Guántanamo detainees—the full list

[Bigduke6]

I think they are not so much demanding Geneva Rights protections as they are attacking a weak American legal position when it comes to the war itself. To the Americans' credit theirs is a generally law-abiding society and an action by authorities violating American law can, as a general thing, be challenged in court. The detainees and their supporters realize this, and certainly some of them are smart enough to realize a good lawyer might very well get them released.

The linchpin of the US government's legal problems is that there was no declaration of war.

True, Congress and the UN did indeed authorize the use of military force in Afghanistan. That may work out to the same thing at the sharp end, a bullet doesn't really care if it was fired in a police action or a limited intervention or a full-blown war. But at home without a declaration of war, all laws stayed put.

The executive branch obtained no special domestic powers from those resolutions. The pertinent US law that applies domestically, the Patriot Act, gives only limited powers and in any case it's not clear how that applies to a territory outside the jurisdiction of US judges, which is what Guantanamo is. So, given the laws and acts of Congress in place, use of force and whatever other special actions by the executive branch might see fit as necessary to support that use of force, by definition are permissible only as long as the conditions necessitating the use of force exist.

What the Guantanamo detainees and their friends are essentially doing, is arguing those conditions don't exist. By many standards they have a pretty good case.

Both the UN resolution and the Congressional bill approve the use of force against terrorists involved in 9/11 or threatening the US. Could a government lawyer today go to court and argue successfully that the detainees, all of them, constituted a legitimate threat to the US? Even a few of them?

For those detainees who do not fit that yardstick "involved in 9/11 or constituting a real or potential threat the the US", a defense lawyer might well ask, on what grounds does the US government have to go into another sovereign nation and detain innocent individuals?

Should the US government not, if detainees "accidentally" picked up but later found not to be terrorist threats, release them? Where are the legal grounds for unlimited detention of a foreign national not constituting a terrorist threat to the US?

Further, if no review mechanism exists which is transparent and independent and capable of determining whether a detainee constitutes a threat or not, couldn't that absence of a review mechanism be a violation of US constitutional guarantees against unwarranted search and seizure? The constitution applies to US government employees and military service members, even when they are overseas, they are still bound by all US laws barring specific exceptions as approved by the body of government that makes the laws, which is Congress. Even the Patriot Act requires review after some period of detention without charge, and bans unlimited detention without charge.

So government lawyers are left with a bad choice. Either they charge the Guantanamo detainees and face US military actions getting chewed over in court, with the standard of evidence and protections to the accused as per US law; or they don't charge the Guantanamo detainees and hope the legal system doesn't challenge them for potentially violating US law.

The way out, of course, would be for Congress to have declared war on terrorists in general including all people even considering terrorism vs. the US, or the country of Afghanistan. They would have given executive branch broad rights to use force and any other means necessary against any persons the executive branch defined as persons conducting or planning to commit terrorist acts against the US.

A declaration of war is a big fat green light. It allows the executive branch to run roughshod over most parts of the constitution if the executive sees fit, it can suspend freedom of assembly, censor, nationalize property, whatever it takes for the war effort. But that is not the case here.

If we are to hold the US government to the letter of the actual resolutions supposedly giving its military authorization to conduct combat operations in Afghanistan, then for its subsequent acts to be legal under US law, every detention, every bit of property damage, every injury inflicted and kill registered by US forces MUST meet the 'involved in 9/11 or is a terrorist planning to attack the US" standard.

If this were a declared war then it would be easy, under those circumstances the executive can do almost anything it wants to defend the security of the nation and there are very few checks. The Feds could detain any one they felt like, hold them as long as they chose, and if history is any measure that would include plenty of American citizens too.

But that condition doesn't exist. Once again, there was no declaration of war - all the executive has is an authorization to do is go after terrorists. In say Russia or China this would not be a big deal, when laws are inconvenient they ignore them. But in the US, it is not so easy - still - to ignore an inconvenient law.

This leaves any US action not matching the language of the use of force authorizations open to legal challenge, as the anti-terrorism resolution did not cancel the rest of the US laws on the books. This is where the challenge to the "legality" of Guantanamo comes from. It is almost certainly a violation of US civil and criminal rights law, unless war powers given the executive branch by Congress can be seen to override that law.

Sure the US government can fight the challenges, it has its own lawyers and at the end of the day US judges received government paychecks. Their strategy is clear: they have decided it is best to try the detainees in military courts. This is a tacit admission that were the Guantanamo cases to reach civilian courts, they would almost certainly run afoul of US civil rights protections. But that still won't fix the problem, as in the first case that means all sorts of evidence that is classified will have to get unclassified or the defense can accuse the prosecution of withholding information, or in the second case US military courts, ultimately, are subordinate to civilian courts. Which will almost certainly take the constitution as their starting point for the definition of legal behavior.

Just saying "there's a war on so forget the lawyers" will buy time, but it's worth remembering the US government also has a vested interest in making the laws of the land seem to be functional and applicable to all, not least because the citizens demand it and if the government starts picking and choosing which laws it wants to enforce, the citizens will do the same thing and then guess how many of them are going to pay taxes?

If we are honest, what the US is involved in - my opinion now - is a half-hearted attempt to repress an insurgency whose main goal at this point is not success, but simply somehow protecting the US civilian and military leadership from stating honestly to the voters they have lost a war and have lied repeatedly to the people that pay their salaries (you know, the voters) about its winnability. And that's not just the leadership, every time some airborne sergeant tells his relatives or a reporter how great the war is going, when he knows it isn't, morally he's just as complicit. A lie is a lie no matter its source.

I think that another top priority, not supported by all members of the US civilian/military leadership but enough of them to have a real influence on the war's continuing, is that as long as the intervention is progress massive taxpayer money is being spent; that's government contractors and military careers that directly benefit - and not just the leadership either. A worker at an arms plant or a mid-level US military member have a vested interest in the war's continuing: as long as it does, they for sure have a fairly well-paid job at a time of high unemployment.

In many ways, if you shut down Guantanamo, if you even challenge its legal right to exist, you threaten all that. You shut down that camp or set detainees free via a court proceeding, you have just conceded this isn't a full-dress war and that legal challenges to the war are at least to some extent valid. You also take a very big step towards admitting all the effort and treasure spent on prosecuting that war was a big fat waste, and perhaps worse, all those government people who were saying the war was going well - they were either incompetent or liars, probably both, and for years.

With all that at stake, it's understandable how members of the military and civilian government don't want to open that Pandora's Box. To do so would be to admit defeat and at the same time sign a death warrant for one's own career - look at what happened to Bradley Manning, and he was just a private.

The easier route is simply to do nothing, let things be and hope for the best. That protects the jobs, avoids discussions of defeat, and prevents a legal discussion of what exactly are the defined war aims.

However, that inertia and pretending have real world effects, and one of them is it leaves in place a detention center whose existence by pretty much any standard is detrimental to the war effort.

This is how wars are lost. The leadership for whatever reason, but usually internal politics, supports losing strategies. And the rank and file and average citizens by inaction and frequently their own personal priorities go along with it. That is precisely what is happening at Guantanamo. The sad bit is that it is only one of a pretty big mass of errors that keep on being perpetrated.

[costard]

Nice post BD6 - thanks.

[Affentitten]

SO... Prisoners of War have, throughtout recent history,dating back into WW2, been held until after the war, at minimum..relatives of mine, were held by the Soviets for 10 years after the war ended even,all without actually being "charged"..

Cool reasoning. Totalitarian Russia did it. So we can too.

[abneo3sierra]

Aff, I used them as an example of the worst case,holding 10 yrs after the war..in our case, the war is not even finished..I can add all of allied Europe(and Australia, as part of the Commonwealth)during WW2, for holding their prisoners at least until the war was over.

[Stalins Organ]

SO... Prisoners of War have, throughtout recent history,dating back into WW2, been held until after the war, at minimum..relatives of mine, were held by the Soviets for 10 years after the war ended even,all without actually being "charged".

I thought the whole point of Gitmo was that these people did not qualify to be POW's, hence the various conditions such as lack of red Cross access, solitary confinement, etc., which are all forbidden to POW's.

So sorry - that's a complete non-issue.

[abneo3sierra]

Pretty sure that no one ever said that was the whole point of Gitmo..the primary point of Gitmo always was to have a more secure place to put people considered as threats, that was away from the US mainland.

By the way, off the point you made, but it is worth saying here,that the intel derived which allowed the hit on bin Laden, was gained from prisoners at Gitmo, as well.

[Stalins Organ]

And why was it important they be kept out of the "proper" US (not just the mainland, but anywhere considered part of the USA for legal reasons) - wasn't it so that they would not be subject to normal rules of law, so that torture would be applied without review, etc??

Yes I read that torture used at Gitmo may have started the ball rolling or contributed to his death.

"The ends jsutifies the means" is a pretty slipperly slope though - what else would you consider doing for an expedient result?? Hmm...???

[Tarquelne]

Yes I read that torture used at Gitmo may have started the ball rolling or contributed to his death.

"May" is the really important part. Intel experts - outside the "contractor" types - have been telling us all along that torture is counter-productive under realistic circumstances. At least when you're smarter than the average tin-pot dictator.

But oh, the power of "may"! It'll provide an excuse for future Gitmos - future extra-judicial (military or civvy) incarcerations, torture, tossing out the rules and generally pissing on the Constitution whenever the public starts at a sound for decades to come.

Mission Accomplished indeed.

But, hell, I shouldn't sound so downbeat. Gitmo has had plenty of defenders. Despite the fact they nothing out of Gitmo but the corrosion of American values, American strength, and American standing for years. bin Laden is just icing on the cake: They *never* needed anything of value from Gitmo. We did it because it felt good. Because it kept the boogymen at bay. Because it played well with the base. And because we could. It was the raised fist of tyranny against a world that looked too often to America for salvation, giving too little back in thanks.

It got old.

[abneo3sierra]

whatever....

The end justifying the means, is a debatable issue..not sure on which side of that I stand..for certain, to do wrong, in favor of a right end, I think is still wrong..my argument here, is that I do not think that it is wrong to punish the guilty. Perhaps in NZ, you allow murderers to run loose, rapists to prowl at night, pedophiles to "shop" in schools...

And yes, these are just nonsense examples, I know you do not.

In every war in history, prisoners were taken...they are, really, lucky they were not shot on the battlefields, as most soldiers in history, including from your country, have usually found that easier than dealing with prisoners..as even these same people do, when it is them taking us as prisoners...no mention of Geneva rules then, not one peep..and yes, we should live up to a higher standard..and the point is, WE DO..they are fed, given access to healthcare,libraries,lawyers for heaven sake,that they are not even really entitled to, except because some lawyer decided to give them the same rights as law abiding citizens of OUR country...rights they did not even have to begin with, in their own. These same lawyers, by the way, also have cleared any treatment the said prisoners received, as standing up to Geneva rules, our rules, etc. It is only uninformed people who generally are still against "Gitmo"..as an example, when President Obama was still Senator Obama, and was uninformed himself, he stated he would close it down..now that he is President Obama, and has actually been informed, he keeps it open.

[Stalins Organ]

whatever....

The end justifying the means, is a debatable issue..not sure on which side of that I stand..for certain, to do wrong, in favor of a right end, I think is still wrong..my argument here, is that I do not think that it is wrong to punish the guilty.

doesn't that require the establishment of guilt, which is normally done by trial, which was my point in the first place??!!

Perhaps in NZ, you allow murderers to run loose, rapists to prowl at night, pedophiles to "shop" in schools...

are you trying to be offensive? Or are you just stpuid?

And yes, these are just nonsense examples, I know you do not.

so you were just being stupid:rolleyes:

Here's a tip - it's better not to be stupid if you can avoid it.

In every war in history, prisoners were taken...they are, really, lucky they were not shot on the battlefields,

most of the people at Gitmo were not taken on battleifields at all AFAIK, so yet another irrelevant comparison from you.

as most soldiers in history, including from your country, have usually found that easier than dealing with prisoners.

bullshirt

certainly peole have sometimes not taken prisoners - but to say that "most" soldiers in history have not done so is supposition - stupid supposition at that.

Most soldiers in history have been delighted to take prisoners - because prisoners can be sold for cash, and because they don't want to be shot if they themselves get captured!

IMO you should shut up on this topic before you make even more of an ass of yourself!

[abneo3sierra]

SO..first, yes, it was a "nonsense"comparison,the point is that the other comparisons you are not seeming to get..and FYI..*most* of the detainees at Gitmo were battlefield prisoners, although, not all.

And what I said in the end, was most soldiers have found it easier to shoot than take prisoners...that is not saying that most soldiers did take the easy way, but, it is saying,that those taken prisoner, are lucky,that their captors chose the harder way.

[Stalins Organ]

SO..first, yes, it was a "nonsense"comparison,the point is that the other comparisons you are not seeming to get

Perhaps you should use reasonable ones then, instead of resorting to stupidity?!

..and FYI..*most* of the detainees at Gitmo were battlefield prisoners, although, not all.

Not even close:

Among the data revealed by this Report:

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably.

Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a large majority – 60% -- are detained merely because they are “associated with” a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified.

4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United Statescustody.

This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.

5. Finally, the population of persons deemed not to be enemy combatants – mostly Uighers – are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

From

http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf

And what I said in the end, was most soldiers have found it easier to shoot than take prisoners...that is not saying that most soldiers did take the easy way, but, it is saying,that those taken prisoner, are lucky,that their captors chose the harder way.

Got any evidence to support your self contradiction??

Like I said - you should have shut up on this topic rather than keep looking stupid:rolleyes:

[abneo3sierra]

Most soldiers in history have been delighted to take prisoners - because prisoners can be sold for cash, and because they don't want to be shot if they themselves get captured!

IMO you should shut up on this topic before you make even more of an ass of yourself!

These two bear special reply..

In our case, no matter how we treat the prisoners, we are killed if taken prisoner ourselves.

Also, to your second point..I realize you are probably defending your (here to be un-named) countryman who haunts this board...but I have been to Guantanamo, where I would venture to guess most of the people posting in this column have not. I am not "speaking out of my ass" but I would say that anyone who lumps the entire thing into "bad"category,without ever having been there to see with their own eyes, is the one making an ass of themselves. I agree there are issues there..probably even some serious ones, but a verse in the Christian Bible seems to have the best part here.."Let he who is without sin cast the first stone"..mostly, I am tired as hell of people who themselves,and their countries, make far more mistakes, or, for the sake of argument, we will even say "make the same amount of mistakes" having the gall to accuse the US, at every step of the way. Perhaps if some of these countries defended themselves we could pull back to the US,and not have to be sent away every year to different godforsaken places.

edit..your #5 above actually proves a point that there are 1-fighters,and 2--the non-fighters are even more dangerous..

[dieseltaylor]

Nice stuff BD6 - again. : )

[Stalins Organ]

These two bear special reply..

In our case, no matter how we treat the prisoners, we are killed if taken prisoner ourselves.

shame the war is so screwed up huh?

Sometimes wars are like that, but not all that often overall.

Also, to your second point..I realize you are probably defending your (here to be un-named) countryman who haunts this board

wrong again.

...but I have been to Guantanamo, where I would venture to guess most of the people posting in this column have not. I am not "speaking out of my ass" but I would say that anyone who lumps the entire thing into "bad"category,without ever having been there to see with their own eyes, is the one making an ass of themselves. I agree there are issues there..probably even some serious ones, but a verse in the Christian Bible seems to have the best part here.."Let he who is without sin cast the first stone"..mostly, I am tired as hell of people who themselves,and their countries, make far more mistakes, or, for the sake of argument, we will even say "make the same amount of mistakes" having the gall to accuse the US, at every step of the way.

Whether I have been to Guantanamo or not, I still have the ability to form an opinion on it from all the info that has been put out.

And if you (as a country) cannot convince me - a western liberal atheist - that the people you have locked up there are a bunch of nutcase religous fanatics that are a danger to everyone (and I'm completely predisposed to think of religious fanatics as dangerous nutcases!!) then that's your fault - not mine!

Perhaps if some of these countries defended themselves

who is it you thnk hasn't defended themselves from which attack??

[abneo3sierra]

You do, as you said, have the ability to form an opinion..you do even have the ability to tell people who have other opinions,that they are making an ass of themselves. The accuracy of your opinion, is debatable, but you do have the right to it. And it is not the duty of the US as a country, to "convince"anyone of the rightness or wrongness of their actions...except, probably,the actual citizens of the US. Do I think they SHOULD do a better job "convincing" YES..most definitely..but in the end, we answer to ourselves.

President Obama was a 100% "Anti-Gitmo"candidate, who swore he would shut it down once elected..once he WAS elected, however, he got to see the evidence,that convinced even him, that he was wrong..do I think they should show this evidence to everyone? YES.. I think some things are worth more, and gain more, than keeping secrets in every instance..but not my call.

[Bigduke6]

Abneo3sierra,

No, sorry, I think you are dead wrong there.

It is not that "some lawyer decided to give them the same rights as law abiding citizens of OUR country"

Rights are not to be given or taken away. They exist, that is why they are called "rights" and not privileges.

In the US, at least officially, there is one law, for every one. Not, one law for the rich and others for the poor. Not, one law for the citizens and one law for the immigrants. Not, one law for people whose families have lived in the US for generations, and another law for people who just became citizens. One law, for all men, period.

Remember the Declaration, "We hold these truths to be self-evident, that all men are endowed by their creator with certain inalienable rights, and among them are life, liberty, and the pursuit of happiness."

This is why the legal status of Guantanamo, and the anti-terrorism resolutions of the US Congress and the UN are crucial. Guantanamo is a place where the US government holds people without due process and without legal recourse.

This is done with the justification that anti-terrorism resolutions passed by the US Congress and the UN make such detention legal. The definition of terrorist, roughly, is a person posing a real terrorist-style threat to US life or property, or a person who has done so in the past.

However, it is fairly easy to demonstrate that many of the people held in Guantanamo are neither terrorists nor people who ever knew real terrorists, ever intended to threaten the US, and at best (from the US government point of view) were uneducated dopes who felt they were participating in a nebulous thing called a jihad. This group of people includes (not just) old men, boys, the mentally incompetent, and the illiterate and uneducated.

That being the case, on what grounds can the US government hold them? Is there a war on giving the executive branch power to override the Bill of Rights? Nope. Perhaps people in the military and the CIA think so, and maybe FOX news would have us believe it, but in fact the Constitution remains the high law of the land.

Is Guantanamo as an enclave somehow exempt to the US Constitution? Answer: As long as it is administered by the US government, nope again. It is a military installation operated by US military personnel, and they are obliged to obey US law just like every one else. Certainly, US civilian courts do not have jurisdiction. This is why, recently, we are seeing the government move to try at least some of the Guantanamo detainees in military courts. Why? Because if they don't, if they refuse due process to the detainees completely, Every one involved in that detention from the commander-in-chief right down to the Marines with the key rings might well be charged with violation of due process law.

That is a felony. The punishment I bet is hard labor. Not for water-boarding, not for flushing Koran pages down the toilet, not for make jokes about bearded oranges. Simply for participating in the illegal detention of people by willingly depriving them of their liberty.

This puts the US government between a rock and a hard place. If it fails to prosecute the detainees for something, every one doing the detaining is a target for a lawsuit. The lawsuit would be filed in a US court - is it a given that every single judge would just throw it out because he says "well, there's a war on". Even were every single judge reviewing the case to think so, he would face a very difficult problem: There isn't a war on, again, no declaration of war was ever passed. All there is a resolution giving the executive branch authorization to use force to respond to terrorists.

The basic problem here is that the executive branch and people that support it and especially the military believe that since the term "War on Terrorism" is batted around that means any inconvenient law is off the books. But that's not how the system works.

Which I would say is a very good thing.

whatever....

The end justifying the means, is a debatable issue..not sure on which side of that I stand..for certain, to do wrong, in favor of a right end, I think is still wrong..my argument here, is that I do not think that it is wrong to punish the guilty. Perhaps in NZ, you allow murderers to run loose, rapists to prowl at night, pedophiles to "shop" in schools...

And yes, these are just nonsense examples, I know you do not.

In every war in history, prisoners were taken...they are, really, lucky they were not shot on the battlefields, as most soldiers in history, including from your country, have usually found that easier than dealing with prisoners..as even these same people do, when it is them taking us as prisoners...no mention of Geneva rules then, not one peep..and yes, we should live up to a higher standard..and the point is, WE DO..they are fed, given access to healthcare,libraries,lawyers for heaven sake,that they are not even really entitled to, except because some lawyer decided to give them the same rights as law abiding citizens of OUR country...rights they did not even have to begin with, in their own. These same lawyers, by the way, also have cleared any treatment the said prisoners received, as standing up to Geneva rules, our rules, etc. It is only uninformed people who generally are still against "Gitmo"..as an example, when President Obama was still Senator Obama, and was uninformed himself, he stated he would close it down..now that he is President Obama, and has actually been informed, he keeps it open.

[Kanonier Reichmann]

Brilliant post BD6. The crux of the matter, as you said, is that all people have rights and deciding that a certain group conveniently termed illegal combatants don't have the same human rights as others is a blight against the so called bastion of democracy known as the USA.

Regards

KR

[abneo3sierra]

Very good argument BigDuke(John Wayne??..cool name btw)

A lot to think about there.

[Affentitten]

Personally I think when you start throwing a gaggle of lawyers at the GC looking for loopholes you're on the slip n' slide to doom.

[Bigduke6]

That's very generous of you. Most people aren't nearly so gracious when I try and shove my opinion down their throat. In respect, I offer a manly doff of my hat from my side of the battle lines.

*Doff*

I am a big fan of John Wayne, the old sot, especially the Rooster Cogburn vintage. If only all our heroes stood as tall and strong as he...

But Big Duke Six is a different Hollywood reference, that's the call sign of the air cav colonel played by Robert Duvall in Apocalypse Now. If only real war was like he fought it...

Very good argument BigDuke(John Wayne??..cool name btw)

A lot to think about there.

[gunnergoz]

Ah love the smell of napalm in the morning!

Well stated, BD6. I'm very upset about the continuing maintenance of Guantanamo...it is part of the erosion of American civil rights that began with the 9/11 response. We really played into the enemy's hands with that, and subsequent moves like the "Patriot Act." Dumb, really, really, dumb. We could have taken care of our security needs with other means but the administration at the time opted for the "big brother" approach as opposed to a measured, logical and intelligent one that is in keeping with our constitutional traditions.