Since writing this, Obama's made some positive moves that completely undermine everything I complained about! Thanks for nuttin', Mr President! Read this post to learn more.
Obama mulls 'indefinite detention' of terror suspects
AFP
WASHINGTON (AFP) – As part of its plans to close Guantanamo Bay, the Obama administration is considering holding some of the detainees indefinitely and without trial on US soil, US media reported Thursday. Fulls story here.
You know, I've read a lot of posts from conservative bloggers about President Obama breaking promises, or failing to deliver the changes he said he would (see Coffee Bean's blog here, or Reverse_Vampyr's here.)Until this point, I'd taken all that criticism with a pinch of salt - after all, many of Obama's detractors (especially on conservative talk radio) descended into childish petulance simply because he won the White House.
But now Obama's broken a promise I'd believed in, too - that America would cease the sketchy shenanigans occurring in Guantanemo Bay. While Obama has decided to close that detention facility, he's now pondering the continued indefinite imprisonment of 'terror suspects' without charge or trial.
This is a total volte-face on his campaign promise, when he pledged to end the Bush administration's policy of locking people up without any accountability. That behavior is just wrong - especially when it's done by a country that prides itself on representing freedom, liberty and justice throughout the world.
Now since I first started opinionating on the subject, I have received quite an education (largely from regular contributor Tom) that has clarified why the Bush administration felt empowered to imprison people without any regard to habeus corpus: We're at war.
In World War II, for example, nobody expected to offer German prisoners of war trials or tribunals - and they certainly didn't get released or sent home until after the war was over.
But the 'War on Terror' has always been a fuzzy, poorly defined conflict and in recent months, that 'war' has dropped off the radar completely (Obama's given it the less emotive title of 'Overseas Contingency Operation')
The detainees in Guantanemo aren't 'enemy combatants.' They're not criminal detainees, either. They're not 'anything,' really. It's this lack of designation which gave the Bush administration the loophole to lock them up indefinitely (the Bush administration even tried to deny them the basic human rights granted under Article 3 of the Geneva Convention.)
Now, I'm not arguing that the detainees aren't potentially dangerous people - terrorists committed to causing terror and destruction across the free world. I'm just arguing that America - the 'land of the free' - has a responsibility to set an example to the rest of the world in how we deal with people in our power.
If the detainees at Guantanamo Bay are dangerous terrorists - people who have committed atrocities already and threaten to commit more if they're released - then we should continue to lock them up to protect America and the rest of the world.
However, we first need to establish by fact of law that these prisoners committed the crimes for which they were detained. Secondly, and more importantly, we need to establish that they pose a continued threat to world peace.
As far as I'm concerned, it doesn't matter if these facts are established in a court of law or a military tribunal - but they do need to be established and it does need to done in a transparent, accountable environment.
It's not even that difficult. A detainee stands trial for throwing a hand grenade at an American soldier in Afghanistan? That soldier's testimony is enough to convice me he's guilty - and would be lobbing more grenades if given the opportunity again. Sentence him and lock him up.
I'm a reasonable, rational guy. It wouldn't take much to convince me that a detainee is a dangerous terrorist and should remained locked up. However, I still deserve to hear that case made. I don't trust the government enough to blindly hand them authority over other people's lives.
I'm not suggesting that the detainees deserve (or even appreciate) the concept of a 'fair trial' or basic legal rights or protections - but this is America, a country which was established on the ideal of justice for all. We can't claim to be principled people if we turn our back on those principles as soon as it's politically convenient.
The Founding Fathers rebelled against Britain for many reasons, including because King George III suspended their habeus corpus rights during colonial squabbles and denied those accused of smuggling, piracy, treason or sedition fair trials in their homeland (shipping some off to England for trial, or sentencing others without letting them plead their case in front of a jury.)
These rights are an essential, foundational part of what America stands for - and even in the midst of a 'War on Terror,' we need to stick to them.
6 comments:
Where are you getting this from? You're still getting it wrong.
First of all, Article 3 of the third Geneva convention begins with:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties..."
Can anyone claim that the War on Terror is not "of international character"?
The detainees in Guantanamo are enemy combatants, but not prisoners of war. The former just means that they are people (we believe) took up arms against the US. The latter means they did so while complying with the Geneva convention (which basically means distinguishing themselves from the general populace).
Combat is not criminal. In war, acts that are abhorrent to civil society become commonplace. When a soldier shoots an enemy, that is not murder (assuming the enemy has not surrendered).
The purpose of detaining combatants is not punish them, like is the case for a criminal. Rather, the purpose of detaining enemies is to prevent them from attacking friendlies. As a result, it's not necessary to prove that the enemy did anything before detaining him. Indeed, the ideal case is that we will detain enemies before they can hurt us.
(Nearly all of the enemy combatants are also war criminals, since they hide within civilian populations and fight without a distinguishing mark. But we can ignore that as long as the conflict is still going on.)
To be detained, the only question that needs to be answered is "is this guy an enemy combatant"? The answer to this is usually obvious.
When it's not, we should, per article 5, use a "competent tribunal" (note that the term "judicial guarantees", used in article 3, is not used) to establish their status.
This is what military commissions are for.
The standard needs to be and should be lower. Determining who a combatant is might involve intelligence information, and exposing that information could make it go away. So the tribunal should be able to hear secret evidence that would not be admissible in a regular court of law. Telling the enemy how we're tapping their communications is not a good idea.
The constitution anticipates that we'll go to war, and allows prisoners to be treated differently. And that's important, because war is a different environment than peace, and different rules should apply.
Finally, say we have two detainees: A Latverian soldier who was wearing a uniform, stationed in barracks away from civilians, and in general followed the Geneva convention; and a terrorist, not wearing a uniform, we captured while he was trying to hide among Helmajistani civilians.
Is there any reason why the latter should have more rights than the former?
Assuming you agree that the answer is no, you need to look at your suggestions, and make sure that they don't advantage the terrorist over the soldier, lest we encourage terrorism in future wars.
Hey Tom!
I totally get a lot of what you're saying, but I still don't see totally eye-to-eye with you.
Like the Geneva convention... I get what you're saying about how the 'enemy' in the war in terror don't abide by the Geneva convention, so why should we? But a lot of it (like article 3) contains basic human rights stuff. Regardless of what the bad guys do, we need to set an example by treating our prisoners humanely - and 'humanely' doesn't involve waterboarding!
I totally get what you're saying about the military tribunals, as well - but because this 'war' isn't as clear cut as, say, World War II, we need to quickly and efficiently process the detainees and told a tribunal to work out whether they're an enemy combatant or not. Some of them have been there for years without that being established (as far as I've read.)
Unlike a regular war, the bad guys look like civilians - so as I argued earlier, a farmer shooting his AK47 at a US tank on his property isn't an enemy combatant and it's not fair to lock him up for five years before than gets established (drive a foreign tank onto a Texan's back yard and I'm pretty sure lead'll start flying. Would it be right to deport him, lock him up in a foreign country for five years without trial?)
And I actually totally agree with this statement - "The standard needs to be and should be lower."
I think in this kind of situation, you can't expect to make the burden of proof, so I can understand making the standards lower.
We just need to establish, in the public eye, that YES, these detainees ARE terrorists and charge and punish them accordingly. At the moment, it seems we're just keeping 'em hanging around without churning through them in a responsible fashion.
Doesn't Obama want to stop the military tribunals as well? That's a double fail in my book.
Article 3 explicitly says it doesn't apply here.
That being said, I do think that we should treat unlawful combatants humanely. And I think we do so, even if we have used enhanced interrogation techniques on a few of them.
I'll note that waterboarding is something we do to our own pilots and aviators as part of SERE training.
Have you see the extended version of Clifford May's interview with Jon Stewart on the Daily Show? I recommend watching it, and paying more attention to May than Stewart, as I think May makes some decent arguments.
We should have military tribunals.
If a guy is shooting at our soliders, then he is an enemy combatant, and should be locked up. This would also be the case for the Texan.
You don't get a free shot.
I suppose so - but my sympathies are for the hypothetical Texan. He was just defending his ranch house and pick up truck when foreign tanks rolled over his fence.
I think my problem is the whole concept of invading Afghanistan and Iraq (and I agree we needed to invade Afghanistan) and then sending prisoners half way around the world to process them - mixing the 'Texans' in with the real terrorists.
Perhaps I'm just falling for liberal propaganda, or maybe I'm turning into a libertarian, but I just don't trust the military/government to get that right. They 'cried wolf' with the WMDs and all that.
The reason for this post is that Obama seems to be falling into the same routine. He promised change! All we get is a change of venue - Gitmo Bay gets replaced by some place in the US.
and I'll believe waterboarding isn't torture when Sean Hannity stops being such a pussy and makes good on his promise to be waterboarded 'for the troops'!!
"I think my problem is the whole concept of invading Afghanistan and Iraq (and I agree we needed to invade Afghanistan) and then sending prisoners half way around the world to process them - mixing the 'Texans' in with the real terrorists."
But we don't do that. According to Wikipedia (since I'm too lazy to look up the real source) 775 detainees have been sent to Guantanamo, and 245 remain.
Two points here:
The first is that there's some sort of editorial process going on here, since we've captured way more than 775 people.
The second is that we do look at these detainees, and release them when we don't think they'll be much of a threat.
(There are also 38 people who are no longer considered detainees, but simply have no country that will take them.)
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