[Old Crow]

The main problem with Gitmo is that the military screams 'enemy combatant' at anyone it wants to and sends them to Cuba to sit and rot. There are no trials, no investigations, llittle or no ATTEMPT AT ALL BY THE U.S. MILITARY TO PROVE THAT THEY ARE ENEMY COMBATANTS! Maybe the Supreme Court shouldn't have gotten involved, but if the U.S. Military wants say that someone is an enemy combatant, then they better doggone have a trial to prove it and give the facts. They shouldn't just pick someone up, throw them in prison and just leave them there and say "He's there because we said so and we don't have to prove nothin' to nobody!" If they say that, you know what that makes Gitmo? A stalag, a concentration camp, a gulag - you're there for life, no chance of redemption, no proof you did anything. You wanna live in a country that does that just because it can? I'd rather see the military own up to one of the ideals of the founding fathers of this country - JUSTICE - not just for the citizens, for for ALL. If the military is going to have a prison, then they should have military trials to prove there is a reason for the prison. Maybe they have proof that all their prisoners are enemy combatants, but they still have to present it in a military trial. Just do it and get the trials overwith, whether the prisoner is guilty or not. Otherwise, it stinks of injustice - the same thing the U.S. rebukes other countries for doing time and time again. We say our values and ideals are one thing, then we do the opposite. Sorry about my rant, but this subject just grinds my gears.

This subject also "grinds my gears," but from the opposite point of view. It is easy to throw out sound bites about concentration camps, stalags, etc., but much tougher to put forth actual facts to back up such claims. No doubt there have been abuses, but just because there are highly publicized abuses does not justify indictment of the system or support wild claims that the military is engaging in lawless behavior across the board. But claims of systemic abuse and lawlessness are the stuff of bloggers and partisan politics, not real facts.

I guarantee you the amount of due process afforded the enemy combatants held in Afghanistan, Iraq and Gitmo is light years ahead of anything ever afforded a prisoner, POW or whatever label you choose by any other country in the history of the world. If you compare the actual governing laws, constitutions and regulations relating to the actual legal processes used with those of any other government or military, you cannot say with any degree of credibility that the US is not giving the greatest degree of due process and legal protections. And, when there are abuses, you cannot seriously argue that the degree of transparency and accountability, even if not perfect, is the equal of or surpasses any other government.

These individuals have had their trial, been represented by counsel, put on evidence (including evidence otherwise deemed classified), received due process and been adjudicated already. This was accomplished by the militery tribunals the Supreme Court already ordered and approved, and which was legislated in bipartisan fashion by the White House and the Congress. The Supreme Court already ruled years ago that "detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war." This determination was not an arbitrary Presidential decree or a military caught up in its own power- it is the law of the land, period.

Respectfully, if we are going to trash the government (I don't care what your political affiliation) or the military, we should know what we are talking about. For example, take a look at the Constitution and read it. You may be surprised, for example, to learn the founding fathers actually approved suspending habeus corpus in certain situations (the so-called "suspension clause": "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."). To make a blanket statement about justice and suggest the military is simply ignoring the constitution is simply wrong, in my opinion. Nowhere in the constitution does it indicate it applies to foreign fighters, combatants, soldiers, citizens, etc., so it is unfair to bash the military for doing its job and engaging in conduct aimed at securing the liberties of US citizens, even if we may be a bit squeamish about the disparity of treatment of those who are not citizens but who have been adjudged to be enemy combatants attempting or succeeding in killing US (and UK) troops.

In the first few years after 9/11 and the invasion of Afghanistan, after the supreme court recognized the legality and constitutionality of detaining bad guys captured on the battlefield, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether those detained at Gitmo were "enemy combatants." This led to numerous lawsuits and legal actions by detainees (how many countries do you think would even allow enemy detainees access to their courts?) and then Congress passed the Detainee Treatment Act of 2005 (DTA). After more court decisions, including supreme court rulings, Congress responded with the Military Commissions Act of 2006 (MCA). I could go on but the point is that the last thing anyone should gripe about is the so-called lack of due process or military or governmental indifference to the detainees.

I don't mean to offend but I am very passionate about the constitution and immensely proud of my country and its ability to protect us all while looking out for the little guy. Ranting by politicians about degrading civil rights, weakening the constitution, etc. is, in my opinion, little more than posturing when you actually look at what is really happening and read what the constitution actually provides. It is because of this I can post my dissatisfaction with what I view as a constitutionally flawed supreme court decision.

[Captain Eddie]

Old Crow, EXCELLENT fact filled post! I, sir, am not qualified to wash your feet!

[Epapazian]

Perhaps the politicians and the Supreme Court should take up the case of those Nazi and Japanese "war criminals" who were tried and executed after WW II? Were they all guilty? Did they get "fair" trials? Were they treated humanely?

[mustangdriver]

Originally Posted by Epapazian

[INDENTthose Nazi and Japanese "war criminals" who were tried and executed after WW II? Were they all guilty? Did they get "fair" trials? Were they treated humanely?
[/indent]

Yes!!!!!!!!!!!!

[Rush104]

The Supreme Court, like a lot of people out there, seems to be missing the point- the detainees at Gitmo are not LAWFUL combatants (as recognized under the international laws and customs of war). They do NOT wear a uniform; they do NOT represent a recognized government; they are NOT members of a military force of a legitimate government; and they damn sure do not fight under the above mentioned laws and customs, as demonstrated by the suicide bombings and intentional targeting of civilians that these people espouse. Most of these detainees claim to be fighting for Allah, and that their "cause" transcends the borders of nation-states. Are any of these "POWs" representing a nation-state that is a signatory to the Geneva Conventions? No. These transnational combatants neither represent a legitimate nation-state nor do they feel obligated to conduct themselves in accordance with the laws/customs of legitimate nation-states. Therefore, the rights accorded to legitimate Prisoners-of-War (as defined by the Geneva Conventions) do NOT have to be accorded to them. Nor are they entitled to the protections afforded to US Citizens under our Constitution.

[Old Crow]

Perhaps the politicians and the Supreme Court should take up the case of those Nazi and Japanese "war criminals" who were tried and executed after WW II? Were they all guilty? Did they get "fair" trials? Were they treated humanely?

I'm guessing the victims of the Holocaust, and German and Japanese atrocities, including our own POWs, would say yes to all 3 questions.

This is the second reference suggesting the war crimes trials were immoral, illegal, etc., and I just don't get it. If there was any evidence of abusive interrogation or deplorable living conditions or denial of access to counsel or evidence, you might have a point. But there is none. You can read the actual transcripts and there is no sense of kangaroo court or show trial. In fact, many were acquitted and others who were charged with heinous crimes were given lesser prison sentences. And though, in Nuremberg, for example, there were 4 primary criminal charges, not every defendant was charged with every count, which means there was deliberate investigation and evaluation of whether facts were available to support any particular act of alleged criminal conduct. In fact, of the 142 defendants prosecuted in the Nuremberg trials following the trial of Goring, Bormann, etc., about 25% were acquitted and just 13 were actually executed (less than 10%).

The criticisms of the post-war trials in Europe and Asia are made primarily by legal scholars and based on esoteric theories of jurisprudence. For example, the trials were criticized because the victors arguably established standards of criminal conduct after the fact (ex post facto) in order to have crimes to prosecute. Of course, how any sane human could question the inherently criminal nature of the conduct, even if carried out in the course of warfare or under order from superior officers, or where criminal liability is imposed on commanding officers for failing to control subordinates for engaging in unspeakable atrocities, is beyond me. In any case, those who were critical complained because of the alleged technical violation of the rule against ex post facto liability, not the lack of humane treatment.

What few consider is the fact the trials grew out of the unconditional surrender contracts in each theater, which means the defeated governments, through their legally recognized leaders at the time, agreed to these trials as a means of addressing inhiman behavior by the rule of law and accepted standards of criminal law procedure. So, from a strictly legal sense, the prosecution of Japanese and German military figures under a system agreed to by the Japanese and german governments simply does not support a criticism of unfairness or lack of legal authority.

Granted, the trials had their own unique rules of evidence and the law of any particular nation was not applied, but how would that have been resolved in light of the fact there were multiple victors in Europe, for example. Others were critical because some theories of criminal liability were based on the allegation of conspiracy to commit acts of aggression against Poland, with which the Soviets were involved in 1939, and yet no Soviet leaders were charged. Such criticisms seem to me to be a pretty flimsy basis upon which to indict the trials themselves.

And, if you want to damn the US, I suggest further research. The Allies were navigating largely uncharted territory. Instead of simply unilaterally punishing the defeated leaders, as victorious countries had done for centuries, the Allies moved forward by creating a judicial system requiring proof of guilt with attendant rules of procedure and evidence. This revoulutionized the concept of international law, which really did not exist before. The precedent set by Nuremberg led to many international conventions, which provide numerous protections today, and ultimately influenced the establishment of International Criminal Codes and an International Court.

So, if you want to take issue with the theoretical legal premises established, including previously unseen accountability and criminalization of conduct previously sought to be excused by relience on principles of war-making, policy-making, chain of command, and the like, reasonable arguments can be made pro and con on a theoretical or public policy level. But, if you want me to accept the trials were unfair, or the justice meted was unreasonable, forget about it. Just consider the words of one of the defendants, none other than Albert Speer: "This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.”

Let me end by saying I intend to offend no one with my comments. This just happens to be an issue about which I am passionate.

[parsig9]

Originally Posted by Rush104

the detainees at Gitmo are not LAWFUL combatants (as recognized under the international laws and customs of war). They do NOT wear a uniform; they do NOT represent a recognized government; they are NOT members of a military force of a legitimate government...

Well neither were William Wallace, George Washington or Michael Collins for that matter and yet they and other have served noble causes to very different ends.
Fighters for or against one thing or another need not be legitimate to be given justice in my book.

[Rush104]

Originally Posted by parsig9

Well neither were William Wallace, George Washington or Michael Collins for that matter and yet they and other have served noble causes to very different ends.
Fighters for or against one thing or another need not be legitimate to be given justice in my book.

I'm not sure I understand your points here, parsig. Are you comparing men who wanted independence for their people with a bunch of people whose declared intent is to convert the world to their brand of Islam, while destroying everyone who doesn't share their vision in the process? Are you saying the detainees at Gitmo are engaged in a "noble cause"?
If the situations were reversed, what kind of "justice" would these Islamo-fascists (as Michael Savage would say) mete out to the "infidels"?

[Old Crow]

Well neither were William Wallace, George Washington or Michael Collins for that matter and yet they and other have served noble causes to very different ends.
Fighters for or against one thing or another need not be legitimate to be given justice in my book.

I agree, Parsig, to a point. But, in my opinion, you are confusing the morality of the cause with the morality of post-capture conduct. I would be willing to bet that such men had no illusions that, if captured, the enemy would have treated them in a manner befitting their status, and such treatment would not necessarily be illegal or immoral. Their status- not the nature of their cause- is what determines their treatment. Which is exactly my beef with the supreme court's Bouemediene decision- it extended rights not required by the constitution and well beyond what would reasonably be required for just treatment of an enemy combatant.

It is easy to call for justice for all. But this overlooks the reality that what is considered justice will vary with the circumstances and status of the actor. As Rush points out, illegitimate fighters with no ruels of conduct are not comparable to uniformed soldiers with some rules of conduct. In both cases, however, neither can or should expect upon capture to be treated the same as citizens of the captor.

If patriots engaged in acts of rebellion with knowledge there would be no severe consequences if they are captured, their acts would significantly less heroic.

[Captain Eddie]

Originally Posted by Old Crow

If patriots engaged in acts of rebellion with knowledge there would be no severe consequences if they are captured, their acts would significantly less heroic.

George Washington et al. knew that if they were not successful they would all be hanged, or worse.