Not a "terror suspect"
Michael Melia of the Associated Press reports today that:
A U.S. military tribunal convening Monday at Guantanamo will hear challenges from attorneys for a Canadian terror suspect accused of killing an American soldier when he was 15 -- an age they say should disqualify him from trial.Lawyers for Toronto-born Omar Khadr, who is now 21, argue in a motion on the hearings' agenda that the judge would be the first in Western history to preside over a trial for war crimes allegedly committed by a child. ...
Khadr is accused of hurling the grenade that killed Army Sgt. 1st Class Christopher Speer, a Special Forces commando, during a July 2002 firefight at an al-Qaida compound in Afghanistan.
Set aside the whole question of Khadr's age here. Just consider that he is, in the above reports and elsewhere, being referred to as a "terror suspect." And just what act of "terrorism" is he accused of committing? He threw a grenade during a firefight.
This is not complicated. Throwing a grenade at an opposing soldier during a firefight is not "terrorism." That's war.
(Lying troll prophylactic: Spare me the feigned outrage of pretending that this simple tautology is somehow a celebration or defense of Khadr. Nor do you or could you possibly really believe that this self-evident statement is in any way disrespectful of Khadr's victim, the late Sgt. Speer. He was a soldier and he died in battle. Pretending that he wasn't and that he didn't -- pretending, as this tribunal is doing, that he was not a soldier at all, but merely a victim of violent crime -- strikes me as immensely disrespectful.)
Khadr is accused of fighting against American soldiers in battle. That would make him the enemy. It would make him a Bad Guy. But it would not, by any stretch, make him a terrorist. That's not what "terrorist" means, nor is it something that "terrorist" can be twisted into meaning. Omar Khadr is not a terror suspect. He is either a prisoner of war or else he falls into the dubious category of "unlawful enemy combatant," but the tribunal is not accusing him of committing an act of terrorism so let's stop calling him a "terror suspect."
This distinction matters. A grenade in a marketplace is terrorism. A grenade in a firefight is combat. To assert that throwing a grenade during battle is criminal is to assert that all war is a war crime and every soldier is a criminal. I cannot see any way of eliminating that distinction for the enemy without also eliminating it for ourselves and for our allies. That is not something we want to do.
And yet we're already beginning to do just that. This post -- like every post that even hints at the existence of any such rules or distinctions or criteria -- will inevitably produce the complaint that I am arguing that America must fight "with one hand tied behind our back." That phrase -- "I refuse to fight with one hand tied behind my back!" -- is apparently taken from Page 1 of The Nihilist's Rulebook. (Nihilists, of course, shouldn't have a rulebook, but that's another distinction they're proud not to understand.)
To assert that throwing a grenade during battle is criminal is to assert that all war is a war crime and every soldier is a criminal. I cannot see any way of eliminating that distinction for the enemy without also eliminating it for ourselves and for our allies.
Oh, it's easy; Step 1: Eliminate that distinction for the enemy. Step 2: Don't eliminate it for ourselves and our allies. Ta-daa! If anyone argues, ask them why they love terrorists so much.
Posted by:Monkay | Feb 04, 2008 at 08:13 PM
Step 1: Eliminate that distinction for the enemy. Step 2: Don't eliminate it for ourselves and our allies. Ta-daa! If anyone argues, ask them why they love terrorists so much.
Oh yes, that syllogism.
"Religious people don't murder innocents.
"We are religious people.
"Therefore, none of the people we murdered were innocent."
Posted by:Jesurgislac | Feb 04, 2008 at 08:15 PM
Monkey: With logic like that, you could run this country...are you running for president, by any chance?
Posted by:Penelope Millar | Feb 04, 2008 at 08:18 PM
The issue at hand is whether a generic individual who performed the actions that Mr. Khadr performed could be reasonably be charged as he has been. I say yes, everyone else says no.
No, actually the issue at hand is whether or not a generic individual who has performed such-and-such actions should be described as a "terror suspect," (specifically, should he be described as such in a publication) not whether the the charges are applicable.
The actions he actually committed, throwing a grenade at a soldier and planting mines targeting military convoys, have both been practiced by legitimate armed forces as part of war. Since Khadr was not a member of a legitimate armed force, performing those actions constituted war crimes, but not terrorism, regardless of what Khadr thinks about it. Even your "Summary of Evidence Memo" calls them "military operations against U.S. forces." Spying on enemy forces is also a war crime (possibly, in this case), but it isn't terrorism.
The only "terrorism" crime that he is charged with is "providing material support to terrorism" but that doesn't really make him a "terror suspect" either. Providing material support to a murderer does not make me a murderer; providing material support to a thief does not make me a thief. "Material support" has been so broadly defined that it is diluted to meaninglessness.
To summarize, none of the actual actions that Khadr committed can be reasonably described as terrorism. None of the terrorist plots he was allegedly training for seem to have come to fruition. Therefore, he should not be refered to as a "terror suspect." He should be referred to as an "accused war criminal."
Posted by:Lauren | Feb 04, 2008 at 08:47 PM
Jesu, if "throwing a grenadeduring a battle" was all he did, I would agree that he is a POW and not any other special designation. However
Isn't laying land mines (or aiding and abetting the laying of land mines) a genuine act of terrorism. If a 25 year old man had been picked up, and admitted (without torture) that he helped place land mines, wouldn't it be right to call him a "terrorist"?
The granade-tossing is a red herring -- it really shouldn't have anything to do with whether he's charged as a terrorist (or "enemy combatant" or whatever they're calling it this week).
It seems there are multiple questions involved.
1) Is is right to charge a minor (depending on definition of minor -- in many parts of the world, a 15-year-old is considered a full adult) with violating "child soldier laws"?
I would say that 15 might be a bit old to invoke "child soldier laws". These laws are meant to protect children -- 9 or 10 year olds pressed into armies. It would depend on the amount of autonomy that the 15-year-old had.
2)Is it right to torture?
No. Never.
3) Is the making of explosives and laying land mines "terrorism"?
Yes. So is aiding and abetting those crimes.
Posted by:Jeff | Feb 04, 2008 at 09:07 PM
It may get me flamed, but I'm in agreement with Raka here that if it were not a child, but a hypothetical adult in the same situation with the same charges (bracketing illegalities about how said charges were obtained; evidence obtained under duress is inadmissible, not that a military tribunal will care), I would consider a terrorism charge legitimate. I don't think the grenade throwing alone is enough for a terrorism charge, but all the evidence combined is plenty. At the very least, an abetting terrorism charge seems obvious. The translator duties make for a pretty tight abetting case, and planting mines is a more surefire route to an actual terrorism charge (which pretty much requires mass violence of some form, emphasis on the mass) than the silly grenade thing. It's pretty clear from the SoE that the suspect declares himself to have full knowledge of AQ's purpose, so if it were an adult in the same situation, I would say a terrorist charge would make sense.
Really? Please cite the clause of the Geneva Convention where it says that 15-year-old soldiers who throw grenades at enemy soldiers are actually terrorists. I suspect that Raka and I agree that the AQ members in question do not count as 'soldiers' under Geneva (Geneva does not address terrorism, and shouldn't. Its a treaty about conduct in times of war). The sticking point here is that GCIV is very clear on what a 'soldier' is: in "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties", "persons protected by the Convention [are those] who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."
The problem is that AQ is not a party to GCIV, nor is it eligible to be a party to any binding international agreements. It is an NGO, and it's not an NGO that's officially recognized by many states (and none of the important powers), which puts its international legal capital somewhere around zero. ('Officially recognized' is a technical term here, just for clarification's sake.) So since it's not party nor eligible to be party to the Conventions, none of the stuff below that line applies to it. GCIV applies only to disagreements between nation-states. Whether the kid was in uniform is secondary to the fact that he was not actually fighting for an internationally recognized entity. When Raka says "Since I lack the malice or duplicitousness to play those games, I presume that this is your way of agreeing with the prevailing opinion here that says his grenade-throwing was legitimate and sanctioned wartime activity. This opinion appears to run counter to the Geneva Convention", I assume that he is pointing out it's not a 'wartime activity' because the US was not engaged in a war or other armed conflict that the GC would recognize, since one of the actors involved was not a state. That's an analysis with which I would agree (Raka, correct me if I'm putting words in your mouth).
Raka's interesting question after the statement Jesu quoted was whether we think GCIV is correct, and if not, what should be done about it. I personally think that GCIV was correct for its time (just after WWII), but that a new and substantial amendment to the Conventions is needed now. GCIV was not written for wars like the ones fought today, not just by the US, but by any state. It was written for an era of trench warfare and heavy one-on-one combat. It wasn't written for wars fought guerrilla style by all parties, or for wars fought from thousands of miles away by missile. In Africa, there are egregious violations of human rights in war zones that are not violations of the GC because of the same problem I discussed above: one or more of the actors is an extraordinarily well-organized (but not state-sponsored) resistance movement. The 'war' doesn't fall under Geneva, because it falls into the grey area outside of state-vs-state warfare. These non-governmental actors are increasingly common, and I can only foresee them becoming more so. Additionally, the rise of missile power means that there are major armed conflicts fought without a single soldier invading. The current GC fails to provide adequate protection to civilian populations in such cases where WMDs eliminate military targets, but might also be targeted at religious institutions, universities, etc.
So yes, I think it would be appropriate to amend GCIV to reflect reality. Perhaps a solution would be to require Geneva compliance in all cases of armed conflict by a signatory state, regardless of whether the other participant in the conflict was signatory (or legally recognized) or not. That would close the gap of non-state armed resistances, but I haven't though about it too deeply. It might open other issues. Of course, whether you could get enough states to sign to put such a treaty into effect is another matter entirely.
Posted by:Anna | Feb 04, 2008 at 09:16 PM
Ack! Italics away!
Posted by:Anna | Feb 04, 2008 at 09:16 PM
Now?
Posted by:Anna | Feb 04, 2008 at 09:18 PM
planting mines targeting military convoys
Land mines don't "target" anything. Long after the convoys have gone, they lay, until some villager triggers one. 158 countries have prohibited them (not the US, of course, even when given a provision to use them for training).
To my mind, laying land mines are properly considered a terrorist activity.
Posted by:Jeff | Feb 04, 2008 at 09:22 PM
try this!
Posted by:Jeff | Feb 04, 2008 at 09:22 PM
Isn't laying land mines (or aiding and abetting the laying of land mines) a genuine act of terrorism.[?] If a 25 year old man had been picked up, and admitted (without torture) that he helped place land mines, wouldn't it be right to call him a "terrorist"?
Why? Land mines were used by the US in Vietnam, by the Soviets in Afganistan, by all sides in WWII. Just because they are now outlawed does not mean they have not been a legitimate method of waging war. The treaties outlawing land-mines pre-date the War on Adjectives, and have nothing to do with terrorism.
Land mines are nothing more than a type of explosive with a particular trigger. Like all explosives, they have a potential to cause "collateral damage" but that does not automatically make all explosives terrorism. Causing an explosion in an area frequented by civilians is terrorism, causing an explosion in an area frequented by the enemy is war. It doesn't matter if the explosion is caused by a grenade, a mine, or an air strike. As it said in the charges, Khadr and AQ specifically targeted a road used by US convoys. Attacking it was no more an act of terrorism than it is when US forces attack a building that contains a mix of combatants and non-combatants.
Posted by:Lauren | Feb 04, 2008 at 09:41 PM
And the answer - he threw a grenade during a firefight - is no: if this is terrorism, the soldiers who attacked Omar Khadr were also terrorists and also ought to be up on the same charges.
Which government was Khadr fighting for? Canada? Afghanistan? Because Canada is not currently at war with the United States and no Afghan government has been recognized since before the Soviet-Afghan War. And al Qaeda is not a state actor and I can't find anywhere that allows organized resistances the same rights under the Geneva protocols. I think that they should have them as the protocols should be rewritten, but I don't believe that they currently do.
To my mind, laying land mines are properly considered a terrorist activity.
Yeah, especially when anytime someone proposes that the countries that lay landmines remove them after the conflict is long over with you get a lot of bitching and moaning. I guess the lives of Cambodians, Angolans, Namibians, et al don't really matter.
I would say that 15 might be a bit old to invoke "child soldier laws". These laws are meant to protect children -- 9 or 10 year olds pressed into armies.
No they're not. The Optional Protocol on the Convention of Child's Rights sets the line at 18, and the Convention itself prohibits non-governmental organizations (which al Qaeda is) from recruiting persons below the age of 18 for any military purpose. The European Union and the African Union also agree on setting the line at 18. And, to be honest, setting the line at 9 or 10 years old is a really shitty idea anyway for a number of reasons, the first of which is that most people don't become fully mature until at least 25 anyway.
Posted by:Drak Pope | Feb 04, 2008 at 09:43 PM
Ah, thank you Jeff! What did you do to turn them off? I tried just adding a < /i> tag first, then when that failed I added a < i> < /i> empty tag. When neither worked, I waited for someone wiser than I!
Posted by:Anna | Feb 04, 2008 at 09:51 PM
Which government was Khadr fighting for? Canada? Afghanistan? Because Canada is not currently at war with the United States and no Afghan government has been recognized since before the Soviet-Afghan War. -Drak
Perhaps the US should just retroactively un-recognize every government in the world, and then all their soldiers will be terrorists. China doesn't recognize the statehood of Taiwan, but I think the US would defend the right of Taiwanese soldiers to defend themselves against a Chinese invasion.
And anyway, the issue under consideration is terrorism not unlawful combat. Not all unlawful combatants are terrorists.
Posted by:Lauren | Feb 04, 2008 at 09:57 PM
Jesurgislac: As usual, I can't tell whether you're being deliberately obfuscatory or if you're just skimming instead of carefully reading. The grenade has almost nothing to do with the "material support to terrorism" charge. Active membership in an official al-Qaida cell and non-trivial participation in violent al-Qaida missions form the core of that charge. As for trusting the evidence provided by the government-- yes, when neither the defendant nor his attorneys contest or dispute the facts as presented, I figure there's at least a kernel of accuracy there. Same goes for my belief that the information was not extracted through torture. The defense team acknowledges the information and cites the torture; it would be more than a little negligent for them to omit a causal connection between the two if one existed.
As Anna says, if you aren't a member of the legitamate belligerent classes included in the Geneva Convention, then you aren't covered by its provisions. Those classes aren't ridiculously limiting-- they acknowledge the legitimacy of militias, irregular forces, and even "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." You want a cite, look at Article 4 of GCIII. If you wish to claim that Khadr falls under Article 4, go ahead-- I'm not a lawyer, you might very well be right. If you wish to claim that Article 4 is excessively vague, restrictive, or unjust, that's fine too. I happen to agree, though I don't have any solutions or improvements to suggest. But acting like I'm a deranged torture apologist because I believe that attacks on soldiers aren't universally legally sanctioned-- that's both ignorant and insulting.
Posted by:Raka | Feb 04, 2008 at 10:13 PM
the hey? Lauren, no fair sneaking italics tags at the end of your comments!
Posted by:Raka | Feb 04, 2008 at 10:16 PM
Lauren: actually the issue at hand is whether or not a generic individual who has performed such-and-such actions should be described as a "terror suspect,"
Hey, wow. Arguing on the substance and merits of the topic, rather than hyperbolic accusations and misinterpretations. How refreshing.
The actions he actually committed... constituted war crimes, but not terrorism
Agreed, and because of it even if found guilty I would argue against calling him a terrorist (even assuming he were an adult, which is the subsequently unspoken qualifier to pretty much everything). "Terror suspect" might get a pass as technically true, as he is suspected of involvement with terrorism, but that's serious hair-splitting and definitely misleading.
Providing material support to a murderer does not make me a murderer; providing material support to a thief does not make me a thief
Agreed, but it does make you an accessory to the crime, which is a crime in and of itself. There is a legal distinction between committing acts of terrorism and providing material support. He was charged with the lesser crime.
"Material support" has been so broadly defined that it is diluted to meaninglessness.
Agreed again, and I oppose several convictions based on that vagueness. On the other hand, I don't believe it's an inherently invalid category, and Khadr's actions and participation do fit my personal criteria for actual conviction-worthy "material support". But they are personal criteria, and I don't have any strong arguments to oppose anyone else's criteria unless they are dramatically more broad (as they are now) or narrow. So I guess my disagreement is pretty meaningless here.
Therefore, he should not be refered to as a "terror suspect." He should be referred to as an "accused war criminal."
A conclusion I agree with as well, both on rhetorical grounds and because I believe that the "terror" term carries an inappropriate emotional and legal weight. He's got enough going against getting a fair trial already without hanging that millstone around his neck.
Posted by:Raka | Feb 04, 2008 at 10:38 PM
Perhaps the US should just retroactively un-recognize every government in the world, and then all their soldiers will be terrorists. China doesn't recognize the statehood of Taiwan, but I think the US would defend the right of Taiwanese soldiers to defend themselves against a Chinese invasion.
That's a pretty good point, actually, although I have to note that just because the US might defend the right of Taiwan doesn't mean that they would extend that recognition to people that they hate. See, the problem with international law is that only poor countries really have to pay attention to it. Other countries can lawyer their way with it, reinterpreting and reimagining the terms in the most convenient way possible and disregarding any provision that doesn't allow them to do whatever they want. To a similar extent the recent presidential administrations have done the same thing with federal laws, and it's just as harmful in my opinion.
Oh, and for the LOVE OF GOD IF YOU PEOPLE CAN'T USE ITALICS RIGHT THEN STOP USING THEM!!! JESUS CHRIST!!!!
Posted by:Drak Pope | Feb 04, 2008 at 10:46 PM
One for all the people who think Khadr (and specifically, anyone else chucking grenades in a firefight) should be a POW: let's put aside (for the moment) the considerations about protecting civilians from the consequences of unrestricted irregular warfare. POWs are not guilty of any crime. Barring prisoner exchanges or early release or other deals, they are held for the duration of the conflict and then released back to their sponsor power (or whatever entity inherited the mantle of that power).
When do we release Random Q. Insurgent? When Terrorland surrenders? When we leave whatever nation we captured him in? What percentage of our forces must be gone to define "leaving"? When the nation goes 30 days without an insurgent-related fatality? When his local cell surrenders? Or its parent organization, which may or may not have connections other than name to his cell? Does it count if the leader and 10% of the organization surrender, but the other 90% form a new group with a new name?
Wouldn't properly conducted criminal proceedings be a more fair and less arbitrary way to handle these matters? That's purely hypothetical, since our indefinite detention without trial, tribunals without right to challenge (or sometimes see) evidence, lack of legal representation, and severe mistreatment of detainees isn't even within shouting distance of "properly conducted" criminal proceedings. But isn't that a preferable goal to "everybody's a POW, and... somebody will probably figure out what to do with POWs without a sponsor. Eventually."?
Posted by:Raka | Feb 04, 2008 at 10:52 PM
Perhaps the US should just retroactively un-recognize every government in the world, and then all their soldiers will be terrorists. China doesn't recognize the statehood of Taiwan, but I think the US would defend the right of Taiwanese soldiers to defend themselves against a Chinese invasion.
Actually, it's a silly point. Non-recognition of a government means that "a non-recognizing government may not acknowledge that any legal significance flows from the acts of the non-recognized government" (quoting the U Chicago Law Review here). That means they don't make treaties, trade agreements, extradition claims or agreements, citizenship transfers, don't recognize claims for or against the non-recognized nation in a court of law, etc. Refusal to recognize every government would turn the US into a diplomatic black hole: all diplomacy would instantly cease.
As for the China question, the US would officially claim that any Chinese action in Taiwan was a civil war, not an invasion. We don't recognize an official government for Taiwan. While we might tacitly support the Taiwanese (we're selling weapons to them now), tacit is probably about as far as that support would go. The US isn't too interested in getting on China's bad side.
Posted by:Anna | Feb 04, 2008 at 11:16 PM
for the LOVE OF GOD IF YOU PEOPLE CAN'T USE ITALICS RIGHT THEN STOP USING THEM!!! JESUS CHRIST!!!!
SLACKTIVIST CONVENTIONS: Protocol for the Prohibition of the Use in Comments of Hidden, Open, and Obnoxious Formatting Tags
Seriously, I don't really know how that happened. It's pretty sneaky, though.
I think Raka and I are pretty much in agreement, regarding the theoretical status of a person exactly like Khadr except 4 years older.
As far as POW status goes, yes, fair and properly conducted criminal proceedings would be preferable.
I may not have a good grasp on the sequence of events, but I think the impetus to classify al Qaeda members as POWs came after the Bush administration decided they didn't want to try them in US Courts. If they had put them on trial in the first place, we wouldn't be having this discussion.
I'm not sure that would help with Khadr, though. Who has jurisdiction if a US soldier is murdered on foreign soil? Wouldn't it be the host nation's court that tries the killer, unless the crime occurred on a base or embassy grounds?
Posted by:Lauren | Feb 05, 2008 at 12:48 AM
'That's purely hypothetical, since our indefinite detention without trial, tribunals without right to challenge (or sometimes see) evidence, lack of legal representation, and severe mistreatment of detainees isn't even within shouting distance of "properly conducted" criminal proceedings. But isn't that a preferable goal to "everybody's a POW, and... somebody will probably figure out what to do with POWs without a sponsor. Eventually."?'
I see you are getting closer, and have replaced 'POW' with 'detainee.' Because after all, if POWs were treated that way, it would be illegal, and not only according to international treaties. So, again, lucky that America isn't holding any POWs, isn't it?
You admit that America's treatment of a number of people, captured in combat situations, has little to do with the supposed international conventions which supposedly have the force of law.
Of course, by now suggesting that how we treat 'detainees' could at least be potentially better than what would happen if they were classified as POWs, you still seem to be missing the point. And let us not forget that this 15 year was not the only child in American 'custody.'
Keep reading - there is a wealth of fascinating information about America's actual practices in how it is conducting a war against a noun.
Then you may want to read about certain war crime tribunals, and what they said about waging offensive war. There are a number of Americans who are unlikely to be visiting Germany in the future, since at least the Germans remember those verdicts. After all, it is a part of their history. Though certain elements of the German political spectrum (ironically, among them the Republikaner) call those verdicts 'Siegerjustiz' - that is, the justifications of a war's victors, imposed on the defeated.
We live in a strange world where a Nazi based criticism of how nation states act appears to be clear sighted realism when viewing American exceptionalism as practiced in the 21st Century.
Which is something to be ashamed of, as an American citizen.
Posted by:not_scottbot | Feb 05, 2008 at 01:04 AM
Actually, reading over the points in the memo, it does seem that the only difference between Khadr and a US soldier is that the US soldier wears a uniform:
- He threw a grenade and killed a US soldier during a battle. Not on the street, or throwing it into a tent, but a battle.
- He went to training camp, aka basic training
- He worked as a translator coordinating military operations, in this case planting land mines
- He participated in what the US describes as "military operations against US forces."
Given that al Qaeda was working closely with the government of Afghanistan, the Taliban, it's hard to claim his actions as "terrorist" actions and not the actions of a partisan or resistance fighter. Which brings us back to the winners writing history -- if the US wins, he's a terrorist. If the Taliban wins, he's a patriot.
Posted by:Mnemosyne | Feb 05, 2008 at 03:15 AM
Jeff: Isn't laying land mines (or aiding and abetting the laying of land mines) a genuine act of terrorism.
You're right, I agree: the US military is a terrorist organisation and everyone who has aided and abetted the laying of landmines is a terrorist. That's right up to George W. Bush, by the way.
The problem with this kind of argument is that it makes words like "terrorist" without useful meaning. If it is a terrorist act to aid and abet the laying of landmines, every pilot who ever dropped cluster bombs on Iraq or Afghanistan is a terrorist. Landmines are a terror weapon, more likely to kill civilians than military: cluster bombs in particular are known to be a high risk to children, because they are small, light, and plastic, not shiny metal. I loathe and reject their use. But I wouldn't argue that by using them the US and UK military have become terrorists, because I see "terrorist" as having a useful meaning: the US and the UK military are guilty of targeting civilians, but terrorism has a separate meaning from military activity.
Raka: As Anna says, if you aren't a member of the legitamate belligerent classes included in the Geneva Convention, then you aren't covered by its provisions. Those classes aren't ridiculously limiting-- they acknowledge the legitimacy of militias, irregular forces, and even "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."
Nope, you're both wrong: Article 5 says clearly that every prisoner captured is covered by the Geneva Conventions, until a properly constituted tribunal has established that each prisoner about whom there is doubt as whether they are covered by Article 4, can have their status established: either they are a PoW under Article 4, or they are covered by the other Geneva Convention on civilians in time of warfare - have they committed what would be understood to be a crime, rather than an act of war?
As the US has never mustered any such tribunals (and the time to do this was six years ago) every prisoner the US has ever captured on the battlefield is entitled to the protection of one Geneva Convention: those whom the US has taken in exchange for a bounty or had kidnapped by local forces or kidnapped itself via the CIA, is entitled to the protection of the other Geneva Convention. They're either PoWs or they're criminals. If Omar Khadr is a PoW, he was entitled to all the rights of a PoW, which he did not receive: if he was a civilian who had been accused of a crime, he was entitled to a fair trial for the crimes which the US has asserted he committed. The same applies to all the other detainees in Guantanamo Bay and other oubliettes.
Posted by:Jesurgislac | Feb 05, 2008 at 04:26 AM
Lauren: Not all unlawful combatants are terrorists.
"Unlawful combatant" is an invented American term, meaning, as far as I can tell, "Someone living in a country the US invaded who didn't realize that after Vietnam, military success against the US is a crime."
Posted by:Jesurgislac | Feb 05, 2008 at 04:33 AM
Lauren: As far as POW status goes, yes, fair and properly conducted criminal proceedings would be preferable.
I may not have a good grasp on the sequence of events, but I think the impetus to classify al Qaeda members as POWs came after the Bush administration decided they didn't want to try them in US Courts. If they had put them on trial in the first place, we wouldn't be having this discussion.
You don't have a good grasp of the sequence of events, but to be fair, it's been obfusticated to an extreme degree.
0n 10th January 2002, the first shipment of prisoners left Kandahar, to Guantanamo Bay. These 20 prisoners had been designated "Al-Qaeda or Taleban suspects".
I don't believe that it's ever been made public who these first 20 were, but we know, in general terms, who was initially sent to Guantanamo Bay from Afghanistan:
1. Men who had been captured on the battlefield fighting against the US Army or the Northern Alliance (those that survived - many did not: see Mazar-i-Sharif.
2. Men who were turned in to US forces for the bounty, after the US announced that they would pay for "al-Qaeda or Taliban" prisoners, and it became clear that the US required no evidence that the person being handed over was al-Qaeda or Taliban: any foreigner would do for al-Qaeda, any Afghan would do for Taliban.
3. Men who were kidnapped by authorities operating in Afghanistan or Pakistan because it was alleged by someone, often on limited or no evidence, that they were al-Qaeda.
In January 2002, I was certainly under the impression - I think most people were - that some filtering had been done in Afghanistan. But, from personal accounts of prisoners who were later released - all the British citizens who were held in Guantanamo Bay were finally released, some after years of imprisonment - it became clear that the US had no process in train to examine the people they were holding to discover if they were al-Qaeda: as far as their subjects can determine, the US military believed that if a man had been handed over to them as Taliban or al-Qaeda, that was what he was. No tribunals were in operation: no standard had been set up to establish who would be entitled to be considered a PoW and who would not.
I recall public statements by US authorities, which now sound much more suspicious than they did then, about the "difficulty" they envisaged of dealing with "illegal combatants" where the US government did not recognise the government of the country these men would be fighting for. No mention was made then of the "illegal combatants" not wearing a uniform, since the US allies, the Northern Alliance, wouldn't be wearing uniforms either and would therefore by that standard also be "illegal combatants".
As with the mess in Iraq, the US military/the Bush administration did so much so wrong that it's almost hard to believe they didn't plan the whole thing for some unknown motive. But unlike the mess in Iraq, where there was a clear profit motive, there is no motive I can see for doing so much, so wrong, with the hundreds of prisoners from Afghanistan. The Geneva Convention clearly required that each prisoner should be examined by a competent tribunal and their status determined: had the US followed through on this, they could have saved themselves considerable embarassment and expense from the very beginning - should an ordinary footsoldier who happened to have taken up arms for the Taliban and not the Northern Alliance be treated as if he were a high-ranking member of the Taliban and a threat to public safety? Er, no. Should people who had just been handed over to the US forces be accepted as "Taliban" or "al-Qaeda" just on the say-so of those who handed them over and accepted the bounty? Er. No.
The problem, Lauren, is not that there was a "rush" to classify as PoWs al-Qaeda members whom the US didn't want to bring to trial. The problem exists because there was a rush by the US to classify as al-Qaeda or Taliban men against whom, at worst, there was evidence they had fought against the US and who were therefore PoWs: and against whom, frequently, there was no evidence at all - not even that they had ever fought against the US.
The muddle and the rush you need to look at is what was happening in October-December 2001, not what happened to the prisoners once they reached Guantanamo Bay.
What I want to know is: was this deliberate or accidental? Did the Bush administration want an excuse to build a prison camp/oubliette/gulag (call it what you will) and round up these prisoners from Afghanistan and Pakistan in order to be able to build that prison camp - to which they could then ship prisoners from all sorts of places, not only from Afghanistan?
Or was the whole thing just a classic stupid muddle with evil consequences?
Posted by:Jesurgislac | Feb 05, 2008 at 07:01 AM
Therefore, he should not be refered to as a "terror suspect." He should be referred to as an "accused war criminal."
Just to quibble, but shouldn't that be "a person suspected/accused of war crimes"? Or possibly "an alleged war criminal". For some semantic reason, "accused" as an adjective does not cast doubt on the truth of its noun.
Posted by:Rosina | Feb 05, 2008 at 08:04 AM
But unlike the mess in Iraq, where there was a clear profit motive,
Can you describe the exact profit motive? Was it to reward the Administration's friends and supporters in contract firms like Haliburton and Blackwater? Was it to create instability in oil prices so the Administration's friends and supporters in the oil industry would benefit?
Sometimes I suspect the cause was the neocons' naive idealism about spreading democracy through the Middle East. Other times I suspect that Bush is a PMDer who hoped that the invasion would jump-start the events in Revelation. The new U.S. Embassy in Baghdad seems uncomfortably like the New Babylon in LB.
Posted by:Tonio | Feb 05, 2008 at 09:23 AM
Tonio: Can you describe the exact profit motive? Was it to reward the Administration's friends and supporters in contract firms like Haliburton and Blackwater? Was it to create instability in oil prices so the Administration's friends and supporters in the oil industry would benefit?
I can't describe the exact profit motive, but:
Prior to the invasion/occupation of Iraq, it seemed to be being assumed by the Bush administration that the chief problem was to be the US army beating the Iraqi army, after which the US would start reconstructing Iraq. Whether this was real delusion on the part of the Bush administration, "I want it so it must be so!", or whether their intent was to create a chaotic failed state so that the oil under Iraq would be inaccessible for a generation at least, is an important but currently unanswerable question.
What they did, in either event, was to line up about half a dozen American companies who were to "reconstruct Iraq" - that is, the Bush administration decided that the funds available, some of which had been voted by Congress and some of which belonged to the people of Iraq, ought primarily to go to US companies, who would use the money to pay US workers to come to Iraq. This was, of course, an awesome waste of public funds - had the rule been in place that each dollar was to go to an Iraqi company, it would have provided value three times over (in the reconstruction, in the improvement of Iraq's economy, in the public image of the US occupation) but it was extremely profitable to the US companies who were guaranteed a succession of big projects in Iraq. All of the US companies were huge Republican donors, of course.
If we assume the Bush administration were sincerely deluded - and I can't help feeling that some at least of them must have been - a key reason for invading/occupying Iraq was to start an economic boom that would be highly profitable to US companies. The idea was, as openly discussed by Republicans before the invasion, and hastily dropped afterwards as it became clear it just wasn't going to happen, that though the US would need to provide initial funding to get going on these reconstruction projects, the oil industry would be back on track, safely under the control of the US government, pumping out black dollars which could be used to pay US companies to work in Iraq. Meantime, every nationalized Iraqi industry was to be sold off to the highest bidder
and this would, according to the best conservative/libertarian theory, further stimulate the economy. The plan, back in 2002/2003, was that the invasion/occupation of Iraq was going to be living vibrant proof that conservative theories about the economy were correct: cut taxes, remove nationalization, add free enterprise, who needs democracy?
None of this was a secret: I remember reading about this in contemporary news reports. There was even a discussion about whether it would be better to have Iraqi cellphones using the North American standard instead of the global standard, because if Iraqi cellphone companies were allowed to remain on the global standard it would mean that US cellphone companies would be blocked from expanding into Iraq.
None of this worked, of course, and the attempt led to chaos: but it's still a question, to my mind, if the senior echelons in the Bush administration knew it wouldn't work and wanted chaos, or thought it could work, and decided to act as if it would. I suppose they may even have thought it a win-win situation: a state in chaos was useful in one way, a state booming with libertarian free enterprise was useful in another.
Posted by:Jesurgislac | Feb 05, 2008 at 09:59 AM
I'm not entirely how this works or if I'm just imagining a correlation based on extremely limited and statistically insignificant evidence, but I've run in to a lot of (specifically fundigelical) Christians who seem susceptible to falling for pyramid schemes (or "multi-level marketing," as it's euphemistically referred for un-scariness to the uninitiated). - Geds
Mentally divides friends and relatives into evangelical and non-evangelical.
Mentally divides friends and relatives into those who have and have not participated in a multi-level marketing scheme promising fantastic wealth and eternal glory.
Cross-correlates. Checks for statistical significance....
Yup! Spot on!
Geds, have you extended your thoughts to include what happens when a pyramid-schemer drops out, as often happens due to financial/ emotional exhaustion? Do they learn from their experience, develop a healthy skepticism and a bit of wordly wisdom, that also transfers to their opinion towards fundigelical religion? What I've noticed is that they do get a bit quieter. :-)
I realize that you are working the fundigelical==Amway analogy, but it's worth noting that some of these marketing schemes are more benign, really not much more than reasons to get a group of friends together and buy innocuous stuff. Surely there is a religious parallel there, too.
*goes back to checking stock investments*
Posted by:Dorothy | Feb 05, 2008 at 10:05 AM
Years ago I sat in on an Excel Communications presentation with a couple of friends. The pyramid aspects were screamingly obvious.
I know that Amway was founded by fundigelicals, so I had assumed that they had simply copied the marketing scheme from their religion, perhaps unintentionally.
Posted by:Tonio | Feb 05, 2008 at 10:37 AM
... really not much more than reasons to get a group of friends together and buy innocuous stuff.
"Pure Romance" [/NSFW]
Sometimes not so innocuous.
Posted by:Lauren | Feb 05, 2008 at 10:42 AM
fundigelical==Amway
Ah, double equal signs...what type of code do you write?
Posted by:Tonio | Feb 05, 2008 at 10:43 AM
A bit of C++, ages ago, under duress.
Posted by:Dorothy | Feb 05, 2008 at 10:54 AM
What did you do to turn them off?
I used 2 [/i] tags. I figured one of them would work!
What's odd is that my post before didn't show italics on, or I would have done it then...
Posted by:Jeff | Feb 05, 2008 at 11:14 AM
Jesurgislac: Nope, you're both wrong...
I love that you say this, and go on to "correct" us by paraphrasing what we've both been saying the whole time.
either they are a PoW under Article 4, or they are covered by the other Geneva Convention on civilians in time of warfare...
Exactly. If they are civilians, then they do NOT receive immunity from prosecution for violent acts. Exactly who carries out that prosecution (and how) is then a matter between the capturing nation, any nations in which the suspect can claim citizenship, and the nation in which the capture took place; there are no universal (or relatively universal) international laws governing such matters. Yes, of course all prisoners are "covered" by the Geneva conventions; no matter what they've done, we can't use nerve gas on them, for instance.
As the US has never mustered any such tribunals (and the time to do this was six years ago)...
I don't disagree with anything you say in the last paragraph. The only thing more shameful than our behavior is the apathy and outright encouragement with which the electorate has responded. Brutal, murderous thuggishness is bad enough, but the way the public reaction is trending makes me fear that there is worse yet to come.
"Unlawful combatant" is an invented American term, meaning, as far as I can tell, "Someone living in a country the US invaded who didn't realize that after Vietnam, military success against the US is a crime."
Ha, ha. Article 4 does not provide a particular term for people "having committed a belligerent act and having fallen into the hands of the enemy" but who do not "belong to any of the categories enumerated in Article 4". But when one defines set A, set not-A is implicitly created even if it's not explicitly named. "Unlawful combatant" is a perfectly reasonable term for an important category that needs better definition and official recognition to provide clear consequences for miscarriages of justice such as we've seen in the last six years.
Posted by:Raka | Feb 05, 2008 at 11:24 AM
I used 2 [/i] tags. I figured one of them would work!
Yes, usually the problem is someone is typing the tags manually and forgets the closing tag. I've done that once or twice. Can this site be configured to run all posts through HTML Tidy or an equivalent to close any dangling tags?
Posted by:Tonio | Feb 05, 2008 at 11:28 AM
Jesurgislac:
I'm not sure your sequence of events is significantly different from mine. First, the Bush administration threw some people into the oubliette. (Thank you for introducing me to this word! I'm going to start using it in conversation at all possible opportunities, as soon as I figure out how to pronounce it.) Whether they were legitimate terrorists or not is an important question that I hope we someday have the answer to, though I suspect we never will.
But the question of the prisoners' guilt or innocence, or the motive for arresting them, does not have any impact on their legal rights. Setting that aside for the time being, the Bush administration was holding these people, and eventually the public started to notice. The ACLU et. al. started raising a fuss, saying that the detainees needed to be charged with crimes and given access to lawyers and generally provided all the rights that we accord even our most heinous criminals because we are such great people (and if I say it enough maybe I'll start to believe it again...)
The Bush administration countered that the detainees didn't have the right to be tried in US courts because they weren't Americans accused of crimes, they were foreigners accused of unlawful combat. And then the ACLU et. al. said, "Well, if they aren't criminals, treat them like POWs."
And of course the Bush administration said no to that, too, but if they operated within the legal system in the first place, nobody would have brought up the POW issue. The Afganistan conflict was over so fast that traditional POWs would have been repatriated long ago.
Posted by:Lauren | Feb 05, 2008 at 11:47 AM
The point I was trying to get at was that POWs cannot be held in secret, incommunicado. The ACLU et. al., by suggesting the detainees might be considered POWs, was trying to get them some contact with the outside world. Until they had access to the outside world, none of us would know what conditions they were being held under. If they had lawyers to start with, as they should have, then the detainees would have been able to tell everybody how they had been treated.
Posted by:Lauren | Feb 05, 2008 at 11:59 AM
Raka: Ha, ha. Article 4 does not provide a particular term for people "having committed a belligerent act and having fallen into the hands of the enemy" but who do not "belong to any of the categories enumerated in Article 4". But when one defines set A, set not-A is implicitly created even if it's not explicitly named.
It is explicitly named: civilian.
Lauren: First, the Bush administration threw some people into the oubliette. (Thank you for introducing me to this word! I'm going to start using it in conversation at all possible opportunities, as soon as I figure out how to pronounce it.) Whether they were legitimate terrorists or not is an important question that I hope we someday have the answer to, though I suspect we never will.
Oh, for crying out loud. We do have the answer to that question. Well, we already do for a large number of the people that the Bush administration sent to Guantanamo Bay, and there's no reason to suppose that we won't someday also have the answer for the remainder of the people that the Bush administration sent there. It's just not an answer that the Bush administration is prepared to accept, which is why they're still there.
And of course the Bush administration said no to that, too, but if they operated within the legal system in the first place, nobody would have brought up the POW issue.
If the Bush administration had operated within the legal system in the first place, the Bush administration would have brought up the PoW issue. They would have had to, because according to their own claims about the prisoners they were holding (that they were all "taken on the battlefield") all of the prisoners they were holding were PoWs.
Posted by:Jesurgislac | Feb 05, 2008 at 12:03 PM
Lauren: The point I was trying to get at was that POWs cannot be held in secret, incommunicado.
Yes, indeed. That the US were attempting to hold their PoWs incommunicado was my first clue, in February 2002 or thereabouts, that the US were intending to operate outside the legal system. The order of events was that the US were claiming they didn't have to treat their PoWs as PoWs because they didn't "count" as PoWs because they didn't fall under Article 4, even though the Geneva Convention clearly stated that all detainees were covered under Article 4 until properly constituted tribunals had established that they didn't. Since no such tribunals were constituted, every single detainee in Guantanamo Bay who was "taken on the battlefield" is legally a prisoner of war, then, still, and now. Every single detainee in Guantanamo Bay who was not "taken on the battlefield" is a kidnap victim of the US, detained unlawfully.
Some of those PoWs and kidnap victims in Guantanamo Bay might, if the US had troubled itself to follow legal procedures years earlier, have been found guilty of criminal acts. It's too late now: torture and extra-judicial detention have so muddied the waters that it would be impossible to carry out a proper trial of any who might be guilty. The only thing left to the US after the Bush administration leaves power is to release each detainee in the country of their choice (if no country of their choice is willing to receive them, they will have to be released in the US, of course: that's owed them) with appropriate compensation.
Posted by:Jesurgislac | Feb 05, 2008 at 12:12 PM
Lauren: First, ...Whether they were legitimate terrorists or not is an important question that I hope we someday have the answer to, though I suspect we never will.
Oh, for crying out loud. We do have the answer to that question. Well, we already do for a large number of the people that the Bush administration sent to Guantanamo Bay, and there's no reason to suppose that we won't someday also have the answer for the remainder of the people that the Bush administration sent there. It's just not an answer that the Bush administration is prepared to accept, which is why they're still there. --Jesu
I think you have a tremendous amount of faith in the record-keeping of the Bush administration. I predict when people go looking for answers, they will find the records are missing, the tapes are destroyed, and all the witnesses will be unable to recall, protected from criminal prosecution by their 11th-hour pardons. But hey, I could be wrong.
Posted by:Lauren | Feb 05, 2008 at 12:32 PM
They would have had to, because according to their own claims about the prisoners they were holding (that they were all "taken on the battlefield") all of the prisoners they were holding were PoWs.
That's not strictly true. A civilian, in plain dress, who is not a member of any organized (even ad-hoc) militia, has no right to take hostile action against even an invading army. Said civilian would be guilty of the vaguely defined crime of "unlawful combat," which in domestic terms would probably be "attempted murder."
Some prisoners[1] in the oubliette are quite likely genuine "unlawful combatants." Some, Kadhr included notwithstanding his age, are probably genuine POWs. POWs have not done anything illegal -- their actions in combat are explicitly not a crime, provided they do not commit war crimes.
That said, US policy fails on several counts:
The POW/not-POW issue is really the minor one. Under international theory, if prisoners are not POWs then the armed forces have arrested them for some crime. They are then entitled to the full protections of due process. The oubliette is a travesty on every level.
[1] -- Prisoners, not detainees. "Detainees" is Orwellian doublethink to avoid niggling little questions like "humane treatment" and "due process." Not that Jesu used detainees everywhere, but I cringe every time I see the word in the media.
[2] -- that said, there have been legitimate attempts by Congress to suspend habeas corpus at the oubliette. The effect of such is questionable, since the military has effectively restricted the prisoners' access to the courts enough that they cannot challenge anything.
Posted by:Majromax | Feb 05, 2008 at 12:38 PM
ought primarily to go to US companies, who would use the money to pay US workers to come to Iraq.
Only high-level contractors and
mercenaries "security contractors" came from the US. Low-level workers came from wherever rates are cheapest. Just as US corporations do whenever they can.===========================
...saying that the detainees needed to be charged with crimes and given access to lawyers and generally provided all the rights that we accord even our most heinous criminals because we are such great people
You know what gets me? We can try a guy like John Gotti (who was worse and more dangerous than any single "enemy combatant") in open court, with all the rights allowed every citizen. No special prison, no special "tribunal". The guy died in prison, convicted of 13 murders.
If we can try John Gotti, why the heck can't we try ANYONE??!!
Posted by:Jeff | Feb 05, 2008 at 01:13 PM
Let's try that again:
Only high-level contractors and
mercenaries"security contractors" came from the US. Low-level workers came from wherever rates are cheapest. Just as US corporations do whenever they can.===========================
...saying that the detainees needed to be charged with crimes and given access to lawyers and generally provided all the rights that we accord even our most heinous criminals because we are such great people
You know what gets me? We can try a guy like John Gotti (who was worse and more dangerous than any single "enemy combatant") in open court, with all the rights allowed every citizen. No special prison, no special "tribunal". The guy died in prison, convicted of 13 murders.
If we can try John Gotti, why the heck can't we try ANYONE??!!
Posted by: | Feb 05, 2008 at 01:15 PM
strike-outs or remembered info -- take your pick!
Man, I loooooooove Typepad!
Posted by:Jeff | Feb 05, 2008 at 01:21 PM
That's not strictly true. A civilian, in plain dress, who is not a member of any organized (even ad-hoc) militia, has no right to take hostile action against even an invading army. Said civilian would be guilty of the vaguely defined crime of "unlawful combat," which in domestic terms would probably be "attempted murder." -Majromax
Not so, as has been mentioned earlier:
Lawful combatants include: Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Posted by:Lauren | Feb 05, 2008 at 01:25 PM
I wonder that no-one has referenced ObWi in light of this conversation.
Why We have Trials
From the NYT (h/t CharleyCarp):
This was one of the "most dangerous" that we were holding in our Gulag. Way to go, Bushie!
Posted by:Jeff | Feb 05, 2008 at 01:55 PM
Lauren: I think you have a tremendous amount of faith in the record-keeping of the Bush administration. I predict when people go looking for answers, they will find the records are missing, the tapes are destroyed, and all the witnesses will be unable to recall, protected from criminal prosecution by their 11th-hour pardons. But hey, I could be wrong.
You should add: and every single witness unexpectedly dead. Unless the Bush administration plans to terminate its record-keeping by killing all their prisoners and all their guards, there will remain witnesses who can testify. Your assertion that we couldn't know the status of the PoWs and kidnap victims taken to Guantanamo Bay kind of missed the point that we already know the status of many of them. We also know that the Bush administration has, after years, not managed to find enough evidence against even one of them to bring that one to trial. Not one.
I did say you were confused about the order of events. Back when the Bush administration seemed to think they could secure a conviction, they were making noises about trying some of them. They dropped that idea sometime in 2003.
Posted by:Jesurgislac | Feb 05, 2008 at 02:31 PM
You should add: and every single witness unexpectedly dead. Unless the Bush administration plans to terminate its record-keeping by killing all their prisoners and all their guards, there will remain witnesses who can testify. Your assertion that we couldn't know the status of the PoWs and kidnap victims taken to Guantanamo Bay kind of missed the point that we already know the status of many of them. We also know that the Bush administration has, after years, not managed to find enough evidence against even one of them to bring that one to trial. Not one.
In aggregate, we may know the status of the Guantanamo Bay prisoners, but individually it will be more muddy. Unless you think that every single one of the prisoners is innocent of all terrorism and war-crimes related charges, what we are going to have is:
Any truth that comes out of it will be purely coincidental. And we will never KNOW, beyond a reasonable doubt, who of them have actually done something wrong. I have no doubt we will uncover false arrests, false confessions, and mistreatment, because of course we already have. But we will never piece together all of it if the records have been destroyed.
And you are assuming that Bush wants to put anyone on trial. If he doesn't want to put anyone on trial, then he would continue holding them even if he had enough evidence against them.
Posted by:Lauren | Feb 05, 2008 at 04:18 PM