Naming Names at Gitmo

For what it's worth, the government finally releases to AP, in reaction to a Freedom of Information Act lawsuit, the names of all war on terror Guantanamo detainees--759 current and past ones. There are still around 480 people languishing there. Jacob Sullum last month wrote our most recent look at the disturbing lack of due process, or even convincing evidence, in the capture and holding of these prisoners.

Comments

[SecondGuesser]

This is one area on which I seem to part ways with my beloved libertarian brethren.

I cannot for the life of me find any legal case for constitutional protection of illegal enemy combatants. There is a moral case to be made if that's your speed, but legally we can lock them up forever if we choose to.

[Patrick D]

SecondGuesser,

"This is one area on which I seem to part ways with my beloved libertarian brethren.

I cannot for the life of me find any legal case for constitutional protection of illegal enemy combatants."

Perhaps you should examine your assumption that everyone at Gitmo is an enemy combatant, illegal or otherwise, simply because the government says so. As more information is available, it seems that at least some them are not enemy combatants "swept up by U.S. forces on the field of battle" (as the administration has repeatedly asserted) and Gitmo starts looking like a place where the government tries to hide its mistakes to avoid embarassment.

[thoreau]

It seems like H&R is destined to have this argument over and over again...

How do you know that they are in fact illegal enemy combatants? Oh, that's right, the executive branch said so. Well, do you trust the executive branch to always tell the truth, or do you prefer that their assertions be subject to some sort of review by an independent panel?

That's what it all comes down to.

Now, when these discussions happen, inevitably a person claiming great legal knowledge informs us that in the case of Patsy vs. Cops the courts ruled that there is no legislation, court precedent, treaty, Constitutional provision, or any other sort legal document that bars what's being done.

OK, fine, let's say (for the sake of argument) that you're right. Given that the executive branch allegedly can do whatever it wants, give me one good reason why it wouldn't be much better if (by appropriate legislation or whatever avenue you prefer) that power was curtailed?

[John]

Thoreau,

What should have happened was what the military wanted to do in the first place. There should have been Article 5 tribunals conducted by military officers to determine if in fact those captured were lawful combatants entitled to POW protection and status, unlawful combatants entitled only to be punished for their crimes, or innocent civilians entitled to release. These types of tribunals have been conducted for decades in various wars. Further, military lawyers, who by the way were the only ones thinking about these issues before 9-11, had been training to conduct them. The military was ready to do this Afghanistan in November of 2001, on the battlefield where the evidence of their conduct was avaialable. Instead of this happening, the Justice Department and the Office of the Counsel to the President imposed themselves in an area of law in which they possessed no expertise and stopped the military from following the Geneva Conventions and conducting the Article 5 tribunals. It was during this time that all of the non-sense about the Geneva Conventions not applying to terrorists came about. It was a classic example of the snot nosed Ivy league political jackasses at Justice knowing just enough to be dangerous. True, the conventions provide little protection to unlawful combatants, but everyone is entitled to protection under the convention at least in so far as determining their status as a POW or unlawful combatant. In a strict sense, the Conventions do apply to unlawful combatants and to say they don't is not only a misstatement of the law but sets a disasterous precident for Americans who are captured in the future. If the White House had let the military conduct the Article 5 tribunals, there would be some legitimacy to holding these people, most of whom need to be held, and it would not be a case of them being guilty just because the exectutive says so.

Alberto Gonzalas and the people at Justice under Ashcroft and ultimately the President fucked the whole thing up. Now we are stuck holding people under debious international pretense and it has been so long since they were captured conducting tribunals will be next to impossible. Granted, most of the Reasonites would have bitched and moaned about the Article 5 tribunals not being fair, but it would have been following international law and nothing pleases the Reasonites anyway.

[aspendougy]

Right, the evidence that these men are in fact terrorists or enemy combatants is flimsy in many cases. Contrast that with two men who entered the Mexican Parliament Building in Oct. 2001 with a gun, C-4 explosives, and grenades. They are not interred at Guantanamo, due to their nationality( One was a Mexican Jew, the other a citizen of Israel). (See my blog for further info.)

[SecondGuesser]

Correct me if I'm wrong, but neither party can be held to the conditions of a treaty unless both parties entered into that treaty. Last I checked, Afghanistan is not a signatory to the Geneva Conventions.

From this point, all other points are moot. But I'll address each of your concerns anyway because I love you guys.

Patrick D: My assumption about the status of detainees is not pertinent. If I were to insist on 100% perfection in the identification of less than 1,000 detainees, then the operation in Afghanistan cannot proceed, nor can we win. It would be embarrassing if the government lost a war to the Taliban. It is not embarrassing to misidentify a couple hundred fighters intentionally dressed as civilians.

Thoreau: We know that they're illegal combatants because they engaged us on the battlefield despite not being identifiable as representatives of a military force through military dress. In modern warfare, civilians don't engage fighting forces. Of course being a foreigner fighting on the battlefield or communicating surrender then opening fire are other reasons for being classified as an illegal combatant. Of course, fighting from or gaining unfair shelter in civilian or religious locations is also grounds for being considered an illegal combatant.

To sum up, the Geneva Conventions addresses conventional warfare, a natural thing since it's signatories are recognized nation-states with conventional military forces. It is a logical impossibility for the wartime rights of irregular forces to be formalized in a Geneva-like way. The whole point of wielding an irregular force is to gain a strategic advantage over conventional forces.

There's no evidence that our enemies met their Geneva Conventions obligations on 9/11. See how foolish this all is?

We have to accept that the Geneva Conventions cover certain situations, namely conventional war between signatory states, and our current conflicts in Afghanistan and Iraq do not fall within the scope of those treaties.

I will happily admit that we do have a moral obligation (although not the legal one) to work as closely to the Geneva Conventions as possible. But that's the priority: fight effectively first, comply with Geneva second. What's so irrational about that?

[thoreau]

We know that they're illegal combatants because they engaged us on the battlefield despite not being identifiable as representatives of a military force through military dress.

The DoD has now admitted that some of them were actually innocent people who were handed over by unscrupulous Afghan warlords seeking a bounty. If somebody pissed off the local warlord, the local warlord could always tell the Americans that the trouble maker was Al Qaeda, and then collect a fee.

The DoD has also now admitted that some of the detainees were anti-Communist dissidents fleeing from persecution in China's Xinjiang province. (The fact that these guys would seek refuge in Afghanistan suggests that things much have been pretty bad in Communist-ruled Xinjiang.) The US gov't has admitted that these guys pose no threat to the US, but they remain in custody until the US gov't can find a place to send them. Hmm, if only there was some country where anti-Communist dissidents could find refuge, some country with a history of assimilating immigrants seeking freedom...

I'm willing to suppose, for the sake of argument, that there is no treaty, act of Congress, court ruling, Constitutional provision, or other legally binding act that obligates the US to give the detainees a fair and speedy process for contesting the allegations against them. But it might be a good idea if such a process were put in place.

John-

Thanks for the info.

[thoreau]

BTW, it would be tempting to say that if the gov't has admitted mistakes then the system works. Let's keep a few things in mind:

1) Some people were tortured before the US admitted that they were not in fact terrorists, illegal combatants, or whatnot. (e.g. Khaled El Masri, who was admittedly not in Guantanamo but was held and tortured for several months at a US prison in Afghanistan, after being captured in Europe because of a confusion over his name.)

Maybe it would have been a good idea to hold a fair hearing before getting carried away with him. Just a thought.

2) In some cases, the US gov't has continued to hold people that it admits are innocent (e.g. the guys from China's Xinjiang province).

Maybe it would be nice if these innocent men could go before an independent tribunal and get an order for their immediate release.

3) In general, people work better if their work is subject to review and an adversarial process (e.g. managers at your job, competitors in the marketplace). If you want the executive branch to make intelligent decisions and allocate resources wisely, if you want them to identify errors quickly so they can devote their attention to real threats, it might be good if the executive branch's assertions are subject to review by an independent tribunal, in a forum where the assertions can be contested.

Even if you don't give a shit about innocent people being tortured, wouldn't you at least be happier if the executive branch devoted its full attention to dangerous people, and was monitored by independent authorities who intervene if they waste resources on innocent people?

We take it as a given that the branches of government should be subject to significant checks and balances in just about any other area. But as soon as we're dealing with a Muslim accused of terrorism, suddenly the executive branch is supposed to be trusted 100%?

I don't generally get into the whole "You're not a real libertarian" pissing match, but anybody who thinks that the executive branch's allegations should be taken at face value when life and liberty are on the line is not a real libertarian.

[Adam]

The issue isn't where the detainees get the right to a fair trial, etc. The issue is where the executive branch gets the power to decide that certain people will be imprisoned indefinitely, beyond the reach of any court or other tribunal, until the president decides, on his own, to let them go.

If the US Constitution grants the executive branch the power to do that, then it might as well be scrapped because governmental power has become totally with limits of any kind.

[Ayiana]

You are all cowards, every one of you. Preening, posing phonies. It doesn't matter what you say, you care only about the spray drops of approval from equally weak males in the libertarian "movement."

All ruined by conformity, ugliness, weakness, herd-think. You have no soul, no heart, minds, conscience--any of you.

You all despise freedom. Get real jobs.

[Ayiana]

You are all cowards, every one of you. Preening, posing phonies. It doesn't matter what you say, you care only about the spray drops of approval from equally weak males in the libertarian "movement."

All ruined by conformity, ugliness, weakness, herd-think. You have no soul, no heart, minds, conscience--any of you.

You all despise freedom. Get real jobs.

[Posner]

Secondguesser,
"Correct me if I'm wrong, but neither party can be held to the conditions of a treaty unless both parties entered into that treaty. Last I checked, Afghanistan is not a signatory to the Geneva Conventions."

Consider this your correction. From a White House statement: "Afghanistan is a party to the Geneva Convention.lthough the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention."
http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html

[Warren]

Most vile administration ever

[SecondGuesser]

Posner - Thanks, good correction. You're absolutely right. Bush and I clearly disagree. The Taliban didn't sign the treaty, nor made an effort at fulfilling its obligations, but Bush committed to Geneva treatment. He is morally obligated to do his best to fulfill it. I'd still argue that absolute perfection is an unrealistic expectation.

Was Ayiana attempting to make a point or just belching a blind insult? Ayiana, that is not necessary. Warren, your opinion is purely subjective and in no way unique. I'm looking for something a bit more original. Can you give that a try? Are you guys sure you're libertarians? We think a bit more than ROTM Democrats and Republicans.

[Patrick D]

Secondguesser,

"Patrick D: My assumption about the status of detainees is not pertinent. If I were to insist on 100% perfection in the identification of less than 1,000 detainees, then the operation in Afghanistan cannot proceed, nor can we win. It would be embarrassing if the government lost a war to the Taliban. It is not embarrassing to misidentify a couple hundred fighters intentionally dressed as civilians."

I understand your point. Based on your response, you don't seem to understand mine. Your assumption that all the detainees were picked up on a battlefield in Afghanistan is wrong.

At least some of the guys at Gitmo were not picked up on any battlefield anywhere by U.S. or other military forces. It seems likely that some of them are there because somebody saw an opportunity to make money (bounty), remove a troublesome individual from their life, or just made a mistake.

[johnl]

Warren, Adams was much worse. Wilson too. And Jackson.

SecondGuesser I hope you are a troll.

John (I am not "John") you are right that if the military had dealt with this according to the plan that has been on the books for decades that things would have turned out a lot better. The army can mess things up but if you want a real disaster what you need is politicians micromanaging the army.

[Rick Barton]

aspendougy at 9:29 PM :

Contrast that with two men who entered the Mexican Parliament Building in Oct. 2001 with a gun, C-4 explosives, and grenades. One was a Mexican Jew, the other a citizen of Israel.

Incredible! I wasn't aware of this. But after reading aspendougy's blog:

http://vitaltruths.blogsource.com/

I verified in the Mexican press: http://www.aztlan.net/blowup.htm

It?s amazing that The Israeli government was successful in getting these two released from Mexico and that this incident has gone so unreported here. It?s the equivalent of terrorists being caught trying to blow up congress and being let go.

[Rick Barton]

Further verification is to be found in this press bulletin from the PGR (Mexico's Attorney General's office) from their official website:

http://www.pgr.gob.mx/cmsocial/bol01/oct/b69701.html

[Phileleutherus Lipsiensus]

SecondGuesser is right about one thing: the legality of the detentions is a moot issue at this point. The fate of those at Gitmo will depend on the politics of the situation, not the legality of their detention.

John,

They provide some procedural protections for everyone. Of course the problem is that the federal courts have stated time and time again that it is up to the executive branch to regulate and carry forward those procedures. They have a real hands off policy in such matters. So again, the question becomes a political one.

[Dave W.]

If you want the executive branch to make intelligent decisions and allocate resources wisely, if you want them to identify errors quickly so they can devote their attention to real threats, it might be good if the executive branch's assertions are subject to review by an independent tribunal, in a forum where the assertions can be contested.

This can't be correct. If you have an independent tribunal, then that means people can bring claims. If people can bring claims, then they can bring frivolous claims. If they bring frivolous claims, then the government has to spend money defending against the frivolous claims. If the government spends money defending frivolous claims, then the government will go out of business. Because libertarians believe in limited gov't, that means we don't want the government to go completely out of business defending against frivolous suits. Therefore, this proposal of independent tribunals is inconsistent with libertarianism./T.logic.

[Dave W.]

I wonder what useful info Reason Online's FOIA requests will wrench out of the U.S. government. I think one thing that really unites us HnRers is a healthy distrust and skepticism of the government. This place was made for FOIA filing (that is, hardhitting) journo's. I have been trying for a year now to get one of the contributors to tip her/his hand and do an article just on the progress of the FOIAs. They can be challenging and I am sure each one spawns a zillion interesting stories as liber journo & statist gov't thrust and parry in a deadly fight for transparency & accountability. Ohhh, how I wish I could hear some progress reports on this exciting front. Still, I understand the strategy here -- if any of them did such a story, they would probably get all of Reason Online's FOIA requests kicked to the back of the line by mean, ol' mister government. The stealth strategy really is the way to go, I am sure deepdown.

[Pro Libertate]

Why are you always on about FOIA, Dave? I obviously missed something.

[joe]

Second Guesser,

"The Taliban didn't sign the treaty, nor made an effort at fulfilling its obligations"

Technically, neither did the Republicans. It doesn't matter - they're still the government of the United States at this particular moment.

[Dave W.]

I just think they are a good tool. I am big on transparency. Let's put it this way: if I could I would glug a lot of cornsyrup to get a little transparency. I think that what journalists get from FOIAs tends to be more important than stuf they get from guided tours of Israel or anything like that. The more people know about the government, the more they will mistrust the gov't, I predict. You can probably see how that plays into my rocksolid libertarianism.

[Dave W.]

Aloso, Mr. Doherty may start the post with a what-me-worry fwiw disclaimer. Fwiw my black cat! It is worth a lot. Look how T. is getting fired up. Good stuf. Wish it had been *our* FOIA instead of someone else's.

[Pro Libertate]

I'm a FOIA/open government fan myself. I've always been happy with Florida's "Government in the Sunshine" law, though more in theory than in practice. I agree that a limited government requires a great deal of transparency, and I'm quite tired of everything being hidden away because of "national security". Just guessing here, but I bet CYA issues are 80% of the reason for keeping documents and actions secret.

[joe]

Before I get yelled at, my point was not to dis Republicans, but to point out that nations continue to be bound by the treaties signed by previous governments, even when there is a change in government.

I would suspect that even Second Guesser would call out the Romanian military for violating their Geneva obligations if they were to mistread American soldiers, and they've had at least two changes of government since signing the treaty.

[Pro Libertate]

I won't yell at you, joe. I think it's a valid point. Though international law is often bizarre and counterintuitive, so maybe the rise of the Taliban somehow had the affect of repudiating previous treaties. Not that my opinion about international law (especially without me reading anything) counts for much. I once thought about being an international lawyer, but the only step I took in that direction was to take a semester of Japanese 🙂

Also, there's always the policy behind the treaty (and others like it). There are certain things that shouldn't be done, not just because you don't want them done to your people. Not every provision has that backdrop, but many map up to basic human rights issues.

[SecondGuesser]

Joe, I see your point. But I'd rather be in a war for 10 years that involved some sloppiness than a war for 50 years that was technically perfect from every conceivable legal perspective.

All I want is to win the war. (Do yall want to win the war or would you rather just walk away from the whole mess tomorrow?) If someone can show me a roadmap to winning the war faster, I'll hear your story. But everyone's an armchair expert and I haven't heard many suggestions here that will win us this war faster. A lot of suggestions on how to win this war "more legally". We can always elect new leaders if we don't like the decisions being made, but we really only have one chance at fighting this war. Bush sounds determined to win the war - whether or not he's capable of winning it is the open question.

[ChicagoTom]

Do yall want to win the war or would you rather just walk away from the whole mess tomorrow?

What on earth makes you believe these are the only two possible outcomes. Isn't it possible that even if we don't walk away tomorrow we still lose the war? Isn't it possible that we can not win a guerilla war while being an occupying force in a land that is hostile to us?

What is with this false dichotomy. Walk away or win the war? Those aren't the only two possible outcomes.

How do you even define "winning" the war. Which war exactly are you talking about? The War in Iraq? The War on Terror? The war on open government? The war on due process? The war on accountability?

Reading all your comments on this thread it's obvious that you are armed with only half-facts or incorrect ones. All of your assumptions have been based on ignorance, and now you present these bullshit only two options "I want to win, don't you want to win???"

As for the war in Iraq, we have already won, my friend. We toppled Iraq's military and sacked their leader. It's the peace we have been unable to acheive.

[Pro Libertate]

Surely we can win whatever "war" we have to fight without giving up any liberties or beliefs. We're incredibly powerful in relation to every other country on earth. We've messed up in the occupation of Iraq, sure, but the week it took to entirely subdue the military and government were instructive to the rest of the world. Why else is Iran risking everything on the gamble that we'll hesitate long enough for them to get nuclear weapons and become, thus, uninvadable?

I wouldn't be willing to sell my liberties even if we weren't so powerful, but, given that we are, arguments that I do need to sell them make even less sense. And yes, treating people we've captured like animals or denying noncombatants basic liberties hurts "us citizens", too. Precedent is a hard thing to overcome. We're strong enough to be the good guys, you know.

[SecondGuesser]

What do you all make of this:

http://www.youtube.com/watch?v=CDx1GLqvBO8

Too much conspiracy theory or some genuine eye-openers?

[SecondGuesser]

ChicagoTom - I'm here to discuss, learn, and offer my honest opinion. By all means, if you see something incorrect, be a man and state politely that it is incorrect. Then correct it.

To my knowledge, there is only one factual error that I made in this thread. I was a gentleman and admitted it.

Everyone here knows that you are the World's Smartest Person. So you're advised to calm down and act like a gentleman. I'm happy to be civilized and rational, but I will treat a whiny know-it-all accordingly.

[joe]

Second Guesser,

If winning in Iraq requires this nation to become a torture/murder/prison state like the USSR, I'd rather lose, and keep our soul. How's that?

[SecondGuesser]

Right. Because things in my neighborhood looked so much like the Soviet Union in the 50s. I hear you, but it's a night and day difference between the government's breadth of power today and Stalinist Russia. I can send you pictures from that era if you'd like to compare. Don't get too carried away.