22-07-2003 05:47									#121
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quote: a) whether or not it is right is pretty subjective, whereas whether or not it is legal is pretty objective

Well I'm not going to threadjack this into objective moral truth - we can discuss that elsewhere. I think the point, though, was that just because something is legal doesn't necessarily mean it should be done.

	22-07-2003 05:48									#122
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quote: whether or not it is right is pretty subjective

Agreed, thus my question is (now) whether or not it is rational.

quote: whereas whether or not it is legal is pretty objective

But less useful philosophically.

	22-07-2003 05:48									#123
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quote: Originally posted by MichaeltheGreat Because, my dear Watson, at the time the Constitution was ratified, it enacted the United States of America as a distinct sovereign state, essentially consisting of a federation (or Confederation ) of previously existing sovereign states. The Constitution expressly acknowledges duality of citizenship, in the form of citizenship of a state, and of the United States. Prior to ratification, there was no vslifly existing "United States of America" and thus no citizenship thereof. The Framers were also smart enough to figure that in the course of commerce, trading or acquiring territory, banking, etc., that non-citizens might become citizens, and that non-citizens would also have normal contact with the US government and legal system. It's generally much simpler to have one recognized legal system with uniform rules for all before it - the two areas of exception that have long been recognized are military law and admiralty or maritime law.

AFAIK all western countries have a similar legal structure. There is not, generally, one class of legal protection for citizens and a lesser one for noncitizens.

	22-07-2003 05:49									#124
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Mostly because elijah's first post seemed mostly to relate to the constitutionality and legality of it, and not so much as to whether it was right. I contened that point, and so the thread went off in that direction.

	22-07-2003 05:52									#125
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quote: Originally posted by skywalker I don't know, but maybe they wouldn't fall under six because it was an occupied territory?

How so? Most were not from already occupied territory, AFAIK; they took up arms prior to the arrival of the US troops and did not fight "behind the lines"; rather they were captured in large-scale conventional military engagments.

	22-07-2003 05:52									#126
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Question: Is Guantanamo a logical way of dealing with prisoners? Is it moral or rational (according to your personal moralities) to treat prisoners like that, even though they have not been convicted, they havent been proven guilty beyond reasonable doubt yadda yadda?

Do the prisoners warrant sufficient tactical threat to be placed in those conditions that are 8/10 if Auschwitz is 10/10, where a normal max sec prison would easily suffice?

Does the right to a fair trial preclude possible threats to national security, for evidence concerning tactically low level individuals (I can understand if we were dealing with Bin Laden or Saddam Hussein, but these guys are pawns mostly)?

Whats so great about the right to a fair trial and the presumption of innocence before guilt for all criminals?

	22-07-2003 05:53									#127
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quote: Originally posted by KrazyHorse My argument is with your assertion that they are so obviously not under section 6...

That's why we don't have Taleban in any significant numbers in Gitmo. Inhabitants of the non-occupied territories within the meaning of section 6 means (a) people who are settled there for a period of time, going about their ordinary business of something other than being a mercenary, etc. In other words, a bona-fide resident. So with the bulk of Afghani prisoners, we never took custody because they obviously fell under 6 at least, if not the other forces.

The other side of 4A6 is that part about "spontaneously taking up arms at the approach of the enemy" - that's a stretch when you have regular arms caches, training camps, and people actually stationed as fighters in given areas.

	22-07-2003 05:53									#128
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quote: Mostly because elijah's first post seemed mostly to relate to the constitutionality and legality of it

My bad, I assumed we would be discussing the philosophical ramifications of it too, which is more up my street.

	22-07-2003 05:56									#129
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quote: Originally posted by elijah Question: Is Guantanamo a logical way of dealing with prisoners? Is it moral or rational (according to your personal moralities) to treat prisoners like that, even though they have not been convicted, they havent been proven guilty beyond reasonable doubt yadda yadda? Do the prisoners warrant sufficient tactical threat to be placed in those conditions that are 8/10 if Auschwitz is 10/10, where a normal max sec prison would easily suffice? Does the right to a fair trial preclude possible threats to national security, for evidence concerning tactically low level individuals (I can understand if we were dealing with Bin Laden or Saddam Hussein, but these guys are pawns mostly)? Whats so great about the right to a fair trial and the presumption of innocence before guilt for all criminals?

Well, if Auschwitz is 10/10, I'd say this is 1/10.

	22-07-2003 05:57									#130
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quote: Originally posted by KrazyHorse How so? Most were not from already occupied territory, AFAIK; they took up arms prior to the arrival of the US troops and did not fight "behind the lines"; rather they were captured in large-scale conventional military engagments.

That's what the "I don't know" was for.

	22-07-2003 05:57									#131
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quote: Originally posted by skywalker I don't know, but maybe they wouldn't fall under six because it was an occupied territory?

Please tell me your joking? P1ss poor reason (excuse?) by any stretch of the imagination!

	22-07-2003 05:58									#132
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quote: Originally posted by MichaeltheGreat That's why we don't have Taleban in any significant numbers in Gitmo. Inhabitants of the non-occupied territories within the meaning of section 6 means (a) people who are settled there for a period of time, going about their ordinary business of something other than being a mercenary, etc. In other words, a bona-fide resident. So with the bulk of Afghani prisoners, we never took custody because they obviously fell under 6 at least, if not the other forces. The other side of 4A6 is that part about "spontaneously taking up arms at the approach of the enemy" - that's a stretch when you have regular arms caches, training camps, and people actually stationed as fighters in given areas.

Yeah, but they weren't training to fight the US in Afghanistan (which would have necessitated getting themselves some uniforms). They were training to become terrorists, and only took up arms as a result of an unexpected (?) development (the invasion of Afghanistan).

The possibility at least that this interpretation is the right one is there. And that's why there needed to be a competent tribunal, not like the one which was convened (which basically rendered hundreds of verdicts a day and which was constrained by the definition imposed by the Prez)

	22-07-2003 05:58									#133
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quote: Originally posted by KrazyHorse IIRC the standard applied is that of being competent and impartial. The executive orders regarding what standard was to be applied limit by definition the competence of the board making the decision.

Impartial is not mentioned. Competent merely means for this application (because determination of their actual competence is a subjective lawyer-fest ) a tribunal that has proper authority and jurisdiction.

You see that use of competent in contract law all the time - "a court of competent jurisdiction" which merely means it has authority over the persons, place, and subject matter to hear the case. i.e. a traffic court in Kansas can't hear a murder trial in California, no matter how favorable the judge would be.

	22-07-2003 06:00									#134
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quote: Originally posted by MichaeltheGreat Impartial is not mentioned. Competent merely means for this application (because determination of their actual competence is a subjective lawyer-fest ) a tribunal that has proper authority and jurisdiction.

It did not have the proper authority because of the orders issued it (that all Al Qaeda prisoners were to be declared unlawful combatants)

	22-07-2003 06:00									#135
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1/10 would be a baby's cot.

8/10 because better food, and no prospect of getting systematically killed, at least theyll get something loosely resembling an opportunity to defend themselves. Of course there are far less of them too. Still, similar level of freedom, guarding, regulation, prospect of likely death (at end). They have a worse legal status clearly too, an indictment on the geneva convention.

	22-07-2003 06:01									#136
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And yes, I was aware that competence in this case had nothing to do with their intelligence...

	22-07-2003 06:13									#137
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quote: Originally posted by elijah Thats not very nice is it? *runs crying into toilet*

On the contrary.

quote: There is no standard for proof full stop! Beyond reasonable doubt, good evidence for the proposition etc etc. Usual stuff.

Instead of just spouting generalities, read the ****ing convention language, OK? Their rights are that their status be determined by a competent (meaning having jurisdiction over the place and person and subject) tribunal. That means a military tribunal of a warring party occupying the territory in question. In the US case, if the tribunal procedures that are under review now are even vaguely consistent with the UCMJ and MCM (which they likely will be, since it's military lawyers, they'll stick with the system and procedures they know), then the procedual treatment of those tried will be well protected.

quote: They have no right to a fair trial? That sounds fishy.

POW's have a right to summary or general military trials of competent jurisdiction. Unlawful combatants are not covered under the rules governing treatment of POW's.

quote: My dear sir, you are negating your right to be taken seriously with **** like that.

I'm very serious. Dead serious, shall we say. Unlawful combatants do not have POW or noncombatant status, so summary disposal of the problem in the field is perfectly legal. War is about killing the enemy, in case you hadn't heard. It's not police work, or a touchy-feely get to know you exercise. Even regular soldiers, if you resist until the enemy has to close assault you, you'd better take them out, or make your peace with God, Allah, or whoever, because your ass is done.

quote: Theres no legal barrier to that being the case for me, yet I can be captured and placed in terrible conditions like Guantanamo, tried under an unfair military tribunal and if found guilty (unfairly), executed, yet I have committed no crime?? It may be legal, but it sucks!!

Actually, you can drop your weapon, raise your hands, and have your face blown off at full auto anyway. Something to think about before running off to play terrorist or unlawful combatant. Better wear a uniform, carry your weapons openly, report to an organized chain of command, and adhere to the laws and customs of land warfare.

quote: Then they cannot expect me to take them seriously. Of course, they say big deal, but wait 20 years

I'm sure they're all appropriately concerned.

	22-07-2003 06:18									#138
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quote: Originally posted by KrazyHorse It did not have the proper authority because of the orders issued it (that all Al Qaeda prisoners were to be declared unlawful combatants)

That doesn't affect competence. That is simply a legal opinion that al Qaeda is not a qualifying combatant power or a qualifying organization or militia of a combatant power, such that membership therein created a general presumption of POW status, beyond the initial presumption afforded all captured persons.

That's no different than determining that members of Mad Mike Hoare's Wild Geese captured in the Congo were unlawful combatants, because it was an irregular mercenary organization which didn't give a damn about the customs of war.

There is precedence for such determinations, based on determining the legal status of a group or organization.


The Taleban, OTOH, was found to be a militia of a qualifying combatant, and thus most Taleban members were presumptively POWs on the basis of their membership.

	22-07-2003 06:19									#139
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MtG: If you are correct, then that really really sucks!!

	22-07-2003 06:26									#140
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quote: Originally posted by KrazyHorse Yeah, but they weren't training to fight the US in Afghanistan (which would have necessitated getting themselves some uniforms). They were training to become terrorists, and only took up arms as a result of an unexpected (?) development (the invasion of Afghanistan).

Your first point admits they are not occupants of the territory in the sense of the convention - they were foreigners temporary using the territory as a training facility. They were also armed at all times, as it's pretty well established now that al Qaeda provided muscle for the Taleban, as well as to control the Taleban to a large degree. Not even near a majority of the al Qaeda members were in terrorist training, (cf John Walker Lindh) - the vast majority were irregular combatants independent of the Taleban chain of command, fighting the NA and EA.

Also, the standard in 4A6 is of spontaneously taking arms. Having days or weeks notice and being part of a pre-armed group doesn't even come close.

quote: The possibility at least that this interpretation is the right one is there. And that's why there needed to be a competent tribunal, not like the one which was convened (which basically rendered hundreds of verdicts a day and which was constrained by the definition imposed by the Prez)

As shown, even if your version of events is correct, it doesn't meet the 4A6 standard. As for the speed of the tribunal - these people weren't tried or convicted of any offenses, the only thing done was to determine their status under the GC. And in the vast majority of cases, they didn't get shipped to Gitmo. The vast majority are free, or in Afghan government or third-party goverment custody for reasons independent of the tribunal's determination of status under the GC.

	22-07-2003 06:27									#141
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Ahem, MtG, we're not just talking about legality here...

	22-07-2003 06:28									#142
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quote: Originally posted by elijah MtG: If you are correct, then that really really sucks!!

Let me put it this way - (a) as bad as the Taleban were, their members were found to be presumptive POWs in all but a handful of cases.

(b) What kind of slack do you think they'd cut you as a prisoner?

War is a serious business.

	22-07-2003 06:32									#143
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quote: Originally posted by elijah Ahem, MtG, we're not just talking about legality here...

Sure we are. The "morality" is that these *******s forfeited virtually all rights and protections as a result of their chosen manner of carrying out jihad. The fact that a vast majority of them will eventually return to their families is a hell of a lot better deal than they were dishing out when they ran things, and pretty lucky for them.

Maybe you want to watch that video of them testing out gas on a dog a few times? Or read a little al Qutb? Or read an al Qaeda training manual?

**** 'em. They're lucky they don't get a quick one to the back of the head.

	22-07-2003 06:33									#144
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quote: War is a serious business

War is a twisted business. Dont do it!

	22-07-2003 06:35									#145
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We didn't start it, the *******s did.

But we're going to finish it.

	22-07-2003 06:36									#146
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quote: Originally posted by MichaeltheGreat **** 'em. They're lucky they don't get a quick one to the back of the head.

Well that's true - I saw a doco last night about the ruskies storming that theatre the Chechens took over.

No need for trials after that little operation.

But this whole camp thing is wrong and ultimately counter productive on a lot of levels. I think the Administration are looking for a face saving way out of it. It's becoming a big embarrassment. Also must be hugely expensive and corrosive of morale out there.

	22-07-2003 06:36									#147
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MtG, who are you to judge these people? You may have your morality and judgements by them, and that is fine, but yours and those like yours should not be forced on others, to do such a thing is inherently irrational, illogical, and fundamentally flawed.

	22-07-2003 06:39									#148
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quote: We didn't start it, the *******s did.

They responded to your foreign policy. Someones got national wounded pride .

quote: But we're going to finish it

You're not, you're really not!! I'd like to see the US gain victory in this war, but its not going to happen! Hell I could fight a war against terror better than them, but it wouldn't win votes.

	22-07-2003 06:41									#149
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quote: Originally posted by elijah MtG, who are you to judge these people? You may have your morality and judgements by them, and that is fine, but yours and those like yours should not be forced on others, to do such a thing is inherently irrational, illogical, and fundamentally flawed.

So instead of live and let live, your version is "let them kill you and declare jihad against you, but let live anyway, because it's all a big ****ing cultural misunderstanding?

Read al Qutb and/or al Maududi and form your own judgments.

	22-07-2003 06:44									#150
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quote: Originally posted by elijah They responded to your foreign policy. Someones got national wounded pride .

Hardly, I don't even live in the US, that's how nationalistic I am.

And you really ought to study the ideology of modern Islamic fundamentalism before you expose yourself as even more of a misguided western fool who buys into al Qaeda soundbites.

quote: You're not, you're really not!! I'd like to see the US gain victory in this war, but its not going to happen! Hell I could fight a war against terror better than them, but it wouldn't win votes.

Go get 'em, tiger.

I feel safer already.