The Obama Administration continues its retention and expansion of abusive Bush policies — now clearly Obama policies on indefinite detention and blocking the investigation of war crimes. Jeh Johnson, the Defense Department’s chief lawyer, has stated that it is a “policy question” whether acquitted individuals will be released or held indefinitely.
In May, President Obama announced that he supported indefinite detention of individual in violation of both domestic and international law. He has even found his detention policies to be a subject of jokes.
Liberals continue to be largely silent in the face of policies that they once denounced and protested. It is rare to hear any coverage or questions of the Administration’s refusal to investigate war crimes of torture, for example. Liberals seem to be quickly developing a cult of personality that has supplanted the most basic principles of human rights and international law. As with the Republicans under Bush, the Democrats are refusing to push the Administration to investigate torture or comply with international law. Before the inauguration, various generals and senators claimed that Obama and Holder assured them privately that no one would be investigated for torture. It now appears that these stories were likely true. Democrats must choose between their principles and their politicians — and they appear to be making the same choice as their Republican counterparts.
Jim,
I have no issue with any of that, absent said DR inmates not running into a Statute of Limitations issue by delay. Not an issue in a 2nd murder, but murder is but one of many felonies, many of which do have SoL’s.
Buddha,
I would agree. -Justice delayed is justice denied.
That said; a man on death roe for one murder, can hardly claim that justice was denied because they took so long to try him for the second murder. A determination of guilt or innocence of the second murder would have no effect.
An enemy combatant need not be charged with any crime to remain in a detained status. If the conflict was ended, and they remained in custody without being charged/tried, I would have a problem with that.
Jim,
Yeah, each case, as with anything other than class actions, needs to be evaluated individually. However, it becomes a matter of timeliness. How long can you detain someone under the color of “evaluation”? There has been more than enough time to provide these people with the procedural due process required to determine if prosecution is in their future or if they should be freed. “We’ve got to sort it out” was one of Bush Co’s favorite lines when hit about GitMo and illegal detainees. Justice delayed is indeed justice denied.
Mespo:
“Without getting into the intricacies of the War Powers Act this would qualify as authority to use force to effect the enumerated purposes.”
And those enumerated purposes were/are as clear as if they were ripped from a Joseph Heller novel.
Mespo, allow me to clarify my point. I’m not concerned with the small issues such as the fates of a few individuals; rather, I’m focused on the BIG issues such as RECONSTRUCTING THE CONSTITUTION BASED ON A TURN OF A PHRASE.
Article II does not empower the Executive to increase or enlarge its power by commencing a never ending Snipe hunt (i.e. hunt for something that does not exist) — to wit: the end of terrorism.
Every time the Executive claims to engage in a conflict couched in terms where victory or endgame does not exist, e.g. “war on terror, or terrorists” you have an Executive seeking to increase or expand his powers by leaps and bounds simply by turning a phrase.
I don’t care how afraid the country is; the constitution says let them piss their pants rather than ignore the rule of law.
Jill,
The Greenwald article is all over the place. It fails, because it refuses to establish definition. When Greenwald is addressing “due process”, I assume he is addressing procedural due process. The only procedural due process required to be afforded war detainees is to establish POW status. -Most, if not all, have been granted POW status, even though the GC may not require us to do so.
The fact that terrorism is not a state sanctioned activity puts those involved in a very precarious position. -I don’t think the protections afforded by the GC should be applied to non-state sanctioned acts of aggression. (My position is based on detering such future activity.)
Per William J. Haynes II, General Counsel of the Department of Defense:
An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”
“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.
The numerous situations you present may have merit, and detaining them may be a human rights violation. However, they must be addressed on a case by case basis.
Being a member of Al Quaeda or funding Al Quaeda is not a criminal act. (At least, not under any law that I am familiar with) -If a member of Al Quaeda is charged with terrorism, and found to be not guilty -they have committed no crime, but may still be a threat if released. As such, they are held as POWs (or enemy combatants) until the armed conflict has ended.
If you would present an individual case…with all the necessary details…we could discuss whether or not that individual could be reasonably determined to be an active threat associated with a current armed conflict.
Jim,
One lives to be of service.
Jill:
Nothing has changed. I specifically said “war on terrorists,” since it’s still hard to wage war on a tactic or a human condition. Reasoner’s reasoning still stands.
My initial post on the topic (7/8/09 @10:33 p.m.) simply raised the issue of what to do about true POW’s versus those charged with crimes. As I said, I agree with you about those found not to be POW’s like Saddam’s personal driver for example. We are not at issue here.
Bob,Esq:
The conventions define the terms and this conflict clearly qualifies.I have heard no one argue that the GC don’t apply since the standard is so broad. As you know, after 9-11, the Congress empowered the President to wage war as follows:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
“(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.”
Without getting into the intricacies of the War Powers Act this would qualify as authority to use force to effect the enumerated purposes. The GC are applicable to conflicts regardless of whether war has been formally declared and irrespective of the involvement of non-state actors as combatants. Professor Jinks (Texas School of Law) has a good analysis of the issues in the Virginia Journal of International.
The biggest issue I see are that terrorists do not observe international norms hence they are afforded no protections under the GC. Jinks deals with that as well concluding the GC’s apply in part to the Global war on Terror and specifically to the US when the history and purposes of the treaties are properly considered. The question is not conclusively decided, but as a policy decision we have never strayed far from the requirements of the GC’s in any previous conflict.
Jinks, Derek,The Applicability of the Geneva Conventions to the ‘Global War on Terrorism’. U of Texas Law, Public Law Research Paper No. 93; Virginia Journal of International Law, Vol. 46, 2006.
Bob,
Please notice in mespos’s original remarks made under Bush, he agreed with you that there’s no such thing as a “war on terror”. That is why I asked him what had changed from that time.
If they’re POW’s. Then they should be treated as such under the Geneva Convention.
If they are not classified as POW’s and are tried in a civilian court then they should be treated once diegned innocent or guilty as any person in a covilian court would be once the case has been adjudicated.
You can all argue till your “blue-in-the-face” about Article I and Article II and play or tit-for-tat games.
But when are you going to realize that this country is run by autharitarian dictators who manipulate the Constitution w/all kinds of confusing and irrelevant Legal “mumbo-jumbo” then if all else fails just plain usurp our Constitution and tell us to go-pound-sand if we don’t like it.
What is so laughable to my is how the public wrings their hands in outrage over the violation of the rights of terrorists (who are guaranteed no Constitutional rights if they’re terrorists) yet could care the least that AMERICAN citizens are having their lives rotted away from them for years in federal prison on pre-trail status. People that could make bail or even offer millions of dollars of surety to guarantee their prescence at trial yet are denied bail for the shakiest most manipulatory of reasons.
And if these terrorists are not POW’s who deserve Constitutuional protection are then denied it; what makes anyone think that the govn’t won’t be able to get away w/it when they do it to American citizens.
And ask the illegal Aliens about unfair detention. I’ve known Illegal Aliens crowding up fed joints for YEARS while they fight deportation staus. And many times the worst crime the illegal committed was a simple RE-ENTRY. If judges and prosecutor’s can tie an illegal in knots on some bullsh*t immigration beef when the illegal was NEVER even charged w/committing a crime against the person or property of another what makes one think they can’t do it w/accussed terrorist?
People should get some moral outrage over the violations and denials of Constitutional rights against AMERICAN Citizens in federal court houses that go on everyday and have been for years.
Mespo,
Your argument still begs the question about the existence of a war or armed conflict. N.B. that terrorism existed, and thus was capable of building up body counts, long before 9/11. Accordingly, you’re still accepting bastardized maxims of law based upon deceptive rhetoric.
Example:
Mespo: “I am talking about those prisoners picked up as prisoners of war, i.e. captured on the battlefield or non-uniformed combatants caught aiding in the war effort against us as defined by the Conventions.”
What war? What armed conflict? The armed conflicts we created in Iraq and Afghanistan when we invaded without so much as disclosing the white papers, as promised by Colin Powell and Tony Blair, setting forth who was responsible for 9/11 and why?
The Taliban denied it; asked us to show proof and even offered Bin Laden in exchange thereof. To this day we haven’t proven conclusively the Taliban or Al Qaeda did it; just as we haven’t even captured Bin Laden.
And Iraq, well we all know how torturous of an argument that was; don’t we? In fact, we now know that the entire torture program was essentially made to back-fill a reason to invade Iraq by connecting it with 9/11 via torture-induced testimony.
So tell me more about this ‘war’ or ‘armed conflict.’
Tell me how the authors of the GC would deem a turn of a phrase like “war on terror” or “war on terrorists” as legitimate armed conflict.
And show me how the authors of the GC, while demanding that detainees of a fabricated conflict be treated humanely, would turn their backs on the fraudulent scheme as the ones set up by the Bush Administration and carried forward by the Obama administration.
BTW, I don’t expect you to show me the minds of the GC authors, I was simply speaking rhetorically; in the honest sense of course.
SIYOM,
Bob
P.S.
Kudos to Jill for digging up my initial remarks with you on this issue:
http://jonathanturley.org/2009/07/08/12598/#comment-66490
Jim,
I think you keep missing the point. You are speaking about treatment of POWs. The detainees in Gitmo have not had the protections afforded POWs. These are people the US govt. picked up around the world, in many cases had tortured at black sites or Bagram, and then flown to Gitmo. They are people who were sold to the US for a bounty of $5000.00 along the Afganistan/Pakistan border. They were never treated as POWs, according to the Geneva Conventions. Their treatment was acknowledged by the OLC to be in violation of the GC (see Bush OLC memos). These same people whos rights were violated under the Geneva Convention, who have not been treated as POWs are now being brought to “trial”. Obama has claimed that even in the case where a person is tried in a full civilian court of justice as a terrorist and is found innocent he may still imprison them. He will honor the verdict only if that verdict is guilty. In other words, he is not trying POWs for crimes, he is trying people that have never been given the status of lawful protections afforded POWs, in a civilian court of the US and will not abide by any verdict except, “guilty”. In other words, he is saying he will be above the law, that he is free to violate our Constitution as he desires and that he has the right to imprison the innocent. Please read the Glenn Greenwald column. The US cannot claim someone is a POW unless they plan to abide by the GC both in how the people were picked up (on a battlefield) and how they were treated –for example,they could not be tortured as they have been and continue to be .
Jill,
Individual exceptions must be addressed “individually”.
The determination of prisoner of war status by a tribunal is not a determination of guilt or innocence. If the captive is determined to be a prisoner of war, and therefore, granted POW status, they are then afforded the protections of the Geneva Convention.
IS,
Absolutely, it’s partially based on my perception of Patty. However, my perception is based off of numerous conversations I and others have had with Patty.
Had I been talking with you I probably would have asked how the question of supporting the President was relevant to if his actions were legal or not. I had a fairly good idea based on previous interactions, and it was confirmed (at least to me) in her response to my question about Bush.
To provide you with some of the context I have, I suggest doing searching (upper right corner) for Obama, going back a few months and then clicking on a long thread where Prof. Turley is critical of the Obama administration’s policy. Then doing a quick scan through for Patty’s comments. She’s been fairly consistent.
And this is why I refere people to Glenn Greenwald’s column. We still seem to believe that our detainees are people who were picked up on the battlefield. This simply isn’t the case. People in Gitmo were picked up around the world and taken there, many times after they were first taken and tortured in other countries at the request of the US govt.. Other detainees were sold to the US for $5000.00 by their enemies. We have been propagandized into believeing they were, down to the person, on the battlefield, fighting US soldiers and that is why they were picked up and taken to Gitmo. POW’s are given status tribunals to determine if they are truly POW’s. This did not happen in the case of our detainees at Gitmo. This is why I believe going into these matters obfuscates the situation and takes away from the glaring unconstitutional act being proposed. As JT said in his post, what Obama proposes is against both domestic and international law.
I think prisoner of war, and one accused of committing a crime, are being confused/muddled.
Someone walking around, with a gun over their shoulder, in enemy territory, may be captured and held (indefinately) as a prisoner of war. As long as he conflict continues, the President may continue to detain them. -In accordance with the Geneva Convention. –The purpose of detaining POW’s is to limit the manpower of our enemy, and to prevent them from getting another chance to do us harm.
If a POW is charged with a war crime, the U.S. Supreme Court has determined that the detainee has a right to their day in court. -Even if found not guilty of the war crime, they would/could still be held as a prisoner of war.
Their guilt/innocence has nothing to do with their status as a prisoner of war.
No Jim, we are not. Again, this is a case of people being given a full civil trial by our govt., aquitted, but still imprisoned by fiat of the president. Remember, the govt. is the one claiming the should get a trial, whether they are citizens or non-citizens. It is also the govt. that is saying the end result of that trial will be meaningless should it end in an aquittal.
Please read Glenn Greenwald’s column today. I think it will clear up many of the mistakes that lie behind the thinking you present:
“McClatchy’s Nancy Youssef has an article today that is a consummate example of excellent journalism. I don’t want to excerpt any of it or even summarize what it reports because I really want to encourage everyone to click the link and read it in its entirety (it’s not very long: roughly 1,300 words). Please read Youssef’s article before reading the following points I think are worth making about it:
(1) Note that Wakil was detained at Guantanamo for six years — until April, 2008. That entire time, and especially into 2007 and 2008, government officials were assuring the public that all remaining Guantanamo prisoners were “the worst of the worst.” That claim contiunes to be made. No matter how many times the statements of government officials are proven false, the assumption remains that the pronouncements from high government officials are true.
(2) Even now, defenders of Obama’s preventive detention policy (i.e., indefinitely imprisoning people with no charges) insist that this is necessary because those in Guantanamo are “too dangerous to release” and we cannot convict them in a real court. What’s their basis for believing that people who have been convicted of absolutely nothing are nonetheless “too dangerous to release”? The Government — our trusted leaders — claim it’s true, so it must be. No matter how many stories there are like the one today from McClatchy’s — where emphatic accusations about a detainee turn out to be totally false — the willingness to believe unproven assertions from government officials about Muslims detainees is never-ending.
(3) The central assumption in our discussions of Guantanamo and detention policy generally has been, and continues to be, that those in Guantanamo are, by definition, Terrorists. No matter how many times that is proven to be false, the assumption endures.
(4) Note the central role The New York Times played — yet again — in spreading and given credence to pure government propaganda. And the method used to accomplish that is exactly what led them to help disseminate lies about the “Iraq threat” in the run-up to the war: anonymous government sources leak something, they mindlessly print it without identifying who gave it to them, Dick Cheney cites the NYT article to bolster the lie, and then — even once the NYT is forced to admit they were used — they not only protect the identity of the anonymous sources who manipulated them, but they’ll use the same exact method tomorrow — and the day after and the day after that — to report the “news.” What Judy Miller and Michael Gordon did in late 2002 and early 2003 — that the NYT supposedly regrets so much — is exactly what Elizabeth Bumiller and her editors did here. As a result, a blatant lie — that 1 in 7 released Guantanamo detainees “returned to jihad — became, as intended, embedded fact in our political debates.
(5) It cannot be overstated how flimsy is the basis for so many accusations of “enemy combatant” status from the U.S. Government. Wakil is someone who — as the Bush administration knew and admitted since as early as 2004 when it conducted a status review hearing — actively opposed the Taliban and al Qaeda:
Despite all of that, the Pentagon continued to keep him in a cage for four more years based on extremely vague associations that led them to insist that he was an “enemy combatant.” So we invade and occupy his country and then decide that — although he worked against our Enemies — some alleged “associations” he had reflect an agenda that conflicts with ours. So we abduct him from his country and ship him thousands of miles away to an island, stick him in a cage for six years with no trial, call him an “enemy combatant,” and then once he’s released, he does nothing to engage in any violence or attacks on the U.S. of any kind (even though we’re still bombing and occupying his country).
There are so many cases like that: where alleged “enemy combatants” — The Worst of the Worst — were released, and the notion that they are dangerous proven to be utterly false. Despite that, morally depraved people still blithely demand that anyone we deem to be a “combatant” be kept in a cage “forever” with no trial or charges of any kind, even if they are acquitted of the charges against them.”
Thanks Buddha,
I read the first two pages and decided that the paper needs/deserves more than just a cursory review. I’m sure it will be an interesting read.
Thanks for the link.
Gyges:
“The fact that you’re also clever enough to do it without being explicit doesn’t change the point one bit.”
couldn’t that also be labeled passive aggressive? I am just asking in a general way and I am making no implications. Also could it be your perception? I made an assumption as to someones post on another thread and was 180 degrees off the point they were making because of comments they made from another thread. It is rather hard to understand intent from a 1 dimensional conversation. If nothing else communication among humans is better face to face so all of the nuances of body language are not missed.
Thanks Jill.
Please take a look at what mespo posted yesterday at 11:21 pm;
“Art. 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
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.”
Are we not acting in accordance with the GC?