Balkinization  

Monday, June 30, 2008

Through the Looking Glass: Indefinite Detention and the Parhat Case

Marty Lederman

Can the President indefinitely detain someone who has no connection to Al Qaeda and who has not engaged in any belligerent acts against the United States?

Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush Administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version today.

Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush Administration’s detention policy—namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the President in the conflict against al Qaeda.

Within a week after the attacks of September 11th, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The Administration argues that this Authorization for Use of Military Force (AUMF) authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.

Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al Qaeda or of the Taliban. Indeed, the Pentagon’s Combatant Status Review Tribunal (CSRT) did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced “weegur”). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to “oppression and torture” by the Chinese Government, including “harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.” In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone -- not the United States -- as his enemy.

In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and seventeen other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.

In light of all this -– and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks) -- what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?

As today’s opinion demonstrates, the government relies on the following, fairly astounding chain of reasoning:

1. The Taliban aided al Qaeda in committing the terrorist attacks of September 11th, and/or “harbored” al Qaeda.

2. Military force against the Taliban would “prevent future acts of international terrorism against the United States” by al Qaeda.

3. Thus, the AUMF authorizes “necessary and appropriate military force” against the Taliban.

4. A longstanding incident of the use of such force is the authority to indefinitely detain those who fight on behalf of, and under the command of, the entity (the Taliban and al Qaeda) against whom the use military force has been authorized.

[Up to this point, the argument is fairly unobjectionable, and supported by the Hamdi decision.]

5. In the AUMF, the government argues, Congress authorized force against not only the Taliban and al Qaeda, but also any entity that, subsequent to September 2001, has become so closely associated with al Qaeda or the Taliban that it is effectively “part of the same organization,” and thus covered by the AUMF (even if it would not have been so covered when the AUMF was enacted)—or, at the very least, such a subsequently affiliated organization is covered by the AUMF if it is “effectively part of” al Qaeda or the Taliban and the entity has also “engaged in hostilities against the United States and its coalition partners.” (The DOD definition requires both showings.)

6. A Uighur independence group known as the East Turkistan Islamic Movement (ETIM) is “associated” with the Taliban in the sense that it is “effectively part of” the Taliban.

7. Moreover, the ETIM is engaged in hostilities against the United States and its coalition partners.

8. Therefore, the AUMF authorizes the indefinite detention of anyone who is part of the ETIM, whether or not that person has any connections directly to the Taliban or al Qaeda, and whether or not that person has ever engaged in, planned or supported hostilities against the United States or its coalition partners.

9. Indeed, the AUMF authorizes the indefinite detention of anyone who has merely “supported” the ETIM, even if that person has not joined (and is not otherwise "part of") the ETIM, has no connections directly to the Taliban or al Qaeda, and has never engaged in, planned or supported hostilities against the United States or its coalition partners.

10. Although there was no evidence that Parhat joined, became a member of, or in any direct sense “supported” the ETIM, he did seek and receive training on the use of a rifle and pistol at the Uighur camp in Afghanistan, which he intended to use solely for resistance against the Chinese government (not a part of the U.S. coalition).

11. One leader of that Uighur camp was a man named Hassan Maksum.

12. According to the government, Maksum is also a “leader” of ETIM, although there is no evidence that Parhat knew anything about any al Qaeda or Taliban association with Uighur camps. (It’s not clear from the unredacted portions of the opinion whether there was any evidence that Parhat knew Maksum was affiliated with ETIM.)

13. Ergo, because Parhat received training at a camp led by an alleged ETIM leader, Parhat “supported” ETIM.

14. Accordingly, the military can indefinitely detain Parhat (and similarly situated Uighur detainees) at Guantanamo.

* * * *
That’s a fairly astounding chain of “logic”—one that explains why the Pentagon has detained so many persons who have not engaged in hostilities and who have little or no obvious connection to al Qaeda.

In its Parhat decision, the court of appeals does not reach the most fundamental, most important question: whether the Pentagon’s expansive theory of AUMF detention authority -- the 14-step logic described above -- is valid. That is to say, the court does not decide whether Parhat could be detained, even without any connections directly to the Taliban or al Qaeda, and absent evidence that Parhat has ever engaged in, planned or supported hostilities against the United States or its coalition partners, merely upon proof that (i) he had “supported” the ETIM; (ii) the ETIM had become “effectively part of the Taliban” after September 11th; and (iii) the ETIM had engaged in hostilities against the United States and its coalition partners. It assumes for purposes of argument that this would be a valid interpretation of Congress's statute, and holds that even so, the Pentagon has not established a basis for detaining Parhat, because the evidence on which it relied was not credible.

The court, admirably seeking to rely on the narrowest possible ground for decision, does not address whether Parhat’s training at the Uighur camp would suffice to demonstrate that he has “supported” the ETIM (let alone the Taliban) -- again, assuming the validity of the government's theory of detention authority.

Instead, what the court held was “merely” that the military had failed to demonstrate points Nos. 6 and 7, above: Even assuming the validity of DOD's own definition of who is detainable, the court reasoned, the evidence presented to the CSRT and to the court was insufficient to demonstrate, by a preponderance of the evidence, two things that are, by the Pentagon’s own admission, essential minimum prerequisites for detention of the Uighur detainees: (i) that the ETIM is "associated with" the Taliban, in the (required) sense of being "effectively part of the same organization”; and (ii) that the ETIM has engaged in hostilities against the US or its coalition partners.

As to these two failings in the Pentagon’s proof, the court had this to say:
The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. . . . The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. . . .

The principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions -- often in haec verba -- about activities undertaken by ETIM, and about that
organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are
“suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.
DOJ argued that the documents in question were in fact reliable, and probative of the ETIM’s affiliation and operations, for two reasons. But the court, citing Lewis Carroll, rejected those two arguments, and for good reason:
First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.

Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case . This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
As for the remedy, I'll turn it over to Lyle Denniston's excellent summary over on SCOTUSblog:

Having found that designation flawed on the basis of the evidence the CSRT considered, the Circuit Court then turned to the issue of remedy. It said it would not itself order his immediate release from confinement or his transfer out of Guantanamo to a country other than China. The government, it said, might have other evidence beyond what it submitted to the CSRT, and thus the Pentagon might want to try again before a new CSRT.

Still, it stressed, it would not “countenance the ‘endless “do-overs”' that Parhat fears.” While not deciding whether it has the direct authority to order him released, it said it was satisfied that it at least has the power to decide whether the government has proved that a detainee is an enemy combatant. So, it said, it would not accept a role of merely issuing an endless series of opinions on the quality of evidence put before each new round before a CSRT -- an indication that, at some point, it would order release.

The Court stressed that, if Parhat prefers, he was free to pursue immediately in U.S. District Court a plea for his release, by filing a habeas petition under the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195). In such a proceeding, it said, he would have more rights than in a review by the Circuit Court of a CSRT decision. And, he could use this new opinion, it said, to challenge the CSRT in the habeas case. “Most important,” it said, “in that proceeding there is no question but that the court will have the power to order him released.”

Comments:

This comment has been removed by the author.
 

one wonders what type of pixie dust the administration thinks was't sprinkled o'er the AUMF in order that suh magical powers from it does thus ensue ...

i find mineself in league with the court .. in much the same the way the beaver and the baker became friends ..

But the valley grew narrow and narrower still,
And the evening got darker and colder,
Till (merely from nervousness, not from goodwill)
They marched along shoulder to shoulder.

[fit the fifth]

 

There is nothing really new here if you are versed in history.

Modern terrorist groups are the equivalent of pirates or brigands - the land version of pirates who roamed various war ravaged lands in Europe without an effective central authority like Germany during the Thirty Years War.

The common law of war has recognized for centuries that nation states may exercise universal jurisdiction to capture pirates and brigands where ever they were found regardless of whether they happened to be attacking the capturing nation.

I would suggest that the United States stop trying to stretch AUMFs to cover the capture of terrorist groups peripheral to the declared enemy and start arguing that it is exercising universal jurisdiction to capture these terrorists as if they were pirates.

The alternative of declining to capture terrorists wandering around failed states simply because Congress has not declared war on them is absurd and dangerous.
 

One of many interesting points about this case, and this decision, is that the government seems to concede that Parhat is not a threat to the US (but he is to China), and that it intends to release him.
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But even in light of those points, it "insists" on affixing the label "enemy combatant."
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Persistence of a label (wrongly affixed) seems an odd value to fight for.
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As for the relationship to the AUMF, "Moreover, even if the DOD definition is not authorized by the AUMF, the government maintains that it is nonetheless within the President's constitutional authority as Commander in Chief."
 

It's too bad that the court of appeals panel didn't have Bart DePalma's testimony that Mr. Parhat was a terrorist.
 

I suggest a new drinking game. Each participant has to come up the most ridiculous person the DOD could detain under these rules. American citizens are off-limits (no use proving Bush could be detained). You have to justify the selection to the satisfaction of your drinking mates. Here's an example:

Dave Kilcullen, the Australian COIN advisor to Gen. Petraeus, supported the Sunni tribes in Iraq while the tribes were still allied with AQ-I.

The tribes definitely engaged in hostilities with the U.S. Kilcullen, by his own admission, gave far more support to the tribes than Parhat is accused of giving the ETIM. Ergo, we should detain Kilcullen.

You can try it yourself. See if you can come up with rationales for detaining:

Tony Blair
Nelson Mandela
Vladimir Putin
Neil Young
Shania Twain
 

The guts of the decision is the nature of evidence, and the phrase "rebuttable presumption." I have a suspicion that the meaning of "rebuttable presumption" applied by the DC Circuit is NOT the meaning that the administration had in mind.
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As the Supreme Court explained in Concrete Pipe, in the course of discussing the nature of "the burden of showing something by a 'preponderance of the evidence'": "Before any such burden can be satisfied in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty." ...
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If a Tribunal cannot assess the reliability of the government's evidence, then the "rebuttable" presumption becomes effectively irrebuttable. Cf. Bismullah, 501 F.3d at 186 (noting that a rebuttable presumption of regularity "would be irrebuttable, in effect, if neither petitioners' counsel nor the court could ever look behind the presumption to the actual facts").
 

While on your treasure hunt for pirates, don't forget the fact that Parhat was not even a member of ETIM. And that Parhat was not wandering around in a failed state when "captured" unless Pakistan has been moved to that category. But enough with facts, hoist the Jolly Bart and set sail!

On cboldt's more interesting observation,

"Persistence of a label (wrongly affixed) seems an odd value to fight for."

I return to what makes GITMO more of an issue on the war crimes front than the other attainder facilities in Iraq and Afghanistan.

Article 49 of the Fourth Geneva Convention, which states:

" Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."

As contrasted with combatant POWs, who can be transferred out of country, it is a war crime on its face for non-combatants to be shipped like this. Because of the underlying purposes of torture, abuse, murder and depravity that in general accompany shipments of non-combatants, and because of the ease with which evidence of later crimes is then destroyed, this is a war crime that is complete on the shipment, without the hurdle of proving abuse and torture.

That's why the label has been fought over so jealously IMO, and why no finding that someone was not an enemy combatant was allowed (new tribunals were convened in those few instances) and why the preferred term for the "mistakes" was "no longer an enemy combatant."

They needed to preserve the claim that these persons who were bought and sold in human trafficking transactions separate from any battlefield and severed from any evidence of status, were "combatants" when they were shipped, or the war crime is pretty indisputable.

I'm guessing this is why Parhat and his lawyer are being kept apart too at this point. There is the logistics nightmare Bush created when he began human trafficking for interrogation experimentation - what to do with the victims afterwards - which is no doubt part of the problem as well. But this issue of what to do with the evidence of the war crime seated in the isolation cell - that has to have some people spinning desperately right now and constantly ending up at the same spot.
 

Great. Now I've got an image stuck in my head of bart depalma dressed in one of those puffy pirate shirts from Seinfeld. This comments section sucks.
 

Japan attacked the US on Dec 7, 1941. Germany did not participate in the attack, but it was allied to Japan and became an enemy country. Finland and Romania were not associated with Japan and never attacked or fought against the US, but they joined Germany in its attack on the Soviets who were our allies. The Ustasha, a Croatian separatist movement, might be compared to the ETIM. After German occupation, they became a government and raised military divisions supporting the German Army (along with an appallingly enthusiastic participation in the Holocaust), but they never fought against the US directly.

The 1st Croatian Udarna Division was not directly associated with the Japanese Army, or the German Army, and they did not engage in belligerent acts against the US. Yet they were part of the Axis powers during WWII. Someone who belonged to that unit could be captured and indefinitely detained as a POW by the US.

The rules have not changed in the subsequent sixty years. If Huzaifa Parhat joined a military organization called ETIM and received military training in a camp, and if that camp was part of the haphazard alliance of foreign units that made up the Taliban army (an army that included an estimated 10,000 Pakistanis for example), or if ETIM was simply allied with the Taliban and al Qaeda as an army force, then the fact that they intended to attack China instead of the US is not much different than the fact that the Fins, Romanians, and Croats intended to attack Communists and not Britain.

That is a lot of supposing. If Parhat did not join a military force, or if the ETIM camp was located in Afghanistan but not part of the military command of the Taliban and not directly allied to them, then their situation might be more like Spain, which was Fascist during WWII but maintained neutrality and whose soldiers could not be captured and held as POWs no matter how closely Franco kissed up to Hitler.

It is not self evident that the chain of logic in the post is wrong, but the problem with any long chain is that you have to prove all the elements, and here the government seems to have no credible evidence of the important pieces. It makes sense for the Circuit to rule on the record before them and not to speculate on issues that can be safely deferred for the moment.
 

Where the rubber will meeet the road is in consideration of other prisoners' cases. Rest assured that the CSRTs for the other prisoners were conducted with less, not more diligence, and the same reliability issues will infect every case. Just wait until we start getting to the guys against whom the key evidence was obtained under torture.
 

Japan attacked the US on Dec 7, 1941. Germany did not participate in the attack, but it was allied to Japan and became an enemy country.

No, Germany "became an enemy country" when it declared war on us on December 11 and we reciprocated. See here.

Finland and Romania were not associated with Japan and never attacked or fought against the US, but they joined Germany in its attack on the Soviets who were our allies.

Romania declared war on the US on December 12, 1941, and the US followed suit on June 5, 1942. See here. Best I can tell, the US never declared war on Finland or vice versa, and I'm not aware that we treated Finland as an enemy.
 

Mr. Gilbert, one shouldn't make to much about what is, or is not, self-evident in a heavily redacted opinion.
 

The writing of statutory language designed to give the executive an unreviewable discretion is mocked in the well-known phrase:-

“if anything shall seem, the Minister may deem, a certificate of demption shall confer complete exemption”.

What the Parhat decision shows is the innate reluctance of Courts to clothe such processes with the imprimatur of justice.

What now happens to the Uighurs ? It seems that (i) they cannot be returned to China where they might face torture; (ii) it is unlikely that any other country will want to take them – all European countries have enough persons with claims to be recognised as in need of humanitarian protection to be processed; (iii) detaining them indefinitely would be wrong, so perhaps the only humane solution would be to admit them to the USA as refugees – in which case Colorado might be a suitable area to resettle them.

What then about compensation for their years of unlawful detention in inhumane conditions ?

Neocon Bart, posts above:-

” The common law of war has recognized for centuries that nation states may exercise universal jurisdiction to capture pirates and brigands where ever they were found regardless of whether they happened to be attacking the capturing nation.”

Sorry, Bart, but the crime of ‘piracy iure gentium’ forms no part of the laws of war and by definition a crime of ‘universal jurisdiction’ requires to be recognised as such by all nations. I rather doubt that the idea that the USA should have the legal power to detain whom it likes wheresover it likes would meet with the universal approbation of other sovereign states.

In fact, the solution so far as Afghanistan was concerned, was simple. The UN was prepared to offer a UN Mandate to go into Afghanistan to restore peace and security. Such a mandate could easily have granted the military a power to detain persons suspected of posing a grave threat to peace and security for successive periods of 6 months for the duration of the mandate. That is almost standard language in a mandate of the kind.

Had the USA kept those detained in Afghanistan in Afghanistan under a UN Mandate, I suggest it is unlikely that the US Courts would have been involved at all. In other words the Administration tried to be too clever with its theory of Guantanamo Bay as a ‘legal black hole’.

Courts generally do not like ‘black holes’. They are quite happy to consider ‘forum non conveniens’ arguments, but in such cases they want the proponent of the inconvenient forum to say which forum has jurisdiction.

Interestingly, the Court referred to the ‘Northern Alliance’ as an Afghan ally of the USA. Now they might well fit the definition of ‘brigands’. Yet another example of the sloppy thinking which has bedevilled the go-it-alone strategy of operation “Enduring Freedom”.

A further major problem continues to be the neglect of the situation in Pakistan, as to which see this in yesterday's NY Times:
Article on growth of Al-Quaida in Pakistan.

Sooner or later, the USA will have to realise that there is no ‘quick fix’ to this one – and the next Administration and the one after that will have this as a problem to grapple with.
 

The opinion essentially boils down to a demand that CIA and DIA provide their original sources for the summarized evidence provided to the CRST.

It will be interesting to see if the intelligence agencies are willing to provide these sources to civilian courts where they have often been unwilling to provide them to the military or are willing to simply release large numbers of prisoners from Gitmo.
 

mary said...

While on your treasure hunt for pirates, don't forget the fact that Parhat was not even a member of ETIM. And that Parhat was not wandering around in a failed state when "captured" unless Pakistan has been moved to that category. But enough with facts, hoist the Jolly Bart and set sail!

Without the evidence in front of me, I do not assume to know whether or not Parhat is a member of ETIM. However, unless EITM was running an adventure vacation spa in Afghanistan for visiting Chinese, the fact that Parhat was living and training with EITM suggests a sufficient connection for most folks with a dose of common sense.

BTW, it is becoming increasingly plain that large parts of Pakistan outside of government control represent a failed state.
 

I’m so glad that there are those among us like Marty who don’t despair for the future of the rule of law and its application to those who hold the highest offices of the land. The sheer audacity of the government in breaking the law has increased in my lifetime and shows no sign of diminishing, regardless of who is elected. It’s hard to believe, in an age of more and more information being available, how much worse its become. Each day I go out in search of something, anything, that will prove my assumptions wrong, and each day I get slapped in the face by the reality—we are mostly a country of immoral miscreants. In this country, with a few exceptional exceptions, there is no respect for the rule of law. Marty Lederman is one of those exceptions. For that sir, I thank you.
 

-- It’s hard to believe, in an age of more and more information being available, how much worse its become. --
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It could be that with awareness comes a false belief in increase of the phenomenon.
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See "summer of the shark" for a microcosm of that, and the public generally makes the oft-false association of "increase in reporting frequency" means "increase in event frequency." Gun crimes is another example of this.
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IOW, maybe the US has been perpetrating injustice all along, and managed to keep it well-buried.
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Not to suggest that outrage at injustice is misplaced. Just a comment that perhaps it isn't "worse" now. And, so what either way. Injustice is per se bad.
 

mourad said...

What now happens to the Uighurs ? It seems that (i) they cannot be returned to China where they might face torture; (ii) it is unlikely that any other country will want to take them – all European countries have enough persons with claims to be recognised as in need of humanitarian protection to be processed; (iii) detaining them indefinitely would be wrong, so perhaps the only humane solution would be to admit them to the USA as refugees – in which case Colorado might be a suitable area to resettle them.

Interesting that you are willing to release the Gitmo detainees, but not to provide asylum for these poor victims of Bush war crimes. The excuse that your immense EU bureaucracy cannot handle a couple hundred poor Gitmo refugees appears to be a weak dodge. After all, the EU must assume that these Gitmo refugees are all innocent as the driven snow or they would not be demanding that we release them. Thus, there is nothing to process.

A further major problem continues to be the neglect of the situation in Pakistan, as to which see this in yesterday's NY Times:
Article on growth of Al-Quaida in Pakistan.


It is also interesting that you appear to be in agreement with the NYT article. Meant as an election year partisan hatchet job, the article in fact lays out the case for an American ground war in Pakistan, which both you and the NYT would oppose.
 

That's why the label has been fought over so jealously IMO

I think you're on to something, Mary. Great insight.
 

Neocon Bart said:

"Interesting that you are willing to release the Gitmo detainees, but not to provide asylum for these poor victims of Bush war crimes."

A Republican (at least up to now) officer and gentleman, Colin Powell, is said to have warned the Administration of the "Pottery Barn rule".

Anyway, you have so much more space than crowded old Europe.
 

Thanks, Mary, for providing the essence of the problem in the context of the Fourth Convention. That they've been worried about it for a while has evidence: Here is the memorandum done by erstwhile anti-torture hero Jack Goldsmith arguing that the Conventions really only meant mass deportations anyway and that the government could get around the provision by arresting civilians and not accusing them of anything, since he thought there was a loophole to be exploited allowing deportation during the time between arrest and accusation.

http://tinyurl.com/6ncejo

I had written about it on Humanity Against Crimes a while ago.

I think what you are describing is exactly what their thought process is.
 

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Without the evidence in front of me, I do not assume to know whether or not Parhat is a member of ETIM.
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Bart, your example of fixing the GITMO problem by simply treating everyone who was purchased as a member of a band of pirates, caught in a failed state - makes even less sense on the senseless scale if it is not asserting the assumptions of capture in Afghanistan (factually inapposite to Parhat) and membership in the pirate club (factually inapposite to Parhat).

OTOH, if your assertion was intended to also include the unstated - that non-combatant, non-ETIM members purchased in a Pakistan, should be held without habeas and without even minimal standards, because somewhere in the world

There Be Pirates

then cough that hairball up.

From the Opinion, which emphasizes in several places that the government doesn't try to claim that Parhat is a member of ETIM, but only that he was somehow "affiliated" with ETIM:

"The Tribunal acknowledged, however, that 'no
source document evidence was introduced to indicate . . . that
the Detainee had actually joined ETIM'"
 

Marty's step 7 introduces the category "member of the coalition". SFIK the Congressional authorization doesn't include the term. Anyway there is no formal treaty or alliance governing the GWOT: the "coalition partners" in Iraq have been a constantly shifting, and generally declining group. I suppose the current hostilities in Afghanistan, though not the post-9/11 invasion, are covered by some NATO resolution. China isn't a member of NATO. The Bush administration seems to me to be inventing an alliance and determining its membership by executive fiat.
 

Mary:

No one is talking about rounding up everyone in a failed state and assuming they are terrorists/pirates.

Marty questioned by what authority the United States can detain members of terrorist gangs against whom we have not declared war and who are not warring against the United States.

I merely observed that today's terrorists are akin to pirates and brigands. Because the law of war has for centuries allowed universal jurisdiction for any nation to capture pirates and brigands, I suggested that there was no reason the same universal jurisdiction could not be used against terrorist groups.

Furthermore, I offered the common sense argument that it is utterly unreasonable to expect any military commander to allow armed terrorist gangs to operate in his area of operations simply because Congress had not gotten around to declaring war on them and there was no central government in a failed state like Afghanistan and the Pakistan hinterlands to stop them.


Finally, as to the evidence against Parhat, you are free to offer an innocent explanation as to why this Chinese citizen was in Afghanistan being trained in small arms by the ETIM and was living with them if he was not in fact a member or associate of the ETIM.

Once again, terrorist groups are not usually in the business of providing adventure vacations for tourists.

Try to apply a modicum of common sense here.

It is very possible that Parhat and some of his companions traveled to the mountains of Afghanistan to join the ETIM out of some damn fool romantic notion about fighting a guerilla war against the Chinese dictatorship. It is also possible that the ETIM were wannabe jihadis who spent their time pretending to be jihadis while shooting at targets instead of actual Chinese troops.

However, Parhat and his friends should have been more cautious about what they wished for because one day a very real war found them in form of several USAF 500 lbs bombs which blew the hell out of the ETIM camp and then in the form of very real American soldiers taking them prisoner. This very well may have been more than they bargained for. However, when you play with fire, you often get burned.

The military fairly quickly determined that Parhat and his fellow wannabe jihadis actually represented a minimal threat. For years now, the United States has been trying to spare these fools the wages of their folly by not handing them over the Chinese for a stint in a Gulag which would make Gitmo look like Club Med.

For this measure of mercy, EU hypocrites like mourad criticize the United States for keeping Parhat and his wannabe jihadis, but refuse to provide them asylum because...well...they could be real jihadis.

So Parhat sits in Gitmo while lawyers pontificate about due process.
 

This scene from the movie Lonesome Dove which would seem apropos to fools who fall in with terrorists.

The two protagonists Gus and Woodrow are leading a cattle drive from Texas to Montana. Their friend Jake gets bored, heads off on on his own and falls in with a band of outlaws. Jake keeps riding with the outlaws even after they massacre several farmers and ranchers.

Gus and Woodrow find the murder victims, form a posse and track down the outlaw band, including their friend Jake. Like on the battlefield of Afghanistan, there were no police gathering evidence to prove who did what. The calculus was brutally simple.

Gus: "You know how it works Jake. You ride with with an outlaw, you die with an outlaw. I'm sorry you crossed the line."

Jake: "I didn't see no line Gus."
 

Each participant has to come up the most ridiculous person the DOD could detain under these rules.

The Dalai Lama. For obvious reasons -- considered an agent provocateur by the Chinese, lives in a camp of exiles and dissidents outside the borders -- and I think that's for the win.

Picking up on Wm. Ockham's point, it gets interesting if other countries start playing by the same rules. Consider the relationship between the Kurds of eastern Turkey and the Kurds of Iraq.

The political truth is this: post 9/11, a fair few regional dictatorships (China and Uzbekistan being the most obvious examples) saw a chance to get into the Americans' good books and get rid of their pesky dissidents, many of whom were organised around Islamic principles. (In Uzbekistan, with an Communist-turned-nationalist dictator, the mosques were the only established organising structure.)

Anyway, the appropriate remedy for the Uighurs is to grant them political asylum. If that happens, it'll be after the Olympics, and probably under a new adminstration.

(Shorter Lart: persecuted minorities of dictatorial
regimes deserve to be banged up without charges.)
 

This scene from the movie Lonesome Dove which would seem apropos to fools who fall in with terrorists.

Thanks for showing that you're bereft of all seriousness. It's always amusing when people who talk big about 'resisting state oppression' when it comes to the Second Amendment become apologists for oppressive states.

It's an irregular verb: "I defend the right to bear arms as a bulwark against tyranny; you are a lawless brigand; he should think himself lucky to be detained without charge for the best part of a decade."

And yes, it should be the US that grants the Uighurs in Guantanamo political asylum? Why? Because it was the US that got suckered into playing posse, jailer and score-settler for a pack of dictators, thugs and shysters.
 

I merely observed that today's terrorists are akin to pirates and brigands.

Bart, your vision of the United States is akin to pirates and brigands. You have a well-established and tiresome track record of arguing essentially that we, the US, can damn well do as we please because there's no one out there big enough or belligerent enough to stop us.

As I believe Mark Field once memorably said, you don't argue to the law, you argue for taking whatever can be took. You are so breathtakingly lacking in self-awareness that you don't appear to have a clue as to how clownish you in fact are.

So I guess I'm saying thanks for providing a better, more civilized and more intelligent class of people with such a fine foil.
 

Without the evidence in front of me, I do not assume to know whether or not Parhat is a member of ETIM. However, unless EITM was running an adventure vacation spa in Afghanistan for visiting Chinese, the fact that Parhat was living and training with EITM suggests a sufficient connection for most folks with a dose of common sense.

"I don't assume to know, except that I do."
 

Modern terrorist groups are the equivalent of pirates or brigands - the land version of pirates who roamed various war ravaged lands in Europe without an effective central authority like Germany during the Thirty Years War.

The common law of war has recognized for centuries that nation states may exercise universal jurisdiction to capture pirates and brigands where ever they were found regardless of whether they happened to be attacking the capturing nation.


Oooh, law-making violence vs. law-preserving violence...make 'em fight! I'm not upset by the idea that terrorist acts violate peremptory norms, but I am a bit worried about the implications of such an approach towards armed resistance. Do you favor having the world's borders and governments remain identical to the ones we currently have? If governments have the ability--nay, an obligation!--to capture and detain indefinitely any accused terrorists they come across, under what conditions can armed resistance to tyrannical governments ever take place?
 

pms_chicago said...

BD: Modern terrorist groups are the equivalent of pirates or brigands - the land version of pirates who roamed various war ravaged lands in Europe without an effective central authority like Germany during the Thirty Years War.

The common law of war has recognized for centuries that nation states may exercise universal jurisdiction to capture pirates and brigands where ever they were found regardless of whether they happened to be attacking the capturing nation.

pms: Do you favor having the world's borders and governments remain identical to the ones we currently have? If governments have the ability--nay, an obligation!--to capture and detain indefinitely any accused terrorists they come across, under what conditions can armed resistance to tyrannical governments ever take place?


The Geneva Conventions defined the requirements necessary to fight as a lawful irregular force and to enjoy the privileges of a GC POW.

I would suggest that irregular forces which do not meet the GC definitions and violate the law of war can be considered the equivalent of pirates and brigands.
 

The Geneva Conventions make no such definition of a "lawful irregular force." They also provide no basis for detaining people as prisoners of war who are not fighting in the war you are fighting in.

Additionally, they make some distinctions between civilians and those engaged in the war. They definitely don't sanction taking people as non-civilian prisoners when you aren't at war. In fact, they believe in prisoners taken on the battlefield -- only. They are pretty specific about saboteurs and spies, the classes of people that fight without displaying weapons: They are only such when they are caught in the act, so to speak. If they rejoin their respective military and don a uniform, and you capture them, you may not treat them as saboteurs or spies just because they might have been at some time in the past.

Bart, you appear to come from the Douglas Feith school on the Geneva Conventions: that people have to earn the right to qualify for humane treatment, and the U.S. can unilaterally preside over the qualification decisions. Douglas Feith is 100% wrong on that, no matter how many people, and treaty ratifications, he has managed to influence.
 

This comment has been removed by the author.
 

ondelette:

The Geneva Conventions make no such definition of a "lawful irregular force."

GC3, Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

You can find the commentary of the drafters concerning the rationale behind this defintion here. Look for "Sub-paragraph (2) -- Partisans" about a fifth of the way down the page.

They also provide no basis for detaining people as prisoners of war who are not fighting in the war you are fighting in.

I never claimed that the GC's provided the authority to detain pirates and brigands. Rather, that authority arises from the centuries old common law of war.

I cited to the GCs only to demonstrate to pms how to distinguish between lawful irregular militaries recognized by the GCs and unlawful groups like pirates, brigands and terrorists.
 

Bart, I have no idea why you issued this statement for my consumption:

"No one is talking about rounding up everyone in a failed state and assuming they are terrorists/pirates."

??

You seem to toss that out instead of responding to what I did say. With Parhat, you are talking about someone for whom there is no evidence that he is a member of ETIM, he was not taken with weapons, he was not taken on the battlefield, he has never provided succor to al-Qaeda (either before the declaration of the GWOT or thereafer), etc. and you are arguing that he can be summarily killed or tortured or detained under laws of piracy. Which is bunk of the nonshipboard variety.

Because none of the facts are what you want them to be, you argue that we just shouldn't let any quasi-independent arbiter see the facts.

It's so much easier to argue that you are catching pirates if no one can point out that your victims are children who were sent out to buy tomatoes.


You then argue that somehow America authorized it's government to wander the world, buying non-combatant civilians for torture and interrogation experimentation. Not only do I not see any branch of government authorized to engage in pre-trial, pre-judgement detention/torture of non-combatants, when I read the Constitution attainder acts by govt are expressly prohibited.

Parhat was purchased in Pakistan, weaponless and parrotless.



Part of the old common law relating to pirates, btw, had to do with their deliberate placing of themselves outside the jurisdiction of courts (outlaws - a tactic that now has been adopted by our Dept of Justice in their recommendations of how to 'legally' tortuer) as well as with their acknowledged criminal purpose of plunder.

Whether you call them freedom fighters or insurgents, resistance fighters are not and haven't ever been treated as "pirates" Anarchists weren't treated as "pirates" The Crusaders in the ME weren't treated as "pirates"

Whether you are supporting them (as we did against the Soviets) or fighting them (as we are now) terrorists, resistance fighters, religious insurgents, and ethnic/reunification militia - those are all a bit more complicated than "thar be pirates"

I'm not completely averse to a military model as opposed to a criminal one to respond to some of the situations with terrorist acting in paramilitary guise, but the military model only really works for known enemy combatants seized on the battlefield or under the banner of evidence of actions as a saboteur/war criminal.

The military model doesn't work for making pre-9/11 associations and affiliations the basis of determinations. And it completely fails on every test when you start making up avenues to avoid the Geneva Conventions as applied to non-uniformed non-combatants (under some paranoid frenzy over whether they might be pirates or know a pirate or work in a peg leg factory).

So while I never said that you were talking about rounding up EVERYONE in a failed state (again - Parhat was taken in Pakistan in 2001 - not Pakistan as Bush has helped it become in 2008) that's what you want to pretend is on the table so you can respond to what you want to, not to the argument and facts.

So while you don your puffy shirt, people like Maher Arar have their lawsuits tossed. Oh, that's right - he was picked up in the "failed state" of America, at a NYC airport I guess I do have to give you that one.
 

Mary said...

With Parhat, you are talking about someone for whom there is no evidence that he is a member of ETIM, he was not taken with weapons, he was not taken on the battlefield, he has never provided succor to al-Qaeda (either before the declaration of the GWOT or thereafer), etc. and you are arguing that he can be summarily killed or tortured or detained under laws of piracy. Which is bunk of the nonshipboard variety.

1) No evidence? Parhat admitted that he received firearms training and lived with ETIM until the USAF bombed the camp and he fled. One does not have to be caught on a battlefield carrying a weapon to be detained as a prisoner of war or a pirate. It is common to capture enemy combatants after they dropped their weapons and fled the battlefield.

2) I am not suggesting that terrorists can be summarily executed as were the pirates of old. That remedy was eliminated with the minimum standards set for captures in the GCs. However, universal jurisdiction to capture pirates, and I argue terrorists, remains.

Part of the old common law relating to pirates, btw, had to do with their deliberate placing of themselves outside the jurisdiction of courts... as well as with their acknowledged criminal purpose of plunder.

One can make the same argument for terrorists with the twist that their acknowledged purpose of mass murder.

Whether you call them freedom fighters or insurgents, resistance fighters are not and haven't ever been treated as "pirates"

Terrorists are not lawful partisans as defined by the GCs.
 

"Terrorists are not lawful partisans as defined by the GCs.

"# posted by Bart DePalma"

ALLEGED "terrorists" are not terrorists simply because LABELED so. They are not "terrorists" unless and until adjudicated so by a competent tribunal -- of which latter two you are neither.

The Geneva Conventions protect EVERYONE, regardless whether called by the terms it uses, or by terms made up in effort to sidestep Geneva. There is NO circumstance, and no label, which removes the protections of Geneva from ANYONE the Bushit criminal enterprise -- and its dead-enders such as you defend -- has grabbed and imprisoned, even if they haven't tortured them.

You lie against the Constitution and rule of law -- against your own country. Love it or leave it, conscienceless thug.
 

There is nothing, Bart, in what you quoted about a "lawful irregular force" only about prisoners of war. The Third Convention is about prisoners of war, not about lawful or unlawful fighting forces. There is a difference, which apparently you don't want to make. Not to mention that the U.S. has a burden to prove that anyone it holds as a combatant is in fact a combatant, and anyone it does hold that way is entitled to POW status until the U.S. proves, individually, and on a case by case basis, that that person is unentitled.

Furthermore, you did make statements as to whether or not the Uighurs were with ETIM. The authorization for fighting in Afghanistan was for fighting Taliban and al Qaeda, and that was the mandate the U.S. announced to the world when they invaded. ETIM is a group fighting the Chinese over sovereignty and rights in Xinjiang, which they call East Turkestan. That's what the ET part is about.

Being Muslim is not enough to designate anyone as an enemy unless your guy really is fighting a Crusade. U.S. doesn't have a fight with them. Then there is the problem that the Pakistani border isn't the battlefield, and no one crossing there is required to where any special designations. But those are just details, right? The U.S. should be able to pick up anyone anywhere under any pretense and pretend they are combatants, and if they weren't wearing uniforms when arrested, they get no status?
 

Howard Gilbert:

Japan attacked the US on Dec 7, 1941. Germany did not participate in the attack, but it was allied to Japan and became an enemy country.

Ummm, just a FYI: Germany declared war on the U.S. That little fact kind of turned the trick, legally speaking.

Cheers,
 

The notorious "Bart" DeDicta has fallen to citing Hollywood movies as legal authority:

This scene from the movie Lonesome Dove which would seem apropos to fools who fall in with terrorists.

What next?!?!? One waits with bated breath the next absurdity....

Cheers,
 

I say Substance.

Come to Miami to show you.

http://justicebuildings.blogspot.com/

JUSTICE BUILDING BLOG
 

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