Attackerman

I’ve never heard a good explanation for why we couldn’t call all of our military detainees POWs. It might make a difference in how we can treat them, but it would still allows us to hold onto them until the Long War “ends”, right? Perhaps civil-libertarians would be more accepting of military detentions of terrorists if “military detention” meant something less punitive than it currently does?

Not only could we call every one of our wartime-”protected” detainees POWs, but international law, ratified and made the “law of the land” by the U.S. Senate, requires that of us, unless and until, detainee by detainee, a due process-respecting Third Geneva Convention Article 5 hearing, implemented via Army Regulation 190-8, determines that a detainee may be held (under lesser Common Article 3 treatment standards, for the duration of the armed conflict in which the hearing demonstrates the detainee participated as a combatant) without benefit of POW treatment or status – and thus, if accused of violating the law of war (which only a small fraction of Guantanamo detainees have been), may be prosecuted by a military commission instead of by court-martial.

[The "unlawful" in Alien Unlawful Enemy Combatant (or Belligerent) status (a status applied en masse to our military detainees in violation of the law of armed conflict under whose authority they are being detained) can legitimately refer (though it's purposely never specified as such by those using it, many of whom wish to pretend otherwise) only to the domestic law of the nation in which the alleged activity occurred, or to any domestic law of the United States that then reached the conduct of non-citizens abroad - but not to the law of armed conflict, absent acts (like targeting civilians) that actually violate the internationally-recognized law of war. Because using violence to fight back against military opponents, even if the violence is committed out of uniform and without meeting other elements necessary to receive immunity from domestic law (an immunity which the law of armed conflict provides to POW-qualifying combatants), is not, in and of itself, a war crime.]

Somehow, however, despite our being years into that ongoing violation of the law, we conveniently never hear about the unproven status of the detained non-citizens who are publicly and brazenly defined, without proof, as “terrorists” by self-serving dissemblers like Mr. Goldsmith and Members of Congress for whom Goldsmith and his “lawfare” pals helpfully prepare misleading “legal” arguments – “legal” arguments, like those in Goldsmith’s latest op-ed, that are openly hostile to genuine due process and equal justice under law.

Posted below are some other rarely-mentioned facts about Guantanamo that I recently compiled to help combat the deceit of lawyers and politicians like Jack Goldsmith and Lindsey Graham who’ve abused and continue to abuse the privileges of public office to hide the full truth from the American people and the media.

Those who haven’t been closely following the work of (now award-winning) Miami Herald Guantanamo reporter Carol Rosenberg, or Britain’s indispensable Guantanamo writer Andy Worthington, may not realize that:

1. As of August 17, 2010, the Guantanamo Bay Naval Station had 178 foreign citizens detained, in seven different prison camps. As of August 27, 2010, that number had been reduced to 176 detainees.

2. As of July 19, 2010, “a total of 594 Guantanamo prisoners” [only a fraction of whom – less than 37 – were ordered released by federal judges in habeas rulings] “[had] been released” [the vast majority of them by the military acting under unilateral Executive Branch authority, during the Bush and Obama administrations] “(or, in some cases, transferred to the custody of their home governments, or of other governments), and six men [had] died there, five in mysterious circumstances.”

3. Guantanamo’s peak prison population reached 779 “protected” wartime foreign prisoners. To bring that number down to the 176 still detained today, about eight years after most were first seized and sent to Guantanamo from abroad, almost 600 voluntary, unexplained, unilateral releases by the military, at the behest of the Executive Branch (most of them during the Bush administration), quietly took place, after those detainees had already been held for years. Hundreds of captives were thus released, without explanation, apology or reparations, despite supposedly being held ‘for the duration’ of the armed conflict in which they were and are claimed (without lawful basis, in violation of the due process required by the law of armed conflict and our Constitution) to have been “combatants.” Furthermore, all Guantanamo prisoners – even the small minority of detainees who have finally had a merits hearing on their habeas corpus petitions in federal court and won a release order as unlawfully-detained non-combatants – were and are unilaterally decreed, en masse, by the U.S. President and military (in violation of the Third Geneva Convention, Article 5, and Army Regulation 190-8 implementing same, which requires POW status by default unless and until fairly revoked) to be non-POW participants in an armed conflict with the United States. [All detainees are thus deemed ineligible for POW protections and treatment (treatment which flatly prohibits coercive interrogation), and for court-martial jurisdiction under the UCMJ if accused of violating the law of war, for the duration of hostilities and thus for the duration of their detention in American military/CIA custody.]

4. A total of only 24 (foreign, purportedly non-POW) Guantanamo detainees have been accused and charged under the 2006/2009 Military Commission Act(s) with violating the law of war – in addition to being indefinitely detained as “combatants” in the ongoing armed conflict.

5. A total of only 4 of those 24 (from among those 779) have been charged and convicted by Guantanamo Military Commission – two by plea bargain (one under Bush, one under Obama). (There have been no Commission trials that ended in acquittal.) Two of the four convicted were released to their home countries before President Obama took office. A third is awaiting sentencing, and the fourth was given a life sentence after refusing legal representation during his Commission trial.

6. The two non-plea-bargain Commission convictions are (automatically) under appeal. Oral argument in the two appeals was held in January, 2010, and very-consequential decisions on the arguments made – for and against the Commissions and the war crimes charged – from the newly-minted Court of Military Commission Review (which has almost no case load), are overdue. The appellate briefs in the appeal of Salim Hamdan are available here, and the January oral argument in that appeal may be heard here.

7. Meanwhile, since June, 2008 (thanks to the Supreme Court’s 5-4 Boumediene decision authored by Anthony Kennedy), habeas corpus hearings have been ongoing in the U.S. District Court for the District of Columbia (alone) to consider the petitions filed by remaining Guantanamo inmates (challenging their military detention as unlawful, usually with pro bono assistance from secrecy-gagged American civilian attorneys). Of the 52 habeas corpus cases decided and upheld on appeal by federal judges as of August 17, 2010, the judges ordered the release of 37 detainees, finding them unlawfully detained under the law of war (14 of those 37 remain detained due to unresolved appeals, or D.C. Circuit-protected Executive will), and judges permitted the military to continue detaining, as “more likely than not a part of” Al Qaeda or associated forces when seized, 15 detainees.

I see reader powwow offered a long reply to your question about treating the captives as POWs. It is worth reading. I will add a few points.

Don’t be fooled by the Bush administration claims that the Combatant Status Review Tribunals were “superior” to the tribunals laid out in Army Regulation 190-8. On the surface the two process’s were very similar. The major difference was in their mandates.

AR-190-8 tribunals were authorized to either confirm that a captive was, in fact, a lawful combatant, who should continue to be treated as a POW. They could also determine that the captive was an innocent civilian bystander, who should be immediately released, or that the captive was an individual who seemed to have violated article 4 of the third Geneva Convention, who should thus be stripped of the protections of the Geneva Conventions, particularly, who could be stripped of the protections against being tried for hostile acts.

The CSR Tribunals were not authorized to rule on whether a captive was or wasn’t entitled to the protections of the Geneva Conventions. They weren’t authorized to rule on whether a captive was or wasn’t an innocent civilian bystander. They were only authorized to confirm whether the captives should be considered “enemy combatants”.

The Bush administration created the new “enemy combatant” status from whole cloth. It was shockingly broad and poorly defined. In early 2005 US District Court Judge Joyce Hens Green, who was considering the merits of several dozen captives’ habeas corpus petitions, asked a senior DOJ official some tough questions about the definition. She asked whether a little old lady, from Switzerland, who sent her widow’s mite to what she thought was a legitimate charity, could be considered an “enemy combatant” if someone at that charity covertly diverted some of its resources to support a terrorist project. She was told that the little old lady COULD be considered an enemy combatant. I wish I was making this up.

UK captive Moazzam Begg was issued a POW card by a representative of the International Committee of the Red Cross. The ICRC is based in Switzerland, and is tied in to the administration of the Geneva Conventions. Captors stripping captives of their POW cards is a serious violation of the Geneva Conventions. It may be a war crime. The USA stripped Begg of his POW card. Presumably they stripped lots of other captives of their POW cards.

A Commander James Crisfield was the Legal Advisor to CSR Tribunals. The President of Begg’s Tribunal requested advice as to how to deal with Begg’s request for witness statements from the ICRC rep and the officer who stripped him of his POW card. Crisfield clearly and unambiguously laid out that the CSR Tribunals were not empowered to consider Begg’s POW status. Crisfield, cryptically, asserted that Begg wasn’t even asserting he was a POW. I think what lay behind this cryptic statement from Crisfield was that Begg claimed he was an innocent civilian.

I am convinced that Begg was an innocent civilian.

A shocking number of the captives seem to have been innocent civilians.

The Bush administration routinely asserted all the Guantanamo captives were “captured on the battlefield”. This was wildly untrue, for any meaningful definition of battlefield. After reading through all the 1100 allegation memos and reading through the 500 or so hearing transcripts that the public record does not support this claim.

Only dozens of the 778 Guantanamo captives were actually captured on a battlefield. And I believe a fair reading of the public record would suggest that more than half of those captives were the innocent bystanders left behind on the battlefield after the actual shooters left

I am following up to my own comment to follow up in more detail to an assertion I made that only dozens of the captives were actually captured on something close to a battlefield, and that half of those captives were innocent bystanders.

I am going to summarize the stories of an incident that started on February 10th, 2003, that lead to a dozen men being sent to Guantanamo. The USA only had a couple of divisions in Afghanistan in 2003. The USA had taken relatively few casualties — less than 100. I mention this because I believe that, in 2003, the GIs on the ground were unlikely to have come under fire.

On February 10th, 2003, a column of American vehicles were sent down one of the few roads in Afghanistan to the small village of Lejay, in Northern Helmand Province, to arrest a militia leader named Abdul Wahed. The allegations describe the American column being fired upon. No American casualties were mentioned however. Air support was called in.

The Americans rounded up all the military age males in the region. And they placed a roadblock, or pair of roadblocks, on the sole highway in the region. They stopped at least two of the jitney taxis and captured the men inside. The documents say they captured approximately 70 men — without knowing whether any of them had fired on their column. So they picked a dozen of these men. What criteria did they use when they picked them?

Were they wearing “olive drab” jackets; did their clothes appear to have stains on them, that could be grease stains or blood stains; did the individuals appear to have hearing loss that could be due to recently firing weapons…

The Americans searched the region for weapons — and found one AK47. This is hardly surprising in a lawless region. Similarly, finding men in army surplus jackets in a country that had undergone decades of warfare is not surprising.

I’ll get to the wildly contradictory elements of the allegations against these men from Lejay below, and skip ahead to something I learned long after I read the Lejay villagers’ documents.

Personally, I have doubt the American column was fired on, in the first place. I suspect green American troops, who had never been under fire, thought they had been fired upon, started to blaze away, called in air support, without ever having been fired upon.

Nevertheless, back at HQ, the brass authorized massive retaliation. Air elements returned the next day and bombarded the village, although, in theory, the Americans had arrested the most likely combatants. Air elements conducted a heavy aerial bombardment of the entire region, including bombardments from groups of B52 bombers. A battalion of US ground forces was sent in to look for the fighters. Local Afghan officials complained that the heavy aerial bombardment had caused a large number of civilian casualties. The military reports published at the time asserted that a dozen militants were captured, and that another dozen armed militants were killed during an aerial attack.
I suspect that the dozen “militants” were the dozen picked essentially at random on the first day of the incident.

One of the captives was a sharecropper named Baridad. He was one of the men taken by the Americans because he seemed to have hearing loss. He testified at his CSR Tribunal that he lost his hearing due to a childhood ear infection. This is something I think it was in everyone’s interest to have DoD medical staff refute or confirm.

I mention Baridad first because he, apparently, was unlucky enough to have a name similar to a senior Taliban leader Bari Dad Khan. Another captive had a name similar to another senior Taliban leader, Rahmatullah. Many of the other dozen men had their continued detention justified because they were captured with two senior Taliban leaders — Rahmatullah and Bari Dad Khan.

Another captive Mohammed Alif was described as the squad leader. I regard this as one of the contradictory elements of the allegations. He is described as the squad leader, someone who in US terms would be a junior NCO, yet he is described as leading a squad that contained senior Taliban leaders — Generals.

Another contradictory element is that multiple captives each faced the allegation that the sole AK47 was THEIR rifle.

As they say, IANAL, but it seems to me that the bombardment of the village was both pointless, and a war crime, even if the US forces had been attacked.

As I wrote above, almost none of the captives were captured on anything close to a battlefield. This incident represents the closest to a “battle” from any of the documents. And even if US forces were attacked there was no real evidence any of these men had been attackers.

WRT to the other dozen armed men cleamed to have been shot from an aircraft — as the documents made clear, Lejay was in the center of one of Afghanistan’s prime opium growing region. So, armed men may have been the militia of a drug lord.
Of all the captives

There is the alternative, to change detainees to POW status and give them the rights they are allowed under such status. Then, perhaps legal processes will become more clear and grow the symbol of accountability into praxis of truth…

I thought this was a possibility, for Obama to implement, back in the first days of his administration. Politically now, I think just as Afghanistan is now Obama’s war, Guantanamo and Bagram are now Obama’s prisons, and it would be virtually impossible for him to reverse himself now.

A huge drawback of this approach, for the DoD, is that if the DoD was told to start treating the captives as POWs, they would each be entitled to that competent tribunal, and a very large number of them would end up being reclassified from “combatant” to innocent civilian bystander.

Like the Bush administration the Obama administration wants to hold fifty or so captives, even though they don’t have enough evidence to charge them with a crime — even under the Kangaroo Court rules of the Military Commission. I am afraid that is because many of those fifty captives that the Obama administration claims are too dangerous to release were innocent civilian bystanders who never should have been sent to Guantanamo — who are now believed to have become dangerous, embittered enemies of the USA due to the torture and abuse they endured at the camp.

There is also reason to believe that a small number of captives were not only driven nuts by their treatment, but were driven irretrievably, barking mad. Joshua Colangelo-Bryan was the habeas attorney for Juma al Dosari. Al Dosari made over a dozen suicide attempts at Guantanamo. He made his ninth suicide attempt during a washroom break in camp Echo, during a meeting with Colangelo-Bryan. He was subsequently sent to Guantanamo’s psychiatric ward. Colangelo-Bryan described this as even more damaging to al Dosari’s remaining mental health, as he then had no other captives to talk to. All the other captives in the ward had been driven so mad all they did all day was scream incoherently. They had lost the power of speech.

The most suicidal captives are issued special uniforms. We know now the “compliant” captives get white or tan uniforms. Non-compliant captives get orange uniforms. Suicidal captives get black uniforms. They are constructed so that it is not believed it is possible for the wearers to use them to strangle themselves.

Is it possible the Obama administration wants to simply warehouse captives who have been driven mad, even though they don’t pose a security threat? Is it possible the Obama administration decided it would simply be too embarrassing to let the public see captives who had been driven this mad?

Or, possibly, they decided that the release of anyone whose mind had been broken to the point of docility represented a threat that they could be adopted by militants, and would docilely allow themselves to have a bomb strapped to them, and would docilely allow themselves to be herded into being an unwitting suicide bomber?

You’re right, it is because of what is done at a prison, not the location of where the prison is. Nobody is joining a terrorist organization because they hate Cuba so much, but what they do hate are things like indefinite detention.

That’s a valid point, but I think it misses a point too. Because if GTMO is closed, terrorists will just return to the topics of American imperialism, manifest destiny, and their other tried-and-true recruiting methods. So yes, the problem is the terrorists.
And the problem is also the U.S. reaction to terrorism after 9/11. In those shaky times, during the immediate trauma and consequent cognitive blur, all America knew was that something had to be done quickly.
Terrorists will always find a new-and-improved reason, or will go back to a tried-and-true reason, to hate and kill. GTMO has remained a black hole, where rights do not exist, and where the only information we get is what the military tells us.

That’s a valid point

Which one? The one about sensible humans joining terrorist organizations just because a prison in Cuba stays open? What sensible human would join a terrorist organization for any reason, other than invasion and enslavement? A sensible human joining a terrorist organization dedicated to mass murder is an oxymoron.
And alan1tx has been reading too much Andy McCarthy.

The valid point is that those who would join a terrorist organization like AQ are insensible, and closing gitmo is not going to make them sensible.
That does not mean the detentions at gitmo were or are a good idea. It does not mean gitmo should stay open. I am separating “the” problem into multiple problems.

In alan1tx’s original post, he was asking if the problem isn’t really the terrorists. To me, that contains a kind of “either-or” implication…if the problem is really the terrorists, or if the problem is gitmo. I don’t see it as one problem. It is multiple problems. Entwined problems, but still logically separate.

One problem (I’d say the biggest problem) is the terrorists. Another problem is gitmo. Yet another problem is how the US reacted after 9/11. Making sense of the whole mess, addressing the reasons behind terrorism, and finding a way to end the era of terrorism are even more problems.

I am one of the relatively small number of people who has read every page of the transcripts from the OARDEC annual status reviews.

Some of those transcripts were heart-breaking. The transcripts started with the allegations offered to justify the captive’s detention being read out. Usually they were read out, a second time, one at a time, where the captive was given an oppo rtunity to respond to them.

One of the strange anomalies of the OARDEC status hearings is that the 2004 Combatant Status Review Tribunals were the only hearings authorized to determine whether the captives were “enemy combatants”. The 2005, 2006, 2007 and 2008 hearings were not authorized to challenge the earlier determination. They were only authorized to recommend captives had no remaining intelligence value, and no longer represented a serious enough trhreat to remain in US custody.

But OARDEC presented much more “evidence” at the later hearings. So, time after time you would encounte captives, who, when they were presented with the fuller list of allegations in 2005, they were able to offer answers that left the officers reviewing his case convinced that he was an innocent bystander, who had spent years in brutal detention.

The officers generally had followup questios, after the captive responded to the allegations offered to justify their detentin. I figured that when the captives’ responses were convincing to me, and the officers had no followup questions, the captives’ responses had convinced them too.

You might think that officers who reached that conclusion might apologize. But you would be wrong. Time after time, you can see the officers tacitly acknowledge that the captive was an iinocent bystander, who never should have been sent to Guantanamo, only to ask them to convince them that years of enjoying the DoD’s hospitality at Guantanamo hadn’t turned them into enemies of the USA. I wish I were making this up.

The officers would remind the captive that they knew they had spent years in close proximity with real radicals, and ask to be convinced those real radicals hadn’t radicalized them.

OARDEC conducted 558 CSR Tribunals in 2004. 179 of the decision memos the Tribunals drafted were published because those captives had habeas petitions submitted on their behalf. And 178 of those memos said that the decision to confirm that the captive was an “enemy combatant” was based on CLASSIFIED evidence. it was based on allegations that the captive was not given an opportunity to learn or try to refute. Since the 2005 allegation memos were on average about 4 times longer I believe 75 percent of the allegations which had been classified in 2004, had been declassified, and offered to he capties in 2005– when it no longer counted.

OARDEC conducted 558 CSR Tribunals in 2004. 179 of the decision memos the Tribunals drafted were published because those captives had habeas petitions submitted on their behalf. And 178 of those memos said that the decision to confirm that the captive was an “enemy combatant” was based on CLASSIFIED evidence. It was based on allegations that the captive was not given an opportunity to learn or try to refute. Since the 2005 allegation memos were on average about 4 times longer, I believe 75 percent of the allegations which had been classified in 2004, had been declassified, and offered to the captives in 2005 – when it no longer counted.

Thanks for reviewing all those documents, and for the helpful summary, arcticredriver. OARDEC stands for “Office for the Administrative Review of the Detention of Enemy Combatants” – so I’d say that the biased premise of its annual review boards, which you independently discerned in reading through all those transcripts, is pretty indisputable. Those annual Pentagon reviews obviously had something to do with the almost 600 alleged “enemy combatants” unilaterally released by the Executive Branch over the subsequent years to little notice, despite the still-ongoing armed conflict in which our military claims the released prisoners were pre-capture participants.

The unwillingness of the Pentagon’s military and civilian employees to publicly admit to their detention “mistakes” has a little something to do with the “grave breach” of the Geneva Conventions that is represented by the transportation against their will of non-POWs out of the nation(s) in which they were seized, to a U.S. naval base in Cuba, never mind their subsequent years of unlawful detention…

But the “enemy combatants” whose detention OARDEC purported to annually “review,” post-2004, first had their “enemy combatant” status formally reviewed and (re-)established, as you note, a year or more after their capture – even though they’d all been immediately and continuously treated as non-POW enemy combatants since entering U.S. custody – by the military’s 2004 “Combatant Status Review Tribunals” (CSRTs), about which a Guantanamo Military Commission judge in 2007 ruled:

Congress was clearly aware of these treaty obligations under Article 5 when it debated and enacted the [2006] Military Commissions Act. [...]

The CSRT [Combatant Status Review Tribunal] did not address [Salim Hamdan's default] entitlement to Prisoner of War status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities. [...] As a consequence, this Commission cannot accept the 2004 CSRT determination that the accused is properly detained as an “enemy combatant” in satisfaction of the required determination regarding his entitlement to Prisoner of War Status.

- Military Judge, Captain, JAGC, US Navy, Keith Allred, 12/17/2007

That ruling followed statements about the law of armed conflict made by the Court of Military Commission Review in its September, 2007 ruling in the Khadr Commission prosecution (bracketed elaborations and emphasis added by me), which pointed out that something in addition to the important question of combatancy is at stake in a proper Article 5 status determination hearing, before any detainee can lawfully be treated as less than a POW:

The determination of whether an individual captured on the battlefield is a “lawful” or “unlawful” enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in war-related activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) — signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II — sought to carefully define “lawful combatant” for all signatory nations.

[...]

This critical determination of “lawful” or “unlawful” combatant status is far more than simply a matter of semantics. [...] However, under the well recognized body of customary international law relating to armed conflict, and specific provisions of GPW III [Third Geneva Convention relative to POWs], lawful combatants enjoy “combatant immunity”5 [from domestic law] for their pre-capture acts of warfare, including the targeting, wounding, or killing of other human beings, provided those actions were performed in the context of ongoing hostilities against lawful military targets, and were not in violation of the law of war.

[...]

Lawful enemy combatants enjoy all the privileges afforded soldiers under the law of war, including combatant immunity [for any violations of the governing domestic law, but not for violations of the law of armed conflict] and the protections of the Geneva Conventions if wounded or sick, and while being held as prisoners of war (POWs).6 Additionally, lawful enemy combatants facing judicial proceedings for any of their actions in warfare that violate the law of war, or for post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States). See Arts. 84, 87 and 102, GPW III.

Indeed, GPW III codified many existing principles of customary international law and added numerous additional provisions, all aimed at protecting lawful combatants from being punished for their hostile actions prior to capture;7 ensuring that POWs were treated and cared for humanely upon capture; and seeking to guarantee the general welfare and well-being of POWs during the entire period they remained in captivity. See R.C. Hingorani, Prisoners of War 9 (1982).

[...]

Unlawful combatants, on the other hand, are not entitled to “combatant immunity” [for violations of the jurisdiction's domestic law or, as with POWs, for any acts that violate the law of armed conflict] nor any of the protections generally afforded lawful combatants who become POWs. Unlawful combatants remain civilians and may properly be captured, detained by opposing military forces, and treated as criminals under the domestic law of the capturing nation for any and all unlawful combat actions ["unlawful" actions in combat, that is, under that nation's domestic law, or under any other nation's domestic law that reaches such conduct in another nation]. Lindh, 212 F. Supp. 2d at 554 (citing Ex parte Quirin, 317 U.S. at 30-31); see Army Op. Law Handbook 17. 9 (1982).

[...]

No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions.24 The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum, could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant.”

[...]

The declared purpose of the C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba — including Mr. Khadr — was solely to afford detainees “the opportunity to contest designation as an enemy combatant.” Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of “lawful” or “unlawful” enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process.25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an “enemy combatant” [eligible/required to be treated as a POW until proven to be ineligible, under the Geneva Conventions] under the definition in the Wolfowitz memorandum26 to permit continued detention at Guantanamo Bay.

- Appellate Military Deputy Chief Judge Rolph of the United States Court of Military Commission Review, 9/24/2007, joined by Judges Francis and Holden, in their first-ever decision

Powwow, you make many excellent points. I’ll add a points Many commentators assert that since all the Guantanamo captives were “terrorists” the Geneva Conventions did not protect them against torture. A competent tribunal can strip a captive of the protections of POW status, as defined in the third Geneva Convention. But since World War 2 a fourth Geneva Convention was signed, by the USA, among others. It extends further protections to civilians who find themselves in a war zone. They are called “protected persons”. They too are protected against torture, and humiliation.

My understanding is that even if a competent tribunal strips captives of the protections of POW status those individuals would remain protected from torture and humiliation by the fourth Geneva Convention.

What sensible human joins a terrorist organization dedicated to mass murder simply because a prison in Cuba stays open?

What “sensible” person joins a terrorist organization at all? Do you ever listen to yourself?

Various comments on this thread suggest people have a very poor understanding of so-called “terrorists” who are opposed to the US empire. These are very moral people who have reacted to the extreme (basically think Nazi level) level of evil and violence committed by the US. You should think of them the same way as the French resistance in WW2.

While symbols like Guantanamo may seem trivial compared to acts of surpassing evil and violence such as murdering several million Iraqis as a “recruitment tool” — the euphemism for the rational reaction by people of good will to surpassing evil — nevertheless people are often swayed by such emotional incidents.

For example the video of the Bosnian kid drowning puppies.

These iconic episodes get people stirred up emotionally and that may be required to push someone over the edge and make a hard decision, but what puts metal in their resolve are the basic facts of massively evil acts of megadeath, genocide, massive torture and terrorism practiced by the US empire.

Recall that there were a higher proportion of college graduates among the 9-11 attackers than among eg. the US general population. So-called terrorism (more correctly, “resistance”) is not irrational as you pretend. We’re talking about highly intelligent, highly moral, self-sacrificial people.

Of course the prisoners at Guantanamo appear to mostly be kids essentially sold into slavery to the US empire as scapegoats.

You should think of them the same way as the French resistance in WW2.

The two situations are not analogous and if you believe they are, then I see no hope or point in debating you.

I hope you are not under the impression that you were debating me with what you wrote.

Do you think kidnapping people and holding them as political prisoners outside the rule of law — but not “indefinitely” — that is not an issue? You seem to be saying that its because the political prisoners are detained indefinitely that is why it is a “big problem” as you say.

Let’s compare with the alleged political prisoners in the rest of Cuba. The Cuban government arrested those people and charged them with specific crimes. They gave them a trial and when they were found guilty they were sentenced. And yet they are called political prisoners by the US government. The political prisoners at Guantanamo had no such arrest / trial / sentencing legal process.

IOKIYUS (It’s OK if you’re U.S.)

Well that leads me to another criticism of your piece, although it is a fault common with American progressives. You think that these political prisoners who have been tortured can now be given a fair trial in the ordinary-ish US court system. Think about that.

You’ve been held in isolation for years, tortured, had confessions beaten out of you, been told your family has been kidnapped and are being held elsewhere by the same torturers. Your compliance is required for them to not be similarly tortured. You get threats and lies all the time. Your independent will is literally beaten out of you for years until you’re a vegetable dependent on the word of your captors.

Now you are told that you are to have a trial but you are told you had better plead guilty and not even think about causing any trouble for your torturers. You are also told the trial is a sham because win or lose — and you WILL lose — you will not be released but instead go back to your torturers. You are given a lawyer by the same people who tortured you for years. Can you trust that lawyer?

Is that a fair trial in your opinion?

There is no way for America to give any of these torture victims a fair trial. A fair trial means a chance at justice and a chance to present evidence for yourself and face your accusers. That is not possible when you have been tortured for years and years by the same people conducting the trial (the US government). For one thing years of isolation and torture will have made you unable to resist whatever your captors tell you to do. Plead guilty. Say this. Don’t cause us trouble. Who could be expected to rebel? For another you will not have legal representation that you can have any reasonable ability to trust. For another you have no reason to trust the system is fair — even if it is — and it isn’t of course, because there’s simply no way they will release these people even if by some miracle they got a fair-ish trial and were found not guilty.

Its almost as if you implicitly trust the US government to do right, and that blinds you to — frankly rather obvious evidence to the contrary. Now perhaps this is a common American trait but in part your article is asking how outsiders see all this. I do not think the Muslim world trusts the US government to do right any more. Outsiders are not willing to trust the US government to do what is right as you seem to do.

The only way to give those people a trial would be if it were held in a different country that was not a well known US stooge, and of course that would be the same as just freeing them. Other countries wouldn’t even recognise the made-up “crimes” that the US accuses them of, as being crimes at all. Throwing a grenade in a war at someone trying to kill you? That’s a war crime is it? And so on. And whatever tiny crimes they could come up with would be completely overshadowed by the fact the US government had already locked them up for many years. With its usual sense of justice I believe a US court has ruled this would NOT count as “time served”. Any non-American court would throw the “case” out.

It’s simply not possible to give these people a fair trial in the US for the overwhelming reason that they are very likely innocent and a fair trial might just show that.

Thanks, Spencer for the change in the article. For while the “enhanced interrogation techniques” appear to have ended at DoD sites, other forms of psychological torture remain.

The following is for the benefit of readers who may not know what I’m talking about. While threatening with dogs, hooding, and forced nudity appear to be gone, beatings, forced feedings of hunger strikers, and the Appendix M interrogations continue. The latter speak to the kinds of treatment I indicated in my first comment (though I neglected to note in my mock example that we’d get any medical and psych info on you to use to play with your head… Did you know there was a report by the OIG out, a review of the mess that is Gitmo NOW, with use of medical and psych information in the interrogations? That’s in a May 2010 report… I’ll have that story out next week. The story was in an appendix of a report to Congress, so no one can say Congress is not informed of these things). Appendix M and other certain sections of the Army Field Manual include isolation (still suffered by many prisoners, and which amounts at least to cruel and inhumane treatment), sleep deprivation, manifest use of fear, sensory deprivation, use of drugs (this latter not confirmed, though an OIG investigation has been conducted on drugging of detainees, and was finished one year ago but never reported on or revealed, and which apparently is classified, so we don’t know what it says — I’m going to write on this, too), etc. And of course, as you and others point out, there’s indefinite detention.

The U.S. tortures. The U.S. covers up torture. The U.S. lies about torture. It did under Bush. It does under Obama. The use of “enhanced interrogation techniques” was not the whole of torture. It never was. There are many who feel that in some ways the outing of it was a kind of misdirection, allowing the KUBARK torture method (which relies mainly on isolation, sleep deprivation, sensory deprivation, and making prisoners feel dread, while weakening, but not abusing them physically) to widely spread and become institutionalized in the Army Field Manual.

What makes you think physical torture has ended?

Edited: sorry, you just said “at DoD sites” — so do you think physical torture continues at other American sites? Although the question remains as to why you think it ever ended at DoD sites.

Well, the beatings continue… By physical torture I only meant what the reverse engineered SERE techniques were that came from “physical techniques.” Some of them remain, like stress positions. But the emphasis in on the so-called psychological techniques, which leave real physical harm in the nervous system.

Right, the SERE techniques — the how-to-torture program the US has long had, used to train death squads, and which it pretends it got from Asian Communists instead of European Nazis.

What makes you think they are not using those techniques still? Such as waterboarding?

Spencer, I’m curious about what the US has done with all the other people who fought against American troops in Afghanistan besides Omar Khadr. As far as I’m able to tell there was only one other Gtmo detainee who has been charged with that, in a sense. They claimed he threw a grenade at a passing vehicle but that case was settled and he was sent back to his courtry and probably released. If anybody else at Gtmo had fought American troops he would have been charged by now, and none of the ones who have been charged did. The charged prisoners are either people who were in on terrorist plots (the ones we normally hear about) or they are men who fought against the Northern Alliance, before or after the US invasion, or they prepared to, or played a support role.

Why does it seem like the only person who fought the Americans in the Afghan war and might have killed or wounded anybody, or attempted to, was this 15 year old Canadian, 8 years ago? Why is nobody demanding justice in the death or wounding of all the other soldiers, except one? There have to be others. Does the US plan to have the Afghans try the rest of them in their civilian courts? Does it plan to have the Afghans try them for invented war crimes in military courts? Or is it running some kind of military courts there itself? Seymour Hersh claims they shoot them on the spot. That might happen in some cases. Khadr’s only alive because the gun shot wounds in the back didn’t kill him and an officer convinced other soldiers not to finish him off. But it wouldn’t be the official policy and I doubt if it happens to all of them.

But you would also make Spencer sign a confession. He must admit he is guilty of leading the liberal Journolist Conspiracy. He must promise never to lead any liberals ever again. And only report what is Government approved. An apology to Tucker Carlson wouid also be demanded. Then Spencer could go free. Also the first rule of torture is no talking about the “enforced detention” or you get more “enforced detention”, just like Fight Club.

In a 2007 interview with beliefnet.com, John McCain stated that “the Constitution established the United States of America as a Christian nation.”

Some would argue otherwise.

Well, the contrary language is in a treaty that the U.S. has signed, but that was so quaint, back in the daze when the U.S. used to be a nation of laws.

ARTICLE 11.

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

Thanks for enlarging my point. I wouldn’t believe anything O sez, even if he tortured me.