October 25, 2003

Guantanamo Again

Michael Froomkin sharpens the issues at stake in jurisdiction over Guantanamo:

Discourse.net: US Jurisdiction in Guantanamo -- Some Complexities: The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, "the constitution follows the flag." The Navy, the President, his minions, all derive their power for the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeas corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way.

Don't underestimate what's at stake here. A ruling that there's no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government... our courts will not hear them. That should bother you. It bothers me.

Posted by DeLong at October 25, 2003 10:01 AM | TrackBack


If the United States does not have sovereignty over the land making up Guantanamo, as it claims, does that mean that the internees have rights under the laws of Cuba? To put the matter another way, if one civilian on the base murders another at Guantanamo, can the United States try the case, or is a matter for Cuban courts? Suppose the civilian is a citizen of Costa Rica. Do Costa Rican courts have jurisdiction?

It this place completely lawless, except for those subject to military justice?

Posted by: Masaccio on October 25, 2003 10:45 AM

No non-US court has jurisdiction over civil claims. See http://www.discourse.net/archives/2003/10/even_if_us_courts_dont_have_jurisdiction_over_guantanamo_there_is_no_recourse_to_cuban_courts.html for details.

The US courts arguably have jurisdiction for criminal prosecutions--not just military ones-- brought by the US government under 18 U.S.C.A. ß 7, see http://www.discourse.net/archives/2003/10/us_jurisdiction_in_guantanamo_some_complexities.html

Posted by: Michael Froomkin on October 25, 2003 11:31 AM

Michael, I reviewed the materials you cite. I do not see any difference between "sovereignty" and the "exercise [of]complete jurisdiction and control over and within said areas".

Black's Law Dictionary defines sovereignty as "the supreme, absolute, and uncontrollable power by which any independent state is governed, supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived;...", citing, inter alia Chisholm v. Georgia; and as "the power to do everything in a state without accountability...", citing Story.

The language of retention of ďultimate sovereigntyĒ by Cuba refers solely to the point in time at which the US returns the property. Otherwise, the language would have to mean that Cuba could hold the US accountable, and the US does not have a self-sufficient source of political power.

Posted by: Masaccio on October 25, 2003 12:08 PM

Camp X-Ray at Guantanamo Bay is not terra sine domine. The lord is the US military which is vested the legal authority to detain and put on military trial, if necessary, the illegal non-combatants so captured. If one American soldier at Guantanamo kills another American soldier, he is subject to an US military court, not a US civilian court. Are you asserting that suspected foreign terrorist has more rights to an American civilian court than an American soldier? The civil criminal justice model does not apply to war situations, and itís not clear that even the US Supreme Court can help the detainees. That court is not supreme to the executive branch in matters of war, and historically they have steered clear of fettering the executive branch in things military during the course of a war. After all, Lincoln suspended habeas corpus for civilians during the Civil War, and the US Supreme Court upheld his actions. FDR had German saboteurs (including one who held US citizenship) tried in secret by a military tribunal on the soil of the United States, and the Supreme Court upheld that too. Even if the Supreme Court ordered the release of the detainees, itís not clear they could enforce that decision. The president could assert that the executive branch is co-equal, and the Supreme Court has not authority to tell him how to run a war. This would provoke a constitutional crisis, so no one really wants to go there, which is why I suspect the Supreme Court would refuse to get involved.

The problem is you donít really trust the US military courts, you trust civilian judges more because they are evidently paragons of virtue compared to military judges. Somehow when a lawyer (of all things) dons a black robe he becomes more virtuous than one who dons a uniform. Must be something in the cloth.

Posted by: A. Zarkov on October 25, 2003 12:21 PM

I think those who oppose indefinite detention tend to be asserting that the prisoners are either POWs or criminals. if the former, there are rules for their capture, imprisonment and eventual release. if the latter, there are rules for their prosecution and potential acquittal or conviction.

as for your legal precedents, someone of your manifest intelligence should know better than to stretch those two parallels -- especially Ex Parte Quinn, which is a deeply flawed opinion written, if memory serves, only after the actual decision had been handed down. and not that it matters, but again iirc there were two US citizens involved.

full disclosure: my great-uncle died in a POW camp during WWII. I can't know what happened, although maltreatment is the automatic suspicion, but at least he would have returned home after the end of hostilities. that you are so eager to condemn men to a worse, open-ended, Kafkaesque fate based on the say-so of an executive whose assessments leave much to be desired does not reflect well on you.

Posted by: wcw on October 25, 2003 01:09 PM

spelling, memory: that's Ex parte Quirin, of course. Quinn was something else; my apologies for any confusion.

Posted by: wcw on October 25, 2003 01:18 PM

as a person who was railroaded by military law (they even had to destroy their evaluation paperwork) (illegal move) I am not a fan of military law. it is one sided over embelished partial truth aiming at a goal that was decided before trial starts

for example between when i got in trouble and when i went to trial i even stopped a kid from commiting suicide - that had nothing to do with me though

the fact that i may have at one point done something illegal defines me as who i am

just like bush is a coke freak, righ
hypocritical scumbags

part of the reason why i made my very ugly not pro navy website

Posted by: Navy Nuclear Power and Nuclear Submarines on October 25, 2003 02:41 PM

Gitmo is a concentration camp. I understand that some prisoners have already died.

Posted by: big al on October 25, 2003 03:55 PM

Zarkov, yeah, we don't trust military justice compared to civilian justice. Almost nobody in the world does, except apparently you. Living under military justice is almost universally regarded as the worst of fates, except for being caught in the midst of the war itself. (What I just said is a big exaggeration, but if I were to enumerate the groups that do agree with you that military justice is as good as or better than civilian justice, you would accuse me of smearing you).

Your heavy sarcasm makes you seem extraordinarily stupid: "Somehow when a lawyer (of all things) dons a black robe he becomes more virtuous than one who dons a uniform. Must be something in the cloth."

What Bush seems to want to do, and what you seem eager to endorse, is to create a place on earth which will remain forever in the lawless state characteristic of wartime uncontrolled areas. The "war on terrorism" has no specified or localized enemy and cannot possibly have an end.

Posted by: Zizka on October 25, 2003 04:00 PM

Ex Parte Quirin is the governing precedent. Like many other decisions, Roe v. Wade for an obvious example, one can argue that the reasoning was unsound but that does not affect it's legal status. In any event, Bush's executive order regarding illegal combatants is a far gentler set of rules than what Quirin ( or the Laws of War) permits.

I'll repeat what I said the other day - what the Bush administration should do is follow the Geneva Convention and try the captives at Guantanamo for war crimes ( fighting out of uniform, deliberately targeting civilians, murdering wounded American combatants) by military tribunal or court-martial where appropriate. Some of the Taliban detainees have grounds for acquiring POW status because some of them fought in recognizable military units and some of these have been released without prejudice. The al Qaida detainees, who did not, are eligible for the death penalty if found guilty.

International law does not regard war crimes as matters for civilian courts but for military justice - which was why Nazi leaders were first tried by Allied Tribunals prior to allowing the West Germans to operate De-Nazification courts. Al Qaida members do not have the right of access to U.S Federal courts via Habeus Corpus except in so far that they are American citizens and even then the circumstances have bearing ( Jose Padilla has a better claim to Habeus Corpus than Hamdi who was captured under arms in Afghanistan)

Attempting to argue otherwise - that POW's and illegal combatants have due process rights in U.S. courts ( and by inference that the U.S. military should follow the same rules and standards as civilian police)is as much a revolutionary innovation as the Bush administration assertion for indefinite detention.

The difference is that the former would cripple the ability of the U.S. to wage war and the latter is easily reversible by admission of error and a return to normal military procedure

Posted by: mark safranski on October 25, 2003 08:34 PM

Camp X-Ray does not qualify as a ďconcentration campĒ under any reasonable definition of that term. The inmates there do not suffer from starvation, harsh work regimens, physical brutality or denial of medical attention. These elements are common to all genuine concentration camps such as the Soviet Gulag, Hitlerís death camps, German prison camps for Soviet soldiers, and Japanese prison camps for captured Americans. In more modern times, North Vietnam, Communist China, and Iran have held Americans (and others) under concentration-camp conditions. To characterize Camp X-Ray as a ďconcentration campĒ is to engage in fruitless hyperbole. If anyone has evidence to the contrary, share it with us.

Posted by: A. Zarkov on October 25, 2003 09:42 PM

I think that John Ashcroft needs 6 weeks of personal confinement with no due process or access to lawyers. He is too dense to understand the problems he is creating unless he experiences it first hand.

Posted by: bakho on October 25, 2003 10:58 PM

A concentration camp is strictly speaking a camp where you put together inviduals that where dispersed, so you can handle them more easily.

When the Spanish Civil War Spanish refugees in southern France were interned in concentration camps.

Now if you have bad intentions in mind, a concentration camp in a far away place is quite practical.


Posted by: Antoni Jaume on October 26, 2003 01:33 AM

the original concentration camps were in S Africa, during the Boer war.

Posted by: big al on October 26, 2003 03:23 AM

"The problem is you don't really trust the US military courts, you trust civilian judges more because they are evidently paragons of virtue compared to military judges. "

This is not a matter of trusting civilians more than military judges. The problem is that the Guantanamo proceedings are not open to public scrutiny. I wouldn't trust a civilian judge in a secret proceeding.

Posted by: khr on October 26, 2003 08:33 AM

I am also uncomfortable with secret trials, civilian or military. Nevertheless under Ex-Parte Quirin, the military can conduct a closed tribunal for illegal combatants even on US soil. But we must realize that our discomfort stems from the feeling that the civil policing model should apply. There are potential problems with an open trial during a war. With open proceedings, sources and methods could be compromised. Witnesses, prosecutors and judges could face threats before, and retaliation after the trial. With a ruthless, well-funded, and active international army of irregulars that are willing to hide in the civilian population and launch suicidal missions, that is a credible danger. After all even legitimate POWs must remain in captivity during the course of the war, however long that is. Legal combatants enjoy many privileges under the Geneva Convention, and these privileges to some extent compensate for operating outside the policing model. But Al Qaida for one has decided not to play by the rules, so like it or not, I think we will see them get tried in secret.

Posted by: A. Zarkov on October 26, 2003 09:54 AM

Terrorism is not a military question, the use of military forces in such context is expression of absolute fascism. BTW Saddam Hussein did it.

We have no proof, beyond an accusation that is self-serving, that any of the individuals in Guantanamo has anything to do with the WTC attentate. In fact it seems that many were detained because of unfounded accusation that some Afghanis used to ply the USA to do their dirty deeds.

I have read that in Iraq some looter at first got the USA soldiers to kill the peoples that were defending themselves from being robbed by him.


Posted by: Antoni Jaume on October 26, 2003 11:21 AM

This is rich. When the US follows the Geneva conventions Camp X-Ray may have some legitimacy. Until that time they are treating those prisoners illegally. Many of those prisoners are simply Afghanis who fought against the invasion of their country. An entirely legitimate thing for them to do. This conflating of terrorists with soldiers is dangerous and this refusal to live up to the clear obligations of the Geneva conventions is something that is going to come back and bite the US on the ass.

What exactly are you scared of? That non-secret trials will reveal that you have no decent case against most of the men there? The idea that they'll give away intelligence secrets borders on the absurd, especially so long after their capture - and in any case lack of success has made it clear that they didn't have many secrets the US has been able to get out of them.

But don't worry, the Egyptians can always torture them for you if the lax laws at Gitmo aren't enough.

Posted by: Ian Welsh on October 26, 2003 01:26 PM

It is safe to say that while the Pushtun prisoners at Guantanamo are probably Taliban and therefore many ( though not all)have claims to POW status ( after a hearing) the Yemenis, Algerians, Saudis, Egyptians, Chechens, Pakistanis captured in Afghanistan are al Qaida members with no valid claim whatsoever under Geneva to being POW's.

The only illegality so far is the assertion of rights to impose indefinite detention - something that really has no basis in international law or the UCMJ. That tribunal trials have taken two years to begin in and of itself is not a violation and is in fact an indication that the Bush officials will soon be dropping that claim altogether.

Had the United States really wished to assert itself it could have with all legality held court-martials on the battlefield, as we did with SS men captured out of uniform during the Battle of the Bulge, and sent al Qaida members to the firing squad simply for being al Qaida members, not for being connected as individuals to the WTC bombing.

How a military response to 3000+ Americans being killed by an organization like al Qaida constitutes " absolute fascism " is incomprehensible to me and I would imagine, most people

Posted by: mark safranski on October 26, 2003 02:01 PM

Just to break back to the start, Mr. Dooley didn't say "the constitution follows the flag"; he said ""That is," said Mr. Dooley, "no matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns."
Which seems about right.
And again
"some fellow said that ivrywhere th' constitution wint, th' flag was sure to go. 'I don't believe wan wurrud iv it,' says th' other fellow. 'Ye can't make me think th' constitution is goin' thrapezin' around ivrywhere a young liftnant in th' ar-rmy takes it into his head to stick a flag pole. It's too old. It's a home-stayin' constitution with a blue coat with brass buttons onto it, an' it walks with a goold-headed cane. It's old an' it's feeble an' it prefers to set on th' front stoop an' amuse th' childher. It wudden't last a minyit in thim thropical climes. 'T wud get a pain in th' fourteenth amindmint an' die befure th' doctors cud get ar-round to cut it out. No, sir, we'll keep it with us, an' threat it tenderly without too much hard wurruk, an' whin it plays out entirely we'll give it dacint buryal an' incorp'rate oursilves under th' laws iv Noo Jarsey. That's what we'll do,' says he."
Which also seems about right.
Where is Finley Peter Dunne now we need him? Come on, America, own up; the judicial theory involved in Guantanamo is "Because we can."

Posted by: Chris Borthwick on October 26, 2003 02:31 PM

First of all, to me the most alarming thing about the Patriot Act, Patriot II, Guantanamo and the open-ended "war on terrorism" is the evident intention of the Bush-Ashcroft-Rove administration to put us in a permanent state of emergency, within which normal rules of procedure do not apply. Constitutionalists and legalists, of which I am not one, should note Bush's repeated expression of contempt for "formalities" rules, and due process in various contexts.

Zarkov: "the course of the war, however long that is." How could we ever possibly know that the "war on terror" is over? Because the Afghan war is unquestionably over.

Regarding the non-Afghans in Guantanamo -- they were there by invitation of the Taliban, which was the recognized government of Afghanistan. Their military activities, as far as I know, were also approved of. Whether they were in uniform or not I don't know -- it's always assumed that they weren't -- but in third world struggles lots of participants are out of uniform -- alternatively, the "uniform" might just be a colored scarf.

"Out of uniform" meaning "trying to infiltrate" justifies summary execution, but I don't think that Guantanamo prisoner were doing that. There is almost no congruence with the Quirin precedent (saboteurs in America pretending to be Americans), even if the Quirin precedent is valid.

Posted by: Zizka on October 26, 2003 02:54 PM

Zizka virtually no country including the United Nations and the United States recognized the Taliban government. Thus there is a strong argument that even the official Taliban military constitute an irregular militia. But letís say, for the sake of argument, they are regular army. Are you asserting that Al Qaida and other invited parties joined that army and were under the control of Taliban military commanders? If not, they are an irregular militia and must conform to all four conditions in article 4 of the 1949 Geneva Convention to be accorded the privileges of POW status. In fact, they violated both the letter and spirit of those conditions by hiding in the civilian population, targeting civilians, not carrying their arms openly and not wearing a clearly identifiable insignia. Your argument would have a little strength (but not enough) had the US signed the 1977 Protocol 1which relaxed somewhat those four conditions. For example the irregular militia can conceal their arms until the moment of attack. But the US wisely didnít.

Posted by: A. Zarkov on October 26, 2003 03:23 PM

To Zarkov, Safranski, or otehrs:

I would have thought that the categories of POW and criminal -- with the protections they respectively imply -- were exhaustive. Does the law (US, international) recognize a category of persons who are under the power of a government, but have no rights vis-a-vis that government?

or to put it a little more sharply, if the US were to decide to summarily execute all those held at Camp X-ray, would there be any purely legal objection?

Posted by: jw mason on October 26, 2003 04:39 PM

JW Mason wrote:
"or to put it a little more sharply, if the US were to decide to summarily execute all those held at Camp X-ray, would there be any purely legal objection?"

Yes, the camp commandant at X-Ray cannot abruptly decide to gather the prisoners together and execute them; nor could he do so even if ordered to by his commanding officer because that would be a war crime.

First, a military tribunal needs to adjudicate the status of each prisoner. Those accorded POW status receive all the benefits and priviliges thereof, those that do not are illegal combatants ( they have been, as a group, administratively ruled as such but that is really meaningless under international law until a military judicial hearing for each prisoner on an individual basis occurs).

If I recall corectly, a POW ( say a Taliban commander) might still face charges as an individual but he would be tried by a Court-martial not a military tribunal. A POW might also face charges for crimes against humanity for actions that preceded the war with the U.S. such as the Taliban massacres of the Hazara shiite minority which the U.S. may try under the authority of the Genocide Convention. More likely though, if any such individuals at X-Ray are in the last category they would be handed over to the Afghan government or an international tribunal for trial.

Illegal combatants might face sentencing immediately after their de jure status is determined or the USG may elect to hold separate tribunal hearings to determine sentences on an individual basis. The Nuremburg and Tokyo tribunal trials were handled in that manner and handed out a mix of acquittals, death sentences and prison terms.

Illegal combatant status is bleak because the intention of Geneva is to try and minimize harm to civilians by restricting the lawful parameters of combat and reward those who follow the rules. Intentional war criminals face harsh penalties because we prefer armed combatants target other armed combatants - not children, women and other civilians.

Posted by: mark safranski on October 26, 2003 07:10 PM

Thanks for the reply Mark.

So what are the rights of illegal combatants? Procedural, in terms of the sentencing you describe? And in terms of their treatment while being held, either before or after sentencing?

Or in other words, you say that executing the internees would be a war crime, which I am glad to hear. But then you say that they could be executed following a hearing which is evidently governed neither by international law regarding POWs nor by US law regarding criminal procedures. So I'm left wondering, is this is a distinction without a difference?

Posted by: jw mason on October 26, 2003 07:22 PM

The U.S. and the U.N. had dealings with the Taliban at various levels. By the argument that they were "not recognized", then any combatant anywhere in Afghanistan (including our N. Alliance allies, many of who were ex-Taliban anyway -- as the N.A. approached Kabul it got larger and the Taliban got smaller) could have been executed. Seemingly every combatant in an uncontrolled area may be executed summarily, even if it has a de facto government, as well as any guerrilla anywhere.

In any case, repeating myself, the problem with all these arguments is that the Bush administration is applying a rather weak (Quirin) precedent to a very dissimiliar case, and trying to keep alive indefinitely, after the actual war is over, and almost as far you can physically get on the face of the earth from the actual battlefield, a lawless state which is quite unavoidable in the heat of battle or in an unpacified area.

Posted by: Zizka on October 26, 2003 07:38 PM

JW that is a good and reasonable question, and the short answer is I donít know, but Iíll hazard a guess. Things are somewhat convoluted. Having POW status is a substantial privilege, and itís one you get (more or less automatically) for being a member of your country's regular armed forces. This status confers immunity from prosecution for engaging in the legal acts of war. But even as a POW you could be punished for war crimes by a military tribunal. On the other hand, an unprivileged captive (a non-POW) could be prosecuted even for the legal acts of war, and of course war crimes as well. Your rights would be the rights conferred by the rules and procedures of the military tribunal. But hereís the important exception: unlike a POW, a non-privileged captive doesnít necessarily get the same rights a US soldier has under court-marshal. He gets the rights the executive branch of the US gives him. What rights a non-POW captive has under international law is murky. Since Al Qaida is not a country, I suspect they have none.

Posted by: A. Zarkov on October 26, 2003 07:39 PM

A. Zarkov: "In fact, they violated both the letter and spirit of those conditions by hiding in the civilian population, targeting civilians, not carrying their arms openly and not wearing a clearly identifiable insignia".

I actually have seen very little information of any kind about what al Qaeda did while in Afghanistan. (What you say would be true of the hijackers themselves of course.) What you say seems to be assumed by the declaration that they were illegal combatants, but I've never seen any factual basis given (I may have missed it). Al Qaeda certainly was NOT behaving in Afghanistan the way the Quirin accused were behaving in the US (pretending to be Afghans in order to sabotage Afghan targets).

Posted by: Zizka on October 26, 2003 07:44 PM


The US military does have 200 years of case law and the UCMJ to follow plus the precedents of Nuremburg and Tokyo which were handled as tribunals. In terms of rights combatants have the right to a normal military hearing under the Geneva Convention ( with right of appeal)to determine their status as POWs or illegal combatants. That absolutely must be done for the U.S. to be to be in accordance with international law.

However, once they are illegal combatants after a proper judicial process they are truly in dire straits because they are legally beyond Geneva's protections - essentially they are outlaws in the old sense of the term but in practice the UCMJ bars inhumane treatment of prisoners.

In my opinion, barring mitigating circumstances,those found guilty of being terrorists of al Qaida caliber should be dealt with as we would deal with perpetrators of Genocide, Slavery or Piracy - that is mostly execute them and sentence the remainder to long prison terms. What else can you do with a Khalid Sheik Mohammed or an Adolf Eichmann ?

Posted by: mark safranski on October 26, 2003 08:00 PM

Zizka, as I understand the matter, suspected members Al-Qaida are detained and face a military tribunal for acts against the US in various parts of the world including New York and Washington DC, not only in Afghanistan. If we had caught the German saboteurs in Argentina after they blew up the Brooklyn Navy Yard, Ex-Parte Quirin would still apply. In any case, the tribunal would be charged with determining their exact status. As for the Northern Alliance, they might very well qualify as illegal combatants. But do you think that would matter to the Taliban? Do you think the Taliban worries about such things as the Geneva Convention and POW status? How do you imagine the Taliban treats enemy captives? The US is certainly not going take members of the Northern Alliance into custody for being illegal combatants; they are supposed to be on our side. But had they unexpected turned against us, then yes they could become non-POW captives. I donít get your point.

Posted by: A. Zarkov on October 26, 2003 08:09 PM

the question of what to do with an accused mass murderer is the right one. I tend to like a trial: it reinforces the righteousness of the process and by publicizing evidence of the crime neatly limns the alleged evil. a military tribunal explicitly chartered for just and prompt trial like Nuremberg's would have similar merits. indefinite, purposeless detention, however, makes a Stalinist show trial seem viable.

still, all this mouthing of precedent got me to check. in contrast to my spelling, my memory of Quirin was reasonable (with a retraction on the second citizen; his status was unclear). the opinion was indeed written late, not only after the decision itself but, per the article linked below, also after the executions. I'm not a lawyer, but I found the following interesting:
details of the law really aren't my strength, though.

Posted by: wcw on October 27, 2003 12:00 AM

...virtually no country including the United Nations and the United States recognized the Taliban government.

This is irrelevant. They were a de facto government with all that that implies. Just as in the event of China going to war with Taiwan they could not argue that all Taiwanese were illegal combatants simply because they do not recognise the Taipei government.

Similarly many people from many countries went to fight in Spain from 36 to 39. Few today would assert that those who fought on either side were illegal combatants.

The point remains - are those in Guantanamo POW's or criminals?

Posted by: Tadhgin on October 27, 2003 02:59 AM

The Al Qaida captives at Camp X-Ray are neither POWs or civil criminals. Taiwan has an army that conforms to article 4, so they would be POWs even if classified as irregulars. Moreover, many countries do recognize the government of Taiwan unlike the Taliban. Finally the Spanish Civil war took place before the 1949 Geneva Convention. But if (say) the so-called Lincoln Brigades went to Spain to fight as irregulars then they would have to conform to article 4 by todayís standards. If they joined the army of the Republic of Spain then they would automatically be POWs by todayís standards. The status of the government is relevant although some disagree. This is an unsettled area, and thatís why Bush made the Taliban POWs.

Posted by: A. Zarkov on October 27, 2003 08:50 AM

> In my opinion, barring mitigating circumstances,those
> found guilty of being terrorists of al Qaida caliber should be
> dealt with as we would deal with perpetrators of Genocide,
> Slavery or Piracy - that is mostly execute them and sentence
> the remainder to long prison terms. What else can you do
> with a Khalid Sheik Mohammed or an Adolf Eichmann ?

The real oddity here to me is that its clear that we are holding people at X-Ray not so much for the fact that they *were* terrorists but that many of them *could be* useful as informants. In other words, if we could imagine that there would be universal acclaim and support for executing all of them based on evidence currently in hand, I would be very surprised if the US military would do this. What legal support is there for holding prisoners as potential intelligence assets rather than as combatants or murderers or anything else? (Note: I have no idea what the law is here, only some discomfort with the US claiming one thing but really acting out of a different concern entirely.

Posted by: Jonathan King on October 27, 2003 09:49 AM

Irregulars and guerillas are eligible for Geneva Convention protections so long as they * bear arms openly* and are *visibly identifiable* to the enemy and noncombatants alike as *organized combatants* in some rough way.

Terrorists do neither and make use of civilians as shields or wear civilian attire to achieve surprise.

Posted by: mark safranski on October 27, 2003 09:51 AM

At this point nobody has given any factual reasons why the al-Qaeda at Guantanamo were not eligible for Geneva convention rights as described by Mark Safranski. I haven't been diligent about researching it, but I know virtually nothing about who the al-Qaeda at Guantanamo are or what they were doing when captured. For all I know they were interspersed in Taliban units.

As far as I know (not very far) the reason I know so little about the Guantanamo al-Qaeda is that the US government has told no one anything.

Posted by: Zizka on October 27, 2003 11:11 AM

At this point nobody has given any factual reasons why the al-Qaeda at Guantanamo were not eligible for Geneva convention rights as described by Mark Safranski. I haven't been diligent about researching it, but I know virtually nothing about who the al-Qaeda at Guantanamo are or what they were doing when captured. For all I know they were interspersed in Taliban units.

As far as I know (not very far) the reason I know so little about the Guantanamo al-Qaeda is that the US government has told no one anything.

Posted by: Zizka on October 27, 2003 11:16 AM

To answer Zizka's question al Qaida members are not eligible for Geneva protections because that organization does not adhere to the Convention's restrictions regarding intentionally targeting civilians and fighting out of uniform. To claim protection for your members you must follow the rules - you do not even need to be a signatory though that makes your claim stronger - because this is binding international law ( or at least as binding as IL can be )

Organizations may additionally ( though the U.S. has not invoked this precedent yet) be declared guilty en masse of war crimes as the Allies did with the Gestapo, the SS, SD, Totenkopf etc. subjecting any members to judicial action upon capture regardless of their individual behavior.

The operative question legally is whether individual detainees are members of al Qaida or not. Prior to that being determined the detainees have normal procedural rights

( what the Bush administration has done is put off such hearings to garner intelligence and delay irritating the Europeans with executions that would surely result from tribunal trials)

Posted by: mark safranski on October 27, 2003 12:52 PM

To have a Nuremburg-type al-Qaeda/Taliban trial would be fine with me. One of the things I'm objecting to is that it isn't happening. Blaming the Europeans for the lack of trials is a bit tendentious. We've been happy to piss off the Europeans so far.

As I understand, the vast majority of SS were sent home or served short sentences, perhaps wrongly so. The SS was also a chain-of-command organization with a known membership which kept records, and membership and responsibility for acts were not hard to establish.

Al-Qaeda was much more nebulous as I understand, and it is harder to say who was a member or what membership entailed. So different procedures have to be followed in dealing with them.

A course of action has to be figured out, but my reasoned mistrust of Ashcroft and Bush causes me to wish passionately that someone else were doing the job. Because they seem to be willing to use the nebulousness of al-Qaeda as a tool and pretext to spread their net extraordinarily wide and to convict indefinitely large numbers of people of acts they did not even know about.

Posted by: Zizka on October 27, 2003 02:13 PM
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