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Obama Planning US Trials for Gitmo Detainees

Obama wants to bring some of the worst terrorists this world has ever known to the United States to face trial. This is one of most ignorant, riskiest ideas anyone has ever come up with and it will be prove to be one of the most dangerous parts of Obama's presidency. Obama seems to be more concerned about the treatment of these terrorists, many of whom are still in Gitmo because they are so dangerous their own countries don't want them back, than he does about the safety of the American people. And let's not forget the safety of the CIA agents and other US agents who were involved in capturing and interrogating these terrorists. They may be forced to appear in court, blowing their cover completely, and putting them at grave risk. This would make the Plame affair seem like a game of tiddlywinks. From the Orange County Register.

President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

During his campaign, Obama described Guantanamo as a "sad chapter in American history" and has said generally that the U.S. legal system is equipped to handle the detainees. But he has offered few details on what he planned to do once the facility is closed.

Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts...

According to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private.

Whatever form it takes, Tribe said he expects Obama to move quickly.

"In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark," Tribe said. "It has to be dealt with."

So what if it's a black mark. Who cares about the symbolism. We're safe from lunatics who want to kill as many Americans as they can and destroy our country, but Obama has decided to make our war on terrorism a criminal prosecution project. That's what Bill Clinton did and we know how well that worked out. Barack Obama has chosen his path: weaken our country and put the American people at risk for the sake of appeasing others.

Although al Qaeda is essentially impotent, thanks to President Bush, they will begin to fight back. They're already threatening to hit us harder than 9/11. With Obama at the helm, they'll probably find that their regrouping efforts will be a much easier process than they originally thought.


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Comments (118)

Yet another area where McCa... (Below threshold)
Jeff Blogworthy:

Yet another area where McCain failed to distinguish himself. And people wonder why he lost?

Time for conservative Repub... (Below threshold)

Time for conservative Republicans in congress, if there are any left, to stand up against this liberal craziness. The McCain reach across the aisle b.s. needs to be seen for what it was. A loser every time.

I agree wholeheartedly that... (Below threshold)

I agree wholeheartedly that bring terrorists into the U.S. for trial is the wrong thing to do. I do not agree with criminalizing terrorism. However, what to do with the detainees at Guantanamo is a problem that Obama has to deal with. We can't afford to keep them there forever, and we can't return them to home countries. So, what do we do?

Thank God he will govern fr... (Below threshold)

Thank God he will govern from the center. I mean could you image if we had a left wing Ideologue who cared more for what other nations thought of US, rather than the best interest of America.

As McCain said lets all stand behind him.

I read on another site that... (Below threshold)
retired military:

I read on another site that Jamie Gorelick was going to be nominated for Attorney General. That should tell you everything you need to know.

Let's see soldiers who captured them may have to appear in court. Their families will be put in danger of retaliation.

Don't you just love the hope and change of this administration.

I heard Obama's spokes pers... (Below threshold)

I heard Obama's spokes person say "Obama will be ready to RULE on day one." How about that. Not govern. Not lead, but RULE. Old Big Ears has dilustions of grandeur. ww

As distasteful as it may so... (Below threshold)

As distasteful as it may sound, every person, regardless of colour, race or creed is entitled to due process. Even these mad Mullahs.

However it is wrong to keep these people locked up in a legal limbo where they have to due process.

Give them their trial, and those that deserve death, then execute them. As for the remainder, lock them up, but atleast try them and sentence them

I think Obama is doing the right thing here.

It won't be long until we h... (Below threshold)
Adrian Browne:

It won't be long until we hear Obama petulantly declare, "I'm the Decider."

If any of the Gitmo group i... (Below threshold)
Mac Lorry:

If any of the Gitmo group is convicted, then putting them in the general prison population could solve the problem of keeping them locked up forever. If they are acquitted and face persecution back home (most would), they'll be released into the U.S. I know that bad, but if any of these are later found to be part of a terrorist attack it will greatly damage Obama and the democrats. Not only for not stopping a terrorist attack, but for the stupidity of releasing the terrorists into the U.S. No, I'm not happy about the possibility of another attack, but the electorate has made it's decision and other than pointing out the stupidity of the left again, there's not much republicans can do.

When they release these thu... (Below threshold)

When they release these thugs after their trials, please make sure they live in the DC area. It will be fitting justice to the incoming administration that they can continue thier dirty work near their friends.

Guantanamo was chosen to specifically prevent their ability to avoid habeas corpus, including bail and the potential of release in the US. It is a legal military enclave on foreign soil. It was the best option the administration could come up with without getting new legislation that probably would be judged ex post facto anyway.

We must address this new class of criminal activity. POW status presupposes national armies, they don't fit there. Nor do they belong in the US court system on US soil when their crimes of these foreign nationals are essentially violations of the Geneva accords or genreally accepted rules of warfare.

In the past most would have been given a summary military court. This is how we handled the saboteurs the Germans landed on Long Island and Florida beaches in the early days of WWII.

Does the incoming administration really want Khalid Sheik Mohammed roaming the streets of Washington or New York if his case is tossed out? That's what they will get.

To Kim Priestap and many of... (Below threshold)
Tom Arie Donch:

To Kim Priestap and many of these posts: Did you know that a general at Gitmo stated that he believed over 90% of the detainees were inocent? Did you know that among the camp names for prisoners at Gitmo was "Camp Iguana", for the children that were detained there for years? Did you know that our government paid informers in Afganistan to list so called "terrorists"? Many of them were innocent people who someone simply were victims of a tribal grudge or enemy? Why do I and most people hate the terrorists? Because they are willing to terrorize innocent civilians for their personal cause. Does our constitution mean nothing? Does it not allow the fair trial of all those accused of crimes? Really look at the court documents that ordered the Bush administration to hold trials for Gitmo detainees.

"As distasteful as it may s... (Below threshold)
retired military:

"As distasteful as it may sound, every person, regardless of colour, race or creed is entitled to due process. "


a. They are not American citizens.

b. The Geneva convention does not apply as they were not wearing uniforms and as such fall under the category of spies.

Tom,Did you know tha... (Below threshold)
Jeff Blogworthy:

Did you know that many of the Gitmo detainees were scheduled for release but begged to be allowed to stay?

We are back to 9/10/2001 th... (Below threshold)

We are back to 9/10/2001 thinking!

These people waged war against the US and are still waging war against us, and will continue to wage war on us if Obama's fuzzy, feel-good attitude wins out.

Bush was too successful in preventing terrorist attacks in the US, and now there is a complacency and a 'so what' attitude.

Too bad Johnny Cochran died... (Below threshold)
Pretzel Logic:

Too bad Johnny Cochran died huh?

Of course, Bush might have ... (Below threshold)
Mac Lorry:

Of course, Bush might have a parting shot in the works in that he could declare the Gitmo detainees as official prisoners of war. That status insures their imprisonment until the conflict is over, but it also gives them other rights that Bush has not wanted to bestow on them. However, given the alternative of given them over to criminal court where they would be assumed innocent until proven guilty beyond a reasonable doubt, it seems clear that POW status is preferable. A POW can't be charged in criminal court even if they attempted to escape and killed a Gitmo guard. They could execute them, imprison them until the end of the conflict, but that's it. Once declared as POWs it's unlikely Obama could do anything but keep them imprisoned or let them go.

It won't be long u... (Below threshold)
It won't be long until we hear Obama petulantly declare, "I'm the Decider."

No, he probably won't be saying it quite like that:

Who is Zbigniew Brzezinski? Obama's Adviser


Did you know that many o... (Below threshold)

Did you know that many of the Gitmo detainees were scheduled for release but begged to be allowed to stay?

What's your point? That many of the detainees are innocent? Or that it's better for the US to run a permanent country club for suspected terrorists rather than try them?

Or he could declare them pi... (Below threshold)

Or he could declare them pirates and execute the lot of them. That would reduce the number of terrorists surrendering in the future (which is the only practical reason we take prisoners in the first place), but it might be a better bet than letting the terrorists into the realm of lawfare even more than they are now.

Sorry for the lack of clari... (Below threshold)

Sorry for the lack of clarity. #19 was following on to #16

All those people beheaded d... (Below threshold)

All those people beheaded did not know that Tom demands they have a trial and due process. They must have missed your memo. What an unintelligient thing to say. I believe we are at war. Do you Tom? ww

Send them back to where the... (Below threshold)

Send them back to where they we caught. Who cares if some country doesn't want them. Put a parachute on them and kick their ass out of the airplane.

I disagree with bringing them onto American soil, as they (some of them anyway) are terrorists, and criminals, as they do not fit in under the conventions of warfare.

Or release them in Cuba, you know, cut a hole in the fence and let them go. Then's it's Cuba's problem, not ours. If it was up to me, they would all be shot trying to escape.

"Send them back to where th... (Below threshold)
Adrian Browne:

"Send them back to where they were caught."

That would be Afghanistan.

Brian,'Country club'... (Below threshold)
Jeff Blogworthy:

'Country club' or 'torture chamber reminiscent of the worst soviet-style gulags in history'? You people can't seem to make up your mind.

Apparently the military is perfectly capable of making the determination of innocence without spending millions in civilian courts of law. How's that for a point?

You people can't seem to... (Below threshold)

You people can't seem to make up your mind.

I'm only following your logic from your #13.

Apparently the military is perfectly capable of making the determination of innocence without spending millions in civilian courts of law.

Ah, so the ones they release are innocent, and the ones they keep we just assume that they're guilty. Is that it? Wow, we could save a lot here in the US by letting the police determine who's guilty and innocent all by themselves. We'd save millions!

How's that for a point?

Pretty poor.

This article is typical rep... (Below threshold)

This article is typical republican fear tactics. It's dangerous to bring these people over to the US for a trial? Nonsense. They're just people, what are you afraid of? That they will spontaneously explode like living WMDs?

The argument about blowing the cover of CIA operatives is also flawed. We can make arrangements for them to testify in a manner that won't blow their covers.

Bottom line is they MUST be granted due process if our great country is to mean anything.

Get used to this: The era of 'Fear and Loathing in the White House' is coming to an end.

Let me get this straight --... (Below threshold)

Let me get this straight -- giving foreign fighters Due Process rights under the US Constitution will be the only way for this great country to mean something? Do you even know what you are talking about? Criminal prosecution under Due Process is a very high burden to overcome and is full of technicalities that can easily put one of these nutbags on the street. You cannot make accommodations for CIA agents under Due Process -- the defendants has a right to face his accusers! FACE is the operative term.
Do you even know the basics of criminal procedure and law in the United States?

If Obama does this and we start seeing acquittals at trials for technicalities, he can kiss his own ass goodbye. His new "house" is the prime target. These people are unbelievably naive or just plain stupid.

KStarwaster, you have made ... (Below threshold)

KStarwaster, you have made at least four major errors. Really, you've made more than that, but four that I want to highlight.

First, these are not "just people." The risk is not that they will explode, but that someone will try to spring them, or that they will be able to carry on their activities (those like KSM, who are planners) from within the prisons. Either of these outcomes would be bad. Moreover, our civil courts are uniquely poorly equipped for trying people in this category. How, for example, will we protect our agents and military members once their identities (in many cases closely held) are revealed in court? How easy would it be to kill the kids of a SOF operator? And if the detainees are ordered freed, and cannot be sent to their home country, the civil courts would be bound to free them in the US. None of these results is good, but all are likely.

Second, you seem to be assuming (the "due process" issue) that these people are subject to domestic law. That would be the case if they were here (which is another reason why bringing them here is bad), or if they were American citizens regardless of where they were, but non-citizen combatants captured in war have never before been subject to civil law. Indeed, I believe that it is a violation of the Geneva conventions to subject combatants to civil law. In this case, it's murky, because these people are combatants, but not legal combatants under the Geneva conventions (for example, they do not wear "fixed signs visible at a distance"). The proper legal category, it seems to me, is that of pirates.

Third, you misunderstand the use of "due process" itself. Due process of the law is a protection mechanism for US citizens against their government. It has no meaning in war.

Fourth, I assume from looking at your premises that you think that we are not at war. You have that luxury. For now. But you largely have it because of the efforts of the Bush administration over the last 8 years. Actions like the one at issue here, bringing terrorists to the US to stand trial, and possibly to be released into civil society, will eventually eliminate your ability to pretend that 9/11 did not happen. The enemy is real, and they are at war with us. Our failure to take them seriously led to 9/11, and our failure to take them seriously now could easily lead to the same or worse. I'd prefer to feel safe than to feel righteous, frankly.

Get used to this: ... (Below threshold)
Mac Lorry:
Get used to this: The era of 'Fear and Loathing in the White House' is coming to an end.

If any of the terrorists released into the U.S. are later found responsible for a new attack on U.S. soil the era of Obama and the democrats would come to an end. Liberals have not idea how dangerous the seeds they're sowing are.

"I read on another site tha... (Below threshold)

"I read on another site that Jamie Gorelick was going to be nominated for Attorney General."

You mean conservative Republicans can FINALLY get Gorelick in a Senate confirmation hearing UNDER OATH?

That sounds good. I hope it's true: her fingerprints are all over 9/11 Clinton coverups, outrageous Fannie Mae corruption, the wall between the FBI and the CIA.

Brian and Tom, how about we... (Below threshold)

Brian and Tom, how about we release the "innocent" ones in your neighborhood. You can invite 'um in for tea and sympathy.

To: Wildwillie did you even... (Below threshold)
Tom Arie Donch:

To: Wildwillie did you even read what I wrote?? you said: "All those people beheaded did not know that Tom demands they have a trial and due process. (I was talking about those that are innocent) They must have missed your memo. What an unintelligient thing to say. I believe we are at war. Do you Tom? ww"
So by your pretence of logic wild man, war justifies all means to an end. Bombing civilian targets, torture and cessation of rights of children are o.k. Innocents and civilians be damned. So by that logic, those that think of themselves at war with us are justified in taking the lives and liberties of those they kidnap and kill. Boy I bet the families of the victims of the terrorists would love to hear that. No one is saying convicted terrorists should not be executed, but when the evidence is clear that most of these people were not terrorists how can you justify your statements? I guess the same way the terrorists justify their actions!

They should just set them f... (Below threshold)
John Wayne:

They should just set them free in DC, NYC, Boston, San Francisco, LA, Chicago, and Seattle.

They won't do anything, I swear on Obama's Koran.

even though my expectations... (Below threshold)

even though my expectations of neoconservatives are lower than low, im still surprised at how poorly they understand this issue

there is still a such thing as basic human rights no matter what country they are citizens of, and theres a very good chance most of them are innocent. that means its stupid to lump them in with beheaders and other criminals who we arent even detaining

hundreds of the detainees have already been released. i guess some of you have a big problem with that. oh well. i guess when the neocon wants blood, he doesnt care where it comes from as long as he gets to puff out his chest

and to all you jack bauer wannabes: if you dont object to torture, dont bother objecting to terror

People were ratting out the... (Below threshold)

People were ratting out their neighbours in Afghanistan, falsely accusing one another of being mujahadeen, and consequently a lot of innocent people were detained in Guantanamo. This is known to be the case. So: are you comfortable with these people being locked up for no good reason simply because when they get out they're going to be really f*cking mad about it? They should be released if they are not guilty of any crimes, obviously, and if they do commit acts of violence, part of the blame will fall on the shoulders of those responsible for the policy that brought them to Cuba in the first place.

That's the right way to look at it, but then if you're more concerned with national security than with right and wrong, you would probably look at it another way, e.g. with some crass cost-benefit analysis that does violence to the principles upon which your nation was founded.

"Brian and Tom, how about w... (Below threshold)

"Brian and Tom, how about we release the "innocent" ones in your neighborhood. You can invite 'um in for tea and sympathy."

well ODA315, when one's understanding of the issue is as limited and undeveloped as yours, i really have to wonder what your own proposal is?

"Brian and Tom, how abou... (Below threshold)

"Brian and Tom, how about we release the "innocent" ones in your neighborhood. You can invite 'um in for tea and sympathy."

well ODA315, when one's understanding of the issue is as limited and undeveloped as yours, i really have to wonder what your own proposal is?

Peabody, you're right on. We should let them loose in YOUR neighborhood. You might want to invest in a nice chain mail collar if it happens. Just sayin'.

I thought about going on va... (Below threshold)

I thought about going on vacation in the USA next summer.
Then I saw post #12.

Since i'm neither an American citizen, nor wearing an uniform, I would be stripped of every right ? It's quite worrying...

Hmmmmmm, if only America ha... (Below threshold)

Hmmmmmm, if only America had some kind of precedent by which to judge this situation, to illustrate to the nation how history will view them for allowing Gitmo to go on for so long based on paranoia rather than justice. If only ...


Send them to canada. ww... (Below threshold)

Send them to canada. ww

What sort of moron would co... (Below threshold)

What sort of moron would compare the false detention and imprisonment of American citizens on American soil without trial, to the detention of illegal combatants captured on foreign soil and held in a foreign country.

I guess we'll have to ask Special Ed. for that one. Oh -- he goes by the pen-name TRUSTRUM.

Peabody and hyperbolist, th... (Below threshold)

Peabody and hyperbolist, there is little doubt that some of the guys we've taken are innocent of being terrorists or in any other way enemies of the US. Granted.

There is equally little doubt that some of the guys we've taken, even some of those we've released in the past as "not dangerous" are in fact enemies of the US, and often terrorists.

There is a system in place to determine that. It is called a combatant status review tribunal, and its entire purpose is to determine whether or not a person who is being detained as an enemy combatant is, in fact, an enemy combatant. I could sympathize somewhat with the view that these tribunals may need procedural improvements; frankly, I'm not familiar enough with them to know if that is the case. (And no, links to DKos or HuffPo aren't evidence that I would pay attention to, so let's just skip those.)

The civilian court system is manifestly not the place to try to do this; the rules are not appropriate (the evidentiary rules are particularly unsuited to battlefield conditions), and the system of both detention and release is not sufficient. If these guys were accused of criminal acts, I'd be right on board with you. Heck, I think what happened to Padilla was a travesty, even if he's guilty, because as an American citizen he deserved the habeas writ and the right to confront his accusers regardless of the harm to our national security; otherwise, we enter into a realm where the government can detain citizens based on only its unchallenged word. But that is not the case with the vast majority of the prisoners at GTMO. They are not accused of lawbreaking, but of acts of war. This accusation was made in the course of what were generally battlefield captures, in which there was often zero doubt as to their combatant status. (Those who were captured off the battlefield and who could be and were willing to be returned to their homes have already been released, as I understand it.) Does anyone want to argue that KSM is not a combatant? Or how about that guy, I think he was aQ's propaganda head, who was recently sentenced, and gave a rather fluent admission of his role, glorying in the damage he and his fellows did to the US? Want to argue that his admission in open court is somehow not valid?

The point is, there is a system in place to handle this, and it is not the civil court system, for good and valid reasons.

Oh, and #38, don't be foolish. People taken inside the US are subject to all the rights of due process and habeas that citizens are granted, with the obvious exception that citizens cannot be deported if they are here illegally.

Thanks for proving my point... (Below threshold)

Thanks for proving my point for me, Jack Bauer.

I don't need to prove you a... (Below threshold)

I don't need to prove you are a moron. You manage that all by yourself, with an absurd, hysterical and frankly, insulting similie. Keep up the humorous work.

We have released so... (Below threshold)

We have released some of the Gitmo detainees only to capture them again fight American troops. Part of any war is denying the enemy recourses. The Germans we found who were spies we killed. The other Germans who were soldiers we held them till the end of the war.
During the Battle of the Bulge when Germans tried to infiltrate Allied lines quickly changed back into their uniform. Why because they did not want to be captured as they could be shot. The only trails we did were for war crimes.

What FDR did to Japanese-Americans during WWII was different matter. How was he able to do it? Well he had bullied the courts to get most of the illegal New Deal through that they were willing to do anything he asked.

If we have to bring these guys in Build new prisoners to house them. Just like we did during WWII. We do not need these guys mixing with American prisoners.

As far as kids if a 15 year fires an Ak-47 and that 7.62 kills an US service man he is as much of threat as 80 year old.
If he is captured and held is that not better than being released and being killed?

When the war is over they can all go back home.

jeff - if you are saying we... (Below threshold)

jeff - if you are saying we should have been able to deal with all this enemy combatant stuff by now, well just have to agree that the whole situation as it presently stands should never have happened

Yeah, you're absolutely rig... (Below threshold)

Yeah, you're absolutely right, Jack Bauer.

There are absolutely NO similarities to be drawn between imprisoning Japanese people without trial or even a preliminary hearing (military or otherwise) on American soil for Japan's attack on America and imprisoning Muslims, Arabs, et al. on foreign soil without a trial or even a preliminary hearing (military or otherwise.)

It's not like both situations were born out a paranoid need for security, a need that caused a generalized lashing out at particular ethnicities, a need born out of reactionary fear following a surprise attack against American soil.

It's not like other nations who also held Japanese in such Camps (Canada, for instance), have ALREADY publicly compared Gitmo to the WWII camps and said "we've learned from our mistakes--never again" because people (clearly not yourself, however) have easily seen this comparison.

It's not like both situations saw innocent people detained without any sort of legal process (even if only a military one that even spies are afforded.) I mean, really ... if the US is so sure all the people in Gitmo are guilty without any investigative or judiciary process then you would, of course, have no problem using that same infallible process in American civil court against you and your friends, right? Just think how quickly you could clean up the streets of crime with that level of absolute certainty!

Perhaps if you consider that the two situations don't need to be identical in all regards in order to be compared, especially when the point being made is what a society loses of itself when it detains people without trial or proven cause out of a paranoid fear for security (and a false sense of security, at that), regardless of where they are held or were taken from.

You can hide your opinions behind the veil of semantic righteousness all you like, but it won't change the facts regarding America's repetition of an acknowledge black mark on its history.

civilIAN court, not "civil"... (Below threshold)

civilIAN court, not "civil" court.

And we should just let all ... (Below threshold)

And we should just let all of these people sit in cages until they die? 20/20 released information a couple of years ago on Guantanamo Bay, proved that many of these people are completely innocent of any crime, except their race. These people are being tortured daily, however, because we are the ones doing the torturing that makes it okay? I'm against torture, period. Of any person.
We can't afford to keep this prison going until everyone dies (including the innocent) and I can't believe any American would think we should.
The American way is by trial..Are we not American?

In post #3 Matt says, "We c... (Below threshold)

In post #3 Matt says, "We can't afford to keep them there forever, and we can't return them to home countries. So, what do we do?"

Why can't we keep them there forever, Matt? Do they have an expiration date like milk and and cottage cheese?

Because some of them are in... (Below threshold)

Because some of them are innocent. I hope you don't consider yourself Christian, you p.o.s.

this is an important human ... (Below threshold)

this is an important human rights issue and im surprised that neocons, posting on a neocon message board, have nothing serious to say about it

Actually, trustrum, it is i... (Below threshold)

Actually, trustrum, it is indeed civil, rather than civilian, court. As in civil law, contrasted to martial law. You seem to think it is civilian courts, contrasted to military courts, but that is incorrect. A civilian court can operate under martial law.

Peabody, I agree the situation should not have gotten to this point. I believe that is as far as you and I will agree, and in particular that we would disagree both as to why we are here and what we should do about it.

Linda, news organizations have agendas, and anything they say must be taken with a grain of salt. Multiple Congressional investigations have shown both that the tribunals are working at getting people released who shouldn't be held (in fact, we have captured people who have been released from GTMO, and went back into combat against us). The allegations about torture have been twisted, for political reasons, beyond the realm of rationality. To say that we are torturing any prisoners, never mind all prisoners, at GTMO on any kind of regular basis is the stuff of lunacy. Finally, Islam is a religion, not a race; the difference is non-trivial.

As to your question (the non-rhetorical one), I wonder what you propose as an alternative? Some people are too dangerous to be loose in society; that is why we have prisons. Some people are too dangerous to be loose in the world at large; that is why we have GTMO. Are you suggesting that KSM (the guy who planned the 9/11 operation) should be set free to attack us again, or taken on his word that he won't, because it's too horrible to contemplate him being in jail? Or are you simply convinced that only Americans have moral agency, and thus only Americans can do bad things? Further, if you suggest that the proper thing to do is to have a civilian court try the prisoners under civil law, with what crime would you charge them? Making war against the US is an act of war, not a crime. What chain of evidence can have survived untainted under battlefield conditions? Would the prisoners' right to confront their accusers mean that the methods of US intelligence and military operations must be exposed in open court? (If you are suggesting that, I would note at this point that you would have to make the affirmative statement that you are willing for more Americans to die — due to reduced ability to effectively counter the enemy, since the enemy will then have the information needed to evade our systems and methods — including civilians, rather than accept that war is different from crime.) Since no warrants could conceivably have been issued on the battlefield, what evidence could be admitted against them? The jihadis have a technique, used worldwide and documented in their training manuals, of making wild claims and accusations, including of widespread and vicious torture, when in court, in an attempt to use Western court systems' rules and Western values against the West, specifically to get the prisoners released. This has been wildly successful in many places, and has resulted in several terror attacks being committed by people who had previously been in detention. (This is to say nothing of the costs that are incurred in long trials, nor that bankrupting enemy governments (their enemy, meaning us, among others) is one of the enemy's primary stated goals.) Given this technique, how would you prevent the trials from becoming travesties?

Who wills an end must will a means to that end, and I'm really curious how you guys who think that civil trials are the way to go would address the many questions raised as to how this would conceivably work.

I'm surprised, peabody (in ... (Below threshold)

I'm surprised, peabody (in #52), that you are reduced to name-calling, that you think that neocon is a slur, and that you think everyone here is a neocon. Oh, wait, no I'm not: it's both typical of your posts to date and symptomatic of your lack of ability (or willingness, one of the two) to reason. For you to then say that the rest of us are unserious says far more about you than us. But keep flinging poo; I'm sure it impresses your intellectual equals.

Hey, I think we ... (Below threshold)

I think we should just release them all into Obamas custody then he can do what he wants with them. That or he can just sign an executive order to pardon them.

Thanks, Jeff. I'm a Canuck ... (Below threshold)

Thanks, Jeff. I'm a Canuck and am not entirely sure if "civil law" means the *exact* same thing in the US as it does here so I thought I'd apply a safer term. Glad to see I got it right the first time.

And good points about the difficulties of putting them on trial, Jeff. However, it brings up another issue: if the proof is lacking for a trial, what was the basis for their arrest in the first place?

If they were captured on the battlefield then there will be after-action reports to act as evidence against them. If they were taken on the word of an informant then those people can be called to witness or their original statements forced to stand in their stead. If they were taken due to gathered intelligence then those intelligence sources can come into play.

Considering the ongoing nature of the conflict I'd be willing to concede that some leeway would be born out of the necessity of not putting at risk intelligence and military personnel still in the field. But even allowing presentation of evidence by proxy is better than letting potentially innocent people sit and rot (in some cases literally) for the lack of any forward movement towards justice *at all.*

No one is saying the process wouldn't require effort or even make mistakes, but mistakes are already being made aplenty without making any effort as the situation stands. Even if proof couldn't be given of either innocence or guilt, what's the worst that would keep happening? Hold on to those particular individuals, as is happening now? At least processing would be under way on the more polarized cases and some manner of inertia would be built rather than the stagnation that exists right now and does little more than continue to turn even the non-extremist Muslims against the American people.

jeff - who said neocon is a... (Below threshold)

jeff - who said neocon is a slur? its a fitting label that many here will own proudly, no? you wont win points with a lot of people here by equating the term to flinging poo

and a lot of what theyre saying here is "let them all rot innocent or not" and "who cares about arabs, they saw americans heads off"... in other words, some neocons are addicted to trolling and beating their chests

i appreciate that you are trying to take a reasonable tack as far as the structure of court proceedings goes, but i would be less concerned if i saw anyone taking the basic human rights here seriously: presumably a few are guilty of something, but by any indication most are not, and locking any of them up for over 7 years without trial in sub-humane conditions is effing ridiculous

I guess I don't understand.... (Below threshold)

I guess I don't understand. I want to feel just as safe and protected by our governemnt as everyone else...but I don't want to go against our own morals and Constitution to do so. We have freedoms under our Constitution, and those freedoms will always put us at risk. It's up to our gov't to protect us while still abiding by our laws.

If we seriously have the proof that the detainees are guilty, then what's the problem? They'll be found guilty and most likely executed.

If some of them are innocent (and who knows, maybe there are a few?), then why shouldn't they have a trial to be released?? Of course, they'll be holding quite a grudge for being held while innocent.

It's just amazing to me that people are actually against putting these detainees on trial. It's amazing that people still think that the world is actually like Jack Bauer in 24, rather than reality.

Because some of th... (Below threshold)
Mac Lorry:
Because some of them are innocent.

Almost all POWs are innocent of criminal wrong doing, but we keep them imprisoned until the end of the conflict. Bush may yet give them official POW status, which would prevent them form being facing charges in civilian court. I don't believe Obama would have the international authority to reverse that designation. His only options would be to keep them imprisoned or let them go.

Mac: Gitmo has potentially ... (Below threshold)

Mac: Gitmo has potentially already cost more American lives than it may have potentially spared by acting as a rallying cry for terrorist recruiters because it serves as proof of the American injustice they use to justify jihad against the US.

The problem with sweeping up the innocent en masse along with the terrorists and holding them indefinitely in drastically inferior conditions is that you almost certainly end up creating the enemy you were trying to destroy.

Trustrum, all of those cons... (Below threshold)

Trustrum, all of those considerations would be reasonable under martial law. However, after action reports would be considered hearsay in US civil courts, in particular if the person making the after action report were unable to appear to testify and be cross examined. This is a problem in war for two reasons: the person whose after action report is being relied on might have been subsequently killed in action, and even if not, are we going to pull units off the line of battle for (potentially) months, or have those units lose combat integrity due to having several of their key personnel subpoenaed for civil trials? Essentially, the rules of civil procedure are not compatible with trial.

Moreover, such a trial is itself a violation of the Geneva conventions, which prohibit civil trial for combatants. To hold otherwise is to hold that individuals are criminals for acting in accord with the laws of their society in taking up arms. That would mean that all soldiers are necessarily criminals in any other country where they were deployed in combat, or which claims universal jurisdiction (as many European countries do) for "war crimes." But if we concede that soldiers are not criminals, and resort instead to saying that the jihadis were not acting under the authority of a state, and thus are individually criminals, then we have to concede that those people held at GTMO are (subject to the determination of combatant status review) illegal combatants, and thus subject to immediate execution at the whim of their detainer. Actually, I happen to think that that is the correct ruling, but I suspect that most people would disagree. We have opted, in essence, to treat the enemy as a legal army, and thus their combatants are held as POWs, with the exception of the top AQ leadership, who are treated as illegal combatants. It's a lot harder of an issue than some appear to think, and the logical outcomes of applying the law correctly would probably shock most people, since most people are unaware of the history, or the reasons for the distinctions being made.

mac lorry - i dont see how ... (Below threshold)

mac lorry - i dont see how a POW designation would work. there has been no declaration of war to begin with, if there was it should be over now anyways, and i think the likely small number of detainees who are guilty are ones who should not be released and should face charges. these issues were settled decades ago on an international level. the reckless changes bu$h has tried to impose are the only thing that has paralysed the system

the two big issues are: charge them already and let the uncharged go. some, whether they have done so in the past or not, will go to battle with us, just as some common criminal parolees go back to their crimes upon release, but the answer is not to suspend justice indefinitely

Peabody (#57), the legal al... (Below threshold)

Peabody (#57), the legal alternative to imprisoning them as POWs is to declare them pirates and execute them. I don't think that's what you had in mind. Of course, we could overthrow thousands of years of historical precedent, and hundreds of years of common law, and declare them unlawfully detained civilian criminals, rather than combatants, but this would also have legal side effects of the most interesting sort.

For example, I could plausibly make the case that it is impossible to commit treason if an illegal combatant is a civil criminal. Treason requires the commission of an overt act of war, but if acts of war are defined as civil crimes, than there is no basis for treason. Do you really want to go there? It's possible, but it would require a pretty substantial rewiring of our legal code, and the likely end result would be to define civil crimes as acts of war, rather than the other way around, in terms of penalties and effects.

The reason for this is simple: think about the mood of the country on 9/12, and consider if we had captured KSM on that day. If he were a civil criminal, with all the protections and rules of evidence necessary to that status, would the people have stood for it? No, and history shows that the aftermath of such things is to elevate the penalties to those that should have been rightfully applied. But this drags the penalties upwards for actual civilians as well. Long-term, it's not a well-advised idea.

Jeff: then what is stopping... (Below threshold)

Jeff: then what is stopping anyone from dividing the detainees into groups where martial law or civil law are appropriate, and then handle them accordingly? It's not like these are the first civilians to have ever been arrested as unidentified combatants and the like. Even arranging for something like a special international tribunal is preferable to letting them just sit there for the duration.

And I disagree with your claim that most people aren't aware of the difficulties involved, or with using said proposed difficulties as a justification for stagnation. After all, the reasons given by the White House and military have largely outright avoided this as the reason because it paints them into a corner to get a move on to finding a solution. The primary reasons remain a "better safe than sorry" policy and claims that some detainees retain value as intelligence sources in the "War on Terror," along with an agenda to push through all such trials on to military commissions so that they can exist away from civilian and international oversight.

jeff i dare say i think you... (Below threshold)

jeff i dare say i think youre getting mired in the muck. during the clinton times we had no problem dealing with the first WTC bombing trials. that was a purely domestic issue anyways. today we are on foreign soil grabbing foreign citizens (by reliable accounts often completely innocent) and imprisoning them indefinitely. nobody is saying we shouldnt detain or question people, or charge these people in accordance with international law. there is an established, workable way to deal with each case, be they soldiers, combatants, or criminals. if we are going to designate them as enemy combatants then fine, do it. if that means we can then charge them, fine, do it. and if that means we try them and sentence or release, then again, do it. that is what must happen. the way it has instead been conducted is a shameful stain upon us, and just as importantly will cost us dearly in immeasurable ways for decades to come

I can't imagine how bringin... (Below threshold)

I can't imagine how bringing these people to the US for trial would work at all. They didn't commit their "crimes" in the United States. How would that sort of jurisdiction be justified? Any good judge would declare a mistrial and order them released.

POW's is a different sort of thing, and not likely to come out well for non-uniformed combatants.

The thing to do would be return them to the country on whose geographical territory they were apprehended and let the Afghan or Iraqi or whatever government decide what to do with them. Which *of course* would be evil, because the US is only the vision of evil itself as long as no one else is available for direct comparison. In my opinion, though, it makes the most sense as far as jurisdiction goes.

Or just let them go... (secretly attach a tracker to a bone... *really* secretly)... and just let them all go. (Or *tell* them they have a tracker on a bone but don't put one there... make sure they believe it) and let them go.

See how long it takes for the people condemning us for keeping them there to condemn us for releasing them to wander the alley-ways of Europe.

A lot of the arguments agai... (Below threshold)

A lot of the arguments against giving these people trials are the same issues that courts have to deal with when trying gang members, the mafia or any other organized crime network.

When trying members of the mafia, you have to worry about retaliation against witnesses, informants, undercover agents and their families. The mafia also has some of the best lawyers money can buy. We still prosecute members of the mafia in court.

Gitmo was a terrible idea, and leaving it the way it is makes us look like hypocrites and cowards.

Personally, if someone wants to kill me, I'd rather it was because I did the right thing than for being a hypocrite. I'd prefer not to let fear dictate my ideas of what's right and wrong.

The mechanism for dividing ... (Below threshold)

The mechanism for dividing the detainees into civilians on the one hand and combatants on the other is the combat status review tribunal. This tribunal is a martial court held at GTMO. It is this very process that is being attacked as illegal, immoral, vicious, wrongheaded and many less family-friendly terms. In other words, nothing is stopping us from making that division; it is precisely what we have been doing for years.

There is no case I can see where we could hold someone in GTMO and yet they would be subject to civil law if determined to be a noncombatant. If they are noncombatants and are in GTMO, they need to be released back to where we found them, to the extent that the law allows. (In case that last was unclear, we could not, for example, release the Chinese Uighur detainees back to China, because the law forbids us from sending them to a place where they are likely to be tortured or killed.)

But let me go back for a moment to the point you made about indefinite detention: "Even arranging for something like a special international tribunal is preferable to letting them just sit there for the duration." What you seem to me to be saying is that holding combatants in detention indefinitely is inherently wrong, so wrong in fact that coming up with new mechanisms to prevent it is preferable. This seems an odd position to me, both because there is little complaint about lifetime detention for civil criminals in certain cases (such as multiple-murderers or child rapists), and because there are already mechanisms well-established in international law for resolving the issue of prisoners taken in wartime. We are following these conventions and using these mechanisms as far as I can tell; it seems as if the objections are to the outcome, rather than the process, but are couched as objections to the process for whatever reason.

So let's say that we use a civil court and find that prisoner K is an enemy combatant. Then what? Do we ship him back to GTMO, or house him somewhere else, or let him go, or kill him? And if we ship him back to GTMO, why not just have the tribunals there in the first place? If instead we house him somewhere else, how is this morally superior to housing him at GTMO? If we let him go if he is found to be a combatant, why subject him to the law in the first place? If you are for killing him, OK, I can accept that as consistent with the law, but it has some practical implications (such as reducing the number of prisoners, and thus the flow of intelligence, in the future).

And if the civil court finds that prisoner A is a non-combatant, then what? Do we release him into the US? (And if so, there are a lot of questions that suddenly get raised, but I'll leave those to the side for now.) Do we send him back where we got him? What if the law precludes that? Then what? (This is not an abstract question, as note the Uighurs.) And again, if we are already doing that (as we seem to be), then what purpose is served by moving these hearings to the US? (This is entirely separate from whether or not they should be moved to civil court.)

A bit OT, but today is th... (Below threshold)

A bit OT, but today is the 233rd birthday for the United States Marine Corps.

Semper Fi, Marines! The Army loves ya too.

Peabody, in #65, I suggest ... (Below threshold)

Peabody, in #65, I suggest you read "The Cell." It is about the terrorism trials in NYC and the 9/11 plot. It paints a somewhat less rosy picture than you do. These don't actually seem to have been handled at all well, when it comes down to it.

Johnny, in #67, the difference with prosecuting the mafia is that it's possible to follow the rules of civil procedure. There is no custodial chain for evidence on the battlefield (certainly not one that would pass civil procedures muster), for example. I would be really interested, though, in your take on exactly how it is that GTMO is hypocritical or cowardly, given that the detainees are given more protections than any combatants in history (particularly when you consider that they are illegal combatants), and that we frequently release as "not dangerous" people who are still known risks, and indeed people who have later been recaptured on the battlefield, having returned to fighting against us once released.

It's not about fear, though; it's about winning. I think it's better to win the war, because if we don't, then my kids will be at risk of enemy attack. I don't see any reason why we should preemptively give up our advantages just because war is still as horrible as it ever was. I mean, great, if they would agree to put aside the guns and the bombs and the head chopping, and sit down to a nice game of Galaga, fine. But since they are still all down with the guns and the bombs and the head chopping, I don't think it's too much to ask that we be allowed to defend ourselves.

Jeff: You're confusing "hol... (Below threshold)

Jeff: You're confusing "holding someone in prison indefinitely WITHOUT A TRIAL" and "holding someone in prison for a life sentence after having faced a trial of one's peers." There are world's of difference between what's going on in Gitmo and putting a convicted child rapist away (to use your example.) Also, even a convicted child rapist can appeal that sentence, but what sentence can the people in Gitmo appeal when they haven't even been charged? You're talking apples and orange.

As for "why house them somewhere other than Gitmo?", well there are several reasons. 1) doing so on American soil sends a signal that the US is taking direct responsibility for the detainees. 2) it also puts distance between the process and Gitmo, a place that has become an international symbol of injustice and tyranny, a black mark the US won't wash away any time soon. 3) simple logistics: you can't have open and fair trials in a facility that refuses to loosen its operational secrecy.

And no, Jeff, the US is not following the international conventions in Gitmo. These facts are well documented by independent sources (domestic and international) and even by people who have served (and indeed commanded) at the facility.) You're current Vice President seems to think it's some sort of tropical country club despite all the complaints leveled against the facility by these varied sources, which would seem to be a big indication the US' policy on the matter is not in step with international opinions or conventions of process and operations.

jeff - trials are always ha... (Below threshold)

jeff - trials are always handled in a less than perfect manner. our justice system is as clumsy and messy as any but we are held up on power-grabbing presidential directives instead of letting justice proceed

theres just no way to justify holding hundreds of people as uncharged detainees for the better part of a decade. its indefensible. many if not most of these people are fully innocent and gitmo is a totally inhumane environment to merely detain people in

trustrum,... (Below threshold)
Mac Lorry:


Gitmo has potentially already cost more American lives than it may have potentially spared by acting as a rallying cry for terrorist recruiters because it serves as proof of the American injustice they use to justify jihad against the US.

Well that's your spin on it, a spin that assumes that terrorists are not sufficiently motivated by the fact that we destroyed their Islamic nation and turned it over to a bunch traitors to the Muslim faith who are willing to settle for mere peace and prosperity.

The problem with sweeping up the innocent en masse along with the terrorists and holding them indefinitely in drastically inferior conditions is that you almost certainly end up creating the enemy you were trying to destroy.

Well only 775 detainees have been brought to Gitmo since October 7, 2001, so stop with the "en masse" nonsense. Of those 420 have been released without charge, so stop with the "holding them indefinitely" nonsense. As of May 2008, approximately 270 detainees remain. More than a fifth are cleared for release but have to wait until U.S. officials persuade other countries to accept them. Makes you wonder what they know that we don't.

As for the conditions they are only drastically inferior when compared to a five start hotel. Yes there are reports of all kinds of bad treatment, and some of it might actually be true, but you would have to be a fool to think most of it wasn't exaggerated beyond recognition by detainees trying to do as much damage to the U.S. as possible.

That said, if Obama wants to treat them like ordinary people charged with a crime, that's his prerogative assuming Bush doesn't preempt that action by declaring the reaming detainees as POWs. Obama will also find he has tied his own hands whenever the U.S. captures suspected terrorists in the future. Unless the U.S. can prove the case beyond a reasonable doubt, they have to be set free and can't be tried for the same alleged crimes in the future even if proof is later found. And if one of these released terrorists is implicated in a future major attack on U.S. soil, Obama will pay a heavy political price.

trustrum and peabody, you s... (Below threshold)

trustrum and peabody, you seem to be thinking that these guys are criminals. I pointed out above why they are not. They are either noncombatants, or enemy combatants. If they are noncombatants, they are released after the combat status review tribunal finds them so. If they are combatants, they are detained.

What you both seem to be arguing for is civil trials, and if that is the case, then I would appreciate having my many questions above addressed. If you are arguing something else, please correct me.

Meanwhile, I have another hypothetical. If enemy combatants who are in uniform are held for the duration of the conflict, and enemy combatants not in uniform are given civil trials and potentially released, then what incentive does a combatant have to wear his uniform, and thus to protect civilians? What, did you think that the "fixed sign visible at a distance" was outmoded or something? It's there to spare the civilians from being killed as suspected combatants. Not wearing a uniform gives a combatant protection: they might not be fired upon, being assumed to be civilian. Consequently, there has to be an incentive to wear the uniform. What would it be, if we did things as you propose? Or is it just too bad for the civilians?

If any combatant captured on the battlefield is entitled to civil trial, then (even ignoring the issues I raised in earlier comments) how do you deal with an inter-state war, with potentially hundreds of thousands of POWs?

If you think that this is just limited to the current war, because normal wars don't go on that long, I refer you to history.

Mac:Yes, I'm aware... (Below threshold)


Yes, I'm aware of the figures (I too can access Wikipedia.) Unfortunately, what your cited figures don't mention is why so many people were brought there and kept so long if they were being kept without charges to begin with.

You may also want to consider what the word "indefinitely" means. If detainees are being kept within the camp because the US is unwilling to otherwise take responsibility for them ("ship them to other countries but they can't come here despite it being us who took them from their homes!") then yes, they are still being held indefinitely. Why? Because they are still in Gitmo and their release date still hasn't been defined (the very definition of the word "indefinitely".) Once the US says "we'll be releasing these people on this date" your claim they aren't being held indefinitely will be true, but not before then.

jeff - i am not tangling th... (Below threshold)

jeff - i am not tangling the issue up with such arguments, nor is it necessary to

we are dealing with all of the above, noncombatants, enemy combatants, POWs etc etc, whatever they are, in afghanistan and iraq on a daily basis

this gitmo legal limbo is ridiculous, and has persisted at our own great peril

Truthem peabody and Hyper</... (Below threshold)

Truthem peabody and Hyper

1. What s the crime that you want to charge these people with?
2. Where would you house them?
3. What is the time of they would serve in prison?

Mac:(sorry, having... (Below threshold)


(sorry, having problems with this interface, so I'll address the rest of your point here)

If you think it's just the detainees reporting on the conditions, you're very uninformed. US personnel (including some command staff) have said as much, as have a wide variety of independent domestic and international organizations that have been on-site to conduct inspections, including the Red Cross.

The rest of your statement is pretty much the sort of paranoia that has cost US citizens so many of their rights and freedoms over the past 8 years. Could you imagine if your government applied the "better safe than sorry policies" you suggest for terrorists to your civil laws?

"Well, we don't have any proof Mac stole that car, but we can't be sure he won't steal a car in the future so it's best to just keep him in jail, just to be safe."

There are reasons why the legal system is supposed to rest on a burden of proof.

1. What s the crime that yo... (Below threshold)

1. What s the crime that you want to charge these people with?
if they are to be charged, and i doubt there is any evidence against most of them to do so, that is for the courts to determine case by case

2. Where would you house them?
we are officially friendly with all the countries they were extridited from. perhaps the imprisoned ones should serve out their sentences there. there are other options

3. What is the time of they would serve in prison?
that is another case by case issue

hcddbzfirst, thank... (Below threshold)


first, thanks for the Feudian slip on my name, but on to your answers.

1. I'm not a lawyer, so I don't know exactly what it would be. Military law has classification for non-combatants under arms, however, and civil law covers private citizens who take up arms. Don't you think if the government is going to be detaining people they should have sorted out charges before doing so anyway?

2. Depends on the charges, how they were tried, and what country they are from. Again, this is hardly a reason not to undertake proceedings because, at the very worst, Gitmo could itself be refurbished into a proper penal facility should that be the last resort.

3. Again, time served depends on what they are charged with.

People keep talking like what's being done to these detainees is presenting all sorts of new scenarios. It isn't. The US has dealt with such situations before. The difference is the scale, the policies that led to the situations, and the public scrutiny.

The mechanism for div... (Below threshold)

The mechanism for dividing the detainees into civilians on the one hand and combatants on the other is the combat status review tribunal.

Jeff, you've made some very good points here on a subject that has confused me for some time.

If the combat status review tribunal is the final and only venue for adjudication (and I agree with your explanation of the difference between a civil trial in US Courts and the mechanism for adjudicating enemy/non enemy combatants) then how will these detainees be tried in domestic courts without some type of monumental constitutional problem? How can that problem be overcome? If jurisdiction is moved to US civil courts and the detainees are transferred to the US it seems to me that the innocent among them will be incarcerated for years longer than they would be if held under millitary law?

I can't answer you, Hugh, b... (Below threshold)

I can't answer you, Hugh, because I have the same questions.

Oh, and harking back a few comments to something I meant to note at the time, from comment #71 (trustrum):

As for "why house them somewhere other than Gitmo?", well there are several reasons. 1) doing so on American soil sends a signal that the US is taking direct responsibility for the detainees. 2) it also puts distance between the process and Gitmo, a place that has become an international symbol of injustice and tyranny, a black mark the US won't wash away any time soon. 3) simple logistics: you can't have open and fair trials in a facility that refuses to loosen its operational secrecy.

Let's say that we move the detainees to Denver. So that addresses point 1: you've sent your signal. Let's look at point 2 for a moment, though. What would be the difference between GTMO and Denver that would keep Denver from being talked about in your hypothetical the way that GTMO is currently talked about? The location isn't the issue; it's that we are detaining people that is the issue.

Your point 3 is just wrong, though. Unless you are making the point that we should drop our guard on their security, anywhere we house them will have some pretty stringent security requirements, because some of these guys are monsters, and we cannot take the chance either of them escaping, or of their lawyers passing on their orders to other terrorists. (Yes, this actually happened with the perpetrators of the first WTC attack.)

trustrum: "The res... (Below threshold)


"The rest of your statement is pretty much the sort of paranoia that has cost US citizens so many of their rights and freedoms over the past 8 years".

Cost U.S. citizens so many of their rights and freedoms?

Please name some of these citizens..20,30 of them, hell, try 5 or 6.

Trustrum (#80), what charge... (Below threshold)

Trustrum (#80), what charges should have been leveled against German soldiers in WWII, when they were held in custody in the US? In fact, they were never charged. Why? Because they were combatants, not criminals. That is also the case here: the jihadis are also combatants, not criminals. This should indicate that there are valid reasons to detain people other than for crimes. For example, if they are combatants. You keep saying that this isn't the first time this has happened, and then you keep ignoring the prior occurrences. It's kind of frustrating, because it gets us nowhere. hcddbz tried to cut through this, but got nowhere. I've tried asking a lot of questions to get you and peabody to state the difference between criminals and combatants, or to state under what law the enemy combatants could possibly be charged, and gotten nowhere. So I'll try another tack:

I assert that there is no possible civil crime under which the detainees at GTMO could be charged, and for which habeas could be shown. Thus, the detainees at GTMO cannot be held to account under civil law.

I hopefully await your counter-example.

xiphos, I do think that the... (Below threshold)

xiphos, I do think that there is one clear example: Jose Padilla. That was clear overreach on the part of the Bush administration, even if he did or planned every single thing they alleged.

1. Jose Padilla was not captured on the battlefield, either in the immediate sense, or in the sense of being in a war zone.
2. Jose Padilla was not captured in the commission of a crime.
3. Jose Padilla was not captured leaving the scene of a crime.
4. Yet Jose Padilla was held without charge (despite this being unconstitutional, his being a citizen) and without access to a lawyer (also unconstitutional). When he was finally charged, under the threat of summary judgement against the government, it was for things other than what were alleged when he was captured.

That was flat-out wrong, and should never have happened. So now they only have to give 4 or 5 examples.

Trustrum,... (Below threshold)
Mac Lorry:


Unfortunately, what your cited figures don't mention is why so many people were brought there and kept so long if they were being kept without charges to begin with.

You forget 9/11. Our response was to invade the nation that gave safe haven to those who attacked us. In conventional war those captured on the battlefield are imprisoned without charge and indefinitely, nothing new with Gitmo. Those fighting out of uniform don't fit the definition of a POW and Bush treated them as unlawful combatants, a designation that goes back to WW2. The Supreme Court ruled back in 1942, that unlawful combatants could be denied habeas corpus and tried by military commission. Bush didn't invent this status, he just applied it to terrorists who purposely don't ware uniforms so that they can blend into the civilian population.

If you think it's just the detainees reporting on the conditions, you're very uninformed. US personnel (including some command staff) have said as much, as have a wide variety of independent domestic and international organizations that have been on-site to conduct inspections, including the Red Cross.

And some of these so called independent domestic and international organizations have never been in Gitmo, but rather base their reports on former detainees. You are also very uninformed that many other former detainees said they were treated very well. That doesn't fit your biased position, so you ignore it.

The rest of your statement is pretty much the sort of paranoia that has cost US citizens so many of their rights and freedoms over the past 8 years.

What rights are you talking about or are you just parroting left wing propaganda? The fact that the 2nd amendment has been upheld as an individual right has restored a constitutional right liberals have been quick to deny in the past.

Could you imagine if your government applied the "better safe than sorry policies" you suggest for terrorists to your civil laws?

You mean like how sexual predators are kept confined indefinitely after completing their sentence?

There are reasons why the legal system is supposed to rest on a burden of proof.

And there are reasons enemy combatants have not been subject to charges in civilian courts in the past. In fact to do so for POWs is a violation of the Geneva Convention.

Let's remember that our US ... (Below threshold)

Let's remember that our US policies towards particular groups of people IS the source of the hatred by which these people hate us. How about some fair policies to everyone to subside the hate? It is true that many detainees could be innocent and many could be guilty. Let's find out the truth and not hide with fear to do the right thing for America and the world.

By fear I mean the saying things like the people that arrested these people will go to trial. Trying to be technical about the detainees' status so they can be treated as animals off shore without trial to rot. How about you go to jail unlawfully for the rest of your life? We don't know what system will be created to try these human beings therfore those fearful arguments are speculation. Let's hope the identity of witnesses will be private as well as the trials. We should face these things with courage to get some fresh air for our future and how our policies with other human beings globally affect our true standing in the world with the hearts and minds of the people in the world.

Someone above said Bush kept us safe from attack. Did they forget 9/11? The Economy? Spying on regular Americans without proper orders? Soldiers lost lives in Iraq based on staright up lies? F'd up mortgage ARMs? New Orleans non reaction? Selling Texas roads to Mexican's so they can charge Americans tolls for roads already paid for by taxes? I'd say we've been under attack by the very ones who are supposed to keep us safe.

And others are taking cowardly pop shots like calling our new president ol big ears. Grow up and accept that if we work together we can all win as a country. GROW UP and think about how you can support this country and stop being the problematic sore loser and for lack of a better term; hater!

Don't be so afraid. They're... (Below threshold)

Don't be so afraid. They're imprisoned; try them, let them free, shoot them, or kill their mothers.

If we want an indefinite dungeon, we should just build a prison - say, state of CA - and throw everybody we currently have jailed, along with the 'enemy combatants' and every other US citizen we can catch.

We'll all be safer that way. (sarcasm)

why are we arguing about wh... (Below threshold)

why are we arguing about what to do with people that have tried or are related to people who have tried to harm our citizens. Im sorry a few innocent people are suffering but as long as it reduces our chances of more attacks I simply dont care how many people lose their rights. If you have attempted to destroy someone elses rights it should be assumed you have surrendered your rights. This should apply to both citizens and noncitizens in my opinion. Also is it just me or do all democrats argue without any basis for their argument other than "its my opinion"

mac lorry - these are detai... (Below threshold)

mac lorry - these are detainees. they arent prisoners or convicts. they are being detained, in a legal limbo that has lasted over seven years for some of them

and today the federal govt can hold american citizens indefinitely without charges, nor having to notify anyone they are holding you. as far as we know, it hasnt happened that way yet, but if someone like bu$h decided he wasnt ready to leave, he could declare a red terror alert and start locking dissenters up one by one

that is as bad as it gets

Imprisoning them on the US ... (Below threshold)

Imprisoning them on the US mainland is important to show we're serious about settling this 'enemy' stupidity.

GWB purposely chose Guantanamo, Cuba to keep the prisoners away from Constitutional protections (which has worked for a while) while he freely shat on US law.

Then we say we're 'embargoing' Cuba. Except for the concentration camp we've built, yes we're supposed to.

ty - is your screenname sho... (Below threshold)

ty - is your screenname short for "tyranny"?


because thats what your proposal is a recipe for. its also the mindset that makes terrorism itself possible. you have to play fair if you expect anyone else to, and by taking away someone elses rights, you are ultimately giving up your own

Whoa, ty! Are you really wa... (Below threshold)

Whoa, ty! Are you really wanting to argue corruption of blood?! Are you really willing to argue that the government's assertion of your guilt is sufficient to detain you?!! Neither of those positions is the least bit tenable to me. The former punishes people who are not themselves guilty; the latter is utter tyranny, and not of the benevolent sort.

Combatants are held till t... (Below threshold)

Combatants are held till the cessation of hostilities and are released normally as part of the treaties.

We do not want to house these people in federal prisons as they would most likely cause problems by interacting with the general population. We already have gangs running crimes from inside federal custody we cannot afford to have terrorist have access to the outside world. In WWII we had POW camps and this is where we need to keep these Enemy Aliens.

3. These are unlawful enemy combatants we need to deny the enemy resources and trained and experience fighters is the top one.

My point is that people talk about this like the civilian courts are prepared to handle it. They are not.

For American Citizen we can charge them with treason, insurrection or other statues.
The only time that Enemy Aliens are tried is when there was espionage and then it was Military tribunal and they were executed.

As has been pointed out we do have a process to try and separate the r real Enemy Combatants from others. However we have released some and then come across them again on the battle field.

ty,Your perspectiv... (Below threshold)


Your perspective is ignorant. You say, "Im sorry a few innocent people are suffering but as long as it reduces our chances of more attacks I simply dont care how many people lose their rights."

With this thinking, we should arrest everyone in the country accept, say, three. We might have arrested innocent people but attack chances are reduced.

We say, "Innocent until proven guilty" for precisely this reason. If we say "Guilty until proven innocent - oh, and BTW, you don't get counsel or charged" then we should execute everyone arrested and start indicting regions en masse. By your thinking, we might possibly be a little 'safer.'

xiphos, I do thin... (Below threshold)
xiphos, I do think that there is one clear example: Jose Padilla. That was clear overreach on the part of the Bush administration, even if he did or planned every single thing they alleged.

Jose Padilla sThe change of his tatus to enemy combatant status was based on Ex Parte Quirin.. He was able to challenge that status and won.
The Administration did not over reach and were not doing anything unconstitutional, they were acting on legal precedent.
Jose was found guilty

Let's remember tha... (Below threshold)
Mac Lorry:
Let's remember that our US policies towards particular groups of people IS the source of the hatred by which these people hate us.

The policy at issue is not the treatment of the detainees at Gitmo, it's the policy of supporting the ruling families in the middle east where the west gets its oil. It's not even that we are preventing democracy in those nations as the terrorists were quite clear that they think democracy is evil and that's why they opposed the U.S. bring it to Iraq. It's that some people want to overthrow and take the place of the current rulers and the U.S. is standing in their way. We could let that happen if not for out need of their oil.

We keep telling the liberals that we need to drill everywhere in north America and at the same time develop the future energy infrastructure. It's not because the cost of oil is too high, it's that the cost of defending the oil supply is too high. Yet liberals are already making plans to reinstate the drilling bans. They will argue that price is low now so we don't need to drill, then when prices are high they argue that it takes 10 years to bring any oil on line. They have been doing this for 25 plus years and then they complain about going to war over oil. That's cognitive dysfunction.

By fear I mean the saying things like the people that arrested these people will go to trial. Trying to be technical about the detainees' status so they can be treated as animals off shore without trial to rot.

Such ignorance. Uniformed soldiers captured in war are not criminals and cannot be charged in civilian court. Other combatants are considered illegal and don't have the same rights as either legitimate POWs nor those accused of breaking civilian laws and this was upheld by the Supreme Court in 1942. Bush didn't invent this, he only applied the laws that were already in force. That's what the President is supposed to do.

The rest of your rant is equally ignorant.

after more than 7 years of ... (Below threshold)

after more than 7 years of legal limbo, torture, and holding even innocent people in inhumane conditions, the US govt has to crap out some justice or get off the pot

after more than 7... (Below threshold)
after more than 7 years of legal limbo, torture, and holding even innocent people in inhumane conditions, the US govt has to crap out some justice or get off the pot

What conditions are the inhumane conditions.

being held in total isolati... (Below threshold)

being held in total isolation from the outside world is in itself inhumane, in case you are somehow unaware. even death row inmates have a better day to day existance. at gitmo, prisoners, ooops i mean detainees, are being held so that they MAY be one day charged, and POSSIBLY convicted of some kind of crime. officials have gone on record saying that the large majority of them are probably not guilty of anything

in addition to all that, gitmo inmates... ooops i mean DETAINEES, have complained of the following which you may choose to lend some credence to or not:

-beaten while blindfolded and handcuffed
-forced to take unidentified medication
-sedated by injection without consent
-struck while under sedation
-regularly forced to run in leg shackles causing ankle injury
-deprived of sleep "as a matter of policy"
-witness to use of attack dogs to brutalise and injure detainees

another reminder: these arent prisoners. they arent convicts. theyre DETAINEES and many if not most are estimated by our own officials to be totally innocent, pending any real hearings after more than seven years

after more than 7 ... (Below threshold)
after more than 7 years of legal limbo, torture, and holding even innocent people in inhumane conditions, the US govt has to crap out some justice or get off the pot

Please to eplain:

1. How have the detainees been in legal limbo? They were held as enemy combatants, subject to combatant status review tribunals. Those who have been through the tribunals and found to be either non-combatants, or not currently dangerous, have been released where allowed by law. I don't know if all the detainees have been through tribunals yet, but if not, it's mainly just because it took so long to set up a proper system, with the expanded protections that we are offering over, say, those that were formed in WWII. That is not limbo: their status as adjudicated, and if they are combatants and still dangerous, they are being held for the duration. Congress can call off the war (from our side) at any time, and we would be required to release all of those detainees. Again, what limbo?

2. Torture? Really? Perhaps you would care to define torture. And are you claiming, as you imply, that torture, by your definition, is routine, a matter of policy, and/or unpunished?

3. In what way are the conditions inhumane?

jeff look above for questio... (Below threshold)

jeff look above for questions 2 and 3. wow... you really havent heard any of this stuff, or perhaps do you simply dont lend any credence? similar allegations have come from our own officials. apart from that, the govt is operating in a black box. i reckon youre comfortable with that? maybe you think everything is apple pie in this offshore govt prison (which isnt even holding prisoners) operating largely outside the confines of accountability?

many have been there over 7 years and havent been charged with anything. that is as much legal limbo as youll ever find. it really isnt tough to understand that gitmo is an abberation, a mistake, and just bad business for the US to be involved with

your point of view is in the tiny minority these days, and i couldnt be more content about that

im signing off for awhile

Everybody deserves a fair t... (Below threshold)

Everybody deserves a fair trial, even the world's most dangerous terrorist should be allowed a fair trial.

Due Process is one of the things America was founded on.

Saddam Hussein went to trial and so should every captured terrorist.

Luigi,Could Saddam... (Below threshold)


Could Saddam Hussein have been tried in American civil courts? In Iraqi courts, yes, certainly. In international courts? Not likely, except for what happened in Kuwait. In US courts? Nope. He committed no crime under our jurisdiction. He did commit acts of war against the US. For that, we went to war against him. He did commit crimes against the Iraqis. For that, he was tried in Iraqi court, and killed by Iraqi executioners.

Thank God us "real American... (Below threshold)

Thank God us "real Americans" elected a President who will uphold the Constitution that reads "All men are created equal"It doesnt say all american citizens who were born here & did not come here illegaly,or some other ignorant neo-con republican idea.Most of those human beings in there are innocent,just victims of a confusing & illegal war.We must be that beacon of light in the world,when W imposed these secret prisons he took a shit on Americans & wiped his ass with the Constitution.What we should be discussing is the arrest & prosecution of George W bush,Dick cheney karl rove & Donald Rumsfeld.They deserve to die a slow death for selling the US to Big Oil.

Um, Jay, that's not in the ... (Below threshold)

Um, Jay, that's not in the Constitution, but the Declaration of Independence. You might try the saying that it's better to keep silent and be thought a fool than to open one's mouth and remove all doubt.

There is no crime to... (Below threshold)

There is no crime to try anyone with. it a fiction promulgated by the media. We are not about finding quilt it about denying the enemy resources. It been explained over and over. The only time combatant are tried with a crime is when they commit war crimes.

We do not want Combatants tried in civil courts because it can results in very dangerous precedents. It can lead to military personal in uniform being tried for carrying out their normal assigned duties.

Now those who are engaged in the purposeful full bombing of civilians should be tried just like Bali Bombing.

If we build new Camp Clinton we would treat them the same way as we did with Gitmo. isolation and limited contact with the outside world. Everyone will still get a three piece suit.

Maybe we should treat them like the north and south treated POW during the Civil War. Now that was truly horrible conditions. We have learned and those Americans soldiers would have loved to treated like the folks at Gitmo.

In all honesty I really do not care about what the world thinks about us. There all the hand ringing about Gitmo. However I do not see the Arab street outraged when civilians and soldiers are kidnapped toured and if you do not convert to Islam your head is cut off. These are not aberrations by The Base it is Standard Operating Procedure.

The Geneva convention gave status to military personal wearing uniforms. It withheld them from people who did not wear uniforms. Why because when the enemy mixes in with civilians it makes it difficult to avoid hurting non combatants.

However faces with releasing these folks into general prison population. I think we would need to give them POW status. Which rewards these creeps.

That's what Bill Clinton... (Below threshold)

That's what Bill Clinton did and we know how well that worked out.

Tell me, are there unicorns in right-wing fantasy land?

Wow. With so many erudite a... (Below threshold)

Wow. With so many erudite analyst, I'm sure you can solve this problem. Send your policy suggestions to the President-elect and your resumes to his transition team.

According to the military's... (Below threshold)

According to the military's own statistics, fully 90% or more of detainees both in Guantanamo and in our other prisons are INNOCENT.

That means they were either rounded up in neighborhood "sweeps" or sold to the US by unscrupulous people who figured it was easy cash to sell a stranger to the dumb Americans.

So, when you are talking about keeping people locked up, 90% or more of the people you are talking about are completely INNOCENT.

Apparently that means absolutely nothing to you guys - which is a reflection of your own morals, ethics and character. You would rather torture and imprison 9 innocents in the hope of finding the one guy that hates you. Such actions on your fears are called COWARDICE.

Disgusting. I can't believe you guys are Americans.

ParthenonOBL create... (Below threshold)

OBL created "The Base" aka AL Qaeda in order to launch attacks all over the world for Holy war. When Iraq invaded Kuwait he offered to provide his soldiers to defend Saudi Arabia. However they took the offer form the USA. Well America soldiers boots on holy land was why he declared war against the USA. He helped coordinated the attack on our troops in Somalia. Which is where he talkd about the Glass jaw that the USA would back out once our nose was bloodied.

Clinton had a chance to get OBL but since he did not have "CRIME" to charge him with he let him go.

Mark,<br... (Below threshold)


According to the military's own statistics, fully 90% or more of detainees both in Guantanamo and in our other prisons are INNOCENT.

Yeah Right

Seton Hall University found 8% the Military found 95% suspect.

hcddbz, for me, it's not ab... (Below threshold)

hcddbz, for me, it's not about how the world views America. I simply have a problem with things that are wrong. The fact that there are horrible people doing far more horrible things than detaining people who have committed no crimes does not make it okay to detain people who have committed no crimes.

Jeff, if somebody was detained because their neighbour sold them to American troops for a reward, and the only evidence was, say, a photograph of Osama bin Laden and an AK-47 found in the person's home, would you be comfortable detaining them based on that evidence? I would hope not, but from what I read in Harper's (yes, it's liberal, but it's the best source of print journalism in the world, IMO), this would be sufficient grounds for throwing someone into a cell in GTMO indefinitely.

Now, what's the alternative? I don't know, I'm not a lawyer (but I would guess that you are). Seems like a job for the United Nations, non? They're all about helping people and, whenever possible, rubbing America's nose in dog shit. Let them take care of relocating the prisoners, but seriously, just let them go. If they attempt to commit further acts of violence, kill them or lock them up again. Who said being the good guys is supposed to be easy, convenient, or even safe?

I find some of these statis... (Below threshold)
In the Middle East:

I find some of these statistics and legal precedents and moral values quite interesting.
The point is everybody in Gitmo is there for a reason, and it is probably a good one. These people were not plucked from offices while they were doing an honest days work. They were in the wrong place for a reason. If they were the only non-combatant in the village they still condoned it.
Don't fool yourselves innocent or not at least 99% of the DETAINEES hate the USA and would love to see you die.
"You are either with us or against us" GWB

hyperbolistThis is... (Below threshold)


This is not police sweeps it is war. you have a few options on the field of battle.
1. Capture and detain
2. incapacitate
3. Kill.

We release and they go back into battle then eventually no quarter will be given on both sides.

Doing your civilian trials for combatants will eventually lead to Coalition troops who are captured being subject to arbitrary laws in the countries we are fighting.

Again at this point the only option is to give them POW status. Build camps and house there till the end of the war on terror. Either that or treat as spies and kill them.
The fact that seems to escape people here is that we are following legal precedent and the Geneva Convention in the treatment of these combatants .
You guys want to make up new laws that and procedures that will eventually come back to harm our troops in harms way. Also this will lead to the killing of more civilians in comabt as protections given to uniformed soldiers will effectively be taken awy.

First of call, Peabody(brai... (Below threshold)

First of call, Peabody(brain) said some detainees have been locked up in Cuba for over seven years. Do the math nitwit.

Secondly, the terrorists were not brought to trials or tribunals because all the military lawyers representing the terrorists put a hold on them until they all went through the appeals process. Now that is complete go ahead. So it was the terrorists own representation that was holding up their tribunals.

Torture? Come on. What an idiot.

United Nations? The most corrupt organization on the earth.

You neolibs are really something. ww

Thoughtful reply, Willie, b... (Below threshold)

Thoughtful reply, Willie, but who would expect anything less from the resident Sage of Wildness?

Moral equivocation: look it up in a philosophical dictionary, and then send yourself to bed with no dinner.

Wow. Right-wing fucktards ... (Below threshold)

Wow. Right-wing fucktards are right-wing fucktards.

Who'd have thunk it?






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