Bar Associations call for Closure of Gitmo

[Calanen]

http://www.nswbar.asn.au/circulars/guantanamo.pdf


TIME TO CLOSE THE DOORS OF GUANTANAMO


Dear President,
Dear Prime Minister,


As leaders of the associations of jurists identified below, we are calling for the immediate closure of the U.S. prison facility at Guantánamo Bay.


Few governmental operations in democratic countries have shown such a profound disrespect for the rule of law. Guantánamo Bay has come to signify injustice for some at the hands of the powerful. The rule of law – that everyone, including governments, is subject to the law, and that the law itself is fair and free from the influence of arbitrary power – has become an inconvenient afterthought.


One example is that of Omar Khadr, a Canadian arrested when he was 15 years old for allegedly killing an American soldier in Afghanistan in 2002. For five years, Omar Khadr, a “child” under the terms of the UN Convention on the Rights of the Child, has languished without trial in Guantánamo. There is reason to believe that he has been subjected to treatment that is at best degrading and abusive and at worst amounts to torture. His trial is still not complete. During his detention, he has been denied many of the most basic procedural rights normally afforded an accused. His confidential communications with his lawyers have been compromised. His rights under the UN Convention have been cavalierly ignored.


He is the only Canadian – indeed the only citizen of a Western state – still detained at Guantánamo. Other Western nations – France, the U.K. and Germany – has sought and obtained the repatriation of their citizens. We call for Omar Khadr to be transferred immediately into the custody of Canadian law enforcement officials, to face due process
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under Canadian law and the principles of the rule of law. It is the duty of Canada to request his repatriation and it is incumbent on the United States to transfer him to the custody of the Canadian authorities. Transferring him to Canada is not synonymous with impunity.


The U.S. Military Commissions Act of 2006, the authority under which the detainees are tried, undermines the rule of law. The Act subjects individuals to trial by military commission solely on the basis of their status as aliens. In effect, U.S. citizens are not subject to its provisions. The Act criminalizes certain conduct for the first time and applies the law retroactively. It fails to meet the requirements of the Geneva Convention Relative to the Treatment of Prisoners of War. It permits military commissions to consider coerced statements. It denies defence counsel access to evidence that may be essential to a proper defence on the basis of national security.


Together, these measures, and many more, constitute grievous affronts to the rule of law.


Yet many governments remain silent about Guantánamo Bay.


We do not deny that some of those detained at Guántanamo may have committed criminal acts. If so, they should be tried by a properly constituted court operating under rules that guarantee a fair trial. If convicted they should be punished accordingly.


But we must not tolerate – nor permit our respective governments to tolerate – the continuing denial of the principles underlying the rule of law. We have seen the result recently in Pakistan of continuing further down this road.


By calling for the closure of Guantánamo, we do not detract from the horror of acts of terrorism in the U.S. or other countries. However, with many threats from many quarters to the basic rights of human beings, the world cannot afford to tolerate Guantánamo.
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This is no time to be silent. It is time for us all, including governments, to bring whatever pressure we can to end the inhuman and inhumane treatment of the Guantánamo detainees,
and the violations of the principles of the rule of law there that have stained the concept of justice. Six years after it opened, it is time to close the doors of Guantanamo.


Sincerely yours,

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Asociacion Libre de Abogados (ALA)

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Australian Bar Association

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Bar Council of England & Wales

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Canadian Bar Association

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City of London Law Society

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Conseil du Barreau de Montréal

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Conseil National des Barreaux (France)

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Consiglio Nazionale Forense

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Deutscher Anwaltverein

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European Young Bar Association

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Finnish Bar Association

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General Council of the Bar of South Africa

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Ilustre Colegio de Abogados de Madrid

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Iraqi Bar Association

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Istanbul Bar Association

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Kölner Anwaltverein

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Law Council of Australia

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Law Society of England and Wales

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Law Society of Ireland

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Law Society of Scotland

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Nederlandse Orde van Advocaten

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Norfolk Island Bar Association

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Orde van Vlaamse Balies

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Ordem dos advogados de Portugal1

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Ordre des avocats du barreau de Luxembourg

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Ordre des avocats du barreau de Paris

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Ordre des barreaux francophones et germanophones de Belgique

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Swedish Bar Association

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Slovenian Bar Association

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Society of Black Lawyers, UK

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Solicitors' International Human Rights Group of England and Wales

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The Faculty of Advocates of Edinburgh

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Union internationale des avocats

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Uniunea Nationala a Barourilor din Romania


1


The fight against terrorism must be conducted in the name of the fundamental principles that represent irreversible achievements of Mankind. Amongst those principles, the respect for the principle of legality in criminal law and, above all, the utmost respect for the dignity of the human being, stand out. Herein lies the moral superiority of modern states over the hordes, of Civilization over Barbarism.


Guantánamo Prison does not reflect this superiority since it violates in a shocking way those fundamental values, essential to modern societies.
Guantánamo represents a dangerous civilizational regression which must come to an end.

A. Marinho e Pinto (President of the Portuguese Bar Association).

[Mu-Meson]

There is reason to believe that he has been subjected to treatment that is at best degrading and abusive and at worst amounts to torture.
Yeah, right. Sleep deprivation, uncomfortable positions, loud noises, etc etc. Its well known for anyone who cares to open their eyes, that AQ, and such groups encourage detainees to make claims of torture, and ill-treatment in order to discredit any interrogation methods.
FYI, this is torture:

MAY 24 2007--In a recent raid on an al-Qaeda safe house in Iraq, U.S. military officials recovered an assortment of crude drawings depicting torture methods like "blowtorch to the skin" and "eye removal." Along with the images, which you'll find on the following pages, soldiers seized various torture implements, like meat cleavers, whips, and wire cutters. Photos of those items can be seen here (http://www.thesmokinggun.com/archive/years/2007/0524072torture7.html). The images, which were just declassified by the Department of Defense, also include a picture of a ramshackle Baghdad safe house (http://www.thesmokinggun.com/archive/years/2007/0524072torture8.html) described as an "al-Qaeda torture chamber." It was there, during an April 24 raid, that soldiers found a man suspended from the ceiling by a chain. According to the military, he had been abducted from his job and was being beaten daily by his captors. In a raid earlier this week, Coalition Forces freed five Iraqis who were found in a padlocked room in Karmah. The group, which included a boy, were reportedly beaten with chains, cables, and hoses. Photos showing injuries sustained by those captives can be found here (http://www.thesmokinggun.com/archive/years/2007/0524072torture9.html). (12 pages)

http://www.thesmokinggun.com/archive/years/2007/0524072torture1.html

Want to know the real deal about lawyers for Gitmo detainees?
http://opinionjournal.com/editorial/feature.html?id=110009758

[2Sheds_Jackson]

Well you'll pardon me if I don't exactly view a bunch of trial lawyers as dispassionate observers offering an opinion that's free of the motivations of self-interest. If this was a bunch of Microsoft employees extolling the virtues of their operating system, we'd all be expected to roll our eyes. But that's just my personal biases talking and I am attending a 12 step program to get over it.

More to the point...these folks dropped quite a bit of critical information along the roadside on their march to higher moral ground. They've completely glossed over thorny issues of status which are critical during wartime...and of course they didn't even bother to mention that it is wartime. It is wartime, right? Such an omission can't be a mere oversight on their part. That leads me to believe that they either understand those questions would remove the basis for their request, or worse - that they may simply not even recognize such a fundamental concept of our civilization.

[vryhpyammoadded]

What a reeking heap of emotional dung; close a base because it makes a bunch of weak-kneed, flaccid apologists who suspect bad things happening feel bad? Oh please…

[Alpheus]

Probably just pissed off because all the "human rights" organizations are asking them to defend the terrorists pro bono.

[Violet Fashion by Mindy]

Maybe if they stopped doing bad **** there the lawyers would be keeping quite?

[CreepingDeath]

Yeah, right. Sleep deprivation, uncomfortable positions, loud noises, etc etc. Its well known for anyone who cares to open their eyes, that AQ, and such groups encourage detainees to make claims of torture, and ill-treatment in order to discredit any interrogation methods.
FYI, this is torture:

http://www.thesmokinggun.com/archive/years/2007/0524072torture1.html

Want to know the real deal about lawyers for Gitmo detainees?
http://opinionjournal.com/editorial/feature.html?id=110009758

thats a gruesome find. very unhuman. ...and to think they would close down gitmo because of some shallow excuses like sleep deprivation. hah!

[Mr.Flint]

Since when the Geneva Convention Relative to the Treatment of Prisoners of War, applies to Taliban and Al-Qaida?

[Alpheus]

Right, cos waterboarding a grand total of 3 terrorists is grounds for closing the entire base. Not to mention one of the 3 was the Sheik, the top AQ boss captured so far, and resulted in valuable intelligence being gained.



Maybe if they stopped doing bad **** there the lawyers would be keeping quite?
What? Like throwing molotov cocktails made from feces and urine at the guards, that kind of ****? p-)

[Lt-Col A. Tack]

I'm more worried about the safety of the staff at Guantánamo than the treatment of the detainees.

Doesn't the Red Cross visit that place? Regularly?

[Violet Fashion by Mindy]

Since when the Geneva Convention Relative to the Treatment of Prisoners of War, applies to Taliban and Al-Qaida?

As soon as we lower ourselves to the level of our enemy then we have already lost. By showing the world that irrespective of ones affiliations that we will treat them with respect, dignity and honor then we win the most important battle of all. The hearts and minds.

You can occupy an entire country, defeat it's army and remove the government. But what good does it do you if the population despises you?

[Alpheus]

As soon as we lower ourselves to the level of our enemy then we have already lost. By showing the world that irrespective of ones affiliations that we will treat them with respect, dignity and honor then we win the most important battle of all. The hearts and minds.

You are right, but we haven't lowered ourselves to their level. We aren't using mentally retarded people as unwilling suicide bombers. We aren't storing weapons in and using mosques as fighting positions. We don't repress the rights of women and kill homo******s. And frankly, I can't see western civilizations descending to such deeds without something truly catastrophic happening. We do treat the innocent with respect, dignity and honor. But that isn't to say we are perfect; there are a few bad apples in even the best crop, and the murderous, savage scum are treated far better then they deserve.
This is a contest between two very different cultures, and it will take a long time to win. But trying the terrorists in civilian courts is a bad idea, and just handcuffs us in the long run.

[Mr.Flint]

As soon as we lower ourselves to the level of our enemy then we have already lost. By showing the world that irrespective of ones affiliations that we will treat them with respect, dignity and honor then we win the most important battle of all. The hearts and minds.

You can occupy an entire country, defeat it's army and remove the government. But what good does it do you if the population despises you?
Sorry but both the Taliban and Al-Qaida fail to fulfill all the requirements to be regarded as pows, and thus to have the Geneva convetion to apply to them. it has nothing to do the lowering ourselves to the level of our enemy.

I could certainly to point to the fact in their culture such niceties considered a sign of weakness, but im certain that you are quite aware of it.

The terms Goverment and Army can hardly describe what the Taliban had...

[Calanen]

Since when the Geneva Convention Relative to the Treatment of Prisoners of War, applies to Taliban and Al-Qaida?

It definitely applies to the United States however.

My view on all of this is, I dont care if they keep Gitmo. But they should give them all a fair trial and apply the bare minimums of due process. Say, transcripts of interview, cross examine witnesses, right to counsel.

Then if you want to shoot them all, after a fair trial - I have no problem with that. But putting together a joke of a trial, and a farcical procedure, just debases everything the coalition nations stand for.

[oregongrunt]

So the hardcore criminals get more rights than the garden variety POW these days? Maybe if they would have worn uniforms of an actual country and didn't commit crimes against humanity, they'd wouldn't have ended up there.

[oregongrunt]

But they should give them all a fair trial and apply the bare minimums of due process. Say, transcripts of interview, cross examine witnesses, right to counsel.

Then if you want to shoot them all, after a fair trial - I have no problem with that. But putting together a joke of a trial, and a farcical procedure, just debases everything the coalition nations stand for.

I think it's insulting to POWs to associate these murders with them. The detainees already have more rights than members of the American military do and they are also getting treated better than any of their victims ever did.

[Calanen]

I think it's insulting to POWs to associate these murders with them. The detainees already have more rights than members of the American military do and they are also getting treated better than any of their victims ever did.

Thats not really the standard. Do we give Geofrey Dahmer and other serial killers no fair trial, because they are alleged to have killed peopleand their victims got no fair trial? Do we give anyone a fair trial, because if they have breached the law, or we accuse them of this, they forfeit that right? What if someone was put in Gitmo, and was inocent - how would they go about confirming that without a fair trial?

You make the mistake of saying that - anyone who is accused must be guilty. If you take that step - then its only a matter of time, before, everyone who is accused is guilty. And anyone inconvenient becomes accused.

[fmj43]

Thats not really the standard. Do we give Geofrey Dahmer and other serial killers no fair trial, because they are alleged to have killed peopleand their victims got no fair trial? Do we give anyone a fair trial, because if they have breached the law, or we accuse them of this, they forfeit that right? What if someone was put in Gitmo, and was inocent - how would they go about confirming that without a fair trial?

You make the mistake of saying that - anyone who is accused must be guilty. If you take that step - then its only a matter of time, before, everyone who is accused is guilty. And anyone inconvenient becomes accused.

Sound words. Good way of summing up the Domino theory in legal proceedings.

[oregongrunt]

Thats not really the standard. Do we give Geofrey Dahmer and other serial killers no fair trial, because they are alleged to have killed peopleand their victims got no fair trial? Do we give anyone a fair trial, because if they have breached the law, or we accuse them of this, they forfeit that right? What if someone was put in Gitmo, and was inocent - how would they go about confirming that without a fair trial?

You make the mistake of saying that - anyone who is accused must be guilty. If you take that step - then its only a matter of time, before, everyone who is accused is guilty. And anyone inconvenient becomes accused.

So in your view, we should put every POW on trial before releasing them? Maybe it's just me, but I don't buy the Dahmer/Taliban connection.

[Calanen]

So in your view, we should put every POW on trial before releasing them? Maybe it's just me, but I don't buy the Dahmer/Taliban connection.

I think you are getting a bit confused here. According to the Bush Administration, NONE of the people in Gitmo are POWs. So if they are not POWs, and are charged with offences then they get a trial. You cant be neither a POW, nor a criminal. They have also been charged with criminal offences, which means that they are entitled to a trial, and it should be a fair one.

If they are POWs, then you let them go at the cessation of hostilities.

They also get an article 5 hearing to determine whether they are POWs. The article 5 hearing created by the US government, only had the power to determine that people were not POWs, even if they would have otherwise found that they were. If thats not a kangaroo court, then nothing is.

[Calanen]

Further to the above, there is no such thing as an 'unlawful enemy combatant', in international law. That was just something that Rummy's spin team made up. You are either a POW, or you are a civilian detained. That means either the Third or the Fourth Geneva Convention applies to you.

http://www.ess.uwe.ac.uk/documents/part3B.htm
Similarly, the Trial Chamber is not convinced that the Bosnian Serb detainees constituted a levée en masse. This concept refers to a situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes. It is difficult to fit the circumstances of the present case, as described in Section II above, into this categorisation. The authorities in the Konjic municipality were clearly not an invading force from which the residents of certain towns and villages were compelled to resist and defend themselves. In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.29 (http://www.militaryphotos.net/forums/foot.htm#296)This position is confirmed by article 50 of Additional Protocol I which regards as civilians all persons who are not combatants as defined in article 4(A) (1), (2), (3) and (6) of the Third Geneva Convention, and article 43 of the Protocol itself.


The Prosecution has further argued that article 5 of the Third Geneva Convention required that, where there was some doubt about the status of the Celebici detainees, they had to be granted the protections of the Convention until that status was determined by a competent tribunal297 (http://www.militaryphotos.net/forums/foot.htm#297).

[2Sheds_Jackson]

Oh come on now...if you're gonna insist on tethering the issue to the evils of the Bush administration, it's only gonna muddy the water. The term "unlawful combatant" didn't originate with Rummy - it's been kicking around for a century and was even used to try Germans in WWII. We reserved the right to detain saboteurs, spies and other unlawful types, without trial, for the duration of that war too.

I think it's abundantly evident that the status of these men is not clear. If it was easy, we wouldn't need to cite a mountain of dependency-laden gobbledygook in order to determine it, right? The more one has to use a wall of conditions and qualifiers to define what should be self-evident, the less likely it is that the distinction you're trying to make retains any value at all. We, as well as the experts, are obviously going to disagree about this.

BTW I can find plenty to criticize about the process we're using...I just don't find any traction for making it look like we're operating completely outside the bounds of civilization. The way current law is written still provides for plenty of latitude regarding the disposition of these people (the alleged house of horrors at Gitmo notwithstanding of course)

[Calanen]

[quote=2Sheds_Jackson;3072748]Oh come on now...if you're gonna insist on tethering the issue to the evils of the Bush administration, it's only gonna muddy the water. The term "unlawful combatant" didn't originate with Rummy - it's been kicking around for a century and was even used to try Germans in WWII. We reserved the right to detain saboteurs, spies and other unlawful types, without trial, for the duration of that war too.

In all legal things, the devil is in the detail. Did I say...unlawful combatant? No, I said 'Unlawful ENEMY combatant' a new hybrid term that appeared from Rummys Spin teams. No they are not POWs they are not terrorists, they are 'Unlawful ENEMY combatants' so sort of like an enemy, and sort of like an unlawful combatant...but worse, an unlawful enemy combatant! or Unlawful unprivileged enemy belligerents, whatever the_F that means.

And yes you did detain saboteurs. You also gave them a trial - re ex parte Quinn. They also got lawyers, and they got a fair trial before a military commission. Was there less or more of an emergency during WW2 than now? Was America placed at risk of losing because the Kriegs Marine sabateurs got a trial? You even gave most of the Third Reich High Command a fair trial. Even Soviet Russia agreed to that.

The term unlawful combatant, still means, that you get a trial.

This unlawful enemy combatant term was enshrined in US law in the 2006 Act that created the military commissions - the term, unlawful ENEMY combatant.

But whatever terms were used - there can be either civilians detained, or POWs. Not something in the middle, however you want to call them.



I think it's abundantly evident that the status of these men is not clear. If it was easy, we wouldn't need to cite a mountain of dependency-laden gobbledygook in order to determine it, right?

And they get an Article 5 hearing to determine that status. But the Bush administration refused that, denying the protection of the Geneva Convention until the US Supreme Court said they had to. And then when they created the court to determine the Article 5 hearing, they made it so it could only say that anyone who applied to determine their POW status, was not a POW. Talk about a rubber stamp.


The more one has to use a wall of conditions and qualifiers to define what should be self-evident, the less likely it is that the distinction you're trying to make retains any value at all. We, as well as the experts, are obviously going to disagree about this.

Its not a wall of qualifiers. Tick box 1 or tick box 2. Third Geneva Convention or Fourth Geneva Convention. Its not hard.

And the convention expressly provides that until your status is determined, that you have the protection of the Geneva Convention if there is any doubt. Rummy dealt with that by saying 'There is no doubt,they dont get it.' Cute.


BTW I can find plenty to criticize about the process we're using...I just don't find any traction for making it look like we're operating completely outside the bounds of civilization. The way current law is written still provides for plenty of latitude regarding the disposition of these people (the alleged house of horrors at Gitmo notwithstanding of course)

Not sure what you mean by latitude for the people detained. They get no lawyer. They get no fair trial, or even basic due process. The latitude is all exercised in favour of the government.

They have had to go up to the Supreme Court twice now, just to get what they should have received in the first place. The US is a signatory to the Geneva Convention, and they should apply it. Or tell the world that they are leaving the convention and it no longer applies to them.

[Parx400]

1. the trial lawyers just want money nd fame out of this, they could care less about those people.
2. Obama will give it to them, he does not bite the hand that feeds him.
3. Since they were out of uniform they are not subject to any laws and can be shot on site. maybe we should tell our troops to do that instead. Its a loss of untill but better than seeing some a$$hole walking free doing the arab victory sign on the cover of the New York Times.

[Lambert58]

He is the only Canadian – indeed the only citizen of a Western state – still detained at Guantánamo. Other Western nations – France, the U.K. and Germany – has sought and obtained the repatriation of their citizens. We call for Omar Khadr to be transferred immediately into the custody of Canadian law enforcement officials, to face due process
2


Call me shallow, but if you can't manage a little subject-verb agreement then I stop reading.

[MaDuce]

As soon as we lower ourselves to the level of our enemy then we have already lost. By showing the world that irrespective of ones affiliations that we will treat them with respect, dignity and honor then we win the most important battle of all. The hearts and minds.

You can occupy an entire country, defeat it's army and remove the government. But what good does it do you if the population despises you?

They cut of prisioners heads with dull blades at Gitmo???

[Firetxmi]

Call me shallow, but if you can't manage a little subject-verb agreement then I stop reading.

You must not read much on these forums then.

[Daniel San]

I'm glad this letter was posted.

From a legal point of view, Justice for detainees is a joke.

As Calanen said before, they aren't considered POWs so they should be granted a fair trial to determine whether or not they are guilty of the crimes they are accused of.

Even nazi war criminals were allowed a fair trial.

To refuse gitmo detainees fundamental judicial rights is unjustifiably barbaric.

I'm proud to say my Bar association signed the letter.

[Parx400]

I'm glad this letter was posted.

From a legal point of view, Justice for detainees is a joke.

As Calanen said before, they aren't considered POWs so they should be granted a fair trial to determine whether or not they are guilty of the crimes they are accused of.

Even nazi war criminals were allowed a fair trial.

To refuse gitmo detainees fundamental judicial rights is unjustifiably barbaric.

I'm proud to say my Bar association signed the letter.


If you want them considered POW's then change the Law so people out of Uniform are considered so. Dont say the are because you feel they should be. The GC says you are not a POW if you are fighting out of Uniform. International Laws on war are a complete effing joke. everyone claims what ever they want is part of the GC and anything they dont like is a war crime, Illiegal etc.

[Firetxmi]

If you want them considered POW's then change the Law so people out of Uniform are considered so. Dont say the are because you feel they should be. The GC says you are not a POW if you are fighting out of Uniform. International Laws on war are a complete effing joke. everyone claims what ever they want is part of the GC and anything they dont like is a war crime, Illiegal etc.

Did you read any of Calanens posts or even the post you cited?

[Mr.Flint]

You know, imho the Bar Associations have their priorities wrong, how about them signing a petition for pedophiles to get an automatic life sentence? or keep criminals in prison?

But no they must protest the fact the illegal combatants are not considers neither pows, nor common criminals, and they do that on a nonsensical clause...
And i seriously dont get how an illegal combatant can be given a fair trial? If the witness is a soldier - the trial is unfair already.

[Lambert58]

You must not read much on these forums then.

There's a massive contextual difference between a document supposedly authored by an international bar association and the posts on these forums, many of which are by people who don't use English as their primary language.

[NavyTimes]

Thats not really the standard. Do we give Geofrey Dahmer and other serial killers no fair trial, because they are alleged to have killed peopleand their victims got no fair trial? Do we give anyone a fair trial, because if they have breached the law, or we accuse them of this, they forfeit that right? What if someone was put in Gitmo, and was inocent - how would they go about confirming that without a fair trial?

You make the mistake of saying that - anyone who is accused must be guilty. If you take that step - then its only a matter of time, before, everyone who is accused is guilty. And anyone inconvenient becomes accused.

Excellent post. We CANT stop adhearing to these important principles, no matter how evil our enemies.

[2Sheds_Jackson]

In all legal things, the devil is in the detail. Did I say...unlawful combatant? No, I said 'Unlawful ENEMY combatant' a new hybrid term that appeared from Rummys Spin teams. No they are not POWs they are not terrorists, they are 'Unlawful ENEMY combatants' so sort of like an enemy, and sort of like an unlawful combatant...but worse, an unlawful enemy combatant! or Unlawful unprivileged enemy belligerents, whatever the_F that means.

Ok I see what you're saying. Based on that, and your line of reasoning, I can see having your point of view. But I have to say that I don't think the people charged with conducting this war are constrained by tidy established definitions, nor should they be. If our law doesn't sufficiently address the realities we now face, then it's the law that's broken, not reality, right? To imagine that we've somehow codified every possible permutation of human warfare that may every occur is silly IMO. If we find ourselves unable to effectively deal with a large and well funded religious movement that overlays the colored areas of our secular maps, well that's a shortcoming of our secular law. During war, I'd prefer to deal with realities and not cripple ourselves by trying to fight a tiger with just a chair and a whip.



And yes you did detain saboteurs. You also gave them a trial - re ex parte Quinn. They also got lawyers, and they got a fair trial before a military commission. Was there less or more of an emergency during WW2 than now? Was America placed at risk of losing because the Kriegs Marine sabateurs got a trial? You even gave most of the Third Reich High Command a fair trial. Even Soviet Russia agreed to that.

The term unlawful combatant, still means, that you get a trial.

Agreed- and they are getting a trial, right? The framework of that trial process is wobbly, but international law says we get to handle it our way once we determine what their status is.



This unlawful enemy combatant term was enshrined in US law in the 2006 Act that created the military commissions - the term, unlawful ENEMY combatant.

But even the term "unlawful combatant" - which you agree is OK, was at some point a foreign and new concept. At some point, somebody realized existing definitions were insufficient to address reality, and "unlawful combatant" was enshrined in law. Why shouldn't the idea of a non-state, persistent funded illegal enemy force be recognized? What makes us think that existing laws cobbled together between industrialized secular nation-states would be comprehensive enough to deal with every contingency?



But whatever terms were used - there can be either civilians detained, or POWs. Not something in the middle, however you want to call them.

Well I think that remains to be seen - it certainly looks like the times they are a changin'.



And they get an Article 5 hearing to determine that status. But the Bush administration refused that, denying the protection of the Geneva Convention until the US Supreme Court said they had to. And then when they created the court to determine the Article 5 hearing, they made it so it could only say that anyone who applied to determine their POW status, was not a POW. Talk about a rubber stamp.

I'm not too familiar with the particulars of that process. But...they landed in front of that half-assed tribunal as a result of a long line of poor decisions on their part. Those decisions resulted in the loss of nearly all of their protections under existing law - leaving them out in the cold and subject to our whims. I'm sure we'll get our sh*t together and arrive at a more palatable system, but right now with people dying in the field every day, saving these a-holes from themselves is way down on most folks' priority list.



Not sure what you mean by latitude for the people detained. They get no lawyer. They get no fair trial, or even basic due process. The latitude is all exercised in favour of the government.

Agreed - I'm not comfortable with it either. It needs work. But my point is that even as sh*tty as it is, it's still within the process that's on the books. I don't like accusations that we've thrown everything into the trash can.



They have had to go up to the Supreme Court twice now, just to get what they should have received in the first place. The US is a signatory to the Geneva Convention, and they should apply it. Or tell the world that they are leaving the convention and it no longer applies to them.

I believe we're acting within the confines of the GC. The conventions have enough latitude built into them to allow us (and other signatories) to define a large portion of the process ourselves. The conventions use terms like "competent" and "fair" and as you know - those terms will carry different meanings in Belgium vs. Zimbabwe. I think lots of us are unhappy because we're using the Zimbabwe definition at the moment.

[Calanen]

If you want them considered POW's then change the Law so people out of Uniform are considered so. .

Thats actually incorrect, but, is a widely held myth. It depends - usually that can be the case, but if you saw in the last war, neither the Nortern Alliance nor the Taliban (nor the CIA calling in airstrikes in their LL Bean gear) wore uniforms in the traditional sense. It all depends on what you are doing, and why you are doing it. Uniforms is only one indicia of your status.

[Calanen]

Dear 2Sheds - it is always a pleasure to have a polite discussion with you, and I agree with a large amount of what you are saying.

At first glance, giving people we hate the benefits of due process and so on - is unpalatable - but then when you look at the bigger picture, its about us, and our rights, not really about them at the end. That is, our society believes certian things, that even the most heinous are entitled to.

I am someone with no love for any of these people. I just had an argument with my dad who called Afghanistan another Vietnam. I know we have to confront these people and with an iron fist.

I think though in our zeal, we went a little too far, and for future reference - it would be better to give these people the benefit of the UCMJ, and a lawyer. That's all Im asking. Not to cut em loose or have a holiday camp. We cant change what we have done before, but we can do things better from now on.

[Ed Robinson]

Yes every one is entitled to a fair trial, but what would you call a fair trial?
Are we to use the adversarial or inquisitorial type of court?

The O J Simpson trial was good for a laugh.

The other side of the coin would be to declare them POW’S. I can’t see the war on terror finishing for rather a long time yet and no one goes home until the wars over.

Question?
If you are armed and you are from country X, you are captured/arrested in country Y, and you are planning or were killing soldiers from country Z. You are not wearing a uniform or badge of identification to show that you are a combatant. You do not represent any recognised government.
Are you a soldier or a criminal?

[Violet Fashion by Mindy]

The other side of the coin would be to declare them POW’S. I can’t see the war on terror finishing for rather a long time yet and no one goes home until the wars over.



Actually after wars have gone on for a few years prisoners are generally given parole to return home and prisoner exchanges commonly took place.

Generally with strings attached such as "Forbidden to return to the theatre against your captor"

In WW1 and WW2 exchanges took place as was the case in Korea and Vietnam.

You will also find in the Geneva Conventions that being a POW does not actually mean being locked in a cell as a criminal.

If they perform labour they are to be paid a fair amount for work rendered.

Even IF the AQ and Taliban and Iraqi insurgents were classified as POW's "Gitmo" would probably fail under the Geneva Conventions for the treatment of POW

Hell as barbaric as the Japanese were they allowed trade between prisoners and locals.

[Calanen]

Question?
If you are armed and you are from country X, you are captured/arrested in country Y, and you are planning or were killing soldiers from country Z. You are not wearing a uniform or badge of identification to show that you are a combatant. You do not represent any recognised government.
Are you a soldier or a criminal?

If you are a native of the country being invaded, then you are likely to be covered by the Geneva Convention. For example, if civilians came outside with AKs during the inital invasion of Iraq during 2003, and were captured shooting at US troops, uniform or not, they are legit POWs. Its a different story now that the Baath party and saddam is overthrown of course, any one not in a uniform is just a criminal.

If you are an unlawful combatant, say saboteur or so on, you can be detained and charged with any crimes that you have committed.

[Ed Robinson]

Are you sure about that?
I recall the British home guard was issued arm bands when no uniforms were available in the dark days 1940. This was so the Germans would not shoot them if captured as armed civilians. Also members of the Volkstrum defending Berlin in 45 were shot out of hand by the Russians as they stated that an arm band didn’t count as a means of identifying a combatant.
I believe that the correct term is a Francs- tireurs and under the Hague Convention 1907 they can be shot out of hand. I do not know if this is still in play as I tend to live in the past.

[2Sheds_Jackson]

Dear 2Sheds - it is always a pleasure to have a polite discussion with you, and I agree with a large amount of what you are saying.

Well thanks, and the same goes for you too. I learn a lot in this place, mostly by bickering with really smart people. I think we're relatively close in position - I just come down a bit farther to the right. Story of my life. I think where I depart company from most people here is that I believe that the administration retains the right to lead, not just to follow how things have traditionally been done. Maybe they reached too far so that the inevitable political compromises will land them where they really wanted to be. As callous as it sounds, I figure that in wartime, with innocent people being splattered to pieces every day, a handful of people tried under an evolving, imperfect system is an acceptable casualty of war. But I don't expect everybody to think that way...especially people trained to look out for individual freedoms.

[Calanen]

Are you sure about that?
I recall the British home guard was issued arm bands when no uniforms were available in the dark days 1940. This was so the Germans would not shoot them if captured as armed civilians. Also members of the Volkstrum defending Berlin in 45 were shot out of hand by the Russians as they stated that an arm band didn’t count as a means of identifying a combatant.
I believe that the correct term is a Francs- tireurs and under the Hague Convention 1907 they can be shot out of hand. I do not know if this is still in play as I tend to live in the past.

Yes. The British Home Guard is a different thing from people who have come out of their houses to defend their homes. If people grabbed the skeet shooting shotgun and ran outside in the event that Operation Sea Lion actually occurred, notwithstanding they are not in uniform, they have the protection of the Geneva Convention. Ive posted the relevant section before on here.

In terms of the Geneva Convention relative to uniforms in the Afghani conflict, the Northern Alliance, the Taliban, Al Quada and the CIA all got around in civvies and engaged in combat activities.

Art 4. A. 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.

[Ed Robinson]

Hello Calanen, thanks for the reply and the relevant sections.
As I understand it the Northern Alliance, Taliban, Al Quada and the CIA all breach the Geneva Convention in that they all breach Article 4 (2) (b),(c) & (d).
As the occupants incarcerated at Guantánamo Bay would fall within the 4 (2) category how do we deal with them?

I think that we need to overhaul the Rules of warfare. I know historically the likes of persons in Guantánamo Bay would have been executed fairly soon after being taken by the troops in the field. However in this modern age the west is no longer able to do this. I find it rather annoying to see people who are happy to act outside the rules then being protected by the rules.
I do understand that we should not degenerate to the level of the terrorists but terrorism seems to be the acceptable way of future warfare by various persons. If the rules are known by all involved, then suffer the consequences when you breach them. Live by the sword ect.

[hank]

I think where I depart company from most people here is that I believe that the administration retains the right to lead, not just to follow how things have traditionally been done. Maybe they reached too far so that the inevitable political compromises will land them where they really wanted to be. As callous as it sounds, I figure that in wartime, with innocent people being splattered to pieces every day, a handful of people tried under an evolving, imperfect system is an acceptable casualty of war. But I don't expect everybody to think that way...especially people trained to look out for individual freedoms.

There are always situations where a govt has to act in an area that is "new" and this is certainly one of them. The problem here (as Calanen is so elequently pointing out) is that there was a lot about this situation that wasn't "new" and in those "old" areas this govt disregarded rules that have "always" been followed.

That would be ok if the new decisions/actions were widely accepted in the administration as necessary and allowed. But they weren't. A lot of people in the Bush admin disagreed with what was being done, i.e. Powell and it looks like Rice and a huge group at the DoJ. But Rummy and Gonzo won the day and did stuff that (for legal types that keep up with this stuff) is frankly lacking in a good faith basis. The admin lost credibility not because they did something new - that was expected and probably inevitable - but because what they did was 1) a radical departure 2) really not well thought out and 3) created problems that should have been anticipated and certainly could have been avoided.

The issue with all this is that we all agree these guys should be detained and punished. Nobody that is being objective really wants us to turn these guys out. That is crazy. But we went to their country, fought them, took them prisoner, brought them to Gitmo and held them, then tried to say they had no rights at all. That just doesn't fly under any rule system. Which is why guys like Calanen and me and other legal types are screaming about this. What we've done just isn't acceptable under whatever rule should have applied. The fact that it is acceptable under a rule made up by Rummy and Gonzo specifically for this situation, is just a real problem.

Ultimately, it will ge sorted out. But while we struggle with the solution, we look pretty bad IMO. That is a shame. We had the moral highground and we squandered it. Had we put a "fair" system in place, we could have tried these guys and moved on. Instead, as a result of a bonehead decision, we look like idiots needlessly.

hank

[loganinkosovo]

The Government won't let them chase ambulances there so it must go.....

We really need to open up a camp for Lawyers there.

[Kilgor]

Even nazi war criminals were allowed a fair trial.


They never got a fair trial, but they got what they deserved.

[Calanen]

They never got a fair trial, but they got what they deserved.

They did get a fair trial, more than you might think were exonerated. They were represented, could call witnesses, cross-examine and give evidence.

[Violet Fashion by Mindy]

Still victors justice and many Allied leaders (Nimitz, Patton and even Monty) went to the defense of Donitz ect. Especially Nimitz for Donitz.

Bomber Harris even admitted that if the Germans won he would have been tried, convicted and probably hung.

[Kilgor]

Still victors justice and many Allied leaders (Nimitz, Patton and even Monty) went to the defense of Donitz ect. Especially Nimitz for Donitz.

Bomber Harris even admitted that if the Germans won he would have been tried, convicted and probably hung.

Not to mention the Soviet Union lecturing the world against German crimes against humanity at the court.

In terms of procedure, yes "fair"... in terms with who was on trial, victors justice.

[hank]

That is right, we are talking about "procedural" fairness, not substantive fairness. We all know the nazis were getting convicted but the fact is they got a chance to make their arguments and that was important. I think I've read that Goring actually represented himself and cross-examined all witnesses against him. He lost, but IIRC he roughed up his accusers pretty well and showed himself to be a skilled questioner before his death.

The same thing is likley true here. No one thinks these AQ will miraculously put on a case and get exonerated. That is pie in the sky. But they must be given a chance to make their case and even if we all know it will fail it must have the appearance of fairness. I realize that may sound silly, but procedural due process is just a bedrock legal principle. Without it we kind of lose our identity.

I'll exercise a little discretion and not respond to the ambulance chasing comment since I finally caught one this afternoon.

hank

[Daniel San]

I actually read a few volumes of transcripts of the Nuremberg trials (instead of studying for my bar exams but hey, I passed).

From my stand-point, 60 years later, although it was victors' justice insofar as the accused were only the defeated and not those who had committed atrocities and war crimes nationality notwithstanding, there was a genuine concern of preserving equity, justice and fairness while trying the Nazi hierarchy.

Equity, justice and fairness don't compromise the issue of a trial. They solidify and guarantee the quality of the verdict.

[wilhelm]

I actually read a few volumes of transcripts of the Nuremberg trials (instead of studying for my bar exams but hey, I passed).

From my stand-point, 60 years later, although it was victors' justice insofar as the accused were only the defeated and not those who had committed atrocities and war crimes nationality notwithstanding, there was a genuine concern of preserving equity, justice and fairness while trying the Nazi hierarchy.

Equity, justice and fairness don't compromise the issue of a trial. They solidify and guarantee the quality of the verdict.

I respectfully disagree. The major charge levelled at Nuremburg was "Conspiracy to wage aggressive war".

Thats a pretty interesting charge. Sorta gauranteed that someone would swing. Nuremburg is commonly regarded with a cringe nowadays.

[oregongrunt]

They did get a fair trial, more than you might think were exonerated. They were represented, could call witnesses, cross-examine and give evidence.

By who, the Russians?

[hank]

I respectfully disagree. The major charge levelled at Nuremburg was "Conspiracy to wage aggressive war".

Thats a pretty interesting charge. Sorta gauranteed that someone would swing. Nuremburg is commonly regarded with a cringe nowadays.

I guess we'll just have to disagree. I've read a little about the trials and I've not encountered that. I would like to see your source though.

hank

[Ed Robinson]

Perchance you may wish to read section 9 of the (British) Manual of Military Law the 1944 version . This sets out the death penalty for the disobedience of a lawful command, providing such disobedience showed a wilful defiance of authority. Disobedience without wilful defiance rendered the offender liable to penal servitude.

It goes on to list what would contravene the laws and usage of warfare including international law.
However at the end one of the paragraphs states "It is important to note that members of the Armed Forces who commit such violations of the recognised rules of warfare as are ordered by their government or by their commanders are not war criminals and cannot therefore be punished by the enemy. “

This paragraph was only deleted from the manual in April 1944 when it looked like we were going to win.

Victors justice?

[wilhelm]

I guess we'll just have to disagree. I've read a little about the trials and I've not encountered that. I would like to see your source though.

hank

Sorry Hank, you'd like to see my source on? I'm not sure what you're asking.

Unless it's MonkeyGland you'd be wanting...

[Calanen]

By who, the Russians?

The Russians had the view that they should just line every one up against a wall and shoot them. The remainder of the allies eventually convinced them to participate, and two of the judges were Russian.

Judges of the Nuremberg Trials (http://www.militaryphotos.net/wiki/Nuremberg_Trials)

English
Geoffrey Lawrence (http://www.militaryphotos.net/wiki/Geoffrey_Lawrence%2C_1st_Baron_Oaksey) (president) Norman Birkett (http://www.militaryphotos.net/wiki/Norman_Birkett%2C_1st_Baron_Birkett) (alternate)

USA
Francis Biddle (http://www.militaryphotos.net/wiki/Francis_Biddle) (judge) John Parker (http://www.militaryphotos.net/wiki/John_J._Parker) (alternate)

French
Henri de Vabres (http://www.militaryphotos.net/wiki/Henri_Donnedieu_de_Vabres) (judge) Robert Falco (http://www.militaryphotos.net/wiki/Robert_Falco) (alternate)

Soviet Union
Iona Nikitchenko (http://www.militaryphotos.net/wiki/Iona_Nikitchenko) (judge) Alexander Volchkov (http://www.militaryphotos.net/wiki/Alexander_Volchkov) (alternate)

[Calanen]

Sorry Hank, you'd like to see my source on? I'm not sure what you're asking.

Unless it's MonkeyGland you'd be wanting...

He wants to know where you got your information from. That was one of the indictments laid, but by no means the only one.

[3rdMillhouse]

It's not like they're loosing any consumers.

[wilhelm]

He wants to know where you got your information from. That was one of the indictments laid, but by no means the only one.

Oh I see.... as far as I'm aware, it was the primary charge levelled at the upper echelon of Nazis such as Goering.

[hank]

Oh I see.... as far as I'm aware, it was the primary charge levelled at the upper echelon of Nazis such as Goering.

Goering, for one, was charged with knowledge of and active involvement in the final solution.

Here is an excerpt of the judgment against him. The bolding is mine. I found it with one Google search.


From the moment he joined the Party in 1922 and took command of the street fighting organization, the SA, Göring was the adviser, the active agent of Hitler and one of the prime leaders of the Nazi movement. As Hitler's political deputy he was largely instrumental in bringing the National Socialists to power in 1933, and was charged with consolidating this power and expanding German armed might. He developed the Gestapo and created the first concentration camps, relinquishing them to Himmler 1934; conducted the Röhm purge in that year and engineered the sordid proceedings which resulted in the removal of von Blomberg and von Fritsch from the army... In the Austrian Anschluss he was, indeed, the central figure, the ringleader... The night before the invasion of Czechoslovakia and the absorption of Bohemia and Moravia, at a conference with Hitler and President Hacha he threatened to bomb Prague if Hacha did not submit... He commanded the Luftwaffe in the attack on Poland and throughout the aggressive wars which followed... The record is filled with Göring's admissions of his complicity in the use of slave labor... He made plans for the spoliation of Soviet territory long before the war on the Soviet Union... Göring persecuted the Jews, particularly after the November, 1938, riots and not only in Germany, where be raised the billion-mark fine as stated elsewhere, but in the conquered territories as well. His own utterances, then and in his testimony, show his interest was primarily economic-how to get their property and how to force them out of the economic life of Europe. ...Although their extermination was in Himmler's hands, Göring was far from disinterested or inactive despite his protestations from the witness box... There is nothing to be said in mitigation... His guilt is unique in its enormity. The record discloses no excuses for this man.

Your point is of course well made that there was a certain amount of "victor's justice" to be found at Nuremberg. But let's not forget that there was an awfult lot of criminal activity that was far bayond the aggressive prosecution of war. Had the Nazis not killed so many in concentration camps who knows whether we would have prosecuted them.

hank

[hank]

It goes on to list what would contravene the laws and usage of warfare including international law.[/FONT]
However at the end one of the paragraphs states "It is important to note that members of the Armed Forces who commit such violations of the recognised rules of warfare as are ordered by their government or by their commanders are not war criminals and cannot therefore be punished by the enemy. “

This paragraph was only deleted from the manual in April 1944 when it looked like we were going to win.

Victors justice?

You may be right, but of course the point is that many of the orders followed were not lawful. The order to kill Jews was not a lawful order as it directly contravened many international laws.

I don't think Joe Private from the German Army who simply fought the Russians was prosecuted at Nuremberg. If I am wrong on that please provide a link.

The rank and file that were prosecuted were found guilty of either acting without orders or pursuant to orders they knew or should have known were unlawful.

As for the leaders, like Goering, see my previous post. You can easily find the judgments against them through Google.

hank

[oregongrunt]

The Russians had the view that they should just line every one up against a wall and shoot them. The remainder of the allies eventually convinced them to participate, and two of the judges were Russian.

Judges of the Nuremberg Trials (http://www.militaryphotos.net/wiki/Nuremberg_Trials)

English
Geoffrey Lawrence (http://www.militaryphotos.net/wiki/Geoffrey_Lawrence%2C_1st_Baron_Oaksey) (president) Norman Birkett (http://www.militaryphotos.net/wiki/Norman_Birkett%2C_1st_Baron_Birkett) (alternate)

USA
Francis Biddle (http://www.militaryphotos.net/wiki/Francis_Biddle) (judge) John Parker (http://www.militaryphotos.net/wiki/John_J._Parker) (alternate)

French
Henri de Vabres (http://www.militaryphotos.net/wiki/Henri_Donnedieu_de_Vabres) (judge) Robert Falco (http://www.militaryphotos.net/wiki/Robert_Falco) (alternate)

Soviet Union
Iona Nikitchenko (http://www.militaryphotos.net/wiki/Iona_Nikitchenko) (judge) Alexander Volchkov (http://www.militaryphotos.net/wiki/Alexander_Volchkov) (alternate)

I always thought that it was strange, that Russia invaded Poland and Finland. They also did their fair share of atrocities, yet they tried the Nazis for the same things that they had done. I guess if you win the war, then you don't have to worry about it.

[eskachig]

I always thought that it was strange, that Russia invaded Poland and Finland. They also did their fair share of atrocities, yet they tried the Nazis for the same things that they had done. I guess if you win the war, then you don't have to worry about it.Finland was allied with Germany, and Poland was occupied by Germany so I fail to see your point.

[oregongrunt]

Finland was allied with Germany, and Poland was occupied by Germany so I fail to see your point.

The Winter War began when the Soviet union attacked Finland o November 30, 1939, three months after the invasion of Poland by Germany that started World War IId World War II (http://en.wikipedia.org/wiki/World_War_II). Because the attack was judged as illegal, the Soviet Union was expelled from the League of Nations December 14. Both Germany and Russia invaded Poland. From Wikipedia. I never said that Germany was innocent, but was interested in Russia role in judging other nations. Still lost on WW2 history?

[Calanen]

I always thought that it was strange, that Russia invaded Poland and Finland. They also did their fair share of atrocities, yet they tried the Nazis for the same things that they had done. I guess if you win the war, then you don't have to worry about it.


Much of the peace was strange. Roosevelt was beside himself that he had to give away Eastern Europe to save Western Europe from the Soviets. But there was no other way. The American public was sick of war, they were not going to stand for the US and Allies fighting with the Soviet Union over Europe, or anything else. The same malaise was responsible for the US copping getting attacked by Chinese troops en masse in Korea and not declaring war on China. The American public wouldnt stand for it.

There always has to be an element of real politik in whatever is done. To think otherwise is, naive. And most people are only ethical when it suits them. Very few are willing to stand up for what is right, come what may.

[Calanen]

Had the Nazis not killed so many in concentration camps who knows whether we would have prosecuted them.


Hank makes a good point. If WW2 had gone much the same way as Germany's involvement in WW1, you probably would not have seen any trials at all.