Really Liz Cheney? Really???

[Bayou Bum]

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....

I guess you would be questioning a lot about Obama right now. I don't blame you!

[Bayou Bum]

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?

I agree that if it is true, then I believe there is a problem with the way prisoners are being detained. I know several that are serving in Afghanistan, including my younger brother, and it is hard to believe that our troops are rounding up civilians without reason; but I can't speak for them or anyone else. I agree that paying rewards is a bad idea and would lead to people turning in others to make a quick buck. Those turned in by others should be given the presumption of innocence in an Afghan court. But I don't have any change in position for those captured by US troops.

[Inquartata]

I'm really not sure what you're saying here.

I'm not sure how I can make the jest any clearer. But I'll try anyway.

This was Linda's statement:

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

When a police officer collars you, arrests as opposed to detains, you are in effect "imprisoned". Yet there has been, to that point, no "due process" according to any definition or discussion of "due process" I have been able to find, since these latter all seem to discuss nothing as early on as arrest.

That there are procedures and rules governing arrests---ones which have been approved or even mandated by the courts---does not mean that they become part of the "due process" mentioned by the Constitution. If in fact it only pertains to the actions of the court systems, then when one is arrested one is "imprisoned without due process". On this basis I was teasing Linda that she is insisting that no one ever be arrested.

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.

All I see is that the determination of whether or not a person qualifies as a POW must be conducted by a "competent tribunal". I do NOT see anything amounting to the awarding of "due process" rights beyond that single requirement, or past that initial determination...

Yes to an attorney and to habeas/trial/appeal (at least to the extent that US soldiers would so be entitled).

First, these only apply to POWs as defined by the conventions, the criteria of which international terrorists do not meet. ( But that they do not meet them does not mean either that they must be released or that they are simply criminals, AFAICT. )

Second, even if they did qualify, the rights you mention pertain only to trial/punishment for acts committed in custody, not before. I do not see any passage conferring rights to prisoners who simply demand some sort of hearing about the acts which got them there in the first place ( apart from determining into which "category", if any, they fall ).

Third, I do not see any mention of a right corresponding to habeas anywhere in the accords. Can you point out the section which you believe does so?

Fundamental fairness should not apply? I disagree.

Fundamental procedural rights vary from one country to another. I do not believe that because we have been granted certain rights by our system they become "fundamental fairness" for everyone everywhere, including those inimical to the very values reified by those rights and dedicated to their destruction and ours...

Neither do I believe it incumbent upon me to observe the Marquis of Queensbury if someone is trying to kill me.

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

Have you an example of that actually happening?

Well--that's not necessarily the case

Why not?

Even militias and members of a "spontaneous resistance" are associated with a state, even though civilians. And to the best of my recollection no transnational organizations are parties to the conventions...

for dealing with detainees you want to try. Which will be pretty few, comparatively.

Why so? If all that is necessary is that one demands it, and it is learned that by so doing they can discomfit "the enemy", why would they ALL not demand it? And if nothing else, this could overload any criminal justice system, military or civilian...

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

Thanks. Late-night reading.

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

And we are automatically to assume that these latter are "extremely dubious" because...?

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

Hmm...ad hominem circumstantial, anyone? ( smily )

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

Than what are we arguing about? Are you complaining that those who have not are still being wrongly detained? Or alleging that their determinations of culpability were somehow tainted? What?

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.

Again---what is this supposed to prove?

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.

Ah...the old "personal communication" citation. Very convincing, I'm sure! ( smily )

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.

Oh, of course not. ( smily )

Basically, perpetual detention is not an acceptable answer.

Why not?

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.

And therefore we are to assume that his opinion is correct in all particulars?

[Philistine]

{snip}On this basis I was teasing Linda that she is insisting that no one ever be arrested.

Fair enough--though I don't think you guys are talking about the same thing (due process in the US criminal context generally requires a person arrested to be immediately (or as soon as possible) brought before a magistrate--I don't contend that this would contend to the detainees--at least the immedicacy aspect).

First, these only apply to POWs as defined by the conventions,

Yes. Hence my statement about POW's being specifically entitled to due process.

the criteria of which international terrorists do not meet. ( But that they do not meet them does not mean either that they must be released or that they are simply criminals, AFAICT. )

I agree.

Third, I do not see any mention of a right corresponding to habeas anywhere in the accords. Can you point out the section which you believe does so?

Appeal rights are of the form provided to service members. Habeas is a form of appeal.

Fundamental procedural rights vary from one country to another. I do not believe that because we have been granted certain rights by our system they become "fundamental fairness" for everyone everywhere, including those inimical to the very values reified by those rights and dedicated to their destruction and ours...

I agree that the full panolpy of what has been held to be due process requirements in US criminal law don't necessarily apply.

The bedrock, though, of due process--and what has been repeatedly stated as required by fundamental fairness is notice of the charges and evidence agianst you, an opportunity to contest the evidence, and trial before a neutral decision-maker. I think these requirements are absolutely required of anyone being held by the US.

Neither do I believe it incumbent upon me to observe the Marquis of Queensbury if someone is trying to kill me.

Certainly not while they're trying to kill you. Once you have them in your control and completely subject to anything at all you care to do to them--then at that point I believe it is.

Have you an example of that actually happening?

Not that I can think of off-hand. I don't believe any of the detainees have been tried and found not guilty. IIRC, the Government has contended that would be the case with Salim Hamdan (bin Ladin's driver) after he finished his sentence, but I believe they transferred him to Yemen to serve the remaining few months of his sentence (presumably to avoid the bad press of continuing to hold him).

Why not?

Even militias and members of a "spontaneous resistance" are associated with a state, even though civilians. And to the best of my recollection no transnational organizations are parties to the conventions...

No one is "stateless" because of their membership in an organization such as Al Queda. To the extent there is an actual internationl conflict going on, they could be POW's assuming they meet the requirements. That's not the circumstances in the present case, and AFAIK, no-one being held at Guantanemo even arguably meets the requirements of a POW.

Why so? If all that is necessary is that one demands it, and it is learned that by so doing they can discomfit "the enemy", why would they ALL not demand it? And if nothing else, this could overload any criminal justice system, military or civilian...

Again, I think you are confusing the process for trying those accused of war crimes (of which there are maybe 10-20, AIUI) and the process of determining whether the person is a "combatant" at all, which is more abbreviated.

In any event, given the current dockets of, for instance, drug and immigration cases, I find the suggestion that a few hundred such determinations as "overloading" any Court system to be fanciful.

--Philistine

[badpenny]

And therefore we are to assume that his opinion is correct in all particulars?

I don't want to devolve into personal attacks and start a flame war. I do not. It's childish and I don't have the energy anymore.

But seriously, did you read the article? Really?

Because Larry Wilkerson was Colin Powell's Chief of Staff, which you'd know if you bothered to read the article. This isn't some ACLU lawyer.

Is Larry Wilkerson in a position to know the truth of the matter? I guess I would have to say, yes, all things considered, this is a pretty high-up official that would have been privy to the inner workings of the White House at the time in question. Do you think he's lying? ...well, I guess that's the 64 thousand dollar question to ask, right? But, seeing how Don Rumsfeld, Dick Cheney, and quite especially George Bush lied us into a war (WMD anyone?), I guess I'm going with the convential wisdom crowd and going with Larry on this one.

And the bad news is compounded too, because this is deeper than just unjustly imprisoning people, without trial, while torturing them. They knew the truth, early on, and decided to cover it up, so that their flawed leadership would not be besmirched. Wow! I think I have a pretty clear idea of whom belongs in a prison cell, and it's not some Kabuli taxi driver. But not to worry, I'm not some barbarian or WVA national guardsmen, I don't want them to be tortured while in custudy.

At a deeper level, upon learning this, maybe you will start to feel a twinge of guilt for having backed these criminals. Good, so we can establish you're not a sociopath. Let's work on that thought. Maybe you can start to make ammends. Here's what I suggest: You (Inquartata) and maybe BayouBum and any other Republican reading this, and feeling rightfully ashamed, ought to burn your voter ID card, ASAP. I'm sorry, but you're just not good and distinguishing between propaganda and fact. You're a sucker. PT Barnum knew you well, let's just say. So do yourself, your country, and the world a favor, and stay out of politics, because you are consistently and wholly wrong about the important issues of the day. Better you stay out of the public decisions than be always on the side of evil. Zero really is greater than a negetive.

[I_luv_saber]

I don't want to devolve into personal attacks and start a flame war. I do not.

Isn't it funny that if someone prefaces with this they will inevitably fall into personal attacks and flame wars?

[lindajdunn]

I'm not sure how I can make the jest any clearer. But I'll try anyway.

This was Linda's statement:

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

When a police officer collars you, arrests as opposed to detains, you are in effect "imprisoned". Yet there has been, to that point, no "due process" according to any definition or discussion of "due process" I have been able to find, since these latter all seem to discuss nothing as early on as arrest.

Oh, pfffftttt! Shades of Bill Clinton and Monica L. define "sex".



Let's pull up a definition of "due process"

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

14th amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now we can fiddle with definitions about any person and/or definitions of State (as opposed to federal government), but the bottom line, imho, remains the same.

We, the US have violated our own long-standing principles and beliefs by imprisoning people at GB without due process. This war on teror, much like the war on drugs and the war on poverty, etc., is a war without borders and to defend a terorist is to be accused of terrorism.

Which brings us back to Liz Cheney and those advertisements she is making in which she casts suspicion upon those who have -- as John Adams did -- provided legal counsel to unpopular defendants.

[Inquartata]

Appeal rights are of the form provided to service members. Habeas is a form of appeal.

Where is this stated? I cannot find anything about it.


I agree that the full panolpy of what has been held to be due process requirements in US criminal law don't necessarily apply.

No one is "stateless" because of their membership in an organization such as Al Queda.

They are stateless in the sense that they are, or were, citizens of a nation not at war with us, fighting in another nation not at war with us, for a cause which they themselves allege is not a nationalistic cause but a religious one...

In many cases, it seems not even to be possible to pin down from what nation they actually hailed originally, because they've had so many identities and sets of false papers that they are all but untraceable.

In any event, given the current dockets of, for instance, drug and immigration cases, I find the suggestion that a few hundred such determinations as "overloading" any Court system to be fanciful.

--Philistine

I am talking about POWs again there. Imagine if all of the Germans and Italians captured during WWII had demanded trials...

[Inquartata]

Isn't it funny that if someone prefaces with this they will inevitably fall into personal attacks and flame wars?

Well, I had to wait for the very last paragraph for that shoe to drop, but yeah, I sensed its inevitability from the outset...

[Inquartata]

We, the US have violated our own long-standing principles and beliefs by imprisoning people at GB without due process.

No, we haven't.

There, you see how convincing opinions are?

[Hauptman]

Where is this stated? I cannot find anything about it.


I agree that the full panolpy of what has been held to be due process requirements in US criminal law don't necessarily apply.





They are stateless in the sense that they are, or were, citizens of a nation not at war with us, fighting in another nation not at war with us, for a cause which they themselves allege is not a nationalistic cause but a religious one...

In many cases, it seems not even to be possible to pin down from what nation they actually hailed originally, because they've had so many identities and sets of false papers that they are all but untraceable.




I am talking about POWs again there. Imagine if all of the Germans and Italians captured during WWII had demanded trials...

The distinction between a prisoner of war and a criminal is that we really have no intention of punishing a prisoner of war. Their detention (imprisonment) is only meant to keep them out of the way until the war has ended at which time they will be released back into their own country unless they are guilty of something other than just being a soldier, such as war crimes. There is no intent to hold them forever.

For example, I don't think we intend to prosecute any Taliban we capture, but we do want them out of the way until the war is over. Then we will release them back to the new Afghani gov't to do with as they wish. If they committed specific war crimes then they might be prosecuted by our military instead. Am I ok with this so far? It's what we did with the Germans, Italians, and Japanese that we captured during WW II.

The next question is what do we do with terrorists? Is it proper to hold them indefinitely? Is their status tied to our being at war? Why is the military holding and prosecuting them?

If we picked up a terrorist in Afghanistan then it makes sense to treat them as an enemy combatant, and hold them until the war is over, but what then? Do we release them as we would a POW? Are they guilty of war crimes? Are they guilty of other criminal activity? Or have they not actually committed any specific crimes (like POWs), but are somehow guilty by association with a particular group or organization?

What about a terrorist picked up here in the US? Should the FBI turn them over to the military? Would we even consider this option if we weren't at war somewhere? What do we do when we're not technically at war somewhere? Don't we clearly turn to the civilian courts if we're not at war? Or are we radically expanding the role of our military, and the commander in chief?

How do we even define a "terrorist"? What made the Fort Hood shooter a terrorist as opposed to being just another lone whacko disgruntled employee who shot up his place of work? Is it because he hates our gov't? Or is it because he's a muslim too? Isn't a terrorist just a criminal?

To me they are either a POW or a criminal. If there is no war, or they weren't involved in activity directly related to the war then they are criminals. If there is no war then why would the FBI or a foreign gov't turn someone over to our military; is our country functioning under military rule?

[migopod]

Also does one distinguish between a terrorist and an insurgent and if so, how?

[badpenny]

Well, I had to wait for the very last paragraph for that shoe to drop, but yeah, I sensed its inevitability from the outset...

It's not meant as a personal attack. I'm sure you're a lovely fellow. It's a pity that you are such a sucker, ...it is. It breaks my heart to have to tell you this.

I just feel like the son who asks the dottering senior father that maybe after this latest 5 car pile-up, it's time to turn in your car keys.

Same situation. If you voted for Bush the first time, you made a mistake (car wreck #1), but frankly, if you voted for that criminal for re-election (car wreck #16), it's really time to re-think voting. Obviously you can't handle the responsibility and I think we'd all be better off if you just stopped participating in our democracy.

Again, if you were under the delusion that the prisoners in Cuba were mostly justly apprehended terrorists, that it "strains the fabric of credulity" to think that the Bush administration could aptly distinguish a combatant from a civilian, or cared to try, then you just shouldn't express your political preferences at a voting booth.

I'm not saying you're a bad person, I'm saying you are easily manipulated.

Seriously, keep going the way you are going, and if the Hindu's are right, your next life you're coming back as a cockroach or something. Karma can be a real *****. I'm just trying to help you.

[Philistine]

Where is this stated? I cannot find anything about it.

Article 106: "Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so."

I am talking about POWs again there. Imagine if all of the Germans and Italians captured during WWII had demanded trials...

{shrug}. I don't see the current situation--people not caught on a battlefield being entitled to an opportunity to oppose the allegations that give rise to their detention--as being at all likely to swamp the justice system. Nor do I forsee it as a problem in any future war.

--Philistine

[Purple Fencer]

Article 106: "Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so."

Isn't that mean for crimes committed WHILE a POW, tho? Like an assault on a fellow POW?

[Philistine]

Isn't that mean for crimes committed WHILE a POW, tho? Like an assault on a fellow POW?

Not just post-capture acts. For example: "Art 85. Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.'

--Philistine

[I_luv_saber]

Well, I had to wait for the very last paragraph for that shoe to drop, but yeah, I sensed its inevitability from the outset...

I held out hope. It was sort of like "Well, this isn't as bad as I thought it wo-- aaaaaand there it is..."

[I_luv_saber]

It's not meant as a personal attack. I'm sure you're a lovely fellow. It's a pity that you are such a sucker, ...it is. It breaks my heart to have to tell you this.

I just feel like the son who asks the dottering senior father that maybe after this latest 5 car pile-up, it's time to turn in your car keys.

Same situation. If you voted for Bush the first time, you made a mistake (car wreck #1), but frankly, if you voted for that criminal for re-election (car wreck #16), it's really time to re-think voting. Obviously you can't handle the responsibility and I think we'd all be better off if you just stopped participating in our democracy.

Again, if you were under the delusion that the prisoners in Cuba were mostly justly apprehended terrorists, that it "strains the fabric of credulity" to think that the Bush administration could aptly distinguish a combatant from a civilian, or cared to try, then you just shouldn't express your political preferences at a voting booth.

I'm not saying you're a bad person, I'm saying you are easily manipulated.

Seriously, keep going the way you are going, and if the Hindu's are right, your next life you're coming back as a cockroach or something. Karma can be a real *****. I'm just trying to help you.

This post is simply laughable.

New here, huh?

[Inquartata]

The distinction between a prisoner of war and a criminal is that we really have no intention of punishing a prisoner of war.

So...Hermann Goering, Alfred Jodl, Wilhelm Keitel, Masaharu Homma...they weren't POWs?

Or are you saying that we "had no intention" to hang them when we hung them?

I don't think that distinction really holds up...

For example, I don't think we intend to prosecute any Taliban we capture, but we do want them out of the way until the war is over.

I don't know. I have a hard time believing that we'd just let Mullah Omar go, but now that we've got a liberal President...maybe.

It's what we did with the Germans, Italians, and Japanese that we captured during WW II.

The IMTFE which tried Japanese officers used judges from some 11 countries. The Nuremberg tribunals were made up of judges from the US, Britain, France and the Soviet Union only. In any case they were not turned over to even a reconstituted German or Japanese government for trial.

The next question is what do we do with terrorists?

I think my position on capital punishment is clear.

Is it proper to hold them indefinitely?

As I've been saying, theirs is not a war in any traditional sense. There is no defeat for these men and women. You cannot defeat a religion as you can a nation. Soldiers do not fight for a religion as they do for a nation. They do not recognize surrenders or treaties---or reality, for that matter. So yes, we either have to hold them indefinitely or execute them.

If we picked up a terrorist in Afghanistan then it makes sense to treat them as an enemy combatant, and hold them until the war is over, but what then?

Sort of depends. A Taliban fighter is probably not the same as an Al Qaeda member.

What about a terrorist picked up here in the US?

I think the precedent is clear in this case: We have before now tried this sort operating in this country like everyone else.

To me they are either a POW or a criminal.

By your own admission, they can be both---so there's a third category. I see no compelling reason to limit categories arbitrarily...

Also does one distinguish between a terrorist and an insurgent and if so, how?

Unprovoked attacks on innocent civilians instead of military/government/infrastructural targets?

The distinction is an easy in the case of "foreign fighters": they are never "insurgents" ( though they may not necessarily be terrorists---again, there may be more than just two alternatives ).

Article 106

Thanks, I missed that.

[Inquartata]

Not just post-capture acts. For example: "Art 85. Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.'

In that case, the Nuremberg executions violated the 1929 Convention, which at the time prohibited carrying out a death sentence before a period of 3 months had elapsed ( later increased to 6 months ). The hangings took place after only about two weeks...

Moreover, the trials of German and Japanese prisoners were not even carried out by the "Detaining Power", but by multi-national authorities...