Really Liz Cheney? Really???

[phillipmj]

But I'd like to know how you can be so damn certain that not one innocent person has ever been detained on terror charges

I hear the answer to that one all the time: "Because they're ALL terrorists over there."

[telkanuru]

I have no problem with draconian penalties being applied to fairly convicted terrorists. But I'd like to know how you can be so damn certain that not one innocent person has ever been detained on terror charges and/or why you're so fecklessly unconcerned about sorting the innocent out from the guilty.

Almost like there's precedent for using the courts to convict terrorists.

[Slim]

I have no problem with draconian penalties being applied to fairly convicted terrorists. But I'd like to know how you can be so damn certain that not one innocent person has ever been detained on terror charges and/or why you're so fecklessly unconcerned about sorting the innocent out from the guilty.

I'm not, but with these characters and where they were picked up, I'm less inclined to believe anyone there is truly "innocent" and more concerned about them harming innocents.

[Inquartata]

Well, now, they could have been innocent men hypnotized into firing AKs and RPGs . Since we can't prove otherwise, hey...

[lindajdunn]

I believe that it's important to speak up and insist that no one be imprisoned without due process.

To quote Martin Niemoller:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn't a Jew.

When they came for me,
there was no one left to speak out.

[Inquartata]

OK. When that fellow mugs you, and a nearby police officer witnesses the crime, remember that he cannot arrest him without "due process". Because, you know, his opinion that the guy is mugging you is not enough, no matter what he sees. Only after a court duly provides "due process" and agrees that this was a mugging should he be legitimately arrested...

And again, POWs are indeed "imprisoned without due process". This is acceptable even under that holy-of-holies, the Geneva Accords. You may believe that this is wrong if you choose, but no one nation to be challenging the practice...


BTW, I have often been told that phrasing an argument in an appealing and quotable form does not imbue the argument with any special force. Sorry, o shade of Pastor N...

[pigeonmeister]

I'm not, but with these characters and where they were picked up, I'm less inclined to believe anyone there is truly "innocent" and more concerned about them harming innocents.

How much do you even know about the circumstances of their arrest?

Clearly there are those in GBay who are a danger, but equally clear is that many were picked up according to rumour or the whims of local tribal leaders wanting to do a job on their neighbours.

But, in any case, the Pentagon claims that there have been 18 confirmed cases of released detainees re-offending as terrorists.

Even if we accept this figure, as Peter Bergen has stated, that amounts to a 4% re-offending rate. Pretty astonishing considering the amount of innocent people released without charge who endured appalling treatment and who might hold a fairly substantial grudge against the US.

I would be willing to bet pretty much anything that the existence of GBay, and the resulting damage to US alliances and the effect of radicalisation, has done more damage to American national security than those 18.

[Philistine]

OK. When that fellow mugs you, and a nearby police officer witnesses the crime, remember that he cannot arrest him without "due process". Because, you know, his opinion that the guy is mugging you is not enough, no matter what he sees. Only after a court duly provides "due process" and agrees that this was a mugging should he be legitimately arrested...

You're skipping a couple of steps.

A police officer arresting a mugger who he sees committing the crime is perfectly good due process. The problem with the analogy is that for quite a while, this was where the Government stopped with detainees.

In your analogy, what due process further requires for the mugger is that he be arraigned, so as to be informed of the charges against him; that a neutral magistrate determine whether it is more likely than not that a crime has been committed and that he was the one to have committed it (in which case the officer's testimony would certainly be sufficient under due process to sustain that burden); and that he be given the opportunity to be heard in front of a neutral judge.

Until somewhat recently, the Government took the position that it need not inform detainees of why they were being detained, and it need not allow them to be heard to contest the basis for their detention.

And again, POWs are indeed "imprisoned without due process". This is acceptable even under that holy-of-holies, the Geneva Accords. You may believe that this is wrong if you choose, but no one nation to be challenging the practice...

Detention of POW's is also consistent with due process--as the GC requires a determination by a tribunal if there is a question of whether a person falls within the definition of POW. The GC provides explicit due process protections of POW's once detention has begun.

At bottom, due process means fundamental fairness. The opposite of due process is arbitrariness--which is why I am generally horrified by arguments that due process should not apply to anyone.

There are certainly legitimate arguments as to what process is due, and under what circumstances--though I would contend that notice, an opportunity to be heard and a neutral magistrate are fundamental to all due process.

I think part of the problem is that there is a mixing of what, exactly, is being obejcted to. As I understand the current legal landscape, there is no question that a person can be held (either as a POW or other combatant) for the duration of the hostilities. Though not completely clear--AUIU the "duration of the hostilities" means land combat in the place of conflict related to capture--though not necessarily the place of capture. (Afghanistan or Iraq, primarily). Certainly, there is a "due process" component here as to whether or not a person can actually contest the basis for whether or not he was actually a combatant or otherwise subject to detention.

Seperate and apart, a person may be tried (either in a criminal court or military tribunal) for actions he took which were against US law or the laws of war. Technically, any killing would be murder if a person is not entitled to POW status. Upon conviction, the person can be subject to imprisonment which can extend beyond the time of hostilities (or, if appropriate, the death penalty). What process is "due" here is the subject of considerable debate.

For a good look at how the DoD sees the general legal issues and laws of war, here is the most recent version of the JAG Law of War Deskbook and the 2007 version (not sure if this is most current) of the JAG Operational Law Handbook. Neither are technically binding on the Government, but they are what the DoD teaches its JAG's.

--Philistine

[lindajdunn]

OK. When that fellow mugs you, and a nearby police officer witnesses the crime, remember that he cannot arrest him without "due process". Because, you know, his opinion that the guy is mugging you is not enough, no matter what he sees. Only after a court duly provides "due process" and agrees that this was a mugging should he be legitimately arrested...

Yes, he could arrest him. At the very least, he could take him into custody, where the alleged mugger would have the right to call an attorney. I would also, as you like to point out, have the right to call my attorney and file a civil lawsuit against him for injuries sustatined. I'm assuming, of course, that I'm injured in the act of mugging.

http://www.ehow.com/about_5454677_ar...rocedures.html

Procedures for arrests are common among all states, with some exceptions being permitted for juvenile arrests in some states. The consistency is required because of due process guarantees inherent in the constitution: A person is not to be deprived of life or liberty without due process of the law. An arrest takes place when a grand jury returns an indictment, or when a judge issues an arrest warrant based on information filed by a prosecutor. At times, all these procedures can be bypassed when the police officer has reasonable rationale for carrying out an arrest---i.e., if an officer witnesses a crime or pulls someone over who is committing an illegal act.

[Bayou Bum]

How much do you even know about the circumstances of their arrest?

How many of the prisoners were arrested peacefully in their home or walking down the street versus how many were captured during combat?

Clearly there are those in GBay who are a danger, but equally clear is that many were picked up according to rumour or the whims of local tribal leaders wanting to do a job on their neighbours.

Equally clear by whom? Those captured in the act of combat should be locked up as prisoners of war. Those arrested and suspected of aiding and abetting the enemy should be given a military tribunal. All prisoners of war should be retained until the war is over; when Al Qaeda and the Taliban surrender or a peace treaty is negotiated; which I don't suspect them to do for a long long time. Of course any prisoners murdering innocent civilians should be charged and dealt with accordingly.

But, in any case, the Pentagon claims that there have been 18 confirmed cases of released detainees re-offending as terrorists.

Even if we accept this figure, as Peter Bergen has stated, that amounts to a 4% re-offending rate. Pretty astonishing considering the amount of innocent people released without charge who endured appalling treatment and who might hold a fairly substantial grudge against the US.

I would be willing to bet pretty much anything that the existence of GBay, and the resulting damage to US alliances and the effect of radicalisation, has done more damage to American national security than those 18.

How many innocent people were released? And how many "innocent" people endured appalling treatment?

What I am trying to understand is how so many who were outraged over the way the Bush administration treated prisoners totally ignore the fact that the Obama administration has not changed the policy and treatment of prisoners. The only difference is Obama gave his word that there would be no torture, and liberals are always willing to take Obama at his word.

[Philistine]

How many of the prisoners were arrested peacefully in their home or walking down the street versus how many were captured during combat?

About 5% were captured by US forces. The rest were handed over. About 55% are not accused of any hostile act against the US or the Coalition allies.

--Philistine

[Inquartata]

Clearly there are those in GBay who are a danger, but equally clear is that many were picked up according to rumour or the whims of local tribal leaders wanting to do a job on their neighbours.

How, exactly, is this made "clear"?

The same argument about "due process" cuts both ways: Even if there has been investigation, how can we know anything about it if there has been no disclosure? And if there has been disclosure, how do we know that we can trust the results when it's just a government report?

Or do you have inside knowledge?

But, in any case, the Pentagon claims that there have been 18 confirmed cases of released detainees re-offending as terrorists.

Even if we accept this figure, as Peter Bergen has stated, that amounts to a 4% re-offending rate.

What's the source of your figures?

You're skipping a couple of steps.

No, I was exaggerating to make a point. Because none of the descriptions or definitions of "due process" I've seen have discussed anything but "legal proceedings", eg that stage of the process occurring well after arrest. In which case arrest constitutes imprisonment without "due process", and cannot be constitutional...

A police officer arresting a mugger who he sees committing the crime is perfectly good due process.

Again, I have not been able to find anything so stating. Every source I've found has confined its discussion to criminal and civil trial, administrative proceedings, and incarceration...

In your analogy, what due process further requires for the mugger is that he be arraigned, so as to be informed of the charges against him; that a neutral magistrate determine whether it is more likely than not that a crime has been committed and that he was the one to have committed it (in which case the officer's testimony would certainly be sufficient under due process to sustain that burden); and that he be given the opportunity to be heard in front of a neutral judge.

Exactly. And prior to that, there has been no application of due process; and therefore any imprisonment, even if it be only the back seat of a squad car, is unconstitutional. Arrest, therefore, since it occurs before---therefore without---due process would be illegitimate...

Detention of POW's is also consistent with due process--as the GC requires a determination by a tribunal if there is a question of whether a person falls within the definition of POW.

"If there is a question"?

Who decides if there's a question, though?

The GC provides explicit due process protections of POW's once detention has begun.

Do these include provision of an attorney, habeas corpus, the right to a criminal trial, etc?

At bottom, due process means fundamental fairness. The opposite of due process is arbitrariness--which is why I am generally horrified by arguments that due process should not apply to anyone.

Oh, it should apply to those who are included in the social compact which is the nation and its laws. I do not see how that necessarily includes foreign enemies of the nation and its laws...

As I understand the current legal landscape, there is no question that a person can be held (either as a POW or other combatant) for the duration of the hostilities.

Then why are we considering trials? The outcome of a trial is a verdict. If the verdict is "not guilty", for whatever reason, the result is release, no?

Technically, any killing would be murder if a person is not entitled to POW status.

And this is the sticking point. Clearly, non-state "soldiers" are not POW's, particularly when no traditional war is in progress. Yet neither are they common criminals. Criminal justice methods are ill equipped for dealing with the organized waging of "war", just as military methods are ill suited to dealing with common criminals...

What I am trying to understand is how so many who were outraged over the way the Bush administration treated prisoners totally ignore the fact that the Obama administration has not changed the policy and treatment of prisoners.

St. Augustine was once asked what God was doing before he created the heavens and the earth. The saint replied that He was creating a Hell for people who asked such questions.

Sometimes I think that many people on both sides of the political aisle would find that Hell useful...

About 5% were captured by US forces. The rest were handed over. About 55% are not accused of any hostile act against the US or the Coalition allies.

Whence come these figures?

[lindajdunn]

Whence come these figures?

THE GUANTANAMO DETAINEES: THE GOVERNMENT’S STORY
Professor Mark Denbeaux* and Joshua Denbeaux*

http://papers.ssrn.com/sol3/papers.c...ract_id=885659

http://www.nationaljournal.com/about...06/0203nj4.htm

[Philistine]

No, I was exaggerating to make a point. Because none of the descriptions or definitions of "due process" I've seen have discussed anything but "legal proceedings", eg that stage of the process occurring well after arrest. In which case arrest constitutes imprisonment without "due process", and cannot be constitutional...

Again, I have not been able to find anything so stating. Every source I've found has confined its discussion to criminal and civil trial, administrative proceedings, and incarceration...

Exactly. And prior to that, there has been no application of due process; and therefore any imprisonment, even if it be only the back seat of a squad car, is unconstitutional. Arrest, therefore, since it occurs before---therefore without---due process would be illegitimate...

I'm really not sure what you're saying here. I don't think anyone is saying that the initial detention is wrong (at least from a due process point of view). I'm certainly not saying it--and generally in criminal law arrest issues are looked at from the 4th Amendment's standard of reasonableness--which pretty much satisfied due process, since the "process" is already spelled out.

"If there is a question"?

Who decides if there's a question, though?

In the first instance, a person may assert that he is so entitled. Otherwise, if there is some other reason for doubt--presumably by the commander, JAG officer or some other. FM 27-10 (chapter 3, sec. 71(b)).

Do these include provision of an attorney, habeas corpus, the right to a criminal trial, etc?

Yes to an attorney and to habeas/trial/appeal (at least to the extent that US soldiers would so be entitled). Not sure about the "etc." Generally see Secs. 99-107 of the Geneva Convention III.

Oh, it should apply to those who are included in the social compact which is the nation and its laws. I do not see how that necessarily includes foreign enemies of the nation and its laws...

Fundamental fairness should not apply? I disagree.

Then why are we considering trials? The outcome of a trial is a verdict. If the verdict is "not guilty", for whatever reason, the result is release, no?

Not necessarily. The outcome of a trial for a specific act resulting in a guilty verdict or plea is imprisonment or (depending on the crime) death. This imprisonment would be for a specific term, not related to the duration of hostilities.

The outcome of a not-guilty verdict is merely a return to "normal" custody until the end of hostilities.

To the extent the issue is whether or not someone was an enemy combatant at all (which is not what the criminal trials are on), a determination that the person was not a combatant would result in "freedom"--though, as the Uyghers show, that doesn't necessarily translate to release.

And this is the sticking point. Clearly, non-state "soldiers" are not POW's, particularly when no traditional war is in progress.

Well--that's not necessarily the case, but for those currently being held, I think you're correct.

Yet neither are they common criminals. Criminal justice methods are ill equipped for dealing with the organized waging of "war", just as military methods are ill suited to dealing with common criminals...
{snip}

I'm not convinced. I don't disagree, in principal, with the creation of special courts (even military tribunals--though I don't really think they're necessary, and may be counterproductive) for dealing with detainees you want to try. Which will be pretty few, comparatively. There are certain security, intelligence and other considerations which special courts might better be able to handle (though they can be handled in a "regular" court with a good judge).

I just don't see a need to dispense with the things that we've otherwise said are necessary in a civilized society to have a fair trial.

Whence come these figures?

Oops, sorry. It's the Seton Hall Guantanamo Report on 517 detainees, which takes all of its data from Government sources.

--Philistine

[pigeonmeister]

How, exactly, is this made "clear"?

The same argument about "due process" cuts both ways: Even if there has been investigation, how can we know anything about it if there has been no disclosure? And if there has been disclosure, how do we know that we can trust the results when it's just a government report?

Or do you have inside knowledge?

I'm am not entirely sure what the logical conclusion of your train of thought is- seems to more an excercise in circular reasoning designed to stonewall any judgement (and thus moral contemplation).

Put most simply, the US has locked up hundreds of people based on the say so of extremely dubious people (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 http://law.shu.edu/publications/guan...al_2_08_06.pdf)

Not only that, but these people were handed over to US officials at a time when America was offering large financial bounties per 'prisoner'.

Most of those people have subsequently been found to have no links to any proscribed group and have been released.

The rest of the world, and thankfully many Americans, seems to find this odd.

Of those who have been released, despite now having every reason to want to take up arms against the US, only 5% have been proven to. This is massively below the reoffending rate of US prisons.

Based also on my work as a research assistant for a colleague's book on British counter-radicalisation and counter-terrorism, that GBay (like the associated atrocities in Abu Ghraib) has been a significant boost to jihadi recruiters. The whole institution has been counter-productive to prosecuting the so called 'war on terror'. Those very few who have been released and carried out attacks on US interests do not obviate that point, in my view.

The answer of simply never letting people out is the easy answer to concerns that some, who cannot be put on trial, may re-offend. This is a dilemma western democracy has grappled with for years. Basically, perpetual detention is not an acceptable answer.

I'm sure you take the opposite view and believe Mr Cheney's characterisation of the benefits GBay had afforded US national security.

There is no way of definitively proving either assertion and I obviously have absolutely no expectation of you changing your position.

What's the source of your figures?

http://www.reuters.com/article/idUSTRE50C5JX20090113

To be fair, the figure is put at 10% by one Carnegie report- even 20% by a second. I believe that these latter figures are based on the number 'believed' to have returned to terrorist activities- whilst the 5% figure relates to those who are known to have returned to actual combat. Bare in mind 1) intelligence can be wrong 2) terrorist activities can be so categorized because they publicly made anti-American statements 3) US prisons have a 40% recidivism rate.

[I_luv_saber]

Based also on my work as a research assistant for a colleague's book on British counter-radicalisation and counter-terrorism, that GBay (like the associated atrocities in Abu Ghraib) has been a significant boost to jihadi recruiters. The whole institution has been counter-productive to prosecuting the so called 'war on terror'. Those very few who have been released and carried out attacks on US interests do not obviate that point, in my view.

IMO, this will be a taint on America for years and years to come. Stronger than perhaps even the Japanese-American camps and spoken of similarly to the Trail of Tears...

[Bayou Bum]

About 5% were captured by US forces. The rest were handed over. About 55% are not accused of any hostile act against the US or the Coalition allies.

--Philistine

I'm not going to dispute your facts because I don't have any to either confirm or dispute them at this time.

How do those here who think we have abused the rights of prisoners or detainees without due process feel about our AG Eric Holder saying that Bin Laden will never face trial in the US because he will not be captured alive? Is it right for the AG to issue a death penalty before Bin Laden is even convicted in a military tribunal?

[badpenny]

Well, now, they could have been innocent men hypnotized into firing AKs and RPGs . Since we can't prove otherwise, hey...

http://www.cbc.ca/world/story/2009/0...-innocent.html

Read the link, sir.

In it you will find a former-Bush official admitting that the bulk of detainees are probably innocent, picked up by incompetent officials that could not discriminate between combatants and civilians.

You know, I don't want to get all personal, but if I was this wrong about something I seemed so certain on, I would tend to question alot of my politics. Just sayin....

[jeff]

EDIT: whoops, badpenny's post came in between this and the BB post I'm replying to.

That's a prediction rather than a death penalty:

"Let's deal with reality," Holder said. Bin Laden "will never appear in an American courtroom."..."The possibility of catching him alive is infinitesimal. He will be killed by us or he will be killed by his own people so he can't be captured by us.""Let's deal with reality," Holder said. Bin Laden "will never appear in an American courtroom." Pressed further on that point, Holder said: "The possibility of catching him alive is infinitesimal. He will be killed by us or he will be killed by his own people so he can't be captured by us."

http://www.reuters.com/article/idUSTRE62G4MX20100317


BB, since you don't dispute Philistine's data (which he's found citation for), how does that affect the opinions you've previously expressed?

[phillipmj]

You know, I don't want to get all personal, but if I was this wrong about something I seemed so certain on, I would tend to question alot of my politics. Just sayin....

Rep .