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Guantanamo: After Acquittal, More Detention

By Jeralyn, Section Terror Detainees
Posted on Sun Jun 05, 2005 at 06:18:08 PM EST
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60 Minutes tonight featured a segment with Ed Bradley on the Guantanamo military tribunals. The defense lawyers, all active military members in uniform, blasted the procedures. A White House lawyer, Bradford Berenson, who helped write the President's order authorizing the tribunals, defended them vigorously. A military prosecutor seemed less sure, but toed the party line, and said we should wait and see how they play out.

Only four of the more than 550 detainees have had criminal charges brought against them. What will happen to them if they are acquitted? They will go back to their cell, until the end of the war on terror, which could be decades.

So why give them a trial at all then? The military defense lawyers said it's a show trial, meaningless. Berenson, the White House lawyer, answered:

"If you’re acquitted by a military commission proceeding, it may mean that you are not a war criminal," says Berenson. "It doesn’t mean that you’re not an enemy combatant who can be held by our forces until the end of hostilities."

Some highlights:

Navy Lt. Cmdr. Charlie Swift is one of the team of military lawyers appointed by the Pentagon to defend those accused of being the nation’s worst enemies. Does he believe that the prisoners in Guantanamo are getting a fair shake? "Under the rules, as they’re written right now, no way," says Swift. "The rules are written from the -- to make every possible accommodation for the prosecutor, with no thought to, 'Does this jeopardize a right of the accused?'”

Lt. Col. Sharon Schaffer, a former Air Force Judge, who turned down a substantial promotion to continue defending her detainee, gave this explanation of her role:

"Different people have been mandated to defend freedom in different ways, whether you’re out in the field carrying a weapon or whether you’re guarding Camp Delta down at Guantanamo Bay, Cuba," says Shaffer. "I am defending America and its principles and its notions of liberty and justice."

The White House lawyer and defense lawyer Lt. Cmdr. Charlie Swift also disagreed on whether Bush was intruding into the court's power with the tribunals or vice versa.

"The federal courts aren’t intruding into the president’s power. The president is intruding into the court’s power," says Swift. "As a military officer, I don’t question the president’s ability to fight and win a war. That’s not what the president is talking about here. What the president’s talking about is handing out criminal sanctions, including the death penalty, to people who are already prisoners. He’s not talking about fighting. He’s talking about justice. And now what the government is saying is, “don’t you dare intrude into the president’s powers to hand out justice.”

It's not the executive's job, particularly as Commander in Chief, to mete out justice. That right belongs to Congress in the case of defining crimes and setting penalties, and to the courts if it's time to impose a penalty.

The Supreme Court will decide the issue.

Last November, a federal judge agreed with Swift, ruling the commissions are unlawful because they are “fatally contrary” to established standards of justice. The government is appealing.

This is just another reason that appointment to the Supreme Court is such a critical issue.

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    Guantanamo: After Acquittal, More Detention | 27 comments (27 topical)
    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#3)
    by Randinho on Sat Dec 17, 2005 at 12:59:42 PM EST
    That's the way war has been fought and the international agreements reflect it. The term "enemy combatant" is a creation of the Bush administration and is not mentioned in the Geneva Conventions, so your comment is patently false. The Geneva Conventions do mention prisoners of war, but the Bush administration does not consider these individuals prisoners of war. The World According to Richard Aubrey: You're guilty until proven innocent, then if you're proven innocent you're still guilty because I think you're guilty.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#4)
    by The Heretik on Sat Dec 17, 2005 at 12:59:42 PM EST
    Enemy combatants are held until the end of hostilities. No trial is needed. Never has been. That's the way war has been fought and the international agreements reflect it. Not to burst the righteous bubble for you, but the question is whether these "combatants" are what the government says they are. And if these people being held are not enemy combatants, as a good American who loves liberty and knows its defense is the light the world looks to for an example, no doubt you would want them freed? Because true American values would never be the chains to hold the innocent free.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#1)
    by roger on Sat Dec 17, 2005 at 12:59:43 PM EST
    I cant wait for the wingers to tell us how the JAG lawyers now hate America

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#2)
    by Richard Aubrey on Sat Dec 17, 2005 at 12:59:43 PM EST
    Enemy combatants are held until the end of hostilities. No trial is needed. Never has been. That's the way war has been fought and the international agreements reflect it.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#5)
    by Darryl Pearce on Sat Dec 17, 2005 at 12:59:43 PM EST
    Enemy combatants are held until the end of hostilities. guffaw, chortle, snicker During our own Civil War prisoners were "paroled" back to their homes. I protest against the executive's grab at unreviewed, unrestrained power. Secrecy breeds abuses. Absolute power corrupts absolutely. "Trust but verify" said Ronald Reagan. That applies to our own government: of, by, and for the people. This administration has failed to put "cash on the barrelhead" for most of their imaginary united-terrorist underworld or their exaggerated dangers of weapons of mass destruction (or their related program activities).

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#6)
    by Richard Aubrey on Sat Dec 17, 2005 at 12:59:43 PM EST
    If these morons wore uniforms, it would be different. When you choose to hide among civilians, you make it inevitable that some civilians will be shot/captured. This is a Good Thing because it gives Lefties ammo. They like it. However, war being what it is, those folks are going to be held until it is determined they were not enemy combatants. Many have been let go, twelve of which, at last report, went back to fighting us. Not enough to satisfy the lefties, but it's a start. The reason for the invention of the term "enemy combatants" is that the kind of fighting the terrorists do is not mentioned in the GC, either. If your expectations are limited by a GC view of the world, and you run into something else, you'll probably have to come up with some new words. That's a crime? Don't even start. Actually, I should be more accurate. According to the GC, these guys can be shot immediately. The first mention of this kind of thing referred to "francs-tireurs" who sniped while in civilian clothes in, I believe, the Franco-Prussian War. Other US regs and laws, notably the Law of Land Warfare, gives these guys more protection than the GC does. The US captured a bunch of Hitler Youth, not knowing if they'd been ammo-passers or telephone answerers at flak batteries, or were just wearing the uniform at the age of fourteen. Point about war is, you don't know. If the US knew for sure some of these guys were not enemy combatants--and that means more than being a trigger-puller--they sure wouldn't be spending whatever it costs for a single at the Gitmo Arms. Forget it, guys. Either the GC applies, in which case these bozos are in a world of hurt, or it doesn't, in which case non-GC procedures will have to be used. Can't have it both ways. You also challenged whether or not I knew if these guys were enemy combatants or not. That means you think there's a difference. What is the proper treatment for a captured enemy combatant? Yeah, yeah, I know. He sues Bush for a million dollars and gets a scholarship to Harvard. I mean, what is it you are trying to pass off as a reasonable idea when talking to people you want to fool?

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#7)
    by Darryl Pearce on Sat Dec 17, 2005 at 12:59:43 PM EST
    what is it you are trying to pass off as a reasonable idea The answer would be: a government accountable to its citizens, a government considerate of its principles, a government that advocates rights and ensures responsiblities. Iraq has proved not to be a threat--oh, wait... NOW were talking about Afghanistan's Taliban and Al-Qaeda... oh, wait, now I remember: Iraq is the central front in the War on Terror®... oh, wait: Iraq didn't have any WMD and we bombed them from the air with impunity for thirteen years now we're on the ground and they're BOMBING US with impunity. After two years, we've got only four square miles of "green zone." Effin' A.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#8)
    by Randinho on Sat Dec 17, 2005 at 12:59:43 PM EST
    Many have been let go, twelve of which, at last report, went back to fighting us. Not enough to satisfy the lefties, but it's a start. Do you ever cite a credible source for any claims you make? Ever?

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#9)
    by Richard Aubrey on Sat Dec 17, 2005 at 12:59:43 PM EST
    Randy. Being an old fart, I usually refer to books. As to the guys we let go who went back to fighting us, that's been general knowledge for some time. I expect you know it. However, by challenging me to come up with a link to a news report (s), you presume to make the fact go away. Facts don't work like that. Besides, no source with information you don't like is going to be credible, at least in the public argument. Now, what about what ought to be done with enemy combatants? You're right about the Civil War soldiers, except for those who weren't paroled back. That also preceded the GC.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#10)
    by Al on Sat Dec 17, 2005 at 12:59:43 PM EST
    It should be fairly obvious even to someone as blinded as Aubrey that the reason why these "detainees" are not treated as prisoners of war and are shipped to Guantanamo, where the US government hopes the American justice system has no jurisdiction, is because as far as their detention goes, USG doesn't have a legal leg to stand on. Are they terrorists? Were they captured while attacking anyone? Or plotting to attack anyone? The truth is, nobody knows. Who are these people? Where were they captured? What were they doing when they were captured? What was the reason why each one of these individuals was captured?

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#11)
    by Ernesto Del Mundo on Sat Dec 17, 2005 at 12:59:43 PM EST
    "If you’re acquitted by a military commission proceeding, it may mean that you are not a war criminal," says Berenson. "It doesn’t mean that you’re not an enemy combatant who can be held by our forces until the end of hostilities."
    Yeah let's just make it up as we go along. "Enemy Combatants" can be war criminals how? By what it says in the Geneva Convention or by whatever criteria the Bushies say? And if the war criminal part is from the GC, how come we are pitching the rest of the GC in the trash? It must be fun creating policy at the head of a rogue state. And these are the guys that vilify Castro.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#12)
    by The Heretik on Sat Dec 17, 2005 at 12:59:43 PM EST
    The Geneva Convention has no provisions for signees opting out of the agreed terms, but it does have charges for those who violate the Conventions' terms. In instances where we do opt out of the terms of the Convention, two things are clear: the possibility of our prosecution and the probability our soldiers will enjoy no Geneva protections. Geneva 1950 Article Two clearly states the binding nature of the the agreement upon signing parties. Geneva 1950 Article Five clearly states that where there is doubt as to a prisoner's legal status, POW status will be respected until such doubts are removede. See Geneva if you want to see the truth in the words. Apologists for small atrocities visited upon the incarerated may stop reading now. The person who visits indignity upon the weak and powerless shows only the corruption of his power. More on this at From the Mouth of Hell: Greetings from the Gulag From Article Two: Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. From Article Five:The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#13)
    by kdog on Sat Dec 17, 2005 at 12:59:44 PM EST
    If a detainee can be found innocent of wrongdoing, and then led right back into a cage....that's a show trial folks.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#14)
    by ppjakajim on Sat Dec 17, 2005 at 12:59:44 PM EST
    kdog - I suppose you never heard of a prisoner being tried for a crime while in prison for another crime? Heretik "
    the possibility of our prosecution and the probability our soldiers will enjoy no Geneva protections
    ." Possibility? What is it about beheadings that you do not understand? I mean, these people are blowing up car bombs in the middle of public areas, and you think they would pay attention to the GC. Good grief. You also ignore the first three words of Article 5: "Should any doubt arise" So, if the possibility of doubt rising exists, then the possiblity of doubt not existing also exists. So, if there is NO DOUBT that the person is not covered as referred to in Article 4, then he is not covered. Ernesto - It is not possible to villify Castro. He has done it totally.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:44 PM EST
    As you do yourself, PPJ...

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#16)
    by soccerdad on Sat Dec 17, 2005 at 12:59:44 PM EST
    PPJ has distilled the GC, its cases, its history and its precedents into 5 words he can parse the way he wants. To me, he belongs with JR in the intellectually dishonest Hall of Shame.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#17)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:45 PM EST
    "Enemy combatant" is something of a redundancy. A member of the armed forces of the enemy is an "enemy combatant." The term you're looking for is "unlawful combatant." That is the current term for what used to be called a "franc tireur," or "free shooter" - civilians loosely organized and armed against invaders. In WWI the Germans razed whole villages in Belgium in retaliation for civilian attacks on occupying forces. In WWII a resistance group in France took the name "Les Franc Tireurs" with pride. So there's nothing new in warfare about armed civilians shooting at an occupying force. Obviously, if a soldier of an occupying force confronts an armed and hostile civilian, the soldier is entitled to shoot him. Just as obviously, if a soldier is confronted with an armed civilian who has surrendured, the soldier is not entitled to shoot him. The captured civilian is entitled to the protections of GC IV, which are minimal. He can be detained without trial. He can be tried and executed if he actually killed anyone. The main difference between a lawful combatant and an unlawful combatant is that a lawful combatant - a soldier - is allowed to shoot and kill members of the occupying force and if captured can't be punished for it, while an unlawful combatant can be. But he can't be tortured. Art. 3(1) of Convention IV makes this clear: To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons [anyone not involved in combat, including persons in detention]: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Wikipedia has a useful discussion plus links to the Conventions: http://en.wikipedia.org/wiki/Unlawful_combatant

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#18)
    by ppjakajim on Sat Dec 17, 2005 at 12:59:45 PM EST
    JR - Thanks for writing what I meant, which is unlawful combatant. And I never said we should torture them. From the gitgo I commented we should investigate, charge and try where necessary. My point is, and was, that these people are not covered under the GC. I think they deserve an evaluation, and if there is no doubt, straight to prison. If there is doubt, a tribunal. If found to not be an unlawful combatant, released with compensation. If found to be an unlawful combatant, back to prison. If found guilty of certain actions, we should execute them. Of course the problem is, when do you expect a radical dedicated to killing infidels to be ready for parole?

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#19)
    by roger on Sat Dec 17, 2005 at 12:59:45 PM EST
    Jim, Sounds like you agree with those JAG officers. If they win their (semi fair) trial, then release them right away.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#20)
    by Ambiorix on Sat Dec 17, 2005 at 12:59:45 PM EST
    The chairman of the U.S. Joint Chiefs of Staff said Monday the Guantanamo Bay prison camp should not be closed because some inmates are too dangerous to be released "under any conditions."
    Nytimes If only they had any idea which of the 500+ detainees were the few dangerous ones.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#21)
    by Randinho on Sat Dec 17, 2005 at 12:59:47 PM EST
    Richard, As to the guys we let go who went back to fighting us, that's been general knowledge for some time. Then cite a source. I expect you know it. However, by challenging me to come up with a link to a news report (s), you presume to make the fact go away. Never heard that at all. I read the New York Times daily, the Economist the New Yorker, the Christian Science Monitor, Financial Times, Miami Herald, Washington Post and regularly check internet sites. Facts don't work like that. Besides, no source with information you don't like is going to be credible, at least in the public argument. Poppycock. You just don't have any way to back up the claim and choose to blame me for your inadequacy. [BIG YAWN]

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#22)
    by Richard Aubrey on Sat Dec 17, 2005 at 12:59:47 PM EST
    Somebody mentioned Civil War soldiers being paroled back home. That sometimes happened, sometimes not. However, irregulars were also shot after a drumhead court, or hanged. These guys are irregulars. You don't have a criminal trial to decide if somebody was taken prisoner on the battlefield. Being an enemy soldier is not a crime. The criminal issue here is whether they were irregulars. You really don't want to find out, you know. 'cause, as an earlier post poined out, immediate execution is legal. The only way I think you can win on this one is if there is no trial so you can continue to complain that there should be, or if you have some way to insist that no evidence of anything no matter how awful actually counts. Anyway, the left's interest in this matter is simply a matter of political games. The fate of unfortunates is never a real concern, unless it's useful, and the fate of the enemies of the US is always to be heroes.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#23)
    by Randinho on Sat Dec 17, 2005 at 12:59:49 PM EST
    Anyway, the left's interest in this matter is simply a matter of political games. The fate of unfortunates is never a real concern, unless it's useful, and the fate of the enemies of the US is always to be heroes. More ad hominem bilge from Richard Aubrey. Like knowing the sun will rise in the morning and set at night, knowing Richard Aubrey will never back up a claim he makes or write sweeping generalizations it's good to have soem things you can count on.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#24)
    by Randinho on Sat Dec 17, 2005 at 12:59:49 PM EST
    That should have been "and write in sweeping generalizations."

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#25)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:49 PM EST
    As to the guys we let go who went back to fighting us, that's been general knowledge for some time. I expect you know it. However, by challenging me to come up with a link to a news report (s), you presume to make the fact go away. Facts don't work like that
    Hmm. It's "common knowledge" and yet you are unable to come up with a single link to a credible news source confirming it. That's not a fact, it's an unsubstantiated allegation. Nothing more. That is a fact. That's how facts work.

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#26)
    by Sailor on Sat Dec 17, 2005 at 12:59:49 PM EST
    I myself don't doubt that some of the released prisoners would take up arms against the US. If someone invaded my country, locked me up w/o reason, kept me in barbaric conditions and tortured me, I would dedicate the rest of my life to seeing their downfall. That's supposed to be the indomitable 'American Spirit', (as seen in Red Dawn;-) "It is better to die on your feet than live on your knees" "Live free or die" "We must all hang together, or assuredly we shall all hang separately." WHy would we think the rest of te world has lesser ideas than we have?

    Re: Guantanamo: After Acquittal, More Detention (none / 0) (#27)
    by Sailor on Sat Dec 17, 2005 at 12:59:49 PM EST
    What has been missing in all the rw args, (and soul and conscience) is empathy. Arguing they don't deserve due process is saying they are less than human. Maybe we can claim them as 2/3 of a person for census purposes.

    Guantanamo: After Acquittal, More Detention | 27 comments (27 topical)