Why We Have Trials

by hilzoy

From the NYT (h/t CharleyCarp):

"Abdul Razzaq Hekmati was regarded here as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999.

But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself. For the next five years he was held at the American military base in Guantánamo Bay, Cuba, where he died of cancer on Dec. 30. (...)

Several high-ranking officials in President Hamid Karzai’s government say Mr. Hekmati’s detention at Guantánamo was a gross mistake. They were mentioned by Mr. Hekmati in his hearings and could have vouched for him. Records from the hearings show that only a cursory effort was made to reach them.

Two of those officials were men Mr. Hekmati had helped escape from the Taliban’s top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati’s case, but to no effect.

“What he did was very important for all Afghan people who were against the Taliban,” Hajji Zaher said of Mr. Hekmati’s role in organizing his prison break. “He was not a man to take to Guantánamo.” (...)

The 1999 escape was a deep humiliation for the Taliban government, which blocked roads and searched houses across the country for days afterward and offered $1 million for the capture of the escapees. Two of Mr. Hekmati’s relatives were badly tortured by the Taliban after the prison break as the Taliban looked for information.

Two of the men Mr. Hekmati freed, Mr. Khan and Hajji Zaher, returned to the battlefield to lead forces against the Taliban. They both received significant American support in 2001 and worked with Special Forces units.

A third man who escaped with them was another commander of the anti-Taliban Northern Alliance, Gen. Mohammed Qasim.

According to Mr. Hekmati’s account in his hearing in September 2005, he organized the escape because he opposed the Taliban’s “ruthlessness and injustice.” (...)

The men escaped to Iran, where Mr. Khan provided Mr. Hekmati and his family with a house and financial support in return for his daring. Mr. Hekmati said he returned to Afghanistan only in 2002, after the Taliban were toppled and Mr. Karzai’s interim government was installed. Within a year, he was arrested."

Hekmati was apparently accused by two people: one a governor he had turned in for corruption and for protecting Taliban leaders, and the other a relative involved in a blood feud against him. The Afghan government officials mentioned above could have vouched for him, but apparently we just don't know how to get in touch with Afghan cabinet ministers and generals, even when they're trying to get in touch with us.

There's a better way of dealing with this sort of thing than letting people rot in jail until they die of cancer. It's called a "trial." Amazingly enough, in countries that have "trials", the judge and jury get to hear "witnesses" and examine "evidence" on both sides of a case, rather than just taking the government's word that the accused is guilty. Then -- and this is the really astonishing part -- the members of the jury get to deliver what is called a "verdict", based on their assessment of the strength of the evidence against the accused. And that "verdict" does not have to be guilty: in countries with "trials", that verdict can go either way!

Pretty amazing, once you think about it. Maybe we should try it sometime.

Comments

[Gary Farber]

Heh. I just opened the tab to look for an appropriate thread in which to post a link to this story.

[dutchmarbel]

Then -- and this is the really astonishing part -- the members of the jury get to deliver what is called a "verdict", based on their assessment of the strength of the evidence against the accused.

That bit is optional though. You can have perfect trials without jury; I'm happy we don't have the system.

But I agree very very much with your post. Awfull things happen in Guantanamo Bay and trials are rather essential.

[liberal japonicus]

"They are among the most dangerous, best-trained vicious killers on the face of the earth"
Donald Rumsfeld

"the worst of a very bad lot"
Dick Cheney

[Gary Farber]

Although you quote this, Hilzoy, and the paragraph above it, which makes the same point I'm about to make:

Two of those officials were men Mr. Hekmati had helped escape from the Taliban’s top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati’s case, but to no effect.

I think it juxtaposes particularly well with this paragraph:

At his October 2004 review hearing, Mr. Hekmati specifically asked that Hajji Zaher and Mr. Khan be contacted to act as supporting witnesses.

The military tribunal president said the Afghan government did not respond to requests to locate the men, and ruled that they were “not reasonably available.”

In October 2004, Ismail Khan was... well, here:

ABUL, Afghanistan, Oct. 4 - The American ambassador to Afghanistan, Zalmay Khalilzad, on Monday declared a success for the government of President Hamid Karzai, reporting a rapid disarmament operation in the western city of Herat after the recent removal of the governor, Ismail Khan.

He also announced that Mr. Khan had agreed to join the government if Mr. Karzai wins the presidential election on Saturday.

The president has tried to persuade Mr. Khan to come to Kabul as minister of mines and industries to remove his strong influence from western Afghanistan, but the governor has refused until now.

Mr. Khan's agreement is likely to further ease tension in Herat, where violent riots took place two weeks ago. Yet Mr. Khan has made no comment about his decision, and it is not clear if he will announce his support for Mr. Karzai in the presidential race.

But, y'know: who could find him?

[Steve]

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[CharleyCarp]

It's not just cabinet members who couldn't be found. They couldn't find other Guantanamo prisoners.

[Snarki, child of Loki]

There's a better way of dealing with this sort of thing than letting people rot in jail until they die of cancer. It's called a "trial." Amazingly enough, in countries that have "trials", the judge and jury get to hear "witnesses" and examine "evidence" on both sides of a case, rather than just taking the government's word that the accused is guilty.

What a great idea! Let's get the ball rolling with Rumsfeld, Cheney and Bush. And make sure to give them all the wonderful procedural safeguards that they, with their grandmotherly kindess, have shown the world is "sufficent" for justice to be done.

Rumors that this involves comparing their weight to that of a duck are unacceptable and despicable.

[KCinDC]

Spam cleanup on aisle 07:41!

[Andy Worthington]

Hi Hilzoy,
Thanks for picking up on the article that Carlotta Gall and I wrote for today's New York Times. For more articles on Guantanamo, and information about my book "The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison," please visit my website: http://www.andyworthington.co.uk/
With best wishes,
Andy

[Bill]

I agree, give them all trials. But do so honestly:

1. Does the organization participate in a pattern of felonious behavior?

4:89 Have no unbelieving friends. Kill the unbelievers wherever you find them.
4:101 The disbelievers are an open enemy to you.
9:5 Slay the disbelievers wherever you find them.

Murder is a felony.

9:29 Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His messenger, and follow not the Religion of Truth, until they pay the tribute readily, being brought low.

Extortion is a felony.

2. Is he associated with the organization?

Prostrating yourself five times a day to Allah and declaring his Prophet the ‘perfect man’ to be emulated by all of his followers is sufficient grounds for declaring ‘association’.

Guilty under RICO Statutes. Felony conviction.

[Phil]

You so rarely see someone willing to come out and suggest that being a Muslim should be a felony. Fascinating.

[rea]

Be careful, Bill, lest your reasoning lead to your indictment for mass murder of Midianite children . . .

[gwangung]

Well, I know where Bill stands on the Japanese American internment...

[The Modesto Kid]

Some comments beg response with ellipses...

[Gary Farber]

But a sentence can't end without a period, as well as an ellipsis....

Three dots for an ellipsis. When ending a sentence with an ellipsis, it still needs a period. Couldn't be simpler... to use.

[Bill]

Three questions for my detractors:

1. Do you think that the Pakistani lawyers, who we all seem to support, would either ban or drastically revise the teachings of Mohammed if they had a chance to do so?
2. Do you think that young women, who want to live their life with Western freedoms, should be able to do so? Unlike the two beautiful girls who were recently shot by their dad because they were not sufficiently traditional.
3. What do you think of hanging gays, adulterers, and drinkers from cranes?

Do not confuse ‘Islam’ with ‘Muslims’. There are over a billion Muslims, most of whom do not understand their ‘religion’. A Constitutional Amendment stripping Islam of it’s status as a religion would allow the majority of Muslims who share our pluralistic views of the world to safely get on with their lives. It would also allow us fans of the Constitution to humanely deport those among us who truly believe in a religion that directs them to use violence to spread a supremacist ideology.

Islam makes the Mafia look like the Boy Scouts. Islam is illegal under the RICO Statutes. If the goal is minimizing human suffering, we should call it what it is.

[trilobite]

Let us all pray to Allah that Bill is not a prosecuting attorney.

Tho given his grasp of RICO, his family had best pray that if he is, he has his resume prepared.

[Anarch]

What do you think of hanging gays, adulterers, and drinkers from cranes?

Truthfully, I think anyone flexible enough to drink from a crane should get all the whiskey they want.

[trilobite]

Oh, a new post by Bill. Why, this

A Constitutional Amendment stripping Islam of it’s status as a religion would allow [us]...to humanely deport

sounds familiar, where have I seen it before?

Oh, yes:
Critias saw that, if the case were brought to a vote, Theramenes would be acquitted. Accordingly, after conferring with the Thirty, Critias ordered men with daggers to line the stage in front of the audience and then struck Theramenes' name from the roster of the 3,000, denying him his right to a trial....the Eleven, keepers of the prison, entered, dragged Theramenes away, and forced him to drink a cup of hemlock.

Or maybe it was here:
The Reich Citizenship Law of 1935 stripped persons not considered of German blood of their German citizenship and introduced a new distinction between “Reich citizens” and “nationals.”

I believe that is the first time I have deliberately triggered Godwin's Law. It needed doing.

[Jeff]

There's a better way of dealing with this sort of thing than letting people rot in jail until they die of cancer.

Actually, that's what a trial can do, too. We can try John Gotti ("...among the most dangerous, best-trained vicious killers on the face of the earth"; "the worst of a very bad lot", no?) and let him rot in prison until he died of cancer.

Whenever BushCo wants to invoke special processes and designations, the answer is John Gotti.

[Larv]

There are over a billion Muslims, most of whom do not understand their ‘religion’.

Good thing you're here to 'explain' it to them, then. I'd suggest going to the nearest mosque and sharing your deep and utterly unbiased understanding of their religion with the poor deluded congregation. They'll no doubt thank you for it.

[Gary Farber]

"There are over a billion Muslims, most of whom do not understand their ‘religion’."

Gotta admire that one. Just stop and repeat and admire it.

Similarly, most Jews don't understand their "religion," and neither do most Christians.

Fortunately, Bill does.

Bill never ever ever ever addresses, no matter how many times it's brought up, the point that the Old and New Testaments are equally filled with equally murderous exhorations to slaughter tribes, bash in the skulls of infants, rape, loot, exterminate, commit genocide, and so on. And that there is no lack of people who insist that the words are to be taken literally.

Then he's puzzled that no one sees how scary the Koran is.

Funny, that.

Anarch, the truly skilled enjoy drinking from whooping cranes, in between whoops.

[Bill]

Well, got to go. Still no answers to my three questions, but I’ve been called a Nazi (talk about trials…). Which begs a fourth question:

4. What race is Islam?

[Gary Farber]

"4. What race is Islam?"

Steeplechase. HTH.

Bill, I've asked you a variety of questions in the past. Repeatedly. You ignored them.

When you engage in the courtesy of responding to others, others might -- might -- get around to be interested in giving you another chance.

Meanwhile, you're free to finally respond to what you've been asked previously.

After you've done so, and waited another six months or so, perhaps folks might be interested in engaging with you as you like to engage with them. Go for it.

[hilzoy]

Bill: what race is Judaism?

[rea]

4. What race is Islam?

Good point. So you're not a racist bigot; just a bigot. Congratulations.

[rea]

But a sentence can't end without a period, as well as an ellipsis....

You are right, of course, but some of us don't actually end our sentences--we just let them taper off in midair . . .

[Anarch]

Gary: Anarch, the truly skilled enjoy drinking from whooping cranes, in between whoops.

Great minds: I was suggesting the whiskey to help with the whooping coughs that are a hazard of the profession.

rea: Good point. So you're not a racist bigot; just a bigot. Congratulations.

Oh no. Our Bill could never be just a bigot.

[Anarch]

Or perhaps: just a bigot...

[ar]

I have a question? Does anyone know what legal options his family have to sue the US govt internationally?. Here was a man held without trial till he died. He was not found guilty of anything. He was legally innocent (is not one supposed to be innocent until found guilty). I would think they have some recourse to get justice. Or has th US now become like the old Soviet Union?

[Gary Farber]

"You are right, of course, but some of us don't actually end our sentences--we just let them taper off in midair . . ."

But that requires an ellipsis and a period.

To represent an incomplete sentence, you interrupt it with dashes--

To not finish a sentence at all, you just

Punctation is a set of recognized patterns that enable us to precisely do all these things. They're precision tools.

If we choose to make up our own ideas about them, it's very creative, but they don't, in fact, communicate what we mean to other people, unless you are talented to the point of being a genius. It's solipsistic, rather than usefully creative. The thing about communication is that both sides need to have the same understanding of the same signals.

James Joyce, and similarly skilled and knowledgeable professionals can make up new usages, and communicate to others with them.

If, however, one doesn't have the level of skills and knowledge at using words as a James Joyce, making up personal punctuation and grammar and usage won't achieve the same effect.

I'll shut up now; I just need to say it every six months or so.

[Gary Farber]

"Or has th US now become like the old Soviet Union?"

It's what a lot of folks have clearly favored and consistently argued for.

It remains something of a question.

"Sovereign immunity" otherwise covers a lot.

[rea]

Punctation is a set of recognized patterns that enable us to precisely do all these things. They're precision tools.

If we choose to make up our own ideas about them, it's very creative, but they don't, in fact, communicate what we mean to other people, unless you are talented to the point of being a genius. It's solipsistic, rather than usefully creative.

I tend to take Humpty Dumpty's view of these things:

`When _I_ use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you CAN make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'

[trilobite]

Bill, nobody has called you a Nazi.
(Also, I don't need to hold a trial to call you a Nazi. That's a great thing about this country, I can call anyone anything I want. Nazinazinazi. Wheee! But I wouldn't do that because I have no reason to think you are one. Certainly not literally -- the Nationalsozialistische Deutsche Arbeiterpartei disbanded some time back.)

All I said was, your proposal reminds me strongly of one of the worst Nazi laws. As you point out, though, there is a difference: the Nazis outlawed ethnically-linked coreligionists on the basis of race, whereas you want to outlaw ethnically-linked coreligionists on the basis of your understanding of their religion, which is much better and relevantly different. We all see that now.

Gary, I think that the OT's praise of infant-head-smashing is meant only as poetic hyperbole. It comes at the end of a litany of woes in one of the Psalms (which are not identified as of direct divine origin), and seems to express the singer's overwhelming grief and rage, not to prescribe.

I don't offhand recall any praise of rape -- actually, G-d berated Joshua for leaving women alive to rape, because he was supposed to kill the whole nation. So you're spot on as to genocide.

I'm less familiar with the NT, are there similar passages there?

[Anarch]

Random punctuation question, since it's more interesting than toying with Bill: there are a couple of stylistic conventions for ellipses of which I'm aware but they all apply to ellipses denoting the omission of extant text. What I don't know, and I don't have any of my style manuals handy, is whether those conventions also apply to an ellipsis denoting "trailing off" (aposiopesis, Wikipedia helpfully informs me). The convention that I know is that the "--" denotes an abrupt break, while the "..." denotes, um, aposiopesis, but I have no idea how widespread that convention is. What are the commentariat familiar with?

[Gary Farber]

"What are the commentariat familiar with?"

I'm familiar with many usages, but I go with The Chicago Manual Of Style and Words Into Type.

So do most professional mass market and trade publishing houses, though some also have house style guides.

Newspapers tend to rely on the AP Stylebook, unless they're the NY Times.

Educational publishing I couldn't tell you about.

I'm not quite sure precisely what question you're asking. If it's "how widespread that convention is," an answer is "very," but I'm not sure that's what you're looking for.

I'd, incidentally, recommend to anyone seriously interested in copyediting/usage questions that they join, or at least read the archives, of COPYEDITING-L. But only if you're seriously interested.

[ral]

well... or maybe "Well!" (--Jack Benny).

My favorite punctuation line (this is from memory and alas, Google doesn't help me this time so it may be apocryphal): "Periods make their own spaces." --e.e.cummings

[Wayne]

While in Afghanistan, I once tried to take some suspected Taliban into custody properly. I called out," US Army, come out withyour hands up." The response was a burst of automatic weapons fire. I then pulled out my copy of the Miranda warning. When I got to the part about having the right to an attourney they responded with an RPG. I assumed they didn't want an attourney and called in an air strike. So between me the FSO ( he could have overrulled the strike) and some F-16 pilot we became judge, jury and executioner. I guess that makes us as bad as Bush in your book. Good Lord, no proper rights warning, no trial, no appeal; we just killed them.

[Gary Farber]

"I guess that makes us as bad as Bush in your book."

You are entirely misinformed and wrong. Most -- though not all -- people on this blog, including Hilzoy, strongly support the war in Afghanistan, and fault Bush for dropping the ball badly by shifting resources to Iraq that should have been applied to Afghanistan all along.

Certainly that's my position, and while I in no way speak for Hilzoy, it's my understanding that that's her position as well, which she's, you know, written about many times.

Which you'd know, if you bothered to care before having hallucinations about people's positions being the reverse of what they are documented at great length as being.

Try checking facts before attacking, rather than making baseless assumptions and issuing calumnies, I suggest.

[Wayne]

You missed the point entirely. I didn't say anyone was against the action in Afghanistan. I am pointing out that trials for persons captured there are at the very least impractical.
Sheesh, take a pill, Gary.
Lets look a little deeper. Give those captured there a trial. My first motion in the evedentiary hearing is to suppress any statements made before the Miranda warning was given. Then during the trial, I want to see testimony from the battlefield that my client was involved in the activiy alledged. Then,I'll want to cross. Bring in the rifle squad that capured this guy.
How many rights do you propose to give those captured on the battlefield? When do those rights kick in?
Now tell me, what part of what I said in my original post said anything about anyone being against the action in Afghanistan.
Take your own advice.

[john miller]

Wayne, nonetheless, the argument you made is really ridiculous. Nobody has ever, at least on this blog, said anything like what you are proposing. There is hyperbole for effect, and then there is the simply ludicrous which is where your original comment sits.

[Wayne]

No one has said give them trials? Why is my argument ridiculous? If you put some one on trial there are certain things you must do. Including cross examination of witnesses. So, exactly what part of what I said is ludicrous? Have you ever been to a trial? Do you know what they entail?
I have been to many as well as sat on Courts Martial Boards.

[john miller]

First of all, in this particular thread, we are talking about people already in prison, not even captured on the field of battle, but rather turned in to American authorities by others.

Secondly, you made the ludicrous claim that you needed to read the Miranda rights prior to even attempting to defend yourself from enemy fire. Nobody here, or just about anywhere, would accept that statement or feel that it was necessary.

[Wayne]

I made no such claim. What I said was, a defense lawyer would move to supress any statements made before the warning is given.
By the way most of those held were captured after firefights.
To be sure, many were detained on the word of informants. So, I would ask again. When do you Merandize them. Even if you do read them their rights back in garrison, when they say, I want a lawyer, you have to stop questioning. If you continue you my gai some intel value,but then you may have to turn them loose.
If I were the defense attourney, I would demand to see the affidavits the arrest was based upon. I would demand to see a warrant. I would demand that the government produce the arresting officer and any informants. Oh yeah, I would question the authority of military personnel to make an arrest. In a case from the 70's the Supreme Court ruled that Military Courts could not try and military authorities could not arrest dependants of US personnel. I would argue, that this extends to all civillians. Under our laws arrest powers are very spicific. Further, the court held, that in cases arising on military installations where there is joint jurisdiction (ie the act violated the UCMJ and local law) local jurisdiction took presedance. I would argue that US Courts have no jurisdiction and demand the release of my client.
Look, I'm not a lawyer (Hell I don't even spell very well). I'm just a cannon cocker who majored in Criminal Justice a thousand years ago. But, with even that limited knowledge, I can see the can of worms you open when you start putting on trial people captured on the battlefield. And, believe me that whole damn country is a battlefield.
The original article seemed to me to say that we should put these folks on trial. I disagree with that. And, no, I never really tried to read the bad guys their Miranda rights, but if I were a defense lawyer for a detainee, I'd argue that it should have been done. And, when I was overruled, I'd use it as the basis for appeal.
Putting some one on trial ain't as easy as it looks on Law and Order.

[Wayne]

By the way, Miranda did go to jail. That rulling was called Miranda 2. He told his cellmate what he had done and that was admitted at trial.
After he got out of jail Miranda was stabbed to death in a bar fight. Not that anyone is really interested.

[Gary Farber]

Wayne, I invite you to read these posts, and these posts.

When you're done, we can pick up the conversation from there.

I'm very grateful for your service to our country in Afghanistan. Thank you.

For our immediate purposes, you could jump over the posts on torture, and stick to those on detention. Here, and the posts below that one, would probably be sufficient.

[CharleyCarp]

I'd be interested to know the basis, Wayne, for the assertion that "most of those held were captured after firefights."

And even if true, this still wouldn't mean that people who were not captured after firefights -- the Uyghurs, for example -- are not entitled to a hearing under the GC to determine whether or not they are civilians, as opposed to combatants. If you want to lock people up for life, someone somewhere, with actual personal knowledge, had better be prepared to present some evidence. Rumor, innuendo, and presumption just isn't going to cut it. And if evidence is obtained through torture, well, that's not going to work either.

Even if there's only one innocent guy in Gitmo, that guy ought to be entitled to a trial. It is denial of this principle that makes the word "gulag" appropriate.

[CharleyCarp]

I can see the can of worms you open when you start putting on trial people captured on the battlefield. And, believe me that whole damn country is a battlefield.

What you're saying, though, is that any person can denounce any other person in that country for anything or nothing, and there's nothing at all that the denounced person can say or do about it. Life in prison. No way out.

[Wayne]

As far as torture goes, I don't think it works. I believe anyone who would give accurate information under torture would probably be suseptable to other means. We should abstain from torture not for fear of what the other side would do to our people,(how we treat prisoners has never affected how our enemies treat our guys) but because it is the right thing. I couldn't do it. I couldn't even participate in hazing in college.
Ironic, I have no problem killing people, but wouldn't torture them. If you think thats noble, I would disagree. There is nothing noble about warfare. It is a dirty business, and it changes you forever.
To the matter of detainees. Look at it from another point. How long should German POWs have been kept in jail. If the war had continued for 5 more years should we have started holding trials. Of course we cannot allow people to be jailed with no evidence. That flies in the face of what I swore to uphold, protect and defend. But, that does not mean everyone gets a trial. I can hear it now, you are agahst. If you believe that you get a trial before being deprived of life, liberty or property you are wrong. You only need to deal with the IRS once or held in contempt of court or congress to find out what due process means.
Charlie is right. If someone is going to be held, then there better be some convincing evidence somewhere. I disaree that if there is one innocent guy at Gitmo, he should have a trial. If he is innocent to hell with a trial, send the guy home with our apologies and some compensation( ok, I'm not being fair to Charlie- I know what you really ment).
I would have to agree that there needs to be some kind of due process. Maybe something like what we do in the military. A Summary Court ( one officer-not a lawyer) or an article 32. An article 32 is what we do in lieu of a grand jury. One officer reviews the evidence then makes a recomendation to the convening authority ( usually a general). Believe it or not, knowing what I do about both processes, I would much rather face an article 32.
I don't know what process there is for determining who gets picked up. I'm sure that some intelligence guy somewhere makes a determination as to whether this individual has any information. Believe me they don't indescriminantly send people off to Gitmo. It's way too expensive( we actually have to worry about money).
Some kind of due process, of course. Full blown trial-no.
One last point. I often hear people use emotionly charged terms like Nazi, concentration camp or gulag. Please don't do that. My uncle was held by the Nazis in Rome. My mother lived under Nazi then US occupation. My Russian History professor in college was held in a gulag. Nothing the US does comes anywhere near rising to the level of the images those terms illicet.
Before you use such a term go and talk to some one who has experienced the real thing. There are still many of them around. I was once in charge of a luncheon for former POWs. Having lived in the Phillippenes for 2 years I was interested in talking to the guys who made the death march. You get a whole new perspective when you talk to some of these people. I can't explain it, but you see it in their eyes.
I guess I'm rambling. I suppose it's getting close to time for this old soldier to hang up his guns.

[CharleyCarp]

Wayne, I too have family members who were POWs in WWII. Had; they're gone now.

The situation with German POWs was different in several key ways. First, a group of Germans caught in the US out of uniform getting ready to engage in sabotage were in fact given trials. With appointed lawyers. In a military court. Their case went up to the Supreme Court -- they lost, and were executed.

The bulk of German prisoners, though, were ordinary soldiers. They didn't contest their status as soldiers -- so there was no need for a trial to establish whether or not they were properly held. Indeed, most had surrendered, and were happy to be out of the war.

They also knew that the war would end, and they'd be sent home to Germany. The war had defined parties, and was clearly going to have a definable end. The current war is quite different. We're not actually at war with any sovereign, and there's no one who can sign a peace treaty or agree to a cease fire, or any of the usual things. Instead, it's for most practical purposes a war against a set of individuals. How long will it continue? Until the last terrorist suspect is captured? And then everyone will be released? That doesn't make sense.

Along with our hosts, I've written about this at length over the years, here and on my little blog, but here's the quick thumbnail on what process our Gitmo prisoners have been offered:

First off, the government took them to Gitmo for the express reason that they thought it would be beyond the law. The did not comply with Army Reg 190-8 or article 5 of the Geneva conventions, having decided that, like Dred Scott, these people had no rights we were bound to respect.

Then, some Kuwaitis hired a lawyer to file suit on behalf of their sons, held in the prison. The case ended up in the Supreme Court, which, in the summer of 04, ruled that Gitmo prisoners had the right to contest their detention in a federal court.

The government conducted over 500 hasty little tribunals over the next 9 months, designed to ratify the detentions. The prisoners were allowed to ask for witnesses, but they were almost never "found" (as noted above). They weren't allowed the see the evidence against them, and although the government was supposed to present any exculpatory evidence to the tribunals, it didn't do so. When tribunals came up with the wrong result, they have to do it again. And sometimes a third time. The standard was also very broad: it wasn't just whether someone had borne arms. Any rumor was enough. There weren't any witnesses, and there wasn't any cross examination. Most of the prisoners weren't captured by Americans, and so there wasn't a report by an American soldier about the circumstances of capture.

A number of prisoners filed the suits that the Supreme Court said they could file. The government asked the courts to dismiss the suits. One judge said yes, and the other no, and the cases went to the court of appeals to resolve this split. In the meantime, the government got fed up with the lawsuits -- none of which even got to the point of providing a full record to the court or any of the lawyers -- and got Congress to shut down the litigation, in the late fall of 2005. (Katherine and Hilzoy wrote several eloquent posts in that time period, and you might want to look at them.) Congress cut off the suits, but created, instead, a special judicial review in the appeals court of the tribunals.

There was an ambiguity in the law as to whether it really cut off the pending suits -- in the summer of 2006, the Supreme Court said that Congress had not worded the law corrctly to do so, and found that the cases could go forward. None did, because Congress passed a new law cutting them off in the fall of 2006. The constitutionality of this law is before the Supreme Court right now. No prisoner's lawsuit has progressed beyond the very preliminary stage. In 6 years of litigation.

In the meantime, some prisoners have filed petitions under the special appeals court review that Congress created. These cases too are more or less stalled: the appeals court is telling the government that it's going to have to show the records relevant to each prisoner with a case, and the government has been resisting this -- it's going to ask the Supreme Court to intervene shortly. No prisoner's case, under this new law, has moved beyond the earliest phase. (In several, the government has simply ignored court orders to turn over the files, and the court doesn't do anything about it.)

[Adam]

It is denial of this principle that makes the word "gulag" appropriate.

Technically, it's the worldwide disposition of the black sites that makes the term appropriate -- cf. Solzhenitsyn's "Gulag Archipelago." 'Political prisons' and 'illegal detention facilities' are nothing particularly new.

Most of the black sites themselves are nothing at all like gulags or concentration camps, and in fact, their purpose is somewhat distinct from past POW prisons as well.

Gitmo itself is an exception to that exception, if anything -- and it is really quite distinct from a gulag, or any sort of political prison. It's a novel legal oddity ("the government took them to Gitmo for the express reason that they thought it would be beyond the law" pretty much sums it up).

Gulags and concentration camps are historically significant largely because they existed entirely within the Soviet and Nazi political regimes. Gitmo is significant for the opposite reason -- it's sort of a loophole within a loophole that's used specifically because no one can decide how it comports with our constitutional regime.

[CharleyCarp]

In English, we use the word gulag in a somewhat broader sense than the strictly historical Soviet example.

[Adam]

In English, we use the word gulag in a somewhat broader sense than the strictly historical Soviet example.

I first read that as "In England" -- I was going to ask if you worked for Reprieve or know anyone there...

As for "Gulag," I'm afraid I'm just on kind of a kick about that right now -- I just finished Anne Appelbaum's book, and I think it's very relevant to Gitmo, the black sites, etc., but all I want to talk about right now is all the distinctions and the similarities.

The Gulags were really historically unique -- much like Gitmo today -- and I just think it's unfortunate that the specific meaning of the term has been diluted to essentially mean "prison camp" when it describes something altogether more weird and in some ways more sinister.

[Adam]

Charley, I see from your blog you have met some of the Reprieve folks. I wonder if you know my friend who works there. Small world.