Rush Limbaugh admits Gitmo was a failure

[elfs]

Of course, he didn't really say that Gitmo was a failure. He just said that "one in five" of the people released from the Guantanamo Bay Prison facility had returned to terrorists groups.

Huh. That means that, in violation of all American tradition and sensibility, 80% of the people at Gitmo were, in fact, imprisoned without charge or reason. They were denied access to legal counsel, communications with their families, habeas corpus, or a speedy trial.

These were not "terrorists picked up on the battlefield." That's convenient Bush/Cheney speak for "Brown-skinned men wherever an American soldier happens to be." These were men picked up on the say-so of paid informants, family members with grudges, and warlords looking to settle a score. Many were imprisoned falsely.

And y'know what? Every single case that Limbaugh describes was of a man freed during the Bush-Cheney term, when policy was to deliberately keep the files difficult and possibly non-existent. Not one case of recidivism can be traced to prisoners freed during the current administration.

That's competence for ya. You either have it, or you don't.

Comments

[bikerwalla.livejournal.com]

So... if they weren't soldiers, then they were murderous civilians, and could have had their due process of law in the criminal courts.

This "unlawful enemy combatants" is trying to fudge a category out of a lot of exceptions, specifically so they wouldn't be counted as "prisoners of war" and wouldn't be given their rights under GC.

We see what you did there.

[darrelx.livejournal.com]

U.S. Criminal courts have no jurisdiction in foreign countries. Your argument makes absolutely no sense.

"Prisoners of War" are clearly defined by the Geneva Convention.

The detainees at Gitmo fall CLEARLY under the definition of "Unlawful Enemy Combatants" as per the Geneva Convention. You should read it sometime.

If the U.S. did anything illegal in holding prisoners at Gitmo, then how come there hasn't been an international tribunal accusing us of such?

[(Anonymous)]

The detainees at Gitmo fall CLEARLY under the definition of "Unlawful Enemy Combatants" as per the Geneva Convention. You should read it sometime.

Please provide the definition of "Unlawful Enemy Combatant" as per the Geneva Convention. I think you'll find those words don't appear anywhere.

Under the GCIV, detainees are either "Protected Persons," covered by Articles 3 and 4, or "other" covered by Article 3 alone. There is no special status recognized for "unlawful combatants," nor is there any exception recognized to the Article 3 provisions.

Article 3 prohibits "humiliating and degrading treatment," "cruel treatment," and "torture" of all detainees, regardless of their status. So explain to me how waterboarding is not in contravention?

Article 3 also indicates that a trial must take place before a sentence is passed, but this language is vague enough that I think it's open to some interpretation.

Number 127

[bikerwalla.livejournal.com]

Thank you for your advice to educate myself.
I read the full text of the several conventions and their amendments (http://www.icrc.org/ihl.nsf/CONVPRES?OpenView) and still could not find "unlawful enemy combatant" defined anywhere.

CLEARLY, you are basing your argument on other people's opinions about the documents. CLEARLY, you have been blustering and bluffing and hoping that your force of emotion will turn those opinions into facts.

[darrelx.livejournal.com]

My error, you are correct that it is not defined in the Geneva Convention. I was remembering section §948a of U.S. code Title 10 that makes that definition:

(1) Unlawful enemy combatant.—
(A) The term “unlawful enemy combatant” means—
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant; or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

(2) Lawful enemy combatant.— The term “lawful enemy combatant” means a person who is—
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

[bikerwalla.livejournal.com]

So it's a term defined solely in U.S. law, which was enacted in 2006 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+632+0++%28%29%20%20AN)... years after Camp X-Ray was filled with prisoners.

[darrelx.livejournal.com]

From a 1942 UNANIMOUS Supreme Court Ruling in re: Ex Parte Quirin (http://en.wikipedia.org/wiki/Ex_Parte_Quirin):

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Quirin is frequently used as the precedent for prosecuting unlawful enemy combatants under the UMCJ, and not the civil justice system.

[bikerwalla.livejournal.com]

And at the bottom of that very page (http://en.wikipedia.org/wiki/Ex_Parte_Quirin), Wikipedia notes that the 1942 Quirin decision was superseded by the U.S. ratification of the Geneva Conventions in 1949, giving Geneva the force of federal law. The American Bar Association issued a report stating that the Quirin decision does not mean we could hold these people incommunicado without recourse to courts or lawyers.

The Supreme Court in 2006 decreed, in Hamdan v. Rumsfeld (http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld), that the Gitmo detainees were indeed Prisoners of War under Article 3, and that the U.S. was in gross violation of Article 3 for each one of those detainees.

The big picture is that we, as a country, violated these people's rights. We held them without EITHER the protection of U.S. law OR international law, and we had to make a secret prison outside of our borders, and construct new exceptions to the law, in order to practice "extraordinary rendition" and "enhanced interrogation" -- kidnapping and torture, to us reality-based folk.

[darrelx.livejournal.com]

If I were to cede to the anti-Bush spin of the status of the Gitmo detainees (which I do not), I would still say that we are safer today because of Gitmo, and would hope that future leaders would do exactly the same thing in the same scenario.

[bikerwalla.livejournal.com]

It's a decision by the highest court in the land. Prisoners of War, Article 3 of the Geneva Convention. Call that "spin" if you want.

I would hope that future leaders react with horror to the idea of imprisoning people without due process, and that someday we will look upon this with as much shame as we now look upon the internment of Japanese-Americans during WW2.

[(Anonymous)]

Wow, Supreme Court decisions are "anti-Bush spin" now?

I don't think anybody is arguing that there is not a legal definition called "Unlawful Enemy Combatant," and that many, if not most, of the Gitmo detainees meet the criteria.

What people object to are the following:

1. That a detainee's status as an "Unlawful Enemy Combatant" means he is afforded no protections under the Geneva Conventions, the U.S. Constitution, or any other applicable treaties or laws. References to case law have been provided to you demonstrating that this is not the case.

2. That all the detainees at Gitmo are "CLEARLY" unlawful combatants. The status of the detainees is a complicated issue, but just take a look at all the legal challenges, investigations, and allegations, and I think it's pretty damn crazy to pronounce they're "CLEARLY" anything. There's a lot of shit to sort through, here.

Also, I can't speak for anybody else, but I find the notion that the only yardstick for success is "being safer" to be completely disgusting. People who would casually toss aside individual civil liberties, the rule of law, and hell, basic human decency in order to feel safer are goddamned cowards. Why are so few people willing to stand up and say yes, those things are worth preserving, even if it's hard and expensive and dangerous?

Number 127

[wendor.livejournal.com]

Not trying to weigh in on either side here, but you are both oversimplifying and don't seem to understand that "prisoners of war" is a legal term defined in the Geneva Conventions (specifically GC-III).
http://www.icrc.org/ihl.nsf/CONVPRES?OpenView

In this case GC-III Article 4 defines "Prisoner of War" and the detainees do not meet the requirements of that article since they fail on the requirements of any of the six sections. The closest would be section (2) but they still fail 2 (or 3 depending on the case) of the tests:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.


Another poster tried to claim that the instead of "prisoners of war" the detainees are actually "protected persons" as defined by GC-IV Articles 3 and 4 - but that poster apparently stopped reading before getting to Article 5 which excludes them from that protection for as long they are viewed as a threat to "the security of the State"


All of that becomes a moot point though since protection under any of the four conventions is dependent on the definition in Article 2 (Article 2 is the same in all 4 conventions) which would require that they be fighting under the authority of and on behalf of a signatory to the Conventions - or that whatever authority that are fighting on behalf of officially "accepts and applies the provisions" of the Conventions.

Bottom line is that representatives of whatever "party" they are fighting for have to come forward and assert their rights under the Conventions. None of the countries that these people are citizens of have stepped forward to say "these men were fighting on our orders" and the organizations that the detainees assert that they acted on behalf of are not signatories to the Conventions and have not stated that they will "accept and apply" the provisions of the Conventions.



Now, do I feel that they should have been (and still should be) treated humanely? Yes, I do.

But I do not subscribe to the fallacy of insisting that they were denied "their rights under the GC". The Conventions clearly state that they only apply when both sides of a conflict accept them and that in a case where only one party accepted them - that party is not bound by them until the other party accepts them as well.

[(Anonymous)]

I think I'm the person you were primarily responding to, and I think you understood my position.

First, I never claimed that the Gitmo detainees should be considered "protected persons" under Article 4; I was just listing the classifications that that GCIV recognizes for completeness. Sorry if I was unclear. I agree that the Gitmo detainees don't necessarily qualify for Article 4 protections.

Second, I don't think your analysis of Article 2 is accurate, at least regarding Article 3 protections. Article 3 describes protections which much be granted in "armed conflict not of an international character," e.g. internal disputes and cases like al Qaeda where the enemy isn't really an identifiable nation. I agree that your Article 2 logic does apply to Article 4 protections, however.

As for Article 5, that's sort of begging the question. How can it be determined that the detainees represent a risk to U.S. security if they are not granted a proper hearing? This is murkier because it involves a collision between U.S. and international law, but my argument would be that recognizing habeas corpus is a necessary step in the process which determines whether they really are a security threat, and that without that process no such determination can be made.

Number 127

[(Anonymous)]

er, I meant to say "misunderstood my position" in my first sentence. Doh!

Number 127

[wendor.livejournal.com]

I agree with what you say about Article 5 - it's an incredibly dangerous and easily misused bit of legalese.


As for whether Article 2 supersedes Article 3 or not - I disagree with your assessment as you disagree with mine.

But we're in good company in our disagreement. Heck, the disagreement over that very point split the US Supreme Court as well. From Hamdan v. Rumsfeld we know that 5 Supreme Court Justices and 5 District Court Judges agreed with your reading, and that 3 Supreme Court Justices and 3 Circuit Court of Appeals Judges agreed with mine. So we know it's not as clear-cut as it could be.

[darrelx.livejournal.com]

That was very rational, intelligent argument, and a good clarification of the aplication of how the GC doesn't protect Gitmo detainees. Thank you.

I too do not believe in treating prisoners inhumanely, but there is no evidence that this was the case (and THAT is the spin I keep referring to). Wtih the NOTED and ADMITTED exception of 3 high-ranking Al-Qaeda prisoners being waterboarded (a technique that in itself may or may not be classified as torture depending on who you listen to), there have been no instances of torture or prisoner abuse corroborated at Gitmo.

The McClatchy report that Elf cited seems to have documented some abuse "claims" by 66 former detainees, but I don't see anything in that article that corroborates those claims.

Consider this: How many people arrested in our U.S. Justice system "claim" to have been abused by the officers who arrested them? How many of those make the claim falsely, hoping to get their cases dismissed? Nearly 100%, that's how many. Less than 1 case out of every 2000 reports of officer abuse ever result in further action. Over 30% of those claims (about 600 out of every 2000) result in additional charges being filed against the criminal for making a false claim.

I see no reason to believe 66 former Gitmo detainees' uncorroborated reports of prisoner abuse. Especially after all the reports I've seen of how easy life was for those detainees -- how well they were fed... how they were able to exercise and keep fit... How not one person who was allowed to inspect Gitmo (and yes, there have been many inspections by congressmen, the media, etc.) ever reported direct evidence of abuse.