There seem to be many viewpoints on when or whether a non-citizen should be held to the standard of law of that of a U.S. citizen. This is especially true when referring to "enemy combatants". Do they deserve our rights?? Should we be allowed to hold them to a lessor standard of justice?? Some believe yes, some no.

Questions for Debate:

1. What is the difference between a right and a privilege.

2. Is our access to our legal system a right or a privilege??

3. Should this right or privilege be afforded to both citizens and non-citizens that fall with in our jurisdiction and/or custody?? Why or Why not??

2. Is our access to our legal system a right or a privilege??

It's a right, for those who stand accused of committing crimes. But when we're talking about enemy combatants, it may be a different story. If it's clear that they're enemy combatants (as in, captured in uniform on the battlefield), then I don't think they have the right to challenge their status, because there's nothing really to challenge. If there's any question of whether they're enemy combatants, then there should be at least some level of judicial oversight to make sure that they truly were captured legitimately as combatants. Whether the prisoners themselves should have a right to be at those proceedings, I don't know. I'd say that if it's not immediately clear to the judges that these were combatants, there should probably be some opportunity for them to be heard. But it still doesn't have to be the same as a full jury trial that's made available to criminal defendants.

Now if the detainee stands accused of some war crime, then he should have a right to a trial. A military trial should be sufficient, since it's the same type of justice that our own servicemen are subject to.

A "right" is something that, in theory, a government should not be able to deny you. A "privilege" is something that a government may grant you or deny you at its will, although may be restrictions on when it can deny it. For example, it is generally conceded that all American citizens have the right to a fair trial when accused of a crime. It is generally conceded that being allowed to legally operate a motor vehicle in the USA is a privilege, granted only when certain requirements have been met.

We should make a distinction between the rights of American citizens and "human rights." Being allowed to vote in American elections is a right of American citizens only. Not being tortured is a human right, regardless of nationality.

It seems to me that access to the American legal system is a right, and not just a privilege. If for no other reason, persons who are accused of crimes are forced into the legal system against their will. At the very least, the government should play by the rules when you have no choice but to join in the game.

I would say that anyone, not just an American citizen, accused of a crime by the American government should have the right to a fair and open trial as a basic human right. Even if one can find a legal justification for denying this, I see no reason why it would not be to the benefit of the USA to take the high road in dealing with the citizens of other nations.

A right is a privilege that has been determined to be afforded to all of it's citizens by a government. A privilege is afforded to a government's citizens at the government's choosing.

Of course there are also world bodies that attempt to solidify "human rights" no matter what citizenship you may carry, if any at all.

This has always been a difficult topic for me. I agree that every person in the world should be afforded freedoms of at least what a US citizen would have. Although I do also understand that in war, information and timing is crucial to save lives and dragging out the entire due process isn't reasonable - and that tension's run high so abuse is unavoidable, though I do not believe any type of torture should be policy.

I don't believe they should be afforded the right's of a US citizen when they are initially captured, but held to geneva convention standards. After a reasonable amount of time to process them, maybe a few months (although it could take longer but nothing like years) to find out if them have any valuable information or what type of crimes they have committed (if any), they should be granted at the least a military tribunal, with access to a public defender and all the evidence that is being used against them.

Many of these human beings may have been the bottom of the barrel scum, but I am fairly confident that some are simply scared, most likely with a low IQ (given the education level in many third world countries) people, who could be a father that have no idea what is happening to them.

I really believe Bush is being very hypocritical here giving Saddam an open televised fair trail, yet others captured in war have not had access to a fair trail.

Questions for Debate:

1. What is the difference between a right and a privilege.

Rights are “granted” as a result of law or citizenship in a country etc. Those held at GITMO and charged as enemy combatants do not have the right to a “trial” in the US for example. The rules of war (and the Geneva Convention) allow us to hold them until the end of the conflict.

• Enemy Combatant
An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”
http://www.cfr.org/publication.html?id=5312

2. Is our access to our legal system a right or a privilege??

Privilege, and one the combatants do not deserve.

3. Should this right or privilege be afforded to both citizens and non-citizens that fall with in our jurisdiction and/or custody?? Why or Why not??

No. Why would we want to burden our overloaded courts with these people who do not deserve a trial in the US. IMO we should give them a military tribunal so that we can execute those found guilty, for the murder of 3,000 civilians on 9/11.

To Quote Thomas Paine (1739-1809)
"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself. "

This does not in itself answer the questions, but it does guide one to a truth if one is to believe in the standards to which we Americans 'should' be holding ourselves to.
To the first question:
A right is given at birth, to all. Period. A privilege can be taken away, by parents, governments, social systems and standards. So, a right to trial is a right as it is provided for in our bill of rights. I see nothing in there (someone could correct me if I missed something) that says "EXCEPTIONS"
Unfortunately too many are viewing our rights as privileges, which is leading us down a very slippery slope.
This should answer question #2
To question #3, see the Thomas Paine quote above.

1. What is the difference between a right and a privilege??
Good questions! I'd say a right is something that cannot be taken away from me under the laws, rules, and principles of my gov't., while a privilege is something I may choose to do under the laws, rules, and principles of my gov't.: like vote, do citizen's arrests, do self-defense, join military, etc.

2. Is our access to our legal system a right or a privilege??
Its a right. There is a third category worth mentioning, duty. We have a duty to serve on juries for example.

3. Should this right or privilege be afforded to both citizens and non-citizens that fall with in our jurisdiction and/or custody?? Why or Why not??
Should be afforded, mostly because of the moral and ethical damage we would do to us and ours if we don't (psychology perhaps), and that many of these are also part of the Supreme Law of the Land ( US Const., Art. VI, Para. 2, Sentence 1) that we seem to not treat seriously enuf!

What is the difference between a right and a privilege?

Rights, in the United States, are legal claims or entitlements that are secured - guaranteed - by the Constitution (including its amendments) and the US Code - or they used to be. Privileges are claims or entitlements that are allowed with certain qualifications, usually of a statutory or regulatory nature. Trial by jury, for example, is a right; being licensed to drive a car is a privilege.

Is our access to our legal system a right or a privilege?

It is a right. This is unequivocal. It is secured by the Bill of Rights, which applies not to citizens, but to all persons.

Should this right or privilege be afforded to both citizens and non-citizens that fall with in our jurisdiction and/or custody?

It already is - and it should be. Both citizens and non-citizens are Constitutionally guaranteed the rights to a speedy and public trial by an impartial jury and to due process of law.

Why or Why not?

Civil liberties and human rights define who we are as a people and as a nation. Our attitude toward them indicates what kind of people we are and what kind of nation we have fought to create. To deny the rights of non-citizens is to reverse the history of jurisprudence dating from the Napoleonic code and undoing the work of every humane penal system since. To deny the rights of non-citizens is to embrace cowardice rather than justice. To deny the rights of non-citizens - and place the decision-making in the hands of a single executive - is nothing short of despotism.

Of those who would deny the rights of non-citizens secured by our Constitution, we could ask (as supporters of the Bush administration might in relation to other issues), "Why do you hate America?" But this is larger than America. We should ask instead, "Why do you hate democracy? Why do you hate justice? Why do you hate civilization? Why do you hate humanity?"

But this is not just a case of altruism. It is not just "the right thing to do" - though, of course, it is. But there are pragmatic reasons for not creating tiers of rights in a society. If one (erroneously) argues that the Constitution does not apply to non-citizens, one argues that it does not apply to as many as 20 million of the residents in our country. The affording of privileged rights creates and encourages mediocrity. A dynamic and fluid society that respects our freedoms prospers and succeeds. Attempts to restrain the fluidity of an egalitarian society ossifies the system and leads not only to the creation of privileged classes (and a corresponding underclass that does not - cannot - participate in the health of the society), but also to stagnation, corruption, and the society's death. This is what ultimately lead to the fall of Rome. And it is an important reason for our nation being dedicated to liberty and justice for ALL. Instead of defining "right" or "privilege", perhaps we should try defining "all".

"Unalienable rights" used to mean just that. But the new-found ability for our leaders to skirt our Constitutional rights at will - and for our Executive to determine "enemy combatants" on whim - is repellant and insane. If we allow this to happen (and we have), what does it even mean to be an American any more?

I'll tell you what it means: it means nothing.

I'm having trouble with the premise of these questions. It's all too abstract and divorced from the reality of war and jihad. What rights are we talking about? The Sixth Amendment? As I see it, the question boils down to, "Are soldiers of the jihad, waging war against the United States, entitled to a trial by a jury of their peers?"

I don't see how anyone can answer "yes" to this question. It's contrary to the laws of war. First of all, what are they supposed to be on trial for? Felony jihadism? Seriously, consider the position of many, if not most, current Guantanamo detainees: A young Arab guy who got jihad fever in the 90s, went to Afghanistan to train with al Qaeda, volunteered for Khalid Sheikh Mohammed's Department of Martyrs, but didn't make the cut for 9/11, then got captured fighting the Americans when they invaded in the fall of 2001. What U.S. laws has he broken? How should we constitute a jury of his peers?

This just isn't the way justice works in a war. Captured enemy fighters are entitled to humane treatment, but it's a fundamental, categorical mistake to think that they're entitled to habeas corpus ("charge them or release them!") or a trial under the Sixth Amendment.

If you don't think I'm accurately describing the Guantanamo detainees, read this New York Times piece. Ghassan al-Sharbi "once told a military review panel it was his “honor” to be classified as an enemy combatant, declaring, “May God help me to fight the infidels!”." Later in the article, he's quoted as saying "I’m going to make it easy for you guys. I fought against the United States."

Call me a democracy-hating, justice-hating, civilization-hating humanity hater, but I think you'd have to be crazy to treat this guy as an ordinary criminal defendant, entitled to every Constitutional right and privilege enjoyed by American citizens.

I do agree with you to a point. Still to this point a solid definition of what is the enemy or enemy combatant in every form of environment lacks in regards to terrorism, just as much as the definitions of a terrorist seems to lack. I would hate because of some mistake or oversight that an Muslim or a American Arab citizen could be treated the same as some Taliban scum captured in Afghanistan. It just seems a bit of a problem in the matrix if you will.

Also, I do not think the outrage that generates this would be so fueled if you will if not for the torture issues and the fact that infinite detention does seem a bit bizarre to me, I mean how long does it take to sort through some people, maybe the problem is what do you release them to, another chance to wage jihad against the great Satan, yet another problem. What point do you bring charges up or not, what can you do to them in the meantime, and what charges exist for the crime committed, we will try them to our standards but not treat them to it. I mean even if you are some crazed axe murderer in the U.S(citizen of), for the most part you still get the honor of our fairly accurate system to judge over you, not just some person thought they saw you then decapitation in town square.

So in reduction, maybe all the discourse over the issue stems from bad oversight or leadership overall. That’s where I would put my guess overall.

Should the get our rights, no, they are not Americans, they seek to kill us and what is American, I don’t agree however with giving up what makes us American to kill them or stop them, i am sure with some thought a better way exists for handle such issues, but I am not in leadership to even brainstorm over the issue so what have you.

Yes, I agree, and I think there are two issues here:

1) American citizens suspected of being involved in terrorism. Clearly they are entitled to all the Constitutional rights and privileges we enjoy as Americans. The Bush administration made a huge mistake trying to treat Jose Padilla as an "enemy combatant," holding him without charge, and without access to counsel. I think everyone agrees on that now.

2) Foreigners wrongly detained as jihadists. Some of the people who have been released from Guantanamo were obviously not part of the jihad, and were probably turned in by neighbors for the money. (America was paying something like $5,000 for Taliban and $10,000 for al Qaeda.) I don't think Guantanamo detainees should have the same habeas corpus rights as American citizens, but there should be a process for weighing the evidence that a detainee represents a threat to the United States if released. The process we have today isn't perfect, but it has led to the release of hundreds of people who were previously held in Guantanamo.


You're getting at an important problem with treating jihadists as ordinary prisoners of war. "Indefinite detention" is the norm for PoWs, but there's at least the prospect that the war will end, eventually. When a war ends, the belligerents exchange their prisoners, and they go back to their lives. But the jihadists aren't fighting for a state, they're fighting for God. God isn't going to sign a peace treaty, and He certainly isn't going to surrender.

That's a problem, but it's fundamentally the jihadists' problem, not ours.

Jobius- do you agree with the statement by our forefathers "inalienable rights"? If yes- that means, like Wertz pointed out, that all humans are given the same rights under our constitution, as applicable under the umbrella of "inalienable rights"- which, IIRC, is acces to a speedy trial?

I think the Declaration is a great piece of political writing, but I don't think the Founders themselves believed every word literally. If all humans have the "unalienable rights" to "life, liberty and the pursuit of happiness," we couldn't very well have prisons, much less capital crimes. Both concepts were familiar to America's founders, and I don't think you can make a case that the Revolution was intended to abolish prisons or capital crimes.

Let me ask you, do you think prisoners of war have the right to speedy trials, and that the state must "charge them or release them"? What crime should we have charged German prisoners with in World War II? Was it unconstitutional to follow the longstanding tradition of holding prisoners until the end of a war?

The inalienable rights I am refering to is the rights for a speedy trial and whatnot- I believe they did make provisions for criminals, didn't say "no prisons"- but rather, establish humane and, for it's day- radical, liberal ideas that the goverment can't hold a prisoner indefinately for no reason and for no stated crime. And the reason for this is the very abuses you mentioned- secret prisons, torture, holding poeple indefinately without really telling them why they are there, arresting innocent civilians that may have just been turned in by a nieghbor for the money- a fair and impartial system to make sure those abuses are given the light of day- evil can't thrive in the light from what I understand. -

So ya, I can understand the need for holding them indefinately- but I want a proccess, a free and impartial proccess, to make sure that we are not getting some innocent farmer by mistake, and then standing by that mistake to save face.

So, ya, those inalienable rights apply-

The problem, and what seems to be missed in these debates, is that the majority of these prisoners are NOT necessarily guilty of crimes in the civilian sense of the word. So, they are not criminals (for the most part), but combatants. Call them POWs if you like because the procedure fits either way. Wartime laws differ from peacetime laws. There isn't much to try them for, unless they commit some crime while incarcerated (for example, some of our German POWs during the war killed a fellow prisoner for aiding the enemy and were subsequently tried and I believe at least one was executed for that crime).

We're left with the option to reevalutate their status periodically and either release them or keep them detained or transfer them to countries which will likely keep them detained ( to protect our forces which are overseas). Until the war is over. I understand that this is a metaphorical war, and that constitutes a problem, but it is hard to make a case that the war is PURELY metaphorical when nearly every member of Congress approved the military action. It certainly isn't metaphorical to the military members who are in the line of fire.



There was a process during the initial incarceration, the Combatant Status Review Tribunal. There is another annual review board process, so it isn't a complete black hole, though I agree it isn't optimal. It should be considered that they released almost 300 combatants thus far. That is close to half.

This is not a "metaphorical war", it is an illegal war - and we are the criminals. Unlike real "metaphorical wars" - like the War on Poverty - we are using our military forces to slaughter people and we are using our military forces to capture and detain people. In addition to asking our troops how "metaphorical" this war is, we should also ask the tens of thousands of dead civilians.

No war has been declared or authorized by Congress and therein lies the problem. There are laws and conventions relating to POWs in conventional warfare - and I have no problem with that, nor should anyone. But POWs are detained in relation to declared war or authorized military action against a hostile state. And - more importantly - they are held under the tenets of the Geneva Conventions, which this administration has also decided to flout. Jihadists - or those that the president arbitrarily decides are jihadists - are not combatants in the traditional sense. Like it or not, we do not have a third category of those who do violence: they are either enemy combatants in a declared war fighting on behalf of a state or they are criminals. They should either be subject to the conventions of traditional warfare - which includes release and repatriation after the cessation of hostilities - or to the laws aof the United States. We cannot arbitrarily make the rules up as we go along, trashing our Constitution and hundreds of years of human progress in the process, even if our Chief Executive wants to. It is brutal and unacceptable - and it has made us barbarians. And we don't even have the excuse of having gazed too long into the abyss - we took a flying leap without thought simply because the Bush administration wanted us to.

The Combatant Status Review Tribunal, by the way, was only instituted because the Supreme Court forced the Bush administration to do so. It was held between July 8, 2004 and March 29, 2005, and was not part of the process in relation to our inhumane treatment of detainees from the outset as has been implied. And those hundreds of people that have been released have gained their freedom either because their detention was blatantly illegal or because they were not guilty of anything. "Okay, we'll stop imprisoning and torturing people that are innocent" is not a great advertizement for our innate humanity.

I'll not bother quoting specific individuals, but a few people now have said something to the tune that "The government grants Rights".... This is wholely incorrect. I have to agree, almost to the word, with Wertz's explanation but I have something to add.

It is important to understand that the basic rights that the Founding Fathers recognized in the Declaration of Independence and the Bill or Rights existed a priori. Our governement's documents, our civil code and our constant debates concerning jurisprudence are all simply attempts at identifying, understanding and following pre-existing, philosophical notions.

The wheel, the lightbulb and even the computer existed in the realm of ideas before a human made them. They were simply discovered. Likewise, basic human rights existed before the documents were written. Our government has no power to grant or deny them from anyone. This is, in my opinion, the highest goal of the Founding Fathers; to create a system in which the rights of the individuals supercede the government that "oversees" them.



Jobius, by this logic it would seem that ANYONE who admits guilt should no longer enjoy the rights guaranteed them. We don't do the same to murderers, drug dealers or rapists who admit their guilt. Even IF you consider fighting the United States to be a more heinous crime can you justify changing the rules?


If all of the founding principles of this country can be waved based on our personal predilection or gut response to a situation then they are baseless. If we, as Americans, believe that all humans (and animals for that matter) are due certain "unalienable" rights..then we believe it. Unalienable is a powerful word and I think it is preposterous to claim that the Founding Fathers were unaware of the full meaning or that they were quibbling. The Fathers were well aware of what they were talking about. The human rights of which they spoke are a philosophical ideal. They are balanced by another ideal: Justice. It is not at all incongruous to insist that ALL people have the same rights and to accept that some people, by their own actions, may lose some of theirs.

Indeed, and I'm not certain how freeing jihadissts, and/or hard-core members of Al Qaeda would help civilians either.



Walk me through this so I can understand. By the reasoning above, can we use military force without a declaration of war? I ask this because Congress did specifically authorize the use of military force in this case. Is this illegal without a war declaration? If so, how can we ever "legally" respond to security threats that aren't officially sanctioned by government entities? The answer is, we couldn't. I don't think that makes sense at all. Am I reading this wrong?

Edited to add: Just thinking out loud here...Since a declaration of war only applies to nations, what about responding to a security threats from a rogue nations that don't even have officially recognized governments to "declare war" against? The Taliban, for example, was recognized by only two countries in the world as a government.

Edited again to add: Mea culpa on the Combatant Status Review Tribunal. I did misrepresent that by implying the date was earlier, it wasn't intentional I thought it was a part of the initial process. I know that there have since been two ARBs, the annual ministry review board process, one last year and the other one (ARB-2) this year.

While I'm sympathetic to notions of "natural rights," I'm extremely skeptical that there's any Platonic realm that contained wheels, lightbulbs, and computers before they were invented. Here in the physical world, the Constitution guarantees that "We, the People of the United States" can enjoy certain rights, but it's never been applied to non-citizens waging war against us.


I'm saying these committed jihadists are in a different category than ordinary criminals. They are at war with us. They have been at war with us for years, and committed acts of war against U.S. targets: the African embassies, Khobar towers, the U.S.S. Cole, the World Trade Center, the Pentagon, etc.

Maybe Congress should have passed a declaration of war against al Qaeda. But Congress hasn't declared war in the last 60 years, and didn't choose to do so here. Instead, they authorized the President to use the military to attack the organization responsible for 9/11, and anyone harboring them (i.e., the Taliban).

Despite all the angry rhetoric we've heard here, this was not an unprecedented abandonment of Constitutional principles. Bush had more legal justification for attacking al Qaeda than Jefferson had when he attacked the Barbary Pirates.


You're not really contradicting me here. CruisingRam was trying to get me to say that the Sixth Amendment right to a speedy trial was "unalienable." But prisoners of war are not entitled to a speedy trial because they're not criminal defendants, they're combatants. We hold them not to punish them, but to prevent them from further attacking us. This is an ancient tradition, most recently codified in the Geneva Conventions. It wasn't overturned when the Founders discovered the Sixth Amendment somewhere in the Platonic realm of ideals.

Like it or not, the Founding Fathers were steeped in philosophical notions and intended to create a republic that adhered to and celebrated them. The language is clear and it applies to "ALL" people. We signed international treaties regarding the rights of prisoners of war, ostensibly, because of these very notions. The articles of the Geneva Convention are an extension of our own Constitution in that they embody the same spirit, they ascribe rights to people, even those waging war against us. It is slim line upon which to balance trying to argue that the "all" in our founding documents refers only to "all Americans".



They are not really in a different category. If these detainees are committed to the destruction of America AND have committed war crimes or crimes against humanity in that pursuit then a trial would make that clear no? These situations are accounted for in the Geneva Conventions and yet our president refuses to adhere to them. A crime is a crime. The crimes these detainees are associated with have been tried in courts before.
If you do not think that justice can be meted out properly in this situation then you either don't believe in our system or you are not confident that we are holding guilty people. Is there another option?


I haven't seen any angry rhetoric. Just because someone disagrees with you does not mean they are angry. Are you projecting your own feelings?
Also, bush attacked a LOT more than al Qaeda. In fact, if all of the detainees in Guantanmo are verifiably members of al Qaeda then he would have no trouble using the Geneva Conventions to put them on trial.



Bush used the term "enemy combatants" to try to create a loophole so that he could ignore the Geneva conventions. He moved the detainees to Cuba so that he could ignore the Constitution. It is odd to me that you find it acceptable to call upon the Geneva Conventions in defending the fact that we do not have to provide a speedy trial to the detainees, but you allow our government to ignore the rest of the rules in the Conventions. If our government is able to hand-pick which pieces of a legal document to which it will subscribe and ignore the rest then the document is not worth the paper on which it is printed.

As far as your distaste for Platonic Ideals goes, well, I'm sorry if you dislike them but they are a necessary part of our founding documents. The terms "Justice", "Rights", "Good", "Moral" etc...are put in capitals because they are abstract notions. They are ideals. Our founding documents are an attempt to codify those ideals. The Constitution is itself, just an abstract document. It outlines the "ideals" that should be upheld. It is the duty of the Supreme Court to ensure that all of our laws work in the spirit of those ideals. Laws are concrete...the document from which they spring is not.

But you must admit that the Geneva Conventions do not define the same set of "unalienable" rights that the Constitution does. Combatants captured while waging war are not guaranteed a speedy and public trial. They are held until the end of hostilities. They are not guaranteed "a republican form of Government," or the right "to keep and bear arms." They're clearly in a different category.


Some of them are criminals, and we should get on with trying Khalid Sheikh Mohammed, Ramzi Binalshibh, and whoever else we have evidence on. But what about those who just consider themselves soldiers of the jihad? Wertz says we can't treat them as combatants because they're not loyal to a state, but they certainly act like a military force:



A lot more than 19 hijackers went through this training. Are they all criminals? What would you charge them with? If there's nothing to charge them with, should we let them go and reconstitute their training camps in the next failed-state down the road?


This is the angry rhetoric I was talking about:






There are several Geneva Conventions, and al Qaeda fighters are not covered by all of them. We have more obligations toward soldiers of Geneva signatories than we do toward unaffiliated groups like al Qaeda. For example, soldiers of Geneva signatories cannot be punished for refusing to answer questions, or rewarded for cooperating. They cannot be held in private cells, but must be housed in barracks. Unfortunately for the jihadists, they don't get these benefits.

There are two types of detainees (as Jobius mentioned, but it bares repeating). One are jihadists who consider themselves to be at war with us, and the others are suspected terrorists. The jihadists are the largest group, and they are combatants not classified as criminals. To state the obvious, war laws and civilian laws differ. Killing is usually a crime, but not in war. In war killing is okay (under certain conditions)...required even, but stealing might be a criminal act. On the other hand, a civilian can use his/her home for defensive purposes, but a combatant cannot use a home for defensive purposes.

Criminals (aka suspected terrorists) should be tried, but there isn't much of anything to try the jihadists for. But releasing them back into the combat zone would obviously be problematic.

Through international criminal interdiction - as has always been the case. You admit yourself that "suspected terrorists" should be tried as criminals. What else are we talking about here? You (and Jobius) seem to be attempting to make a distinction between types of detainees, but perhaps I'm being a bit dense. What is the difference between a terrorist who commits a criminal act and a "jihadist" who commits a criminal act? Does it have to do with the target? the rationalization for the criminal act? the religious beliefs of the perpetrator? I'm at a loss.


First, how do you know that "jihadists" are the largest group? How does anyone know that without any kind of oversight or review? Have the results of the Combatant Status Review Tribunal been published - or any official assessment of the alleged crimes of the detainees? If so, where? Second, what difference does it make whether "jihadists" believe they are at war with us? No war has been declared - on either side. Are we to make distinctions on the basis of what a detainee believes? You are one of the last people I would have expected to argue in favor of thought crimes.


This is obvious. But the problem remains: we have not declared a war. Indeed, we have waged an illegal war of aggression - two of them, in fact. In wars of aggression, killing is not okay. It is war crime. It is murder. We can hardly condemn "jihadists" for believing that they are at war with us when we are so clearly at war with them. When it comes to terrorist acts, al-Qaeda was the instigator. But when it comes to warfare, we started it - and with no justification. There is no moral high ground here - and precious little difference between them and us.


Again, I am thoroughly confused. There isn't much to try "jihadists" for? Why is that? Because they have committed no crimes? If that's the case then failing to release them is seriously problematic. If they have committed crimes, then why on earth can they not be tried for them?


I'm afraid I'd need a better example, if one exists, before answering such a question. The Taliban never attacked the US, never even threatened the US. All they had the temerity to do was ask for evidence of Osama bin Laden's involvement in the September 11 attack before turning him over - which they were willing to do. Seeking to follow international protocols in terms of extradition hardly constitutes a justification for the declaration of war, regardless of how many countries recognized them as a legitimate government. Do we have a real threat from a "rogue nation" to discuss here - or are we just going to think out loud about wild hypotheticals?


Jobius: Regarding angry rhetoric, I must first state that the posts you quoted were far from angry - they were rational assessments of our current state of affairs. Trust me, you don't want to see me when I'm reacting in anger (which I tend to reserve for face-to-face discourse or, occasionally, for my blog). But in terms of anger in general, yeah, I plead guilty as charged. I am angry. This administration is dishonoring my county. It is bringing shame on every citizen. It is making war criminals of the brave men and women who would die to defend it. It is trashing our Constitution, violating our treaties, and perpetrating acts of barbarism. Anyone who is not angry about these things, in my opinion, has no right to consider themselves a patriot. You are welcome to disagree, but you should at least try to convince us that these are things about which we should somehow be proud. I won't hold my breath.

Wertz beat me to it. Took my answer I swear!!!

If there truly IS a difference in "type" of detainee there is A) No way for us to know this and Scant justification for holding people who have committed no crime.

We have our own, homegrown terrorists who "train like they are military" and who intend to commit crimes against our country and they get full legal rights. In fact, they sit under our noses and enjoy the freedom to amass arms, train and practice their hatred for certain aspects of American life.

I do not see the difference between these people and the "jihadists" who, at least, were doing the training and fighting in their own countries. While I have every hope that our government could find a way to alleviate the situation through diplomacy and legal police actions, I cannot accept that we would break our own doctrine of human rights in order to fix what we have broken. The possible metaphors, idioms and figures of speech run thick in this situation....but "you reap what you sew" will do to explain my feelings on the subject.

I'd say the difference isn't between criminal terrorists and criminal jihadists, but between those who have merely trained for war against us, and those who have committed crimes. Osama bin Laden did the latter when he authorized the 1998 bombing of the U.S. embassies in Kenya and Tanzania. The bombers trained in Afghanistan, in al Qaeda camps that bin Laden controlled. The Clinton administration aggressively pursued your preferred course of criminal interdiction, with little effect.

It's bad enough that we couldn't stop bin Laden, but worse, he was training thousands more soldiers of jihad. They were all hostile to the U.S., but hostility and military training aren't crimes. Even the 14 who were lucky enough to be chosen as muscle hijackers on 9/11 weren't told what the mission was, just that it would result in their martyrdom. Is that enough to convict them for conspiracy to commit terrorist acts? Maybe. But what about the guys who didn't make the cut?


Really? This looks like a declaration of war to me:

The African embassy bombings were six months later.

Osama bin Laden and Mohammed Atef ran military training facilities for jihadists. Thousands of people went through the camps, where as the 9/11 Commission wrote, they "learned discipline and military life. They were subjected to artificial stresses to measure their psychological fitness and commitment to jihad."

These people are at war with us. You don't have to like it -- I don't like it, but it's not going to go away if we impeach the current administration and ship them off to the Hague for war crimes prosecutions. You say that the war against the Taliban was an illegal war of aggression. But the Taliban had harbored al Qaeda for years, and refused to extradite bin Laden for the embassy bombings. You say that after 9/11, the Taliban offered to give us bin Laden. But they only said they'd give him to another Islamic country, for Islamic justice. Why the hell would we go through that circus?


Obviously, the difference is that we have effective jurisdiction over domestic terrorists. We knew about al Qaeda's training camps in Afghanistan for years before 9/11, but we couldn't do anything about them. If you know of a "homegrown terrorist" training camp in the U.S., call the FBI. They'll take care of it. There's not much tolerance for that sort of thing, especially since the Oklahoma City bombing.

Many of these jihadists were obtained from the battlefields of Iraq and Afghanistan. They are detained as prisoners of combat. Perhaps (more than likely) they were guilty of using human shields or shooting out of a civilian village, but that isn't why they are being detained, nor would that evidence stick beyond a reasonable doubt...was the murder scene secured afterwards? Was any of the evidence compromised? Did a forensic scientist evaluate that scene after-the-fact? Were they read their Miranda rights right away, and in a language they could understand? Are combatants ever, or have they ever, been read Miranda rights as a protocol for detaining them? That's a wee bit too much to expect under combat conditions. So, in a nutshell, whatever their bad behavior in combat, they are considered combatants, not criminals.

What do we do with combatants? Do we release them back into the combat zone when we know they will return to the fight? IF that's the case why detain them at all? Just shoot at each other and, if one gives up tap him and say "tag, you're it" give him his gun back and continue. I suppose we could establish an Attila the Hun take no prisoners approach since, if everything is a warcrime and we're inhuman animals, what's a few more? It would save time and money....be a lot more effective too.



It is the exact same reason that there has been to hold combatants throughout history (including ours). Wishing all of this away with a "we shouldn't be there" doesn't change the fact that we are there, and the same reasons for not releasing prisoners during other wars apply now...whether you choose to call it a war or not. Doesn't mean, I should add, that some cannot be repatriated or turned over to other governments, but it should be a careful process...and as I said before, almost half have been released or turned over. Recently, last I read, they evaluated an additional 130 which they believe are safe to release. It isn't a completely stagnant process.

Yes, we have held plenty of enemies prisoner during a time of war. In previous times we were held to the Geneva Conventions. In this case (Guantanamo) we are holding people who were fighting against us and denying them recourse to either Geneva OR U.S. laws....
Hearkening back to wars of yore does not work in this debate because GWB has changed the rules.


In the end everyone here has to answer the question: Do you believe that the American tradition or the "rights of Man", as expouned in the founding documents, was meant to apply to ALL people or only to Americans.

If you believe, as I do, that the Founding Fathers intended this republic to be a beacon of Justice and Freedom then you must insist that we find a way to give these detainees their human rights. Arguing otherwise would be tantamount to a Christian rationalizing reasons why they don't have to "love thy neighbor" or "turn the other cheek".

Recourse to which Geneva conventions laws exactly? Prisoners are prisoners, they aren't treated as criminals unless they guilty of prosecutable crimes. Are you saying that German POWs were not detained until the end of hostilities? Actually, most were detained until a full year after the war was over, during which time they were divided into likely war criminals (SS, ect) and regular soldiers who could just go home. Yearly review boards like the ARB to reevaluate their status did not even exist.



I don't believe that we should abuse detainees. I don't believe that we should keep them locked up if there is a good chance to suspect that they won't raise arms against us again when they are repatriated. I think that those charged with crimes should receive fair trials. That about covers my thoughts on this issue, and they match very nicely with precedence and the Geneva conventions regarding the issue of combatants. There really is a lot of rhetoric in that above post. Wow, just wow.

These laws...exactly: Geneva Conventions as they apply to prisoners

Let's see:


So, although our enemy may not be bound to these conventions, we as signatories still are. So arguments about "jihadists" and "enemy combatants" do not apply.
In fact, the conventions have a definaition of "jihadists" that incorporates them into the laws..



Also...

Well, since Human Rights Watch, the Red Cross, the ACLU and the U.N. human rights commission have all been ignored and there entreaties refused I think we have failed on that mark.

In this Human Rights Brief it is made very clear that the U.S. is NOT providing the Guantanamo detainees (among others) their rights according to the Geneva Conventions.



Go ahead, read the entire article. You will find that there has been a peresistent theme in the White House: flout the Geneva Conventions, create theoretical loopholes, buy time. The direct quotes from the White house staff should be clear enough.
There are persistent stories of torture, debasement and inhumane treatment going on at our hands. The U.N. has called for us to stop and we have ignored that body as well.

As far as their legal rights go:


Since every "civilized" country we know allows some access to due process, it would seem logical to me that the U.S. must supply the same for its prisoners at Guantanamo.

I realize the difficulty in this situation. We have people we may be afraid to release. this is what happens when you declare a war on an idea. Whether or not our present war makes sense we cannot ignore our own moral and legal heritage AND the international laws to which we are signatory. It is a moral ideal and there is a reason that high ranking members of our military have begged the administration to stay true to the Geneva Conventions. Perhaps I am spouting shrill rhetoric. I would be more able to respond to that if the "rhetoric" were identified specifically. The blanket statement was, well, just a blanket statement.

I maintain that this country was founded on the high ideals of Justice, Freedom and egalitarian principles. As soon as we rationalize when we do not have to abide by those principles we no longer truly believe in them. No?

Nor do hostility and training necessarily constitute being an enemy combatant. Like crime, combat involves taking action rather than just thinking about it - except, of course, in novels by George Orwell and the United States under George W Bush.


I don't know. We used to describe people who thought about committing a crime - or even planned to commit a crime - but did not do so as "innocent". How do you propose we should describe people who have committed no crimes?


Frankly, it is not highly relevant what this "looks like" - to you or anyone else. Whatever the World Islamic Front statement may "look like", it is, in fact, a reaction to the "crimes and sins committed by the Americans [that] are a clear declaration of war on Allah, his messenger, and Muslims". I don't necessarily want to rehash the entire history of Western interference in the Middle East since the collapse of the Ottoman Empire, but - again - from the jihadist point of view, they are defending themselves from the United States of America - the ones who started the conflict through the occupation of their holy lands and the support of an ersatz "Jewish state". Whatever such pronouncements may "look like", they result not in formal declarations of war, but in what we describe as acts of terror - in crimes committed by individuals or groups, not armed conflicts waged between nations.

There have been groups of terrorists and insurgents and guerillas around the globe for generations - from 19th century anarchists through the terrorist Zionist groups of the forties, the refashioned Irish Republican Army that arose in the fifties, and such groups as the Baeder-Meinhof gang of Germany, the Red Army of Japan, the Al-Fatah in Palestine, the Tamil Tigers of Sri Lanka, the Red Brigades in Italy, and the Shining Path of Peru which emerged in the seventies. Until the Bush administration came into power, such groups never prompted a nation to launch a war of aggression against one or more other nations. Until the Bush administration came into power, such groups were always addressed through criminal interdiction.


In fact, you are quite wrong. Not your fault - one has to search beyond the mainstream media to find the facts of what was actually on offer - and what the Bush administration refused. The Taliban's position in relation to turning over bin Laden was identical to Britain's position in relation to turning over General Pinochet - and both were in accord with Article 33 of the UN Charter. The Taliban did not refuse to extradite bin Laden and they did not say they'd only give him to another Islamic country "for Islamic justice". What was actually on the table was the extradition of bin Laden to our ally, Pakistan. According to the Daily Telegraph (one of the few news sources that covered the story with even a modicum of accuracy):
When no cooperation was forthcoming, the Taliban ambassador to Pakistan reiterated that evidence of bin Laden's involvement in the attack was prerequisite to his extradition - just as Britain had done in relation to Pinochet:
The response of the United States, expressed by Ari Fleischer in contravention of the UN Charter, was "It is time for actions not negotiations with the Taliban" and that there would be "no negotiations, no discussions". The fact is that the Bush administration was far more interested in invading Afghanistan and ousting the Taliban than it was in bringing Osama bin Laden to justice. And the British and American media went right along with them.


What's your source on this? The same as your source on the assertion that "jihadists" are the "largest group" of detainees - i.e., unknown? According to Glenn Greenwald:
Greenwald doesn't cite his source either. Does anyone have any foundation for the assertions being made about the 14,000 people we have detained around the world? I do not have a problem with combatants in Afghanistan or Iraq being captured and detained as "prisoners of combat" as you describe them. But is that what we're talking about? So far, every case that I've heard about would seem to conform to Greenwald's assertion.


That's a very good question. One of the problems here is that we had no more forethought or planning about potential POWs than we did about anything else in relation to our adventures in Afghanistan and Iraq. As I've said before, bad policy has bad consequences - and when it comes to bad policy, this administration breaks all records in the known universe. What does become of captured combatants in a "war" that could last generations? Is every POW a prisoner for life? In the event that we ever leave Iraq, do we turn all of our prisoners over to whatever government might be in place at that time? Do we continue holding them at our expense until eternal peace reigns in the Middle East? Should Iraq be partitioned as a resolution to the civil war, do we turn our Sunni prisoners over to the Shi'ites and our Shi'ite prisoners over to the Sunnis? This situation is far worse than simply wishing we had never made such a colossally stupid decision in the first place. I don't have an answer - and I can't imagine that anyone in the Bush administration has an answer either. Then again, I don't think they give a damn.

Thanks to La Herring Rouge and Wertz, there's more here than I'm going to be able to reply to tonight, but briefly:


Maybe it's flawed, and maybe it contradicts customary interpretations, but it's been the policy of the United States for over a quarter of a century. Protocol I to the Geneva Conventions was proposed in 1977 to close this "loophole" that let us treat non-state militias as something less than soldiers of Geneva signatories, and the United States has consistently refused to ratify it.

I think this is a sensible policy. There has to be some benefit to fighting for a Geneva signatory. Otherwise, why would anyone sign it, or comply with its restrictions? If you can hide among civilians and use them as human shields, yet still get treated exactly the same as a lawful combatant, why wouldn't you? Incentives matter, and we've decided we're not going to give the wrong ones.


You're mistaken.


THR, you also quoted some Geneva language about the "passing of sentences and the carrying out of executions," which hasn't happened, and local inhabitants who "spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units," which doesn't fit the description of the military-trained Arabs who were, for some reason in the non-Arab country of Afghanistan.




Most Americans saw the 9/11 attacks as an act of war. I understand that you disagree. But to say that there's "precious little difference between them and us," well, I hate to personalize this, but I'm astonished that a gay man could say that. Under the Taliban, the bulk of the Afghan construction industry was dedicated to building stone walls to crush gay men under. And if you're troubled by our treatment of Guantanamo detainees, try comparing it with the treatment Danny Pearl got.


I'm quite wrong? Pakistan is an Islamic country, and the evidence against bin Laden would be considered "within the framework of Islamic shar'ia law." Under sharia, the testimony of an infidel is worthless if it contradicts that of a Muslim.

If we had gone through with this farce, it would have been a strategic catastrophe. Instead of having Musharref as an ally against the Taliban (who you'll recall had been protecting bin Laden from extradition not just since 9/11, but since the 1998 African embassy bombings), we'd have Pakistan hosting an international Islamic tribunal to consider the case for bin Laden. Osama would have an internationally sanctioned platform to call for more jihadists to fight against America and the "ersatz" Jewish state. God help us, Pakistan could have ended up worse than Iraq by the end of all that.

There's more that I should answer here, but I've got to wrap up. I don't support holding people prisoner for "thought crimes." I'm not here to defend every action of the Bush administration. Jose Padilla should have been charged as on ordinary criminal defendant. The Pakistani brothers who published the satirical magazine never should have been in Guantanamo. Maher Arar shouldn't have been shipped off to Syria and tortured. The prisoners at Abu Ghraib shouldn't have been abused and humiliated by a National Guardsman who was too sadistic to keep his job as a prison guard in the States.

And yet, and yet... I think we're still a long way from sinking to the level of our enemies. And we'd be suicidally crazy to let those sworn enemies that we've captured... go.