washpark, You are a lawyer, as am I. How do you legally hold someone like that without charging them? The term "enemy combatant", as far as I know, is an amorphous term with no legal import. And yes, I am aware that the Obama admin. is hedging on this issue as well, which I think is wrong. I understand that there are bad people, but we cannot act lawlessly. Perhaps a solution to this very real problem is to make terrorism an international crime, and then refer them to the International Criminal Court for matters in which there would be no U.S. jurisdiction (which would obviate the need for the US to become party to that court).
Then I think a lot of the "bleeding heart" faction should rethink their feelings of sorrow for the dirtbags being held in Gitmo. Could it be the automatic "torture" claims that spill from the mouths of these released detainees might be ********? After all, it's in the terrorist "manual" to lie about everything concerning their infidel oppressors.
Fightin You asked, "How do you legally hold someone like that 'without charging them? ' you mean like this? Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners. She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States is at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges." The Link
FH - It's a war. We could hold them under the Geneva Conventions as POW, but they aren't signatories to that agreement and they don't abide by its provisions. Under the Geneva Conventions, they could be summarily executed an unlawful combatants. So it is a question of how long, not whether we can hold them. I don't think anyone would say after overrunning an enemy position and capturing combatants defending that position that our soldiers should just release them back to the battlefield. You wait for the end of the war. In this case, we are looking at a Taliban commander engaged in hostile action against our soldiers in Afghanistan. When our troops are out of harm's way, Rasoul gets released. He is released with a tracking device implanted in his pancreas and we track him regularly, given the nature of his armed warfare. This isn't a criminal matter. He is an armed combatant who refuses to play by the rules of war. Kill him or keep him - until the point where no U.S. soldier can be harmed by him or his actions. The Third Geneva Convention allows us to detain them for the duration of the conflict. The Afghanistan war rages on. He shouldn't have been released by the DOD in 2007. I think the fundamental difference is whether they should be treated as the criminally accused or under the laws of war. I can think of no public policy served by granting unlawful combatants greater rights than those who abide by the Geneva Conventions. In essence, if we treat these unlawful combatants as the criminally accused, they will have more rights than POW's. That doesn't provide the proper incentives and we are putting more innocent civilians at risk if it is better to be an unlawful combatant than a lawful combatant.
Just imagine if there was some kind of process or model for a process by which the risk this man presented might be ascertained...
Great argument on the surface. But we are not formally at war, or even in an armed conflict, within any nation-state. I understand that this has all the trappings of such a conflict, but at bottom, it is not. I have no problem with summarily executing these folks or holding them "until the conflict is over" if that is what is allowed under International law. But I think there is more of a danger in stretching things like the Geneva convention and other treaties to situations like this, to avoid the strictures of our constituion and its limits on governmental powers, even if that includes affording terrorists rights under criminal law. Because at the end of the day, without all the legalities of a formal war, or at least armed conflict with another nation state, who decides when the "conflict" is over? When and how does any entity outside the Executive Branch decide when another future "conflict" has reached the level of this precedent, which would allow the president to use "war powers", even summarily executing people? In sum, I fear the unconstitutional broadening of executive power, and misuse of the war power, more than a terrorist being afforded certain rights in the criminal courts. We are after all, a nation of laws, which is what makes us better than them. And if some get away, that is the price we pay for democracy. Legal gymnastics to provide the apperance of legality, does not suffice for true legality. And frankly, it is disturbing. What may at one time seem a minor "tweaking" of the law, could become a wide-open door to outtright abuse of power. And I think the Obama administration is flat wrong on this. What they are doing is no better than what Yoo and Gonzales did -- and for me, an avid Obama supporter, that is unsettling. Bottom line: I do not think we are at "war". Al Queda is as much an ideology, as nothing more than a collection of likeminded terrorists, whose only connections are their likemindedness.
I guess the obvious question is: What came first - the Taliban fighter, or the accused who was imprisoned for years without being charged with anything or provide fair access to defend himself before the appriate tribunal? If I, as an American, even more so as a Texan, and all the pride and that entails, was captured and held unfairly for years without any recourse, you can sure as hell bet that I'm going to 1) Say I harbor no ill will towards those who unjustly imprisoned me, so that I may gain release; and 2) make those m-fers pay when I get out.
I get the we are americans stuff and agree that we should occassionally let guilty AMERICANS go if we just don't have the evidence or if mistakes/injustices were made. I do not have that same feeling for these detainees. I'm on record as saying I dont think water-boarding breaks the line of unacceptable torure and I know I am probably in the minority on that particular issue. If it were me, I'd water-board all of them (it only takes about 5 minutes to get them talking- I just don't think its that big of a deal) in a regulated observed forum. I would take all of their testimonies collectively and see what patterns or repeat offenders keep popping up. After reviewing all of the testimony I'd let some go and keep some based on what they told us. I would guess we would have been able to keep guys like this detained under that scenario.
I am not a 100% sure where I stand on Gitmo. I would rather hold them there then let them go to another country. I would not want to be the responsible person that signs the release paper. Somebody come up with another solution other then Gitmo needs to close, what is the President going to do when he closes it? What is going to happen with all the detainees? I read that someone wants to charge them? Ok then what? I read that they didn't sign the Geneva Convention? So? We should abide by it regardless and if and when the confilct is over charge war crimes or let them go. If you take the torture thing out of Gitmo and treat them as POW's I am not sure I see any problems? Maybe we need to introduce some new judicial language/laws in regards to terroists to the United States and the due process that they receive. Bill Ayers may have something to say about that. Let's quit complaining and blaming and start coming up with ideas.
Waterboarding is torture and counterproductive. A better strategy is to support Muslims who compete with the radicals. A better strategy is to cultivate a rich soil so the competitors of radical Islam have a place to plant the seeds for a reformation of Islam. Islam needs a Martin Luther, not another martyr.
Just because somebody breaks doesn't mean that they produce good intel. Waterboarding is torture and torture produces low quality intel and low volumes of it. And I repeat my question. Do you know, personally, even one adult muslim?
Maybe it is just me, but I believe I am with the majority of Americans here. (scary thought coming from me). But I am against torture. I am for holding these people as they seem to have been at war with us, or seem to think they have been at war with us, far before W. proclaimed there to be a war on terror. I want us to hold these people and not torture them. It is my simplistic non legal understanding that they people are picked up on a battle field and can be held because there is a war going on. We can hold them, and not charge them, until the war is over. It seems we have done that before. They seem to be getting decent treatment for the most part, and we should ENSURE they are treated fairly. Also, I know adult Muslims as many family members are muslim.
Shark, I hate to contradict your anecdotal information about your army training, but a quick google search over the interweb confirmed what I had previously understood - torture is not always a good way to gather intelligence. Myths About Torture, specifically contradicting what Shark just said Tourture is a lot like Black Panther cologne, 60% of the time, it works all the time.
