The Guantanamo Dilemma
 

Interesting take on The Gitmo Dilemma in Newsweek, the gist being that some 250 alleged extremists have been held there since 2001 and closing it down as promised by Obama isn't going to be fast or trivial.

What's your take?

My only hope is that Obama will appeal to the international community for help dealing with the situation. There is no easy answer. But, acting unilaterally on an international problem would surely bring condemnation from most of the rest of the world. I figure that if Al-Quida is all of our problem, we should all have a hand in finding the solution.

It certainly has! That's part of why the rest of the world is so happy about this election.

What's needed is an efficient system to determine guilt or innocence. The rest takes care of itself: the innocent go free, and the guilty are either killed or left to rot in a cell.

If we can get past the usual courtroom antics and just look at whether or not an accused actually did anything wrong, our courts would be fine. But that's true with 'normal' criminal charges too.

Finding an efficiant system to determine guilt or innocence has been one of the most difficult challenges that mankind has faced. The reason being it wrestles with one of the most fundamental questions of human nature "what is right, what is wrong?" There is no easy answer to that question, and that's why legal systems are so hard to create, and are so hard to keep fair.

And note that when I say "right and wrong", I'm not talking about "is it right to kill for religion" or anything like that. I'm simply wondering if we all have the same definition of "due process" or "prisoner rights" or "military prisoner" or "evidence" or "hearsay" or "guilty until proven innocent v. innocent until proven guilty", etc etc. I could go on and on an on. There is no "right" way to make a legal system, and that's why Gitmo has fallen under so much scrutiny. Sure the current administration thought it was "right", but it seems that few in the international community would agree...

Again, this is why my first statement was "we need to involve everyone," at least that way we can all take a stake in the blame if we get the definition of "right and wrong" incorrect. Rather than just having the US (or at least the current administration) press it's definitions of right and wrong on everyone else.

That's what I meant by courtroom antics. The question of right and wrong is irrelevant. The only thing that matters (especially when considering those in Gitmo) is guilt vs innocence. The accused either did what they've been accused of, or they didn't. Their state of mind, and whether or not they were right to do something should not be allowed to influence a verdict. I'm sure that most if not all terrorists believe that they are right to do the things they do. We are wrong to allow them to use their beliefs as a defense.

A more basic question. Are they POWs or the 21st Century equivalent? POWs don't get trials. If they're POWs, they shouldn't be released until the war is over.

If not POWs, what are they? Criminals? What right do we have to prosecute foreign criminals who committed crimes in foreign lands in US courts? So we should turn them over to the Taliban/Iraq or wherever they came from for prosecution?

If they cannot be detained, why are we taking prisoners at all? Doesn't this lead to a "take no prisoners" approach to the war on terror?

I oppose torture and anything but humane treatment. That said, I think the POW approach most closely defines what we are dealing with because, in my view, this is a war and we would be foolish not to think of it as such. The enemy recognizes it is a war; we should, too. Even though the enemy didn't sign the Geneva Conventions, we did because I assume we believed that was the appropriate way to treat POWs.

True enough, but if they might be POWs, aren't they really accused of being spies? Don't they try people who are accused of that, and execute those found guilty?

When an organization undertakes a guerilla war there are no agreed to rules, so the POW designation really doesn't make conventional sense. They are warriors without a country. War as we normally understand it is a declared action between states or between factions within a state (as in civil war).

These people are terrorists, not warriors, and as such should simply be treated as criminals in my view. If it can be proven that any of them killed a person or persons then they are guilty of second degree murder and should pay that price. If nothing can be proven other than that they were circumstantially involved in guerilla action then they should be deported to their homelands, even if that involves a clandestine dumping them ashore in Yemen.

But what if a nation undertakes war, but declines to declare one and does not dress its soldiers as such. I am suggesting this is a new paradigm for war and requires a different response. Indeed, it is the only type war that could succeed against a super power.

What if the entity making war is not a nation, at least not formally, and their nation of residence declines to prosecute them and tacitly supports them?

Old rules agreed to by civilized nations do not apply. We comply with those old rules at great risk to our continued existence.

But the old rules do apply. The old rules say that if you're not wearing a uniform and you attack a nation, you're a spy/saboteur. We've executed people for that, as have many other nations. You don't need need to kill some one to be executed as a spy.

What have you had to do in that country in the 1st place?
 

Hi there,

somehow I have the odd feeling you're a little bit single sided in your perspective.

With all due respect, what is a good reason that the US is in Iraq and Afghanistan in the 1st place? And then, if the local people are upset about this foreign invasion they might be tempted to retaliate against the US aggressors and invaders of their home lands.

However, the US government and parts of US press calls them terrorists ...

In what an odd world you must live, where the US can invade an other country, and then cry foul if the people retaliate and protect themselves.

Try to see the world with the eyes of the citizens of these invaded countries. Neither country has attacked the US on US soil but the US has invaded them. Guess, here is nobody still believing Saddam and Iraq were behind 9/11 right?

Perhaps US people tend to be self-righteous when it comes to the freedom of other peoples but their own. As long as all went smooth in gods own country, US don't give a **** what damages they cause abroad.

Last seen in Vietnam, Cambodia, and Laos.

Let's hope Mr. Obama has the guts to repair some damages caused by Mr. Bush's unilateral wars against whomever they felt fit for reasons apparently heavily benefiting military suppliers and US oil companies.

Cheers,
Michael

I don't know AEH. I've never been a believer in "if you can't fight 'em, join 'em." Western nations are founded on certain fundamental principles (very nicely expressed in the US Bill of Rights, but adhered to by most prosperous and free nations in some form). When the "Enemy", really a fringe organization in this instance, behaves in an uncivilized way, we should not descend to their level to fight them in my view.

If the US had followed up on the war in Afghanistan and pursued the bad guys single-mindedly without distraction, we'd all be better off. Saddam was a bad guy, but he wasn't the West's immediate problem, Al-Qaeda and its leadership were and still are.

In their own way, biker gangs controlling the flow of illicit drugs to the youth of our nations pose as great a danger to the fabric of our countries but we don't resort to terrorist methods for apprehending and trying them.

The issue is not whether or not they have a right to fight us. They do, just as we have a right to fight back. When we catch one of their fighters out of uniform, we have the right to execute him/her, right then and there as a spy.
Once again, the issue of whether or not we should be there is separate from what we should do with the prisoners we've taken. No one is crying foul in this thread. On the contrary, we are more concerned with being fair to the detainees than those who are fighting against us would be to our troops, or even our citizens.

I'm simply pointing out that being fair to an 'enemy combatant' who is out of uniform means executing him or her, according to long established rules of war.

This is only half true. Iraq did not attack us. Afghanistan fully supported Al Qaeda, which did attack us, twice. Claiming that Taliban controlled Afghanistan did not attack us is like saying that the CIA could attack a country and the US wouldn't be responsible.

Don't want to start a flame debate
 

This point with the drug lords and their subordinate crooks is an interesting point and well received, Cheers for that, I second you.

If we take all deaths, directly caused by Al-Qaeda including 9/11 then let's say we are at about 5.000 victims. That's a big number. Just in relation to deaths inflicted by regular criminals, drugs, and fatal traffic accidents, I am wondering of those hundreds of billions spend on wars on foreign soils might have made a chance for the US people and eased those aforementioned issues.

I have dealt and lived for years in Asia. Was during Ramadan in Jakarta, and was treated kind and polite if I behaved like a guest and visitor, with a certain respect for local customs and traditions. I can say, I have never felt threatened by so called aggressive Muslims over there.

By no means I am a friend of Al-Qaeda, and my religion is from a large Christian branch. However I feel it is not up to us to decide that we have to improve democracy in the Middle East by gun ship politics. Those countries have a different culture than our Western society, and they have the right to have it their ways. That's what I call tolerance and freedom.

Let the UN send peace keepers if necessary, that's backed by a decision of the world's council. Taking the right in our own hands and invading 3rd world countries solely based on the empowerment - US military does it because they can - this is what I call "A global bully attitude issue".

If possible, I'd vote for world peace and understanding.

Sincerely,
Michael

Nice, but how does it relate to Gitmo?

I suspect the overwhelming majority of US citizens would much prefer to not be involved in any conflict anywhere. Neither Vietnam nor Iraq were popular wars with US citizens... though certainly there was a case to be made for fighting them as well as a good case to be made for not.

Afghanistan is a very different matter and is the example of the scenario I suggested earlier.... waging war without declaring one and/or protecting those who did wage war from their soil.

A nation cannot hide behind its "national" standing while at the same time attacking another nation.

I hope you can understand our right to retaliate against those who kill US citizens, because without question we are going to do that each and every time it happens.

Give the prisoners an open and fair trial in front of UN layers.
 

In brief:

Give the prisoners an open and fair trial in front of UN tribunals in The Hague.

Once again, these are accused spies. Doing that would remove the possibility of executing them, which would be unfair to the US. Hence, it would be an unfair trial.

Ugh. well, if you ask me (and no one is, for reasons you'll discover in a moment...:D), seven years of low-grade torture is punishment enough for anyone and anything. let them go and let it be. the real problem at this point is not that they are dangerous as people or as terrorists - the real problem is that they are an embarrassment. we can fuddle around trying to find some solution that both (a) maintains the fiction that this form of imprisonment was necessary, ethical, and legal while we're (b) trying to get rid of it because it's unnecessary, unethical, and (at best) marginally legal, but that kind of thing never works. sooner or later we're going to end up with the taste of dirt in our mouths; might as well get it over with soonest.

These so called spies have been more often than not deported from their own soil, and placed into something that resembles a concentration camp at the brink of Cuba's territory, occupied by US military.

What makes a person, defending his own country against an invader a spy?

Those farmers would have very much appreciated not having had US aliens in their country "to spy on" in the 1st place.

Give them all a fair trial. Assess individual guilt by UN / International standards, punish accordingly. Let the innocent ones go ASAP back home, and pay them a fair reparation for their time in prison away from home and labor.

I don't want to imply that I think Gitmo was a good idea. I think it was as bad as going into Iraq. There was no need to create a separate identity for combatants who don't fight under a country's flag. We've always had them, and we've always treated them as spies/saboteurs.

I think that the innocent should be freed, and the rest should be executed. Sorry, but 7 years is small potatoes compared to the lifetimes they've ruined.

Well, if he's attacking US forces and he's not in uniform, then he fits the definition. When you go to war, you'd better know what you're getting into, and you'd better wear a uniform.

Yep, hanging on the spot works wonders!
You better believe wise men - life has never been black or white, good versus evil. And it never will be in spite of people efforts.

The Germans have had during the 2nd World war quite a few countries under occupation. Even today, those people being in the resistance (enemy combatants against German invaders of their home lands) are more often than not highly decorated post war veterans. Openly appraised for their courage to fight against the Germans under the full risk of losing their lives, in POW camps and Gestapo torture cellars.

Now, putting those well honored people into perspective, what is from your point of view not comparable to the enemy combatants here in question?

Except, that in case of Germany the Allied Forces wrote their view of the hiostory, and the US in this war has not yet been defeated and calling the shots and allowing themselves to judge these poor souls.

These are in both cases men of the Resistance, trying to free their country from an invading aggressor.

Don't you feel that both cases resembling the same act of fight for freedom and independence?

Cheers,
Michael

Just for kicks and giggles, I'm going to reiterate what I said before. This is why we need to make it an international undertaking. Everyone needs to have some sort of say in how the prisoners at Gitmo are going to be treated, and how they are going to be tried.

I would assume it will be a long and difficult process. I doubt everyone who is in there is there for the same reasons. Perhaps some of them are being held unjustly, perhaps others really did plot atrocities against non-combatants. Who knows? Nobody! And that's why I feel this needs to be moved out into the international public sphere...

Have we considered outsourcing this problem.... to a nation that understands how to deal with criminals? I could name a few.

Neither have we considered how we are going to handle future "enemy combatants" that are captured in battle without establishing another Gitmo? Should we read them their rights upon arresting them and then hire an attorney to defend them if they cannot afford one? That might interfere with other priority matters going on at the time.... like getting medical attention for their wounds incurred during the battle for which they have not yet been convicted of participating in.

Our GIs have enough to worry about.

It's absurd to compare the US Military with that of Nazi Germany, but since you have:
Many of those people who fought against the Germans were executed legally by the Germans.
My view is that they're combatants who have willingly put their lives at risk. Now they're facing the consequences of their decisions.
Once again, whether or not they are right to fight against the US is NOT at issue. The issue is that when you choose to fight against a country you should be prepared to lose, not only the war, but your life and/or your freedom. You should expect that you could lose both, and in painful, slow motion. It's the very idea that war is hell that deters most people from engaging in it. We should not do anything to make war palatable. Especially freeing people who've killed or tried to kill our citizens. It simply does not matter if they are right to try.

If you can't take the heat, don't start a fire.

No one said life was simple, but facts are simple. The accused either is an enemy combatant, or is not. You can't be a little bit pregnant.

Wow, I've been waiting for someone else out there to remember the old concept of "franc-tireur", meaning someone shooting at you and not in uniform. Under the old laws of war, you can summarily execute them.

However, what you could not do under the old laws of war was torture a franc-tireur for five years.

However, again, I'm not sure that the concept of "spies" applies to someone on their own soil. Not the same thing at all as finding an al-Qaida guy microfilming documents in your Pentagon office. If someone invaded your town, what sort of action on your part would constitute spying? Eyeballing the school where their troops are billetted?

However a third time, what I would like to know is how many of the people left in Gitmo fall into the category of "turned in by their neighbour for his fields and a whopping great bounty from the infidel". They let a lot of the obvious cases out years ago, including the guy who was nabbed in Tanzania for refusing to counter-bribe a policeman not to finger him for the reward. I think it was interesting that the four UK citizens that Blair managed to extract were released and not charged with anything. (And Tony who was so soft on terrorists and all..... yeah, right.)

Thought experiment: I pay one of you several million dollars to name another participant on this Forum as a terrorist. Any takers? Good. Now, I torture this fellow until he tells me all about his conspiracy. If he doesn't tell me, then the only explanation is that he must be a very hardened terrorist indeed, so I gotta torture him some more. And if I let him go, why, he may do bad things to me! For some strange reason, he doesn't love me any more. :eek: Better keep him......

You've added a meaningful aspect. Some of theses prisoners are subject to a modern witch hunt. How can you prove your innocence without a fair trial while being tortured for your confession?

The Supreme Court has ruled and the prisoners will get their day in court or be released. I personally think this is a mistake, but so be it. Bush's plan to try them in military tribunals seemed like a better idea than giving them full access to the US justice system.... military gains nothing by holding innocents (if there are any being held) and would, I think, be quick to release them.

What the Supreme Court has said (sorta) is we cannot hold enemy combatants without trial..... so what do we do with the future prisoners? Secret prisons? Again? Exactly how does one maintain a chain of evidence on a battlefield? Just not reasonably doable.

As always, the guys with the most guns will make the rules, and the winner's historians will write the account. Have we forgotten they are trying to kill us?

This is one example of why the military hates civilian involvement in wars. The lawyers and politicians can have their say after the killing has stopped... but only if we win.

Tell that to the French Resistance, many of whom were executed legally in France.

I agree that it is possible, even likely, that many are innocent. That's what needs to be determined. Of course, if a detainee tries to claim that fighting US troops was/is justified, then that's basically an admission of guilt. Guilt and innocence are not the same as right and wrong. Right and wrong can be debated until the cows come home, but guilt and innocence are simple matters of fact.

I think I'd want to distinguish between a member of the Resistance riffling through the general's papers or pillow-talking him out of the location of the next operation, and a guy out hunting rabbits and bumping into a patrol (c.f. Pan's Labyrinth). The first category, I see your point. But legally under which code? French law? German military law? I don't myself know, do you?

Now how about the second point; was it the case that people were Gitmo-ised for the equivalent of being out hunting rabbits? Without a trial, we can hardly know.

Actually, no. In our law, you have to prove mens rea, which is not simple. But I'll grant you that this isn't relevant to the battlefield. I also grant you that the franc-tireur's political opinions are not relevant.

OTOH, it seems to me that the Administration was arguing that they wouldn't have a trial because they were prisoners of war not criminals, and that they weren't covered by the Geneva Conventions because they were criminals not prisoners of war. One can't have it both ways. You can indeed keep a POW for the duration of hostilities -- but you don't get to torture him. Name, rank and number!

Bin Laden's master plan was, of course, to provoke the US into acting in such a way that they would outrage Muslim opinion and thus serve as his recruiting-sergeant. Worked like a charm, didn't it?

The Saudis are having great success in converting jihadis. They give them one-on-one counseling with an alim, and social rehabilitation. The recividism rate is very low. It turns out that jihadis often don't know much about their own religion -- just like some Christian culture warriors......:D

From: http://en.wikipedia.org/wiki/Jus_in_bello
Bold added for emphasis.

As for the rest, I don't want to defend the current administration's policies. I'm only saying we need to determine the guilt or innocence of Gitmo detainees, execute the guilty, and free the rest.

Sure, but I don't see what this quote has to do with spying. The spy isn't in uniform, naturally, but he isn't in combat either. So what, in specific terms, do you have to do in order to be guilty of "spying" -- in your own country? Overdiagnosis of spying has to me a sort of Soviet flavour.....

BTW, what a lovely old word, "perfidy". You don't often see it these days.[/QUOTE]

The people who drive fuel trucks for tanks aren't directly in combat either, but they are battling the enemy and can be taken prisoner, even killed. The same is true of spies.

The basic point here is that if you aren't willing to accept the fact that you might be killed, you shouldn't go to war. The farmer who doesn't like the US being in his country has four choices:

1) He can do nothing.

2) He can protest peacefully with no fear.

3) He can fight openly, risking his life while in battle, and potentially long-term imprisonment if captured.

4) He can fight as a spy/saboteur, risking his life while in battle and face near certain death if captured.

There are no other options, and there shouldn't be any.

By the way, I believe that in proving some one is a spy or saboteur, you automatically prove mens rea. You don't accidentally become a spy/saboteur. Intent is required.

Isn't that sweet - let's look at my little role play somewhere in rural Iraq or Afghanistan:

US Military bloke:

"Hey farmer, I feel you are guilty for having an intention of spying at US military secrets. Men of me have seen you staring all day long at us, while we are parking our military trucks in those crop fields over there. Besides, you are wearing a beard, what do you have to hide? In addition I can see notes, taken in Arabic on your desk ... Gosh, better we get you in for further interrogation."

Here we go, years later, the poor chaps finds himself still in GIZMO. And yes, those concerned US military blokes actually found 2 guns on the compound ... the usual things a farmer in a rual area have to have ... but a strong indication for him being an illegal combatant.

In other words - How do you decide in the middle of nowhere, that such a loke guy has the intend of spying on the US?

This accusation comes quite handy, am I right? Nothing needs to be proved, just the US military bloke has to have the feeling about the poor chap in guts. Then his capture on his own soil, and deporting into a remote torture and concentration camp is justified.

Your logic is dangerous, because a person is not innocent until proven and found guilty.

I have a lovely peace of historical logic in your favor: The Witch hunt ...

Declare a person a witch.
Torture her to confess.
She refuses to admit being a witch (must be stubborn, deeply possessed one - no more hope for her eternal soul, she is certainly devil's loyal subject - otherwise she could show some remorse right? Am I still within your logic?)
Well, her life has to end by a trial, where she can be proven innocent!

We all know that witches won't sink under water. Right - this was common sense during the middle ages. Proven 1.000 times by inquisitors. So called best practice back then.

Now we take our reluctant witch to the next pond, put a heavy stone around her neck as ballast, and throw her into the pond.

If she sinks, she was no witch. Praise god, her eternal soul is still untouched, and she'll be welcome in Heaven, sitting besides whomever made it there before her. Ok, she dead, but then this is due process ... am I right? (matching your fine sense of right and wrong?)

Well, then lets look at the opposite outcome. For reasons, unclear to me and the torturer, she wont sink. That's a crystal clear indication of being a witch per prior definition. Now no further confession is necessary, due process in those days was - Burn the witch on the stakes, to give her a last chance to repent in style. (You must be drooling by now, finding that your fine sense of right and wrong has such a long tradition... be proud of yourself bro!)

In any case a true Catch 22 - The girl is dead in the end. Even if due process has taken place.

Ah, and the church has just received her family's grounds and property. Not bad either ... as tiny reward for all the hard work they have had unmasking an terminating the witch.

I don't say the US is stealing from the farmer his property, but I am saying once you have been accused and ended up in GIZMO, you barely have a chance to get things right in your sense any more. Because you have all the perception of the wardens against you. And they are at the relevant end when it comes to your fair trial (to which you are not entitled to)

Hoping you'll never find yourself in a position where you are accused but innocent and then tortured for a confession. This would let you feel what happened to many of the GIZMO prisoners from my understanding.

Cheers,
Michael

And here's hoping we never find ourselves on the USS Cole or in the Trade Center when the terrorists strike.

Gitmo detainees are there because they potentially are a valuable intelligence source or represent a clear threat to the the western nations. That is, they are there to protect the western world from future strikes. Farmer John would be quickly weeded out and sent on his way, if indeed he would have ever been taken into custody in the first place. Give our troops a little credit... they are not terrorists.

I would deny they are tortured in the traditional meaning of the word. Certainly they were not beheaded with the atrocity displayed on the internet for their families to see. Their families were not killed. There was no infliction of intense pain over long periods of time. They are well fed with a diet that meets their religious and cultural norms. They are allowed to worship as they choose. Their limbs have not been severed nor their eyes poked out nor their bodies branded with a hot iron. In fact, their treatment has been down right civilized.

This is a life and death struggle for our existence, not a time to play nice.

I would allow the possibility that an innocent may have been detained. But, that's going to be the case after the trials, too. It is the case for US jails even with a fair trial and a jury of peers.

Go back and reread my post, but this time read it as I wrote it and not as you believe it to be written. I said that to prove mens rea, all you have to do is prove that the accused is a terrorist. Where in that or any other post have I said that it isn't necessary to prove guilt? Where have I implied any predisposition towards anyone's guilt or innocence?

I've said this before, but I'll say it again: A fair trial results in the innocent going free or the guilty being punished. That means that it is just as unfair to release the guilty as it is to punish the innocent. IE: OJ Simpson did not get a fair trial in 1995.

So the ends justify the means; is that it? Don't you see that precisely that reasoning led to Iraq and to numerous other outrages throughout history? Do your really believe that a small, well-funded group of like-minded crazy people threaten the existence of the USA? That's the politics of fear, and Gitmo only reinforces their beliefs.

PS: I think this thread runs the risk of getting entirely out of hand. Perhaps best to can it. Sorry I raised the issue.

.
Sorry, this is no longer amicable.
Thread closed.