Third Guantanamo Prosecturo Quits

[Cylinder]

And for those that are not captured combatants? I'm not sure if you have already released all the ones you took from the streets (nowhere near combat) as nobody will say where they all came from.... are you able to say that the remaining people are all combatants? Captured on a battlefield?

I'm not certain that "captured on a battlefield" is a threshold condition for classification as enemy combatant. Enemy combatants are captured in situ - their actions and roles are the determining factor in classification, not geography. This has always been the case - such as the detention of Rudolf Hess as a prisoner-of-war after his capture in Scotland in 1941 among other notable incidents such as a German who had fled to China and a Confederate captued on his way to Canada to direct attacks agaist the US from its nothern border after our Civil War.

And also can you tell me if these commitments as to when "hostilities" will be regarded as over for certain categories of people at gitmo is a commitment from the US government or a commitment from you?

They are settled law for (among others) the reasons cited in my previous post.

which "entities" are the operations against?

al Qaeda and the Taliban as authorized by the AUMF and executive determinations.

I'm not trying to be pedantic here but the answer, as far as I can see it is that the US will be at "war" for as long as it wishes to say it is at "war".

It is what it is. There is no pre-determined length for an armed conflict like that in which you would find in a football game. The president is required by the War Powers Act to report to Congress every six months on the status on a conflict. This is a statutory requirement (in the view of Congress) that has been acknowledged by Pres. Bush since the AUMF was enacted.

Hang on there....these people seem to bounce in and out of the classification of "prisoner of war" to suit the occasion....which is it pow or not pow?.....

Not. Even if they had qualified for membership in a more priviledged class, military tribunals would be the standard. Since they do not qualify, they cannot assert individual protections. If they could assert G-III's judicial protections, tribunals would still be the standard.

 

[The Fool]

I'm not certain that "captured on a battlefield" is a threshold condition for classification as enemy combatant. Enemy combatants are captured in situ - their actions and roles are the determining factor in classification, not geography. This has always been the case - such as the detention of Rudolf Hess as a prisoner-of-war after his capture in Scotland in 1941 among other notable incidents such as a German who had fled to China and a Confederate captued on his way to Canada to direct attacks agaist the US from its nothern border after our Civil War.

so the clinching factor is if the US chooses to claim they are enemy combatants?



They are settled law for (among others) the reasons cited in my previous post.

So is my estimate that hostilities will be over when the US decides to declare them over fairly close?

 

[peptoabysmal]

Would you also much rather spend nearly four years in prison without charge waiting for your prefered system of justice to see if they can figure out what it is you were supposed to have done? What is "justice" delayed called again?

He was captured whilst hanging out with the Taliban and allegedly trained with al-Qeada, for crissakes. I just don't see where Hicks has earned himself a halo.

Three US military prosecutors have even quit the commission, their resignations revealed following leaked emails from two of the prosecutors describing the commissions as rigged to ensure guilty verdicts.

Three military prosecutors leaked emails expressing their bias before a trial. Is it at all possible that they were "asked" to step down? Without the opinion of these prosecutors, where is the proof that the commissions are rigged?

I think it comes down to certain people involved in this wanting to have a civilian trial for political gain. IMO, Hicks is not entitled to a civilian trial because he was captured on a battlefield, providing aid and support to the enemy.

PM among few who support Hicks' trial

Hicks has pleaded not guilty to conspiracy, attempted murder and aiding the enemy, but a date for his commission trial has yet to be set.

Sounds to me like he has been charged with offenses and pleaded not guilty. A bit different from being held "without charge", eh? That the trial date has not been set is the only legitimate beef I see here.

 

[a_unique_person]

He was captured whilst hanging out with the Taliban and allegedly trained with al-Qeada, for crissakes. I just don't see where Hicks has earned himself a halo.

No one, certainly not me, has claimed he is innocent or guilty. What the issue is, is will he get a fair trial. That is one of the pillars of modern, democratic, society. It seems that three prosecutors thought the whole trial setup was a sham, and wish to take no part in it.

 

[The Fool]

He was captured whilst hanging out with the Taliban and allegedly trained with al-Qeada, for crissakes. I just don't see where Hicks has earned himself a halo.

He may be Al-quada's chief kitten strangler and osamas line dancing partner for all I know.

Do you believe you have to earn basic legal rights? I'm not interested in issuing him a halo but he is an Australian citizen, I am an australian and will argue till I'm blue in the face to secure any Australian basic justice...irrespective of who tells me he is the worst of the worst...has been "hanging out " with anyone or is ALLEGEDLY involved in anything.

Some things to consider.
David hicks fought in Kosovo, for that he was regarded as one of the goodies. He's lucky the Kosovo Muslim leaders chose not to support osama. He fought for the Taliban against internal forces in a civil war in Afghanistan he's unlucky that the side he chose also chose to support osama. Had the other side chose to do this instead...he'd be a goodie again.

I have listened to Americans tell me He has tried to kill americans...despite his capture in afganistan (by the northern alliance) happening before americans (regular forces) arrived.

http://www.nationalsecurity.gov.au/...r_2001_-_David_Hicks_transferred_to_US_forces


The Hon Daryl Williams MP, Commonwealth Attorney-General and Senator the Hon. Robert Hill, Minister for Defence

The Australian Government has been advised that the Northern Alliance has handed Australian David Hicks over to United States forces.

as to the charges..

http://www.smh.com.au/articles/2004/06/13/1087065030653.html?from=storylhs&oneclick=true

The charges are, firstly, that Hicks conspired to commit war crimes by training with the al-Qaeda terrorist organisation and by joining al-Qaeda fighters who were guarding a Taliban tank, and because he "joined others ... engaged in combat against [US-led] coalition forces". He is also charged with attempted murder because he allegedly "intended to kill American, British, Canadian, Australian, Afghan and other coalition forces". Hicks is charged, too, with "aiding the enemy" because he "intentionally aided ... al-Qaeda and the Taliban [during] armed conflict".

Now what does that add up to? Fighting against the Northern alliance...who were "us-led" He was one of a number of guys "guarding a tank"?....Hmmmmm, what of the rest of the guys who were guarding that tank? are they also the "worst of the worst" or was his main value as a show prisoner the fact that he is a westerner?

The bit I find most amusing is the charge that he intended to kill... (insert long list of all nationalities who joined with the US in an alliance with a gang of afghan muslim fighters involved in a civil war...the good gang, not the bad gang)

all in all...if this guy is one of the "worst of the worst" ....sheeesh, we havn't got much to show for how many years effort?

so lets lock him up for joining a foreign army......except thats not a crime in Australia unless he is ex australian army which he is not. Lets lock him up for picking the wrong side....If I'd have asked you to pick which mob would chum up to al-qaeda prior to the event...taliban or "northern alliance" would you have had a clue? Lets lock him up for killing americans......show me some evidence evidence he did. Lets lock him up for trying to kill americans......show me some evidence he did. In fact, show me some evidence he has ever been within sight of any of the long list of nationalities he is supposed to have attempted to "murder".

He joined the taliban...the rest seems to me to be inferred from that.....still, we could not fit all those that joined the army of the government of afghanistan prior to 2001 into gitmo could we....should we?????

 

[AmateurScientist]

First, I wish to preface my remarks with the caveat that I am reluctant to enter this thread at all, and that I do so only to address some narrow issues. I do not wish at all to debate the merits of the case for or against David Hicks. I do not wish to do that especially given my own subjective impression of two leading Australian posters in this thread who repeated demonstrate a profoundly distasteful and ugly anti-American bias and sentiment in nearly all of their political posts which even tangentially mention or imply American foreign policy. I'm just not interested in hearing their USA bashing. I hate it.

Second, the only reason I am making any remarks at all in this thread is because someone asked me to. The reason I was asked is because I am a practicing criminal lawyer in the U.S. and I also served almost 4 years on active duty as a U.S. Army Judge Advocate, acting, among other duties, as a military prosecutor (as chief of Military Justice at my post). In that role, I not only represented the government in courts-martial under the UCMJ (Uniformed Code of Military Justice), but I also advised unit commanders concerning cases they intended to initiate against their own soldiers regarding their sufficiency and legality.

Now, I will address select posts, but I am probably going to do so slowly, as I need to get to work soon and probably cannot check in here for at least another 14 hours or so. If interest in this thread remains, I may rejoin it, otherwise, I might only make a post or two. That's up to my discretion.

AS

 

[AmateurScientist]

If I were innocent, I would much rather be given a military trial than a civilian one. I would be pretty much guaranteed a fair trial for the crime that was committed with reasonable people deciding my fate.

For the most part, I agree with you. I've prosecuted and defended accused soldiers in U.S. Army courts-martial. They have included enlisted soldiers, non-commissioned officers, and commissioned officers, including Lieutenant Colonels. I have been on both sides of that courtroom, and it is generally fair and impartial. Panel members tend to be less prone to deciding cases with an appeal to emotion than some civilian juries may be. In my experience, they usually demand good, solid evidence and will not often connect the missing dots merely to please the government.

Although his credibility is shot--and rightly so in my opinion--F. Lee Bailey has expressed the same sentiment several times, including in at least one of his books about his experiences as a U.S. Marine prosecutor and as a defense lawyer before U.S. courts-martial (most notably defending U.S. Army Captain Ernest Medina for war crimes at My Lai during the Vietnam conflict).

There are indeed many procedural safeguards built into courts-martial. For low level offenses, non-judicial punishment is offered to the accused, and the accused may elect to accept it or may refuse it and demand trial by court-martial. A summary court-martial is done by a commander, not a panel or a military judge, and the commander acts as prosecutor and judge. It is also a voluntary process, as an accused may refuse it and demand a trial by court-martial with a panel or a military judge. Of course, that means the accused faces a chance for greater punishment as well.

I say that I agree with you "for the most part" for two reasons. One, I don't like superlative phrases like "guaranteed" when used in conjunction with trials. There are no guarantees. Also, there are some reasonable jurors (in the military a jury is called a "panel"), and there are some who are not so reasonable. On the whole, they tend to be fair, however. The second reason is that it depends upon with what one is charged. For instance, drug use and possession are much less tolerated in the military justice system for the most part than in many U.S. civilian courts. I would not want to be charged with use or possession under the UCMJ. Also, there are charges under the UCMJ that have no civilian analogs, and many civilians are simply incapable of understanding why those acts or omissions are criminal offenses. There are military service members who are convicted and punished under the UCMJ of offenses that would shock most civilians' sense of fundamental fairness or justice.

The one thing I find puzzling about this is why the military prosecutors resign instead of preventing unjust trials. I thought they had that right.

CBL

Although I have no insight into these particular cases, I suspect that there were indeed personality conflicts, as the media report suggests, and that these officers would be working on these cases for months, if not years. If they were uncomfortable with them, remaining on the prosecution team would likely be very unsatisfying. Also, pressure from military superiors can be strong, and thus "preventing unjust trials" in this context might have meant facing tacit reprisals and career suicide. Officers receive periodic written ratings from their supervisors, and bucking the system often results in poor ratings, which can ruin a career. Whistleblowing or grandstanding is usually not a good tactic for military career advancement.

Remember that these trials have not only a military component, but they also retain a very strong political component as well, which comes from the President himself. Pressure there is likely very strong.

AS

 

[AmateurScientist]

I am shocked after I read that. I am somebody who has written articles against military trials and how military courts must be abolished because the offend every notion of democracy but I don't live in your country. Therefore I am curious as to what Amateur Scientist has to say about your post.

It was the bikini in your avatar, Cleo. That's why I had to reply in this thread.

AS

 

[a_unique_person]

First, I wish to preface my remarks with the caveat that I am reluctant to enter this thread at all, and that I do so only to address some narrow issues. I do not wish at all to debate the merits of the case for or against David Hicks. I do not wish to do that especially given my own subjective impression of two leading Australian posters in this thread who repeated demonstrate a profoundly distasteful and ugly anti-American bias and sentiment in nearly all of their political posts which even tangentially mention or imply American foreign policy. I'm just not interested in hearing their USA bashing. I hate it.

AS

You may perhaps consider there is an issue with the Bush Adminstration's policies, (rather than Fool and myself). There are certainly plenty of Americans with that point of view.

 

[The Fool]

I do not wish to do that especially given my own subjective impression of two leading Australian posters in this thread who repeated demonstrate a profoundly distasteful and ugly anti-American bias and sentiment in nearly all of their political posts which even tangentially mention or imply American foreign policy. I'm just not interested in hearing their USA bashing. I hate it.

I sort of know how you feel....... having to read so many profoundly distasteful and ugly things that I don't agree with too....such is life.

I can only hope you will participate without seeing a desire to defend the basic rights of Australian citizens as "USA Bashing".

 

[Kevin_Lowe]

You may perhaps consider there is an issue with the Bush Adminstration's policies, (rather than Fool and myself). There are certainly plenty of Americans with that point of view.

Those Americans hate America too. Hate, hate, hate. You can tell by the way they post, even if they carefully avoid ever saying so.

There's just no point in talking to irrational, hate-filled people like you.

 

[AmateurScientist]

No one, certainly not me, has claimed he is innocent or guilty. What the issue is, is will he get a fair trial. That is one of the pillars of modern, democratic, society. It seems that three prosecutors thought the whole trial setup was a sham, and wish to take no part in it.

Fair enough. Military tribunals are not per se unfair, as some in this thread seem to be implying. There is nothing inherently unmodern, undemocratic, or unfair about a military court.

AS

 

[Mycroft]

You may perhaps consider there is an issue with the Bush Adminstration's policies, (rather than Fool and myself). There are certainly plenty of Americans with that point of view.

You may perhaps consider that being an American doesn't mean ones views are not influenced by an ugly anti-American bias, nor does holding a view that is also held by an American guarantee that it is not an ugly anti-American view.

In fact, I'd say forming a prejudice against ones own culture is pretty common.

 

[Mycroft]

Those Americans hate America too. Hate, hate, hate. You can tell by the way they post, even if they carefully avoid ever saying so.

There's just no point in talking to irrational, hate-filled people like you.

We all know the whole idea that a person's prejudices could influence their thinking is just too silly to even talk about.

Certainly that could never be the case with anyone you know.

 

[Cleon]

You may perhaps consider that being an American doesn't mean ones views are not influenced by an ugly anti-American bias, nor does holding a view that is also held by an American guarantee that it is not an ugly anti-American view.

In fact, I'd say forming a prejudice against ones own culture is pretty common.

ok, I admit it! I don't watch Major League Baseball. And I'm not real keen on apple pie, either, unless it's "a la mode." I know, it's French; I'm a bad, bad, American.

Forgive me, Jesus, I have sinned...

 

[Cleopatra]

Fair enough. Military tribunals are not per se unfair, as some in this thread seem to be implying. There is nothing inherently unmodern, undemocratic, or unfair about a military court.

AS

Thanks for your input Amateur Scientist. I was particularly interested in your opinion because you have served in both banks of the river.

This is the comment that made me really curious:
Let's see if Upchurch's tricks work...
{fquote=CBL4} in the US, an innocent defendant is better off with the military rather the civilian injustice system.{/fquote}

No it doesn't work for me but maybe upchurch has cursed me...

One of the most common criticism that one can hear out of USA about USA is that what keeps all these different people together is the American Dollar.

I consider this opinion quite an ignorant one because money is like sex. If there isn't any, nothing happens in life but even if you have plenty it doesn't mean that you have accomplished anything of essence.

It's the American Judicial System that makes " all these people" an amagalm and if this system was as useless as our friend CBL4 suggests and considering that American people have the right to carry guns, most of them would be out in the streets looking for Justice. As far as I know, nothing of sort happens in USA right now.

While a healthy and well functioning Judicial System is essential for a Democracy to keep rolling I wouldn't say the same for the Army. The Army is and should concern "the others", the friends and foes that live out of one country. The Army is nothing but a diplomatic weapon, a very useful weapon that can determine the future of a country but this is it.

As you know better than me,Army is structured to function is cases of emergency, in cases of danger when there is no time for taking decisions democratically. Therefore, the Army is by definition, by structure, by nature non-democratic. To be exact, the notion of Democracy is irrelevant when it comes to the Army because under the circumstances that the Army is designed to function, democracy has almost nothing to offer.The demand of a Democractic Army is a joke that one can hear only in European countries where socialism is taken seriously still.

So, this is the question that rises. How can we accomodate a non-democratic entity in a democratic country? The answer is very simple! By applying the same judicial system( the civilian systen that is) in both entities when we are not in war!

Is there anything that occurs in the Army in a period of peace that cannot be addressed by a civilian court? I doubt it. Various administrative issues can be held in the way various organizations deal with their problems. So, what is the use of a Military Tribunal during periods of peace?

I don't see any use.

Guantanamo is a different story that I won't address following your example although I believe that we will have to come to that if this discussion continues.

It was the bikini in your avatar, Cleo. That's why I had to reply in this thread.

AS

That's why I changed avatar! When somebody has to deal with a classic dish of the French kitchen--which is my favorite-- like you AS ( let's name you a fillet a la Rossini) he has to escort it with something equally classical-- a bikini... errr I meant a fine Bordeaux!

Don't be fooled though. It's your slightly southern accent that does the trick

 

[Mycroft]

As you know better than me,Army is structured to function is cases of emergency, in cases of danger when there is no time for taking decisions democratically. Therefore, the Army is by definition, by structure, by nature non-democratic.

The Army is designed to function in case of emergency, but that doesn't mean it only functions in an emergency. Processes that are designed to operate with expediency in the field may be done in a position of security in a much more considered (and fair) fashion.

Cleo, your argument only describes some obstacles in creating a fair military judiciary. That doesn't mean it can't (or hasn't been) done.

Ultimately a military in service of a democratic nation can not help but to be influenced by the same democratic ideals it defends. Its membership is entirely made up of citizens of that democracy, and the government of that democracy will still have oversight on its procedures.

 

[Cleopatra]

The Army is designed to function in case of emergency, but that doesn't mean it only functions in an emergency. Processes that are designed to operate with expediency in the field may be done in a position of security in a much more considered (and fair) fashion.

In small countries like Israel and Greece where military service is compulsory and citizens are more involved in the military affairs the Army is used in various cases of emergency like fighting forest fires and stuff like that. I don't think that this is the case in USA but I might be wrong. I will add something regarding the role of the Army and the operation of military justice in countries like Israel but I am waiting for AS to respond fist.

quote:

---

Originally posted by Mycroft
Cleo, your argument only describes some obstacles in creating a fair military judiciary.

---

Hardly. I am interested in the philosophy of the institution. I cannot argue about the details anyway because I am not in the position since I don't have the "inner" knowledge.

quote:

---

Originally posted by Mycroft
That doesn't mean it can't (or hasn't been) done.

---

I don't doubt that but my question remains unanswered.

Is there anything that can occur in the Army during a period of peace that cannot be addressed by civil justice?

quote:

---

Originally posted by Mycroft
Ultimately a military in service of a democratic nation can not help but to be influenced by the same democratic ideals it defends. Its membership is entirely made up of citizens of that democracy, and the government of that democracy will still have oversight on its procedures.

---

Absolutely but still this doesn't address my basic premise. In a democratic society the Army follows, it's the civil Justice that makes democracy roll so why do we need military tribunals in periods of peace?

 

[CBL4]

Originally posted by Cleopatra
Is there anything that occurs in the Army in a period of peace that cannot be addressed by a civilian court? I doubt it. Various administrative issues can be held in the way various organizations deal with their problems. So, what is the use of a Military Tribunal during periods of peace?

I am not sure if you are talking about normal military trials or the tribunals for "enemy combatants." I will assume the latter.

The Bush administration reason for this is security. This is an important issue. They say it requires secrecy which is a reasonable argument. This does not require a military tribunal. It could also be done in special civilian courts.

Rights of the accused are another important issue. It is a difficult balance with security. Unfortunately, the Bush administration has made no attempt preserve rights of the accused and claimed that King George II had the right to hold people indefinitely without access to a judge, lawyer or the red cross.

This claim plus the notorious reputation of military tribunals in the world has provided anti-Americans and tyrants with their most powerful propaganda weapon in decades.

CBL

 

[Cleopatra]

CBL I'd rather come to this later. The Admnistration doesn't have any legitimate reason and the danger that Guantanamo poses to the free societies hasn't so much to do with the violations of the procedures but I will come to the Guantanamo problem later.

I am very much interested in the issue you raised that's why I insist so much. I have published a couple of articles on the matter and I am interested in some critical approach of my ideas by people who are interested in those matters but live in another country.