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There was an important development on Tuesday at Guantánamo. A ruling by the judge in Salim Hamdan’s military commission appears to require entirely new hearings for any prisoners who claim to be POWs. Hamdan had appealed for a POW status hearing under Article 5 of the Third Geneva Convention. The ruling by Navy Captain Keith Allred went strongly in his favor.

Allred rejects the Congressional view that Combatant Status Review Tribunals had been adequate to determine POW status. That view was asserted forcefully by Sen. Lindsay Graham in 2006 during hearings for the Military Commissions Act. Allred, however, concludes that CSRTs concerned themselves with whether the prisoners were "enemy combatants" and therefore weren’t competent to determine whether the men were prisoners of war.

The military commissions are defective by design and should not be permitted to stand in for civil trials, but at least one prisoner has been assigned a judge who is willing to face up to the plain flaws in the legal "system" that the Bush administration slapped together.

The decision reaffirms that the Geneva Conventions apply to the men at Guantánamo. Article 5 of the Third Geneva Convention states that if there is any doubt whether someone held by a government is a prisoner of war, they should be presumed to be a prisoner of war, and therefore entitled to the protections the Conventions provide for prisoners of war, until their status is determined by a "competent tribunal." The decision then goes on to state that the Combatant Status Review Tribunals (CSRT’s) are not competent tribunals for the purpose of determining whether a detainee qualifies for all prisoner of war protections. (In Hamdan’s case, the military commission judge will now make that determination.)...

The opinion holds that the men at Guantánamo are entitled to the protections guaranteed to prisoners of war, at least until they have hearings before a competent tribunal. Those protections include prohibitions on torture and coercive interrogations.

In other words, as Lyle Denniston points out, the ruling implies that none of the prisoners at Gitmo are necessarily subject to the Military Commissions Act until a competent tribunal finds that they are.

Although the Military Commission Act provides that those covered by it cannot rely upon the Geneva Convention "as a source of rights," Judge Allred said that Hamdan has not yet been determined to be an "unlawful enemy combatant" — the status he must be assigned in order to bring him under the MCA.

Of course "the CSRT process was an irremediable sham", as the declaration by Lt. Col. Stephen Abraham documented for the case of Al Odah. The CSRTs existed to give the appearance of due process without granting prisoners any actual ability to gain their freedom, prove their innocence, or even confront their accusers. The new system of military commissions was built upon a foundation of sand, the ridiculous claims that CSRTs (i) constituted an adequate substitute for habeas review, and (ii) cut off any appeal to rights under the Geneva Conventions.

Now that foundation is crumbling badly. If Allred’s ruling is upheld, it could greatly complicate the question of the Guantanamo prisoners’ rights—while at the same time forcing the US to grant Geneva protections to many or perhaps all prisoners for the time being.

"For almost six years the Bush administration has treated those imprisoned at Guantanamo as bereft of any rights under the Geneva Convention and as without the protections of POWs," said Center for Constitutional Rights president Michael Ratner.

"This was never the law, and now the Bush administration may finally be forced to do what it should have done from the very beginning: comply with the Geneva Conventions."

The CSRTs loom large in the background of the consolidated Boumediene/Al Odah cases heard by the Supreme Court on Dec. 5. The main issue before SCOTUS was whether the MCA may strip Gitmo prisoners of access to civil courts. The government argued that the MCA’s jurisdiction-stripping provision is reasonable because the CSRTs had already substituted for habeas review. But as the Allred ruling highlights, the CSRTs were ad hoc tribunals and extremely narrowly focused. Even if the CSRT were not the kangaroo court that Stephen Abraham documents, they still shouldn’t be treated as substitutes for anything—certainly nothing as fundamental as habeas review.

The quality of the oral arguments in Boumediene two weeks ago was abysmal on the central issue of due process. It was especially disappointing to find Justice Ginsburg joining Roberts in trying to identify an excuse to send the cases back for District court review in determining whether CSRTs are an adequate substitute for habeas.

Roberts appears to reject the plaintiffs’ argument that they’ve been waiting too damned long already for habeas review. He wonders why the Court should care that for six long years they’ve been given the run around.

Your argument wouldn’t be any different with respect to the availability of habeas if these people were held for one day, would it? We don’t look at the length of detention in deciding whether habeas is available, do we? ...

Your argument is that somebody held one day in Guantanamo has the right to habeas. So the extent of detention is irrelevant to your assertion.

Justice Kennedy later chimed in as if the six-year wait were merely a footnote to the larger questions.

Such arrogance. Or could Roberts, Kennedy, and Ginsburg possibly be that ignorant of the facts of existence at Gitmo?

The central point is one that I’m astonished anybody could fail to see: Prolonged confinement at Guantánamo is torture. The military carefully created conditions of confinement in order to crush the prisoners’ mental resilience. Amnesty International has found that 80% of prisoners were held in solitary confinement. Most of the prison buildings at Gitmo are designed specifically to further that goal. What do these fools on the Supreme Court suppose happens to the human mind after prolonged solitary confinement?

It’s absolutely sickening that, six years into a series of delaying tactics engineered by the Bush administration, there’s any need to discuss whether the habeas review needs to be expedited.

Here, SCOTUS, take a good look. This is what occurs after years of such confinement:

A British resident being held in Guantanamo Bay may be close to suicide after five years of captivity and torture at the hands of the Americans, the Foreign Secretary David Miliband has been warned in a medical report sent to the Government this week.

The report concludes that Binyam Mohamed, from Kensington, west London, is at the end of his "psychological tether" after guards at the US naval base in Cuba switched off the water supply to his cell when he began spreading his own faeces over the walls...

A preliminary medical opinion, commissioned by Reprieve, has found Mr Mohamed to be suffering from severe depression and post-traumatic stress disorder.

Dr Daniel Creson, a respected psychiatrist from Texas who has extensive experience in the treatment of the victims of torture, warns that the deterioration in Mr Mohamed's health suggests that he "is reaching the end of his psychological tether".

Binyam Mohamed, like all the other prisoners at Guantánamo, continues to wait in vain for a habeas review. As far as several Supreme Court justices are concerned, his five years of mental torture is just another footnote to more important issues.

Originally posted to Daily Kos on Wed Dec 19, 2007 at 09:24 AM PST.

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Comment Preferences

  •  Wonder how long (2+ / 0-)
    Recommended by:
    JML9999, RickMassimo

    Navy Capt. Allred will keep his job.

    "There are no happy endings in the Bush Administration". - Randall L. Tobias

    by MadRuth on Wed Dec 19, 2007 at 09:28:30 AM PST

  •  Hopefully, those "more important issues..." (3+ / 0-)
    Recommended by:
    Prognosticator, JML9999, RickMassimo

    ...will include a Congress with increased Democratic numbers (and spines), who will initiate Impeachment proceedings against Injustices Scalia and Thomas for a variety of grounds (such as blatant contempt for our constitution).

  •  One thing that has always struck me (5+ / 0-)
    Recommended by:
    smintheus, elmo, Unduna, JML9999, RickMassimo

    Is how much time, money, and energy this administration has wasted in trying to devise novel ways to avoid due process.  If one tenth of that time, money, and energy were applied to the actual gathering of intelligence while regular due process considerations that have never overly hindered this nation before were followed, think how many actual terrorists we might have tried.  Osama, anyone?

  •  Our National Shame laid bare for all to see (3+ / 0-)
    Recommended by:
    jack rance, Unduna, JML9999

    Such a Christian outlook on all this is to be had...not

    "bind him down from mischief by the chains of the Constitution." Thomas Jefferson

    by SmileySam on Wed Dec 19, 2007 at 09:33:33 AM PST

  •  One can hope that if "History" doesn't condemn (2+ / 0-)
    Recommended by:
    lotlizard, Prognosticator

    these "Supremes" as a threat to Democracy at the very least it notes them as mere footnotes in history.

    Be careful what you shoot at, most things in here don't react well to bullets-Sean Connery .... Captain Marko Ramius -Hunt For Red October

    by JML9999 on Wed Dec 19, 2007 at 09:33:54 AM PST

    •  Back when Clement Haynesworth was nominated to (1+ / 0-)
      Recommended by:

      SCOTUS, his defenders argued that mediocrity deserved representation in the judiciary. Who woulda thunk they would have ended up with most of the bench?

      •  That was not an argument for (1+ / 0-)
        Recommended by:

        Clement Haynsworth.  Haysnworth was respected by all, and generally considered to have been a superb nominee from the pure ability standpoint.  That argument was advanced in support of G. Harrold Carswell, who was nominated after Haynsworth's defeat.

  •  I want to hear more about (2+ / 0-)
    Recommended by:
    smintheus, JML9999

    "competent" tribunals. I like the sound of that...

    Where are these "competent" tribunals to happen, and who decides what equals "competent"?  So many questions here.

    Anybody got answers (sorry if the answers are obvious, but they don't seem so obvious to me...)?

    Thanks, smintheus. Good stuff, and halleluiah.

    "In all chaos there is a cosmos, in all disorder, a secret order." Carl Jung

    by Unduna on Wed Dec 19, 2007 at 09:37:28 AM PST

  •  Too bad our intellectually bereft, politically (2+ / 0-)
    Recommended by:
    JML9999, not a cent

    oriented SJC will bend over to the shrub on this

  •  At last...someblody gets it! Thank... (0+ / 0-)

    heavens this one is a judge.

    VEBO...Vote Every Bum Out

    by ShainZona on Wed Dec 19, 2007 at 09:41:12 AM PST

  •  What Roberts was pointing out (2+ / 0-)
    Recommended by:
    Unduna, mspicata

    (quite correctly) is that Al Odah's argument in no way depended on the length of his detention.  Al Odah and Boumidiene argued that they have a right to habeas by virtue of being detained by US forces in Gitmo, not by virtue of having been detained for 6 years.  

    As to CSRTs and the Geneva Conventions.  The Geneva Conventions require the detaining power to determine the status of the detainees.  It does not require that the status determination hearing be a full blown trial, much less a trial in civilian courts.  During the Vietnam War (and previous wars), these "tribunals" constituted a single military officer reviewing a case (sometimes permitting the detainee to present evidence, sometimes not) and making a final decision.  That is all that the Geneva Conventions require.

    •  Ouch. (0+ / 0-)

      But thanks.

      "In all chaos there is a cosmos, in all disorder, a secret order." Carl Jung

      by Unduna on Wed Dec 19, 2007 at 09:46:50 AM PST

      [ Parent ]

    •  And was (1+ / 0-)
      Recommended by:

      "unlawful enemy combatant" a status one could be determined to have in previous wars?

      "Success is a level of violence where the people feel comfortable about living their daily lives." --George W Bush, May 2, 2007

      by mspicata on Wed Dec 19, 2007 at 09:47:19 AM PST

      [ Parent ]

      •  Indeed. (1+ / 0-)
        Recommended by:

        In fact the Geneva Convention presupposes this status.  Otherwise it would not have listed categories of people entitled to protection.  It would have simply stated "all captured aliens."

        Our own law has also recognized that one could be an unlawful combatant.  See Ex Parte Quirin.  Same goes for international legal pronouncements.  

        If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action

        •  "they may be prosecuted under the (0+ / 0-)

          domestic law of the detaining state"

          Well, that's not happening either.

          I see the "may", but is the implication that such a prosecution "may" occur because the combatant isn't POW or that legal (fair) prosecution is negligible?

          "In all chaos there is a cosmos, in all disorder, a secret order." Carl Jung

          by Unduna on Wed Dec 19, 2007 at 10:19:06 AM PST

          [ Parent ]

          •  Well, the MCA is domestic law (1+ / 0-)
            Recommended by:

            As are the laws of war which also make part of our doemstic law.  See UCMJ.

            "May" is there because the detaining power retains discretion whether or not to prosecute.  It may choose to do so, or may choose not to do so.

            •  Yup. (0+ / 0-)

              Justice is negligible. A predictable answer...why'd I ask....

              Thanks, Drgrishka1. Good info. (Sorry for the sarcasm, but I can't seem to help it.)

              "In all chaos there is a cosmos, in all disorder, a secret order." Carl Jung

              by Unduna on Wed Dec 19, 2007 at 10:50:13 AM PST

              [ Parent ]

    •  while it's true that the appeal for habeas review (1+ / 0-)
      Recommended by:

      does not depend upon the length of imprisonment, that is not what I'm addressing here. Roberts and others imply that the length of imprisonment does not militate against sending the case back to District court, which is where (they imply) the decision over the suitability of CSRTs ought to be made.

      My point is that when the government has been deliberately destroying the mental state of prisoners, partly by means of prolonged captivity and obstructing habeas review time after time, then the Roberts argument becomes fatuous.

      When you see a house catching fire, do you declare that the proper authorities to rescue the inhabitants are firemen, not yourself, so somebody had better send for them? Or do you intervene in a timely fashion?

      •  Under our system, the Supreme Court (0+ / 0-)

        (and other appellate courts) do not decide issues that have not been passed on below.  Supreme Court does not hold evidentiary hearings, call witnesses and the like, and thus is in no position to assess, as a factual matter whether CSRTs and subsequenct DC Circuit review serve as a sufficient substitute for habeas.  

        This was detainees litigation strategy.  They wanted to go for a full win right away, and have the courts declare military commission to be unconstitutional EVEN IF they provided sufficient substitute for habeas.  They could have argued in the laternative below.  The consciously chose not to.  If their choice prolongs the litigation, it hardly seems fair to blame the government for it.

        •  CSRTs did not have the authority to release (1+ / 0-)
          Recommended by:

          prisoners or to determine whether the government had adequate grounds for charging them with any crimes. Therefore they cannot by their very structure have served as a substitute for habeas review. SCOTUS is certainly competent to make that ruling if it wishes, since the issue does not require witnesses or evidence.

  •  So riddle me this... (1+ / 0-)
    Recommended by:


    Judge Allred said that Hamdan has not yet been determined to be an "unlawful enemy combatant" — the status he must be assigned in order to bring him under the MCA(;)

    then what exactly is the delineation between a prisoner of war and an unlawful enemy combatant?  Could there -- gasp! -- not be any?

    And if that's the case, it's habeas for all, right?  Lawyers, chime in here!

    "Success is a level of violence where the people feel comfortable about living their daily lives." --George W Bush, May 2, 2007

    by mspicata on Wed Dec 19, 2007 at 09:45:05 AM PST

    •  No, the difference is that a lawful belligerent (1+ / 0-)
      Recommended by:

      follows laws of war.  E.g., uniform, command, etc.  A civilian who engages in warlike acts, is an "unlawful" or "unprivileged" combatant and can be punished accordingly.

      •  So this renders any partisan by definition (0+ / 0-)

        unlawful, so the Mau Mau in Kenya, the Huk in the Phillipines, Moseby during at least part of his career during the Civil War, and the French Resistance were all unlawful resistance?
        After all, part of the argument being made about lawful resistence was the "right of resistance" by an occupied nation.

        •  No it does not (1+ / 0-)
          Recommended by:

          You can read the Geneva Convention.  Organized partisan groups are considered lawful combatants.  Terrorists are not.

          In any event, what particular occupation was al-Qaeda resisting?

        •  It takes two to go to war. (0+ / 0-)

          A nation state claims to be 'at war' with an  organization of civilians.  It's not a surprise that the U.S., a nation state, uses uniformed combatants openly wielding big, destructive weapons.  It's not surprising that a al Qaeda, civilian organization, uses civilians sneaking up and throwing grenades.

          But how can a nation state be 'at war' with a voluntary association of individuals?  

          The problem is the use of the term 'war'.  Take that term and all of its ramifications out of the equation and what you get is the more proper criminal law frame of reference.

  •  I have now read the ruling (1+ / 0-)
    Recommended by:

    and I disagree with its characterization.

    The ruling does not at all doubt the propriety of the CSRT process.  What the ruling says is that in Hamdan's case (a) the CSRT did not address his claim to a POW status, and (b) that since Hamdan is now subject to punishment a second determination of his staus must be made prior to subjecting him to the military commission trial.  The ruling does not cast any doubt on the propriety of teh original determination or the propriety of the military commission itself.  In fact, the ruling specifically states that "both parties concede that the Commission is a competent tribunal within the meaning of Article 5."

    •  I think you've (1+ / 0-)
      Recommended by:

      misunderstood what I'm saying here. I don't say that Allred's ruling casts doubt on the legitimacy of the military commissions. (The opinion about the validity of military commissions as a substitute for civil trials, stated early on, is my own.)

      But Allred does say that CSRTs are not competent to judge whether prisoners have the status of POWs. He rejects Graham's view of CSRTs.

      But that's not to say that he finds CSRTs "improper", whatever you mean by that. I'm not quite sure what specifically you're objecting to.

      •  I don't think that Allred (0+ / 0-)

        found that "CSRTs are not competent to judge whether prisoners have the status of POWs."  I think that mischaracterizes his ruling.

        I think he says that they are competent, but IF, later on, the prisoner is being put on trial, a SECOND determination must be made.  If the prisoner is not being put on trial, but is simply being detained pending the duration of hostilities (as a POW would be) the CSRTs are competent to judge whether the detainee qualifies for POW status with all the attendant protections or whether he does not so qualify.

        •  that's exactly what Allred found (1+ / 0-)
          Recommended by:

          And no, your interpretation is a gross mischaracterization. Allred argues that the government is obliged to provide an Article 5 determination whether or not a prisoner is put on trial. He then argues that CSRTs as set up by Rumsfeld were not tasked with addressing whether the prisoners were POWs; they were tasked with determining whether the men were "enemy combatants" and therefore should continue to be detained. Therefore, Allred concludes, the CSRTs did not (as Congress wrongly assumed) serve as Article 5 reviews.

          That is exactly as I described it in this post. I simply don't understand where you're getting your peculiar interpretations of either the ruling, or how I am describing it.

          •  I simply disagree with that characterization (0+ / 0-)

            I read the order as holding that CSRTs are sufficient to hold such reviews, but that a second review is needed if the detainee is put on trial.

            Look at page 4, first paragraph of the order:

            [I]t is clear from the Commentaries on the Geneva Conventions that a second status determination must be made by a judicial officer for detainees the Detaining Power proposes to punish.

            The ruling only means that a SECOND determination must be made and only for those subject to punishment.  The ruling does not suggest that CSRTs are inadequate for the purposes of Art. 5 with respect to detainees not being put on trial.

  •  another angle for impeachment n/t (0+ / 0-)

    First they ignore you, then they laugh at you, then they fight you, then you win. -Mohandas Gandhi

    by ezdidit on Wed Dec 19, 2007 at 09:51:51 AM PST

  •  Um... (0+ / 0-)

    "The military carefully created conditions of confinement in order to crush the prisoners’ mental resilience."

    You do realize we are talking about al-Qaeda operatives here? You do realize that many of these people want to destroy the United States?

    Actually, now that I think about it, I hope you didn't realize that.

    That would mean you could be perceived as defending and supporting al-Qaeda, which, of course, no one on Daily Kos would ever do.

    You know, there is a reason why, in 2006, The Onion parodied the First Annual YearlyKos by stating that we hosted a "al-Zarqawi Memorial Service."

    I know some will agree with me, others will not. I cannot endorse the sentiment in this entry.

    "Quotes from others represent a mental laziness in themselves" - Dailykos member "Rudgirl"

    by misterblaine on Wed Dec 19, 2007 at 09:53:01 AM PST

    •  Nonsense (3+ / 0-)
      Recommended by:
      The Maven, lotlizard, rhutcheson

      The US has released hundreds of prisoners from Guantanamo. Obviously, they were not "al-Qaeda operatives." When there is no due process, or checks on the power of the executive, innocents are swept up. This is precisely what our Constitution and the separation of powers are intended to prevent.

      The same is true of secret renditions. Please read about Maher Arar, who our government kidnapped from JKF and delivered to torture. Clearly not an "al-Qaeda operative," but he spent ten months in hell compliments of our government.

      Anyone who trades liberty for security deserves neither liberty nor security. - B. Franklin

      Not a Cent to those who won't fight torture.

      by not a cent on Wed Dec 19, 2007 at 10:03:24 AM PST

      [ Parent ]

      •  The fact that people are being released (0+ / 0-)

        (a) shows that the system works without resort to civilian courts and (b) does not prove that the released men are not al Qaeda operatives.  Indeed, over 30 released men are known to have rejoined al-Qaeda upon release.

        •  This is just plain nonsense (2+ / 0-)
          Recommended by:
          rhutcheson, not a cent

          You're saying that a deliberately cruel system "works" because it eventually releases some of the (many) innocent men it has locked up for years without due process? After many have been driven insane?

          If you were a prisoner there, would you say the system is working? chiz

          •  If these men had access to civilian (0+ / 0-)

            courts it does not necessarily mean that they would be released in any shorter period of time.  Surely you don't suggest that the detainees would have the right to petition for habeas the moment they are detained.  Even in Hamdi and Rasul, the Supreme COurt acknowledged that the military needs to be given time to interrogate before any procedures to determine status kick in.  

            So, even given an access to civilian courts, the detainees are unlikely to spend any less time in confinment.  So the length of confinement does not inform me whether or not the system works.

            •  this is silly beyond measure (2+ / 0-)
              Recommended by:
              rhutcheson, not a cent

              Even if they had access to civilian courts, they'd have been kept locked up (and without habeas review) for years on end? Of all the strange things you've claimed on this thread, this is the oddest of all.

              •  If they had access to civilian courts (0+ / 0-)

                that access would not have been instantaneous.  To see how long a habeas proceedings can take, look at various capital habeas cases.  For instance, the federal habeas petition for Mumia Abu Jamal was filed in 1999.  The District Court ruled on the petition in 2001.  The appeal was filed in the Third Circuit in 2001, but was not heard until May 2007.  It is now December 2007, and no decision has issued yet.  This makes for 8 years of litigation (during which Mr. Jamal continues to sit in jail).  

                There is little reason to believe that the habeas claims of Gitmo detainees would be handled any faster, and while the claims were processed they of course would remain in detention.

                Additionally, the detainees would most likely not be able to file claims immediately, as the military would be given sufficient leeway to debrief and interrogate them.  That period could very well take a year or so.  

                Thus, even if there were access to a civilian court system, and even if the courts were ordering releases, it is questionable that these releases would have occured any quicker than they are occuring now.  

    •  Al-Qaeda operatives . . . says who? (5+ / 0-)

      As determined by what process?

      If you have confidence that anyone the authorities accuse of something is automatically guilty exactly as charged, what need do we have for this thing which has become strangely foreign to Americans, this "rule of law", with courts and human rights?

      Surely you see that you are making a circular argument.

      The Dutch children's chorus Kinderen voor Kinderen (= “kids for kids”): is a world cultural treasure.

      by lotlizard on Wed Dec 19, 2007 at 10:04:56 AM PST

      [ Parent ]

    •  And Do You Realize (7+ / 0-)

      that this is the whole point of what's going on here?  Six years into the detentions at Guantanamo and for the overwhelming majority of the remaining detainees, there's been no formal determination as to whether they even had the slightest connection to al-Qaeda.  Just because some tribesman came into an American camp in Afghanistan in late 2001 or 2002 and handed over some names doesn't necessarily make those people al-Qaeda operatives.  The CSRTs, horribly flawed as they are, represent an acknowledgement that no such determination as to the detainees' proper status has yet been made.

      The concept of rounding everyone up and only years later worrying about who's genuinely worthy of continued detention and prosecution is inimical to the concept of individual liberty and fundamental human rights.  For your sake, I hope that no one you care about is ever caught up in a similar dragnet.

    •  So explain why so many of the prisoners have (6+ / 0-)

      been repatriated to their own countries where they ar usually freed upon arrival? Or are the stories about people being sold to US authorities by bounty hunters fake? What about the 13 year old incarcerated there?
      This does not even begin to discuss the difference between al Qaeda and the Taliban which are not the same organization.  If you follow the Brit press, you will see the estimate is that 90% of the detainees have never committed any violent act against the US or planned to.

    •  It would be nice (5+ / 0-)

      to have trials, with, you know, evidence and all that, so we can see the extent to which the detainees are al-Qaeda operatives.  Otherwise, lengthy confinements without trial serve no purpose, except to have people like me question the validity of your statment.  Any intelligence value is long gone.

      As for Hamdan himself, the only allegation I see made against him is that he was bin Laden's driver.  We would hardly suggest that Bush's driver knows much about the workings in the Oval Office.  Hamdan wasn't captured by Americans, but by Afghan warlords and then turned over to us.  We're alleging conspiracy.  I think Americans should get to see the evidence.

      "Success is a level of violence where the people feel comfortable about living their daily lives." --George W Bush, May 2, 2007

      by mspicata on Wed Dec 19, 2007 at 10:17:20 AM PST

      [ Parent ]

    •  Where is your proof? (1+ / 0-)
      Recommended by:

      You do realize we are talking about al-Qaeda operatives here? You do realize that many of these people want to destroy the United States?

      Sounds like mere assertion. None of this has been proved in a court of law, so why are you stating it as if it were a fact?

      Isn't it the point that these questions ought to be tested in a court of law?

  •  Neocon blowback already started (0+ / 0-)

    That Allred didn't understand the nature of the tribunals or that he has overreached his authority (activist JAG?)or that Gitmo saved lives from the information gleaned there or that Gitmo is full of bad guys so no treatment is too bad for them.

    I am getting the Spring in Berlin, 1939 feeling.

  •  And don't ignore the fact... (3+ / 0-)
    Recommended by:
    Cathy Willey, rhutcheson, not a cent

    ... that the mere existence of secret prisons where torture (such as the impression that confinement is permanent) is used, sends a chilling effect throughout society.  People circumscribe their behavior when they know that their government has a place where people are "disappeared" to.

    Shameful.  Shameful.

  •  The Hamdan issue (2+ / 0-)
    Recommended by:
    Cathy Willey, smintheus

    seems to be that he can legitimately claim to be a prisoner of war - he was apparently a driver and bodyguard for OBL.  It also may be in his interest to claim that status, given the alternative of having been found to be an 'illegal enemy combatant'.

    Neither self-interest nor truth will prompt attention to this specific issue from most other prisoners, I think.  

    From the standpoint of self-interest, going for POW status is a loser for most prisoners: the consequence of being determined to be a POW is indefinite incarceration, given the Bush definition of this 'long war'.

    Respecting the truth of the situation,  the overwhelming majority of the Guantanamo inmates  weren't 'captured' on the 'battlefield' (they were turned in for a bounty in Pakistan or some other country).  Additionally, in my opinion, only a few of them are probably guilty of much of anything. So these people should really be tried in a court with normal rules of evidence and a burden of proof on the prosecution.

    None of this is to say that the court ruling on Hamdan is not a good thing.  Plus, I might be confused on the issue, and IANAL.

    •  What specific evidence do you have that (0+ / 0-)

      overwhelming majority of the Guantanamo inmates  weren't 'captured' on the 'battlefield' (they were turned in for a bounty in Pakistan or some other country).

      Not just some, mind you, but overwhelming majority.

      And even if that were true, I fail to see what difference that makes if the people turned over for bounty were subject to capture and detention.  In other words, if, for instance, al-Zarqawi were turned over for bounty, what difference would that make to his status as unlawful combatant?  

      •  It's true, and has been documented (1+ / 0-)
        Recommended by:

        by looking at the government's own evidence from Gitmo. Only a very small percentage of these prisoners were picked up by US troops.

        Your refusal to see why it matters that most prisoners were sold for "bounties" speaks volumes about your credibility on issues relating to Gitmo. Either you know little about how these "bounties" worked, or you know perfectly well how dicey the whole set up was but don't allow that to interfere with the positions you're taking.

        Your tendency throughout this thread has been to repeat tired and disproven Bush administration talking points.

        •  This does not answer either of my (0+ / 0-)

          questions.  Instead of providing evidence you simply assert that the fact is "well known."  If it is, finding evidence should not be that hard.

          Second, you fail to explain why al-Zarqawi, had he been sold for a bounty would be improperly detained.

      •  Sorry, Just noticed your question. (0+ / 0-)

        I rely on the Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data by Mark Denbeaux of Seton Hall University - School of Law and Joshua Denbeaux of Denbeaux & Denbeaux, published on behalf of the Social Science Reasearch Network.  

        This report was summarized by Mark Denbeaux on December 11, 2007 in testimony before a subcommittee of the Senate Judiciary Committee.  The hearing was chaired by Diane Feinstein, whose opening statement was uncomplimentary to the legitimacy of the Guantanamo processes.

        A report summary (emphasis added):

        1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.
        1. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.
        1. The Government has detained numerous persons based on mere affiliations with a large number of groups that, in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed "fighters for;" 30% considered "members of;" a large majority - 60% - are detained merely because they are "associated with" a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners, a nexus to any terrorist group is not identified by the Government.
        1. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.
        1. Finally, the population of persons deemed not to be enemy combatants - mostly Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.
        •  That report does not suggest that the (0+ / 0-)

          majority of people were turned over by local villagers for bounty.  Whether they were captured by the US or allied forces is immaterial, just like it was immaterial who captured WWII war criminals, US, or UK, or the Soviets.

          •  You originally asked for evidence (0+ / 0-)
            that the overwhelming majority of prisoners were not captured on the battlefield.  That is what I provided for you.

            Now you say that the report does not suggest that the majority of people were turned over by local villagers for bounty.  If you would have read the report, you would have seen this on page 15 (emphasis added):

            The United States promised (and  apparently paid) large sums of money for the capture of persons identified as enemy combatants in Afghanistan and Pakistan. One representative flyer, distributed in Afghanistan, states:
            Get wealth and power beyond your dreams....You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murders.  This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.

            Bounty hunters or reward-seekers handed people over to American or Northern Alliance
            soldiers in the field, often soon after disappearing; as a result, there was little opportunity on the field to verify the story of an individual who presented the detainee in response to the bounty award.  Where that story constitutes the sole basis for an individual's detention in Guantanamo, there would be little ability either for the Government to corroborate or a detainee to refute such an allegation.

            The bolded part is responsive to your claim that the method prisoner acquistion is immaterial.

  •  as a veteran I am ashamed of this farce of a (2+ / 0-)
    Recommended by:
    Cathy Willey, not a cent

    "court system"  I am glad there are military lawyers and judges that refuse to bend over just because the VP and President demand that they do, the law is something that holds us together as a nation if we dip to 3rd world standards then we are no better than Chavez, Castro, Stalin, Pol Pot

    this is not the nation I served in uniform to protect, I want the one back where the same laws apply to everyone  even the President  why was it okay to impeach over a lie about a BJ  and not all the illegal acts these people have allowed  where is the justice?

  •  thank GOD we have a Democrat Congress... (0+ / 0-) we can thank them for more war funding!

  •  How many times do we hear (0+ / 0-)

    War on Terror?
    Well, if we are fighting terrorist, then they are soldiers in the fight we are fighting.

    "The truth shall set you free, but first it will piss you off!" - Gloria Steinem

    by MA Liberal on Wed Dec 19, 2007 at 10:52:26 AM PST

  •  Guantanamo... (0+ / 0-) shameful. Can this possibly be America we are talking about? The founding fathers must be spinning in their graves.  

  •  Join The Worldwide Protest on Friday January 11th (0+ / 0-)

    Wear the color orange, get out there and do something.

  •  And so today Allred denied Hamdan's (0+ / 0-)

    claims and ruled him to be an unlawful enemy combatant.

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