I'm looking for academic info on ghitmo and the legal issues with NSA spy programs...

[JJC]

My college is going to have a conference on Guantanamo Bay. There will be many academics and a member of Padilo's defense team.

We know that in the academic community there is universal assault on the government's actions in ghitmo and how they have applied domestic and international law on these "enemy combatants", and fighting terrorism through NSA type "domestic spying" programs.

Is there any academic info that supports government's programs/actions in Ghitmo and the new domestic spying programs? Do you think that the academic world have legitimate concerns on the legalities of actions by the government in how they handle trials of these terrorists- "enemy combatants"?

[2Sheds_Jackson]

I'd suggest -read up on the power that the Constitution gives the president during a time of war or conflict, read up on what "blanket" powers the Congress granted the President post-9/11 and in the Iraq War resolution (public law 107-243, 116 Stat. 1497-1502 / H.J.Res. 114 ), the definition of combatants/pows etc. as defined by the Geneva conventions. That should give you a good primer on the lingo and issues that will come up.

What it boils down to is that one side believes that we are at war, and is acting accordingly, in full compliance with the law as it applies during war. The other side is still seated comfortably in a pre 9/11 mentality, wishing to deal with terrorists as if they were purse snatchers.

[Dasein]

What it boils down to is that one side believes that we are at war, and is acting accordingly, in full compliance with the law as it applies during war. The other side is still seated comfortably in a pre 9/11 mentality, wishing to deal with terrorists as if they were purse snatchers.

Actually, no. There is one side seems to believe that inter arma enim silent leges while the other believes that the President is still subject to the rule of law, and cannot rule by fiat decree.

Ask yourself if you believe things like habeas corpus are moral imperatives, or merely legal nicities? Ask yourself if you believe we are bound by duty and justice to provide substantive due process to all when possible, not merely those whom we find convenient? Ask yourself if the rights embodied in the Consittution are nothing more than words on paper or comprise a mandate for just government for all men?

[Firetxmi]

inter arma enim silent leges

I had no idea what this term meant so I looked it up (learn something new every day):


In 1998 Chief Justice William Rehnquist, in All the Laws but One: Civil Liberties in Wartime suggested that "the least justified of the curtailments of civil liberty" were unlikely to be accepted by the courts in wars of the future. "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty," the chief justice wrote. "The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."

In 2004, Justice Anton Scalia used this phrase to decry the plurality decision in Hamdi v. Rumsfeld which in his view, upheld an unconstitutional detention of a U.S. citizen as an enemy combatant, without charge nor suspension of the habeas corpus.

Link:http://en.wikipedia.org/wiki/Inter_arma_enim_silent_leges

[ViktorNavorski]

Actually, no. There is one side seems to believe that inter arma enim silent leges while the other believes that the President is still subject to the rule of law, and cannot rule by fiat decree.

Ask yourself if you believe things like habeas corpus are moral imperatives, or merely legal nicities? Ask yourself if you believe we are bound by duty and justice to provide substantive due process to all when possible, not merely those whom we find convenient? Ask yourself if the rights embodied in the Consittution are nothing more than words on paper or comprise a mandate for just government for all men?I move to appoint Abraham Lincoln, Franklin D. Roosevelt and the 93rd Congress to be the debate judge.

[2Sheds_Jackson]

Actually, no. There is one side seems to believe that inter arma enim silent leges while the other believes that the President is still subject to the rule of law, and cannot rule by fiat decree.

Ask yourself if you believe things like habeas corpus are moral imperatives, or merely legal nicities? Ask yourself if you believe we are bound by duty and justice to provide substantive due process to all when possible, not merely those whom we find convenient? Ask yourself if the rights embodied in the Consittution are nothing more than words on paper or comprise a mandate for just government for all men?

I'm sorry, is the thread about what I believe, or is it about the law?

I believe that women should be put on a pedestal just high enough to see up their dress, but that doesn't matter to the subject at hand. If you would bother to read the Constitution, along with the other documents I've cited, you'll see why Bush is not in jail. It's because he has not violated the law. He has followed it to the letter. Our founding documents, as well as our current policies, give broad discretionary powers to the President so that he can use them. We all get that you're unhappy about it, and you can make impassioned speeches about it, but government functions according to law, not our feelings.


I move to appoint Abraham Lincoln, Franklin D. Roosevelt and the 93rd Congress to be the debate judge.

Heh heh, yeah that would be a quick debate. They'd throw the opposing side in an internment camp, with no legal review. :)

[usa320]

Actually, no. There is one side seems to believe that inter arma enim silent leges while the other believes that the President is still subject to the rule of law, and cannot rule by fiat decree.

Ask yourself if you believe things like habeas corpus are moral imperatives, or merely legal nicities? Ask yourself if you believe we are bound by duty and justice to provide substantive due process to all when possible, not merely those whom we find convenient? Ask yourself if the rights embodied in the Consittution are nothing more than words on paper or comprise a mandate for just government for all men?

The fact that you even make this argument would suggest you fail to understand the post-9/11 environment... you sir are in fact a member of the afformentioned "purse snatcher" crowd... Court case after court case the practice of detaining persons that pose a threat in a time of war has been upheld...a precident for it has been established... And mind you, not being American Citizens, the terrorists are not gifted so much as to be afforded the protection of this nations constitution, nor for that matter, are they afforded protection under the geneva convention, as they do not fall under the category of what is legally defined as a prisoner of war by that particular document. They are essentially in a legal grey area, and they very much put themselves in it.

That being said, your best bet for finding scholarly literature relating to the subject would be searching through academic journals, such as the American Journal of Political Science ect... But be forewarned, given the political discourse in Academia, i would highly expect anything you find comming out of it to be incredibly one-sided, agenda based and AGAINST the NSA programs and guantamano bay. Finding academic literature in favor of such things, well, its going to be quite difficult if you ask me.

[pistol]

I'd suggest -read up on the power that the Constitution gives the president during a time of war or conflict, read up on what "blanket" powers the Congress granted the President post-9/11 and in the Iraq War resolution (public law 107-243, 116 Stat. 1497-1502 / H.J.Res. 114 ), the definition of combatants/pows etc. as defined by the Geneva conventions. That should give you a good primer on the lingo and issues that will come up.

What it boils down to is that one side believes that we are at war, and is acting accordingly, in full compliance with the law as it applies during war. The other side is still seated comfortably in a pre 9/11 mentality, wishing to deal with terrorists as if they were purse snatchers.

As 2Sheds illustrates so eloquently..this is the wrong place to come looking for "academic" information on just about anything. If it's empty rhetoric and Tony Snow's talking points you're looking for..well then you've hit the jackpot.

[Calanen]

I don't think I'm in the purse snatcher crowd, and I don't particularly like the people in Gitmo. But, I still think they deserve to have proper Article 5 hearings, they still deserve a trial, and *some* (note I said some) are likely to be entitled to be treated as POWs. The guy that is in there from Australia, I don't care what he's done - David Hicks - he has been there for 5 years, and only just been charged. He should not have been there for more than 6 months without a charge.

It's not illegal to be on the losing side of a war. That's what the laws of war are all about.

[Calanen]

And mind you, not being American Citizens, the terrorists are not gifted so much as to be afforded the protection of this nations constitution, nor for that matter, are they afforded protection under the geneva convention, as they do not fall under the category of what is legally defined as a prisoner of war by that particular document.

In my view, that is only because the USA has unilaterally determined that they are not entitled to POW treatment. That is by labelling them 'terrorists' after being captured, you don't have to determine whether they are POWs or not, because, well, they are 'terrorists' and terrorists are not POWs. It's reductio ad absurdum. The term 'illegal enemy combatant' does not exist in the Geneva Convention. Rumself and his team made it up. Don't believe me - thumb through a copy of the Convention.

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


1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

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

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

[Couldn't at least be possible that some of the people that were captured, fell into this category, and at least should have the opportunity to a proper Article 5 hearing on whether they can be treated as POWs?]

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

This takes you to the next part, Article 5.


Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

It seems to me that in a number of cases there is doubt. In the instance of David Hicks, his legal team says that he was fighting with the Taliban. At the time, the Taliban were the army for the sovereign government of Afghanistan. Isn't there are least doubt, that he could be a POW?

The Article 5 Convention process set up by the USA is also flawed. The inmate gets no attorney to represent them. The Article 5 hearing only determines whether or not the person is an enemy combatant - the military says that these hearings are not designed to determine whether or not you are a POW. So even if you presented to the hearings that you were a POW, they have no power to grant that to you. This is a kangaroo court system.

These guys whatever they have done, or alleged to have been done, should get representation at the Article 5 hearing, should get a real Article 5 hearing to determine their status, and they should if they are to be tried with war crimes, be tried according to law and promptly.

It does us no credit as the supposed good guys if we engage only in a legal farce, because we all know right off the bat that they are bad and do not deserve better treatment. Isn't there the possibility that mistakes have been made - shouldn't the evidence be proven in a court of law? What if I am hated by my neighbour in Afghanistan, and he tells US troops I am the regional Al Quada leader, go and arrest me. What if this is false. Doesn't matter. I can stay in Gitmo. I get no proper Article 5 hearing. I get no day in Court, at least not for a very long time, and even then its only by military commission. That is not justice.

And what about this one - isn't it possible, that this has not been adhered to:


BEGINNING OF CAPTIVITY
Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

In my view, it's just not right to convict and punish people before you try them. After a fair trial according to international law sure.

And other people say 'Well these Taliban guys were not wearing uniforms. They are spies, so they are lucky we are not shooting them.' Were the Northern Alliance wearing uniforms? Were the CIA operatives in their LL Bean gear and headscarves calling in air support in a 'uniform'? Were the Taliban much differently dressed from the Northern Alliance?

I think all of these things can at least be discussed (hopefully) without people freaking out. I am not supporting terrorism, or Al Quada, or the Taliban. What I am saying is, even these guys, the supposed worst of the worst, deserve a fair trial under the law.

[Firetxmi]

you sir are....

Taken straight from an O'Reilly script. :lol:

[JJC]

The international law is between states and individuals have very limited representation when it comes to international law.

Was the Taliban regime a recognized entity of Afanistan by the members of the U N? This is the argument that the US gov. is relying on that the Afgan government under the Taliban was a failed state. Also was the Taliban regime a signatory to the U.N. Geneva conventions? The military is having the article 5 conventions but the human rights groups are not happy with them anyways because they want due process and counsel as they want it to be.

I know that the U.N. has new conventions on terrorism and I wonder how they apply to Gitmo situation.