Guantanamo Khadr interrogations

[fuji]

The ONLY thing that matters to me is that Omar Khadr is a canadian citizen.

He plainly is a Canadian citizen. He is a Canadian citizen who is accused of murder and treason in a foreign country and we need to let the foreign authority run its legal system through to conclusion.

In the case of Brenda Martin, for example, we did not repatriate her until the Mexican courts had completed their legal proceedings against her. Canadian involvement at this poitn should be limited to monitoring his treatment, and the video recently released shows that we have done that.

As for whether he SHOULD be a Canadian, I think his case illustrates that we need to change the law so that in the future people like him do not wind up being Canadians. Specifically the child of a parent whose citizenship if fraudlent should perhaps be expelled along with the fraudulent parent. Something like that would require a big overhaul of the law and whatever changes are made would not retroactively deprive Khadr of his citizenship--which is unfortunate.

 

[oldjones]

Oh geez, can you get off your high horse for a minute? I think Cheney and company are the biggest asshats of history. But that doesn't suddenly make it right for this "kid" to be in the middle of a warzone tossing grenades.

"innocent until proven guilty" doesn't mean that you get a get out of jail free card. He is held pending trial, the first of which (Saddam's driver) starts shortly. That court system can handle only so many cases at a time. Bail isn't a "right", it's a priviledge, something that is often NOT granted to people charged with murder or acts or terrorism.

Had he been left to the tend mercies of the law in the land where he (apparently) commited the crimes, junior would already be nothing but a footnote and a gravestone.

So you can go on and blow your kumbaya smoke as much as you like, but the reality is the kid is potentially (and very likely) to be found guilty of a crime in another country, potential found likely of being a terrorists or associated with them. I don't have any, nadda, nil in the way of concern as to what happens to this guy, except to be certain that he won't ever be in the position to do it again to anyone, ever.

"The United States’ bail system has evolved from a system developed in England during the Middle Ages. In 1677, the English parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates would set terms for bail. The English Bill of Rights of 1689 declared restrictions against “excessive bail” and later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. The Sixth Amendment to the Constitution states that all people under arrest must “be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is accused of a bailable offense.
Still, American bail law is actually rooted in legislation. The Judiciary Act of 1789 stated that all noncapital offenses (crimes that did not carry the possibility of the death penalty) were bailable. In the case of capital crimes, the possibility of bail was at the judge’s discretion. The act also placed limits on judges’ powers in setting bail -- think back to the English Bill of Rights’ prohibition against “excessive bail.” Cut and pasted from HowStuffWorks [first Google hit] which goes on to say "The Sixth and Eighth Amendments of the Constitution [that'd be the Bill of Rights] provide essential rights for a speedy trial, good counsel and reasonable bail." May be that's kumbaya smoke to you, but it's the sort of thing Amercans fought their first war for.

Once again, you're making up the arguments you pretend to meet. Quote someone, anyone advocating Khadr be let out of jail free, or drop that point. As to opinions, however prejudiced—at least you now acknowledge the case hasn't been tried—well, as the saying goes, everyone's got one. But if you're sincere about only being concerned that "…he won't ever be in the position to do it again to anyone, ever" I'm heartened that you finally see there's no need or reason to continue the degrading farce of the Guantanamo tribunal and that Canada should get him outta there so they can ensure just that. And, as a bonus assist the US in regaining a tiny bit of democratic credibility.

 

[fuji]

The Sixth Amendment to the Constitution states that all people under arrest must “be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is accused of a bailable offense.

Khadr isn't under arrest. He can't be charged with a crime until his status is determined--whether he is a prisoner of war or not. My reading of the Geneva Conventions is that he is NOT, but legally that has to be determined by a "competent tribunal" and so far his legal team has succeeded in having the tribunals set up to date being declared incompetent.

Sooner or later a tribunal that IS found competent will rule on his status at which point he will be either a POW, and protected from prosecution, or not, and presumably charged with treason and/or murder.

Until then the GC requires that he be held AS IF he were a prisoner of war, which means, without charge: it would actually be illegal under the GC to charge him with a crime until his status is determined by a competent tribunal: Prisoners of War are not criminals and they are not under arrest, they are legally protected from prosecution for their hostile acts. If he is found NOT to be a POW then he can, should, and hopefully will be charged.

 

[danmand]

http://www.msnbc.msn.com/id/12838343/

 

[oldjones]

Nice long post. Too bad the crime didn't happen in the US.

Move along, nothing to see here.

As Fujii makes clear, it has yet to be established that there has been a crime, or that the US is competent to try the accused if there was a crime. So far, the best efforts of the Adminstration's best lawyers haven't convinced the Courts. On e wonders if there will be anything left of America's reputation as a land of laws and justice when they finally get it and give up.

The fact that all this is about something that happened halfway around the world, and that is advanced as if the US is therefore not subject to its own or international laws, but the fifteen year old they almost killed will be subject to laws yet to be enacted, and interpretations of existing law as self-serving as the depraved "Gitmo isn't the US so US laws don't apply" concept is even more shameful.

Time drags on, as does the abuse and the

 

[danmand]

Woohoo. Can you tell me how many "innocent iraqis" have been killed by (select from list Other Iraqis, Al Qiada, Neighbors, other muslims).

It doesn't shrink the acts of one 15 year old with a grenade.

Sadly, you have no idea what you are talking about.

 

[dcbogey]

Khadr isn't under arrest. He can't be charged with a crime until his status is determined--whether he is a prisoner of war or not. My reading of the Geneva Conventions is that he is NOT, but legally that has to be determined by a "competent tribunal" and so far his legal team has succeeded in having the tribunals set up to date being declared incompetent.

Sooner or later a tribunal that IS found competent will rule on his status at which point he will be either a POW, and protected from prosecution, or not, and presumably charged with treason and/or murder.

Until then the GC requires that he be held AS IF he were a prisoner of war, which means, without charge: it would actually be illegal under the GC to charge him with a crime until his status is determined by a competent tribunal: Prisoners of War are not criminals and they are not under arrest, they are legally protected from prosecution for their hostile acts. If he is found NOT to be a POW then he can, should, and hopefully will be charged.

The previous tribunals were not just ruled "incompetent", they were ruled illegal and against the Geneva Convention

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062900928.html

"Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions."

The US government is finally getting around to determining the status of the detainees. One wonders if they would have taken this step if the courts hadn't forced them to. You know, that bothersome habeas corpus thing.

http://news.bbc.co.uk/2/hi/americas/3867067.stm

 

[Aardvark154]

As Fujii makes clear, it has yet to be established that there has been a crime, or that the US is competent to try the accused if there was a crime. So far, the best efforts of the Adminstration's best lawyers haven't convinced the Courts. On e wonders if there will be anything left of America's reputation as a land of laws and justice when they finally get it and give up. . .

Seemingly the message, although I'm well aware you don't intend it as such, is don't take prisoners they aren't worth the trouble.

 

[Aardvark154]

"Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions."

The Court ruling you cite was in 2006. The Congress, however, took care of this objection by the Court (basically that it was an overreaching of Executive Authority - in that the action was lawmaking which is a function of the Legislative Branch), by passing appropriate legislation.

 

[danmand]

No, sadly you looking at one narrow case, ignoring a sea of stupidity and death. How many US troops in Iraq? A couple flip out, just like in every war.

It still doesn't excuse Khadr for what happened.

What is sad is, that you have no idea what you are talking about. You say:

It doesn't shrink the acts of one 15 year old with a grenade.

You did you see Khadr throw a grenade. You did not see the fighting ground
where he was found. You have no idea if he took part in any fighting. The
US military claimed for a long time, contrary to the truth, that Khadr was
the only one found alive.

Please stop repeating that Khadr murdered someone. That is up to a court to decide.

 

[fuji]

or that the US is competent to try the accused if there was a crime

Well that's going too far. The tribunals set up to date were more than adequate in international law (ie: GC) terms. They were inadequate only against the stricter requirements imposed by the US SC. The US SC has provided guidance on what the deficiencies were and therefore what a competent tribunal would look like--sooner or later one that meets the US SC standard will be set up.

The fact that all this is about something that happened halfway around the world, and that is advanced as if the US is therefore not subject to its own or international laws

The US has gone and above and beyond what is required by international law.

As for whether US law should apply, that is a very interesting question and it leads to a big conundrum: The UN authorized the occupation of Afghanistan, and said occupation essentially nullified all of the existing laws in Afghanistan. Khadr was then captured in Afghanistan, but what law should apply to him?

If you say that US law should apply to him, are you saying that the entire code of US law should apply to everyone in Afghanisan? For example, does the DMCA apply in Afghanistan?

US forces are occupying Afghanistan but that does not mean that the US Congress should have jurisdiction over it! There is a VERY strong argument that US law does not and should not apply inside Afghanistan.

However what law does? The laws enacted by the Taliban were nullified when the UN authorized occupation displaced them.

So it's not US law that applies, and it's not Afghan law that applies, and honestly international law does not deal with things like treason and murder so while it applies it's not of much use.

So the US did the only thing it could do--it imposed a system of military justice on Afghanistan and on Khadr that was a subset of US law covering basic things like murder and treason, but did not impose the entire US system of law.

The US SC has dodged this issue by saying that since Khadr was transported to a US territory he should therefore be subject to some if not all of US law, especially relating to constitutional rights.

However there is still a very knotty issue here--if Khadr is to be charged with treason or murder, under which countries laws would he be charged?

It can't be that everyone in an occupation zone gets a free pass if they murder people so SOME law has to apply.

 

[oldjones]

Seemingly the message, although I'm well aware you don't intend it as such, is don't take prisoners they aren't worth the trouble.

Actually, the message is: Know what you're up to… before you find out you shoulda brought a paddle. Clearly GeorgeII and Dick didn't.

 

[oldjones]

Well that's going too far. The tribunals set up to date were more than adequate in international law (ie: GC) terms. They were inadequate only against the stricter requirements imposed by the US SC. The US SC has provided guidance on what the deficiencies were and therefore what a competent tribunal would look like--sooner or later one that meets the US SC standard will be set up.

Shoulda been sooner, 'cause it's sure looking too late six years after.

The US has gone and above and beyond what is required by international law.

As for whether US law should apply, that is a very interesting question and it leads to a big conundrum: The UN authorized the occupation of Afghanistan, and said occupation essentially nullified all of the existing laws in Afghanistan. Khadr was then captured in Afghanistan, but what law should apply to him?

If you say that US law should apply to him, are you saying that the entire code of US law should apply to everyone in Afghanisan? For example, does the DMCA apply in Afghanistan?

US forces are occupying Afghanistan but that does not mean that the US Congress should have jurisdiction over it! There is a VERY strong argument that US law does not and should not apply inside Afghanistan.

However what law does? The laws enacted by the Taliban were nullified when the UN authorized occupation displaced them.

So it's not US law that applies, and it's not Afghan law that applies, and honestly international law does not deal with things like treason and murder so while it applies it's not of much use.

Nature and the law both abhor a vacuum, as the old saying goes. There can never be a situation where there is no law, only the absence of enforcing authority. Murder and treason did not become lawful in the interregnum between the Taliban and Karzai, just as you say in your next point.

So the US did the only thing it could do--it imposed a system of military justice on Afghanistan and on Khadr that was a subset of US law covering basic things like murder and treason, but did not impose the entire US system of law.

So it is US law that applies, because the Americans chose to make it up and apply it. They could have enforced pre-Taliban law, Examined the Taliban 's code and used it, had the NATO Council or the UN legislate, but they didn't. They decided to write a new book. Badly, it turns out. But it's far from being "…the only thing they could do".

The US SC has dodged this issue by saying that since Khadr was transported to a US territory he should therefore be subject to some if not all of US law, especially relating to constitutional rights.

If anyone dodged it was the Administration, who kept rewriting the rules so that it was military justice if necessary but not necessarily military justice. Complete with the absurd self-contradiction that US Justice as we know it did not extend to a particular US Base. The conservative SC is doing what it can to contain the embarrassment of the Executive branch's fumblings. It isn't the Court's job to write statutes or Executive orders, only to decide whether they are lawful and constitutional.

However there is still a very knotty issue here--if Khadr is to be charged with treason or murder, under which countries laws would he be charged?

Assuming, of course, that he should be charged, on which opinions differ. For the same reason that the US refused to participate in the International Criminal Court—because the actions of its military in combat might be deemed criminal—it could be argued that a criminal charge such as murder isn't appropriate in the circumstances.

It can't be that everyone in an occupation zone gets a free pass if they murder people so SOME law has to apply.

Which we sincerely hope the US and others will remember and follow the next time they produce collateral damage among non-combatants. But I'm not holding my breath.

Truth be told, Dick 'n' Bush wanted show trials to demonstrate to a disbelieving world a 'mission accomplished' in their War on Terror. Why else go through this travesty? As a deterrant? Isn't that the usual argument for legal punishments?

Thankfully the US system of justice has so far proven enough integrity to frustrate their design, and keeps pushing them to wards real, meaningful courts with proper disclosures and defence. And y'know, if people could look to the US for true justice, instead of being terrified of its misused power, we might just win that War on Terror.

 

[danmand]

At this point, that isn't even up to a court to decide, for there is yet to be a decision as to which court might actually have jurisdiction.

Khadr is suspected of killing the american soldier (and if it makes you feel better, just replace that phase in my posts so you can quit obsessing about it!) He was the one locked up as a result. At this point, it is all we need to know. No matter how his family's lawyers fuss and squeal, they cannot change the reality.

I consider it important to be obsessive about being innocent untill proven guilty by a court.

 

[fuji]

Theere can never be a situation where there is no law, only the absence of enforcing authority.

Says you?

So it is US law that applies, because the Americans chose to make it up and apply it.

There is a SUBSTANTIAL difference between "a US imposed law" and "US law" that you are for some reason ignoring. The US imposed SOME law, but not US law. It would, in my opinion, be morally and ethically wrong to impose the whole cannon of US law on the Afghan people. It would equally be wrong not to impose ANY law.

They could have enforced pre-Taliban law

And what was that? Who knows what it was, and how to enforce it?

It isn't the Court's job to write statutes or Executive orders, only to decide whether they are lawful and constitutional.

Sure. Why should any of that apply in Afghanistan?

Assuming, of course, that he should be charged, on which opinions differ.

Correct. If he is found to be a POW then he should continue to be held without charge and it would in fact be illegal at that point to charge him with anything.

 

[red]

Old Jones, honestly your opinion on immigration is why Canada has such a bad reputation, because we let almost anyone in. Immigration isn't democratic, it is about meeting the needs of the country and it's desires. We don't have any desire to import hate, terrorism, or extremist anything. This boy's family is very well known for having some intersting connections into some of the darker corners of the world.

Now, as for "innocent until proven guilty", I would wonder if you would like to apply the same thing to guys who kill police in Canada. Until the courts convist them, let's let them go. If they happen to live in another country, no problem let's just let them go. No problem. When the courts in our country find them guilty, I am sure they will come right back for thier punishment.

Yeah right.

The kid decided to go on a jihad and kill a US soldier. He doesn't get very much sympathy from me as a result, in most countries he would already be dead.

1."the kid decided"? - its questionable whether a 15 yr old decided anything. He was put in the spot he was by his father.

2. No we don't let someone go who was arrested for killing anyone (police or not) but on the other hand they would have had a trial by now (after six years in jail) or would have been let go.

3. Beside yourself, Lancslad and OTB with whom does Canada have such a bad reputation?

 

[danmand]

Innocent until proven guilty doesn't deny the state the right to proceed, the right to detain until trial, etc. As Fuji has said, this isn't a normal deal and the US has been very careful in how things happen.

I for one feel safer that this (possible) child terrorist is locked up and not roaming the streets, where he could turn that possible into a likely or confirmed terrorist.

I am still wondering why you don't consider it weird that this 15 year old was in a place with a bunch of armed men and had access to hand grenades? Oh yeah, wait... he's innocent.

Yeesh!

I have explained that yoodles ago.

 

[red]

Not sure why you are talking about Canada. Khadr was captured in Afghanistan, and is therefore subject to military justice according to the martial law that was in place there. The place was at war.

I was talking about Canada as we are in Canada and he is a Canadian and its was in response to this:

Summary execution is the ordinary fate of non-combatants who commit treason and murder under martial law. His only legal hope of evading that fate lies with trying to persuade someone that he is a POW, and he is clearly not.

.

you indicated it was the ordinary fate of non combatants who commit treason. It is not the ordinary fate in Canada or though much of the western world. Not sure about afghanistan- perhaps you have some knoweldge of the their judicial system or history of how they deal with treason.

 

[red]

Not sure why you are talking about Canada. Khadr was captured in Afghanistan, and is therefore subject to military justice according to the martial law that was in place there. The place was at war.

It could be argued that the legal government at the time was the Taliban. I don't recall the Taliban declaring war on Canada. When did that happen?

With respect to him being subject to military justice according to martial law in place at the time:

1. If he was subject, then he was a legal combatant
2. if he was subject to the laws at the time and place, why did the US create these special comissions and laws?

 

[fuji]

you indicated it was the ordinary fate of non combatants who commit treason. It is not the ordinary fate in Canada or though much of the western world.

It is under battlefield conditions.