is exhausted, and if we release or exchange prisoners captured it simply becomes a war of extermination."
...
Oct. 1, 1864 Lee proposes an exchange with Grant, but the idea founders on the question of black troops.
...
Oct. 15, 1864 Stanton places all prisoner of war issues in Grant's hands, with instructions to "take any steps that you may deem proper to effect the release and exchange of our soldiers and all loyal persons held as prisoners by the rebel authorities."
...
Jan. 21, 1865 Grant informs Stanton that he has given instructions that negotiations be re-opened with a view to resuming a general exchange.
...
Feb. 2, 1865 Grant informs Stanton that he intends to exchange about 3,000 men per week until one side or the other has no more prisoners. The Federals intend to exchange men from states such as Missouri and Kentucky first, to minimize the chances that they could be put back into their units.
but every rule has its exceptions ("METT-TC").

Regards

Mike
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Old 05-07-2012   #69
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Default

Presley asked:
Quote:
So where do folks stand on paroling senior detainees?
I thought that the US-run prison at Bagram AFB had been handed over to the Afghans, so this question in the Afghan context maybe academic.

There is a historical parallel in Northern Ireland, during the long-running 'Troubles' and IIRC is still in use today - as some parolees have been recalled to jail, for breaching their conditions. Before the Good Friday Agreement it is well documented, although I have no references to hand, that the para-military convicts were decisive in arguing the case for a ceasefire and making peace.

Somehow I doubt if there is the capacity, let alone the will in Afghanistan to recall parolees. So are we in fact talking about hostages?

Incidentally in both Italy and Spain, with their own internal terrorist campaigns, made extensive use of imprisonment in reaching a political solution and so curtailing the use of violence.

Further back Rhodesia at one point made use of releasing temporarily jailed nationalist leaders, including Robert Mugabe, to enable political talks and at one point released several of them - where upon they left to lead the violent struggle from neighbouring states. That seems to be a more suitable example.
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Old 05-17-2012   #70
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Default Detention Act Unconstitutional

So held, Judge Katherine Forrest (SDNY, 16 May 2012), in a 68-page opinion, as reported by the Courthouse News Service:

Quote:
MANHATTAN (CN) - A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.

Signed by President Barack Obama on New Year's Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would supposedly last until "the end of hostilities."
...
Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called "Homeland Battlefield" provisions.

Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.

They call themselves the Freedom Seven.
This decision is contrary to the logic of the DC Circuit cases interpreting the AUMF; but Judge Forrest is in the 2nd Circuit and is not bound by DC Circuit precedents.

Regards

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Old 11-26-2012   #71
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Default Psychological impacts of detention 4 terrorists?

From a student "lurker":
Quote:
Does anybody know of any documentaries made in which the psychological impacts of terrorism detention/internment are discussed/analysed?
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Old 07-30-2013   #72
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Default Moderator at work

A small number of threads (eight) found by searching on detention and jail, reviewed and merged here. New title too, thanks to JMM, 'Capture, Detain and COIN: merged thread'.

The catalyst? Creating the new thread 'It's July, time for prison break-outs'
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Old 07-30-2013   #73
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Default It's July, time for prison break-outs

In the last few days prisoners have escaped from jails in Iraq, Libya and Pakistan - when external attacks have been successful. Those who escape are often the "cream" or hard-core of insurgencies.

For Iraq I read this sombre report, although I've seen one suggestion some escapees have already been recaptured and one that many were awaiting execution:http://www.thedailybeast.com/article...nightmare.html

Benghazi, Libya appears to be a jail riot and an external riot:http://www.bbc.co.uk/news/world-africa-23479913

Pakistan, incidentally the second such attack this year:http://www.bbc.co.uk/news/world-asia-23493323 Ahmed Rashid on BBC radio just referred to the prison being informed three days ago of a planned attack and nothing was done in response.

Prison escapes are not unknown, we had them in Northern Ireland and the mainland a few times involving terrorist prisoners / suspects.

Do these incidents reflect official and external inattention, even blindness, to "downstream" aspects of CT - in providing adequate, secure prisons? What is the point of capture if sometimes they escape?

Merged into 'Capture, Detain and COIN: merged thread':http://council.smallwarsjournal.com/...?t=4358&page=4
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Old 10-05-2013   #74
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Default Repatriation and Parole

This week I was reminded that repatriation and parole still play a role in detentions, whether as EPWs (Enemy Prisoners of War) or ODs (Other Detainees). From Stars & Stripes, In rare move, US won't fight release of sick Guantanamo prisoner (By Ben Fox, AP, October 3, 2013):

Quote:
MIAMI — The U.S. government has dropped its opposition to releasing a Guantanamo Bay prisoner with severe mental and physical illnesses, apparently conceding the argument that he is far too sick to keep locked up at the U.S. base in Cuba.

In court papers filed late Wednesday, lawyers for the Justice Department said the government would not object to a judge issuing a release order for Ibrahim Idris. The native of Sudan has been held for more than 11 years as an enemy combatant despite being diagnosed as mentally ill soon after his arrival at Guantanamo. ...
Wiki - Ibrahim Othman Ibrahim Idris; and Carol Rosenberg, Lawyers argue Guantánamo captive so sick he should go home (8 Jul 2013).

Ironically, since 2009, Idris could simply have been repatriated by an executive order because, as disclosed in the USG's filing:

Quote:
In late 2009, the Executive Branch decided, pursuant to the recommendation of the Guantanamo Review Task Force, that the United States could relinquish custody of Petitioner with certain assurances from a receiving country, including assurances related to the availability of medical care in the receiving country. See Exhibit A, Guantanamo Review Task Force Dispositions Chart.[2]

2. Exhibit A is an excerpt from a publicly disclosed chart reflecting disposition decisions from the Guantanamo Review Task Force process, except that the entry regarding Petitioner on the chart lifts redactions of unclassified information. The remaining redaction in the entry regarding Petitioner protects from public disclosure information that remains classified.
One suspects this case was contested within the Obama administration, as something of a hot potato.

Royce Lamberth ("... Captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974, including one year in Vietnam."), being a crafty dinosaur, simply tossed the hot potato back in the lap of the Executive (Habeas Order):

Quote:
Petitioner’s unopposed Petition for Writ of Habeas Corpus is hereby granted. The United States shall take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release.
Had this case been opposed and gone to SCOTUS, it would have squarely presented a very important issue: Do the courts have any role in ordering repatriation of EPWs (Enemy Prisoners of War) or ODs (Other Detainees) [this is the contested issue], where their health conditions require their repatriation under Armed Forces regulations [posit this issue as uncontested] ?

The affirmative of this issue was presented (Brief), in a clever argument based on the Laws of War, by Idris' lawyer, Jennefer Cowan of NYC's Debevoise & Plimpton (45 years ago, a solid, "white shoe" international law firm - as contrasted to the more "L.L. Bean hunting boot" shod crew at Sullivan & Cromwell). Ms Cowan's argument is primarily based on DoD regulations, "informed" (not mandated) by the Geneva Conventions.

First, the DoD regulations:

Quote:
1. Army Regulation 190-8 Requires The Repatriation Of Seriously Ill Detainees

Regulation 190-8 is domestic law, applicable to all branches of the military, which

Quote:
“implements international law, both customary and codified, relating to EPWs [enemy prisoners of war] . . . and ODs [other detainees] [4] which includes those persons held during military operations other than war.”

4. The term “Other Detainees” is defined as “[p]ersons in the custody of the U.S. Armed Forces who have not been classified as an EPW [enemy prisoner of war] (article 4, GPW), RP [retained person] (article 33, GPW), or CI [civilian internee] (article 78, GC).” Regulation 190-8 Appendix B, Section II “Terms.” Regulation 190-8 requires that Other Detainees be treated as EPWs until a legal status is ascertained by competent authority. Id.
Regulation 190-8 at ch.1, §1(b); see also Al Warafi, 2013 WL 2278201, at *2 (Guantanamo detainee may invoke Regulation 190-8 “to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody”). With respect to sick and wounded prisoners, Regulation 190-8 provides that:

Quote:
The following EPW and RP [“Retained Personnel”] are eligible for direct repatriation:
….
(2) Sick or wounded EPW and RP whose conditions have become chronic to the extent that prognosis appears to preclude recovery in spite of treatment within 1 year from inception of disease or date of injury.
Regulation 190-8, ch.3, § 12(l)(2) (emphasis added).[5]

5. Regulation 190-8 also calls for the establishment of a Mixed Medical Commission to determine whether prisoners are eligible for repatriation. Army Regulation 190-8 at ch. 3, §12(a)(2). However, the Mixed Medical Commission need not assess prisoners who are eligible for direct repatriation. Id. at ch. 3, § 12(k)(2). To the best of counsel’s knowledge, no Mixed Medical Commission has been established for the detainees at Guantanamo.
and, as a supplement, the Geneva Conventions:

Quote:
2. The Third Geneva Convention Requires The Repatriation Of Seriously Ill Detainees

In addition to domestic law, it is appropriate to look to “longstanding law-of-war principles” to assist in determining the rights of Guantanamo detainees. See Hamdi, 542 U.S. at 521; Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“Common Article 3 [of the Geneva Conventions] ... affords some minimal protection ... to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory.”). ...
...
The government has taken a similar position:

Quote:
“Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”
Respondents’ Mem. Regarding The Government’s Detention Authority Relative To Detainees Held At Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009) 1 (Dkt. No. 1689) (attached hereto as Exhibit C); id. 6, 9 (citing to the Third Geneva Convention).

The Third Geneva Convention requires that certain prisoners be repatriated directly to their home countries:

Quote:
(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely
diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.
Third Geneva Convention, art. 110. This repatriation requirement is grounded in the principle that seriously ill detainees “are no longer likely to take part in hostilities against the Detaining Power.” 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules 345 (Cambridge Univ. Press 2005).
Ms Cowan's argument is so close to what I'd make that I'd have a hard time deciding the case if I were a judge. The countervailing argument is that the relief requested would infringe on the President's CinC powers. But, sometimes, a case that can be limited to its specific facts (this one) could be a good vehicle for reminding the "Chief" that someone is looking over his or her shoulder.

Regards

Mike

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Old 2 Weeks Ago   #75
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Posts: 8,101
Default Camp Bucca: The US prison that became the birthplace of Isis

An update from The Independent, which raises the issue if detention is used in a COIN / FID campaign, what do you do with the prisoners?

Link:http://www.independent.co.uk/news/wo...s-9838905.html
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