Vikings:  Half to Murtha, the other half to Pelosi. 

Bernice:  As I understand it, their own countries don't want them back.

Here is the wording of the agreement signed by Batista in 1934. The agreement states:
"Until the two Contracting Parties agree to the modification or abrogation of
the stipulations of the agreement in regard to the lease to the United States
of America of lands in Cuba for coaling and naval stations… the
stipulations of that Agreement with regard to the naval station of
Guantánamo shall continue in effect."

Artful Dodger: I say send them to Murtha's state, he wanted them, the people can't say anything since they voted for them, so they should be happy to have those terrorist in their back yard

Artful Dodger: well, if they are inno cent they shouldn't have anything to worry about.....just send them home.

Artful Dodger: release them back to their own countries and let them look after their own....death for those types isn't the answer, as it would only make the bad buggers worse.

Pedro Martínez:  Glen Beck (a talking head) suggests after Gitmo is closed that we send all the detainees to Alcatraz.  Or maybe to Rep Murtha's district.  He said he'd welcome them in his district.    Currently there is no plan on what to do with detainees once Gitmo is closed.    Right now they are suggesting that the real torture of Gitmo inmates will start once they enter the US judical system.  (meaning that the system itself can be a form of torture)      I predict that placement and plans regarding the imates and closing of Gitmo will become a political football. 

Czuch: Of course, it is your right to challenge the correctness of the classification. I don't see any problem in that. If you do so, it's the State's job to prove that the classification is OK.

I actually disagree that we have to agree that we disagree on the necessity of a new classification. We do agree on that! My point is that the new classification cannot be applied to people captured and detained before the adoption of such new classification.

Pedro Martínez:

Yes. The fundamental principles of legal certainty and prohibition of retroactivity is something I am not willing to give up on.

If I was a lawyer, and you had me classified as POW, I would argue that you had me classified wrongly, and argue for their release.... if you had me classified as a "common criminal" I would argue against thatas well, for their release!!

Its really a no win situation... except if they dont get a lawyer as POW.... but like you said, then they cant torture them!!!! ;)

I guess we basically have to agree that what we disagree on if it is okay to make a new classification or not.... we are arguing yes, you say no, simple as that.

Artful Dodger, Vikings: Good point. It would solve the problem indeed, but only temporarily (for reasons defined in the Third Geneva Convention) and they would have had to be given the POW status immediately after being captured. They can't be made POWs now, as they have already been interrogated. In my opinion, the best way out of this problem is to pass a constitutional-level law that would deal with these "enemy combatants".

Vikings:I wonder how they'd address the "war is over" part of POW status.  Seems to me that as long as there are terrorists organizations, the war is on. So you're probably correct that the war on terror will never officially end. 

maybe we should just consider them pow's then we wouldn't have to worry about trying them and then we would return them to their home country when the war is over( I mean when they are dead since the war on terror will go on forever)

Pedro Martínez:Wouldn't it just solve the problem if they put their status as POWs?

Artful Dodger: Agreed. I hope Obama will understand the crucial importance of the matter and make some decisions. It is a new territory, no doubt, and we're now at least 6 years behind in passing the laws we need to deal with it.

Pedro Martínez:  Well, that all makes sense and I have to admit I'm not fully knowledgeable on the laws.  These guys are military combatants.  Their status will likely change with Obama in charge.

This is clearly new territory in as far as it's a new kind of enemy.  It's a new kind of battlefield and a new kind of war.  I know that if it came down to my family's safety and the "rights" of some guy captured on a battlefield, I'll sleep better knowing he's locked up and my family is safe. 

Czuch: Is your world really so static that you dont think it is okay to ever have anyone who doesnt fit into the traditional categories or either POW or normal civilian trial material???

Yes. The fundamental principles of legal certainty and prohibition of retroactivity is something I am not willing to give up on.

Artful Dodger: It is important to differentiate between military combatants and criminals. In the case of the former, you are right that the fact that they were caught on the battlefield fighting against "our" forces is sufficient to detain them and keep them at some place until the war ends. However, they must not be interrogated (let alone tortured) and they have to be returned back to their homes after the war is over. This is why the US decided not to grant the people detained in Cuba the POW status. But when they did that, they would automatically have to treat them as criminals and now you really would need more evidence (like video tapes with them committing a terrorist act, documents, confession, etc.). And that's what the US didn't want to do either, for obvious reasons. But, it is illegal not to grant the POW status and to deprive a person from the rights stated in the Declaration at the same time. Some presidential order cannot abrogate Geneva Treaties and the Universal Declaration of Human Rights.

Vikings: Not since the sixties 

Pedro Martínez:

Now they're floating in the middle of nowhere, as nobody knows what their legal status is.


That is true, they are somewhere that has never existed before, terrorists showing up on a battlefield in a conflict they have nothing to do with.... any blame should be on them for any problems they encounter.... dont blame the US for having to come up with a new way to deal with these idiots!

I mean, should we expect that these terrorists should be saying to each other, hey, dont worry, we can do what we want, if we get captured, they will have to take us into court and prove we did something wrong.... we will be threaded like kings for a few months, then released on no evidence...

Artful Dodger: what, you don't picnic with bombs strapped to your belt and a bazooka slung over your shoulder in the middle of a war zone?

Czuch:It will be interesting to see how Obama plays that part out.  I can't imagine the Republicans going for civil trials with all the evidence requirements.  These guys didn't get captured when they were out on an afternoon picnic.

Artful Dodger:

Right, the point that seems to allude pedro in this case is that most of these GITMO cases these guys would get away in a court of law... mostly because there is a huge burden on the prosecution... you need witnesses and DNA evidence and blah blah blah.... and you just dont have that luxury to collect evidence when you are capturing people on the battlefield.

In a US court of law these guys would walk away innocent!

Pedro Martínez:

I have just sort of read 85 new posts, and i want to give a quick point of view...

First, there is a middle ground between a POW and an American civilian criminal destined for a normal trial afforded to American citizens.

Also, given the battle field circumstances, there is hardly the time and resources to give a thorough criminal investigation for every person detained on the battlefield.

It makes no sense to believe that in a traditional court of law you could actually convict anyone held in GTMO based on current rules of law in the US.

But they are also not traditional POWs, since they are not fighting under any countries army.... these are individual terrorists, placing themselves on a battlefield in a conflict they have no interest in, except in their terrorists activities.

Is your world really so static that you dont think it is okay to ever have anyone who doesnt fit into the traditional categories or either POW or normal civilian trial material???

Pedro Martínez:  It's not the question that is difficult.  What I'm getting at is the type of evidence that would be available to take to court.  Unless I witnessed a terrorist act and saw who did it etc, all evidence will be circumstantial.  What I'm asking you to do is to name the kind of evidence you would expect the US to find.  I know they have evidence gathered on the more well known terrorists, but some of those guys are relatively unknown. But they were captured on the battlefield.  Seems to me, that fact alone is evidence.  But it seems you'd expect much more.  Like what? 

Artful Dodger: What then? What can you do with me if you have no evidence? Is that really such a difficult question to answer?

However, I believe there actually IS enough evidence to convict most of the guys down there in Guantánamo. The problem is that they should have been given the POW status or treated as "normal" terrorists, i.e. people commiting a crime. Everything would have been much easier. Now they're floating in the middle of nowhere, as nobody knows what their legal status is.

Pedro Martínez: If I catch you on the battlefield in afganistan and detain you, what evidence could I possibly have against you and what could you be guilty of?  And in some cases, evidence can't be released because of national security.  What then?

Vikings: 5-15, 10-15 or 25 years if you were proven guilty, of course. In a fair trial.

Pedro Martínez: hmmm, 6 years as compared to 10-15 or 25 years, 6 years/'10-15 or 25, hmmm. 6/10-15 or 25....
and your complaint was?

Vikings: Well, you will not have a reason to complain as you would either be sent back to the US to serve your sentence (5 to 15 years of imprisonment, or 10 to 15 years if you happen to kill somebody or act as a member of an organized group, or 25 years if you commit the act of terrorism in an exceptionally condemnable manner) there, or you would spend this time in our correctional facilities. We would NOT detain you for six years outside our country without a trial, depriving you of your fundamental rights.

Pedro Martínez: I tell you what, If I ever decide to attack your country in a terroristic way and get caught, I won't complain to anyone how your country addresses my future, fair enough?

Artful Dodger: Yes, I know that and I hope the thing will finally be solved. At last. Because some of those people have been detained there for almost 6 years now, without proper hearing. And that's just a terrible "oversight".

Vikings: I am not asking for a provision of law backing up your statement this time, as you would probably come up with an order issued by an assistant to the deputy vice-president saying that not all military combatants actually are military combatants and therefore they are not prisoners of war if captured.

Pedro Martínez:As I understand it, Obama is closing Gitmo in one year, and in the meantime will be working on new policies to establish a new system for prosecuting suspected terrorists.  I don't know what that means fully as it's being worked out and likely will take a bit of time. 

From Townhall.com:

"Administration officials said that, pending an internal review, federal and military courts may be used. But, the officials added, a version of the secretive military tribunals, as established under President George W. Bush with the help of McCain, remains an option, too."

With national security issues, some "detainees" are likely to fall under a more closed hearing (military tribunal) rather than the open to the public civil courts.

Either way, Obama seems committed to making changes that to a greater extent address the human rights issues you're discussing.

Pedro Martínez: They are not afforded constitutional rights as they do not fall under U.S. jurisdiction. but they are military combatants fighting against military targets thus they fall under military jurisdiction

Vikings: This precedent is not valid, since those Germans you are talking about were granted a POW status under the 1929 Geneva Convention, which was replaced by the Third Geneva Convention of 1949. However, your government opted not to include the Guantánamo detainees under the effect of said Convention and therefore, they should be treated as regular civil prisoners.

Pedro Martínez: The only reason for this presidential declaration is to include these prisoners along with regular military prisoners since they don't wear uniforms or fight with conventional means. There is a president for this action, during WW2 germans infiltrated the united states and were captured and were detained the same way

Pedro Martínez: Were captured solders meant to be included into the Universal Declaration of Human Rights (with respect to individual trials) or isn't it more aimed at decent human treatment such as adequate food, water, shelter and humane treatment?

Artful Dodger: Their situations fall under a different classification. You have deprived them of their prisoner-of-war status, so no, their situation does not fall under a different classification. There is a prisoner of war and a "regular" prisoner. Nothing in between and nothing else.

Vikings: Oh, yes, this Presidential Order. I forgot that rule of law has already vanished from the United States. Presidential orders have a higher legal force and can overrule international treaties adopted by the US and UN resolutions.

***Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be --

(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;

(d) allowed the free exercise of religion consistent with the requirements of such detention; and

(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.***



this link and affidavit is relevant to the above, I think anyway.
http://www.smh.com.au/news/World/David-Hicks-affidavit/2004/12/10/1102625527396.html

Vikings:#1 should say in America, American citizens are granted a fir trial before they are convicted of a crime
#2 should be They don't agree that they all are deserving of a trial in an American court

yeah, that's better put

Pedro Martínez: The guys at Gitmo aren't sitting there for a crime like a civil crime.  They are enemy combatants and were captured on the battlefield.  I think their situations fall under a different classification and it isn't a matter of guilty or innocent (as in a civil crime) but more a matter of being captured on a military battlefield and in that case they are detained prisoners. 

Pedro Martínez: http://usmilitary.about.com/library/milinfo/blpresidentorder.htm

Maybe Article 9 of the below mentioned Declaration would help: No one shall be subjected to arbitrary arrest, detention or exile. This applies to military combatants as well.

Vikings: Can you back your statement with any provision of law?

Pedro Martínez: they are not because they are enemy combatants and as such fall under military justice

Vikings: So American citizens ARE granted a fair trial, while citizens of other coutries ARE NOT given the right to a fair trial? Hmm... I don't remember the US of A withdrawing from the Universal Declaration of Human Rights, whose Article 10 says Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

a query??


are they classed as prisoners of war? and if so why arent they treated as such.