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Crossposted from My Blog

Quite a bit of negative commentary, particular from attorney's such as Jesselyn Raddack and Glenn Greenwald has come down in stomp-footed opposition to Obama's plan to implement "Preventative Detention", meanwhile those on the Right continue to pull their hair out over the idea of "Terrorists released on American streets".

Both positions may in fact be an extreme over-reaction, while Obama's own Solomon-like path of splitting the difference may actually be our nation's only real choice under Geneva, the Constitution and the Law.

First we have to recall where have previously been to better understand where Obama is going.  Under President Bush, the protections of Geneva were blatantly rejected by executive fiat. This meant that the tenets of the Army Field Manual, which were based on Geneva were undermined and our troops left without a coherent detention strategy leading to widespread abuses at Bagram A.F.B. and throughout Iraq.  Eventually The U.S. established a set of secret detention centers specifically intended to avoid the Geneva mandate of oversight by the International Red Cross, where a program of coercion and torture was implemented to get the answers the Administration wanted, particularly concerning links between Saddam Hussein and 9-11.

In 2006 the Supreme Court overruled Bush's claim that Geneva did not apply with the Hamdan v Rumsfeld decision which meant that all of the previous actions of the Administration at the CIA Black Sites and elsewhere could now fall under 18 USC 2441 for War Crimes prosecution.  Bush responded by closing the illegal Black Sites and moving their detainees to GITMO, then quickly pushing through the Military Commissions Act which revoked the protections of habeas corpus for "Alien Enemy Combatants", allowed the use of coerced and self-incriminating testimony (gained via torture), and via "hearsay" in a new Military Commission Trial System.

In 2008 the Supreme Court just as they has previously restored Geneva protections, restored Habeas Corpus to detainees and invalidated Section 7 of the Military Commissions Act with the Boumediene v Bush decision. It held in restoring habeas that...

"to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'.

So unlike what was claimed by Bush, Obama finds himself in a landscape that must abide not only by the Constitution and Geneva but also Habeas for all detainees.
least of all indefinitely without the option of Habeas Review by a court.

In light of these realities Obama outlined five possible options for the disposition of current GITMO detainees.

1. Transfer to U.S. Civilian Courts for Trial.

This option in the past has led to the successful prosecution and incarceration of Ramzi Yusef (The Original WTC Bomber), the "Blink Sheik", Zacarias Moussaoui (The "20th" Hijaker"), Timothy McVeigh, Eric Rudolph (The Olympic Park Bomber), and Ted Kasczinki (the Unibomber) all of whom are being currently held at the Florence Supermax Correctional Facility in Colorado.

No One Has Ever Escaped from a Supermax.

On April 30, 2009 Ali Saleh Kahlah al-Marri, who had been held for the previous six years at the Naval Brig in Charleston without charge, pleaded guilty to charges of conspiracy and terrorism after being transferred by the Obama Administration into the civilian courts  and is now being held at the Federal Facility at Pekin, Illinois awaiting sentencing.

The Obama administration plans to follow this trend by bringing charges against another al Qaeda suspect for the 1998 East Africa bombings which killer over 200 Americans.

Despite all the frenzied chest beating, this option has worked fine.  America has the best prison system in the world, and is already holding al Qeada inmates - adding another hundred or so is not going to end civilization as we know it.

2. Try Suspects as War Criminals in Military Court

Unlike those who may have committed crimes against Civilians and Non-Combatants, it seems perfectly appropriate to try those who have perpetrated crimes against our troops on the battle field, or civilians in a war zone. Some may say that "there are no Rules in War" however the fact is there have been very clear and definite rules since the Ratification of Geneva in 1949. Under Geneva these would include...

"violations of the laws or customs of war"; including but not limited to "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".

A Courts Martial of Military Criminals is entirely appropriate if the circumstances warrant, and as Obama has noted the previous flaws from the Bush Military Commission System will not - and frankly CAN NOT vis SCOTUS - be included.

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions.  Military commissions have a history in the United States dating back to George Washington and the Revolutionary War.  They are an appropriate venue for trying detainees for violations of the laws of war.  They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part.  They should look at the record.  In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms.  Those are the reforms that we are now making.  Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law.  We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.  We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay.  And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.

3. Detainees who have been ordered to be released by the Courts

Amazingly some on the right would argue that the Adminstration ignore a Court Order to release a detainee against whom the evidence is insufficient.  Obama has rejected that view.

Now, let me repeat what I said earlier:  This has nothing to do with my decision to close Guantanamo.  It has to do with the rule of law.  The courts have spoken.  They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo.  Nineteen of these findings took place before I was sworn into office.  I cannot ignore these rulings because as President, I too am bound by the law.  The United States is a nation of laws and so we must abide by these rulings.

Whether GITMO stays open or not, these 21 people must legally be released - the problem for some of them however is "to where"?  A problem which still plagues the Uighurs, Chinese Muslims who would most likely face persecution if released to that nation but like Boumedienne - a Serbian who was ultimately released to France - an alternative arrangement may eventually be made available.  Which leads to the next category.

4. Transferral of Detainees to other Jursidictions.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country.  So far, our review team has approved 50 detainees for transfer.  And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

This isn't setting them free, Bush did this with numerous detainees such as Ibn Shayhk al-Libi who was transferred to Egypt and eventually to Libya. He also rendered innocent persons such as Abu Omar and Maher Arar who was transferred to Syria.  The difficulty here is that both Omar and Arar were completely innocent and actually apprehended by mistake - and all three individuals were tortured in those countries. Like the case of the Uighurs simply shipping people off to other countries without careful thought or planning could prove disastrous, but extradition is an option that should clearly be pursued and could be successful with careful planning.

And then there is the most controversial category.

5. Detainees who can not be prosecuted, but remain AT WAR with the United States

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.  And I have to be honest here -- this is the toughest single issue that we will face.  We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country.  But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.  Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.  These are people who, in effect, remain at war with the United States.

In the most simple terms, these people are Prisoners of War and can potentially be held "until hostilities cease".  The controversy here is that this is war the in some ways can not be either one or lost, ever. As Glenn Greenwald argues...

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading.  And it's no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a "combatant" was thus minimal.  By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets.

I think that Greenwald, and I am frankly loathe to disagree with Glenn as I respect him greatly and consider his work an inspiration for my own, is just simply wrong here.  At the beginning of any armed conflict, it is never really known exactly when hostilities will end.  Israel has essentially remained in a constant state of war for decades. The "Troubles" in Northern Ireland were of a similar extended nature.

It should also noted that nearly two years ago in 2007 the newly minted commander in Afghanistan, Gen McChrystal officially announced that al Qaeda in Iraq has been Defeated.  Iraq still has lots of problems but that conflict has ended. Abu Musab al-Zarqawi, the head of AQI, is dead.

There may indeed be a point in time where this may also be true of Senior Leadership of Al Qaeda in Pakistan and Afghanistan, where they are either captured or killed and their ability to function as an effective international terrorist enterprise is diminished to point of irrelevance.  In fact - This Should be Our Goal.  The difficulty in attaining that goal should be lost on no-one, but neither should it lead us to making choices that defy common sense and allowing enemy assets to return to the battlefield during an active conflict.

The second part of his assumption I think ignores both Obama's specific comments and the reality of the situation is that these would not be people "picked up from their homes, at work, or off the streets" since these locations can not honestly be called the "battlefield."  Those people would be, and should be handled as criminal suspects and processed through the civilian courts as Obama describes under option 1.

What we're really talking in this scenario would be Taliban, Al Qeada and Insurgent fighters who have been caught on the battlefield, planting IEDs or otherwise in the act of attacking our troops.  Again the case of Insurgents is also instructive here. as at one point we would have never considered the idea of a cease fire let alone open cooperation with those who had previously been fighting with in the Sunni Triangle.  Today things are different, and consequently the Military need to hold these prisoners would similarly change over time.

Also the greatest protection against possible abuse of this policy, would be to ensure that the decision does not rest in just one set of hands just as Obama has described.

Let me repeat:  I am not going to release individuals who endanger the American people.  Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded.  They can't be based simply on what I or the executive branch decide alone.  That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category.

President Bush reserved the sole right to pluck someone off the street, even an American Citizen such as Jose Padilla (or to kidnap foreign citizens off the streets of Italy like Omar, or at JFK Airport like Arar), and hold them without charge or without judicial review.

Those days are over.

Any potential Prisoner of War or detainee under Boumedienne must now be afforded Habeas review, even if the Administration thinks they may remain an "ongoing threat" they're going to have to provide some evidence of this assertion before a court although evidence of a specific civilian or war crime on their part may be either lacking or tainted.

Further as a result of the precedent set by Hamdan (although the SCOTUS offered no opinion on this point), it could be argued that Geneva protections should also apply and before the administration could even relegate someone to P.O.W. status they would need to have this confirmed by a Competent Tribunal under Article 5.

Under U.S. military regulations, a Tribunal would be composed of:

  Three commissioned officers; a written record of proceedings; proceedings shall be open with certain exceptions; persons whose status is to be determined shall be advised of their rights at the beginning of their hearings, allowed to attend all open sessions, allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal, and to have a right to testify; and a tribunal shall determine status by a preponderance of evidence.[2]

Possible determinations are:

 1. Enemy Prisoner of War.
 2. Recommended Retained Personnel (RP), entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
 3. Innocent civilian who should be immediately returned to his home or released.
 4. Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained

Bush had previously established "Combat Status Review Tribunals" to fill this requirement, but studies by the Seton Hall found the 92% of GITMO detainees were not in fact "Enemy Combatants" and that the Bush CSRT were essentially Kangaroo Courts biased to find guilt in nearly all cases. Ultimately Boumedienne invalidated the Bush CSRT process, so a new, and fair process in line with Geneva and the Code of Military Justice needs to be constituted.  One which mandates periodic status review updates for all persons ultimately declared as having P.O.W. status for the ongoing War as circumstances within that conflict continue to shift and change overtime. Think of it as a "parole hearing" to determine if the person remains a threat and either repatriate or retain them as appropriate.  This would not be the Obama Administration's decision, but one based on the available facts and circumstances at the time by an independent judge or judicial panel on a case by case basis.

In short "Preventative Detention" of a P.O.W. might not ultimately be Permanent Detention nor should be it something that any President or Administration should be able to legally implement without oversight from the courts or Congress. Doing this may require a new POW or Military Tribunal Act, but it can be done.  Russ Feingold is already demanding hearings and testimony based on Obama's Speech.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Feingold's concerns aer well founded considering the history of Bush Administration's handling of detainees, but the U.S. has held prisoners of war without charge and without trial in every war that we've engaged in since the formation of the Union. It doesn't mean they'll be held forever, it does not violate the law, the constitution or Geneva, but it will need to be done with the consultation and understanding of Congress.

With rational and legal protections in place, we can ensure a framework which both protects the rights of the accused from unwarranted and unreasonable detention and protects the American people from those who would continue to wage violence and war against them through the weapons of terror.

It's not a Hobson's Choice of protecting Americans vs protecting Terrorist Suspects, we have to do both - protect the innocent (all of them) as well as punish the guilty using the best legally obtained evidence and facts.

Vyan

Originally posted to Vyan on Mon May 25, 2009 at 02:26 AM PDT.

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Comment Preferences

  •  No. (2+ / 0-)
    Recommended by:
    Bronxist, tle

    > In the most simple terms, these people are Prisoners of War

    No they are NOT, until they are explicitly declared as such.

  •  Who knows what evil lurks in the heart of men? (3+ / 0-)
    Recommended by:
    tle, saildude, BioHazzard

    The shadow knows.

    Bush supposedly wanted to close gitmo.
    But he didn't and that left a can of worms for obama .

    To hold people indefinately in limbo goes against the very nature of this countries revolution against England.
    Many of the causes/reasons for our revolution have manifested themselves in the Bush administration.
    Each and everyone of them needs to be repudiated, including holding people without charges.

    Republican at birth Democratic by choice

    by Bluerall on Mon May 25, 2009 at 03:06:07 AM PDT

  •  During World War 2, Germans landed spies (1+ / 0-)
    Recommended by:
    saildude

    off US coast in civilian clothes.  They were captured, tried by a military tribunal and hung.  They were not considered POW's because they were not in uniform.  Captured POW's picked cotton in Alabama.  I never understood the idea of treating these people as POW's under the Geneva Convention because one of the purposes of the convention is if you go to war, you will wear a uniform in order to be under its protection.

  •  Not passing the stink test. (8+ / 0-)

    The fact that we choose to call it "a war" does NOT make it a war. A War of Terror is among the stupidest concepts imaginable because there can be no such thing as an actual war against an invisible, unidentifiable enemy with the consistency on a faint odor. WHO is the enemy and how will you know the war has ended? CAN a war on terror end?

    As long as we keep killing them and theirs in their countries, there will be more and more of them who will want to kill us. That's not rocket science.

    Using an army against civilians, killing WTF cares number of Brown civilians we choose to call "insurgents", "suspected terrorists" and acceptable collateral damage (acceptable to whom?), is like using an eggbeater to unscramble eggs. One of these days, even WE will understand that.

    In a not unrelated matter, how long can we detain suspected drug traffickers in the War on Drugs?

    •  The AUMF triggers a state of war (3+ / 0-)
      Recommended by:
      askew, Vyan, rweba
      under US law; do we have any reason to think that the AUMF v al-qaeda is insufficient for the question of whether we can detain combatants

      (unless, of course, your point is the Paultard one that an AUMF is unconstitutional)

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Mon May 25, 2009 at 04:19:04 AM PDT

      [ Parent ]

      •  Why AUMF matter? (0+ / 0-)

        You arguing legality??? I don't care if this so-called war was authorized by Congress as prescribed by the Constitution of the United States - declaring a war on terror is moronic. I'm not talking legality here, I'm talking sanity.

        This cannot be a war even if the dullest bulbs in the Universe had declared it to be thus. Being legal does not make it right or the sensible thing to do. If the US Congress, the greatest deliberative body in the known universe (their claim, not mine), makes it legal for you to take a flying leap off the Empire State building, it does not mean it would be the right thing to do.

        Terrorism cannot be fought by military means when the so-called terrorists don't have a place you can locate them at and you have no means of identifying the enemy.

        I don't really know how to further simplify something that should be a "DUH!!!". The army is like a missile. When you deploy it, it needs a target, an objective to achieve. Without a target, the US Army will win every battle it fights (as it has done) and you will still lose the war (as we have done).

        This is NOT a war and we do not have prisoners of war. We're holding suspected criminals/mass murderers/terrorists/revenge seekers... whatever you want to call them, and they need to processed as the law prescribes.

        You start cutting corners to make insanity legal and there will be hell to pay when it comes back to bite you in the ass. How, do you think, did we end up with this problem in the first place? We got here by making up stuff to suit the ends we wanted to achieve, that's how. When you find yourself in a hole, as we have, maybe it's time to stop digging.

        •  The AUMF was v. al-qaeda, not terra. (1+ / 0-)
          Recommended by:
          rweba

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Mon May 25, 2009 at 05:27:43 AM PDT

          [ Parent ]

          •  nope (4+ / 0-)

            the AUMF did not name al-qaeda, it stated:

            (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

            if you read it carefully, it means that the president can lawfully attack anyone he determines was at all a part of it, even if they weren't. and the preventative aspect of that paragraph gives a free hand to do pretty much anything. it's a terribly vague document, and it should not have been written or passed until there was a clear understanding, laid out before congress and the american people, as to who the fuck actually hit us, who their sponsors were and are, and how they were organized.

            this is why bush spent so much effort trying to connect saddam to 9/11, because if he "determined" that it was thus, this document would legally cover that invasion.

            surf putah, your friendly neighborhood central valley samizdat

            by wu ming on Mon May 25, 2009 at 06:44:46 AM PDT

            [ Parent ]

            •  Ive long argued that the (1+ / 0-)
              Recommended by:
              wu ming

              Iraq Use of Force resolution be rescinded since it was based on false premises, similarly it might be necessary to reauthorize and refocus the Afghanistan AUMF, particularly considering the reality that the majority of remaining enemy forces are being shielded by Pakistan.

              Either way, Congress did essentially authorize a WAR, and that naturally leads to P.O.W.s.

              Vyan

              •  to declare war against whatever attacked us (0+ / 0-)

                is to reveal a lack of understanding of what we're up against. and in fact, the war paradigm that nearly everyone in DC forced upon 9/11 is directly to blame for our botching both related wars, in afghanistan and iraq. if it's a war, then we need an opponent, and thus we need an army and state to fight against, and it needs to be an existential threat, and it has to have prisoners of war, and yaddayaddayadda.

                we seriously consider regular afghan soldiers who shot at us when we invaded their country to be prisoners of war (or enemy combatants) because a criminal group also in that country planned an attack on american soil. it's insane, from an organizational standpoint alone.

                if this had been approached in the same way as mcveigh or eric rudolph or some other criminal group that planted bombs, we would never have bothered occupying countries or planning set battles. it's the war metaphor that twisted our response, that is so clear in that AUMF.

                i agree that both need to be revoked. i'm not sure that war is the correct framework, legally or functionally, to most effectively bring the people who actually hit us on 9/11 to justice.

                surf putah, your friendly neighborhood central valley samizdat

                by wu ming on Mon May 25, 2009 at 09:22:26 AM PDT

                [ Parent ]

        •  Not a war???? (0+ / 0-)

          Tell that to the people who have died as a result of it.

          All my IP addresses have been banned from Redstate.com.

          by charliehall on Mon May 25, 2009 at 07:10:26 AM PDT

          [ Parent ]

  •  A POW has to be taken and kept as part (4+ / 0-)
    Recommended by:
    Old Woman, Bluerall, Virus, BioHazzard

    of a war, and a war has to be declared by Congress.  So Mr. Obama is wrong from the beginning.  And of course so were the Bushies.  

    Congress has to do its job and declare a war, and the People can then do theirs and demand that the war be ended.  Right now Congress does not declare war and the people don't demand that it end.

    It is preposterous that Congress' only tool for ending an illegal war, and the U.S. has has several since 1945, is to stop the funding, which they of course don't do.  But if they were to reverse their declaration of War they could continue the funding to support the troops as they are brought home from foreign lands.  But Congress lacks the courage to do that -- they are weasels.  And of course Bush and now Obama are willing to exploit the illegality of the situation.

    To build one illegality on top of another is not a nation of laws, but a nation of men who want to indulge their political preferences.  

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning.

    by hestal on Mon May 25, 2009 at 03:53:01 AM PDT

    •  Declared or not, this IS NOT a war! (4+ / 0-)

      A war is fought against an enemy who can surrender, or at least with whom one can negotiate and sign treaties. We could declare a war against the Taliban in Afghanistan, for example.

      "Terror" is a means of fighting, not an enemy. There can't ever be an end to this so-called war, any more than there can be an end to a war on murder or a "war on drugs".

      So they are prisoners of war -- they aren't fighters for a group against which we declared a war.

      And that leaves out the fact that we imprisoned a lot of these people based on paying BOUNTIES for warm bodies, with no real evidence that they actually were "warriors" fighting against us.

      The problem of what to do is awkward (though there is a simple answer: let the ones we can't charge go, thus increasing by a tiny fraction of a percent the number of people who want to attack us, which has essentially zero effect on our safety).

      But they aren't POWs.

      •  In our system of laws, only Congress has (0+ / 0-)

        the power to declare war, and they have rarely done so, if ever, since 1945.  To say that we are at war even though no war has been declared is an impossibility under our constitution.  To fight a "war" by the definition you describe is to say that gang wars in our cities and prisons are the same as the "war" in Iraq.  And they are.  They are armed groups, led by gangsters, fighting each other to the death.  The soldiers may think they are fighting for a good cause, some may be others not, but none of them are fighting a "war."  They are simply fighting.

        Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning.

        by hestal on Mon May 25, 2009 at 05:00:25 AM PDT

        [ Parent ]

  •  while I respect many of your diaries (3+ / 0-)
    Recommended by:
    rick, Bluerall, Virus

    I think you are dead wrong here.

    The single greatest sin committed by BUSHCO in its distortions and undermining of the rule of law was the concoction of what might be called "the war paradigm".  This paradigm involved the deliberate conflation of criminal law (and accompanying human rights law)/with the international humanitarian law (or law of armed conflict).  The administration not only twisted international humanitarian law (eg, by refusing to apply Geneva III and IV to the early phases of the armed conflict with Afghanistan), but applied the law of armed conflict where it did not belong - ie, in its action to confront criminal acts of terrorism, including those committed by al Qaeda.
    What has remained obscured in the US political cultural is that there is no "war" on terrorism or with "al Qaeda".  There is simply no legal basis for calling it war within the legal meaning of that term.  Al Qaeda and "associated organizations" are not and army, but a criminal organization.  
    For a conflict to be classed as an armed conflict in international law there must be parties to the conflict with a clear command structure that is capable of controlling forces and enforcing respecting the laws of war (if it decides to do so). Fighting must be of continuous and enduring intensity (not sporadic acts, however serious they may be.)   It must be spatially limited - although some territorially spillover is possible, there can be no "global theater" of operations.  
    What is being envisioned is not a regime for detaining pows- in fact, the US in not engaged in an international armed conflict and has not been since 2001-2002.  It is about detaining persons who are either "terror suspects", former "intelligence assets", former fighters with or allied with the Taleban, or , in many cases, people just detained for their associations.   They are detained arbitrarily and should be tried or released.  Indefinite detention is not only unlawful but possibly criminal.

    "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

    by normal family on Mon May 25, 2009 at 03:56:50 AM PDT

    •  You're confusing concepts. (3+ / 0-)
      Recommended by:
      askew, rweba, charliehall
      The existence of a clear command structure goes to the question of whether combatants are entitled to the heightened protections of POW status.  W/ command structure, there can very much still be a war, but the captured combatants don't get POW rights under the Geneva conventions (but may still get the Common Article 3 protections)

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Mon May 25, 2009 at 04:23:39 AM PDT

      [ Parent ]

      •  I am not confusing anything (2+ / 0-)
        Recommended by:
        burrow owl, buhdydharma

        I am simplifying for the purpose of a quick comment, but I have a certain expertise in this area and the existence of command structure is highly relevant to the question as to whether a an organization constitutes an armed group that is party to armed conflict within the meaning of international humanitarian law.   There are two main tests:  intensity of fighting, and degree of organization, including command structure, of the armed group.

        The most detailed analysis can be found in a number of cases before the International Criminal Tribunal of Yugoslavia (which, as an organ of the UN Security Council, with binding judicial competency, is a highly authoritative source.  
        See
        Tadic, (para 562, et seq.)
        http://www.un.org/...
        the Limaj case, for more detail,  
        http://www.un.org/...
        Paragraphs 83-134

        The ICRC of course concurs with this jurisprudence:
        http://www.icrc.org/...

        "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

        by normal family on Mon May 25, 2009 at 05:36:25 AM PDT

        [ Parent ]

    •  The "war paradigm" is not Bush's, it's LBJ's (0+ / 0-)

      It also offers definition of an end.  The War on Poverty ended when the US government decided that poverty was sufficiently low to warrant taking no further action against it.  Reagan was wrong, but that war came to an end.  An end to the battles in Mexico and Colombia combines with a reduction in US drug use rates (outside medicinal purposes) to the low single digits would bring an end to the War on Drugs.  

      2009: Year of the Donkey. Let's not screw it up.

      by Yamaneko2 on Mon May 25, 2009 at 07:47:08 AM PDT

      [ Parent ]

  •  No doubt they are POW's (1+ / 0-)
    Recommended by:
    skeptiq

    POW's who have in many cases been tortured.

    Until the prosecution and convictions of those responsible are carried out we will never have the moral high ground.

    We as a country should do all we can to right the wrongs and move on. Trying to move forward without taking care of these matters will mean nothing has changed.

  •  This is the top link at google news atm (0+ / 0-)

    To your diary for stories about Obama.

    Experience may differ in online play...

    by OCD on Mon May 25, 2009 at 04:30:56 AM PDT

  •  The reason why they will NOT be deemed POWs... (4+ / 0-)

    is because of Article 17, that would effectively deprive the ability to gather intelligence from them.  It states, in pertinent part:

    Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. . . .

    . . . No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

    The ticking time bomb situation notwithstanding, a POW can refuse, with impunity, to answer any question about any matter, except that noted above.

  •  The problem with POW status (2+ / 0-)
    Recommended by:
    rick, saildude

    Not an insurmountable problem, but one that must be addressed.

    POW status presumes that the POW will be repatriated when hostilities are at an end.

    In a conflict against non-governmental group, how does one know when hostilities are at an end?  What of the international law implications of an armistice agreement or other document with a group like al Quaeda, which in structure is a network?

    Or is it when the state of war ends with the particular individual in custody?  Note that we are not dealing with conscripts in the difficult cases but committed warriors.  How exactly can we expect that they will indeed honor their "parole" as a prisoner of war, for that is what it used to be called?

    Notice that at point of parole, the disposition of the prisoner of war becomes a question of where release should occur.  Country of official nationality?  That has been the pattern in other prisoner of war releases.  But in other POW releases, the government of the country of official nationality generally welcomed the POWs back as citizens.  Imagine releases back to Saudi Arabia or Pakistan or Egypt or...  What are the human rights implications of such releases?

    Yours is a good analysis, and we will have the opportunity to find how on track you are when the DOJ appears before the Feingold subcommittee.

    •  The more logical framwework is to (2+ / 0-)
      Recommended by:
      TarheelDem, charliehall
      treat as citizen combatants under GC IV.  They're, basically, bandits (the tem usedf in official commentary) and can be detained as long as we think they're a threat.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Mon May 25, 2009 at 05:32:03 AM PDT

      [ Parent ]

      •  Wonderful, concise diary (3+ / 0-)

        It seems that there needs to be a bit of legal clarification by congress pertaining to persons taken into custody by the US military and the various articles of the GC I've read about here. I have a bit of a problem with the notion of  "as long as we think they're a threat" -  but if their were a legal act that established a statute for the Military trying an enemy combatant under a specific criminal offense, it seems we could maintain constitutionality (for the legal morality of our country, not the rights of non-citizens) while at the same time keeping baddies off of the streets.

      •  meant to say comments ;) (1+ / 0-)
        Recommended by:
        burrow owl
      •  Article 5 (2+ / 0-)
        Recommended by:
        burrow owl, jonimbluefaninWV

        I presume you are referring to this:

        Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

        Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

        In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

        The question of how to establish that "earliest date" remains the crux of the "indefinite detention" objection.

        Also at issue is the question of who it is that fulfills the "Protecting Power" role envisioned in the convention.

        •  That Wherein occupied territory part (1+ / 0-)
          Recommended by:
          burrow owl

          and reference to the occupying power would seem to indicate that it hold for people in countries you're occupying and only for so long as you're occupying them, no?

          So I wouldn't think it would apply to anyone we bought from bounty hunters anywhere outside of Iraq or Afghanistan to start with, and would necessitate the release of anyone from those countries as soon as we stop being an 'occupying power'.

          Ie, we leave, and turn them over to the police of the respective countries to sort out.

          Bah. Typoed during acct creation. It's Ezekiel 23:20

          by Ezekial 23 20 on Mon May 25, 2009 at 06:14:42 AM PDT

          [ Parent ]

          •  I think that's right (0+ / 0-)

            The first paragraph applies in this discussion, but not the second.  And the third paragraph applies to either case.

            Notice that we are not discussion all of the cases here; there will be some Guantanamo detainees release because of lack of evidence or because they are demonstrably innocent.  Indeed a lot of these were released under court order during the Bush administration.

            What is at issue here is the "difficult cases" that Obama cites.

            We most likely are talking about substantially fewer than twenty-five cases in this category, to take a WAG.

            Those that fit with the US role as an occupying power most likely have already been turned over to Iraqi security forces.  The situation in Afghanistan is less clear, but I suspect rapid turnover to occur there if it has not already occurred.

    •  Not sure GC fully covers the current situation (0+ / 0-)

      There seems to have been an evolution over the course of the past few decades. There is a process of re-defining 'war': who is what type of combatant, and how they can be treated, indeed even how hostilities are waged.

      The GC establishes the humane treatment of all involved in conflict. Since our current morass was created expressly by Bush et al to NOT fall within the GC, we are left to adapt these rules to a rogue status.

      Rather than pre-judging the Obama administration, let's apply pressure to make sure that the process as it evolves is in compliance with justice in its broadest sense. The fact that they are willing to grapple with the questions, that there is even a public discussion, is to be commended.

  •  Not sure how we can say they are POWs (2+ / 0-)
    Recommended by:
    Aranfell, Ezekial 23 20
    unless they can be shown to have been lawful enemy combattants in a war which involves two states. The 4th article is pretty clear. So, those who were lawful combattants (and we know not all were actually, given the bounty system in place at the time) in Afghanistan or Iraq can be deemed POWs as you say.

    On unlawful combattants the convention is equally clear: unlike POWs, whose treatment is prescribed, unlawful combattants may be prosecuted under the domestic law of the detaining state for such action, in this case, the US.

    If now, the US is making up additional rules like Obama and Feinstein in talking about preventive detention (presumably of unlawful combattants since they also refer not to the Afghan campaign but rather more vaguely to the "War on Terror") or states ("Terror") then we get to the crux of the problem and the primary criticism, first of the Bush administration, now of the Obama administration: the rule of law and its status in the US.

    •  Were *any* of them lawful combatants? (0+ / 0-)

      How many were in uniform when they were caught?

      All my IP addresses have been banned from Redstate.com.

      by charliehall on Mon May 25, 2009 at 07:13:40 AM PDT

      [ Parent ]

    •  Treating them as P..O.W.s (0+ / 0-)

      is actually an elevation of their status from "unlawful" combatant to "lawful".  Al Qeada, although not a nation-state, formally declared War on the U.S. in 1998.  We responded with the 2001 AUMF following 9-11.

      Under Geneva Article 4 P.O.w.'s are describe as...

      A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

      1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
      1. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

      (a) That of being commanded by a person responsible for his subordinates;

      (b) That of having a fixed distinctive sign recognizable at a distance;

      (c) That of carrying arms openly;

      (d) That of conducting their operations in accordance with the laws and customs of war.

      1. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
      1. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
      1. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
      1. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
      1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
      1. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

      Again not that Article 4 of Geneva does include POW protection to "Militia's who spontaneous form in response to an invader" - which in this case would be US in both Afghanistan and Iraq and pertain to both Iraqi Insurgents and Taliban fighters, neither of whom were previously involved in direct attacks against the U.S.

      The only real sticking point is the "visible sign" portion of the requirement since both Taliban, Sunni Insurgents and Al Qaeda fighters all function as a  Guerilla Forces, something that Geneva doesn't fully anticipate.  I may be wrong, but I don't believe that omission absolutely precludes the U.S. from choosing to voluntarily waive the sign requirement, thereby designating and treating them as P.O.W.s affording all the other protections of Geneva.

      Vyan

      •  Yes, I agree. Now check the convention for (0+ / 0-)

        suitable treatment of unlawful combatants, and we arrive at the crux of the issue, as I stated earlier, which is what is the status of the rule of law in the country in question (the US) where the unlawful combatants are to stand for judgment.

        For the court is clear: unlawful combatants face the law of those who hold them.

        Now, most of the rest of the developed world does not permit holding criminals ad infinitum without charges or trial. Most of the rest of the developed world, believing in the rule of law, believes in some variant of habeus corpus and due process, and frowns on kangaroo courts. What those of us outside the US want to know is whether the US still holds to these values which, for most of the rest of us, constitute a major building block of modern civil society and indeed civilization itself.

  •  asdf (1+ / 0-)
    Recommended by:
    wu ming

    if there is evidence, they should be tried in criminal court.  if there is no evidence, they should be set free.  happens every day!  with really icky people!  here in america!

    i believe that obama will get his way.  and americans can sit back (phew!) and be all proud of how nuanced and legal and pragmatic we are.  next problem!

    i find it interesting just how many people can't see future problems/precedent with this solution.

    preventive detention, even if we 'find' a way to make it legal, for crimes that may or may not happen sometime in the indefinite future isn't going to have a happy ending for any of us.

  •  We usually agree but not this time (3+ / 0-)
    Recommended by:
    wu ming, Nightprowlkitty, saildude

    Because many of the kidnapped were not found on the Battlefield, or even in the same country as the war I'm hard pressed to let them be called POWs. Rendition is not done on the Battlefield but on the streets of many cities. When a bounty is paid for turning someone in there is no way to know if many or any of them are the enemy.
    It is too simplistic to just say if we are holding them they must be the enemy. If these war were being fought in a conventional way I would be behind you but because of the tactics used we must pay closer attention to who we are holding and why.

    Grow Marijuana go to Prison, Torture a Detainee to Death and earn a Medal. No wonder people get high.

    by SmileySam on Mon May 25, 2009 at 06:07:45 AM PDT

  •  While it might be convenient to call them POW's (4+ / 0-)
    Recommended by:
    rick, Nightprowlkitty, saildude, SmileySam

    the 'war on terra' is not now, or ever was a real war.

    The Iraq war was a war.  And we declared it over long ago.
    'Mission Accomplished'!

    Certainly we should give them all of the RIGHTS accorded under the Geneva Conventions.  

    But as much as you disdain the 'foot-stomping' of Greenwald and Raddack, You can't 'detain' people without due process forever and still be the America our founders intended.  And since 'the war on extreme fear' isn't a real war, it will never end.  You'll hold these people until they die, because terrorism has been around since mankind was bashing each other with rocks and sticks.

    And if you can't grasp the moral and ethical issues involved with indefinited detention, the most compelling argument is pragmatic.  It only takes another Cheney or Bush getting elected and the exact same 'danger to the US' arguments can be used against Markos, or you, or me.

    Bah. Typoed during acct creation. It's Ezekiel 23:20

    by Ezekial 23 20 on Mon May 25, 2009 at 06:10:25 AM PDT

  •  thanks for a clearer explaination (0+ / 0-)

    I needed to know what the media, left specifically, was screaming about. I heard this speech and walked away with the the quote "rule of law." We must follow the rule of law. Who best to know and abide than a president who taught constitutional law?
    Yesterday, I thought President Obama was in 'trouble', he is going back on his word....listening without knowing...Now I know, I understand. Thanks.

  •  Obama had me at (0+ / 0-)

    The United States is a nation of laws and so we must abide by these rulings.


    We need to get back to bedrock American values like torture and secession. - Josh Marshall

    by AlyoshaKaramazov on Mon May 25, 2009 at 08:05:25 AM PDT

  •  seems to me that Obama (0+ / 0-)

    is merely doing what Bush/Cheney CLAIMED to be doing.  But they were lying.  And the Supreme Court rebuked them more than once.  

    But Obama needs to be more emphatic that he's carrying on policies, but reshaping them to be legal.  If people on the left aren't even "getting it" then it's a failure on Obama's part to make it crystal clear.

    He's got a lot on his plate, but he needs better PR on GITMO et al as he moves along.


    We need to get back to bedrock American values like torture and secession. - Josh Marshall

    by AlyoshaKaramazov on Mon May 25, 2009 at 08:14:16 AM PDT

  •  No, not "SIMPLY" (0+ / 0-)

    The statement that "A Preventative Detainee is simply a P.O.W." is simply wrong. The concept of POW is well defined by international law, as is war itself. It may be possible that Obama can actually define new law that is in conflict neither with the Constitution nor with the international treaties we are party to and which the Constitution declares to be the supreme law of the land, which deals with a stateless enemy in an undeclared conflict, whose fighters wear no uniform and conceal their command structure. MAYBE.

    But there is no assurance that such a law can cover all current detainees who might "endanger the American people". Our laws and principles are not commensurate with the absolute claim that "I am not going to release individuals who endanger the American people." We do allow dangerous people go on principle. That is and must be one of our highest principles.

    Obama has gone too far in his claim that we can lawfully detain everyone currently at GTMO who might endanger the American people.

    •  Like Germany in WWII (0+ / 0-)

      al Qaeda declared War on US in 1998. 1996...  We accepted that state of affairs in 2001 with the AUMF against Afghanistan in response to the 9-11 attacks.  War was declared, however messily, now we need to start honestly dealing with that situation and treating detainee accordingly (something that Bush refused to do since it would have afforded them Geneva protetion and his program of Bully-Boy Rough Treatment would have left - still does leave - him liable to War Crimes Prosecution)

      Vyan

      •  Piffle (0+ / 0-)

        Every time you say that they are "simply" POW's or that al-Qaeda is like Germany you weaken your argument. A wandering stateless loose confederation of independent and ill-defined terrorist organizations, is just nothing like Nazi Germany. Pfui!

        Tell me that al-Qaeda is a kind of threat that is new to international law and treaty, if not to the world, and I might believe you and believe that we must craft new law to deal with it. Tell me that al Qaeda and the Taliban are like the "Barbary pirates" and North African rulers whose legitimacy we did not recognize, and I might believe you.

        But, please, in as good a diary as this one is, do not throw out these silly over-simplifications. You are doing so much better than that in the bulk of what you say.

        •  I don't think we have to craft new law... (0+ / 0-)

          I think, for the most part existing Federal Criminal Statues, Geneva and the Laws of War already apply.

          What we actually need to do is establish a framework to implement them, as opposed to try and work around them the way that Bush tried to do.

          Vyan

          •  The GC certainly don't (at least directly) (0+ / 0-)

            The Geneva Conventions are specifically among and for the states, and center all of the recognition of legitimacy and law on acting in the name of states and under their flags. When the Taliban was the government of Afghanistan, the GC would have applied to them. As stateless organizations, they are really pretty well beyond the core of the GC.

            Still, we are bound to the GC and each of the detainees are citizens of their respective states, states not involved in a war with the US. That puts us in a very strange and difficult position.

            I think Obama is correct that we may have to do some very deep thinking about exactly what we are going to do with many of these folk, caught up in a conflict that is in some respects like a war, and with some of these people who are in many respects much like people at war with us.

            I meerely disagree with his assurance that what we do about these people allows us to confidently say that we will not release anyone who is a danger to the American people. We need to man up and admit that as we work through this process, we may have to let the guilty or dangerous go free, even if it puts us at risk.

            •  As even a Militia of Citizens (0+ / 0-)

              fighting against an invader (US) the Taliban could be covered by the GC under Article 4 and granted POW status as I discussed in this comment.

              Whether they will or not is something we should allow the possibility for, then let a competent judiciary decide with all appellate and habeas protections intact.  Ultimately the courts may side with you - or they might not, let let them have a chance to figure it out without prejudging every single case prematurely.

              Vyan

              •  I don't know what all the cases are (0+ / 0-)

                let them have a chance to figure it out without prejudging every single case prematurely.

                I don't believe that I am "prejudging every single case". And in fact, what I object to is the blanket statements made both by you and the president.

                It is overly simple to claim tat they are "simply POWs" or that there is no choice between protecting Americans vs protecting Terrorist Suspects and that we have to do both. That prejudges. There may well be very very bad man against whom we can legally do nothing, that we may have to either release or hold in complete violation of what we believe.

                For Obama to say, and to repeat that "I am not going to release individuals who endanger the American people." is to give an assurance that he cannot be certain he will fulfill without sacrificing our principles. THAT pre-judges.

  •  Rec'd for the dicussion (0+ / 0-)

    Not for full agreement.

    You make good points....except, lol, for this one.

    It should also noted that nearly two years ago in 2007 the newly minted commander in Afghanistan, Gen McChrystal officially announced that al Qaeda in Iraq has been Defeated.  Iraq still has lots of problems but that conflict has ended. Abu Musab al-Zarqawi, the head of AQI, is dead.

    A "war" is not over when a geeneral declares it over. It is over when the Commander in Chief declares it over. Obama has not done so. Or I suppose, in a legally declared war, when Congress says it is.

    If it IS over, why hasn't he said so?

    Why haven't we released the prisoners we still hold there?

    Let me end by saying....

    It is an incredibly bad situation, a "mess," and no one, not even Obama knows what he will end up actually DOING about it. But all discussion of it is good, imo. We are part of the solution every time we talk about it.....rationally.

    •  Because Bush had already said it was "Over" (0+ / 0-)

      in 2003!  (re: "Mission Accomplished")

      But seriously, the point I was actually making was simply the conditions on the ground in Iraq, Afghanistan and Pakistan will not remain static forever.  The larger view, besides a little snark about Bush and the big sign, is that our position in Iraq never really was about fighting al Qaeda, it was initially to unseat Saddam, then following that to quell the insurgency.  

      We accomplished the latter by hiring them as security sub-contractors.  Now it's up to the Iraqis to deal with them, and their own overall security on their own - which they've voted to do, and we've agreed, by 2010. Once that occurs, all theaters of the Iraq War will effectively be over.

      At that point any and all Iraqi detainees, except for those who've committed crimes should be released.

      Vyan

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