Guantanamo Khadr interrogations

[fuji]

I take it in option 2, you're not opposed to skipping the messy details of a trial and proceeding directly to the execution?

Under international law you need only to hold a military tribunal with a couple of officers to make that call.

The US has granted Khadr rights that go far beyond what he is entitled to under the Geneva Convention or any other international treaty and plainly that Christmas present to Khadr means that they will have some sort of sophisticated process before doing whatever winds up being done.

 

[fuji]

Canadians are fighting the Taliban in the name of human rights and justice.

False. Were that true both China and Russia would have vetoed the UN resolution authorizing the use of force.

Canadians are fighting the Taliban on the grounds that the Taliban sponsored violent acts in foreign states.

Remember this is not an American or Canadian operation, this is a United Nations operation, and not all members of the UN agree that invading a country to improve human rights is a good idea. All however agree that force is justified to prevent further hostile acts from a belligerent state.

 

[lookingforitallthetime]

Under international law you need only to hold a military tribunal with a couple of officers to make that call.

The US has granted Khadr rights that go far beyond what he is entitled to under the Geneva Convention or any other international treaty and plainly that Christmas present to Khadr means that they will have some sort of sophisticated process before doing whatever winds up being done.

Yeah, they should have it all worked out in another 10 years or so.

 

[lookingforitallthetime]

False. Were that true both China and Russia would have vetoed the UN resolution authorizing the use of force.

Canadians are fighting the Taliban on the grounds that the Taliban sponsored violent acts in foreign states.

Remember this is not an American or Canadian operation, this is a United Nations operation, and not all members of the UN agree that invading a country to improve human rights is a good idea.

Sorry my friend, you're the one who is wrong. The war in Afghanistan is a NATO operation.

 

[fuji]

Sorry my friend, you're the one who is wrong. The war in Afghanistan is a NATO operation.

NATO disagrees with you:

http://www.nato.int/ISAF/topics/mandate/index.html

That link lists the United Nations resolutions authorizing ISAF's activities in Afghanistan. ISAF was authorized by the United Nations specifically because of the belligerent acts by the Taliban against foreign states.

Had the Taliban stuck to abusing its own people and not people in foreign countries then China and Russia would not have supported the resolutions authorizing ISAF.

 

[fuji]

The US Uniform Code of Military Justice [UCMJ] provides
for an Article 5 hearing on the battlefield. It is composed
of 3 officers who determine whether the detainee is an
innocent bystander or a combatant. It is equivalent to
a preliminary hearing under our criminal code.

The Bush administration cancelled these Article 5 hearings
and presumed all detainees were military combatants.

That was the fatal flaw of the current scenario. There
was no preliminary hearing and now we're dealing with
the chaos that followed.

I didn't realize they'd cancelled and assumed, but at any rate, yes, this means they have automatically granted Khadr all sorts of rights to which he is not otherwise entitled under international law. Assuming he IS a combatant is a great boon for Khadr as that status comes with extra rights.

They could have declared him a non-combatant and then executed him for having committed murder, instead.

 

[lookingforitallthetime]

NATO disagrees with you:

http://www.nato.int/ISAF/topics/mandate/index.html

That link lists the United Nations resolutions authorizing ISAF's activities in Afghanistan. ISAF was authorized by the United Nations specifically because of the belligerent acts by the Taliban against foreign states.

Had the Taliban stuck to abusing its own people and not people in foreign countries then China and Russia would not have supported the resolutions authorizing ISAF.

Under the terms of the treaty, an attack against any NATO country shall be considered an attack on all.

As for the UN, we could argue it's usefullness but that would be pointless. Kinda like the UN itself.

 

[fuji]

Under the terms of the treaty, an attack against any NATO country shall be considered an attack on all.

As for the UN, we could argue it's usefullness but that would be pointless. Kinda like the UN itself.

Nevertheless NATO sought and received UN authorization and the operation is being conducted under a UN mandate as per the NATO link above. Note that ISAF's mandate nowhere mentions anything about freedom or human rights. ISAF's mandate is to stabilize the country and provide security.

 

[oldjones]

There were several attempts to construct the legal system during that time which Khadr's team (or others) challenged, sending the whole thing back to the drawing board several times over. That takes time.



New York's legal system took a few hundred years to develop.



There's no political vacuum. There's a legal one: The Afghan government's laws and courts to which you refer didn't exist or weren't mature enough at the time Khadr was arrested.

As for considering his age, assuming he is not a POW, I'm still waiting for someone to tell me under which law it is that he is considered a child at 15 or 16.

It went back to the drawing board because it was deeply flawed and failed to meet simple, basic Constitutional requirements. Which was the intention of course. If the cabal in the WhiteHouse had played the game by the rules, it might have been over long ago. Are you suggesting the Defence should have silently accepted an unconstitutional process?

If you really think the New York legal system that your buddy named as a model took a few hundred years to develop to mere competence, aren't you saying it'll take a few hundred years before these 'tribunals' are ready for prime time? Isn't that all the more reason to abandon them and use the perfectly decent legal system a few hundred years has already polished up? Of course then there might be a fair trial and a true verdict.

As to your next paragraph: If there was an Afghan government, and ISAF was its security agency, then howcum a part of that security agency is inventing a legal and judicial process on its own territory to deal with offences committed on the territory and against the agents of the sovereign government of Afghanistan? Under what rule of law do the police transport the accused beyond the reach of their government and then conduct show trials by their own rules?

However immature you may think the courts of Afghanistan were at the time Khadr was seized, the system the US had not even conceived or invented was even less so. Anyway, that doesn't hold now; a constant stream of communiqués assures me there is in Kabul, a constitutional Afghan government functioning well. So why doesn't its loyal security agency finally turn its prisoner over to the the duly constituted authorities. Canada does.

Sorry I can't help you much about your age-related quandry:
If he was in Canada, as I'm sure you're well aware, he'd be a young offender, that's what our law is called, since you asked. A Canadian court trying such a case could try and sentence him as an adult if it judged, on evidence, that was appropriate.

"The Rome Statute of the International Criminal Court (1998) gives the court jurisdiction over the war crime of conscription or enlisting children under 15 years into national armed forces or armed groups, or using them to participate actively in hostilities. (Article 8) Although the Statute uses the terminology of "conscription" or "enlistment" of under-15s, this is accepted as meaning the same as "recruitment" in the other treaties." But the US has always been scared to sign the Rome Treaty. Anyway referring Khadr to the ICC would not only legitimize that hated institution, it wouldn't satisfy the Imperial agenda.

"Each [US] state has its own definition of the term juvenile: most states put the upper age limit at seventeen years old, although some states set it as low as fourteen. In reporting national crime statistics, the Federal Bureau of Investigation (FBI) considers people under eighteen to be juveniles" Since the Feds aren't actually supposed to have criminal laws as such, it's maybe not surpising I couldn't Google a better US federal definition. But then the tribunals are busily establishing that precedent as under 15 aren't they?

New York, without a developed justice system for a few hundred years, according to you, is one of only two states to set the upper age limit for juveniles at 16.

Hope this helps a bit, but as to the law respecting the tribunal that would define Khadr as an adult at the time he allegedly threw the grenade, the convening and prosecuting authority seems not to have made one. Yet. But never fear, should diminished responsibility of an brainwashed juvenile be seen to carry any weight, I'm sure they'll correct that oversight and define 14 and up as adult.

 

[Anynym]

Two problems remain: Khadr was NOT a soldier fighting for the then-recognized legitimate government of Afghanistan. He was fighting on the side of the deposed Taliban (which were never recognized as legitimate by many nations).

So he cannot be considered a POW, as there is no foreign government to which to return him after the war. And he is not a "Child Soldier" to be treated as such in Canada, because he was not a Canadian Soldier. His presence on the battlefield was, however, as a combatant, in the service of the enemy, and without lawful purpose he is quite properly termed an Unlawful Enemy Combatant.

 

[oldjones]

You hit the exact point that old jones is trying to avoid - what he IS doesn't line up with anything in the US constitution, and even the surpreme court isn't clear that any court in the US can even hear the case, just that they may be able to hear appeals to see if PERHAPS he fits the criteria for being treated by a US court (which is both unlikely and likely to be subject to appeal for however many years it takes).

Old Jones, when you say "constitutionally", what constitution are you taking about? US? Canada? Cuba? Afghanistan? Pakistan? The problem you have with this is you think you see it so clearly and you could easily make a choice, but the reality is that there is a ton of stuff here, and there is no easy way to define what this is.

IMHO, he is enemy combatant that should have been shot in the field. That would have solved the issue entirely.

Yup, assuming the shooter didn't run afoul of any of that "ton of stuff". But then, he'd be a soldier of the most powerful nation on earth and a non-signatory to many current international laws and treaties on human rights and such. Besides he'd be an appointed agent of the Afghan government who would reliably look the other way if he did any of that "tons of stuff".

But that ain't what happened. We don't get to turn off our thought processes as if it was just dead meat in the dust and deader words in dustier books. Khadr survived, and his captors have consistently failed to honour their own laws.

IF you want to uphold and follow it, the US Constitution—the only one I've referred to all along, do try to keep up won't you—gives quite enough guidance for how to pass laws, charge people, imprison the, hold trials, and convict and punish them. It's managed to guide and govern the US in doing so for a couple of hundred years. As fuji says, long enough for New York to develop that legal system you like so much. And even a pretty good system of military justice which has had to provide the personnel for the present shameful travesty. It works, and it's the supreme law of the land. Every American official from the President down swears an oath to uphold it. No weaseling out.

But for some reason, which isn't part of this topic, that wasn't good enough for Dick and his minions, and they set out to invent a whole new apparatus, to hold, assess, interrogate and dispose of whoever they captured in their war on terror. Since they're not men enough to cope with the occasional "No', they did everything they could to keep the Constitution from interfering with what they—only one of them elected—saw as their higher purpose.

So they've kept as much of it secret as they could, using Executive Orders rather than passing laws, tried to move it beyond the reach of the laws and the Courts, tried to define away rights the Constitution (the US one) says belong to all. Using minions trained and indoctrinated to follow orders, firing those who differed, or tried to debate. They don't want the Constitution to be applied to what they're doing in the name of their Holy War on Terror, and over and over that's been their position when the strength of the the American system finally stalled them and brought them into real courts, and their excuse when taken to ask.

There is an easy way to define what 'this' is. It's a democracy, governed by the rule of properly enacted laws, chief of them being the Constitution—speaking of the US—duly enacted by those elected by the people to do so and carried out by the Executive Branch they empower to do so under their elected President. Those laws are interpreted by duly constituted courts, who try, convict and sentence according to the laws and Constitution, with fairness to all.

The actions of the current Executive, as evidenced in the Khadr case and others would fit far better in a totalitarian state. Arguing that 'it's just too complicated' for Constitutions and democracy and all that is playing into the hands of dictators.

Demonstrably incompetent ones at that.

Does Amtrak run on time yet?

Someone once said: If you're not with us, you're against us. Well. if you're not upholding the Constitution, then you're against it. Sorry its so black and white, but they're just flimflamming you with all that "tons of stuff" shades of grey talk.

 

[fuji]

He was fighting on the side of the deposed Taliban

Not even that -- he was not even part of the Taliban. If anything he was part of Al Qaeda, and maybe not even a member of that. He might just be a guy who tried to murder someone with no affiliation to anything. Even if he was an Al Qaeda member, Al Qaeda is not an army or militia, it is a criminal organization.

The IRA on the other hand at least borders on being a militia with a system of ranks, and members drawn from the local community. It's certainly debatable, but much more plausible than Khadr's case.

If you're not a soldier you're not a child soldier.

 

[fuji]

It went back to the drawing board because it was deeply flawed and failed to meet simple, basic Constitutional requirements.

Correct, once the question of whether or not the US constitution should apply to non-US citizens captured in non-US territories was settled that is true.

I'm surprised you're in favour of this extension of US law to cover foreign nationals. Generally that upsets people.

If there was an Afghan government, and ISAF was its security agency, then howcum a part of that security agency is inventing a legal and judicial process on its own territory to deal with offences committed on the territory and against the agents of the sovereign government of Afghanistan?

ISAF was operating as per its UN mandate. I provided a link to ISAF's mandate above if you care to learn more about it, or feel free to keep making stuff up as you go along.

I guarantee you that if Khadr had been turned over to Afghan authorities he would have been tortured and then executed by now, so you really ought to ponder whether this is what you think should be done.

Canadians too were refusing to turn over detainees to Afghans for the longest time over concerns about how they would be treated.

The uber point here is that the US has afforded Khadr many, many more rights and privileges than he was due.

Sorry I can't help you much about your age-related quandry

There's no quandry. You have failed to show any legal reason why he should be treated as a minor. Even in Canada individuals his age charged with murder are commonly treated as adults.

"The Rome Statute of the International Criminal Court (1998) gives the court jurisdiction over the war crime of conscription or enlisting children under 15 years into national armed forces or armed groups, or using them to participate actively in hostilities.

None of that applies to Khadr. He didn't belong to any military or militia.

Anyway referring Khadr to the ICC would not only legitimize that hated institution, it wouldn't satisfy the Imperial agenda.

You might as well refer him to a divorce court in Jamaica. It would have about as much relevance. The ICC does not ever, in any circumstances, ever, claim to have jurisdiction over the sorts of things that matter in Khadr's case.

The ICC does not deal with determining POW status.

The ICC does not handle ordinary criminal cases.

If you referred Khadr to the ICC the ICC would simply rule that they have no idea what to do with him and refer him back to the Americans. It would be a waste of everyone's time and it would probably make people in the ICC say that Americans don't understand what the ICC is for.

Plainly you don't understand what the ICC is for.

Hope this helps a bit, but as to the law respecting the tribunal that would define Khadr as an adult at the time he allegedly threw the grenade, the convening and prosecuting authority seems not to have made one.

Therefore there isn't one...

 

[oldjones]

Sorry fuji I missed the part in ISAF's mandate that said their forces could take whoever they wanted wherever they wanted and do whatever they wanted to them. You'll have to point it out to me. Or just answer the easy question I asked.

But please do not tell me I think Khadr should have been turned over to the Afghans, until I've said so. Makes me think you'd rather supply my arguments for me, and that'd be no fun. Anyway, one of the achievements of terrified America's detention schemes is homegrown torture, isn't it? So now you'll actually have to demonstrate the Afghans are worse; no more taking that stuff on faith thanks to waterboarding.

I'm not sure why the ICC set you off at such length, it has no relevance except as to show, along with the couple of others I mentioned—you had asked—that special treatment for juveniles is quite common at all judicial levels from local to international. While it doesn't seem to bother you, as it does me, at least we agree the tribunal's out of step in this aspect.

But you have misrepresented the question you had asked, which certainly was not "…to show any legal reason why he should be treated as a minor". Had you asked, perhaps I could have answered. However since you ignored that I already pointed out Canadian law requires a full hearing on evidence before juveniles are tried as adults, I suspect it would have made little difference if I had.

Foolishly, I do believe that rights unalienable, endowed by the Creator, to life, liberty etc. are actual rights belonging to everyone, citizen or not, and that no twit in an office, no matter how oval can take them away, only violate them.

Your uber point: "that the US has afforded Khadr many, many more rights and privileges than he was due" fails because everyone has the right to, and is due fair and just treatment.

Anyway considering his complaints and others, the way you tout all those hard-won rights and few privileges you say Khadr enjoys, and how much worse off he could be, comes much too close to the old joke about the complaining customer in the restaurant.
"This place is a disgrace, it's filthy and the food's awful."
"Yes, but second helpings are free"

 

[fuji]

Applying your analysis to the following:

What would his status be if he was with the IRA?

What would his status be if he was with the VietCong?
[We treated him as a POW in 'Nam]

Which IRA? The earlier ones were proper militias and were treated as such. The later ones were criminal organizations and were treated as such.

The VietCong were a proper militia with ranks, chain of command, and so on. They had a uniform as well even though some units didn't often wear it.

Furthermore even in cases where the elements of a formal militia are missing the Geneva Conventions include exceptions for people who band together to defend their homes from attack. In many cases that could apply to the Taliban, the Vietcong, and the IRA.

However Al Qaeda in Afghanistan was comprised of foreigners who were not there to defend their homes. They were foreigners there to commit criminal acts of terrorism. That said it isn't even clear--and Khadr isn't even claiming--that he was part of al Qaeda.

He seems to have been an angry civilian who just wanted to kill some Americans, in other words, a murderer.

 

[fuji]

Sorry fuji I missed the part in ISAF's mandate that said their forces could take whoever they wanted wherever they wanted and do whatever they wanted to them. You'll have to point it out to me. Or just answer the easy question I asked.

ISAF is entitled, in fact required, to set up and run tribunals to mete out justice in the territory it controls. They've given Khadr a better, more robust legal process than they were obligated to. By bringing him back to a US territory, in fact, they've now given him access to the protections of the US Constitution which goes way, way beyond what he was entitled to in Afghanistan when he was captured there.

But please do not tell me I think Khadr should have been turned over to the Afghans, until I've said so.

You did say so: "So why doesn't its loyal security agency finally turn its prisoner over to the the duly constituted authorities. Canada does."

Be careful what you ask for, lest it come true.

However since you ignored that I already pointed out Canadian law requires a full hearing on evidence before juveniles are tried as adults, I suspect it would have made little difference if I had.

I ignored it because Canadian law has nothing to do with anything here.

Your uber point: "that the US has afforded Khadr many, many more rights and privileges than he was due" fails because everyone has the right to, and is due fair and just treatment.

Fair and just treatment is internationally accepted to mean that he could be summarily executed for treason and murder after an Article 5 tribunal rules that he is not a POW and that he is simply a murderer. That IS a fair and just treatment if that is the punishment consistently meted out to other murderers in similar circumstances.

The Americans have given him access to a MUCH more robust process than they were required to: He's still alive, for one thing, and wasn't killed later that same day.

 

[red]

Under international law you need only to hold a military tribunal with a couple of officers to make that call.

.

what section of the law allows this? can you cite it, please.

 

[red]

I didn't realize they'd cancelled and assumed, but at any rate, yes, this means they have automatically granted Khadr all sorts of rights to which he is not otherwise entitled under international law. Assuming he IS a combatant is a great boon for Khadr as that status comes with extra rights.

They could have declared him a non-combatant and then executed him for having committed murder, instead.

no they could not do that, legally. they have not given him extra rights, they have tried to reduce his access to his rights at every step. they have only given in grudgingly and as forced by the supreme court and public opinion.

 

[red]

Two problems remain: Khadr was NOT a soldier fighting for the then-recognized legitimate government of Afghanistan. He was fighting on the side of the deposed Taliban (which were never recognized as legitimate by many nations).

So he cannot be considered a POW, as there is no foreign government to which to return him after the war. And he is not a "Child Soldier" to be treated as such in Canada, because he was not a Canadian Soldier. His presence on the battlefield was, however, as a combatant, in the service of the enemy, and without lawful purpose he is quite properly termed an Unlawful Enemy Combatant.

child soldiers is a term often encompassing children fighting for rebel forces. tell me where these rebel forces are recognized as legitimate governments?

child soldiers have been treated as children in many countries including Angola, Burma, Burundi, Chad, Colombia, the Democratic Republic of Congo, Lebanon, Liberia, Nepal, Sierra Leone, Sri Lanka, Sudan and Uganda.

 

[red]

Nevertheless NATO sought and received UN authorization and the operation is being conducted under a UN mandate as per the NATO link above. Note that ISAF's mandate nowhere mentions anything about freedom or human rights. ISAF's mandate is to stabilize the country and provide security.

yes, but explain this

ISAF was authorized by the UN on dec 21, 2001 to act in precincts of Kabul. For almost two years, the ISAF mandate did not go beyond the boundaries of Kabul. The responsibility for security throughout the whole of Afghanistan was to be given to the newly-constituted Afghan National Army. However, on October 13, 2003, the Security Council voted unanimously to expand the ISAF mission beyond Kabul (Resolution 1510).

Omar Khadr was captured on July 27, 2002 near khost, Afghanistan (about 150 km from kabul).

How were the US troops acting legally (as the "police") when they were outside their mandated area?