Allowing Prisoners of Gitmo To Have Fair Trials.

[TheEgoist]

The Supreme court has just recently ruled that prisoners at Gitmo have the same legal right of Habeas Corpus as does any American.

Do you believe these men deserve a fair trial? To contest their imprisonment? Or does the writ of Habeas Corpus not apply during wartime?

I would tend to side with the Supreme Court decision. I don't think the government should be allowed to detain individuals for extended amounts of time with no real justification.

[The Anthem]

I agree completely. Otherwise the governemnt could imprison whoever they wanted. Taking away other people's rights just lets the gov. get a step closer to taking way our rights.

[The Wrath]

I think this demonstrates the need for a new Geneva Convention. The old ones simply can't be applied to the current conflict. Back in the old days, when wars were between two armies, you could indefinitely imprison members of the enemy military until the conflict was over. The fact that they were enemy soldiers was the only justification needed. After the war, the truly guilty ones would be tried for war crimes, whereas the run-of-the-mill soldiers would be released and even used to help keep order in the defeated nation.

These rules need to be drastically altered. Since we are fighting non-state actors, there's no way to tell for certain who the enemy is, even once they're in custody. I have some misgivings about this decision...it has essentially granted Constitutional rights to enemy combatants. However, given the unique situation, I think it was the right decision. I think there should be some kind of special court system set up where there has to be some justification for holding these people. Not necessarily a full trial, but someone should be able to show there is a justifiable reason for holding them.

[Qwertz]

The fault for the problems arising out of the Hamdi-Hamdan-Boumediene case line lies almost entirely with Congress. Specifically with Congress' failure to recognize the threat. Boumediene doesn't actually say that detainees must have access to the habeas corpus writ, it says that Congress didn't properly suspend the writ or provide review procedures practically equivalent to the writ.

In war time, the Executive needs to be able to detain enemies without allowing them the sort of recourse to court review that habeas allows. But Congress' (and to some extent the Executive's) failure to recognize the current war and clearly and objectively define who our enemies are puts us in the unacceptable position of indefinitely holding persons that may or may not fall into a very ill-defined category "enemy combatant" and not letting anyone challenge that position.

The Boumediene decision will help force Congress (and the Executive) to stop fighting a half-war and either fully commit or back way off.

The decision doesn't grant anyone any rights - rights cannot be granted. Not even "constitutional rights," because the Constitution concerns government behavior. If the Constitution says "the privilege of the writ of habeas corpus shall not be suspended," then it means that the writ of habeas corpus shall not be suspended. (The Constitution allows Congress to suspend the writ "when in cases of rebellion or invasion the public safety may require it.") It doesn't mean "US citizens get habeas review," or "people on US soil get habeas review." It means that the government is always susceptible to the writ. It doesn't concern the question of who may seek the writ.

The MCA system did provide for a kind of trial. Military tribunals were not full trials, but they did require the Executive to show cause for why the person should be deemed an enemy combatant before they could be detained. There were procedural rules and there have been no indications that they were not followed. The Supreme Court has decided that these procedures aren't enough.

I do not think Geneva is the solution. A government dedicated to protecting individual rights does its citizens a disservice when it signs away its right to defend itself by any means necessary, as the US has done in various treaties, including Geneva. A better solution would be for the Executive to step it up and start fighting like it means it, instead of relying on stateside detentions and the mealy-mouthed altruistic pussyfooting we're calling "the war in Iraq."

~Q

PS: Of course, the habeas question presented in Boumediene is far less interesting to me than the jurisdiction-stripping question: What is the extent of Congress' power under the Exceptions Clause to strip the Supreme Court of jurisdiction granted under the Vesting Clause. I am still analyzing the case w.r.t. this question and will post my findings at a later date.

[D'kian]

I think this demonstrates the need for a new Geneva Convention. The old ones simply can't be applied to the current conflict.

The current Geneva Convention is good enough. In cases of enemy combatants, be they soldiers or not, who engage in combat without following the Convention's rules, they can be dealt with in any way. This applies to spies, infiltrators, soldiers hiding among civilians, etc. It applies to terrorists, too.

[Benpercent]

Aren't emergency ethics applicable to times of war? During the time of war only, I mean.

[Edit: Clarification]

Edited June 16, 2008 by Benpercent

[DavidOdden]

Aren't emergency ethics applicable to times of war?

I don't see why that would be so. What exactly are "emergency ethics", and how is war an "emergency".

[D'kian]

I don't see why that would be so. What exactly are "emergency ethics", and how is war an "emergency".

War is certainly an emergency. It's a temporary situation during which life cannot proceed normally. the rules for emergencies are not the same as the rules of everyday life. However, it would be wrong to say that government can do as it pleases during war just because it's an emergency. After all, protecting the lives of its citizens during war is a government function. Therefore government can and must anticipate what powers it needs during war.

Suppose foreign troops are massing at the border. It would be nice if the Army would negotiate with all the property owners nearby and reached agreements on where it can place troops and how much compensation it should pay. But there is no time for that. So the Army simply moves in where it makes tactical and strategic sense and will worry about infringing property rights later (If at all. One can argue protecting the lives of the property owners comes ahead of protecting their property).

But that's during war. During peace time if the Army wanted your property for training grounds, it would have to reach an agreement with you and pay you a fair compensation, or rent, or both.

[DavidOdden]

War is certainly an emergency. It's a temporary situation during which life cannot proceed normally. the rules for emergencies are not the same as the rules of everyday life.

How does one in fact distinguish between an emergency and a non-emergency? If the crops fail and food is scarce, I assume that's an emergency, a temporary situation during which life cannot procede normally, which means that ordinary rules do not apply. Similarly, when there is an outbreak of disease, that would surely be an emergency; so would an economic crash as occurred in 1929, and even the current situation which is most certainly not "normal". Riots and business fraud would clearly constitute emergencies since they are not permanent and are abnormal to man's existence. A flood, or heavy rain or hail, drought, or extreme heat (I'd say above 100F) would certainly be an emergency. A visit by the Dalai Lama would also be an emergency (though in Ohio, a visit by a presidential candidate is not -- it's perfectly ordinary). The question is, I guess, whether running out of toilet paper is, per the classical view, really an emergency. I suppose it really is, in that "not normal" sense.

However, it would be wrong to say that government can do as it pleases during war just because it's an emergency.

Right, so that brings us to the question of what "emergency ethics" are, not specifically "war ethics", but emergency ethics. Rand's essay "The Ethics of Emergencies" actually deals with something totally different from what people now talk about when they invoke the notion of "emergency" as an excuse to use force against another person. In Rand's sense, a war is not an emergency. In this extended sense of "emergency", I don't understand what "emergency ethics" refers to, so the question of applying them in time of war (however defined) cannot be addressed until we have an understanding of the concept "emergency ethics".

[D'kian]

How does one in fact distinguish between an emergency and a non-emergency?

By the use of reason and judgement.

But you seem to have missed the part where I said war is a proper government function. So would be responding to civil disorders such as riots. The 1929 crash is less clear since government had a hand in causing it, but the proper response would ehva been to get government out of business, emergency or not.

A flood, or heavy rain or hail, drought, or extreme heat (I'd say above 100F) would certainly be an emergency.

Yes. And I'm not sure there's a reason why government cannot pitch in to help with search and rescue if needed, even with certain relief operations.

The question is, I guess, whether running out of toilet paper is, per the classical view, really an emergency.

It is if you just performed a certain biological necessity. Of course, it's a personal kind of emergency that's easily solved inside a bathroom, though it takes time and some effort.

Right, so that brings us to the question of what "emergency ethics" are, not specifically "war ethics", but emergency ethics.

The thing about wars is that no two are exactly alike. So while government must anticipate its needs during wartime, government is also amde up of men with limitations who cannot foresee everything. So there's a need to legislate appropriate government actions for a given war if the laws currently in palce do not cover everything.

In the current war, the US government, meaning the Bush adminsitration, made an egregious mistake not publicizing what the Geneva Convention rules are. And a furhter mistake not holding hearings on whether each individual captured is or not an enemy combatant rather than a soldier under such rules.

[DavidOdden]

By the use of reason and judgement.

All by themselves, or do you apply reason to facts? A less smart-assed response by you would indicate what the essential facts are that one refers to in determining if one has an emergency or not.

But you seem to have missed the part where I said war is a proper government function. So would be responding to civil disorders such as riots. The 1929 crash is less clear since government had a hand in causing it, but the proper response would ehva been to get government out of business, emergency or not.

No, I didn't, but I did miss the part where you showed how that has any relevance to the concept of "emergency". Even though I agree that the Great Depression and the Current Mess were caused by government, that still doesn't mean that they constitute "emergencies", or that the concept "emergency ethics" has anything at all relevant to contribute to the question of manmade threats and use of governmental force.

Yes. And I'm not sure there's a reason why government cannot pitch in to help with search and rescue if needed, even with certain relief operations.

Rand wrote an essay relevant to this, entitled "The Nature of Government", which should clarify the reason to you.

[softwareNerd]

The more mundane type of emergency -- like a war, for instance -- does not suspend the context of ethics. However, it might change the context of some specific derivative aspects -- e.g. specific laws that protect individual rights.

Some folk (e.g. some on the "left") want to treat Gitmo prisoners as if they're regular criminals, with the notion that standard rules should apply. The current government, on the other hand, claims that this is not your typical criminal situation (true enough); but, they seem to want to suspend all rights for such prisoners, and take on the role of king.

[The Cynic]

The more mundane type of emergency -- like a war, for instance -- does not suspend the context of ethics. However, it might change the context of some specific derivative aspects -- e.g. specific laws that protect individual rights.

Some folk (e.g. some on the "left") want to treat Gitmo prisoners as if they're regular criminals, with the notion that standard rules should apply. The current government, on the other hand, claims that this is not your typical criminal situation (true enough); but, they seem to want to suspend all rights for such prisoners, and take on the role of king.

The problem with giving these terrorists an open trial is that it means compromising our intelligence networks, which are essential in the war against terrorism. The best way forward in my opinion is to go ahead with military tribunals with civilian oversight as quickly as possible as holding these terrorists without due process allows Al Qaueda and their snivelling leftist fellow travellers to score propaganda points against us.

[Clawg]

How do you know if a prisoner in Guantanamo Bay is a terrorist?

Ah, yes, a fair trial.

[DavidOdden]

How do you know if a prisoner in Guantanamo Bay is a terrorist?

Ah, yes, a fair trial.

A fair trial is distinct from an open trial. A fair trial involves objective assessment of all of the facts; an open trial involves unrestricted access to and dissemination of those facts. What's required is a means of having a fair trial, without making all of the facts know to the world at large.

[Clawg]

What's required is a means of having a fair trial, without making all of the facts know to the world at large.

Well, someone reliable has to check whether the trial is fair.

Whom do you trust to check the very foundation of the government?

[DavidOdden]

Whom do you trust to check the very foundation of the government?

Not Al Qaida operatives to start with. This is why it is important to have a decent and honorable government in the first place. Given the various options, I would most trust a board of military officers to keep their firm grip on the concept of honor.

[TheEgoist]

And if they don't behave with honor, as any human being in a position of power is easily capable of doing?

The prisoners have already had trials out in the open, and the first case held before a civil court favored the supposed Terrorist who was let off, at least let off from the charges we laid against him.

[DavidOdden]

And if they don't behave with honor, as any human being in a position of power is easily capable of doing?

You point being that there is no way to compel people to act properly, I assume. I don't know any way to absolutely guarantee fairness, not even people in a position of no power.

[Adjutor]

I agree with DavidOdden, there is a difference between a fair trial and an open trial. There is no reason to suspect that a military tribunal would be inadequate to dispense justice. If there was good reason to suspect military tribunals are incapable of this, we should then demand that all military trials be moved to the federal court system.

It is reasonable to demand the government show cause for holding these individuals. It is reasonable to expect them not to be tortured. It is reasonable to allow them to speak with legal counsel. It is not, however, reasonable to turn their trials and detention into a public spectacle, particularly considering the intelligence risks involved. My main concern is that by not treating them like we do all other criminals we are affording them a special status that would reinforce them ideologically (something along the lines of, "look how terrible we are, the US is so frightened they will make a new set of rules just for us"). I wonder if that could embolden them.

[Space Patroller]

This has to be one of the thorniest issues going.

First, a trial presumes some doubt as to guilt. This is the only question at hand here. since many of them were just dropped on us by the Northern Alliance and of whom when interred, we knew little about. On the other hand Qalid Sheik Mohammed bragged about it and that he had more in store so he should have been dreained of his info then killed in a high profile execuation.

Some of the things that make this a real bugger center around mutlual Martianism. What constitutes fairness to us would be off the wall to someone from an Islamic culture and these cultures were in place and evolved while we were fighting the Vikings. They recognize Sheria, which allows for this sort of thing in the name of Allah but governs its usage and implementation. We do not. At one time killing in the name of God was acceptable to the West so we have familarity with it. Hessein's Iraq was the only major purely secular state in the area (Syria should also be since secularity is a plank of the Ba'ath party). The detainees would probably accept the verdict of an Islamic court since it would have Allah/God's approval. In fact Ben Laden offered to turn himself in for trial in an Islamic court. He know what the outcome would be; he is a Sheik so he knows those kinds of things. These folks have no understanding of our system of justice so this would be like having a person bred to the sabre trying to win a match with foils. They have not had even a Reformation, let alone a Renaissance and Enlightenment. No doubt they would see any conviction with even the most conclusive evidence as a railfoad job or honestly (by their stnandards) deem themselves justified because they were acting in the name of Allah. This is one reason I was opposed to "Charlie Wilson's war" in the early 1980's I became aware of what is now called "Islamism" and "Islamic Republics' in 1978. When fellow rightiest would go on about the Mujahadim being the 'Afghan Freedom Fighters", I'd say "'Mujahdim' means holy warrior, read religious fanatic. Since when were THOSE ever freedom fighters like the Hungarians in '56?" To which I would be told "But they're fighting the Soviets" to which I said "There are things in this world worse than the Soviet Union. These folks hate us more than they had the Russians". To which I was told "Let them have Afghanistan, it's lousey land anyway" to which I said "They're at home there. They'll use it as a staging area to take a shot at us from". And sadly, many perosns who disregareded me were Objectivists in name.

So the question might better be put as "Could they be given a fair trial?" Yet we do need to know if they are in fact guilty of any crimes which by nature requires the interplay of offense and defense on a level playing field. The sticking point is the rules. Now, unless we can synthesize some workable method from both their and our systems one set of rules must apply. The best setup I heard about was the military trubunal. There are Imams who aren't fantics who might be able to take part in such a trial to give it legitimacy in the Arab world which would show that we are not monsters or Crusaders. These people live the Crusader era like it was just yesterday. Don't forget the Knights Templar which was both a military and religious order; a sort of Christian Mujahadim

I really don't know what to do here> Right now, I favor the Military Triabunnal since Military Lwas in universal and if they wish to be tried as soldiers then so be it. But that's not even an ideal solution. However, they may be subject to the death penalty if found guilty since the Universal Code of Military Justice does govern how soldiers deal with enemy civilians.

Much of this is the fault of the Bush administration since they tried to have it both ways as far as status goes by trying to create some bastard form that was neither civilian criminal nor POW. The end to which that would come was easily predictable, and predicted, just by using the precepts of sound epistemology. Also predicted was the effect it would have on the Republicans. None of that was rocket science, either

Edited May 31, 2009 by Space Patroller

[Jake_Ellison]

The Supreme court has just recently ruled that prisoners at Gitmo have the same legal right of Habeas Corpus as does any American.

Do you believe these men deserve a fair trial? To contest their imprisonment? Or does the writ of Habeas Corpus not apply during wartime?

They definitely deserve a fair trial. I just don't think civilian Courts are the way to provide that trial.

Article One, section 9 of the Constitution gives Congress the following power:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

They exercised that power, in the Military Comission Act of 2006 (and even before that):

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

So the Executive had all the time in the world to set up a military tribunal, and provide justice for these people. Instead they chose to play games, and hold people indefinitely, letting the next Admin to deal with it. Now Obama is in power, and he clearly wants these people back under the jurisdiction of civilian Courts. I think that's a mistake, but it is up to him. The Supreme Court should have let him (and the Democrats in Congress) make that decision themselves, and live with it, whatever happens (and things will happen, people will be released and commit acts of terror), instead of just switching decisions every time the tide turns, and a new President is in office, as they have been doing for quite a while now. (remember, this is the same exact Court that refused to hear the same appeals from Gitmo detainees two years ago)

[Thomas M. Miovas Jr.]

One of the problems with the current set-up of Gitmo is that we don't have a formal declaration of war, which is why they are considered "enemy combatants" instead of prisoners of war. Under a formal declaration of war, prisoners of war could be detained until the end of the war, without a trial. That is, if they were captured on the battlefield, then they could be held by the discretion of the military leaders fighting the war, according to the law.

Another problem is that since they have a specific ideology against the United States, and would most likely re-join ranks with the enemy if released (as some have), they cannot be released into US territory or released back into their homeland, so long as the war is continuing.

So it was the lack of a formal declaration of war that put us in this half-way, in between, situation.

Does anybody know what happened to the many thousands of prisoners of war that we captured during the Gulf War? I don't think they are still being held prisoner, since we don't hear about them. And what about actual enemy fighters who wore uniforms in Saddam's army that were captured? What happened to them?

I think there is a strange focus on Gitmo, for some reason that I can't pin-point. Why all the fuss so long as we are still fighting the enemy, even without a formal declaration of war? The war in Afghanistan against the Taliban is still on-going, and we still have troops in Iraq fighting "the insurgents" so the (undeclared) war is not over yet. So, why release those prisoners?

[Maximus]

Does anybody know what happened to the many thousands of prisoners of war that we captured during the Gulf War? I don't think they are still being held prisoner, since we don't hear about them.

They were out-processed and released. I served with the 401st MP Camp (POW) during the Gulf War, and we processed appx. 5,000 EPWs. The majority were forcibly conscripted, had no desire to fight anyone and were no danger. We did have a contingent of Republican Guards, and I am unaware of their eventual fate, although I expect they were released back to the Iraqis at the close of hostilities.

[Grames]

Aren't emergency ethics applicable to times of war? During the time of war only, I mean.

No. So called "emergency ethics" apply to metaphysical emergencies. War is man-made.