A fair go, or natural justice for all
Guantanamo Bay is in Cuba I believe, but by a wonderful legalist sleight of hand it is not Cuban national territory. While it is totally controlled by the US it is not US territory either. It is a kind of convenient ‘no mans land’ that the current administration has been using to hold various suspects for the past five years while it wrestles with the problems of how to find them guilty while appearing to offer legal justice. (Sorry! lost my objectivity there!)
Guantanamo Bay has become famous in Australia because two Australians have been held there. One was released after three years with no charges, while the other is still there, to the increasing embarrassment of our Government. Despite being very cosy with George Bush, our Government is now facing a ground swell of mass action demanding that David Hicks be released. The fundamental principles of Habeas Corpus (i.e. you must not hold a person without charge) have been violated, and ALL Australians, even the most conservative groups (like Veterans associations) have lost trust the US military legal system and want David Hicks brought home.
The shining star to emerge from this mess is Major Michael Mori, the US Marine Corps lawyer who was appointed by some military commission to represent David Hicks in the Tribunal Court that was dreamed up to deal with the Guantanamo Bay cases. Since his appointment, he has spoken out forcefully against the legality of the proposed court and he was instrumental in the sequence of events that resulted in the US Supreme Court declaring it unconstitutional (or illegal or something). So it was back to the drawing board in the mission to appear to see justice done. Some new court has been set up and I believe its legality is also being questioned.
After five years, charges have finally been laid against David Hicks and the best they could come up with was ‘conspiring to aid the enemy’. Ummm… five years in solitary confinement before charges are laid and this is the best they come up with? I think someone is doing some face-saving, hoping he will plea-bargain and they won’t have to go through the farce of a trial without credible evidence of anything much.
This is such a high-profile case here that Major Michael Mori has become highly recognised here in Australia. In the paper today, I read that he recently attended a rugby match here. It turns out that he is a rugby buff. He played rugby in college and also for the Marine team, no small achievement. (Perhaps I need to review my impression of the limitations of US football literacy!)
The journalist who accompanied him to the game (Mike Carlton) noted:
“The game was dead ordinary, a dull draw but everything else went off like a house on fire. The truly startling thing was the reception Mori got. Even though he was dressed in the anonymity of jeans and a sweat shirt, he was recognised and greeted like a superstar.
“Not to put too fine a point on it, your average rugby crowd is more likely than not to stand on the right-hand side of the political spectrum, but as we battled through the throng to get to our seats, there were shouts of welcome, friendly waves, thumbs up signals and pats on the back. Four young blokes with zippy undercuts begged to shake his hand, and an elderley rugger gent rushed right up to us “Look after the Aussie,” he gasped. Most Australians want to see justice done for David Hicks, even if this wretched Government doesn’t. ”
So, what questions arise from this situation? A key one for me is “How effectively does our system ensure that real justice is done?” By ‘our system’, I mean the broad institutions of democracy with the three elements — government responsible to electorate, judicial system that is independent from the government and a free press. Any thoughts?
Oh, and as this is an issue that has united both sides of politics, I thought that both red and blue BraveHumans might find an entry point to the discussion.
March 14th, 2007 10:02
Very well stated.
It is sad when the most liked and adored foreign citizen in this whole debacle is the public defender, appointed by the military courts to defend one of these “enemy combantants.”
This administration continues to disregard basic human rights, and in the process weakens our country and what it stands for. How pathtic.
March 14th, 2007 21:35
Hi Gillian,
I have a problem with Guantanamo Bay, too, but from the opposite side. America has enemy combatants that are not defined by the Geneva Convention. So, we have a warring organization that, in its own right, is a loophole to the Geneva Convention.
Without waiting for the “governing” behemoth - the U.N. - to deliver a resolution some time within the next decade, what is the right thing to do when the U.S. still needs to protect itself against warring factions who a) have valuable information to provide on combating the factions, and/or b) are better off being detained than giving an opportunity use what they know to the detriment of Western values?
To your point, though, if charges cannot be proven, then people should be released.
Rick
March 14th, 2007 23:32
Surely the combatants in the Afghan war would be covered by the following (from your helpful link) –
Article 4 defines prisoners of war to include:
* 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
* 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
o that of being commanded by a person responsible for his subordinates;
o that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
o that of carrying arms openly;
o that of conducting their operations in accordance with the laws and customs of war.
…………….
I think the main objection to what is going on in Guantanamo Bay is not that charges cannot be proven, but that five years later charges still have not been laid! How long is it permissable for people to be held without charge? And why the fiction of holding them in a non-place? It would have been more honest for the US govt to hold them on US soil.
The one US citizen who was caught helping the other side was tried in the US and is serving his sentence. The British Govt negotiated to have UK citizens released into their own judicial system. Australians are angry with the Aust govt for not doing the same. And disappointed with the US govt for betraying all the fine talk about justice.
I agree with you re the difficulty of relying on the very bureaucratic UN. In this instance, the US is proving itself to be similarly encumbered with bureaucracy.
March 15th, 2007 00:22
Hello all,
I wish I had more to say about this, but the revocation of habeas corpus for the inmates at Guantanamo does it for me. The United States cannot win any confrontation in which it fights for freedom and liberty by fundamentally turning its back on these ideas. This isn’t about what the other side does. Gutless tin-pot dictators disappear people. My country doesn’t. We MUST be better than that.
-Grant
March 15th, 2007 01:46
Grant,
I think that one saving grace is that in our system there is a relatively unfettered media. Dictators often control the media so people really DO disappear. In our system, the media plays a balancing role with government and the judiciary to ‘keep the bastards honest’ (to quote the strap line of one of our political parties that sits between the two main parties). Of course it takes time for enough weight to come to bear, but still….
And there is something wonderfully AMERICAN (in the best of ways) in the way that the system has provided a genuine defender and in the fiesty way Mjr Mori has taken on his role to provide a genuine defence for someone who should be regarded as innocent until charges are laid, evidence presented and assessed for the required degree of proof.
As Rick says though, you probably wouldn’t want these ‘innocents’ wandering the streets.
NOTE RE GENEVA CONVENTION - Wikipedia reports
(http://en.wikipedia.org/wiki/Guantanamo_Bay_Naval_Base)–
“In litigation regarding the availability of fundamental rights to those imprisoned at the base, the U.S. Supreme Court has recognized that the detainees “have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.” Therefore, the detainees have the fundamental right to due process of law under the Fifth Amendment.” June 2006.
An example of how the judiciary won’t let the government act illegally in our three-part system of government, judiciary and press.
On the negative side, I feel almost heartbroken by what’s going on at Guantanamo and Abu Grab. The US is losing the moral war, despite the efforts of the judiciary and the press — and the moral war is far more important than the physical battle.
March 15th, 2007 21:45
Good Afternoon Ladies and Gentlemen,
This discussion must first decide what status these individauls have.
Are they criminals, whom we have apprehended and must charge, try and judge ?
Or are they lawful combatants, whom we must kill or capture and hold for the duration of the hostilities ?
Or are they outside the protection of the Geneva Convention, and we can respond as we see fit ?
This is a No Brainer. These guys fit no definition of the category of lawful combatant.
They have no assigned officer in charge, responsible for the men under his command
They have no fixed distinctive sign (insignia and uniform)
They do not carry their arms openly
They do not recognize or act with any recognized rules or customs of warfare
Therefore, we have no obligation under the Geneva Convention to them. The Convention was only for the legitimate forces of those nations who were signatories to the document, and abided by it’s precepts.
These guys are terrorists, murderers, killers, rapists, torturers, beheaders, misogynists, and racists. They have no claim on the protection of any civilised law. They deserve no more than to be put down as one would a pack of rabid dogs, and with no more compunction or moral qualm.
Gillian, the entry in Wikipedia is not exactly correct. The courts have recently declared that these animals can be tried in duely constituted military courts.
As for losing the moral war, we imprison their murderers with all the comforts of modern prisons.
They torture, terrorize, and behead the prisoners. There is no moral equivalence in this. They are bad. We are good.
When they treat us as humans, even though I be their committed enemy, then I will give them the respect another human deserves.
Til then, they deserve nothing but my disdain and utter enmity, and no effort is unacceptable in defense of my people and my country,
March 15th, 2007 23:13
Marines: Families Fear Unfair Trial - Newsweek National News …
As eight US servicemen await trial for the death of an Iraqi civilian, … some current and former Marines that these men will not receive a fair trial. …
http://www.msnbc.msn.com/id/13506195/site/newsweek/
Four US marines charged with Iraq murders | Iraq | Guardian Unlimited
All the accused will remain free until the trial. … Full Iraq coverage Related articles 05.06.2006: Marine’s wife paints portrait of US troops out of …
http://www.guardian.co.uk/Iraq/Story/0,,1977592,00.html
Marines may face trial over Iraq massacre | Iraq | Guardian Unlimited
Marines may face trial over Iraq massacre. · Report likely to say troops shot 24 unarmed civilians · Murder charges likely after killings and cover-up …
http://www.guardian.co.uk/Iraq/Story/0,,1784307,00.html - 46k - Mar 13, 2007 - Cached - Similar pages
AlterNet: War on Iraq: Rape, Murder, and the American GI
War on Iraq. Rape, Murder, and the American GI … Volunteer Soldiers Devastated by Iraq Weren’t “Asking for It” Stacy Bannerman …
http://www.alternet.org/waroniraq/40481/ - 167k - Mar 14, 2007 - Cached - Similar pages
March 16th, 2007 01:09
Hello all,
Denis, I don’t think I have quite the moral qualms about armed conflict that Nick seems to. Although the examples he cites in his last post are an eloquent statement concerning the atrocities committed in war (ANY war by ANY side), I don’t think they address your main point.
Fundamentally I agree with you. On a large scale we ARE good and the hard-core terrorists ARE bad. We are not in the same league as the Taliban and nothing that has happened in this war has put us there. Not Abu Ghraib, not the renditions and secret prisons, not Habeas Corpus and Gitmo, not the warrentless wire tapping, and not the terrible examples that Nick has pointed out. I find this list both depressingly long and shameful, but that doesn’t change the fact that I’ll take the U.S. over the Taliban every time. Gillian is right, The U.S. put those prisoners in Gitmo, but a U.S. military lawyer is defending them publicly and with some success. The atrocities that Nick cites are being covered in part because they are being prosecuted. By the U.S. The wiretapping now requires a warrant.
I have two objections to you’re your no-holds barred position. They are (I think) both logical and pragmatic. Here goes.
In your comment you state the following:
“These guys are terrorists, murderers, killers, rapists, torturers, beheaders, misogynists, and racists. They have no claim on the protection of any civilised law. They deserve no more than to be put down as one would a pack of rabid dogs, and with no more compunction or moral qualm.”
Here’s my problem. If you take out the word terrorist, we provide significant protection under the law for all the murderers, rapists, etc. on your list. I think we do this for two reasons. The first is simple. Any accused individual might be innocent and needs to be given a real chance to prove it. But I think the second reason is much more telling in this case. We follow these rules because we understand that we must provide such legal protection for all, or the validity of the system of punishment and incarceration that (most of) these individuals so richly deserve is called into question. We give them a trial and let them face their accusers so when they are found guilty there is no question that the verdict and punishment are just. If this is the case, it then follows that any circumventing of this process with respect to terrorist suspects will have the effect of calling the verdicts into question-in the minds of our allies as well as our enemies. This profoundly undermines any further war effort.
My second point is this. We can’t kill terrorists faster than rage and hopelessness can create them. It just won’t work. I’m sure you’ve heard this argument before, but please consider it. After 9/11 the world was largely on our side. Now the war in Iraq and the problems surrounding it are the best recruitment tool the terrorists have. The more terrorists we kill, the more we create. If a free and open election were held in Iraq today, the resulting government would be a largely anti-American Shia Islamic state. If such an election were held after an additional 5 years of U.S. presence, we’d likely get the same result.
We cannot win the broader war on terror militarily. I wish we could. It would already be over. In broad terms it IS a war about good guys and bad guys. It is a war about ideologies and ours is broadly better-again look at the Taliban. We are losing this broader ideological war at a catastrophic pace. This is what concerns me.
-Grant
March 16th, 2007 09:43
Nick,
I accept that there are those US soldiers who do bad things. If the point is that this makes us no better than them, it misses the target badly. While it can be discussed why there are atrocities such as these committed in war zones, one cannot fail to abhor them, whatever the reason. However, the list of incidents is significant in their rarity. There are rapes and killings everyday in our civilian society at a much greater rate than in the military.
The larger point is that these are exceptions to our moral code in principle, and in actual reality. The other side espouses these methods as their modus operandi, exhorting anybody and everybody to adopt them and join in.
We try our atrocities. They venerate their atrocities.
Khalid Sheikh Mohammed has been quoted in the paper today as claiming to have been the operational planner for the World Trade attack. He also claims responsibility for the 1993 bombing of the World Trade Center, for personally beheading journalist Daniel Pearl, and the Richard Reid shoebomber attempt on one of my airplanes. In addition, he had post 9/11 plans in motion to attack skyscrapers, the Library Tower in LA, the Sears tower in Chicago, the plaza Bank building in Seattle, and the Empire State Building in NY, plus plans to attack NATO headquarters in Europe, bombing 12 US commercial aircraft in Asia, an attempt on President Clinton in the Phillipines, an attack on the Pope, and on President Musharraf of Pakistan.
Can the difference be starker than that ?
March 16th, 2007 10:00
Grant,
Let me take your two main points in order.
If I read you correctly, the first is that we must treat these men with all due process under our law or our law loses validity in our eyes and around the world.
I would agree that this is the proper course, … if these men were common criminals. They would be judged and given sentences, or committed to criminal hospitals til they were no longer a threat to society.
In fact , they are not common criminals, but are committed enemies, who can, will, and have returned to the fight in Afganistan and Iraq. As in any other war, I advocate detention til the end of the conflict, so they cannot return to the fight, and negotiation for return of personnel after the conflict is ended.
The second point is that there are more of them made the faster I kill them, and that I cannot win this war militarily.
In the first place, if you cannot see winning, you will have no chance of that happenning. However that is not the main argument you made. We do not have to kill them all to win. We must make them undestand that we cannot be defeated by long and unpleasant struggles. They will be able to continue the broader fight only if they are successful. As I said, this is a war of wills between populations. Either we are willing and able to defend ourselves and our allies, and our way of life, or we may as well just give them anything they want. For if we have not the courage to defend our convictions, then theirs are stronger, and they will inherit the earth in our lifetime.
I agree we cannot kill them all. No successful war plan envisions killing all opponents, for many and good reasons. This is not a war of extermination. It is a war of ideology, of who will set the pattern for human society. We only have to stop them from winning, from achieving their aims, from gaining another country from which to operate. That setback will cause much damage to their cause.