If Gitmo is a key to terrorist recruiting...

[NeverEndingMe]

yep, obama is the greatest tool

 

[Colonel Hogan]

Ouch my feelings. Okay over it.

Which I guess having reread one of your posts and then done some subsequent research if I'm understanding properly at this point everybody gets a trial to challenge if they are being lawfully detained?

Not a trial technically, but at least a habeas hearing, yeah. And that is a fairly recent legal precedent, btw. Didn't used to be that way because it was pretty much assumed that one would not be erroneously detained as a POW in wartime. How would that even happen with uniforms, conventional forces, etc.?

Not so today.

 

[Sean Renaud]

Not a trial technically, but at least a habeas hearing, yeah. And that is a fairly recent legal precedent, btw. Didn't used to be that way because it was pretty much assumed that one would not be erroneously detained as a POW in wartime. How would that even happen with uniforms, conventional forces, etc.?

Not so today.

I'm honestly having a difficult time even with reading figuring out what the specific difference is and what time frame goes into such a thing. That however is the single biggest thing.

 

[Colonel Hogan]

I'm honestly having a difficult time even with reading figuring out what the specific difference is and what time frame goes into such a thing. That however is the single biggest thing.

Well, we start with the premise that detention of combatants in war is NOT punishment. Any declaration of war, including a Congressional AUMF and the prosecution of hostilities according to accepted international laws of war would proceed with the presumption that individual combatants have committed no crime unless specific evidence is offered to the contrary. Obviously, the evidence is immediately present in the case of non-nation state actors wearing no uniforms or insignia, thus the attendant threshold designation of "unlawful combatants."

But even in the instance of unlawful combatants, the capture and detention absent a separate trial on war crimes charges can only justly be custodial. The controversy surrounding the first Taliban detainees was their lack of Geneva protections, having not been a party to the treaty, and how they might then be interrogated and where they might be held given their lack of treaty protection.

Since many of the early Afghanistan detainees were identified or even captured and turned over to the United States by Afghani tribal partners in return for monetary reward, the potential for abuse and wrongful detention was present.

Any detainee would, in theory, submit a habeas petition to the proper judicial authority having jurisdiction for the detention and a hearing would be scheduled examining only that evidence germane to whether the detainee is being properly held under the law of war. That would include whether he was an active combatant, strategist, recruiter, provider of material support or logistics, etc. -- some direct role other than that of mere ideological sympathizer.

I don't believe there is a hard and fast formula for how habeas hearings are structured under the UCMJ, but I am getting WAY AHEAD of the story anyway, because at the time of the first Taliban detainees captured in Afghanistan it was assumed they had no legal rights to habeas as unlawful combatants regardless. That premise was further supported by the very intentional construction of the detention facility at Guantanamo outside sovereign U. S. territory which thus relied on the 1951 precedent in Johnson v. Eisentrager which held that prisoners detained in such a facility "on foreign soil" had no habeas rights. It is the primary reason Camp Delta was built at Gitmo.

The whole legal picture, thought by the Bush administration and Office of Legal Counsel Assistant Attorney General John Yoo to be fairly clear, turned out to be anything but. While many examples of judicial overreach and sweeping legal presumptions have been appropriately condemned in hindsight, not all of the ensuing legal evolution could have reasonably been foreseen despite what certain critics like to pretend. No one had fought a war like this before over a very uncertain legal landscape and under intense pressure to prevent the next attack (widely thought to be imminent) by virtually any means necessary -- or at least any which could be remotely justified under rational, albeit highly favorable, interpretations of law.

That legal landscape would change dramatically once again with the invasion of Iraq in 2003. Much to the surprise and displeasure of some in the administration (Vice President Cheney's assistant David Addington in particular) Iraq WAS a signatory to Geneva, and its soldiers unlike the Taliban, were fully entitled to Geneva protections.

Thus, the military tribunal systems set up for detainees kept running into legal problems and had to be repeatedly scrapped or modified in favor of new Congressional legislative formulations pursuant to court rulings in those separate detainee cases, most notably, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, Rasul v. Bush and ultimately Boumediene v. Bush, all of which made their way separately up through the appeals process.

This ongoing legal clusterfuck presented obvious problems to habeas petitioners even AFTER they had won their habeas rights via some of the above SCOTUS cases. You can't nor do you WANT to submit a habeas petition to an illegitimate judicial authority.

Most of these issues have finally been resolved. ALL detainees now unquestionably have right to habeas corpus. But it has taken years to get here. And as Justice O'Connor hinted in her opinion in Ramdi, I still don't know that we have heard the last word from SCOTUS on indefinite detention.

And as long as we're neck deep in this swamp, let's go ahead and toss in the Patriot Act, NSA Prism, FISA courts, etc. because they are directly instrumental to how we legally -- or at least attempt to -- conduct this war on the investigative/intelligence front.

Now do you wonder why I have made this my campaign and keep lobbying for the importance of legal distinction between war and criminality? I don't expect the average person to understand all this in all it's detail. I don't claim to myself.

But it does piss me off to no end when people dismiss it because they are simply too lazy to apply themselves to ANY of it or because it doesn't conveniently fit their personal narrative.

It's important, damnit! That much I CAN tell you.

 

[Sean Renaud]

I apologize for not being more specific and I really should with you since you'll put in the work. I meant in regards only to what an Habeas Corpus Hearing was precisely vs a trial. So for that I apologize because you DO your homework, I should not treat you casually as I do other people. If for no other reason than I respect you and appreciate the lengths you're willing to go to when I do ask a question.

Yes, I fully understand your reasoning for wanting to clarify the differences and I'm largely coming around to your way of thinking even if I still have my doubts on some of it. But I think I grasp it.

Which leads me to how the fuck do we have two administrations and fifteen years and no one of merit (politically speaking, no offense meant) has sat down with any intent to clear this and other issues up.

I stand by my we should shut Gitmo down, but my argument has been and remains that at this point it's symbolic. It's like when you say you're sorry for something when what you actually mean is you're bothered that you're suffering the fall out of your actions and would very much like them to go away.

 

[Colonel Hogan]

I apologize for not being more specific and I really should with you since you'll put in the work. I meant in regards only to what an Habeas Corpus Hearing was precisely vs a trial. So for that I apologize because you DO your homework, I should not treat you casually as I do other people. If for no other reason than I respect you and appreciate the lengths you're willing to go to when I do ask a question.

Yes, I fully understand your reasoning for wanting to clarify the differences and I'm largely coming around to your way of thinking even if I still have my doubts on some of it. But I think I grasp it.

Which leads me to how the fuck do we have two administrations and fifteen years and no one of merit (politically speaking, no offense meant) has sat down with any intent to clear this and other issues up.

I stand by my we should shut Gitmo down, but my argument has been and remains that at this point it's symbolic. It's like when you say you're sorry for something when what you actually mean is you're bothered that you're suffering the fall out of your actions and would very much like them to go away.

No apology necessary. I basically understood the thrust of your quandary. I just thought it a good launching point for a broader overview, nor was I taking you to task for anything.

The shorter answer is that a habeas hearing is not a trial because guilt of a crime is not being accused or adjudicated AND the detainee IS the PETITIONER bringing the ACTION TO the court for RELIEF. Yes, EVIDENCE of specific behavior is presented, but since the worst that can happen is continued custodial detention (which is already not viewed as "punishment" in the eyes of the law), the process is substantially different from what we generally view as the purpose and objective of a trial.

That's the best way I can explain it.

Which leads me to how the fuck do we have two administrations and fifteen years and no one of merit (politically speaking, no offense meant) has sat down with any intent to clear this and other issues up.

Well, here again, it can be argued that the first administration thought they had a reasonably good grasp of the law as they thought it existed at the time a dire situation was thrust upon them. Turns out they were right in part and wrong in other parts and simply unknowing as to how other parts of the law would evolve.

The second administration, in addition to having some (not surprisingly) fundamental philosophical and legal disagreements with the first administration, nonetheless found itself agreeing with the first administration on the most important basic principles, including the use of Congressional AUMFs, the construct of the law of war (and the use of military tribunals) as well as use of civilian criminal courts and traditional law enforcement practices, AND EVEN the basic intelligence tools used by NSA and CIA in the first administration.

Really, the manner in which BOTH administrations have prosecuted the war on terror has not been drastically different once the Bush administration got some distance from the initial panic response in the first years immediately following 9/11.

Where BOTH administrations have royally fucked up is in managing the political situation in Iraq "after the fact." For Bush it was the mismanagement of the provincial governing authority following the fall of Saddam Hussein. For Obama it has been the mismanagement of the alliance with former Prime Minister Nuri al-Malaki and our less than forceful condemnation of his brutal suppression of Sunni Muslims which ultimately gave rise to ISIS itself.

This is what makes Ishmael's religious arguments so pathetically stupid. One can argue quotations from the Quran all damn day, but all you have to do is look at the sequence of political events at Malaki's hands to understand the Sunni uprising in response. That's hardly an excuse or apology for ISIS, but without Malaki's shameless repression of Sunni's, there would have been comparatively little for ISIS to get pissed off about.

And, once again, people don't pay the slightest attention to even RECENT history in an attempt to understand the obvious.

Shit, here I go again.....

 

[Sean Renaud]

Basically it's almost like the opposite of a trial despite mechanical similarities. Where in a traditional trial the government has to prove you guilty (beyond a shadow of a doubt) in this case you are in effect taking the government to trial for your freedom. Additionally if you could prove your innocence (to whatever degree is required) they would presumably at least consider cutting you loose? Obviously the bar is absurdly high and you'd probably also have to prove that the idea that detaining people pisses people off doesn't hold true to you. After all if you picked up an innocent man but you know he spent the last nine months swearing death to the Great Satan I'm imagining that we'd find some excuse to simply not believe anything else you presented up to and including photos of you Jesus, Reagan and Washington playing poker the night of the alleged crime.

 

[Colonel Hogan]

Basically it's almost like the opposite of a trial despite mechanical similarities. Where in a traditional trial the government has to prove you guilty (beyond a shadow of a doubt) in this case you are in effect taking the government to trial for your freedom. Additionally if you could prove your innocence (to whatever degree is required) they would presumably at least consider cutting you loose? Obviously the bar is absurdly high and you'd probably also have to prove that the idea that detaining people pisses people off doesn't hold true to you. After all if you picked up an innocent man but you know he spent the last nine months swearing death to the Great Satan I'm imagining that we'd find some excuse to simply not believe anything else you presented up to and including photos of you Jesus, Reagan and Washington playing poker the night of the alleged crime.

Yeah, I think that's a reasonable summation of the mechanics and legal premise.

As to the second half above, I think its a complex combination of a disoriented alien with little sophistication as to how to most effectively demonstrate his innocence in a system that, at full speed, grinds as slow as molasses, coupled with a semi-natural disinclination by authorities to admit they made a mistake in any particular case.

So eventually, innocents will go free either on the merits of their habeas petitions, or on-the-merits-but-we're-going-to-pretend-we're-actually-doing-it-for-"humanitarian"-reasons.

Hey, even when you finally get around to doing the right thing, whether by force or an actual belated sense of stunted morality, it doesn't mean you'll resist the temptation to stage manage the final scene.

 

[snugglestruggle]

Let me start with I do not buy granting them Geneva convention rights. I do not hold with treating them like enemy combatants. They are ideological Brigands, Pirates, Bandits or if you prefer outlaws.

They've no country, No uniform . They've a self declared Caliphate and they do have a flag much like Pirates did, I'll give them that much. BTW we used to hang pirates not too long ago.

IMO those we think that might have some intelligence info of value, I would only give food and water, when they were of no further use *Pop. I would not detain them indefinitely, I do think that is uncivilized.


My solution to this quandary is since they want to go back to the 7th century we should deal them justice according to their preferred century. That's what they are doing in the area's they've invaded and occupied. Sauce for the goose or in this case the designated enemy.

 

[Colonel Hogan]

Let me start with I do not buy granting them Geneva convention rights. I do not hold with treating them like enemy combatants. They are ideological Brigands, Pirates, Bandits or if you prefer outlaws.

They've no country, No uniform . They've a self declared Caliphate and they do have a flag much like Pirates did, I'll give them that much. BTW we used to hang pirates not too long ago.

IMO those we think that might have some intelligence info of value, I would only give food and water, when they were of no further use *Pop. I would not detain them indefinitely, I do think that is uncivilized.


My solution to this quandary is since they want to go back to the 7th century we should deal them justice according to their preferred century. That's what they are doing in the area's they've invaded and occupied. Sauce for the goose or in this case the designated enemy.

Okay. You don't want to detain them indefinitely, because that is "uncivilized."

But you wish to administer seventh century "justice" in accordance with their own uncivilized atrocities which they've committed against others.

Contradict yourself much?

This is why I have so little faith in my fellow man.

 

[snugglestruggle]

Okay. You don't want to detain them indefinitely, because that is "uncivilized."

But you wish to administer seventh century "justice" in accordance with their own uncivilized atrocities which they've committed against others.

Contradict yourself much?

This is why I have so little faith in my fellow man.

I do think keeping them imprisoned indefinitely is wrong. Kill them on the battlefield or after a short Caribbean vacation including water sports (boarding).


The 7th century was not a pleasant time, hands & heads being chopped off, no Obama or GITMO care, it was definitely uncivilized. I look at it as giving them a little piece of what they were fighting for. Uncivilized by our standards but they should have chosen a different time period to try and drag the modern world back to.

 

[Colonel Hogan]

I do think keeping them imprisoned indefinitely is wrong. Kill them on the battlefield or after a short Caribbean vacation including water sports (boarding).


The 7th century was not a pleasant time, hands & heads being chopped off, no Obama or GITMO care, it was definitely uncivilized. I look at it as giving them a little piece of what they were fighting for. Uncivilized by our standards but they should have chosen a different time period to try and drag the modern world back to.

Well, the inconsistency of your judicial philosophy notwithstanding, we thankfully do not get to decide these weighty questions of preferential mutilation on public opinion alone.

We pretty much have to follow the law, even in matters of war. We imposed that on ourselves at a place called Nuremberg, long before you showed up, I'm guessing.

So, thanks for playing and another 10 minutes of TV and then off to bed with ya!

 

[snugglestruggle]

What no Oreo's?

 

[Sean]

Let me start with I do not buy granting them Geneva convention rights. I do not hold with treating them like enemy combatants. They are ideological Brigands, Pirates, Bandits or if you prefer outlaws.

Or people that wear the wrong brand of watch.

 

[contrifan32]

Don't you get tired of saying that?

 

[Sean]

Don't you get tired of saying that?

Do you get tired of defending the kidnapping, torture and locking up of innocent people in concentration camps?

 

[4est_4est_Gump]

Well, the inconsistency of your judicial philosophy notwithstanding, we thankfully do not get to decide these weighty questions of preferential mutilation on public opinion alone.

We pretty much have to follow the law, even in matters of war. We imposed that on ourselves at a place called Nuremberg, long before you showed up, I'm guessing.

So, thanks for playing and another 10 minutes of TV and then off to bed with ya!

Law?

I'm sorry, but it is pathetic to keep clinging to the notion of law when we have transformed to the rule of "man." Our President is a stranger to the law and their law is the imagined reversed engineered edicts of God (Allah). Our President on an ongoing and almost daily basis (thank Allah he is now in Hawaii working on his choom game) seems to indicate that he too is following the directives of Allah.

 

[putzpotus]

Well, the inconsistency of your judicial philosophy notwithstanding, we thankfully do not get to decide these weighty questions of preferential mutilation on public opinion alone.

We pretty much have to follow the law, even in matters of war. We imposed that on ourselves at a place called Nuremberg, long before you showed up, I'm guessing.

So, thanks for playing and another 10 minutes of TV and then off to bed with ya!

stfu you POS and shove that LAW up your ass

YOU ARE THE EVIL THAT ALLOWS THE EVIL TO PERSIST!

 

[contrifan32]

Do you get tired of defending the kidnapping, torture and locking up of innocent people in concentration camps?

I would if that was the the situation. "War is Hell"

 

[4est_4est_Gump]

I would if that was the the situation. "War is Hell"

Git some! Git some! Ain't war hell?

 

[Sean]

I would if that was the the situation. "War is Hell"

8% of GITMO detainees were taken on a battlefield. Only 5% by US forces. Most of those in the US concentration camp were innocent and every time the Northern Alliance wanted some more cash from the dumb yanks, they grabbed another poor fucker and sold him. Just appending the "enemy combatant" title to anyone you feel like is bollocks.

 

[Sean Renaud]

Law?

I'm sorry, but it is pathetic to keep clinging to the notion of law when we have transformed to the rule of "man." Our President is a stranger to the law and their law is the imagined reversed engineered edicts of God (Allah). Our President on an ongoing and almost daily basis (thank Allah he is now in Hawaii working on his choom game) seems to indicate that he too is following the directives of Allah.

Except none of this is true. We have not transformed into a rule of man and our president is no stranger to the law. At all. What they are doing doesn't even matter.