[StarSlayer]

I don't have particular transparency on the demographics of the detainees but I'll assume a goodly portion of them are not Joe **** the conscript that you can just send home and he goes back to farming poppy and thats that.  I figure that quite a few are real zeal and steel dyed in the wool bamf jihadists.  You cut them loose they're going to go back to the business of trying to attacking the West.  If they pose a clear danger to this nation's citizens what exactly do you propose we do with them other then keep them locked up?

You could handle them the same way we handle POWs except that kind of legitimizes them, so we don't want that. If they were captured in the US then we should just treat them like any other criminals. Put them in jail, have a trial, etc. I don't know for sure what the rules are for people captured abroad, but we should either follow them if we have some, or come up with some if we don't. What we shouldn't do is have some kind of limbo-prison, where we're allowed to do whatever the hell we want to people because of legal loopholes.

I'll play this line just a little further.

The Criminal Justice system is a very regulated organ of the state, it has all sorts of procedures, checks and balances that need to be adhered to in the apprehension and prosecution of criminals.  That works for the various law enforcement agencies within the US because they know the rules and they play by them.  Domestic law enforcement has the luxury and apparatus to follow those rules.  A SEAL team nabbing some asshole in the Hindu Kush are not operating as a law enforcement agency, they are not acting towards the goal of legal prosecution.  The military and foreign intelligence services might be sure as **** that this guy is a hardcore zeal and steel jihadist but they are not following judicial procedure, they are fighting a war.  So now what do you have? Some terrorist bamf that was seized in wartime conditions and your're going to somehow try to shoehorn into the criminal justice system?  Your trying to fit a square peg into a round hole, and you don't have the option of cutting this bastard loose because he's going to turn around and start plotting vile deeds again. 

What exactly do you do? 

[zookeeper]

I don't have particular transparency on the demographics of the detainees but I'll assume a goodly portion of them are not Joe **** the conscript that you can just send home and he goes back to farming poppy and thats that.  I figure that quite a few are real zeal and steel dyed in the wool bamf jihadists.  You cut them loose they're going to go back to the business of trying to attacking the West.  If they pose a clear danger to this nation's citizens what exactly do you propose we do with them other then keep them locked up?

You could handle them the same way we handle POWs except that kind of legitimizes them, so we don't want that. If they were captured in the US then we should just treat them like any other criminals. Put them in jail, have a trial, etc. I don't know for sure what the rules are for people captured abroad, but we should either follow them if we have some, or come up with some if we don't. What we shouldn't do is have some kind of limbo-prison, where we're allowed to do whatever the hell we want to people because of legal loopholes.

I'll play this line just a little further.

The Criminal Justice system is a very regulated organ of the state, it has all sorts of procedures, checks and balances that need to be adhered to in the apprehension and prosecution of criminals.  That works for the various law enforcement agencies within the US because they know the rules and they play by them.  Domestic law enforcement has the luxury and apparatus to follow those rules.  A SEAL team nabbing some asshole in the Hindu Kush are not operating as a law enforcement agency, they are not acting towards the goal of legal prosecution.  The military and foreign intelligence services might be sure as **** that this guy is a hardcore zeal and steel jihadist but they are not following judicial procedure, they are fighting a war.  So now what do you have? Some terrorist bamf that was seized in wartime conditions and your're going to somehow try to shoehorn into the criminal justice system?  Your trying to fit a square peg into a round hole, and you don't have the option of cutting this bastard loose because he's going to turn around and start plotting vile deeds again. 

What exactly do you do?

The point of checks and balances is to make it more likely that the guilty are punished and that the innocent are not. The military and foreign intelligence services can be sure as ****, but without checks and balances there's no way to know if they're right or wrong, and we know for a fact that they have a history of being wrong about gitmo detainees, knowing it and lying about it. So, all things considered: without checks and balances, they cannot reasonably be assumed to be bad guys and people who cannot be assumed to be bad guys ought to be cut loose.

If you know for a fact that someone's a bad guy then you can prove it. The fact that you won't or can't prove it remains no matter what reason you have for not wanting to prove it.

[StarSlayer]

Those checks and balances work in a controlled environment with law enforcement agencies that are built to operate in that manner.  The military and foreign intel agencies are prosecuting a war in a chaotic environment and are not designed to work inside the confines of the judicial proceedings.   Nobody is getting a search warrant for raiding some spider hole in the Korengal or for intercepting wireless transmissions by Al Queda.  Witnesses, assets and evidence might be classified information the type of stuff that would compromise future operations, or not available for a trial.  Under normal proceedings I very much doubt most of the evidence would be even admissible.  How do those checks and balances function in that kind of situation?  Either you need to heavily compromise the generally accepted standards for trials, to the point where its nearly a farce, or you stick to rules that are not compatible with whats happening in the field.

[zookeeper]

Those checks and balances work in a controlled environment with law enforcement agencies that are built to operate in that manner.  The military and foreign intel agencies are prosecuting a war in a chaotic environment and are not designed to work inside the confines of the judicial proceedings.   Nobody is getting a search warrant for raiding some spider hole in the Korengal or for intercepting wireless transmissions by Al Queda.  Witnesses, assets and evidence might be classified information the type of stuff that would compromise future operations, or not available for a trial.  Under normal proceedings I very much doubt most of the evidence would be even admissible.  How do those checks and balances function in that kind of situation?

They don't, and that rather obviously leads to the point that we can't know if the detainees are bad guys or not because all we got is someone's word for it.

Is the word of the military and foreign intelligence agencies trustworthy enough that we should be willing to detain people indefinitely based on it? It's been proven time after time that it's not. Now, if we'd be talking of a boy scout organization which acts in an open manner, tries to prevent, correct and admit mistakes, compensates victims, publicly apologizes for screwing up and generally acts like a good guy then sure, I could sympathize with the idea that we could take their word for it. But since the military and foreign intelligence agencies are known for doing none of the above or doing the exact opposite, taking their word for it would be pretty silly, wouldn't it?

[Mikes]

Is the word of the military and foreign intelligence agencies trustworthy enough that we should be willing to detain people indefinitely based on it? It's been proven time after time that it's not. Now, if we'd be talking of a boy scout organization which acts in an open manner, tries to prevent, correct and admit mistakes, compensates victims, publicly apologizes for screwing up and generally acts like a good guy then sure, I could sympathize with the idea that we could take their word for it. But since the military and foreign intelligence agencies are known for doing none of the above or doing the exact opposite, taking their word for it would be pretty silly, wouldn't it?

... I couldn t agree more, but I do want to expand on this argument.
It truly baffles me how anyone within a supposedly democratic country with civil rights can accept anyones detention based on someones "word" without proof.

It puts the organization doing these detentions into a position where they can accuse and detain anyone AT WILL. No one should have that power. Matter of fact... no one can have that power in a democratic country that guarrantees civil rights. The mere fact that the US is using this loophole damages it s credibility as a supposedly "free" nation. The fact that some, most or however many people who are detained there may or may not deserve it frankly doesn t matter one damn bit when you are confronted with the fact that innocent people not just might, but have been held there, indefinitely, without trial.

Sure... the information gained might be valuable. It might even prevent further bloodshed on American soil. Is it worth selling a nations soul however?

More to the point... what will the future ramifications for the citizens of a country be... where principles and civil rights have somehow become "optional" whenever the "greater good" is endangered?


This is a slippery slope that only leads one way...   and if you take a step back and just look at the recent scandals concerning air port security, you can see how far we ve already come.

Just a matter of principles? Sure... but in the end... what else defines a country s soul if not principles.

[StarSlayer]

I'm asking pragmatic questions about the mechanics of implementing criminal justice standards into a situation where those standards don't apply.  It's no fun if instead of addressing them you side step and post about principle and vague notions of national soul.  If nations had souls they long ago ceded any claims to purity and righteousness.  Every nation has a laundry list of actions they've taken that would hardly be acceptable by a reasonable moral scale.

[Kosh]

I'm asking pragmatic questions about the mechanics of implementing criminal justice standards into a situation where those standards don't apply.  It's no fun if instead of addressing them you side step and post about principle and vague notions of national soul.  If nations had souls they long ago ceded any claims to purity and righteousness.  Every nation has a laundry list of actions they've taken that would hardly be acceptable by a reasonable moral scale.

Let's make some comparisons: After World War 2 we had faced that very question, what do we do about some of the most evil people in modern history? Let the concentration camp survivors tear them apart? No one would have blinked an eye if that had been the case, but we didn't. We put them in a court of law. Just because we fight barbarians of one sort or another doesn't give us any excuses to start behaving like them. We're better than this, or at least we should be.

[ssmit132]

Just because we fight barbarians of one sort or another doesn't give us any excuses to start behaving like them. We're better than this, or at least we should be.

[NGTM-1R]

Let's make some comparisons: After World War 2 we had faced that very question, what do we do about some of the most evil people in modern history? Let the concentration camp survivors tear them apart? No one would have blinked an eye if that had been the case, but we didn't. We put them in a court of law. Just because we fight barbarians of one sort or another doesn't give us any excuses to start behaving like them. We're better than this, or at least we should be.

Faulty comparison. We put them to death. Once you get up to that, the specifics are sort of irrelevant : they're still dead. We didn't put them to death in a nice way, either. Death by hanging asphyxiation is not a pleasant one and is pretty much as painful and near to a "**** you, you're subhuman" as the state could come. Letting the concentration camp survivors at them might have been more merciful and swifter.

The people in Gitmo are in Gitmo not because they were taken alive in the course of military actions, though they were. As they are not recognizable soldiers of any nation-state nor do they themselves adhere to necessary parts of the Geneva Conventions to qualify themselves for its protections they should all have been shot out of hand. This is, in fact, the law. If you wish to apply the law to this situation, you are advocating death by firing squad for all of them. Gitmo is a mercy, as ugly as it may be to you.

They were not, and they were not detained locally, because they were believed to be potentially possessing valuable information.  They are there because somebody thought they knew something. The closest reasonable approximation would be to view them as spies caught in the act. The nature of their capture precludes their innocence for the most part.

[karajorma]

So because there is a loophole in the law that makes Gitmo okay? Why not call for the loophole to be fixed?

[General Battuta]

Let's make some comparisons: After World War 2 we had faced that very question, what do we do about some of the most evil people in modern history? Let the concentration camp survivors tear them apart? No one would have blinked an eye if that had been the case, but we didn't. We put them in a court of law. Just because we fight barbarians of one sort or another doesn't give us any excuses to start behaving like them. We're better than this, or at least we should be.

Faulty comparison. We put them to death. Once you get up to that, the specifics are sort of irrelevant : they're still dead. We didn't put them to death in a nice way, either. Death by hanging asphyxiation is not a pleasant one and is pretty much as painful and near to a "**** you, you're subhuman" as the state could come. Letting the concentration camp survivors at them might have been more merciful and swifter.

We gave them a trial first. That's probably the difference Kosh is after.

[StarSlayer]

Let's make some comparisons: After World War 2 we had faced that very question, what do we do about some of the most evil people in modern history? Let the concentration camp survivors tear them apart? No one would have blinked an eye if that had been the case, but we didn't. We put them in a court of law. Just because we fight barbarians of one sort or another doesn't give us any excuses to start behaving like them. We're better than this, or at least we should be.

Faulty comparison. We put them to death. Once you get up to that, the specifics are sort of irrelevant : they're still dead. We didn't put them to death in a nice way, either. Death by hanging asphyxiation is not a pleasant one and is pretty much as painful and near to a "**** you, you're subhuman" as the state could come. Letting the concentration camp survivors at them might have been more merciful and swifter.

We gave them a trial first. That's probably the difference Kosh is after.

Which comes back to the points I brought up but have remained unaddressed, insurgents captured by US military/foreign intelligence operations were not seized in the context of the law enforcement apparatus.  As we have seen, insurgents captured domestically by agencies like the FBI can be tried because the FBI was operating within the realm of the criminal justice system they did the investigation, built a case, and apprehended them.  Some SOCOM unit operating in Afghanistan are not operating as cops, thats not their job.  How do you realistically apply criminal justice standards to something like that in a way that is legitimate, especially retroactively?

[NGTM-1R]

So because there is a loophole in the law that makes Gitmo okay? Why not call for the loophole to be fixed?

That's like saying if we give a crime a mandatory sentence and then don't carry it out, there's a loophole in the law. This isn't a loophole; this is refusal to comply on humanitarian grounds.

We gave them a trial first. That's probably the difference Kosh is after.

A sham trial. Let's be honest here: a lot of Nuremburg and most of the trials carried out at the end of the war regarding the Japanese leadership were purely victor's justice. Locking up the Grossadmiral and a lot of other people was pointless. Arguments can be made that they knew of and condoned the Holocaust by their inaction (or in the Japanese case that they allowed international law to be trampled by inaction) but the majority of the people tried were at best accomplices after the fact.

So sure, if you want to go that route and cheapen the rule of law, be my guest.

[General Battuta]

The fact that the trials after World War II were sham trials does not somehow mean that trials of Gitmo inmates today would be sham trials; analogy is not causality.

[karajorma]

So because there is a loophole in the law that makes Gitmo okay? Why not call for the loophole to be fixed?

That's like saying if we give a crime a mandatory sentence and then don't carry it out, there's a loophole in the law. This isn't a loophole; this is refusal to comply on humanitarian grounds.

Even in wartime you don't automatically shoot spies just cause you can. Not to mention it's going to be harder to make a legal case that these are spies given that you have yourself claimed that they don't belong to any enemy nation. At best that puts them in the same category as people who hack into the Pentagon. i.e requiring a civil case in the country they were captured before extradition.

But let me ask a simply question. Should these people have been shot? Even the ones who were later released cause they weren't guilty?

[zookeeper]

Which comes back to the points I brought up but have remained unaddressed, insurgents captured by US military/foreign intelligence operations were not seized in the context of the law enforcement apparatus.  As we have seen, insurgents captured domestically by agencies like the FBI can be tried because the FBI was operating within the realm of the criminal justice system they did the investigation, built a case, and apprehended them.  Some SOCOM unit operating in Afghanistan are not operating as cops, thats not their job.  How do you realistically apply criminal justice standards to something like that in a way that is legitimate, especially retroactively?

I thought I already addressed that: you can't.

[NGTM-1R]

The fact that the trials after World War II were sham trials does not somehow mean that trials of Gitmo inmates today would be sham trials; analogy is not causality.

But it is. Any attempt to make the legal system work in these cases would be even more farcical than the post-WW2 trials because it's all down to he-said she-said in effect, unless they've since confessed to something, which would probably be thrown out anyways if their lawyers are halfway competent. And the stigma of victor's justice will attach anyways regardless, just as it attached to even the few just trials conducted at Nuremburg.

Even in wartime you don't automatically shoot spies just cause you can.

Yes you do. Unless you can turn them. Read a freaking book, watch a movie, something. This is patently false. You're a Brit for chrissakes, you should know something about this via XX Committee if you have any grounding in the subject at all.

Not to mention it's going to be harder to make a legal case that these are spies given that you have yourself claimed that they don't belong to any enemy nation. At best that puts them in the same category as people who hack into the Pentagon. i.e requiring a civil case in the country they were captured before extradition.

Anyone who is not wearing a uniform or some form of recognizable identification, in time of war, engaged in action against the soldiers of a nation-state, is automatically considered to be engaged in espionage and has no protection or rights. That is literally the way international law works on the subject. A lack of own national affiliation is not even referenced, probably quite deliberately to allow the full range of options to be employed against more anarchistic domestic groups.

This is not to say that rebels cannot gain the protections of the Geneva Conventions. One of the charges laid against many German commanders after WW2 was that they had violated them by executing members of the French Resistance who had taken steps to mark themselves out via the use of black armbands. However I severely doubt that's on the table here.

So your comparison is completely useless.

But let me ask a simply question. Should these people have been shot? Even the ones who were later released cause they weren't guilty?

Has anyone been released on the grounds they weren't guilty? Or simply because they weren't thought to pose a danger?

But in the simplest answer, we should have either shot them all or let them all go. It's been done before and it will be done again using the logic laid out above. Half-measures only serve to make the problem worse. The United States has shot itself in the foot before by falling between two stools of ruthlessness and leniency, most notably over the Native Americans. This is just another case of that.

I would, personally, prefer that most of them be let go. But that does not change the fact that you are speaking nonsense.

[Mustang19]

But in the simplest answer, we should have either shot them all or let them all go. It's been done before and it will be done again using the logic laid out above. Half-measures only serve to make the problem worse. The United States has shot itself in the foot before by falling between two stools of ruthlessness and leniency, most notably over the Native Americans. This is just another case of that.

Erm, what is the point of that analogy? Things would have been better if we just shot all the Indians? I don't see how that would help anyone. I don't see how further ruthlessness would be a beneficial policy for anyone in that case. Better if they agree to peacefully settle onto a reservation and join our society.

Also, about your question, quite a few prisoners have been released. At least one of them blew himself up in Iraq.

http://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp#Release_of_prisoners

[NGTM-1R]

Erm, what is the point of that analogy? Things would have been better if we just shot all the Indians? I don't see how that would help anyone. I don't see how further ruthlessness would be a beneficial policy for anyone in that case. Better if they agree to peacefully settle onto a reservation and join our society.

That shows you don't understand the situation. I refer to the fact we moved them to reservations rather than exterminate them (the classic method) or try to integrate them (the one practiced in Canada). (And if you think the reservation system was any form of integration you have no concept of its history or how it works.) It's pretty much unique; no other example of something similar being done exists.

In essence being unable to exterminate but being unwilling to bring them in, we got the reservations, and that has gone awful, horrible places and killed hundreds of thousands in its time. (Arguably, it still is. There are rez in the northwest that might as well be third-world, where if you're alive you're addicted to meth and/or alcohol and the poverty rate is as close to 100% as makes no difference.) The option selected and how it played out was the one that would cause the most suffering and deprivation and the longest-lasting problems.

Gitmo is turning out pretty much the same way. It would have been better for the world and humanity as whole if we'd chosen an absolute in both cases.

[Flipside]

To be fair, the concern was not so much about the existence of Gitmo, it was about the conditions at Gitmo, it only really became a liability of political proportions when the torture stories came to light.

Whilst it was a question of 'illegal combatants' it was a legal wrangle more than anything else, but the torture made it a Human Rights matter, which was hard to defend whilst invading a country for 'Human Rights abuses' (at least, at one stage that was what it was about, at some point between it being about WMD's and it being about liberating the Iraqis). The awkward part is not so much Gitmos existence as its legacy.