What's happening with those poor devils at Camp Xray ???

Thanks, ebrown_p!

Actually my impression is that scrat has noticed the weakness of his arguments, and that this is why he chooses to "leave it at that". "That" being his misunderstanding about context, and his assumption that the human rights considerations depend on it.

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Thomas, give him some time to answer...

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owi - Has any attempted to empanel a tribunal to determine the status of the detainees? Who precisely has standing to do so? And for that matter, who determines that the detainees status is "in question"? To some it clearly is; to others it might not be. Confused

I admit to being unaware of this detail, though it seems logical and reasonable to me. I would support the decision of such a tribunal, and see no reason why the US could ethically thwart such an effort, if brought by an appropriate party with the necessary standing to empanel and charge the tribunal.

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Thomas wrote:

Whatever the context is, there are rules of due process, and a country can't just ignore them.

Surely you must acknowledge that what that the status of the individuals in question determines what that due process is. If they are not POWs under the Geneva Convention, they are not entitled to due process as defined by the Geneva Convention, nor are they guaranteed rights under the Geneva Convention.

Perhaps you believe that any person taken into custody by anyone in a military uniform should be protected by the Geneva Convention, but that is simply not the way it is. The Geneva Convention requires certain specific things of combatants in order for those combatants to be eligible for rights delineated in the Geneva Convention.

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I'm gonna play devil's advocate to both sides:

Ideally, nobody should be imprisoned without due cause, but ideally nobody should die in a terrorist attack.

We simply do not have the evidence needed to convince a court that those detainees are guilty of anything illegal. Were we to catch Bin Laden the same could be possible.

I believe in due course but this IS a special situation. I do not like that the special situation has little in way of checks and balances to impede feckless decraration of such an "emergency" but that's a fault of the system.

I also think that most of the detainees are innocent and have little to no value in terms of terrorist intel. Some have been released and I believe more should be.

But I disagree that the right to due process has to be applied in absolutely all cases, what if someone is innocent of any charge that would land him in detention but at the same time the detention is the only way to get information out of him that could save lives?

I'm not one to evoke the mushroom cloud to justify any and all deviations from universal rights but think there is a case to be made that sometimes deviations from said rights will afford the upholding of said rights to other people.

If violating the rights of a few save many then it is a practical solution that needs to be considered. I personally do not think this is the case in Gitmo but do not have access to the information for me to state that with certainty.

I think the detention is wrong, but only because the system is not set up for these cases, I think it should be. That would serve as more in way of the "checks and balances" i referenced.

BTW, I applaud those who clamour for these rights to be observed, as it stands these voices are the checks and balances. I don't pity those who have to deny these people their rights, it must not be a fun thing to do even if the practical reasons for doing so are very real.

One problem I foresee is that any system we put in place would still be a bit flawed. If the justification for detaining these men were arbitrated by a military court there will be those who cry foul, if it were decided by regular courts sometimes the guilty would get away (and sometimes because the court is too public and restrictive a venue to discuss the evidence that might lead to a different verdict).

Anywho, my rants over.

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Scrat,

Are you sure that the guidelines in the Geneva are requirements for the rights it delienates? I'm with you in that most "enemy combatants" violate Geneva but do not recall if compliance was a prerequisite.

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-scrat
For example when the United Nations High Commissioner for Human Rights says they should be treated as POW and the US government says they should not be treated as such there status - in my opinion - is "in question". You said it: "To some it clearly is; to others it might not be."...their status is not clear.

If you take the time to read Article 5 of the Geneva Convenvention, you have to admit, that until their status has been cleared "by a competent tribunal", they "shall enjoy the protection of the present Convention". The US (military or government) breaks this convention, imo. When you say that you fight for the "human rights" at the same time, this fight becomes - from my point of view - doubtful .

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ebrown_p wrote:

Scrat you have still avoided my question,

I merely found other lines of discussion more interesting than yours. But, since you insist...

ebrown_p wrote:

Under what circumstances do you say the US government have the right to imprison a human being for 18 months without a charge or legal counsel.

Under the specific circumstances under which the detainees find themselves detained, for one. (I'd outline the specifics, but you know them and don't seem to care what they are anyway.)

ebrown_p wrote:

Are you saying that the US has the right to do this at will?

Yes. Likewise, if an un-uniformed American citizen fighting on the side of the US were captured during combat in Afghanistan, I believe the Taliban would have no obligation regarding his treatment under the Geneva Convention. He gave that protection up when he fought while not wearing a uniform of his country's armed forces.

ebrown_p wrote:

Are you saying that the US has no obligation to prove guilt of a crime before they do this.

Yes, that is what I am saying. These men are not being held because they are criminals. This is not about crime. The context here is warfare. Can you not recognize that distinction???

ebrown_p wrote:

And incidently, I never said that the Afgan detainee have the same rights as an American teenager.

Yet you continue to pretend they are entitled to be treated as we would treat a citizen arrested for a crime on American soil.

ebrown_p wrote:

I am only saying that being imprisoned for 18 months is a big deal.

Let's hope that fact deters others from following in their footsteps.

ebrown_p wrote:

Imprisoning human beings without proving that they are guilty of a crime is to me unthinkable.

Your arguments are unthinkable.

ebrown_p wrote:

Again, how would you feel being imprisoned away from your framily for a year and a half?

You simply can't stop yourself from pretending these people were just minding their own business when we arbitrarily decided to throw them into cages, can you? (And you wonder why I wasn't bothering to answer your questions.) Rolling Eyes

ebrown_p wrote:

Would the fact that you were fed make you feel any less wronged?

I am frankly unconcerned as to whether or not the detainees feel "wronged". I suspect that those who died on 9/11 felt wronged. I am far more concerned with ensuring that American citizens are never wronged by the terrorists being held in relative comfort at Camp Xray.

If I had knowledge that the detainees were being mistreated, I would object to it. They are not. They are being treated far better than they deserve, far better than is required under international law.

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Scrat wrote:

Surely you must acknowledge that what that the status of the individuals in question determines what that due process is.

Sure. But all kinds of due process have some things in common: These things include that you have a right to a fair trial and a lawyer, that you're innocent until proven guilty, and you can't be punished without such a trial. Therefore, the American practice in Guantanamo Bay violates due process no matter what the details of the context are.

Scrat wrote:

If they are not POWs under the Geneva Convention, they are not entitled to due process as defined by the Geneva Convention, nor are they guaranteed rights under the Geneva Convention.

True. But they are still entitled to due process as defined by the declaration of human rights.

Scrat wrote:

Perhaps you believe that any person taken into custody by anyone in a military uniform should be protected by the Geneva Convention, but that is simply not the way it is.

I don't believe this, I never said I do, and none of my arguments depends on that assumption.

Scrat wrote:

The Geneva Convention requires certain specific things of combatants in order for those combatants to be eligible for rights delineated in the Geneva Convention.

I know. But 1) as I argued above, the Afghanis have certain rights even if the Geneva Convention doesn't apply to them. 2) The American government, as represented by assistant defense secretary Victoria Clarke in one of her briefings on the Iraq war, believes that you're an enemy combatant if you're part of the enemy's command and control structure. The captured Afghanis fit this definition as far as I know. So if the government believes in this definition, it must also believe that the Geneva Conventions apply.

But let me repeat: Even if they do not qualify as soldiers, the United States are still violating due process as defined by the declaration of human rights.

-- Thomas

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Craven de Kere wrote:

Are you sure that the guidelines in the Geneva are requirements for the rights it delienates? I'm with you in that most "enemy combatants" violate Geneva but do not recall if compliance was a prerequisite.

That is my understanding. The reason this is so is to encourage the use of uniforms and the adherence to other standards of conduct designed to minimize civilian casualties. If all soldiers wear uniforms, no one ever has to guess which civilians to shoot and which ones to protect. If no one ever hides arms or troops in hospitals or ambulances, hospitals and ambulances are never targets. The rights afforded combatants by the Geneva Convention are the carrot with which countries are (hopefully) compelled to play by its rules. The forfeiture of those rights is the stick with which those who do not are punished.

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Quote:

Sure. But all kinds of due process have some things in common: These things include that you have a right to a fair trial and a lawyer, that you're innocent until proven guilty, and you can't be punished without such a trial. Therefore, the American practice in Guantanamo Bay violates due process no matter what the details of the context are.

This is simply not true.

As an enlisted man in the navy, I was not entitled to a lawyer when I went before Captain's Mast. The "due process" to which I was entitled did not include such niceties. This was not a denial of my rights; those were my rights at that time and in that context.

These men are not accused of a crime. That is not why they are being held. You might as well argue that they have a right to know what their winning lottery number is. They are not entitled to legal representation because they are not facing criminal charges. They are prisoners taken in war, who are not entitled to treatment as prisoners of war because of their actions, not ours. You keep asserting that they have the rights of a criminal defendant, when they are not criminal defendants.

If your point is that you think they should have those rights, then fine. I accept that you believe that, and encourage you to work to change international law to make that the case, but so far you have failed to show that they are entitled to be treated as you think they should be treated.

Quote:

But let me repeat: Even if they do not qualify as soldiers, the United States are still violating due process as defined by the declaration of human rights.

And let me repeat; HOW SO???

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Scrat wrote:

You simply can't stop yourself from pretending these people were just minding their own business when we arbitrarily decided to throw them into cages, can you? (And you wonder why I wasn't bothering to answer your questions.)

That is precisely what has occured in the cases of some of the detainees. I reference cases in which the detained has already been sent home (but not before a lengthy detention).

Scrat wrote:

I suspect that those who died on 9/11 felt wronged. I am far more concerned with ensuring that American citizens are never wronged by the terrorists being held in relative comfort at Camp Xray.

I'm willing to wager that most of the detainees are not terrorists. I think many have information that could lead to the prevention of terrorism though. I've not seen much information either way and probably never will. But my gut says that you overstate things there. I strongly doubt 9/11 complicity by any of the detainees and also dount the value of the intel collected from them.

Scrat wrote:

That is my understanding. The reason this is so is to encourage the use of uniforms and the adherence to other standards of conduct designed to minimize civilian casualties. If all soldiers wear uniforms, no one ever has to guess which civilians to shoot and which ones to protect. If no one ever hides arms or troops in hospitals or ambulances, hospitals and ambulances are never targets. The rights afforded combatants by the Geneva Convention are the carrot with which countries are (hopefully) compelled to play by its rules. The forfeiture of those rights is the stick with which those who do not are punished.

I am not sure that that is correct but do not have any evidence to counter it. It's a pity to be too lazy to dig up on Geneva right now.

----------------

I wonder if this is precisely the circumstance that made the US so wary of signing the Geneva Convention.

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Craven de Kere wrote:

That is precisely what has occured in the cases of some of the detainees. I reference cases in which the detained has already been sent home (but not before a lengthy detention).

There is a huge difference between detaining someone without reason and detaining someone in error.

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Scrat wrote:

You keep asserting that they have the rights of a criminal defendant, when they are not criminal defendants.

No. I keep asserting that being an irregular combatant is a penal offense under international law, and that these people are being accused of it. The declaration has rules about how to deal with people who're accused of penal offenses (see Article 11 (1) ). And I keep asserting that the United States is violating these rules.

scrat wrote:

Quote:
But let me repeat: Even if they do not qualify as soldiers, the United States are still violating due process as defined by the declaration of human rights.

And let me repeat; HOW SO???

See Article 11 (1) Maybe the missing piece of information for you is that being an irregular combatant is a "penal offense" under international law?

-- Thomas

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Maybe there's a problem with definitions. In my dictionary, "criminal offense" implies "penal offense" but not the other way round. "penal" is more general. Is this this compatible with your dictionary?

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Yes, that was a missing piece (thanks) of my puzzle, but it leads me to wonder whether yet another piece is missing. That being, I believe part of the reason for my ignorance of this distinction is (I suspect) that they are not being accused of this. That they are guilty of this and are being detained does not mean that it is the reason for their detainment.

But I am beginning to work to torture the argument into submission. I concede that the issue is not as straightforward as I had thought, and appreciate the additions you've made to my knowledge of the subjects surrounding it.

I'd still be curious to know whether anyone has called for a tribunal to determine the detainees status, and if so, how that effort is going.

Regards,
Scrat

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Scrat wrote:

There is a huge difference between detaining someone without reason and detaining someone in error.

I agree. But I think much of the opposition to the detentions is due in large part to the lack of a system through which such errors are reduced.

Talk of due process etc is relevant to this factor.

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Craven - If people are already being sent home, it seems to belie the notion that no system is in place for determining when an error has occurred and redressing it. Of course, it may not be a good system, or to the liking of some, but clearly errors are being dealt with. All errors? Quickly enough? Hard to know.

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The errors I have heard of were pretty ugly. They were begging to be corrected. I don't remember precisely but I recollect something about old men doing nothing wrong and minding their own business being released months (not days or weeks) after they were detained.

Yes, the idea isn't to take as many innocent people and stuff them into cages as possible.

But I said a system to reduce error, not correct it after the fact. But I get your point, I really do. The detentions are not intentionally malicious.

Thing is, intent isn't always needed for a situation to be positively unjust.

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If the Iraqi people felt threatened by a group of Americans, would it be in their right to come to the U.S. and wisk them away to a base thousands of miles away? Just because they want to get some information?

I don't understand so many things about the situation
that I feel compelled to think there is no law actually in practice.

We can say all the fine words we like, but in practice, don't countries just do whatever they damn want until something actually stops them?

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What's happening with those poor devils at Camp Xray ???

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