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Thread: Bush Overruled on Enemy Combatant

  1. #31
    L-Fitzgerald Guest

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    Did the Mujahadeen treat Russian soldiers in accordance with the Geneva accords. [oh by the way I am familiar with the fact that Lenin did not want Stalin to succeed him, and there's no need to go into the why's and wherefores - Lenin knew exactly what Stalin was about, but his stroke prevented him from effectively handing control over to more sane men]

    It may well be that one reason for holding these men without trial is to break them mentally and glean even more info from them regarding AQ.

    Never said the wrongs or rights should balance each other, nor did I say you called me an Ugly American - that's a term taken from a 1960's book about naive, ignorant Americans of that day thinking the world loved them. But you did say I was ignorant of world history, so forgive me if I embellished the label that had been given.

    As for what Rummy sold to Saddam in the 80's, beyond being history it should be looked at in the context of its time.... we were trying to come to grips with the Iranian State that had overthrown an American backed tyrant.... which wasnt right either, but then we backed the French in Indochina in 1946 and look what it ended up as being................

    As for the UN's Human Rights Commission.... lets see who chairs it right now? Is it Lybia, or Syria? Fine upstanding democracies if memory serves me correctly. Or does Lockerbie mean anything, or the fact that Syria has been home for more than half a century to Nazis wanted for crimes committed during WWII.

    And Stalin didnt save Europe from Hitler, that dumb corporal's own actions did more to contribute to the war ending in favor of the allies. Hell, if he had never declared war on the US after December 7, he might have just won in North Africa in '42 even after bailing the Italians out in Greece the year before.

    But hey this isnt the History Channel, but I do want to add that Hirohito was a War Criminal, and we were just as criminal in not prosecuting those involved in Unit 731, or the many other crimes committed by the Japanese, even against their own allies - German missionaries captured on some of the islands in the Indonesian Archipelago. With regard to Unit 731, I strongly suspect that the US did try Bio Warfare in Korea, but its only my suspicions, nothing more.

    As for Potentially Innocent people, they could also be considered as being Potentially Guilty as well - but only after being tried and convicted. After all, who ever went to Afghanistan during the time of the Taliban, tourists????????????s

  2. #32
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    L,

    I agree with most of what you're saying there. So we'll cut to the chase.

    btw ... the reason i didn't get the 'Ugly American' reference is that i wasn't around in the 60's ... or the 70's for that matter! I was born in 1982, and while i try and keep up with modern history (i.e. what old farts consider to be their experiences, rather than real history! ), many small cultural points like that reference are lost on me.


    Originally posted by L-Fitzgerald
    ...

    As for Potentially Innocent people, they could also be considered as being Potentially Guilty as well - but only after being tried and convicted. After all, who ever went to Afghanistan during the time of the Taliban, tourists????????????s
    Humanitarian aid workers?

    Imagine the scenario. You go to Afganistan to try and stop some of your Muslim brothers dieing. Then you're half way through patching up an injured fighter when the US forces swoop down on your location and round you all up. Before ou know it you're shipped off to cuba and treated like a terrorist when you're not. There's no proof you were a terorist, or ever committed any crime. But you're still incarcerated indefinately without access to proper legal representation, or without any chages being levelled against you. Fair? Just? Legal?

    Imagine another scenario. You're an Afgani. The Taliban take over your country. After years of struggling to fill the power vacuum left by the Soviets, they bring some much needed stabilty to the country. You're not their biggest fan, but if you voice that in public you'll have your head removed with a big pointy sword .... or possibly just shot with an AK47 ... depends on if they want to make an example of you. Years later the Americans invade, you get a gun put to your head by your friendly, neighbourhood Taliban representative and told to fight the Americans or die. You pick up a gun to defend your homeland. You get captured. You've never committed any acts of international terrorism .... do you really deserve to die, or to be incarcerated indefinately without access to proper legal representation, or without any chages being levelled against you. Fair? Just? Legal?

    I honestly don't know how likely either of these scenarios are. But i beleive they are both possible. This means it's possible you are holding people who aren't terrorists in Guantanamo Bay. This means America is in the wrong. This means you are in the wrong for supporting your country over this issue.
    Huw Larsen

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  3. #33
    L-Fitzgerald Guest

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    I would say, "my country right or wrong, but never-the-less it's still my country." As for your scenarios, they are plausible, and some Afghan's have been released. However, with regard to Humanitarian Aid workers, the UN turned tail and ran. As for the time it is taking to sort this out, it appears that translators are in short supply, and although it appears to detain them, I recently read a story where under the US Constitution the President does have the authority to detain them. But, consider too that it may be that the US doesn't want to rush into conducting Military Tribunals and execute innocents thereby creating even more controversy.

    However, with regard to holding people that are not Terrrorist, the Taliban did not approve of Humanitarian aid workers being in Afghanistan, and someone holding a AK-47 can hardly be described as being a Humanitarian worker can they?

    And with regard to age I'm 62, and extremely well versed in both history and culture of Europe, Africa, Arab and Asian history. I have to admit that I am thin on Indian history dating before the East India times, save for the Mongolian era when the descendants of Kublia Khan created an empire that stretched from the Pacific to the Danube, and into the subcontinent.

  4. #34
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    Originally posted by L-Fitzgerald
    ...

    However, with regard to holding people that are not Terrrorist, the Taliban did not approve of Humanitarian aid workers being in Afghanistan, and someone holding a AK-47 can hardly be described as being a Humanitarian worker can they?

    ...
    Holding an AK47 doesn't make you an international terorrist either.


    If America was invaded by hordes of foreigners claiming to liberate you from the oppressive terrorist regime, and who weren't going to hurt civilians, what would you do? Stand around to see if they kept their promise, or grab a gun and try and save your life?


    Originally posted by L-Fitzgerald
    ...
    And with regard to age I'm 62, and extremely well versed in both history and culture of Europe, Africa, Arab and Asian history. I have to admit that I am thin on Indian history dating before the East India times, save for the Mongolian era when the descendants of Kublia Khan created an empire that stretched from the Pacific to the Danube, and into the subcontinent.
    Well i kind of guessed you'd have me beaten in the age stakes. At 21, most people do. I think i hold my own reasonably well against older people despite the obvious disadvantage of not being around to see the events in question first hand.

    I've never really studied history, as a school subject i found it boring. I do find historical events to be very interesting though, so do try and find out as much about those as i can.

    Anyways, i think we've pretty much taken this issue as far as it can go. We both have our opinions on the subject, and i think we're fairly well dug in now. You're not going to change my mind, and i'm not going to change yours. It's probably best to call a halt while we're both still being polite and rational!

    And either way i'm off home from work now, and don't have an internet connection at home. Hope you have a good evening.
    Huw Larsen

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  5. #35
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    Originally posted by L-Fitzgerald
    And I'm still waiting for an answer to that question along with the one about who was the first Israeli Suicide Bomber?
    Samson.
    M Johnston

  6. #36
    L-Fitzgerald Guest

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    I wouldnt call the Jawbone of an !!! a bomb. Besides he was engaged in combat with armed troops. Hmmm! Wonder if that would cause him to be classified as a guerrila fighter, or a terrorist?

    As for the temple thing, he had been blinded and was now being tormented by his captors. Wonder how many Kurds would have loved to collapse one of Saddam's palaces while he was in it, or those whose sisters or wives that had been raped by Saddam's sons.

    Oh well!!!!!!!!!!!!!!

  7. #37
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    Hopefully, this will be my last post on this matter, and Merry Christmas to you as well, Mr. Fitzgerald, and all.

    I don’t know how I can post about this without writing about a certain legislation that I’ve promised not to mention, but I’m going to try. Because my views against that particular law are well known, it’s worth mentioning a few things that I am compelled to say in favor of it, and the use of military tribunals.
    The use of military tribunals in place of the normal justice system has occurred during the Revolution, the Mexican War, the Civil war, and both world wars. Questions remain about the degree to which terrorists-known as “unlawful combatants” in legalese-are entitled to legal protection.

    Abraham Lincoln suspended the writ of habeas corpus and authorized such forms to try terrorists because the tribunals could act quickly, gather intelligence through interrogation and keep potentially lifesaving information from becoming public.

    Historically, military commissions do not enforce national laws, but a body of law thathas evolved over the centuries, known as the law of war. One of its fundamental axioms is that combatants cannot target civilians.

    It is clear that the September 11 terrorists, and al Qaeda detainees, whether apprehended in the United States or abroad, whatever their nationality, are not “legal combatants,” or “POW’s”, due the protection of America’s criminal justice system or those under the international law of war. Terrorists re not members of an organized command structure with someone responsible for their actions; they do not wear military uniforms that would permit the other side to spare civilians without fear of counterattack from disguised fighters; they do not carry arms openly, and they have no respect for the laws of war. Moreover, American courts have been reluctant to second-guess the President on when commissions are justified. During the Lincoln administration the Supreme Court ruled that it had no jurisdiction over a military tribunal.

    While Lincoln’s actions during the Civil War may well have gone far afield from the powers of the Executive branch, he had the support of Congress and the people, and the Union and its Constitution survived his actions. The verdict of history-unless one is from Georgia-is that Lincoln’s use of power was not abuse. At the same time that he took audacious steps against lawless rebels, he took equally bold and innovative steps to uphold an expand international law. He commissioned Francis Lieber, a Columbia College law professor, to draft a code of the laws of war. As a result of his efforts, Lieber is considered to be the father of the modern law of armed conflict, and his work became the basis of The Hague and subsequent Geneva conventions. In 1863 Lieber forthrightly advised the President and the Union army that guerillas, spies, and saboteurs-people we call “terrorists”- could be summarily shot.

    The prisoners in Guantanamo-no matter their nationality-were captured bearing arms for a terrorist organization. They wear the uniform of no nation’s army. They are, to whit-“illegal combatants,” protected by neither the laws of America nor international law, and subject to the whim and prosecution of military tribunals, historically and legally. Whether their treatment is ethical or moral is not worth arguing.

    Jose Padilla,apparently a converted Islamic warrior who was apparently planning to build a dirty bomb, is different. I said “apparently” because it is impossible to actually know to what degree either of these is true. That is the whole problem with doing away with habeas corpus, one of the supporting pillars of the Anglo-American legal tradition. The accused must be brought before the bar of justice; he cannot be chucked into the king’s dungeon to languish indefinitely simply on someone’ say-so.

    Padilla’s arrest was announced at an expedient moment-just when investigations into the intelligence failures that resulted in September 11 were beginning to pick up steam-and only then, because he was “about to be turned over to the military.” Later we were told that this American citizen-who bore no arms, killed no one, and had “apparently” committed no crime of substance beyond conspiracy(and stupidity)-was to be considered an “unlawful combatant” and kept in military custody until the war on terror is over.

    Turned over to the military. Kept in custody until the war is over. How strange these words sound in the lexicon of our republic. Can a democracy fight a war and still maintain Constitutional principles? I’ve heard many arguments that our present struggle against international terrorism makes open trials unfeasible, and that to have open trials would lead to presentation of evidence, naming of sources and methods, and revealing intelligence that must be protected.

    This is contradicted by notable examples from our past, one from another time of crisis and war, when two American spies who served a foe far more formidable than Al Qaeda were convicted in open court of trying to acquire a far more deadly weapon than the one Jose Padilla was supposedly working to put together, The spies in question were Julius and Ethel Rosenberg, who were arrested, tried, convicted and executed at the height of the Cold War and the Korean War for helping to steal the secret of the atomic bomb for the Soviet Union.
    It is hard to cite the Rosenberg trial as a good example of anything. The atmosphere the press created, the excessive coaching of witnesses, the flimsiness of the case against Ethel Rosenberg, and a defense so maladroit as top border on malpractice all combined to make this less than the finest moment in American jurisprudence.

    Yet, the Rosengbergs got their trial, and today few who have studied their case doubt their guilt. Moreover, they were convicted in good part by classified material on the making of atomic weapons, resented in open court. By sifting carefully through each piece of scientific evidence stolen by the Rosenberg spy ring, the prosecution was able to make its case without compromising nuclear secrets. It was even able to keep secret the so-called Venona cables, the intercepted Soviet messages that had led to the atom spies in the first place. The same could be said for the Wen Ho Lee case, another case where classified material was part of the prosecution’s evidence, and it was heard-mostly-in open court, in another faulty trial.

    Flawed trials are one of the inherent risks of a democracy. Secret arrests and military detentions are not., and the moment we change from a government of laws to one of men, we place our existence as a nation in jeopardy. Many here, Mr. Fitzgerald among them, do not believe that George W., Bush or John Ashcroft will ever abuse the powers they have abrogated. I would only ask if they would believe the same of a Bill or Hillary Clinton, a Janet Reno, an Al Gore, or even, dare I say, a Howard Dean?
    Last edited by elder999; 19th December 2003 at 18:26.
    Aaron J. Cuffee


    As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.
    - H.L. Mencken

  8. #38
    L-Fitzgerald Guest

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    Well said 999, however, let me make one minor correction to your point. I am not of the opinion that our President and his cronies would ever abuse the power they have abrogated. Far from it. As for Padilla, he is pure Dawinism at work, perhaps he was so much of a street wise punk he perceived that he could smooze his way back into the country without raising any suspicions. However, is it possible that his charges stem from the fact that he knowingly partook in training to become an "illegal combatant" and that is part of the charge against him?

    It will be interesting to see how the Supreme Court handles the rulings from both Circuit Courts.

    And it would be heartening if they did catch Osama so that perhaps we could start seeing an end to the terrorists hell bent on killing innocent people for the sake of their misguided causes.

  9. #39
    Catalase Guest

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    Yes, the Bill of Rights enumerates natural rights that shall not be infringed, or at least that is the intent. But legally, constitutional guarantees from the American constitution are for citizens. I don't necessarily agree that this is right all the time, but in terms of what the prisoners' *legal rights* are, it is extremely relevant that they are not citizens. One of those basic things I expect from judges is that they rule according to the law, which is my problem with the 9th Circuit.

    As for their status as POWs or not-POWs, the Hague and the Geneva convention lay out the following criteria for POWs:

    1. that of being commanded by a person responsible for his subordinates.
    2. that of having a fixed distinctive sign recognizable at a distance.
    3. that of carrying arms openly.
    4. that of conducting their operations in accordance with the laws and customs of war.

    It is specifically stated that guerilla and resistance forces that do not represent a government are entitled to POW status provided they meet the above criteria, and revolutionary forces if they meet 3 and 4, but the Gitmo detainees don't meet ANY of them. The Geneva convention was designed to promote a certain civility in warfare (yes, I know it's an oxymoron, but there's still a difference between a war where the "rules" are followed and one where they aren't).

    Systems that reward the cheater over the cooperator self-destruct. Bringing "international law" and legal warfare into it is fairly pointless, because they bear no resemblance whatsoever to legal combatants. When most people bring up the Geneva convention, one thing they tend to forget is that it stipulates that once one side has violated it, the opposing side or sides is no longer bound by it. The incentive not to cheat is knowing that if you play dirty, the other guys are taking the gloves off.

    As for the U.N. declaration of rights, the last bits got left out:

    Article 29.

    (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

    (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

    (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

    Article 30.

    Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
    In short, once you use your freedom to swing your fist to break my nose, you forfeit your right to liberty. (I'm not inclined to take the U.N. version of "rights" that seriously anyway, given that it's hardly EVER enforced and that they define paid vacation and free health care as fundamental human rights, but that's an argument for another thread.)

    I don't particularly regard Guantanamo as a stain upon our national character, mostly because I think the restrictions and conditions imposed on the prisoners are necessary; many of the detainees had already attempted bloody riots and have taken any opportunity possible to attack the guards, even when there's no possibility of accomplishing anything at all without hurting the guard. They're also gaining weight on average, which inclines me to believe we're not exactly talking Dachau here.

    Elder has already done a pretty damn good job of enumerating the history here. I'll say that I don't like the Patriot Act and think that Ashcroft and Bush have gone too far in terms of the rights that can be suspended and under what circumstances, and that the "but we won't abuse it like THAT!" argument is ridiculous. I also think that this particular circumstance isn't one under which I'd argue not going through the normal legal system is wrong.

  10. #40
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    Originally posted by Catalase
    Yes, the Bill of Rights enumerates natural rights that shall not be infringed, or at least that is the intent. But legally, constitutional guarantees from the American constitution are for citizens. I don't necessarily agree that this is right all the time, but in terms of what the prisoners' *legal rights* are, it is extremely relevant that they are not citizens. One of those basic things I expect from judges is that they rule according to the law, which is my problem with the 9th Circuit.

    Nope. Sorry. John Adams defense of the slaves-cargo, prisoners, whatever-of the Amistad was based, in part, on the extension of the rule of U.S. law to men who were not U.S. citizens-that part of the case actually hinged upon whose citizens they could be considered property of is immaterial. You can read Adams' argument before the Supreme Court here.



    I therefore proceed immediately to say that, in a consideration of this case, I derive, in the distress I feel both for myself and my clients, consolation from two sources—first, that the rights of my clients to their lives and liberties have already been defended by my learned friend and colleague in so able and complete a manner as leaves me scarcely anything to say, and I feel that such full justice has been done to their interests, that any fault or imperfection of mine will merely be attributed to its true cause; and secondly, I derive consolation from the thought that this Court is a Court of JUSTICE. And in saying so very trivial a thing I should not on any other occasion, perhaps, be warranted in asking the Court to consider what justice is. Justice, as defined in the Institutes of Justinian, nearly 2000 years ago, and as it felt and understood by all who understand human relations and human rights, is—

    "Constans et perpetua voluntas, jus suum cuique tribuendi."

    "The constant and perpetual will to secure to every one HIS OWN right."

    And in a Court of Justice, where there are two parties present, justice demands that the rights of each party should be allowed to himself, as well as that each party has a right, to be secured and protected by the Court.

    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Historically, morally, ethically, philosophically and legally, the rights enumerated in the Constitution are for "all men," not simply citizens of the U.S. A review of any of the source documents of the era:the Virginia Bill of Rights, the Federalist Papers or Tom Paine's "The Right's of Man," will demonstrate that that was the intent-and the law.



    That's why so many people could and did defect here, after all.
    Last edited by elder999; 19th December 2003 at 19:55.
    Aaron J. Cuffee


    As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.
    - H.L. Mencken

  11. #41
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    double post, sorry.
    Aaron J. Cuffee


    As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.
    - H.L. Mencken

  12. #42
    Catalase Guest

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    On further reflection and research... you're right. I was sloppy, and I concede the point.

    I still don't concede the central point, however, that treating this kind of combatant through the civilian court system is what we should be doing. I don't believe it's even feasible. Imagine if every prisoner in time of war had to go through that system; it would completely bog it down (or break it down) and become simply another weapon for the enemy to use against us... or else an incentive to simply kill them on sight instead of taking prisoners, which is worse than holding them without trial. The rules for "spies and saboteurs"- and terrorists- are different by necessity.

  13. #43
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    Originally posted by Catalase
    I still don't concede the central point, however, that treating this kind of combatant through the civilian court system is what we should be doing. I don't believe it's even feasible. Imagine if every prisoner in time of war had to go through that system; it would completely bog it down (or break it down) and become simply another weapon for the enemy to use against us... or else an incentive to simply kill them on sight instead of taking prisoners, which is worse than holding them without trial. The rules for "spies and saboteurs"- and terrorists- are different by necessity.
    Well, yeah, that's a given in the case of those prisoners at Guantanamo-though, in the case of Mr. Padilla, it's debatable.Though, it'd be no loss if he had been shot on sight......
    Aaron J. Cuffee


    As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.
    - H.L. Mencken

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