The Appearance of Fairness

Last week, Patterico had a great post up on the status of the Gitmo proceedings, in which he called them Kafkaesque and stated the following:

The following is my most decidedly non-legal, gut reaction to the proceedings happening at GTMO. There may be legal justifications for them; I can’t authoritatively speak to that.

But I do know that, based on what I’ve read, they just don’t seem fair.

Some of the main problems: Detainees lack access to the prosecution’s evidence. They lack the right to present their own evidence. There is a rebuttable presumption in favor of the Government’s evidence. Detainees lack the right to counsel, and what access they do have to counsel is severely restricted.

Understand where I’m coming from. I’m a professional in the criminal justice system. If we ever held proceedings that denied the procedural protections that are lacking in the CSRT hearings, everyone would agree that those proceedings would be deemed completely unfair.

***

What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

I really appreciated his saying that, because not only is he right, in my opinion, but because I knew he would get flayed alive by the “hang em high” crowd in his comments. Sure enough, he did, and you can read the comments for yourself.

Today, in the LA Times, Morris Davis, the former chief prosecutor for the Office of Military Commissions, discusses why he resigned. Not surprisingly, Patterico is on to something:

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

Read the whole thing. As Patterico said, there has to be a better way.






51 replies
  1. 1
    bob says:

    The Declaration of Independence declares that ALL MEN have these unalienable rights not just “Americans.” We are supposed to be better than the rest, not just the same. There is a strong “if he’s been charged, he must be guilty” strain of thought in this country. I’m here to tell you that cops lie. All the time. About material things. Just to “get” someone. That is exactly antithetical to the intent of our designed justice system.

  2. 2
    Bombadil says:

    What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.

    Really? Well, I’m sure about that — yes, they should be given all the rights U.S. citizens have. That’s what we’re fighting for, isn’t it? To ensure freedom as we see and know it? Walk the walk, don’t just talk the talk. If the rights are “right”, then everyone should have them, not just those in our club — everyone. Even if their own countries don’t grant them these freedoms, when their in our justice system, they should be granted the same rights we have within the justice system.

  3. 3
    Dreggas says:

    Kudos to patterico for that post, especially since he knew what to expect from the commentariat. Of course hindsight is always 20/20, just ask those who looked the other way when torture started…

  4. 4
    Jen says:

    Well, the Constitution doesn’t guarantee all of its rights to non-citizens, and I think there’s a fairly broad consensus that non-citizen detainees shouldn’t be treated any better than any other non-citizens in any other courts across the country, who can be deported for their convictions, for example.

    That said, the administration’s parallel system of non-justice is ridiculous. It’s unprecedented, it’s unfair, and it flat doesn’t work. They have an abysmal rate of actually convicting these people. They “win” the right to hold them, at taxpayer expense, until the end of hostilities in the War on Terra. The guilty don’t get convicted, the innocent don’t get released, they are just held, forever and forever, fighting endless legal battles, again at taxpayer expense. Is that what anyone really wanted out of all this?

  5. 5
    Jake says:

    Gee, I don’t know. Why not try them the way you would a soldier from any other country?

    I get a bit impatient with people wringing their hands over how we should treat the prisoners at Gitmo as if we’ve never ever had to deal with PoWs before. However, I can see how someone could get confused by this administration’s long run of Distract-o-vision.

  6. 6
    Zifnab says:

    What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.

    What people seem to forget is that the rights a US citizen is accorded are not just in place to be nice to the citizen. This isn’t some sort of gentleman’s agreement where Gov’t plays with kid gloves because it and the citizen are just such good friends.

    The rights citizens are accorded are designed to ensure that a vigorous defense is provided. And you want a vigorous defense because absolutely no one benefits when the Gov’t starts throwing innocent people in prison.

    If you arrest 10 guys, and one of them is an actual terrorist, its in everyone’s best interest if the other 9 guys go free. Which is why the draconian court proceedings seem so ridiculous. Why would you prevent an accused individual from presenting de-incriminating evidence? Why would you withhold attorney rights from a guy who has no idea what laws he might have broken?

    Simply tossing a bunch of guys in a cell block doesn’t make America safer, and it saps valuable resources and time and energy from people who could actually spend their time protecting us from bad guys. If you’re going to bend over backwards to declare a man guilty without looking at evidence, then you are just wasting everyone’s time.

  7. 7
    ThymeZone says:

    Good post, John, but along the same vein of comments now flourishing in the “Democrats suck” thread from earlier today …..

    Aren’t we just realizing that 70 years of war machine politics in this country has had consequences? And are the voters really going to go in another direction now?

    In the country of Saint Ronald the Ray Gun, Winner of the Cold War? In the country that chose Kennedy over Nixon because Kennedy made the Eisenhower administration seem soft on communism and defense? Get it? Eisenhower, weak on defense?

    Let me quote you from Richard Nixon himself:

    “The American people are very vulnerable to demagogic appeal.”

    He said it in 1968, before the convention, on the Tonight Show, in front of a huge audience. He was right.

    The American people … that’s us, I think.

  8. 8
    srv says:

    I just don’t understand what the hurry here is.

  9. 9
    Jen says:

    Gee, I don’t know. Why not try them the way you would a soldier from any other country?

    Well, let’s say you pick up a guy because you think he planted an IED that blew someone up, just for example. That doesn’t make him a soldier, right? I mean, in the first Gulf War when a bunch of Saddam’s guys surrendered, it’s pretty clear that those guys are soldiers, subject to Geneva and all that. But the issue is whether guys who are insurgents, or Al Qaeda, or Al Qaeda in Iraq, or some other group with an axe to grind not associated with any particular country’s government — they’re not exactly soldiers, so what category are they in and what do we do with them?

    I’m not in any way saying that we’re doing the right thing with these guys, quite the opposite. It seems to me that the American criminal courts could have handled them the same way they have handled others charged with crimes related to terrorism.

  10. 10
    El Cid says:

    Were the Founding Fathers interested in the conduct of trials, law enforcement, prosecutors, judges, standards of evidence, etc., simply because they had an overwhelming sympathy for the accused?

    Or is it possible that they actually wanted to have a justice system in which even the government proudly adhered to standards of justice and decencyeven when the accused may not have deserved it???!!!

    Are our standards for ourselves so cheap and tawdry that if the accused be low and base individuals, then, hell, we are free to be low and base as well?

    We need only be as good and noble as the accused?

    And if we deal with presumably honorable foes, then we should act honorably, and when we deal with presumably vile opponents, then we are free to be vile?

    These are the standards we wish to set for ourselves?

  11. 11
    Krista says:

    If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair.

    No. Shit. That kind of mockery of justice shouldn’t be happening ANYWHERE in the world. The fact that the U.S. is doing it just makes me sad. Throughout history, politicians have done corrupt and horrible things. But it was hidden, because they knew that the public would ride them out on a rail for that kind of crap. Now? It’s become policy, and there are many in the public who not only excuse it, but encourage it.

    What the hell happened to turn so many people into craven, slavering cowards, who are only too happy to toss their country’s integrity into the toilet for the sake of “getting the bad guys”?

  12. 12
    grumpy realist says:

    As said, it’s pretty sad when the US has dropped below the standards of evidence, presumption of innocence, etc. of the Inquisition (which is where a lot of this stuff comes from.)

    The Bush Administration: throwing out over 1000 years of legal tradition so you don’t have to!

  13. 13
    bob says:

    We apply our laws to everyone or they mean nothing. Now it can be argued that we passed that point long ago, but if we aren’t BETTER than the ones fighting us, why are we fighting? Of course, the answer is, we’re not. If we don’t apply our justice to ALL accused, what does it mean?

  14. 14
    bob says:

    We apply our laws to everyone or they mean nothing. Now it can be argued that we passed that point long ago, but if we aren’t BETTER than the ones fighting us, why are we fighting? Of course, the answer is, we’re not. If we don’t apply our justice to ALL accused, what does it mean?

  15. 15
    tBone says:

    These are the standards we wish to set for ourselves?

    911 changed everything. Besides, the terrorists want to KILL US!! Why do you like them so much? [/wingnut]

  16. 16
    Kirk Spencer says:

    Jen said:

    I think there’s a fairly broad consensus that non-citizen detainees shouldn’t be treated any better than any other non-citizens in any other courts across the country, who can be deported for their convictions, for example.

    No better, sure. But no worse, either. They can be deported for their CONVICTIONS. And if it’s determined they’re illegal immigrants, they can also be deported, though there’s yet a different set of processes involved.

    But they can’t be tossed into prison on suspicion, with trial delayed indefinitely, and then when they ARE tried it’s in a closed-door court where the judge and the prosecutor worked together on the prosecution’s case while the defense attorney isn’t allowed to see any of the evidence.

  17. 17

    […] Changing the procedures isn’t enough. Guantanamo Bay has to be closed and, then, the US has to make a new start with regards to how it treats terrorism suspects. […]

  18. 18
    Jen says:

    No better, sure. But no worse, either. They can be deported for their CONVICTIONS. And if it’s determined they’re illegal immigrants, they can also be deported, though there’s yet a different set of processes involved.

    But they can’t be tossed into prison on suspicion, with trial delayed indefinitely, and then when they ARE tried it’s in a closed-door court where the judge and the prosecutor worked together on the prosecution’s case while the defense attorney isn’t allowed to see any of the evidence.

    Right. No argument here. I was simply responding to the folks saying they should be treated the same way citizens are.

  19. 19
    Jon H says:

    I’ll just note that the administration’s logic that non-citizens apprehended outside the US can be held outside US territory and no rules apply would also have justified Auschwitz: non-Germans some of whom may have been nonuniformed combatants (Warsaw Ghetto uprising, etc), held by the Germans, on Polish territory.

  20. 20
    Cyrus says:

    But the issue is whether guys who are insurgents, or Al Qaeda, or Al Qaeda in Iraq, or some other group with an axe to grind not associated with any particular country’s government—they’re not exactly soldiers, so what category are they in and what do we do with them?

    I’m not a lawyer, but I think the only two categories are civilian and soldier (or “military personnel” or whatever the technical term is). There’s international law for soldiers. For civilians, the local government has jurisdiction, in theory. On American soil, that would mean that the alleged terrorists should get treated more or less like a member of of an organized crime organization. In another country, it’s up to the local laws, which would probably treat them similarly in broad outline.

    But what if you’re in a place where there is no local law, or where there is a local law but Americans are officially outside it, such as, for example, Iraq? Then imprisoning the alleged terrorist without a trial and doing whatever you want with them is… as legal as anything else.

    To be totally clear, I don’t like this. I’m just saying that if we’re fighting a “counterinsurgency” outside our own country, not on behalf of the local government but to create a new one or something, then the current situation is very nearly inevitable. The solution is not to accept the current situation as good but to avoid fighting fricking counterinsurgencies.

  21. 21
    Vladi G says:

    Patterico’s commenters are fucking idiots. This one is a fine example:

    Second, I agree it would be hard to rebut testimony from an unnamed witness. So how did any detainees get released? My guess is they offered a convincing story of what their lives were like before their detention, and those stories generally rebutted an affiliation with al Qaeda.

    According to a statement at one of the links (I forget which one), the US has released 30 detainees who apparently returned to fight against the US or its allies after their release. The standards for review must be somewhat fair if that has happened.

    Wait, let me get this straight. You mean we took a guy anbd held him for a couple of years with no cause, completely cut off from his family, possibly tortured him, and certainly treated him sub-human shit, then released him. And that guy, after he went back home, he decided to fight us? What an ingrateful bastard!

    No one could have predicted that people whom we treated like terrorists for in prison for a few years would actually get released and then act like terrorists.

  22. 22
    Jake says:

    Well, let’s say you pick up a guy because you think he planted an IED that blew someone up, just for example. That doesn’t make him a soldier, right?

    Fair enough. If a US citizen is picked up in America because he’s been accused of planting a bomb, he gets tried in a US criminal court. If a US citizen is picked up in another country for planting a bomb, he’d be tried in that country’s criminal courts under that country’s laws.

    Instead we have the equivalent of a US citizen accused of a crime on US soil being schlepped out to India and tried under some laws that people made up as they go along.

    Wookies on Endor.

  23. 23
    Tsulagi says:

    As said, it’s pretty sad when the US has dropped below the standards of evidence, presumption of innocence, etc. of the Inquisition (which is where a lot of this stuff comes from.)

    You might be on to something there, grumpy. In the spirit of Xmas and Christian forgiveness, could probably get the Bush socons and defcons to agree to rise to a level of Spanish Inquisition jurisprudence.

    In coastal communities during that time, if someone was accused of being a witch or evildoer for Satan, they were weighted down and tossed into the Med. If they drowned, it meant they had no supernatural powers so they were innocent. But the inquisitors were not at fault since they were doing God’s work. God would sort it out. If the accused somehow survived, that was proof they had Satanic powers so then they were burned on land. Foolproof system.

    Could use that at Gitmo since it’s on the water. Toss the suspected jihadi into the water. If he drowns, for the socons a forgiving God will sort it out. If he surfaces surviving, for the defcons that’s proof bin Laden freed his soldier underwater so summarily execute him on land. Everyone’s happy. Smart, strong.

  24. 24
    Jake says:

    I am totally stealing Defcons.

  25. 25
    ImJohnGalt says:

    Uh, we’ve all known about this for several years now. Countless blog posts and newpaper articles have dealt with it in a fair amount of detail. Patterico is part of the justice system, so I’m assuming that he hasn’t just been ignoring the issue until now.

    So, while I place this in the “Nice post, but have you been hiding in a hole for the last few years?” category, my immediate next question is. “Why now?”

    Who gains by the previously “turn a blind-eye” Republicans suddenly embracing humanity? Is this part of the long-term plan to pretend that the current Republican party would be so much nicer, if only you’ll vote for the *next* Republican nominee, because it was all Bush’s fault?

    Actually, that’d be pretty funny if the right-wing blogs started all their posts with “It’s all Bush’s fault!! Blaarrgghhh!”, only in an attempt to misdirect attention from the party machinery that enabled him. It would be like when they tried to pretend he wasn’t a *real* conservative.

    Also,

    There may be legal justifications for them; I can’t authoritatively speak to that.

    I’m sorry, but if the people entrusted with the enforcement of our legal system can’t construct an opinion based on their study of the law, what the fuck are they doing practicing at all?

    My wife (Duke Law – and I agree, Blue Devils Suck!) who was a prosecutor for 10 years, wants to slap someone after reading this.

  26. 26
    Jen says:

    Cyrus, I’m a lawyer who does jack nada to do with national security law, so I know not from whence I speak here, but I think the Hamdi decision said the “enemy combatant” category is o.k., but U.S. citizen combatants captured overseas must be afforded some meaningful due process to challenge their detention. They did not specifically say that this must be in civilian courts, but in the Hamdan decision later said that the military commissions did not provide meaningful due process. Thus the government really boxed itself into a corner there.

    I *believe* that the issue of due process for noncitizen enemy combatants is still a fairly open question, legally speaking.

    Anyone with more knowledge of the decision or other jurisprudence on this is welcome to chime in.

  27. 27
    Tsulagi says:

    Is this part of the long-term plan to pretend that the current Republican party would be so much nicer, if only you’ll vote for the next Republican nominee, because it was all Bush’s fault?

    Whoa, are you misinformed. Everyone knows it was the Democrats fault for not stopping Bush. See Rule #1: The Democrats are always worse. Known truth.

  28. 28
    LITBMueller says:

    Fuck the Hamdi case. The whole concept of “unlawful combatants” makes no sense to begin with. If we are saying that they do not fall within the Geneva Convention protections, and are “unlawful” due to their presence and actions on the battlefield, then we are saying they broke a law, right?

    What law? Whose? Well, wouldn’t that be OUR LAWS? The charges being levied against them in these military commissions concern violations of our laws, so that puts them right in our system, with the all the rights that attach, because those rights are not designed to give defendants a leg up as much as limit what the government can do in its zeal to prosecute someone.

    The right to confront your accuser, the right to a jury, the right to counsel, the right to a trial…these were all developed as checks on the government, to prevent them from having an unlimited power to detain and/or try those that may or may not be innocent.

    It really seems damn simple to me: if there are people out there that are “unlawful combatants,” then they broke one or more of our laws, and should be tried in our system for doing so.

    And, someone answer me this? How the fuck did these guys from the desert and caves and shit, carrying rusty AK-47s in Afghanistan, become soooooo fucking dangerous that they need to be held in Cuba in a special prison and can’t be tried in our courts? We try, convict and imprison gang members in this country that make Al Qaeda look like a bunch pussies!!!!

  29. 29
    Zuzu says:

    I’d say “good for him” (Patterico) if his site didn’t still stink from his multiple posts launching hypothetical torture scenarios like flaming turds and then dissing commenters who pointed out that they were flaming turds.

  30. 30
    El Cid says:

    The whole concept of “unlawful combatants” makes no sense to begin with.

    Maybe they really mean extra-lawful — no laws apply.

    So if someone says that there are people around to whom no laws apply, suddenly we’re morally unbound, free to act like a bunch of marauding baboons if we like, and the Founding Fathers would be proud.

    Remember, if somehow you feel the Constitution doesn’t apply, you get to live out whatever weird ass revenge fantasy you want, and — magically — this in no way makes our national character come into disrepute!!!!

    After all, like your Momma taught you, if no law says you’ll be punished for doing wrong and acting like a cretin, you’re completely free to do so.

  31. 31
    Johnny Pez says:

    Agree with Zuzu. Apparently Patterico is shocked, shocked at the idea of kangaroo courts, but is totally cool with torturing prisoners.

    Patterico is still scum.

  32. 32
    Zuzu says:

    IMO, it’s not even so much that he seems cool with it as his nasty, finger-jabbing accusations aimed at those who disagree or more often, simply can’t be bothered to play along with such idiocy.

  33. 33
    grumpy realist says:

    As said, the right to assumption of innocence, the right to confront your accuser, and the right to hear the evidence against you dates from when the Catholic Church was setting up the Inquisition to deal with the Albegenian heresy in Southern France. All argued from Natural Law, BTW.

    (The latest expansion of Natural Law/Rights has been in the area of copyright. Lunatics…)

  34. 34
    m.croche says:

    Patterico is one of the purer incarnations of Jekyll/Hyde that you’re likely to find on the internet.

    Time for a little stroll down memory lane.

    Patterico, 9/17/2006: Today’s New York Times magazine has a lengthy and fascinating article on Guantánamo. Among other things, it confirms that the June suicides of three detainees was indeed a publicity stunt designed to put pressure on the United States to shut down the facility. The likelihood that the suicides were a planned act of asymmetrical warfare was something that Army officials (and I) pointed out at the time — and which lefty commenters ridiculed as an “Orwellian” and “Kafkaesque” position.

  35. 35
    m.croche says:

    Just to add: One of the prisoners who committed suicide in June, 2006 was apparently due to be released, though he was not informed of that fact. He was innocent, at least of the kinds of charges that warrant transportation to and incarceration in, Guantanamo.

    Despite this, Patterico, in the post above, writes:

    “What the article illustrates is that we are dealing with an enemy that is unlike us. Most Americans would never consider killing themselves to bring poor publicity to the country detaining us. These men went to great lengths to do exactly that. Whatever our policies are, they must take account of the fact that our detainees’ mindset is different from most of those we have encountered in the past.”

    http://en.wikipedia.org/wiki/G.....ot_PR_move

  36. 36
    chopper says:

    torture for some – miniature american flags for the rest!

  37. 37

    There’s a point about Gitmo that I wonder if others can shed some light on.

    We (the Administration) claims that Gitmo is not U.S. soil, so constitutional rights don’t obtain to those held there.

    Yet, while Gitmo is a physical portion of the island nation of Cuba, the Administration also claims that since we (the U.S.) have a perpetual lease of Gitmo under the terms of a treaty signed in 1903, no Cuban government has any say over the activity that happens there–and thus cannot exercise their legal authority.

    This is very clearly the sophist’s way of creating a legal black hole in which all manner of outrage can be perpetrated. After all, if the place is in jurisdictional limbo, then why not put it in legal and constitutional limbo as well?

  38. 38

    Let me see if I’ve got this figured out, we have a good enough legal system to try our citizenry with when accused of a crime, including some pretty bad ones, so why isn’t that system good enough? Why do we need some other system?

    Does anybody think that maybe Ted Bundy was a little bit dangerous?

  39. 39
    Patterico says:

    m.croche sez:

    “Time for a little stroll down memory lane.

    “Patterico, 9/17/2006: Today’s New York Times magazine has a lengthy and fascinating article on Guantánamo. Among other things, it confirms that the June suicides of three detainees was indeed a publicity stunt designed to put pressure on the United States to shut down the facility.”

    I still believe those suicides were an act of asymmetrical warfare. As my post notes, there was a lengthy NYT Magazine article about the suicides which largely corroborated that view. The fact that you are apparently unfamiliar with that article is your problem and not mine.

  40. 40
    Patterico says:

    From the Doobster’s link:

    Colleen Graffy told the BBC the deaths were part of a strategy and “a tactic to further the jihadi cause”, but taking their own lives was unnecessary.

    Well, I stand corrected! All hail the great croche!

  41. 41
    Patterico says:

    Anyone interested in a true stroll down memory lane is invited to read the entire post of mine that croche linked, with its extensive quotations from the NYT Magazine article in question. The article was based on numerous interviews with detainees as well as military personnel at Gitmo, and (as I said at the time) makes a good case for treating most detainees in a manner consistent with the Geneva Conventions. I.e. it was hardly a piece of anti-jihadi neocon propaganda.

    It is not inconsistent to think that a) many people at Gitmo are indeed terrorists and/or enemies of America, yet b) deserve to have their tribunals conducted in a way that is not absurdly unfair on its face. To profess one’s belief in concept b) is not the same as naively accepting the idea that concept a) must be false.

  42. 42
    grumpy realist says:

    Dear Patty–that “enemies of America” you’ve put forth sounds suspiciously Soviet. It’s far too easy to label someone a “suspected terrorist” or an “enemy of America.” Which is one of our complaints.

    Could we please get together all the bedwetters who want to throw out over 1000 years of legal tradition and dump them in one of the square states? We’ll build a big fence around it, so they can be protected from whatever it is they fear.

  43. 43

    231 years ago there’d have been a hanging, and it wouldn’t have involved Allah

  44. 44
    Patterico says:

    It’s far too easy to label someone a “suspected terrorist” or an “enemy of America.” Which is one of our complaints.

    And mine. Which is the point of John’s post. Or did you forget that?

    My point is responding to croche, that just because the process is flawed doesn’t mean there aren’t people there willing to commit suicide as an organized act against the U.S. (Radical Islamists committing suicide to harm the U.S.? What a crazy thought! THAT never happens!!)

  45. 45
    mclaren says:

    Rule of thumb: whatever gets done to prisoners, members of the military, and kids in grade schools, eventually gets done to the rest of us unless there’s a huge stink raised abou it.

    When you realize that most of the so-called “evidence” against the Gitmo detainess is developed through torture, you’ve got a “justice” system straight out of the middle ages. Haul some random guy in, torture him until he says whatever you want, then drag the broken deranged gibbering schmuck in front of a star chamber kangaroo court and don’t let him see the “evidence” (translation: the transcript of whatever he screamed to stop your torture) and don’t let him present any evidence. Presto! Change-o! We’re back at the medieval witch trials! Your wife is a witch and we can prove it! How? Because we tortured her until she confessed! What’s that? You say you were WITH your wife the night she was supposed to have consorted with the devil? Sorry, you can’t present that evidence. Verdict: your wife is guilty of witchcraft. She’ll be hung tomorrow at dawn.

    Coming soon to a courtroom near you: evidence produced by torture, sealed indictments that the prosecution won’t let anyone see, defendants not allowed to present a case, and “judges” who don’t need to hear the case because they’ve been instructed by the Grand Inquisitor to presume you’re guilty of heresy regardless of what you say. Yes indeedy, folks, we’ve revved up the old wayback machine and we’re now in the 15th century…

  46. 46
    Jon H says:

    Patterico wrote “My point is responding to croche, that just because the process is flawed doesn’t mean there aren’t people there willing to commit suicide as an organized act against the U.S. ”

    If you seriously consider such harmless suicides a threat to US security then you’re just a pathetic fearful man.

  47. 47
    Patterico says:

    Nice dodge, but the issue is not “big threat” vs. “no threat” but rather “genuine suicide from despair” vs. “organized act designed to affect U.S. policy.”

    Read my excerpts of the NYT Mag article and it’s clear the Gitmo suicides were the latter.

    Now, I recognize that it could be an organized act driven partially by despair. But its organized nature is what distinguishes it. I can’t imagine a similar act taking place in a U.S. prison, unless done by a group of radical Islamists, no matter how despairing the inmates.

    The point is that the picture croche wants to paint in your mind — of individuals committing suicide alone, as a classic suicidal response to despair — is not consistent with the facts. They were trying to affect U.S. policy by generating international outrage.

    Some of you really want to have an argument, I understand. Look, it’s the conservative! Argue with him! But there really isn’t much to argue about here, regarding whether the suicides were organized. They clearly were. Beyond that, make of it what you will.

  48. 48
    cleek says:

    always remember kids, waterboarding isn’t torture.

    or, if it is, it’s only ‘mild’. and besides, They did something worse to Us, therefore we should really torture them, even more.

  49. 49
    jcricket says:

    They were trying to affect U.S. policy by generating international outrage.

    So you can look into the soul of a dead man and see that he was trying to generate international outrage? Where are you getting this?

    Even if that’s the case, what’s the rational response here? Are you seriously going to argue the outrage isn’t warranted. With no hope, isn’t suicide isn’t a likely, rational response to the possibility of indefinite detention, torture and rendition? We’ve released something like 4/5th of the prisoners we’ve held at Gitmo.

    That means, far from being the “worst of the worst”, most of them are likely innocent or guilty of nothing severe enough to warrant being whisked around the world, tortured, kept in solitary, etc.

    Whether or not they came to the idea on their own, or formed a prison suicide “how to” book group with some hope of affecting the lives of the prisoners who remain alive doesn’t change a goddamn thing Patterico, and it’s wrong to claim otherwise.

  50. 50
    oregon.guy says:

    Jen-

    I know a thing or three about the Law of War and Geneva. Basically the presumption is that a person captured with arms or evidence of hostile intent on the battlefield (pretty much anywhere a US servicemember catches someone is the battlefield) is presumed to qualify as a POW under Geneva. There is a quick procedure to determine whether or not a person is a POW or not. But POW is the default.

    Now, Geneva says that we can try these people for not following the Convention: i.e. – for not wearing a uniform or other identifying marks, or for violations of relevant criminal law.

    But note: we TRY them for NOT WEARING A UNIFORM, we don’t try them for fighting us. (Although we could try them for espionage, sabotage, attempted murder and any other relevant laws, like the punitive offenses of the UCMJ in areas subject to military jurisdiction)…

    Key word there is TRY, as in, TRIAL. As in: the full panoply of rights the US accords to all persons accused of a crime.

    No detainee is without status under Geneva. He is either a POW or a civilian. A person committing a crime in the area of jurisdiction of the US military is subject to the relevant law of civilians in that area. This position has been upheld by international tribunal for the former Yugoslavia; it is also U.S. law by the ratification of the Fourth Geneva Convention which is real live, no-shit binding domestic law which the U.S. is probably breaking when it plays games with the status of its detainees.

  51. 51
    Patterico says:

    “So you can look into the soul of a dead man and see that he was trying to generate international outrage? Where are you getting this?”

    The NYT Magazine article that I can tell you didn’t read.

Trackbacks & Pingbacks

  1. […] Changing the procedures isn’t enough. Guantanamo Bay has to be closed and, then, the US has to make a new start with regards to how it treats terrorism suspects. […]

Comments are closed.