T Nation

Bye Bye Gitmo?

[i]The White House’s legal regime at Guantanamo Bay was thrown into chaos today when a military judge threw out all charges against a detainee held there since he was 15.

The decision by the judge, Colonel Peter Brownback, to dismiss all charges against the detainee, Omar Khadr, on technical grounds, has broad implications for the Bush Administration’s system of military tribunals because the technicality appears to apply to all 385 prisoners held at Guantanamo.[/i]

http://www.guardian.co.uk/guantanamo/story/0,,2095376,00.html

Could this be the light at the end of the tunnel? Are Americans finally standing up for the values of their forefathers? Is reason finaly triumphing? Or is it just the act of yet-another-terrorist-sympathizer?

Go nuts!

I fail to see how. It seems it was a technicality. He should have been charged as an “unlawful enemy combatant.” It appears the pentagon screwed up and charged him merely as an “enemy combatant.” It’ll take time, but I’m sure he’ll charged as an unlawful enemy combatant.

Don’t get your hopes up. I’m pretty sure this will not be the end of the ‘anomaly’ Tony Blair called Gitmo.

I’m pretty sure there will be a way to re-designate the detainees and continue their processing - obviously this will take another year or two.

So far pretty much none of the fuckups wrt Gitmo has held the current US administration from following its calamitous course - I don’t think this one will.

Makkun

What makes them unlawful combatants?

There were situations in WWII that involved troops landing out of uniform, so that can’t be it.

Seriously, when they are engaged in combat operations, what is it about them that supposedly gets them outside of the normal rules for combatants?

[quote]lixy wrote:
[i]The White House’s legal regime at Guantanamo Bay was thrown into chaos today when a military judge threw out all charges against a detainee held there since he was 15.

The decision by the judge, Colonel Peter Brownback, to dismiss all charges against the detainee, Omar Khadr, on technical grounds, has broad implications for the Bush Administration’s system of military tribunals because the technicality appears to apply to all 385 prisoners held at Guantanamo.[/i]

http://www.guardian.co.uk/guantanamo/story/0,,2095376,00.html

Could this be the light at the end of the tunnel? Are Americans finally standing up for the values of their forefathers? Is reason finaly triumphing? Or is it just the act of yet-another-terrorist-sympathizer?

Go nuts![/quote]

Hopefully we will close gitmo and send all the animals who live there to sweden.

For my money we treat those pricks too nicely in Gitmo. If it were up to me, I tie them up butt-naken in a swamp in south georgia, smear them with chicken blood and check on them in a week. All that’d be left is a couple of bones and one fat and happy gator.
Of course, I’d face them towards mecca.

[quote]vroom wrote:
What makes them unlawful combatants?

There were situations in WWII that involved troops landing out of uniform, so that can’t be it.

Seriously, when they are engaged in combat operations, what is it about them that supposedly gets them outside of the normal rules for combatants?[/quote]

The Geneva Conventions were designed to act as a quid pro quo. The law of war made certain conditions precedent to you enjoying a level of POW treatment. They included wearing appropriate insignia, not putting civilians in harm’s way, etc.

Without those conditions satisfied, you didn’t earn the elevated POW treatment.

If the conditions being met didn’t matter, and every one in a “hot spot” got the same treatment regardless of what they did or wore, there would have been no reason to outline the conditions precedent.

Those that don’t meet the conditions are not entitled to elevated treatment - thus, unlawful combatants: those that do not honor the law of war don’t get to enjoy its benefits either.

[quote]vroom wrote:

There were situations in WWII that involved troops landing out of uniform, so that can’t be it.[/quote]

Wrong and exactly backwards - in 1942, when German saboteurs landed in the US, the term “unlawful combatant” was created to recognize the distinction:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Ex Parte Quirin.

This case predates the Geneva Convention, so now the question becomes “what does Geneva make of this approach?”, but it is precisely the landing of WWII unlawful combatants that gave rise to the distinction now being discussed.

[quote]thunderbolt23 wrote:
vroom wrote:
What makes them unlawful combatants?

There were situations in WWII that involved troops landing out of uniform, so that can’t be it.

Seriously, when they are engaged in combat operations, what is it about them that supposedly gets them outside of the normal rules for combatants?

The Geneva Conventions were designed to act as a quid pro quo. The law of war made certain conditions precedent to you enjoying a level of POW treatment. They included wearing appropriate insignia, not putting civilians in harm’s way, etc.

Without those conditions satisfied, you didn’t earn the elevated POW treatment.

If the conditions being met didn’t matter, and every one in a “hot spot” got the same treatment regardless of what they did or wore, there would have been no reason to outline the conditions precedent.

Those that don’t meet the conditions are not entitled to elevated treatment - thus, unlawful combatants: those that do not honor the law of war don’t get to enjoy its benefits either.

[/quote]

True, they get more than Gitmo though…

And, if they were kidnapped, let`s say in Pakistan, Bosnia or Germany what are theyand what rights do they have?

[quote]thunderbolt23 wrote:
This case predates the Geneva Convention, so now the question becomes “what does Geneva make of this approach?”, but it is precisely the landing of WWII unlawful combatants that gave rise to the distinction now being discussed.[/quote]

Interesting that you should go there… because torture of these people resulted in convictions for war crimes.

I’ll happily concede the origin of the “unlawful” aspect, but the result of that is supposed to be a trial.

Now, again, when not wearing a uniform and not behind enemy lines, it does get difficult to declare someone “unlawful” in a significant way. What is the punishment for this? Is it torture? Wait, no, that’s for pre-trial instead.

Of course, there are always the fear and hatred twins… they can justify almost anything.

[quote]vroom wrote:

Interesting that you should go there… because torture of these people resulted in convictions for war crimes.

I’ll happily concede the origin of the “unlawful” aspect, but the result of that is supposed to be a trial.

Now, again, when not wearing a uniform and not behind enemy lines, it does get difficult to declare someone “unlawful” in a significant way. What is the punishment for this? Is it torture? Wait, no, that’s for pre-trial instead.

Of course, there are always the fear and hatred twins… they can justify almost anything.[/quote]

Do you really want to discuss this, or do you want to be glib?

Whether or not there is a such thing as “unlawful combatants” matters a great deal, completely outside the context of torture, etc.

To the original subject: Gitmo won’t be shut down on the basis of the technicality dismissals.

[quote]thunderbolt23 wrote:
Do you really want to discuss this, or do you want to be glib?
[/quote]

What about both?

[quote]Whether or not there is a such thing as “unlawful combatants” matters a great deal, completely outside the context of torture, etc.
[/quote]

In what way does it matter so much?

A combatant, whether unlawful or not, is subject to imprisonment with rules for treatment for the duration of the conflict.

An unlawful combatant may also suffer a trial and upon conviction qualify for for a different type of imprisonment or perhaps the death penalty.

The real issue, the one worth discussing, is whether or not being called an unlawful combatant is realistic as a justification for questionable handling.

Without that aspect… we wouldn’t have anything to discuss.

So, in WWII, when unlawful combatants were tortured, the people that tortured those combatants were eventually convicted of war crimes.

This type of behavior is something that the west explicitly decided was always inappropriate. Always! Now it’s done as a matter of policy.

If it wasn’t so sad it would be laughable.

[quote]vroom wrote:

So, in WWII, when unlawful combatants were tortured, the people that tortured those combatants were eventually convicted of war crimes.[/quote]

Post a reference if you would. There are several situations around that time period, and I want to make sure I understand which one you are referring to.

[quote]thunderbolt23 wrote:
Post a reference if you would. There are several situations around that time period, and I want to make sure I understand which one you are referring to.[/quote]

Shoot, making me work… here’s some interesting things in general with respect to the subject area:


[i]
The Yamashita standard is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”

The Medina standard is based upon the massacre at My Lai which US Army Captain Ernest Medina failed to prevent. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.
[/i]

Still digging… here’s something about irregular military issues:


[i]
The term “irregular military” describes the “how” and “what”, but it’s more common to focus on the “why”. Bypassing the legitimate military and taking up arms is an extreme measure. The motivation for doing so is often used as the basis of the primary label for any irregular military. Different terms come in and out of fashion, based on political and emotional associations that develop. Here is a list of such terms, organized more-or-less oldest to latest.

Freedom fighter: irregular military motivated by higher goals - very subjective

Franc-tireur: French irregular forces during the Franco-Prussian War. But is also used in international legal cases as a synonym for unprivileged combatant, (see for example the Hostages Trial(1947?1948)).

Guerrilla: someone who uses low-level irregular military tactics (term coined during the Peninsula War in Spain against Napoleon)

Insurgent: an alternate term for a member of an irregular military.

Partisan: In the 20th century, someone part of a resistance movement. In the 18th and 19th century, a local conventional military force using irregular tactics.

Paramilitary: non-regular military with a claim to official status

Revolutionary: someone part of a revolution, whether military or not

Terrorist: irregular military who target civilians; this term is almost always used pejoratively, and is, like the term freedom fighter - very subjective.

Intense debates can build up over which of these terms to use when referring to a specific group. Using one term over another can imply either strong support or opposition for the cause being fought over.
[/i]

And some more…



These laws define both the permissive rights of states as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

Article 5 of the Third Geneva Convention would seem to extend the provisions of prisoner or war treatment to anyone prior to an appropriate hearing… or until they are determined to be an unlawful combatant. However, here is a very damning ruling, which implies that if they are not a prisoner or war, then they are a civilian, and must still be treated appropriately under the Geneva conventions:



The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, “There is no intermediate status; nobody in enemy hands can be outside the law,”[5] because in the opinion of the ICRC “If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action”.

This means that they can be tried for crimes as civilians, but not that they can be tortured! It means that a prisoner of war is a privileged person, compared to a civilian combatant who can face trial for actions normally undertaken by soldiers.

Heck, I’m not having much luck finding any references, but if the ruling above is valid, it means that people involved in combat are either prisoners of war or simply civilians – and that they are covered by sections of the Geneva conventions in either case.

Basically, prisoners of war are not criminals and can’t be treated as such for being involved in the war, while citizens may be tried for criminal activities, but still cannot be tortured or otherwise mistreated.

Hmm, here’s a loose collection of points talking about trials of Japanese soldiers and others who used water boarding and other similar techniques.

http://lawofwar.org/Water_Torture_Article.htm

It may be true that combatants need not be afforded prisoner or war status, but given that other rules still apply, and that torture is excluded in all cases, and that the US has apparently sought convictions for others using the same techniques as at GITMO, I’m going to guess in the long run that there will be fall out from these actions.

How stupid!

So, bombing an Al Qaeda encampment is a deliberate attack on civilians?

[quote]Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?[/quote]

Didn’t you know once there weapons drop there civilians.

[quote]John S. wrote:
Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?

Didn’t you know once there weapons drop there civilians.
[/quote]

There != They’re != Their

[quote]Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?[/quote]

Which part of prisoners of war did you miss?

[quote]John S. wrote:
Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?

Didn’t you know once there weapons drop there civilians.
[/quote]

Heh, hell, I’m taking about before it even gets that far. If a combatant not in uniform is simply a civilian, then Al Qaeda positions are civilian targets?

[quote]lixy wrote:
Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?

Which part of prisoners of war did you miss?[/quote]

Um, what? Re-read my question. Then, try again.

[quote]lixy wrote:
Sloth wrote:
So, bombing an Al Qaeda encampment is a deliberate attack on civilians?

Which part of prisoners of war did you miss?[/quote]

What is it. I shut a few people up and they have to attack my spelling. Lixy this is the sign of a last ditch effort.