Free Markets, Free People


Obama Administration Sees Acquittal As No Bar To Further Jail Time

A very interesting exchange. Below is a transcript from the recent Senate Armed Services Committee hearing about the legal treatment of terrorism suspects. It is between Sen Mel Martinez and Defense Department General Counsel Jeh Johnson. Don’t forget that Johnson’s remarks reflect the current administration’s policy concerning these suspects [emphasis added]:

Martinez: If we are doing Article III [civilian] trials…we then also are talking about closing Guantanamo by the end of the year. There’s no way for 220-some-odd people to be prosecuted through some proceeding, whether Article III or military commissions, in that time frame. So where will they then be? I guess they’ll be here. And what about those who are acquitted? Where do they go? What happens to them?

Johnson: You’re correct. You can’t prosecute some significant subset of 229 people before January. So those that we think are prosecutable and should be detained, we will continue to detain, whether it’s at Guantanamo or someplace else. The question of what happens if there’s an acquittal…I think that as a matter of legal authority, if you have the authority under the laws of war to detain someone…it is true irrespective of what happens on the prosecution side.

Martinez: So therefore the prosecution becomes a moot point?

Johnson: Oh no, I’m not saying that at all. You raised the issue of what happens if there’s an acquittal, and in my judgment, as a matter of legal authority…if a review panel has determined this person is a security threat…and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority I think it’s our view that we would have the ability to detain him.

I’m completely in the dark as to how this administration, after all its condemnation and demonization of the previous administration is one iota different when it comes to the question of these detainees.

Again, it seems more like form over substance. It is about “Gitmo”, not rights for detainees or “fair trials” or whatever, is it? It’s about closing down a place. The detainees, however – except for those vacationing in Bermuda – are essentially in the very same place that they were in when the previous administration was in power. In fact, it could be argued that they had a better chance with the previous administration. Although they were slow in getting the tribunals going, I don’t recall any mention of ignoring an acquittal and keeping the detainee in prison anyway.

Due process? We don’t need no stinkin’ due process.

I seem to remember the left was ready to impeach Bush and put him on trial as a war criminal for this sort of thinking.

Let freedom ring.

~McQ

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18 Responses to Obama Administration Sees Acquittal As No Bar To Further Jail Time

  • So, we keep prisoners of war until the war is over. What a novel idea.

    • Actually, this appears to go beyond that. This guy is saying that if they see this person as a threat to the US, war or no war, acquittal or no acquittal, we’ll keep him as long as we think he’s a threat to the nation. That’s more the basis of the Soviet gulag system than anything to do with POWs.

      • RE: “Uh, no because if you ‘acquit’ someone you can’t continue to hold him for giggles and grins, that’s the point, and that’s the point of bothering to hold a tribunal to make the judgment. If they ‘acquit’ him, they imply he was NOT a POW under Geneva convention and was, instead, a civilian.”
        Not exactly. If a POW is believed to have committed crimes (recognizing that just waging war is not itself a crime, but can be done through methods that amount to war crimes, or the crimes can be separate acts) than you can try him. If convicted than he would face the punishment for the crime, it not, his still a POW.

    • Uh, no because if you ‘acquit’ someone you can’t continue to hold him for giggles and grins, that’s the point, and that’s the point of bothering to hold a tribunal to make the judgment.
      If they ‘acquit’ him, they imply he was NOT a POW under Geneva convention and was, instead, a civilian.
      If he’s a soldier all you do is determine he’s a soldier and then you can hold him at your discretion until the end of the conflict, and there isn’t a problem with that, it’s the way it is (and sure beats the hell out of shooting them in the field where you take them prisoner…)

  • They are not technically POWs, either. In A’stan, Taliban become POWs, while the al Quada types are simply enemy combatants without POW status. As I understand it, the Gitmo detainees are 100% NOT POWs.

    And what war are they from? Some came from A’stan, others from Iraq, others possibly from elsewhere. The war in Iraq is essentially over. One could argue that the war with Islamic terror (or whatever it is called now) is still ongoing, but I’m not sure how far Obama can push that argument.

    The flip side of this is, if you bring these characters into the US and try them here, can you continue to detain them? Once here, the courts will have a say in this. The Administration will no longer have full reign, and the Constitution will apply. The point of closing Gitmo and bringing them into the US, as Obama and Feinstein want, is to trigger the Constitution and BoRs protection.

    • Some of the POW’s held here in Texas were allowed to do day labor on local farms, there were (are) large ethnic German communities here.  I’ve heard from locals it was not unusual at the end of the day for them to be found sitting in the local ‘beer hall’ having a pint after a day in the sunny fields before they were returned to the camps for the night.
      They were probably considerably more sane than the ones who are currently being held at Gitmo.

  • I also wonder how we would handle WW2 type POWs in the US today. Back in the 40s, we held many German and Italian POWs, and I’m pretty sure no one thought the BoRs applied to them. In fact, it isn’t all that clear that the BoRs applied to Americans of Japanese decent.

    At the end of WW2, we actually used real torture on German POWs to extract confessions, etc., for war crime trials.

  • So Obama is going way beyond the Bush policies for detention.  I guess the media and the left (but then I repeat myself) will be all up in arm …. snort, hahaha, I kill myself hahaha

  • Since a vast majority of the people we have captured have committed NO CRIME, there ought never have been tribunals or trials at all.

    Only legalistic goof-balls like Jon Henke and committed Liberals thought that trials were necessary.

    Now that the correct party is in power, we can ignore the Goof-Balls and do what was necessary all along…imprison these folks like PoW’s…..

    And McQ it makes a great deal of sense to continue to imprison them whether they are “acquitted” or not. Example, we capture Reinhard Heydrich’s personal driver, a Herr Klein, in 1943. We put him on trial for war crimes, after all what happened at Lidice was a War Crime. But it turns out that Herr Klein in no way planned or participated in the Massacre at Lidice. He is “acquitted.” Does that mean we let him go? No. He’s still an “enemy combatant” and if we let him go, it’s quite likely he’ll simply turn up in Europe and continue to fight for the Nazis. We continue to detain him. UNTIL THE WAR IS OVER, in Klein’s case that is sometime after May 1945….in the case of Jeffrey Jihadi that might be NEVER. But in neither case has some moral wrong been done.

    Not being a Criminal does NOT mean you are free to go, in a war….To me, this is one of the times the Obama Administration is dead-bang-on right…I only laugh, as Instandapundit puts it, at the “Fierce moral urgency” that evaporated once Obama became POTUS.

    • Depends on if you find them in recognizable uniform or not – if NOT you hold a tribunal to determine if they are soldiers or civilians.  If they are ‘soldiers’ out of uniform and can be proved to have committed acts against your army (crimes), they are spies, and you can rule on punishments to fit their crime that go beyond simple internment (like, execution).
      If you recognize them as uniformed soldiers they are POWs, no need for a tribunal.
      The only way you bother with a trial is if you suspect or they are accused of commission of war crimes.
      It was wrong when we held these guys as ‘illegal combatants’ under Bush, it’s just as wrong now.  One way or another our BoR does not apply to them unless they are US citizens.
      Soldiers or Civilians (either criminals or innocents) – which is it, there’s no ‘illegal combatants’ category mentioned in the Gevea conventions.

      • Looker, I think you are making this far harder than it needs to be, and to no point.  If the Convention defines civilians and POWs, and these are mutually exclusive categories which nontheless do not include everyone, then there are neccessarily members of a third set, even if not defined.  While there may be other meaningful definitions for persons in the third set, illegal combatant certainly works and not a dishonest distortion of the Convention.  It describes AlQaeda and it’s hangers on very well.

        Yours, TDP, ml msl, & pfpp

    • Of course it wasn’t wrong to hold them as illegal combatants…it was and IS preferable to simply shooting them out of hand…since we weren’t and aren’t going to do that, holding them as the functional equivalent of PoW’s is good sense. In your case we can hold htem, IF they wear a uniform, but can execute them as spies if not? Or define the punishment, so let’s define that punishment as indefinite detention.

      • If we’re adhering to the conventions it would appear you have to decide in a ‘reasonable’ time frame what you have captured – a civilian, a soldier, or a soldier dressed as a civilian.
        I don’t have a problem holding these guys in internment camps if they are soldiers, and I didn’t say we could execute them as spies if they are soldiers dressed as civilians.   That’s why you’re holding the tribunals to make that determination.  I didn’t read the entire convention (snore) but what I did read didn’t seem to cover any group called ‘illegal combatants’ which would allow you to hold them without determining their status as civilians/soldiers for infinity at your discretion.
        As for spies, I can make the argument to myself that execution for simple intelligence gathering dressed as a civilian is equivalent to execution for active destruction and killing.  Intelligence is usually used in some way shape size or form to blow up your stuff, kill your people, and defeat your army.  So while intelligence gathering seems at a high level less offensive than actively destroying your stuff, it’s really not any different.
        If they’re spies in that sense, and not simply soldiers out of uniform, then the tribunal can so rule (but maybe we’re afraid that would force our hand and we might perhaps have to execute some folks…)
        If it’s semantic, and we’re going to hold them ANYWAY, we ought to rule them to be soldiers.   But clearly we perceive there to be some loophole in never making that determination.  I think that’s a serious problem.  The point of these treaties is to nail down how you treat people in territories that fall into your sphere of control during a war (to include soldiers you capture) and not leave it up to arbitrary rulings that allow you to play fast and loose with the rules without fear of some retribution (in other words, rules that tell you how you should treat prisoners humanely in case you LOSE….because the winners seldom have anyone extract retribution on them).
         

      • Dude they were, by-and-large caught trying to kill US Forces! Whilst not illegal, they weren’t wearing a uniform, but they weren’t SPIES…they were guys trying to kill us, not wearing uniforms. We captured them and believing that if we let them go, they’ll go back to trying to kill us, again no crime, but undesirable, we have decided to hold them “indefinitely.” Just like the Afrika Korps PoW’s in 1943…we held them “indefinitely”, too. They didn’t know when the war was going to end, either. We didn’t try them, either…but neither did we let them go.

        The fellows at Gitmo were caught trying to shoot or bomb us…then a military commission examined their story…and generally it was rejected…”I was on my way to the Donkey market to purchase a nice gift for my wife.” “No, you were carrying an Ak-47, 300 rounds, and 6 US soldiers, a nun, and a doctor saw you shooting at the US patrol. You’re a ‘soldier.’” Now they are being held, indefinitely, until hostilities are over. I don’t see the problem here…I believe the Geneva Convention allowed us to shoot them as “unlawful combatants”, but instead we simply treated them as soldiers without the uniform, but most of the soldier/PoW rights….

        I don’t see the problem, about no trials or detention upon acquittal…a trial is different from detention…the trial says we believe “Bob” did something ILLEGAL, the detention simply says “Bob” will be threat to us if we let him go, because he’s a half-way decent “soldier”…a really decent soldier might not have been captured. But we’re trying to cut down on the number of decent Taliban soldiers, by killing them and the half-way decent by capturing and detaining them.

        • I have no problem holding soldiers, in or out of uniform, indefinitely.   I have no problem holding them in Gitmo.   It’s under our jurisdiction one way or another, and I note that German POWs brought in to the US didn’t suddenly become eligible for rights under our BoR during the war.  This isn’t any different to me in that regard.
          I believe they have all been specified by now to be ‘enemy combatants’.
          If we acquit them of being spies, fine, they’re still ‘soldiers’, so we keep them.
          I presume that’s what the acquittal would be.   I doubt we’re going to be holding executions if they’re found guilty of being spies.
          The problem is we seem to  be discussing an acquittal that would imply they are neither spies NOR soldiers, and yet we’re talking about keeping them in confinement anyway?
           

        • No my take is that we are going to try them as “terrorists” and if that fails still hold them as combatants.

          • But article three of the convention implies they are civilians, which is what allows you to try them under that article (according to the citation above)
            Holding after acquittal as if they were actually combatants implies they were soldiers.
            They can’t be BOTH.
            I just reviewed it again…ugh…
            Article III
            “…Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria…”. (my emphasis)
            It’s not even clear to me how these guys can be tried under Article III – Persons taking no active part?
            Article III prohibits acts/sentences against them without a (real) trial – okay, fine.  I don’t see how they are former, or wounded, or have laid down their arms though.  How can you be those things and yet still be an
            enemy combatant?

            and then Article IV
            “…Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment…”
            I can see how they can even round up former troops, and inter them…

            I just fail to see how you can be BOTH things, that is, terrorists AND soldiers.   Pretty convenient.  We try them as civilians (terrorists) and if we fail to convict then we treat them as soldiers?

  • The funny thing is that in order to attempt to show their “humane” nature, the Obama admin dressed up the proceedings with show trials where the verdict is unimportant to the determination of thier release.

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