The link did not work for me, so I cannot read the article to which you cite. However, your argument does not follow from the facts you cite. You have confused people being detained on a battlefield with people being charged with a crime. As I understand it, the people who have been charged and who are to be tried by military commissions are being charged with specific crimes--this is separate and apart from their mere status as detained combatants. If we assume (counterfactually) for a minute that all of the detainees were lawful combatants subject to the full protections of the Geneva Conventions afforded to prisoners of war, they still can be held for the duration of hostilities simply for that. The commissions are about something else. So that fact that these people were not charged to be tried by a commission says nothing about whether their detention as battlefield combatants (lawful under the law of war or otherwise) was proper.
Were their people who were detained by the US who were not combatants? Likely. Although it is instructive to remember that some (perhaps all) of the Chinese Uighur prisoners to whom you refer were in Afganistan receiving military training at a terrorist training camp--that they ultimately were determined not to have been combatants does not mean that they were innocent shopkeepers swept up in this massive, corrupt dragnet which you appear to claim existed.
Have there been problems with how the US has handled this matter. Most assuredly. Nor is there a good answer to the question of how long you detain a combatant in a war which may go on for decades--it clearly is lawful (IMHO), but that does not make it just, reasonable or smart to do. But I think your argument here does not follow from the facts.
I wish I could cite a source right now, but I believe it is true that well less than half of the men detained in Guantanamo were captured on a battlefield. The majority were handed over to the United States by Afghanis or Pakistanis in return for bounties.
I'm not a military lawyer, but I've never been impressed with the argument that those individuals that we DID capture on a battlefield shoule, somehow, not be afforded the Geneva protections. So: impress me.
mrg, TAL was citing the Seton Hall law study, which in turn was citing only the government's own published reports. These indicate
"Eight percent are detained because they are deemed 'fighters for;' 30 percent considered 'members of;' a large majority -- 60 percent -- are detained merely because they are 'associated with' a group or groups the government asserts are terrorist organizations. For 2 percent of the prisoners their nexus to any terrorist group is unidentified." The Seton Hall study also provides some insight into how most of these prisoners were captured -- they were turned over to the military in exchange for cash.
Note that "most". The Seton Hall study (pdf) is here.
So, LB has not "confused people being detained on a battlefield with people being charged with a crime." And if she had, we would still need to have a discussion about the "quaint" Geneva Conventions, oh yes we would.
Are we behaving badly by holding them indefinitely? Most assuredly. Are we acknowledging any law at all? Oh mercy me, no. Is there any defending this practice at all? 'fraid not.
I'm not a military lawyer, but I've never been impressed with the argument that those individuals that we DID capture on a battlefield shoule, somehow, not be afforded the Geneva protections. So: impress me.
I suspect that I will not impress you, but to begin with, you have restated what I wrote in a way that fundamentally changes the issue. No doubt this was unintentional, but I note that in this debate, this is a standard rhetorical move from people who are lawyers or who otherwise know better.
What I wrote was lawful combatants subject to the full protections of the Geneva Conventions afforded to prisoners of war. The key words here are lawful, full protections and prisoners of war. The Geneva Conventions provide different and much more robust protections to prisoners of war who meet certain citeria such as fighting in uniform as part of an organized military force, than they do to others. When you think of POWs being obliged only to divulge their name, rank and service number, you are thinking of the full Geneva protections accorded to lawful combatants. Combatants who do not meet the criteria for full POW status have a much lower lever of protection under the Geneva Conventions. While there is some debate on the subject, I think most people who study the matter agree that they are entitled only to the right to humane treatment under common article 3 of the conventions. And, of course, under international law, they may be treated as criminals for the acts they commit. Hence the military commissions which have been convened for some of the detainees.
So, the issue is not (IMHO) whether or not the Geneva Conventions apply, it is how they apply.
I really need to get some work done today, notwithstanding that this discussion is more interesting. So, I have not read the whole study you cite. I do note, however, that it is written by two lawyers who are representing these combatants. While my own work is, of course, an exception to this rule, in general, one does not look to the work of a party's counsel for an objective analysis of the law or the facts.
Idealist, they're counting noses. This is not "analysis" of any kind, let alone opinion or a brief. They're just counting noses. Here is the nose breakdown: "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."
In the bowels of Christ, man, consider that the talking points may be wrong.
5: Well, I'm not a lawyer, so I'm going to make that kind of restatement-mistake from time to time. Apologies in advance.
I don't think my point is much weakened, though, if we accept the Seton Hall study. A huge percentage of people in Guanatanamo don't seem to be there for any good reason.
While there is some debate on the subject, I think most people who study the matter agree that they are entitled only to the right to humane treatment under common article 3 of the conventions. And, of course, under international law, they may be treated as criminals for the acts they commit. Hence the military commissions which have been convened for some of the detainees
So, does the evidence we have from Guantanamo indicate that the detainess have been treated humanely?
Are the military commissions, as formulated by President Bush, an appropriate vehicle for dealing with accused criminals? (I think it's important to note that you seem to have jumped to "acts they commit" rather than "acts they are accused of committing.")
A lot of things bother me about GTMO, to put it mildly, but the "duration of hostilities" line particularly bothers me. Which hostilities? Against the Taliban? Against Terror itself?
You have confused people being detained on a battlefield with people being charged with a crime.
If there is confusion on this point, that's hardly LB's fault. One of the well-known problems with the 'war on terror', at least in the discussions months ago, lay in figuring out what constituted a 'battlefield' and what could possibly constitute 'end of hostilities', not to mention how to construe 'prisoner of war' when there's not a foreign government with soldiers in easily identifiable uniforms.
And it should give anyone pause if those definitions are elastic enough that pretty much anyone can conceivably be held without charges.
As badly as I feel for these people, they aren't American citizens. Padilla is. Until someone explains away that raping of my basic sense of citizenship and what I can count on my fellow Americans not to stand for, I can't really sort out how I feel about the treatment of non-citizens. I'm too angry.
instructive to remember that some (perhaps all) of the Chinese Uighur prisoners to whom you refer were in Afganistan receiving military training at a terrorist training camp
Uh, is there an international law against this? Because it seems like we don't have the authority to enforce U.S. laws when we're, you know, not on U.S. soil.
how long you detain a combatant in a war which may go on for decades--it clearly is lawful
To me this argument is lacking in that Congress never actually issued a declaration of war.
Are the military commissions, as formulated by President Bush, an appropriate vehicle for dealing with accused criminals?
They are a traditional way of doing so. For whatever reason, they have not done well. Indeed, I spent all day Saturday at a conference on jurisprudence and the war on terror and there was a panel on this very subject. Interestingly, all panelists, even the law professor who was an advisor to detainees' defense counsel, seemed to agree that the military commissions conceptually were a reasonable and appropriate way to address this matter. However, they also all seemed to agree, including the military lawyer who had been involved on the prosecution side, that they had not gone well and that the process needed to be changed. Furstratingly, nobody talked about why they had not gone well.
I think it's important to note that you seem to have jumped to "acts they commit" rather than "acts they are accused of committing."
You misunderstand. They can only be subject to criminal punishment for acts they commit. They are being tried by commissions for acts they are accused of committing. The detention is not the punishment for the crimes of which the detainees being tried by commissions are being charged, it is an incident of war. The crimes being tried by the commissions are supposed to be for acts beyond being, in general, a combatant. Here are charge sheets commissions.
I think we have fairly internalized the right to a speedy trial, and feel intuitvely that it is a human right. That these people have been held for so long is aggravating. It is hard to understand why they have been "detained" for so long. And, despite that they are counsel, the anger and resentment of their lawyers only fans our aggravation, even grief, over this.
And, certainly, there is inconvertible evidence that they have not been treated humanely. The government acknowledges the use of stress techniques on the detainees. And there is (not unpersuasive) circumstancial evidence that there has been abusive treatment beyond even those techniques.
The detention is not the punishment for the crimes of which the detainees being tried by commissions are being charged, it is an incident of war.
Fair enough, but what about a process to challenge the detention itself? Especially for those detainees (why can't we say prisoners?) who weren't picked up in combat? I'm sure I'm confused; I seem to remember that the CSRT are meant to take the place of habeus reviews, but those don't seem to be going any better than the commissions.
It's probably helpful to have two different arguments: one about the proper way to deal with these people in theory, and one about the asinine way it's been done in practice.
I think the question here is: Have we arrogated to ourselves the right to lock people up as long as we want on shit evidence? That can't possibly be right morally.
The speedy trial is part of that; as long as these folks don't get a speedy trial they're locked up. It's a sentence first, verdict afterwards situation. And it doesn't matter if unlawful combatants are not afforded these rights, because the declaration that these prisoners are unlawful combatants is also unilateral and in some cases clearly based on shit evidence.
(And yes, SCMT, it's just as disturbing that we are doing the same thing to U.S. citizens arrested on American soil.)
No, Tim is right, it's way more disturbing. But it's all of a disturbing piece.
1. If we catch people on the battlefield, we don't have to treat them to proper criminal procedure.
2. If we catch people on the battlefield who are not proper soldiers of a proper country, we don't have to treat them to the Geneva Conventions.
3. Everywhere is a battlefield.
4. We can catch people anywhere and lock them up without treating them to proper criminal procedure or the Geneva Conventions.
It's probably helpful to have two different arguments: one about the proper way to deal with these people in theory, and one about the asinine way it's been done in practice.
Without agreeing with asinine I think that you are quite right. Several of the serious problems with the whole debate on this topic are that people want to argue about facts which they assume rather than know and that there is a desire to make grand accusations--such as "the Administration is violating the law" or that it is "evil"--when a more reasonable discussion might be had if the basis were: "Well, this may be legal, and it may even have been done with the best of intentions, but it is not working, seems wrong (even if legal), and is not advancing our national interests."
Part of the reason I am often the contrarian here is that there is, to me, a huge gap between the grand (often baseless, IMHO) claims of evil intent and lawlessness, and the much more reasonable question of whether what we are doing is the best policy. We likely still will disagree on some things, but it would be a much different conversation.
For example, I will agree that the detentions at Guantanimo and elsewhere have been badly handled to the detriment to our national interests and have resulted in many detainees being treated worse than they should have been--both on practical and moral grounds--and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
The United States is currently in schism. When a nation deals with people’s of another nation in a way which directly contradicts the treatment of their own people, they experience an ideological two-sidedness that demands resolution. In the end, the United States will have to adjust what constitutes domestic justice policy to conform to the ideals of their foreign policy, or adjust its foreign policy to conform to the ideals its domestic policy. Pick one, and go.
From my own moral point of view; arguments which question what rights prisoners have are irrelevant. Rights cannot be given; only taken away.
Idealist, that last paragraph of your's is wise and judicious, and I for one appreciate your saying it. I'm not surprised you think this, you've said as much now and then, but more casual readers may not pick up on this.
I appreciate what you bring to our discussions, and want to commend your tenacity and even temper; you're the farthest thing from a troll.
But I do want to ask this: accepting that there is often a legal, strategic and moral basis for actions which superficially resemble those this administration has taken, so that at each point a moral and competent defense of such actions in the abstract is appropriate, what is wrong with these guys in your opinion? For myself, a respectable government with principles very different from my own is very easy to imagine, I feel I've lived with them most of my life.
But I sense a difference, not entirely due to the situation, in character, responsibility and judgment between this and prvious administrations. Do you?
Idealist: I think at this point, `the best of intentions' is really too much of a stretch. We can certainly argue that a lot of the problems with the approach are due to incompetence rather that `evil' (a rather difficult term to define, anyway). However, any argument along the lines of: `hey, it was a difficult call and we tried our best' lacks credibility now that more is known (and yes, we don't know everything, of course. But we know enough).
To me the most plausible argument seems to be that Guantanimo was set up in the heat of the moment without really thinking it through, and the process got out of hand. Once faced with this problem though, the administration couldn't accept that it had made a mistake, so dug in its heels and attempted to fabricate a rational construction. That sort of belicose posturing is a characteristic of this lot, and really undermines national interest, as you say.
CCP, that's silly. Political rights are human inventions that vary from country to country, based on the legal systems. They are not immutable, universal truths.
29: Still, it would be a stretch to say that women had the right to vote before the XIXth amendment. Better to say that they should have had the right? Too much equivocation on the meaning of 'right'.
When a nation deals with people’s of another nation in a way which directly contradicts the treatment of their own people, they experience an ideological two-sidedness that demands resolution.
I hope you're wrong about this, for it means that every government on the planet is fundamentally unstable. F'rinstance, I can't think of an example of a government that doesn't distinguish between domestic and foreign policy, or that treats foreign nationals in exactly the same way as citizens.
How do we know what our full list of rights, including those both recognized and un-, are?
Work out a completeness result for the appropriate deontickish
logic, enumerate all the valid formulas, and hope your favorite rights pop out before the end of the world.
At the same time, there have been, since the French Revolution at least, attempts at defining or declaring universal human rights, even admitting that local circumstances vary widely. And this is something I believe in, and it is one of the defining characteristics of a liberal to believe that there are such things.
Is there a full list? Imagining that there is; the question of "how do we know what each of us has a right to" has yet to be answered. Many have tried, and contunue to do so. At the moment, I think our most pressing problem is resolving contradictory efforts to answer this idea of an authoritative list of rights. This problem is also unanswered.
But I sense a difference, not entirely due to the situation, in character, responsibility and judgment between this and prvious administrations. Do you?
I know this will open me up to significant derision here, but no, not really. There are things they have done well and things that they have done very poorly, but I do not find them to be that unusual in terms of character, responsibility and judgment, paticularly given the situation, except as follows.
I think that they have been less likely to be swayed from what they view as the correct path by fears of public opinion--which is good in a way, but they have at the same time ignored the need to maintain national and international support for what they have done, which actually is a huge--potentially fatal for the enterprise--mistake. It is not sufficient to be right, you have to be seen as being right. It is not just bad PR to not care about showing that your actions are justified, it is bad leadership in a situation such as this. Without support, we will simply withdraw. That will make most of the sacrifices made so far a waste and will make the world much worse off than if we stay the course (while being willing to learn from and correct, our mistakes).
Our loss in Vietnam is an excellent example of the results of thinking that the justice of your cause will be self-evident. [I was three paragraphs into a long explanation of this, but deleted it--I really have to kick the Unfogged habit for a few hours and get some work done.]
it is one of the defining characteristics of a liberal to believe that there are such things.
Ooh, I don't think so at all, idp. There are liberal ways to come up with lists of rights without resorting to a priori, natural-rightsy kinds of truths. Pragmatism works that way, doesn't it?
Okay, seriously, there are? The only thing they've done well that I can remember is cut taxes. Isn't it dsquared who issued the Bush administration challenge, i.e., think of a major Bush policy initiative they haven't bollixed up? I would love to see a link to that.
Yes and no. The problem is that of the U.S. is "human rights" in general. This isn't true of all nations. Nations whose domestic policy isn't founded on human rights can treat foreigners however they want without contradicting their principals as a nation: hence, no schism. That said; yes, all governments are unstable to one degree or another. This particular American schism isn’t necessarily fatal, but does compel it as a nation to bring domestic and foreign justice together ideologically. This is already happening. I think domestic observance of human rights is diminishing, while treatment of foreign nationals is improving somewhat.
32:
The idea of "right" *is* something that is universal. That's what *right* means. Treating it as a dogmatic term that has no underlying meaning beyond its beurocratic utility is a solution to the problem of resolving conflicting accounts of universal rights, not an argument contrary to the idea of a universal right.
Well, that's what I meant. I.e., they said they would cut taxes, they cut taxes. Now, if you want to say, they said they would cut taxes in such a way that the ordinary American would be better off, then you would have to say, they have not done that well, either.
39:
Don't have a problem with doing it that way, only have a problem with the Burkean notion that the only rights are the home-grown variety. I find attempts to declare universal entitlements to be fruitful, with all of the hypocracy, uninforceability, yada, yada.
I will agree that the detentions at Guantanimo and elsewhere have been badly handled to the detriment to our national interests and have resulted in many detainees being treated worse than they should have been--both on practical and moral grounds--and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
Aw, you're no fun anymore.
Someone throw the BAA signal.
I'll throw out one (the only?) pro-gitmo argument: Some prisoners have valuable information, even after all of these years, and it is unfortunate but justifiable to lock up a few innocents to get at the intel. (Presumably, all the prisoners have to be sifted through in order to get the valuable info.) While this argument may seem morally suspect from certain viewpoints, it is sensible from the position of those who have been given the responsibility to safeguard Americans, but are not responsible for safeguarding the human rights of anyone else.
I have to say that I think this argument is unlikely. But it's not actually one that I, or just about anyone else, can evaluate. Which is probably why I see it so much.
The idea of "right" *is* something that is universal. That's what *right* means.
Well, no, that's one flavor of right. Some rights are not universal, or natural. The idea of right per se is better expressed as a claim that can legitimately be asserted irrespective of the power held by the person asserting it. Some political theorists regard rights as conclusions, not as premises.
Okay, now a political philosopher can explain why I'm wrong.
If I am granted stock options, I have the right to sell them at a pre-determined price, regardless of the market valuation at the time of the sale. This right was not endowed to me by my creator.
There are few things all political philosophers worth their salt can all agree on, but I think one of those things is that CCP has it exactly backwards. Rights can not be taken away b/c we do not possess any by nature. Rights can only be given.
Look, there's at least two senses of the word 'right'. One that refers to the respect and dignity someone deserves in virtue of being a human person, the other that refers to 'rights' as some kind of contingent contract-based thingy between the governing and the governed. Permutations abound.
Sometimes there is overlap. Sometimes there isn't. I don't think saying that I don't have the right to vote in a French election means that France is ignoring a fundamental aspect of my dignity. I don't think requiring a student visa from a foreign student is violating their rights, either. But in both instances it's correct to say a) I don't have a right to vote in France and b) the foreign student doesn't have a right to study in the U.S.
I forget where I was going with this, but short form is that there's lots of permutations of legal rights that could uphold moral rights, and it might be perfectly kosher to say that the Guantanamo detainees have no rights recognized by the Geneva Convention and still have it be immoral to treat them in the way they've been treated. (Fucking Moorean open questions.)
The right to vote mentioned above is a good example of a right that could not possibly be a universal, pre-existing right of all people -- since it is meaningless outside of a democratic government, which is not a universally pre-existing condition. I would say the XIXth Amendment totally granted the right to vote to women. They did not have that right (even unrecognized) before ratification of the amendment, and they had it afterwards.
However I would allow the possibility that there are other sorts of right. Perhaps the right to be free of torture is a universal right -- though one that goes frequently unrecognized. (When I say "universal" here I am pretty much limiting the universe to humans living on the earth later than about 50 years before my birth.)
Isn't it dsquared who issued the Bush administration challenge, i.e., think of a major Bush policy initiative they haven't bollixed up? I would love to see a link to that.
I'm not a political philosopher, though, because the people in it make me want to play whack-a-mole with my calabat. (My complaint about philosophical ethics is largely the same. "Suppose a trolley were to..." WHACK WHACK WHACK. "oof.")
A "legal right", in this sense, is really a legal privlege. True, it's an accepted usage of the word as beurocratic recourse, but a usage that stems from the political desire to attain privleges by masking them as rights - hardly a meaning that overrides the moral pinnings of the word. That said, Micheal's observance that there may not be any such thing as moral rights is certainly a possibility. It could also be that everything that can exist has a right to do so.
"I think that they have been less likely to be swayed from what they view as the correct path by fears of public opinion- ..."
Add to that: or swayed by expert opinion, or facts, and I think we are closer to the truth. This lot are idealists, if nothing else. I suppose if one agrees with their ideals, this doesn't seem like such a bad thing.
Even if one did agree with their ideals, there would still be the effectiveness issue. I do think there is an extraordinary disinclination, perhaps traceable to Bush himself, to admit mistakes, or any outside opinion at all.
That will make most of the sacrifices made so far a waste and will make the world much worse off than if we stay the course (while being willing to learn from and correct, our mistakes).
Our sacrifices there were always going to be a waste. There was no basis to think we could pull off a mission of this sort. Wolfwowitz, et al, were opertating in a fantasyland devoid of historical context.
Iraq was never within our capabilities. Modern analagous conflicts like Bosnia gave us a good idea of what kind of troop levels are required to execute this kind of mission. A country the size of Iraq requires far more troops than we have on active duty. Shinseki got up in front Congress said exactly what we'd need, several hundred thousand troops. In other words, far more than we have. The mission was hopeless before it began. One way or another, we're leaving that country. It's only a matter of how many casualties we incur before it happens.
Note that "most". The Seton Hall study (pdf) is here.
Actually, the Seton Hall study does not--and cannot--demonstrate that most detainees were turned over for cash. It simply insinuates it. It is a classic piece of advocacy (who would expect advocates to produce anything else?).
I do not find the raw numbers they cite particularly shocking in context. One of the problems here is that they want this process to be something other than what it is. They want a level of proof and certainty of evidence that is impossible to acheive on a battlefield (naturally, they are advocates trying to show why their clients should be set free). However, to look at their report uncritically, you have to ignore both the facts of war and the authors' roles as advocates (which is obvious in the paper--my favorites are where they conclude that 86 percent of the detainees were captured by the Pakistanis or the Northern Alliance when the data say that only 47 percent--less than half--of the detainees were so captured (they do this by assuming that all of detainees for which they did not have data must be presumed to have been captured by someone other than the US) and where they conclude that 48 percent of the detainees were affiliated with Al Qaeda or the Taliban when the data say that 89 per cent--more than twice that number--are so-affiliated (they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded).
Wait, do you seriously find unreasonable the argument, "Since the government presumably knows which detainees were captured by United States forces, it is safe to assume that those whose provenance is not known were captured by some third party."?
I mean, because to get there, you have to assume the government is less likely to know when someone was captured by US forces than it is to know when someone was captured by someone else. Because, among those whose captors are known, US forces account for only 8% (as opposed to e.g. 68% for Pakistan).
they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded
I think you're on sounder ground here, but I think they're quite right to say that the category AQ or Taliban is fishy. I mean, if they've been trying to prove it on you for four years and can't say if you're one or t'other, what do they know?
I think, Idealist, that we'd all be better off if you accepted your own invitation to focus not on what is minimally legal, but on what is an optimal policy. A policy that leads to the indefinite incarceration of only marginally dangerous characters, under circumstances that make us look like hypocrites, falls pretty far short of optimal. (I'd go farther: the policy of isolating the prisoners from the moderating influence of their families, and instead leaving them to radicalize eachother isn't just sub-optimal, it's criminally negligent).
If only 47% of prisoners were captured by Pakistani or NA officials,* this is still enough to mean that the discussion can't start off with 'we don't want to entangle our soldiers in excessive regulation on the battlefield.' We can't talk about battlefields at all, when talking about the whole program, but only when talking about classes of prisoner within the program. And letting go of the sloppy thinking that they're all combatants from a battlefield makes one start to think about what maybe we ought to be doing differently. An unarmed guy who is arrested by Pakistani authorities in a house or on a public bus in Pakistan isn't much of a combatant, especially if, even after all the investigation you can do, you can't actually place him under arms on a battlefield. That there are a great many such people in the prisons at Guantanamo is obvious to all -- and even if there are some real combatants, the government's failure to sort them out long since is unforgiveable.
The failure of the Commissions stems, in my view, from a couple of things. First, if the government would just hold the trials under the UCMJ, the challenge now in the Supreme Court (and those in district courts awaiting the Supreme Court's decision) would have been moot. If the government is going to try people for specific crimes beyond engaging in combat, why not use law/procedures readily at hand? Whether or not the Constitution or Geneva Conventions require it.
There's plenty of room for intelligent discussion on how prisoners should be dealt with. So long as the administration and its supporters are caught up in trying to prove that they aren't evil, and that no changes should therefore be made, the conversations can't really take place.
* I understand that the authors of the Seton Hall report are making revisions to account for new information now available. I wouldn't expect the number to change much -- you have to recall that unlike Iraq, much of the ground fighting in Afghanistan was done by warlords and their followers. While it makes sense to ally for convenience with such people, I wouldn't afford their followers the same kind of presumptions I'd allow our own soldiers. I've only read 4 CSRT files, two classified and two unclassified. It's an unrepresntative sample, to be sure, but 3 were captured by Pakistanis in Pakistan, and one was sold by Taliban guys to Northern Alliance guys.
(they do this by assuming that all of detainees for which they did not have data must be presumed to have been captured by someone other than the US)
Can you explain your objection to this assumption? I can't see how we could be missing data on who captured a prisoner if they had been captured by the US in any but a very occasional fluke case -- given that we're talking about 44% of the detainees, we're not talking about the occasional fluke. (See p. 14 of the SH report.)
And here:
where they conclude that 48 percent of the detainees were affiliated with Al Qaeda or the Taliban when the data say that 89 per cent--more than twice that number--are so-affiliated (they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded).
I simply don't understand where you got this from the report. On page 12, fig. 9, there's a chart showing alleged affiliations which shows 82% of prisoners as being accused of affiliation either with the Taliban, Al Qaeda, or both. The only thing similar to what you described was the report writers' decision to treat the 7% of prisoners accused of being "Taliban or Al Qaeda" as part of the 'other' category in that same figure, on the ground that if after four years in detention, the US couldn't figure out which organization it was accusing the prisoner of being a member of, its evidence couldn't be much. But that decision affected 7%, not 41%, of the prisoners studied.
There are several problems with claiming that it's legitimate to detain combatants on the battlefield indefinitely as an incident of war without strong evidence. First, as someone else pointed out above, there is no declared war against, well, anyone, but not against Al Qaeda. If we overlook that no such war has been declared, there is absolutely no limitation on who may be detained under this theory -- the battlefield is worldwide, and the war can go on indefinitely. This sort of expansively defined war is, to the best of my knowledge, a new concept in the law of war as it applies to the taking and detention of 'combatants' on the 'battlefield', and I do not believe that one can reasonably say that indefinite detention in such a 'war' is legal under the law of war as it has existed in the past.
With respect to the Taliban, there was at least, and is still going on, combat of a type much more closely resembling an ordinary war. Here, though, the concept of indefinite detention, until hostilities end, for ordinary soldiers is simply unjust and inequitable. The Taliban was the government of Afghanistan, and had a substantial conscript army. Thousands of men who fought in that army are now walking free in Afghanistan: we didn't detain the whole army because there are some Taliban forces still fighting on, we let them surrender and go about their business. Unless they happened to get unlucky enough to get swept up into Guantanamo, at which point we're claiming to be allowed to hold them forever. Whatever the legal arguments here, it's simply inequitable, unjust, and useless.
(I have to run and eat dinner with a bunch of lawyers, many of whose pictures may be found in the dictionary next to the word 'tool'. I'll check in again later.)
Wait, do you seriously find unreasonable the argument, "Since the government presumably knows which detainees were captured by United States forces, it is safe to assume that those whose provenance is not known were captured by some third party."?
Yes. This is pure argument. The authors present no evidence regarding why the data was unknown, and I can think of a number of reasons why it could be missing that would make their assumptions wrong. For example, the data simply might not have been collected at some collection points. Having significant theoretical and some practical experience with war, I think this is a more likely explanation than the one the authors present (though neither explanation is satisfying) Do I know for sure why the data is missing? No. But it's clear that the authors of the report do not either and yet they have nonetheless decided to choose an assumption that skews the data radically in their favor.
I think they're quite right to say that the category AQ or Taliban is fishy. I mean, if they've been trying to prove it on you for four years and can't say if you're one or t'other, what do they know?
Maybe CharleyCarp can tell us, because he seems to possess more facts than I, but again, the authors do not tell us the factual basis for their assumptions, and their assuption is weak based on the facts we do know. A much more likely assumption is that the data submitted is what was known when the CSRT was done early on--not the data known today.
I think, Idealist, that we'd all be better off if you accepted your own invitation to focus not on what is minimally legal, but on what is an optimal policy
Come on. This is a bit much. I am responding to what I see as claims that are factually and legally not well founded, and in the course of that suggest a different, more productive conversation, and now you want me not to address the factual or legal baselessness of the claims. Your comment is civily made, but the natural result of it is "Shut up, we will make whatever factual or legal claims we want and you should not talk about them." So sure, you'd be "better off" if I kept my criticism of claims made here to myself in the sense that the discussion would be kinder, gentler and more clubby. I leave it to the commenters here to tell me to go away. Maybe I can go comment on Gary Farber's blog.
I simply don't understand where you got this from the report.
Page 8 (fig. 1) shows that 89 percent of the detainees were associated with al Qaeda, the Taliban or both. Then they write that "if, after four years of detention, the Government is unable to determine if a detainee is either al Qaeda or Talilban, then it is reasonable to conclude that the detainee is neither." You are right that they do not write this up in their conclusions.
there is no declared war against, well, anyone, but not against Al Qaeda
The Supreme Court begs to differ. In Hamdi, the Supreme Court wrote:
The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.
As you know from Con Law in law school, there is no particular form for a declaration of war. I think the courts have uniformly recoginized the AUMF as having the effect of a declaration of war.
simply inequitable, unjust, and useless.
I do not agree with the absoluteness and strength of your claim, but I do agree that the approach we choose did not work well for a variety of reasons, both humanitarian and practical. As you note in your post, we just decided to release a bunch of people. I would agree that it would have been much better to have done this differently and earlier, but I think it proves conclusively that we are not going to hold all of them indefinately.
Oh, and another thing I wanted to say about Commissions is that you have to look at (a) who the defendants are and (b) what the allegations are. Charging Salim Hamdan with conspiracy to commit terrorism because he was UBL's chauffeur, and loaded weaponry in the trunk in the course of his duties, just isn't all that big a deal. But this is the kind of thing the Commissions are seeing. The fish are small, and the conduct, of the actual defandants, isn't all that compelling. (I haven't read all the charge sheets, but the ones I looked at weren't a very big deal). Part of this is because the really important guys aren't at Guantanamo. The CIA has the big fish, and doesn't give them to DOD unless and until they've gotten all they can. A trial of KSM would probably be 'satisfactory' for prosecutors. But it'll never happen, because the way he's been treated can't be presented to any forum outside the Executive. (And by making Commission verdicts reviewable at the DC Circuit, Congress has made it certain that people not in the tank would have an opportunity to see the evidence.)
The last thing I wanted to say about Gitmo that strikes me as seriously short of optimal is the criteria for release of prisoners. Up to now, and no one outside DOD really knows what the latest news stories are about, the surest way to guess who would be released is not to look at the charges against them, or the assessments of their intelligence value, but at their citizenship. If you're a citizen of a country that has and will use political leverage, or a government the US needs to bolster, you may well get to go home, no matter how many times you've told your cellmates you hate all Americans. Call it a kind of Rovism -- politics swamps policy, again.
Idealist, I didn't mean that as a 'shut up' -- but as a 'you're right, let's look through the right end of the telescope.' Of course I invite you to disagree with anything I write -- although if you're going to disagree about whether I've read 4 CSRT records, I'd consider that an invitation to discontinue. I agree with you about the AUMF/declaration thing, btw, and don't begrudge you feeling you have to respond to that argument.
The government has a lot more information on each prisoner than it has made available to the authors of the Seton Hall report. Does it know how each person came into custody? Quite likely, as the classified files I've seen show that every effort has been made to comprehensively trace all movements of the prisoner from their hometown to point of capture. But the unclassified returns often don't say much about this. Many don't even give names, and some that do give wrong names. I think one should consider the SH document a very rough draft of history -- factually correct as far as it goes, but definitely only a piece of the elephant.
This is completely the fault of the government. It can and should be declassifying vast batches of information.
I would guess that the government has better data from which one could tell whether someone is said to have been associated with either the Taliban or AQ than it has released. Obviously, these categories aren't mutually exclusive. It's sloppy, though, for the government to say it's basing a decision on 'one or the other' without trying to distinguish. And probably bad policy, because the orgainzations had/have very different purposes.
CSRTs were in fall 2004 and winter/spring 2005, by the way, and the government had had years to learn whatever they could from the prisoners by the time they conducted them.
Yeah. At this point we really don't have anything to talk about on this point -- if 'we have this guy in custody, but we don't know where he came from, maybe we captured him and forgot to write it down, but nonetheless we know enough about him to be sure that we need to keep him imprisoned for four years or more' sounds like a reasonable possibility to you, I can't picture an argument that would change your mind.
Page 8 (fig. 1) shows that 89 percent of the detainees were associated with al Qaeda, the Taliban or both. Then they write that "if, after four years of detention, the Government is unable to determine if a detainee is either al Qaeda or Talilban, then it is reasonable to conclude that the detainee is neither." You are right that they do not write this up in their conclusions.
(A) What they say certainly sounds reasonable to me. (B) It applies to 7% of the detainees, not 41% as you said in your prior comment.
Given that we're blowing $1 billion+ per week in Iraq, giving each of these guys, say, $100,000 would be chump change in the scheme of things. But I'm sure it won't happen.
I think the courts have uniformly recoginized the AUMF as having the effect of a declaration of war.
Nope. To quote Alberto Gonzales (not something I often do) "There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force." http://tinyurl.com/l83qo
On the policy points you make, I think we disagree on a few things, but not by a huge amount.
I think it simply is unworkable to turn the commission process into regular trials. You are talking about people and evidence collected on foreign battlefields. Adopting the rules of criminal procedure from courts-martial or federal courts would make it impossible to have any trials at all for a raft of reasons, including chain of custody rules, hearsay rules, the use of classified evidence, etc. And you think the process has been slow now--try putting it in Federal Court.
So long as the administration and its supporters are caught up in trying to prove that they aren't evil, and that no changes should therefore be made, the conversations can't really take place.
There is much to this, but only if we add its complement--so long as the administration's opponents are caught up in trying to prove that the administration is corrupt, dishonest and evil, and that everything done was wrong, the conversations can't really take place.
78 seems mostly right based on what I know, but I am not sure what you do about it in the real world that makes things better.
re: 79
Of course we want more information, but the Government is properly reluctant to give it up. It has intellegence value to our enemies. Contrary to what seems to be the conventional wisdom here, intelligence is not made of a few BIG SECRETS and nothing else matters. Intelligence is most often made of millions of tiny pieces of information. So each piece we release--even though one reasonably could argue with respect to that one piece that it could not be a big deal--makes a difference.
CSRTs were in fall 2004 and winter/spring 2005, by the way, and the government had had years to learn whatever they could from the prisoners by the time they conducted them.
I was mistaken--I thought the reviews were done a bit earlier. You are right, it is a mystery why the records are not clearer.
So long as the administration and its supporters are caught up in trying to prove ...
... add its complement--so long as the administration's opponents are caught up in trying to prove ...
There's probably a fancy name for this which, if I'd paid more attention in school, I'd remember. But I don't. It's an apples and oranges problem.
"The administration" is a corporate entity. It is organized. When an administration official is speaking on the record, it's fair to ascribe whatever is said to the administration. Supporters, maybe not so much. But the statement 'the administration is trying to prove' makes sense.
The administration's opponents are not a corporate entity. No opponent speaks for any other, and no two are in perfect agreement. It makes no sense to say 'the administration's opponents are trying to prove', because that's not a group that can possibly act as a body.
Look, even if you assume that all the persons captured by unknown captors were captured by US forces—which is to say the least highly improbable, but—you still end up with 49% captured by US forces. Which means most were not captured by US forces. And it's really, really unlikely that they have better data on people captured by the Pakistanis than they do on people captured by the US.
The majority of the people released are Saudies and they will be delivered to the Saudi authorities even though there is no charge against them. That means jail, torture and probably death for most of them.
51: apo, I do not think that your point is entirely fair, since those aren't political rights which differ significantly from other sorts of rights. Any time that you get the sovereign/state involvedthings get messy.
I once wanted to write a paper arguing tha certain rights should be expressed as negative liberties, because treating them as positive rights accruing to a right-holder would make them more alienable,and it seems to me that certain fundamental rigths ahouldn't be alienable.
So, it's okay to say that you have a right to certain stock options, because you're free to alienate those shares, but it's not okay to say that I have a right not to be a slave, because that means that I could, if I wanted to, sell myself into slavery. Much better to say that nobody can hold anyone in involuntary servitude. That gets messy, because we've moved beyond rights which are strictly speaking about the relationship between the state and the individual. Still, I'm pretty comfortable saying that certain types of fundamental rights are quasi political. So, I'd be willing to say that a universal prohibition against torture is justified irrespective of the rights of the S&M crowd.
II. CCP or whoever it was who made a distinction between rights and privileges, please explain the difference.
In an old pair of Yale Law Journal articles, from 1917 or thereabouts, called "Fundamental Legal Conceptions As Applied in Judicial Reasoning postulated four jural opposites: (1.) right/ no-right; (2.) privilege/duty; (3.) power/ disability and (4.) immunity/ disabilty. His four jural correlatives are: (1.) right/duty; (2.) privilege/ no-right; (3.) power/liability; and (4.) immunity/disability. As far as I can tell, this doesn't fit perfectly with our rather fuzzy definitions of teh 14th Amendment's "privileges and immunities" when we have seen fit to apply them. I don't know that anybody has defined for all time the distinction between a right and a privilege. Tell me, what is the difference between a privilege and a disability? I've read the article and can't figure it out.
III. Geneva Conventions
I thought that I heard somewhere that the it was wrong to speak of the Geneva Conventions not applying to particular people. The Geneva Conventions apply to everyone. The question is really: which of the Conventions applies? What most people are really saying is that the Convention on the treatment of Prisoners of War may not apply to the detainees/ prisoners at Guantanamo, but it is actually rather disingenuous to say that the Geneva COnventiosn do not apply at all.
In the sense that I’m using it, a right is inalienable, and a privilege is not; a right permits action through the observance of an underlying truth, a privilege is granted as political recourse.
Well, I've been away from a computer since my last post here, so, I haven’t read the whole thing... just 89, so: my apologies if I’ve ignored anyone. Also, I'm not an American, and, honestly, I'm not that familiar with American law (except in a T.V. kind of way).
A right is inalienable, and a privilege is not. A right is granted by an underlying universal philosophy or truth, and a privilege is granted temporarily or conditionally.
A disability cannot be revoked, undone, or avoided; where as a privilege can be.
and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
I have a problem with this. IANAL and all that, but this seems to me to be yet another lawyerly trick of redefining something without letting on you're doing so: in this case, minimizing what we *know* to be true (there were considerably more than "a few" instances of wrong and criminal treatment at Guantanamo--and elsewhere) by seeming to concede a point. And we have a fair bit of evidence that these instances were, in fact, national policy, formulated by the Secretary of Defense and possibly (one suspects probably, or he would have been fired by now) his superiors. Over the heads and advice of many professional military folks, at that. We also know that the "enemy combatants" thing was an explicit administration decision to redefine them so that they wouldn't be covered under the Geneva conventions, which while obviously do-able with the right lawyers and judges, is, if not "evil," certainly venal and immoral.
And all this is quite apart from the "certainly damaged our cause" thing. In fact, I would argue that "our" cause, inasmuch as it was formed, defined, and pursued by the very same people who formed, defined, and pursued the policies under which prisoners are detained at Guantanamo, Abu Ghraib, and in the U.S. (Padilla), that distinguishing from "cause" and "policy" in this case is a kind of willful blindness. Inasmuch as our "cause" is supposed to be "anti-Terrorism"; inasmuch as we have defined "terrorists" as "not subject to the Geneva Conventions"; and inasmuch as we have defined the "War on Terror" as one that must be preemptive, fought against moving targets, and somehow both in the name of "freedom" and advanced by the denial of freedoms and rights that we have become accustomed to, that are enshrined in our Constitution and international laws that we have helped write, I don't see how it is possible to understand the situation at Guantanamo and the larger human rights issues involved in torture, detention, and trials of prisoners as anything other than central parts of the current administration's world view.
Someday, someone will explain to me why the US ought to release men captured on the field of battle, before the war is over, so that they go back and pick up arms again.
Those who were captured by mistake, or who otherwise have been determined not to be a risk to return to the field of battle, fine, once that's determined, let 'em go. But the notion that we have try enemy soldiers for crimes under the Federal Rules of Criminal Procedure or let them go to fight again is madness squared. No army, no country in the history of the world has ever done that.
Did you bother to read the thread, DBL? Start with comment #2, which includes:
...well less than half of the men detained in Guantanamo were captured on a battlefield. The majority were handed over to the United States by Afghanis or Pakistanis in return for bounties.
The link did not work for me, so I cannot read the article to which you cite. However, your argument does not follow from the facts you cite. You have confused people being detained on a battlefield with people being charged with a crime. As I understand it, the people who have been charged and who are to be tried by military commissions are being charged with specific crimes--this is separate and apart from their mere status as detained combatants. If we assume (counterfactually) for a minute that all of the detainees were lawful combatants subject to the full protections of the Geneva Conventions afforded to prisoners of war, they still can be held for the duration of hostilities simply for that. The commissions are about something else. So that fact that these people were not charged to be tried by a commission says nothing about whether their detention as battlefield combatants (lawful under the law of war or otherwise) was proper.
Were their people who were detained by the US who were not combatants? Likely. Although it is instructive to remember that some (perhaps all) of the Chinese Uighur prisoners to whom you refer were in Afganistan receiving military training at a terrorist training camp--that they ultimately were determined not to have been combatants does not mean that they were innocent shopkeepers swept up in this massive, corrupt dragnet which you appear to claim existed.
Have there been problems with how the US has handled this matter. Most assuredly. Nor is there a good answer to the question of how long you detain a combatant in a war which may go on for decades--it clearly is lawful (IMHO), but that does not make it just, reasonable or smart to do. But I think your argument here does not follow from the facts.
Posted by Idealist | Link to this comment | 04-26-06 6:31 AM
I wish I could cite a source right now, but I believe it is true that well less than half of the men detained in Guantanamo were captured on a battlefield. The majority were handed over to the United States by Afghanis or Pakistanis in return for bounties.
I'm not a military lawyer, but I've never been impressed with the argument that those individuals that we DID capture on a battlefield shoule, somehow, not be afforded the Geneva protections. So: impress me.
Posted by mrh | Link to this comment | 04-26-06 6:35 AM
Here's one source. (Warning, PDF.)
Posted by mrh | Link to this comment | 04-26-06 6:40 AM
mrg, TAL was citing the Seton Hall law study, which in turn was citing only the government's own published reports. These indicate
Note that "most". The Seton Hall study (pdf) is here.
So, LB has not "confused people being detained on a battlefield with people being charged with a crime." And if she had, we would still need to have a discussion about the "quaint" Geneva Conventions, oh yes we would.
Are we behaving badly by holding them indefinitely? Most assuredly. Are we acknowledging any law at all? Oh mercy me, no. Is there any defending this practice at all? 'fraid not.
Posted by slolernr | Link to this comment | 04-26-06 6:53 AM
I'm not a military lawyer, but I've never been impressed with the argument that those individuals that we DID capture on a battlefield shoule, somehow, not be afforded the Geneva protections. So: impress me.
I suspect that I will not impress you, but to begin with, you have restated what I wrote in a way that fundamentally changes the issue. No doubt this was unintentional, but I note that in this debate, this is a standard rhetorical move from people who are lawyers or who otherwise know better.
What I wrote was lawful combatants subject to the full protections of the Geneva Conventions afforded to prisoners of war. The key words here are lawful, full protections and prisoners of war. The Geneva Conventions provide different and much more robust protections to prisoners of war who meet certain citeria such as fighting in uniform as part of an organized military force, than they do to others. When you think of POWs being obliged only to divulge their name, rank and service number, you are thinking of the full Geneva protections accorded to lawful combatants. Combatants who do not meet the criteria for full POW status have a much lower lever of protection under the Geneva Conventions. While there is some debate on the subject, I think most people who study the matter agree that they are entitled only to the right to humane treatment under common article 3 of the conventions. And, of course, under international law, they may be treated as criminals for the acts they commit. Hence the military commissions which have been convened for some of the detainees.
So, the issue is not (IMHO) whether or not the Geneva Conventions apply, it is how they apply.
Posted by Idealist | Link to this comment | 04-26-06 6:54 AM
re: 4
I really need to get some work done today, notwithstanding that this discussion is more interesting. So, I have not read the whole study you cite. I do note, however, that it is written by two lawyers who are representing these combatants. While my own work is, of course, an exception to this rule, in general, one does not look to the work of a party's counsel for an objective analysis of the law or the facts.
Posted by Idealist | Link to this comment | 04-26-06 7:05 AM
Idealist, they're counting noses. This is not "analysis" of any kind, let alone opinion or a brief. They're just counting noses. Here is the nose breakdown: "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."
In the bowels of Christ, man, consider that the talking points may be wrong.
Posted by slolernr | Link to this comment | 04-26-06 7:10 AM
There is a distinct lack of trolls on this site, we definitely need more.
Posted by SP | Link to this comment | 04-26-06 7:28 AM
There is a distinct lack of trolls on this site, we definitely need more.
Pleased to be of service.
Posted by Idealist | Link to this comment | 04-26-06 7:31 AM
5: Well, I'm not a lawyer, so I'm going to make that kind of restatement-mistake from time to time. Apologies in advance.
I don't think my point is much weakened, though, if we accept the Seton Hall study. A huge percentage of people in Guanatanamo don't seem to be there for any good reason.
While there is some debate on the subject, I think most people who study the matter agree that they are entitled only to the right to humane treatment under common article 3 of the conventions. And, of course, under international law, they may be treated as criminals for the acts they commit. Hence the military commissions which have been convened for some of the detainees
So, does the evidence we have from Guantanamo indicate that the detainess have been treated humanely?
Are the military commissions, as formulated by President Bush, an appropriate vehicle for dealing with accused criminals? (I think it's important to note that you seem to have jumped to "acts they commit" rather than "acts they are accused of committing.")
Posted by mrh | Link to this comment | 04-26-06 7:41 AM
8: Idealist spends enough time here, and is nice enough when everyone's attacking his position, that he's definitely not a troll.
I think he's wrong, wrong, wrong on this issue but we should be able to refute him without calling him names. Except "Republican."
Posted by Matt Weiner | Link to this comment | 04-26-06 7:47 AM
A lot of things bother me about GTMO, to put it mildly, but the "duration of hostilities" line particularly bothers me. Which hostilities? Against the Taliban? Against Terror itself?
Posted by Jackmormon | Link to this comment | 04-26-06 7:59 AM
You have confused people being detained on a battlefield with people being charged with a crime.
If there is confusion on this point, that's hardly LB's fault. One of the well-known problems with the 'war on terror', at least in the discussions months ago, lay in figuring out what constituted a 'battlefield' and what could possibly constitute 'end of hostilities', not to mention how to construe 'prisoner of war' when there's not a foreign government with soldiers in easily identifiable uniforms.
And it should give anyone pause if those definitions are elastic enough that pretty much anyone can conceivably be held without charges.
Posted by Cala | Link to this comment | 04-26-06 8:05 AM
As badly as I feel for these people, they aren't American citizens. Padilla is. Until someone explains away that raping of my basic sense of citizenship and what I can count on my fellow Americans not to stand for, I can't really sort out how I feel about the treatment of non-citizens. I'm too angry.
Posted by SomeCallMeTim | Link to this comment | 04-26-06 8:10 AM
instructive to remember that some (perhaps all) of the Chinese Uighur prisoners to whom you refer were in Afganistan receiving military training at a terrorist training camp
Uh, is there an international law against this? Because it seems like we don't have the authority to enforce U.S. laws when we're, you know, not on U.S. soil.
how long you detain a combatant in a war which may go on for decades--it clearly is lawful
To me this argument is lacking in that Congress never actually issued a declaration of war.
Posted by gswift | Link to this comment | 04-26-06 8:12 AM
I've always thought we should train up the detainees to take on the real menace: Castro's Godless Communism!
Last time we sent trained bandits into Cuba to oust Castro, things went really, really well...
Posted by Stanley | Link to this comment | 04-26-06 8:16 AM
Are the military commissions, as formulated by President Bush, an appropriate vehicle for dealing with accused criminals?
They are a traditional way of doing so. For whatever reason, they have not done well. Indeed, I spent all day Saturday at a conference on jurisprudence and the war on terror and there was a panel on this very subject. Interestingly, all panelists, even the law professor who was an advisor to detainees' defense counsel, seemed to agree that the military commissions conceptually were a reasonable and appropriate way to address this matter. However, they also all seemed to agree, including the military lawyer who had been involved on the prosecution side, that they had not gone well and that the process needed to be changed. Furstratingly, nobody talked about why they had not gone well.
I think it's important to note that you seem to have jumped to "acts they commit" rather than "acts they are accused of committing."
You misunderstand. They can only be subject to criminal punishment for acts they commit. They are being tried by commissions for acts they are accused of committing. The detention is not the punishment for the crimes of which the detainees being tried by commissions are being charged, it is an incident of war. The crimes being tried by the commissions are supposed to be for acts beyond being, in general, a combatant. Here are charge sheets commissions.
Posted by Idealist | Link to this comment | 04-26-06 8:20 AM
1, 8: I think after the style of comment 1 we might infer that Idealist is Rumsfeld (and detain him until we learn more!).
Posted by Michaell | Link to this comment | 04-26-06 8:32 AM
I think we have fairly internalized the right to a speedy trial, and feel intuitvely that it is a human right. That these people have been held for so long is aggravating. It is hard to understand why they have been "detained" for so long. And, despite that they are counsel, the anger and resentment of their lawyers only fans our aggravation, even grief, over this.
And, certainly, there is inconvertible evidence that they have not been treated humanely. The government acknowledges the use of stress techniques on the detainees. And there is (not unpersuasive) circumstancial evidence that there has been abusive treatment beyond even those techniques.
Posted by Michael | Link to this comment | 04-26-06 8:46 AM
The detention is not the punishment for the crimes of which the detainees being tried by commissions are being charged, it is an incident of war.
Fair enough, but what about a process to challenge the detention itself? Especially for those detainees (why can't we say prisoners?) who weren't picked up in combat? I'm sure I'm confused; I seem to remember that the CSRT are meant to take the place of habeus reviews, but those don't seem to be going any better than the commissions.
It's probably helpful to have two different arguments: one about the proper way to deal with these people in theory, and one about the asinine way it's been done in practice.
Posted by mrh | Link to this comment | 04-26-06 8:59 AM
I think the question here is: Have we arrogated to ourselves the right to lock people up as long as we want on shit evidence? That can't possibly be right morally.
The speedy trial is part of that; as long as these folks don't get a speedy trial they're locked up. It's a sentence first, verdict afterwards situation. And it doesn't matter if unlawful combatants are not afforded these rights, because the declaration that these prisoners are unlawful combatants is also unilateral and in some cases clearly based on shit evidence.
(And yes, SCMT, it's just as disturbing that we are doing the same thing to U.S. citizens arrested on American soil.)
Posted by Matt Weiner | Link to this comment | 04-26-06 8:59 AM
it's just as disturbing
No, Tim is right, it's way more disturbing. But it's all of a disturbing piece.
1. If we catch people on the battlefield, we don't have to treat them to proper criminal procedure.
2. If we catch people on the battlefield who are not proper soldiers of a proper country, we don't have to treat them to the Geneva Conventions.
3. Everywhere is a battlefield.
4. We can catch people anywhere and lock them up without treating them to proper criminal procedure or the Geneva Conventions.
Posted by slolernr | Link to this comment | 04-26-06 9:15 AM
With SCMT, I'd agree that it's more disturbing that we're doing the same thing to US citizens arrested on American soil, but not any less immoral.
Posted by mrh | Link to this comment | 04-26-06 9:18 AM
It's probably helpful to have two different arguments: one about the proper way to deal with these people in theory, and one about the asinine way it's been done in practice.
Without agreeing with asinine I think that you are quite right. Several of the serious problems with the whole debate on this topic are that people want to argue about facts which they assume rather than know and that there is a desire to make grand accusations--such as "the Administration is violating the law" or that it is "evil"--when a more reasonable discussion might be had if the basis were: "Well, this may be legal, and it may even have been done with the best of intentions, but it is not working, seems wrong (even if legal), and is not advancing our national interests."
Part of the reason I am often the contrarian here is that there is, to me, a huge gap between the grand (often baseless, IMHO) claims of evil intent and lawlessness, and the much more reasonable question of whether what we are doing is the best policy. We likely still will disagree on some things, but it would be a much different conversation.
For example, I will agree that the detentions at Guantanimo and elsewhere have been badly handled to the detriment to our national interests and have resulted in many detainees being treated worse than they should have been--both on practical and moral grounds--and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
Posted by Idealist | Link to this comment | 04-26-06 9:36 AM
The United States is currently in schism. When a nation deals with people’s of another nation in a way which directly contradicts the treatment of their own people, they experience an ideological two-sidedness that demands resolution. In the end, the United States will have to adjust what constitutes domestic justice policy to conform to the ideals of their foreign policy, or adjust its foreign policy to conform to the ideals its domestic policy. Pick one, and go.
From my own moral point of view; arguments which question what rights prisoners have are irrelevant. Rights cannot be given; only taken away.
Posted by Central Content Provider | Link to this comment | 04-26-06 10:11 AM
24:
Idealist, that last paragraph of your's is wise and judicious, and I for one appreciate your saying it. I'm not surprised you think this, you've said as much now and then, but more casual readers may not pick up on this.
I appreciate what you bring to our discussions, and want to commend your tenacity and even temper; you're the farthest thing from a troll.
But I do want to ask this: accepting that there is often a legal, strategic and moral basis for actions which superficially resemble those this administration has taken, so that at each point a moral and competent defense of such actions in the abstract is appropriate, what is wrong with these guys in your opinion? For myself, a respectable government with principles very different from my own is very easy to imagine, I feel I've lived with them most of my life.
But I sense a difference, not entirely due to the situation, in character, responsibility and judgment between this and prvious administrations. Do you?
Posted by I don't pay | Link to this comment | 04-26-06 10:19 AM
Idealist: I think at this point, `the best of intentions' is really too much of a stretch. We can certainly argue that a lot of the problems with the approach are due to incompetence rather that `evil' (a rather difficult term to define, anyway). However, any argument along the lines of: `hey, it was a difficult call and we tried our best' lacks credibility now that more is known (and yes, we don't know everything, of course. But we know enough).
To me the most plausible argument seems to be that Guantanimo was set up in the heat of the moment without really thinking it through, and the process got out of hand. Once faced with this problem though, the administration couldn't accept that it had made a mistake, so dug in its heels and attempted to fabricate a rational construction. That sort of belicose posturing is a characteristic of this lot, and really undermines national interest, as you say.
Posted by soubzriquet | Link to this comment | 04-26-06 10:21 AM
Rights cannot be given; only taken away.
So, Amendment XIX didn't give women the right to vote?
Posted by apostropher | Link to this comment | 04-26-06 10:22 AM
28:
It recognized it.
Posted by Central Content Provider | Link to this comment | 04-26-06 10:28 AM
So perhaps the final sentence of 25 would be better phrased, Rights cannot be given; only recognized.
Posted by The Modesto Kid | Link to this comment | 04-26-06 10:32 AM
How do we know what our full list of rights, including those both recognized and un-, are?
Posted by slolernr | Link to this comment | 04-26-06 10:34 AM
CCP, that's silly. Political rights are human inventions that vary from country to country, based on the legal systems. They are not immutable, universal truths.
Posted by apostropher | Link to this comment | 04-26-06 10:42 AM
29: Still, it would be a stretch to say that women had the right to vote before the XIXth amendment. Better to say that they should have had the right? Too much equivocation on the meaning of 'right'.
When a nation deals with people’s of another nation in a way which directly contradicts the treatment of their own people, they experience an ideological two-sidedness that demands resolution.
I hope you're wrong about this, for it means that every government on the planet is fundamentally unstable. F'rinstance, I can't think of an example of a government that doesn't distinguish between domestic and foreign policy, or that treats foreign nationals in exactly the same way as citizens.
Posted by Cala | Link to this comment | 04-26-06 10:44 AM
How do we know what our full list of rights, including those both recognized and un-, are?
Work out a completeness result for the appropriate deontickish
logic, enumerate all the valid formulas, and hope your favorite rights pop out before the end of the world.
Posted by Standpipe Bridgeplate | Link to this comment | 04-26-06 10:45 AM
Jackmormon, check your email.
Posted by Tia | Link to this comment | 04-26-06 10:45 AM
At the same time, there have been, since the French Revolution at least, attempts at defining or declaring universal human rights, even admitting that local circumstances vary widely. And this is something I believe in, and it is one of the defining characteristics of a liberal to believe that there are such things.
Posted by I don't pay | Link to this comment | 04-26-06 10:46 AM
31:
Is there a full list? Imagining that there is; the question of "how do we know what each of us has a right to" has yet to be answered. Many have tried, and contunue to do so. At the moment, I think our most pressing problem is resolving contradictory efforts to answer this idea of an authoritative list of rights. This problem is also unanswered.
Posted by Central Content Provider | Link to this comment | 04-26-06 10:48 AM
But I sense a difference, not entirely due to the situation, in character, responsibility and judgment between this and prvious administrations. Do you?
I know this will open me up to significant derision here, but no, not really. There are things they have done well and things that they have done very poorly, but I do not find them to be that unusual in terms of character, responsibility and judgment, paticularly given the situation, except as follows.
I think that they have been less likely to be swayed from what they view as the correct path by fears of public opinion--which is good in a way, but they have at the same time ignored the need to maintain national and international support for what they have done, which actually is a huge--potentially fatal for the enterprise--mistake. It is not sufficient to be right, you have to be seen as being right. It is not just bad PR to not care about showing that your actions are justified, it is bad leadership in a situation such as this. Without support, we will simply withdraw. That will make most of the sacrifices made so far a waste and will make the world much worse off than if we stay the course (while being willing to learn from and correct, our mistakes).
Our loss in Vietnam is an excellent example of the results of thinking that the justice of your cause will be self-evident. [I was three paragraphs into a long explanation of this, but deleted it--I really have to kick the Unfogged habit for a few hours and get some work done.]
Posted by Idealist | Link to this comment | 04-26-06 10:52 AM
it is one of the defining characteristics of a liberal to believe that there are such things.
Ooh, I don't think so at all, idp. There are liberal ways to come up with lists of rights without resorting to a priori, natural-rightsy kinds of truths. Pragmatism works that way, doesn't it?
Posted by slolernr | Link to this comment | 04-26-06 10:54 AM
There are things they have done well
Okay, seriously, there are? The only thing they've done well that I can remember is cut taxes. Isn't it dsquared who issued the Bush administration challenge, i.e., think of a major Bush policy initiative they haven't bollixed up? I would love to see a link to that.
Posted by slolernr | Link to this comment | 04-26-06 10:56 AM
The only thing they've done well that I can remember is cut taxes.
Only if you're making tons of money could you think this has been done well.
Posted by apostropher | Link to this comment | 04-26-06 11:01 AM
33:
Yes and no. The problem is that of the U.S. is "human rights" in general. This isn't true of all nations. Nations whose domestic policy isn't founded on human rights can treat foreigners however they want without contradicting their principals as a nation: hence, no schism. That said; yes, all governments are unstable to one degree or another. This particular American schism isn’t necessarily fatal, but does compel it as a nation to bring domestic and foreign justice together ideologically. This is already happening. I think domestic observance of human rights is diminishing, while treatment of foreign nationals is improving somewhat.
32:
The idea of "right" *is* something that is universal. That's what *right* means. Treating it as a dogmatic term that has no underlying meaning beyond its beurocratic utility is a solution to the problem of resolving conflicting accounts of universal rights, not an argument contrary to the idea of a universal right.
Posted by Central Content Provider | Link to this comment | 04-26-06 11:02 AM
Well, that's what I meant. I.e., they said they would cut taxes, they cut taxes. Now, if you want to say, they said they would cut taxes in such a way that the ordinary American would be better off, then you would have to say, they have not done that well, either.
Posted by slolernr | Link to this comment | 04-26-06 11:02 AM
39:
Don't have a problem with doing it that way, only have a problem with the Burkean notion that the only rights are the home-grown variety. I find attempts to declare universal entitlements to be fruitful, with all of the hypocracy, uninforceability, yada, yada.
Posted by I don't pay | Link to this comment | 04-26-06 11:07 AM
I will agree that the detentions at Guantanimo and elsewhere have been badly handled to the detriment to our national interests and have resulted in many detainees being treated worse than they should have been--both on practical and moral grounds--and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
Aw, you're no fun anymore.
Someone throw the BAA signal.
I'll throw out one (the only?) pro-gitmo argument: Some prisoners have valuable information, even after all of these years, and it is unfortunate but justifiable to lock up a few innocents to get at the intel. (Presumably, all the prisoners have to be sifted through in order to get the valuable info.) While this argument may seem morally suspect from certain viewpoints, it is sensible from the position of those who have been given the responsibility to safeguard Americans, but are not responsible for safeguarding the human rights of anyone else.
I have to say that I think this argument is unlikely. But it's not actually one that I, or just about anyone else, can evaluate. Which is probably why I see it so much.
Posted by Michael | Link to this comment | 04-26-06 11:07 AM
The idea of "right" *is* something that is universal. That's what *right* means.
Well, no, that's one flavor of right. Some rights are not universal, or natural. The idea of right per se is better expressed as a claim that can legitimately be asserted irrespective of the power held by the person asserting it. Some political theorists regard rights as conclusions, not as premises.
Okay, now a political philosopher can explain why I'm wrong.
Posted by slolernr | Link to this comment | 04-26-06 11:10 AM
42:
Oops.... Brain Fart!
The problem is that of the U.S. as a nation that believes in "human rights" in general.
Posted by Central Content Provider | Link to this comment | 04-26-06 11:11 AM
I find attempts to declare universal entitlements to be fruitful
Peter Novick referred to this as "salutary nonsense."
Posted by slolernr | Link to this comment | 04-26-06 11:12 AM
Our loss in Vietnam is an excellent example of the results of thinking that the justice of your cause will be self-evident.
This must be true. It's STILL not evident to me.
Posted by Michael | Link to this comment | 04-26-06 11:13 AM
Bully for him.
Posted by I don't pay | Link to this comment | 04-26-06 11:14 AM
That's what *right* means.
If I am granted stock options, I have the right to sell them at a pre-determined price, regardless of the market valuation at the time of the sale. This right was not endowed to me by my creator.
Posted by apostropher | Link to this comment | 04-26-06 11:16 AM
There are few things all political philosophers worth their salt can all agree on, but I think one of those things is that CCP has it exactly backwards. Rights can not be taken away b/c we do not possess any by nature. Rights can only be given.
Posted by Michael | Link to this comment | 04-26-06 11:18 AM
Look, there's at least two senses of the word 'right'. One that refers to the respect and dignity someone deserves in virtue of being a human person, the other that refers to 'rights' as some kind of contingent contract-based thingy between the governing and the governed. Permutations abound.
Sometimes there is overlap. Sometimes there isn't. I don't think saying that I don't have the right to vote in a French election means that France is ignoring a fundamental aspect of my dignity. I don't think requiring a student visa from a foreign student is violating their rights, either. But in both instances it's correct to say a) I don't have a right to vote in France and b) the foreign student doesn't have a right to study in the U.S.
I forget where I was going with this, but short form is that there's lots of permutations of legal rights that could uphold moral rights, and it might be perfectly kosher to say that the Guantanamo detainees have no rights recognized by the Geneva Convention and still have it be immoral to treat them in the way they've been treated. (Fucking Moorean open questions.)
Posted by Cala | Link to this comment | 04-26-06 11:19 AM
51: The hell it wasn't. Commie.
Posted by mrh | Link to this comment | 04-26-06 11:23 AM
The right to vote mentioned above is a good example of a right that could not possibly be a universal, pre-existing right of all people -- since it is meaningless outside of a democratic government, which is not a universally pre-existing condition. I would say the XIXth Amendment totally granted the right to vote to women. They did not have that right (even unrecognized) before ratification of the amendment, and they had it afterwards.
However I would allow the possibility that there are other sorts of right. Perhaps the right to be free of torture is a universal right -- though one that goes frequently unrecognized. (When I say "universal" here I am pretty much limiting the universe to humans living on the earth later than about 50 years before my birth.)
Posted by The Modesto Kid | Link to this comment | 04-26-06 11:26 AM
Cala's 53 makes most of my point, and more.
Posted by The Modesto Kid | Link to this comment | 04-26-06 11:27 AM
TMK what about the right to be tortured? Don't neglect the S&M crowd.
Posted by Michael | Link to this comment | 04-26-06 11:27 AM
Is there anything I can do to stop the dreaded Internal Server Error screen?
Posted by Michael | Link to this comment | 04-26-06 11:28 AM
Isn't it dsquared who issued the Bush administration challenge, i.e., think of a major Bush policy initiative they haven't bollixed up? I would love to see a link to that.
Here it is.
Posted by Matt Weiner | Link to this comment | 04-26-06 11:29 AM
58 - Errmm...think happy thoughts until I get back from vacation?
Posted by Becks | Link to this comment | 04-26-06 11:33 AM
I'm not a political philosopher, though, because the people in it make me want to play whack-a-mole with my calabat. (My complaint about philosophical ethics is largely the same. "Suppose a trolley were to..." WHACK WHACK WHACK. "oof.")
Posted by Cala | Link to this comment | 04-26-06 11:34 AM
I'm not a political philosopher
Incoherent!
Posted by Michael | Link to this comment | 04-26-06 11:37 AM
legal rights that could uphold moral rights
A "legal right", in this sense, is really a legal privlege. True, it's an accepted usage of the word as beurocratic recourse, but a usage that stems from the political desire to attain privleges by masking them as rights - hardly a meaning that overrides the moral pinnings of the word. That said, Micheal's observance that there may not be any such thing as moral rights is certainly a possibility. It could also be that everything that can exist has a right to do so.
Posted by Central Content Provider | Link to this comment | 04-26-06 11:37 AM
"Suppose a trolley were to..." WHACK WHACK WHACK.
This sounds like almost every song I sing to my 1-year-old.
Posted by apostropher | Link to this comment | 04-26-06 11:39 AM
Weiner, you're awesome.
Cala, I worry you're getting a little attached to the succinctness of the calabat. <ducks>
Posted by slolernr | Link to this comment | 04-26-06 11:53 AM
to 38's:
"I think that they have been less likely to be swayed from what they view as the correct path by fears of public opinion- ..."
Add to that: or swayed by expert opinion, or facts, and I think we are closer to the truth. This lot are idealists, if nothing else. I suppose if one agrees with their ideals, this doesn't seem like such a bad thing.
Posted by soubzriquet | Link to this comment | 04-26-06 11:56 AM
Ouch, that d-squared thread. Hindsight is 20/20, but so many people seemed to believe honestly that Iraq would be so much easier than Afghanistan.
Posted by Cala | Link to this comment | 04-26-06 12:07 PM
Even if one did agree with their ideals, there would still be the effectiveness issue. I do think there is an extraordinary disinclination, perhaps traceable to Bush himself, to admit mistakes, or any outside opinion at all.
Posted by I don't pay | Link to this comment | 04-26-06 12:13 PM
That will make most of the sacrifices made so far a waste and will make the world much worse off than if we stay the course (while being willing to learn from and correct, our mistakes).
Our sacrifices there were always going to be a waste. There was no basis to think we could pull off a mission of this sort. Wolfwowitz, et al, were opertating in a fantasyland devoid of historical context.
Iraq was never within our capabilities. Modern analagous conflicts like Bosnia gave us a good idea of what kind of troop levels are required to execute this kind of mission. A country the size of Iraq requires far more troops than we have on active duty. Shinseki got up in front Congress said exactly what we'd need, several hundred thousand troops. In other words, far more than we have. The mission was hopeless before it began. One way or another, we're leaving that country. It's only a matter of how many casualties we incur before it happens.
Posted by gswift | Link to this comment | 04-26-06 2:19 PM
re: 4
Note that "most". The Seton Hall study (pdf) is here.
Actually, the Seton Hall study does not--and cannot--demonstrate that most detainees were turned over for cash. It simply insinuates it. It is a classic piece of advocacy (who would expect advocates to produce anything else?).
I do not find the raw numbers they cite particularly shocking in context. One of the problems here is that they want this process to be something other than what it is. They want a level of proof and certainty of evidence that is impossible to acheive on a battlefield (naturally, they are advocates trying to show why their clients should be set free). However, to look at their report uncritically, you have to ignore both the facts of war and the authors' roles as advocates (which is obvious in the paper--my favorites are where they conclude that 86 percent of the detainees were captured by the Pakistanis or the Northern Alliance when the data say that only 47 percent--less than half--of the detainees were so captured (they do this by assuming that all of detainees for which they did not have data must be presumed to have been captured by someone other than the US) and where they conclude that 48 percent of the detainees were affiliated with Al Qaeda or the Taliban when the data say that 89 per cent--more than twice that number--are so-affiliated (they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded).
Posted by Idealist | Link to this comment | 04-26-06 4:06 PM
Wait, do you seriously find unreasonable the argument, "Since the government presumably knows which detainees were captured by United States forces, it is safe to assume that those whose provenance is not known were captured by some third party."?
Posted by slolernr | Link to this comment | 04-26-06 5:29 PM
I mean, because to get there, you have to assume the government is less likely to know when someone was captured by US forces than it is to know when someone was captured by someone else. Because, among those whose captors are known, US forces account for only 8% (as opposed to e.g. 68% for Pakistan).
Posted by slolernr | Link to this comment | 04-26-06 5:34 PM
they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded
I think you're on sounder ground here, but I think they're quite right to say that the category AQ or Taliban is fishy. I mean, if they've been trying to prove it on you for four years and can't say if you're one or t'other, what do they know?
Posted by slolernr | Link to this comment | 04-26-06 5:36 PM
I think, Idealist, that we'd all be better off if you accepted your own invitation to focus not on what is minimally legal, but on what is an optimal policy. A policy that leads to the indefinite incarceration of only marginally dangerous characters, under circumstances that make us look like hypocrites, falls pretty far short of optimal. (I'd go farther: the policy of isolating the prisoners from the moderating influence of their families, and instead leaving them to radicalize eachother isn't just sub-optimal, it's criminally negligent).
If only 47% of prisoners were captured by Pakistani or NA officials,* this is still enough to mean that the discussion can't start off with 'we don't want to entangle our soldiers in excessive regulation on the battlefield.' We can't talk about battlefields at all, when talking about the whole program, but only when talking about classes of prisoner within the program. And letting go of the sloppy thinking that they're all combatants from a battlefield makes one start to think about what maybe we ought to be doing differently. An unarmed guy who is arrested by Pakistani authorities in a house or on a public bus in Pakistan isn't much of a combatant, especially if, even after all the investigation you can do, you can't actually place him under arms on a battlefield. That there are a great many such people in the prisons at Guantanamo is obvious to all -- and even if there are some real combatants, the government's failure to sort them out long since is unforgiveable.
The failure of the Commissions stems, in my view, from a couple of things. First, if the government would just hold the trials under the UCMJ, the challenge now in the Supreme Court (and those in district courts awaiting the Supreme Court's decision) would have been moot. If the government is going to try people for specific crimes beyond engaging in combat, why not use law/procedures readily at hand? Whether or not the Constitution or Geneva Conventions require it.
There's plenty of room for intelligent discussion on how prisoners should be dealt with. So long as the administration and its supporters are caught up in trying to prove that they aren't evil, and that no changes should therefore be made, the conversations can't really take place.
* I understand that the authors of the Seton Hall report are making revisions to account for new information now available. I wouldn't expect the number to change much -- you have to recall that unlike Iraq, much of the ground fighting in Afghanistan was done by warlords and their followers. While it makes sense to ally for convenience with such people, I wouldn't afford their followers the same kind of presumptions I'd allow our own soldiers. I've only read 4 CSRT files, two classified and two unclassified. It's an unrepresntative sample, to be sure, but 3 were captured by Pakistanis in Pakistan, and one was sold by Taliban guys to Northern Alliance guys.
Posted by CharleyCarp | Link to this comment | 04-26-06 5:36 PM
(they do this by assuming that all of detainees for which they did not have data must be presumed to have been captured by someone other than the US)
Can you explain your objection to this assumption? I can't see how we could be missing data on who captured a prisoner if they had been captured by the US in any but a very occasional fluke case -- given that we're talking about 44% of the detainees, we're not talking about the occasional fluke. (See p. 14 of the SH report.)
And here:
where they conclude that 48 percent of the detainees were affiliated with Al Qaeda or the Taliban when the data say that 89 per cent--more than twice that number--are so-affiliated (they do this by assuming that if the data say that someone was associated with either, or both, it must be in error, and thus must be disregarded).
I simply don't understand where you got this from the report. On page 12, fig. 9, there's a chart showing alleged affiliations which shows 82% of prisoners as being accused of affiliation either with the Taliban, Al Qaeda, or both. The only thing similar to what you described was the report writers' decision to treat the 7% of prisoners accused of being "Taliban or Al Qaeda" as part of the 'other' category in that same figure, on the ground that if after four years in detention, the US couldn't figure out which organization it was accusing the prisoner of being a member of, its evidence couldn't be much. But that decision affected 7%, not 41%, of the prisoners studied.
There are several problems with claiming that it's legitimate to detain combatants on the battlefield indefinitely as an incident of war without strong evidence. First, as someone else pointed out above, there is no declared war against, well, anyone, but not against Al Qaeda. If we overlook that no such war has been declared, there is absolutely no limitation on who may be detained under this theory -- the battlefield is worldwide, and the war can go on indefinitely. This sort of expansively defined war is, to the best of my knowledge, a new concept in the law of war as it applies to the taking and detention of 'combatants' on the 'battlefield', and I do not believe that one can reasonably say that indefinite detention in such a 'war' is legal under the law of war as it has existed in the past.
With respect to the Taliban, there was at least, and is still going on, combat of a type much more closely resembling an ordinary war. Here, though, the concept of indefinite detention, until hostilities end, for ordinary soldiers is simply unjust and inequitable. The Taliban was the government of Afghanistan, and had a substantial conscript army. Thousands of men who fought in that army are now walking free in Afghanistan: we didn't detain the whole army because there are some Taliban forces still fighting on, we let them surrender and go about their business. Unless they happened to get unlucky enough to get swept up into Guantanamo, at which point we're claiming to be allowed to hold them forever. Whatever the legal arguments here, it's simply inequitable, unjust, and useless.
(I have to run and eat dinner with a bunch of lawyers, many of whose pictures may be found in the dictionary next to the word 'tool'. I'll check in again later.)
Posted by LizardBreath | Link to this comment | 04-26-06 5:37 PM
Hell, I should have waited. Slol and CC covered all of my points.
Posted by LizardBreath | Link to this comment | 04-26-06 5:40 PM
Wait, do you seriously find unreasonable the argument, "Since the government presumably knows which detainees were captured by United States forces, it is safe to assume that those whose provenance is not known were captured by some third party."?
Yes. This is pure argument. The authors present no evidence regarding why the data was unknown, and I can think of a number of reasons why it could be missing that would make their assumptions wrong. For example, the data simply might not have been collected at some collection points. Having significant theoretical and some practical experience with war, I think this is a more likely explanation than the one the authors present (though neither explanation is satisfying) Do I know for sure why the data is missing? No. But it's clear that the authors of the report do not either and yet they have nonetheless decided to choose an assumption that skews the data radically in their favor.
I think they're quite right to say that the category AQ or Taliban is fishy. I mean, if they've been trying to prove it on you for four years and can't say if you're one or t'other, what do they know?
Maybe CharleyCarp can tell us, because he seems to possess more facts than I, but again, the authors do not tell us the factual basis for their assumptions, and their assuption is weak based on the facts we do know. A much more likely assumption is that the data submitted is what was known when the CSRT was done early on--not the data known today.
I think, Idealist, that we'd all be better off if you accepted your own invitation to focus not on what is minimally legal, but on what is an optimal policy
Come on. This is a bit much. I am responding to what I see as claims that are factually and legally not well founded, and in the course of that suggest a different, more productive conversation, and now you want me not to address the factual or legal baselessness of the claims. Your comment is civily made, but the natural result of it is "Shut up, we will make whatever factual or legal claims we want and you should not talk about them." So sure, you'd be "better off" if I kept my criticism of claims made here to myself in the sense that the discussion would be kinder, gentler and more clubby. I leave it to the commenters here to tell me to go away. Maybe I can go comment on Gary Farber's blog.
I simply don't understand where you got this from the report.
Page 8 (fig. 1) shows that 89 percent of the detainees were associated with al Qaeda, the Taliban or both. Then they write that "if, after four years of detention, the Government is unable to determine if a detainee is either al Qaeda or Talilban, then it is reasonable to conclude that the detainee is neither." You are right that they do not write this up in their conclusions.
there is no declared war against, well, anyone, but not against Al Qaeda
The Supreme Court begs to differ. In Hamdi, the Supreme Court wrote:
As you know from Con Law in law school, there is no particular form for a declaration of war. I think the courts have uniformly recoginized the AUMF as having the effect of a declaration of war.
simply inequitable, unjust, and useless.
I do not agree with the absoluteness and strength of your claim, but I do agree that the approach we choose did not work well for a variety of reasons, both humanitarian and practical. As you note in your post, we just decided to release a bunch of people. I would agree that it would have been much better to have done this differently and earlier, but I think it proves conclusively that we are not going to hold all of them indefinately.
Posted by Idealist | Link to this comment | 04-26-06 6:29 PM
Oh, and another thing I wanted to say about Commissions is that you have to look at (a) who the defendants are and (b) what the allegations are. Charging Salim Hamdan with conspiracy to commit terrorism because he was UBL's chauffeur, and loaded weaponry in the trunk in the course of his duties, just isn't all that big a deal. But this is the kind of thing the Commissions are seeing. The fish are small, and the conduct, of the actual defandants, isn't all that compelling. (I haven't read all the charge sheets, but the ones I looked at weren't a very big deal). Part of this is because the really important guys aren't at Guantanamo. The CIA has the big fish, and doesn't give them to DOD unless and until they've gotten all they can. A trial of KSM would probably be 'satisfactory' for prosecutors. But it'll never happen, because the way he's been treated can't be presented to any forum outside the Executive. (And by making Commission verdicts reviewable at the DC Circuit, Congress has made it certain that people not in the tank would have an opportunity to see the evidence.)
The last thing I wanted to say about Gitmo that strikes me as seriously short of optimal is the criteria for release of prisoners. Up to now, and no one outside DOD really knows what the latest news stories are about, the surest way to guess who would be released is not to look at the charges against them, or the assessments of their intelligence value, but at their citizenship. If you're a citizen of a country that has and will use political leverage, or a government the US needs to bolster, you may well get to go home, no matter how many times you've told your cellmates you hate all Americans. Call it a kind of Rovism -- politics swamps policy, again.
Posted by CharleyCarp | Link to this comment | 04-26-06 7:38 PM
Idealist, I didn't mean that as a 'shut up' -- but as a 'you're right, let's look through the right end of the telescope.' Of course I invite you to disagree with anything I write -- although if you're going to disagree about whether I've read 4 CSRT records, I'd consider that an invitation to discontinue. I agree with you about the AUMF/declaration thing, btw, and don't begrudge you feeling you have to respond to that argument.
The government has a lot more information on each prisoner than it has made available to the authors of the Seton Hall report. Does it know how each person came into custody? Quite likely, as the classified files I've seen show that every effort has been made to comprehensively trace all movements of the prisoner from their hometown to point of capture. But the unclassified returns often don't say much about this. Many don't even give names, and some that do give wrong names. I think one should consider the SH document a very rough draft of history -- factually correct as far as it goes, but definitely only a piece of the elephant.
This is completely the fault of the government. It can and should be declassifying vast batches of information.
I would guess that the government has better data from which one could tell whether someone is said to have been associated with either the Taliban or AQ than it has released. Obviously, these categories aren't mutually exclusive. It's sloppy, though, for the government to say it's basing a decision on 'one or the other' without trying to distinguish. And probably bad policy, because the orgainzations had/have very different purposes.
CSRTs were in fall 2004 and winter/spring 2005, by the way, and the government had had years to learn whatever they could from the prisoners by the time they conducted them.
Posted by CharleyCarp | Link to this comment | 04-26-06 7:56 PM
Do I know for sure why the data is missing? No.
Yeah. At this point we really don't have anything to talk about on this point -- if 'we have this guy in custody, but we don't know where he came from, maybe we captured him and forgot to write it down, but nonetheless we know enough about him to be sure that we need to keep him imprisoned for four years or more' sounds like a reasonable possibility to you, I can't picture an argument that would change your mind.
Page 8 (fig. 1) shows that 89 percent of the detainees were associated with al Qaeda, the Taliban or both. Then they write that "if, after four years of detention, the Government is unable to determine if a detainee is either al Qaeda or Talilban, then it is reasonable to conclude that the detainee is neither." You are right that they do not write this up in their conclusions.
(A) What they say certainly sounds reasonable to me. (B) It applies to 7% of the detainees, not 41% as you said in your prior comment.
Posted by LizardBreath | Link to this comment | 04-26-06 8:02 PM
Is anyone talking about reparations to these men?
Given that we're blowing $1 billion+ per week in Iraq, giving each of these guys, say, $100,000 would be chump change in the scheme of things. But I'm sure it won't happen.
I think the courts have uniformly recoginized the AUMF as having the effect of a declaration of war.
Nope. To quote Alberto Gonzales (not something I often do) "There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force." http://tinyurl.com/l83qo
Posted by Frederick | Link to this comment | 04-26-06 8:03 PM
re: 74, 78 and 79
I didn't mean that as a 'shut up'
Ok. I can be thin-skinned. Sorry.
On the policy points you make, I think we disagree on a few things, but not by a huge amount.
I think it simply is unworkable to turn the commission process into regular trials. You are talking about people and evidence collected on foreign battlefields. Adopting the rules of criminal procedure from courts-martial or federal courts would make it impossible to have any trials at all for a raft of reasons, including chain of custody rules, hearsay rules, the use of classified evidence, etc. And you think the process has been slow now--try putting it in Federal Court.
So long as the administration and its supporters are caught up in trying to prove that they aren't evil, and that no changes should therefore be made, the conversations can't really take place.
There is much to this, but only if we add its complement--so long as the administration's opponents are caught up in trying to prove that the administration is corrupt, dishonest and evil, and that everything done was wrong, the conversations can't really take place.
78 seems mostly right based on what I know, but I am not sure what you do about it in the real world that makes things better.
re: 79
Of course we want more information, but the Government is properly reluctant to give it up. It has intellegence value to our enemies. Contrary to what seems to be the conventional wisdom here, intelligence is not made of a few BIG SECRETS and nothing else matters. Intelligence is most often made of millions of tiny pieces of information. So each piece we release--even though one reasonably could argue with respect to that one piece that it could not be a big deal--makes a difference.
CSRTs were in fall 2004 and winter/spring 2005, by the way, and the government had had years to learn whatever they could from the prisoners by the time they conducted them.
I was mistaken--I thought the reviews were done a bit earlier. You are right, it is a mystery why the records are not clearer.
Posted by Idealist | Link to this comment | 04-26-06 8:15 PM
I can be thin-skinned.
Fascist.
Posted by SomeCallMeTim | Link to this comment | 04-26-06 8:25 PM
You mean fascia-ist.
Posted by LizardBreath | Link to this comment | 04-26-06 8:30 PM
So long as the administration and its supporters are caught up in trying to prove ...
... add its complement--so long as the administration's opponents are caught up in trying to prove ...
There's probably a fancy name for this which, if I'd paid more attention in school, I'd remember. But I don't. It's an apples and oranges problem.
"The administration" is a corporate entity. It is organized. When an administration official is speaking on the record, it's fair to ascribe whatever is said to the administration. Supporters, maybe not so much. But the statement 'the administration is trying to prove' makes sense.
The administration's opponents are not a corporate entity. No opponent speaks for any other, and no two are in perfect agreement. It makes no sense to say 'the administration's opponents are trying to prove', because that's not a group that can possibly act as a body.
Posted by Michael H Schneider | Link to this comment | 04-26-06 8:43 PM
You mean fascia-ist.
Clever, even after too much wine. I'm sober, and I cannot play off this.
Posted by Idealist | Link to this comment | 04-26-06 8:47 PM
Look, even if you assume that all the persons captured by unknown captors were captured by US forces—which is to say the least highly improbable, but—you still end up with 49% captured by US forces. Which means most were not captured by US forces. And it's really, really unlikely that they have better data on people captured by the Pakistanis than they do on people captured by the US.
Posted by slolernr | Link to this comment | 04-26-06 10:44 PM
The majority of the people released are Saudies and they will be delivered to the Saudi authorities even though there is no charge against them. That means jail, torture and probably death for most of them.
Hardly good news.
Posted by Sirkowski | Link to this comment | 04-27-06 2:37 AM
I.
51: apo, I do not think that your point is entirely fair, since those aren't political rights which differ significantly from other sorts of rights. Any time that you get the sovereign/state involvedthings get messy.
I once wanted to write a paper arguing tha certain rights should be expressed as negative liberties, because treating them as positive rights accruing to a right-holder would make them more alienable,and it seems to me that certain fundamental rigths ahouldn't be alienable.
So, it's okay to say that you have a right to certain stock options, because you're free to alienate those shares, but it's not okay to say that I have a right not to be a slave, because that means that I could, if I wanted to, sell myself into slavery. Much better to say that nobody can hold anyone in involuntary servitude. That gets messy, because we've moved beyond rights which are strictly speaking about the relationship between the state and the individual. Still, I'm pretty comfortable saying that certain types of fundamental rights are quasi political. So, I'd be willing to say that a universal prohibition against torture is justified irrespective of the rights of the S&M crowd.
II. CCP or whoever it was who made a distinction between rights and privileges, please explain the difference.
In an old pair of Yale Law Journal articles, from 1917 or thereabouts, called "Fundamental Legal Conceptions As Applied in Judicial Reasoning postulated four jural opposites: (1.) right/ no-right; (2.) privilege/duty; (3.) power/ disability and (4.) immunity/ disabilty. His four jural correlatives are: (1.) right/duty; (2.) privilege/ no-right; (3.) power/liability; and (4.) immunity/disability. As far as I can tell, this doesn't fit perfectly with our rather fuzzy definitions of teh 14th Amendment's "privileges and immunities" when we have seen fit to apply them. I don't know that anybody has defined for all time the distinction between a right and a privilege. Tell me, what is the difference between a privilege and a disability? I've read the article and can't figure it out.
III. Geneva Conventions
I thought that I heard somewhere that the it was wrong to speak of the Geneva Conventions not applying to particular people. The Geneva Conventions apply to everyone. The question is really: which of the Conventions applies? What most people are really saying is that the Convention on the treatment of Prisoners of War may not apply to the detainees/ prisoners at Guantanamo, but it is actually rather disingenuous to say that the Geneva COnventiosn do not apply at all.
Posted by Bostoniangirl | Link to this comment | 04-27-06 7:30 AM
In the sense that I’m using it, a right is inalienable, and a privilege is not; a right permits action through the observance of an underlying truth, a privilege is granted as political recourse.
Well, I've been away from a computer since my last post here, so, I haven’t read the whole thing... just 89, so: my apologies if I’ve ignored anyone. Also, I'm not an American, and, honestly, I'm not that familiar with American law (except in a T.V. kind of way).
A right is inalienable, and a privilege is not. A right is granted by an underlying universal philosophy or truth, and a privilege is granted temporarily or conditionally.
A disability cannot be revoked, undone, or avoided; where as a privilege can be.
Posted by Central Content Provider | Link to this comment | 04-27-06 8:33 AM
That's twice today I've done that. Ignore the first line above.
Posted by Central Content Provider | Link to this comment | 04-27-06 9:18 AM
Hey LB, you got picked up by The Daou Report!
Posted by bitchphd | Link to this comment | 04-27-06 11:22 AM
and have also resulted in a few instances of criminally improper treatment which was not only wrong and criminal, but also which damaged our cause much more than it ever could have helped it.
I have a problem with this. IANAL and all that, but this seems to me to be yet another lawyerly trick of redefining something without letting on you're doing so: in this case, minimizing what we *know* to be true (there were considerably more than "a few" instances of wrong and criminal treatment at Guantanamo--and elsewhere) by seeming to concede a point. And we have a fair bit of evidence that these instances were, in fact, national policy, formulated by the Secretary of Defense and possibly (one suspects probably, or he would have been fired by now) his superiors. Over the heads and advice of many professional military folks, at that. We also know that the "enemy combatants" thing was an explicit administration decision to redefine them so that they wouldn't be covered under the Geneva conventions, which while obviously do-able with the right lawyers and judges, is, if not "evil," certainly venal and immoral.
And all this is quite apart from the "certainly damaged our cause" thing. In fact, I would argue that "our" cause, inasmuch as it was formed, defined, and pursued by the very same people who formed, defined, and pursued the policies under which prisoners are detained at Guantanamo, Abu Ghraib, and in the U.S. (Padilla), that distinguishing from "cause" and "policy" in this case is a kind of willful blindness. Inasmuch as our "cause" is supposed to be "anti-Terrorism"; inasmuch as we have defined "terrorists" as "not subject to the Geneva Conventions"; and inasmuch as we have defined the "War on Terror" as one that must be preemptive, fought against moving targets, and somehow both in the name of "freedom" and advanced by the denial of freedoms and rights that we have become accustomed to, that are enshrined in our Constitution and international laws that we have helped write, I don't see how it is possible to understand the situation at Guantanamo and the larger human rights issues involved in torture, detention, and trials of prisoners as anything other than central parts of the current administration's world view.
Posted by bitchphd | Link to this comment | 04-27-06 11:40 AM
...as anything other than central parts of the current administration's world view.
And to tie it all up... a world view that has recast human rights as privleges to be assigned according to the whims of authority.
Posted by Central Content Provider | Link to this comment | 04-27-06 12:30 PM
Someday, someone will explain to me why the US ought to release men captured on the field of battle, before the war is over, so that they go back and pick up arms again.
Those who were captured by mistake, or who otherwise have been determined not to be a risk to return to the field of battle, fine, once that's determined, let 'em go. But the notion that we have try enemy soldiers for crimes under the Federal Rules of Criminal Procedure or let them go to fight again is madness squared. No army, no country in the history of the world has ever done that.
Posted by DBL | Link to this comment | 04-27-06 1:53 PM
Did you bother to read the thread, DBL? Start with comment #2, which includes:
Posted by apostropher | Link to this comment | 04-27-06 1:57 PM