Charlie Foxtrot at Guantanamo Continues
The Bush regime’s already flimsy case for holding 385 detainees at concentration camps in Guantanamo, Cuba fell apart this week when two military judges dismissed the cases of the only two detainees who face charges. All charges were dropped against Canadian Omar Khadr and the case against Yemeni national Salim Ahmed Hamdan was thrown out because the Pentagon failed to establish proper jurisdiction for the tribunals at its island purgatory. But this partial victory only complicates and prolongs the incarceration of the men and boys who have been held in violation of the Geneva Conventions for five years.
From the UK’s Guardian:
In his decision yesterday, Col. Brownback said the Pentagon had merely designated Mr. Khadr, a Canadian citizen facing charges of murder and terrorism, as an “enemy combatant”, not an “unlawful enemy combatant”, the term used by Congress last year in authorising the tribunals.
The Pentagon’s lapse meant the tribunal did not have proper jurisdiction to try Mr. Khadr. “A person has a right to be tried only by a court that has jurisdiction over him,” Col. Brownback told the court.
Mr. Hamdan is accused of being Bin Laden’s chauffeur and bodyguard. In his case, US Navy captain Keith Allred yesterday said Mr. Hamdan is “not subject to this commission” under legislation passed by Congress and signed by President George Bush last year.
In their haste to circumvent the Geneva Conventions and provide political cover for the camps at Guantanamo, Congress passed the Military Commissions Act of 2006. A majority, including Michigan’s junior senator Democrat Debbie Stabenow, voted to legalize torture and establish military tribunals after Mr. Hamdan won a challenge in the U.S. Supreme Court. This latest development has implications beyond the two cases that were decided yesterday because it calls into question the legal status of all the prisoners.
Yesterday’s rulings also suggest that none of the 385 other detainees at Guantánamo, held for more than five years without charge, can be brought to trial before the tribunals because they too have been designated merely as “enemy combatants”, lawyers said yesterday.
But if you think the Bush regime will see the error of its ways and close down its much criticized facilities at Guantanamo, you’d better think again. The charges against Khadr were thrown out “without prejudice”, which means the Pentagon can issue new charges.
The detainees who were tagged with the made-up term “enemy combatants” are cast once again into legal limbo while the government tries to figure out how to charge them with a crime. Expect renewed calls for the closing of the camps at Guantanamo from the international community. And expect the government to take its time figuring out how to justify what has so far been deemed unjustifiable.
Guardian UK
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posted by Nadir at 12:53 PM
3 Comments:
1. How do the Geneva Conventions apply to armed fighters who wear no uniforms and who do not operate under the flag of a nation that signed the convention?
2. What should US troops do with people shooting at them whom they capture?
3. How can US troops capture opponent fighters in such as a way as to collect evidence that would stand up US criminal courts?
I understand that you believe the US never should have invaded Iraq, etc. But having done so, what are the answers to these questions?
I believe that Bush's policy here is very wrong. It fails to consider the certainty that some significant fraction of these people were captured falsely, owing to the impossibility of any Big Government operation operating any where close to 100% efficiency. Although it is clear to me that the 911 response falls outside of the Geneva Conventions, Bush should honor those conventions any way.
Also, the US congress must have oversight of these facilities (which it doesn't seem to), and the judicial system of course must have some role, though I don't understand what.
However, I don't understand what you want here, Nadir, within the context of this war. No prisoners captured and held in any war by US troops could possibly satisfy domestic US judicial scrutiny.
"1. How do the Geneva Conventions apply to armed fighters who wear no uniforms and who do not operate under the flag of a nation that signed the convention?"
Legal experts who specialize in the Geneva Conventions have repeatedly stated that the Geneva Conventions apply to all individuals in and around a battlefield including civilians and non-uniformed fighters. The 4th Geneva convention specifically spoke to non-uniformed fighters.
Human Rights Watch - U.S.: Geneva Conventions Apply to Guantanamo Detainees
"2. What should US troops do with people shooting at them whom they capture?"
Treat them humanely and don't torture them. What's so hard about that?
"3. How can US troops capture opponent fighters in such as a way as to collect evidence that would stand up US criminal courts?"
From Human Rights Watch:
Prisoners of war (POWs) are entitled to further protections, commensurate with respect for their military status as soldiers. Indeed, the Geneva Conventions provide that prisoners of war must be quartered in conditions that meet the same general standards as the quarters available to the captor´s forces, e.g. the U.S. armed forces. In addition, POW´s prosecuted for war crimes must be tried by the same court under the same rules as the detaining country´s armed forces. In the current conflict, an Afghan POW could not be tried by the proposed military commissions, although they could be tried by an American court-martial.
"Under the Geneva Conventions, captured fighters are considered prisoners of war (POWs) if they are members of an adversary state´s armed forces or are part of an identifiable militia group that abides by the laws of war. Al-Qaeda members, who neither wear identifying insignia nor abide by the laws of war, probably would not quality. Taliban soldiers, as the armed forces of Afghanistan, may well be entitled to POW status. If there is doubt about a captured fighter's status as a POW, the Geneva Conventions require that he be treated as such until a competent tribunal determines otherwise.
The prisoners at Guantanamo were originally held incommunicado. Only after constant international pressure were they allowed to see lawyers. They were tortured. They were transported to an island prison thousands of miles away from the battlefield where they were captured. Who knows how many other prisoners are being held in secret prisons elsewhere.
There are rules in war. So-called "civilized" nations who signed the Geneva Conventions should adhere to those rules. Period.
In any case, I support adhering to the Geneva Conventions (even if I'm as yet unconvinced that all or any of these people qualify), which includes zero torture, and accommodating these people as if some good portion of them were captured mistakenly, and as if some other portion have it within their hearts and minds to support modern civilized living. I believe that this would even mean letting most of these people go long before any final "victory", including people who have committed violence against the democratic effort. If these people got treated really, really well, their stay might soften their hearts and expose them constructively to the best of what the US forces are trying to accomplish.
I think that it is a big mistake to hold these people to the standards of an established modern civilization.
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