More on the Guantanamo Detainees Posted by: Dale Franks
on Thursday, February 09, 2006
An email correspondent whom I trust provides me with the following information.
The statistical information that Stuart Taylor relied upon for his summary appears not to have come from the Seton Hall study, but rather from the background info for separate National Journal stories, also written by Corine Hegland, that can be found here and here. This information derives from 132 detainee files from DoD that thr Department of Justice filed in court, and 314 redacted transcripts that the DoD released to the Assiciated Press under a FOIA suit. So, the information on those particular detainees is more detailed than information available to the Seton Hall study, although the sample size is much smaller. In brief, the Seton Hall study and National Journal are looking at two completely different data sets. Despite that, they appear to be congruent.
Still, even though National Journal only had info on 132 detainess, they did have between 10 and 60 pages of DoD info on each of the men, far more than the Seton Hall study. In that admittedly more limited set of information, the problems with the detentions were so glaringly obvious for many of the detainees that it was impossible not to extrapolate some conclusions about the Bush Administration's and the DoD's essential dishonesty as it relates to the detainees.
Many of the detainees appear not to have been caught with guns in their hands, not caught on the battlefield, and in many cases, not caught in Afghanistan. They came into our custody from third parties "whose political & financial incentives were to release actual senior [Al Qaeda] operatives, who would have had cash, and deliver the rest" to US Forces, i.e., people who weren't readily identifiable combatants at all.
So. Questions, questions, questions. I present some of them below, in no particular order.
1) Where does the Law of Armed Conflict end and civilian law begin when dealing with un-uniformed terrorist organizations?
2) How do we evaluate the trustworthiness of information about who is and who is not a terrorist combatant?
3) What are the criteria for detaining people who fall into our hands on foreign soil?
4) What are the clear, predictable standards for determining who is a combatant, unlawful or not?
5) Why is the Administration exercising sole authority over this process?
6) Why isn't the Congress exercising oversight of the Administration in this area?
7) How do we resolve the tension between getting information from terror operatives and the essential futility of coercive interrogation?
8) How do we verify the information that we get from detainees to ensure that, no matter how we obtain it, the information is reliable?
9) Why are we accepting detainees from third parties?
These are just a few of the questions that arise.
At the moment, though, what is clear is that the Bush Administration is a) being less than honest about the nature of the people we are detaining, and b) have apparently not, 5 years after the GWOT has begun, created standard, reliable, predictable rules about who is being detained and why.
As nearly as I can tell, the Bush Administration has decided that GWOT detainees are due no consideration at all as to their true combatant status under the Geneva Conventions, and that they will detain anyone they desire, for any reason they like.
This does not violate the US Constitution, as I explain below, but it does appear to be a clear violation of the Geneva Conventions to which we are a signatory. Unless the Bush Administration can come up with a convincing rebuttal, I have to conclude that we are in violation of the Geneva conventions, and that the Bush Administration's zeal in fighting the GWOT has transgressed against the traditions and history of our Republic.
The president has not committed an impeachable offense, insofar as American law is concerned (although, having said that, an impeachable offense is whatever Congress says it is), it is clear that the President has misled the American poeple, and pursued anti-US combatants with deplorably excessive zeal.
“An email correspondent whom I trust provides me with the following information.”
Mr. Franks. Did you mean to put a colon at the end of the above sentence? Without the colon it appears that the breathless post that follows might be your thoughts. Could that be? The style seems inconsistent with your past posts [perhaps the understatement of the year].
“The president has not committed an impeachable offense, insofar as American law is concerned (although, having said that, an impeachable offense is whatever Congress says it is)...”
Aha! Could these documents be the magic “smoking gun” that brings out the hidden “I” word that has been the goal of this Democratic campaign strategy from the first? Stay tuned.
Mr. Franks. Did you mean to put a colon at the end of the above sentence? Without the colon it appears that the breathless post that follows might be your thoughts. Could that be? The style seems inconsistent with your past posts [perhaps the understatement of the year].
Well, with the exceoption of two sentences trhat I paraphrased, I wrote it. So maybe you aren;t as familiar with my style as you think.
Although, I intentionally change my style from time to time, too, (see the XM Post from yersterday) so perhaps the change just jarred you.
So, does this mean that you and Jon are going to play good cop/bad cop on the Democrats’ campaign to impeach Bush? Or will you actually wait for a REAL smoking gun?
"5) Why is the Administration exercising sole authority over this process?
6) Why isn’t the Congress exercising oversight of the Administration in this area?"
I thought the answers were:
A5: It’s not exercising sole authority. Each detainee is entitled to a judicial hearing to determine his/her status.
A6: Congress isn’t overseeing the Administration because the Judicial branch is.
And regarding this passage... "As nearly as I can tell, the Bush Administration has decided that GWOT detainees are due no consideration at all as to their true combatant status under the Geneva Conventions, and that they will detain anyone they desire, for any reason they like."
... Bush had made that decision, but the courts disagreed and overrode it.
This problem sounds typical. The courts are jammed and can’t process the cases in a timely manner.
"A5: It’s not exercising sole authority. Each detainee is entitled to a judicial hearing to determine his/her status."
Are you referring to the CSRTs/ARBs here? The CSRTs & ARBs are run by the military whose ultimate commander is the President. The military is actually quite capable of running decent hearings—i.e. the normal court martial system. But the CSRTs are nothing at all like a court martial. The burden is on the detainee to prove innocence, and he must do so without counsel, without an ability to view the evidence against him, without access to documents or witnesses to call in his favor. Evidence obtained under torture is admissible, as is the most ridiculous hearsay and useless information.
You really should read the National Journal articles for a sense of how they work. They’re based on a review of the transcripts, after all.
Or are you referring to the cases in federal court—Rasul, etc.? They’ve not reached the merits of individual detentions yet and won’t for years, if ever.
The one case I know of where the judge decided that people were being detaineed illegally—the Uighur cases, where the government has admitted they’re not enemy combatants—he also decided there was nothing he could do about it.
A1 - It might be helpful to think, what do you do to a Kaiser supporter in Idaho in late 1917, a Hitler supporter in NYC in 1942, or an adherent of the southern cause during the civil war in Ohio? Most of the time, these people were held and not released during hostilities. Things that aren’t even crimes in peacetime get you a cell for the duration during war.
A2 - You use your best judgment, realizing that mistakes can and inevitably will be made on both sides. The consequences of mistaking a guy who was cozy with but not technically a Taliban combatant will ruin, at most, his life. The consequences of turning actual combatants loose will likely ruin multiple lives.
A3 - If the military is the receiving agency, it’s the UCMJ. For other agencies, they no doubt have similar manuals.
A4 - Wikipedia’s article is a pretty good start. One thing to keep in mind is that the distinction between the two doesn’t change their captivity status. That’s for the duration in either case. It’s a matter of how they’re treated during captivity.
A5 - During a war, the executive dominates. That’s just the way things are and always have been in our (and most other) system of government. The Congress and Courts do have a say but it is shrunken. Warfare is the ultimate case where you need the energy of the executive.
A6 - As we speak, hearings are going on. Why do you not characterize oversight hearings as oversight?
A7 - There is no essential futility of coercive interrogation. It’s quite possible to do coercive interrogation badly, to get false information. That does not mean that there is no way to do it right and to get good information. You try, you measure results and you adjust tactics just like in every other military/intelligence/interrogation activity. There is no "let’s just beat them fur fun" constituency outside of people either in or on their way to the military prison system.
A8 - You verify all information the same way. You try to cross-check and cross-reference with other sources. There are lots of things that we’re going to miss. That warfare is wasteful of human life and economic/social potential is *the* reason why it’s supposed to be a last resort. This is its terribleness. We try to mitigate it as much as we can but, ultimately, we’re not capable of perfection, or even a happy outcome much of the time. Yes, people have, probably are, and will be imprisoned unjustly. That’s why some people have been released. I think we really should work to minimize casualties, to minimize injustice. If we have a chance though, we should and are showing a preference for reducing our unjust dead at the expense of increasing to a certain extent other countries’ unjustly imprisoned.
When fake sob stories of unjust imprisonment let a combatant back into the field, we should be ashamed. Too many people seem not to take that side of the problem seriously.
A9 - We accept detainees from third parties because they’re not very good jailers. From Robert Stetham’s killer being traded as part of German hostage’s ransom to the 20 odd terrorists that just escaped from a Yemeni prison (including USS Cole bombers), it’s pretty clear that we’re just better at it.
pursued anti-US combatants with deplorably excessive zeal. You contridict yourself with this statement, if they are combatants then they are illegal combatants and have no protection under the geneva conventions.
but it does appear to be a clear violation of the Geneva Conventions to which we are a signatory. Unless the Bush Administration can come up with a convincing rebuttal How’s this for convincing they are not in uniform, they hide in the general population, they are not part of the armed forces of any nation and they purposely target civilians therefore they are not entitled to any geneva conventions protections.
I have to conclude that we are in violation of the Geneva conventions, and that the Bush Administration’s zeal in fighting the GWOT has transgressed against the traditions and history of our Republic. really? our Republic has a tradition of hanging or executing by firing squad illegal combatants, until recently this was what we did only since the Vietnam war has this become an issue.
