The Atlantic - Latest Comments in War and Crimes

Re: War and Crimes

tfowler — Thu, 19 Nov 2009 11:55:21 -0000

No you don't. You only have to treat them as POW's if they fall under the terms below -

----

Geneva Convention relative to the Treatment of Prisoners of War

...

Article 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, fulfill 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 [of civil ships and aircraft], who do not benefit by more favorable 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.

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...

http://www1.umn.edu/humanrts/instree/y3gctpw.htm

Re: War and Crimes

tfowler — Thu, 19 Nov 2009 11:51:11 -0000

But not releasing him isn't an attack against, a problem for, or a violation of, our system of justice. He is an enemy combatant who can legitimately be held for the duration, just as we held German prisoners until the end of WWII. He is also a criminal, and can be tried for his crimes. Trying a solider in war just for fighting you is a violation of his rights under the Geneva convention (if there is any doubt that the person in question is a soldier, spy, or other agent for the enemy you can have a tribunal to determine that but you the tribunal isn't trying him for crimes), but KSM isn't doesn't warrant POW status (he doesn't meet the requirements under international conventions) and even if he was properly a POW his methods (the methods he ordered, as he didn't conduct the ops himself), are war crimes and both illegal combatants and POW's can be tried for war crimes.

If the captured combatant is tried and convicted for war crimes then he's held to the end of his sentence and to the end of the war, whichever comes later (assuming the sentence isn't death, then he's just held to his execution). If he's found innocent, then he's just held for the duration.

Re: War and Crimes

Caliber — Tue, 17 Nov 2009 19:31:56 -0000

Well organized? What group are we talking about here? I'm not even sure I'd buy into the well funded part.

If you want to argue that you can fight AQ on a war context, I'm almost willing to go along with you, but look at the Fort Hood shooting. You essentially have a VT-style lone whacko driven by Islamist ideology. We've already proven our capability to break up and disrupt organizations; it's groups that lack rigid hierarchies that are giving us so many problems.

Re: War and Crimes

MoReport — Tue, 17 Nov 2009 17:44:36 -0000

@ cozmicharile: Pat Buchanan said of Organized Criminals:

No one has a right to regard the possible death of their wives

and children in an attack as acceptable collateral damage.

Two words: Ruby Ridge

One word: Waco

What is the increased Probability of Deaths (Pd) to US

citizens associated with trying KSM & Co. in NYC ?

Re: War and Crimes

Dan Smith — Tue, 17 Nov 2009 16:44:22 -0000

I agree. In the words of James Mason (North by Northwest) Let him go "from a great height, over water."

Re: War and Crimes

mad monkey — Tue, 17 Nov 2009 16:10:24 -0000

On his way to NYC, can't we just push him out of the plane over the Atlantic and say he escaped?

Re: War and Crimes

blighter — Tue, 17 Nov 2009 14:19:04 -0000

Well, I guess we've progressed. You're no longer calling me a Stalinist, instead you're insisting that we must let reality reflect our noble ideals as expressed in The Lord of the Rings.

I agree that we've spent the last eight years demonstrating that we will not take attacks lying down and fighting back hard. And I think that was a good thing. I think this shift to according our enemies wherever they are and whoever they are full constitutional rights represents -- and is intended to represent -- a reversal of that policy. I think our enemies will correctly identify that reversal and see it as confirmation of what they see as the long-term trend towards dominance of radical Islam over a dying West. They view the last 8 years as an abberation, as the defeated giant swinging his paw a few times even as terminal lethargy overtakes him. This move on our part will convince them they are right.

As to whether trying KSM in civilian court in NYC means that he will not be released on constitutional technicalities, I think you are just flat wrong on that point. I agree that the US Constitution does not and can not apply on foreign soil and thus the fact that he was not apprehended with anything like the proper procedure for US criminals should not matter.

I do not think the court will see it that way. And, in all fairness, there is no real way they could see it that way. The US justice system is set up to operate within the realm of US constitutional law. There is no precedent they can point to to let themselves just sort of ignore inconvient bits and pieces here or there and proceed with the trial anyways. If they do, it is no longer a "fair" trial. That is a huge part of the fundamental problem with bringing him here. There is simply no way to say, "we're going to give you all of these rights, but not all of those rights over there, because that would just be silly." It's an all-or-nothing game.

As to the oodles of non-torture evidence they have against him, I would imagine that letting him review that evidence would provide valuable insights into our intelligence capabilities against him and his cronies, information that would almost immediately find its way back to them, aiding them in their ongoing quest to cause us harm. There is, again, no way to prosecute someone in our justice system and keep that kind of information away from him, it violates all kinds of precedent and rules. This is why some countries (I mentioned Britain above) have separate courts for sensitive intelligence cases. We, for better or worse, do not. And there is simply no way for a run-of-the-mill civilian court to just decide on the fly to start throwing out inconvenient rules of evidence because they seem silly in this case. Again, that's not how the justice system works, nor how it could even concievably work and maintain itself.

Lastly, as to whether it's an either-or decision, it might not be if we had special courts to handle these kinds of special cases. (Or just decided to continue with the military tribunal system that was being developed to address exactly these sorts of concerns) but it is simply not the fact that you can prosecute a war against people and decide to treat some of them as criminals in your justice system and others not. Either the courts have jurisidiction, or they do not. If they do, then you are necessarily giving them the power to review and pass judgement on all of the methods you are using in the war, judgement over areas in which they lack the necessary resonsibility and expertise to act effectively.

I have nothing against justice. I think our system is a pretty good one for the purposes it has been developed for. That does not mean I think it can be applied willy-nilly to every problem in the world, even those for which it was not at all designed and to people who only wish its destruction. In fact, I think that will do nothing to aid in our protection and much to deteriorate the system's many good uses.

Regardless, we now get to see how it plays out. My guess is that it will be a show-trial, with no respect for traditional rights. Or perhaps it will be a real trial, in which case the fellow will almost certainly walk. Either way, it will be a disaster, but I'm sure you'll have some scene from the Dune books or some such that explains why it's actually our finest hour and those who disagree are as evil as the Harkonnen.

Re: War and Crimes

cozmicharile — Tue, 17 Nov 2009 12:36:37 -0000

I hate to to use a quote from someone I mostly disagree with but in this case Pat Buchanon has made an excellent point on this when he writes:

"Is it possible we have done an injustice to this man (KSM) by keeping him locked up all these years without trial? For that is what this trial implies – that he may not be guilty. And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial. When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.

Yet that is what we do to al-Qaida, to which KSM belongs."

And what about Taliban prisoners? We invade there country and then call them criminals?

As per the decision of Holder - why are some trials being held in civilian court and some in military tribunals? This totally negates there claim that these people should be treated as criminals. The fact is, the administration wants there cake and eat it too. They want a civilian trial for those they know they can convict and a military tribunal for those they are not too sure about. The administration claims some are going to trial under military tribunals because they bombed military targets - isn't the pentagon a military target? This is hypocrisy and the Obama administration is simply continuing the Bush policy. As a country we need to decide - are these criminals or are they war combatants? Only then can we apply a consistent system of justice.

Re: War and Crimes

MoReport — Tue, 17 Nov 2009 11:04:44 -0000

@ Martin: Military Mafia & Rule of Law

An innocent man is better off in a military court.

For purposes of political propaganda, and general

perversion of the Rule of Law, a civilian court

is the venue of choice.

The Wiseguys know better than to foul their

own nest; They and their families live here.

The principles of the people of the US do _not_

include putting themselves, and their families,

at risk, as_a_nation, in order to avoid the

risk of compromising their nation's laws.

Re: War and Crimes

DB Cooper — Tue, 17 Nov 2009 10:57:03 -0000

Do you think that 9/11 would have been more or less likely if we had declared War (with actions in line with that declaration) after the Cole or Embassy attacks?

Declaring "War" didn't help with drugs, poverty, or whatever else we've used the rhetorical device on.

Re: War and Crimes

kkjamess — Tue, 17 Nov 2009 10:19:32 -0000

It's unlikely he will plead guilty, since he will refuse to recognize the court's jurisdiction over him. That will allow him to sit back and watch the spectacle of defense lawyers vigorously defending rights and a system he does not believe in.

We would also be wise to rob him of death at our hands and claiming martyrdom. Sitting in captivity and isolation for the rest of his life is better. We should not want to hasten the arrival of anyone who thinks his heavenly reward is on the other side.

Re: War and Crimes

disconnect — Tue, 17 Nov 2009 09:46:13 -0000

Yes! He should be released in NYC. His release should be well-publicized, with posters pasted all over the city bearing his face and a stern admonishment against vigilante action.

Re: War and Crimes

Nathan of Brainfertilizer Fame — Tue, 17 Nov 2009 07:35:25 -0000

@DB Cooper,

Have they?

Upon what assumptions are you basing that assessment? I've seen nothing except the assertions of those trying to undermine political support for killing Islamic terrorists.

Strip clubs and bongs have created far more terrorists than Gitmo. That's in the terrorists own words.

Re: War and Crimes

Jon — Tue, 17 Nov 2009 06:34:37 -0000

On the issue of Miranda rights, this is not an issue. The US Constitution only applies on US Soil. KSM was arrested by Pakistani forces in Pakistan. There is no expectation that they would follow US law. KSM will not get off on a constitutional technicality.

Meanwhile, evidence gained by torture will not be admissible, but I have to believe that there's plenty of non-compromised evidence fo the government to build an air-tight case. Acquital is about as likely as my becoming pope.

Now as for this:

"You don't think that just maybe an immam or two will make the argument that this is all part of God's plan, that he has weakened the great satan to the point where it won't fight back even to the boldest of attacks?"

An imam would have to be senile, or living on Pluto for the last eight years, to make that argument. Not fight back? Let's see: we've had two wars, spent a trillion dollars, killed upwards to a hundred thousand or more people. Why do you (and this is really about you I suspect) say we have

"not fought back". Short of playing Genghis Khan with nukes we could not have fought back more than we have.

And as I posted above, this is not an either/or choice. Our response to terrorism can (and does and should) include both military force as needed, and justice. One does not preclude or contradict the other.

And though I may be going far afield by citing fanatasy literature, toward the end of the Lord of the Rings Aragorn's army marches up to the Black Gate or Mordor and demands that Sauron come forth-- that justice might be done on him-- a cruel abd depraved god. It is the tradition of our civilziation (tradition = something conservatives ought to care about conserving) that justice always has the last word, not brute force. Let the barbarians reflect on that and be enlightened-- or not. This has become our war, not theirs and we will impose justice not blind vengence or the arbitrary force of tyrants.

What problem do you have with justice?

Re: War and Crimes

Nathan of Brainfertilizer Fame — Tue, 17 Nov 2009 05:08:09 -0000

The only this can work out is if every time KSM comes to trial, it is declared a mis-trial for some reason. There are plenty of reasons available: unable to find un-biased jurors, unable to cross-examine the people who captured him, denials for requests of classified information. Just pick one.

Then, after multiple mis-trials (not double-jeopardy because he hasn't yet been tried), President Obama declares a new legal category, not civilian or military, that allows different rules of evidence, plea-bargaining, waterboarding, etc, of terrorists. The new legal category resolves the problems of Gitmo, indefinite detention, guily verdicts with extreme restrictions on discovery, easier route to execution, allows them to be killed by being eaten by wild pigs, etc. All the stuff that actually allows justice to be done while denying propaganda opportunities and while also disheartening the Islamic extremists.

If this were the Bush Administration, I could actually believe this was the intelligence/wise hidden agenda.

But considering the performance of the Obama Administration, it's a cinch these bumbling fools aren't looking beyond trying find a way to campaign against Bush again in 2012.

Re: War and Crimes

Rick — Tue, 17 Nov 2009 01:21:15 -0000

Oh, and one more thing: I'm certain that all the righteousness pouring out about trying KSM in civilian court is based on the assumption that he will be convicted. But what if he's found innocent, or what if his case is dismissed due to a technicality? Then what? Someone please explain to me how our national security is strengthened as a result.

Re: War and Crimes

Rick — Tue, 17 Nov 2009 01:16:28 -0000

I'm embarrassed that this is even an issue. These are foreign nationals who declared war on the US! The fact that they are not part of some organized army commanded by a foreign government is inconsquential if not irrelevant. To me, treating this as a civilian case is just another step by the administration towards complete pullback from any military stance against terrorism. They've already removed the word "terrorism" from any language used to describe such attacks, and they've already committed to pulling out of Iraq and reducing our presence in Afghanistan.

And don't give me this BS that military tribunals were Bush's way of skirting the law. This country has a long history of military tribunals, from FDR all the way back to Lincoln, and it was applied to enemies of the US attempting sabatoge on US land. And, for those who insist on bringing up Constitutional Law -- in 1942 military tribunals were upheld as constitutional by the US Supreme Court!

Does anyone doubt what the result will be of affording a civilian trial to KSM? Good luck at jury selection, and discovery will be a minefield as the defense attempts to bring out into the public all the intelligence techniques used to catch him. Then there's the problem of miranda. The proceedings will make the OJ trial look like a traffic violation. And to what end? Will it really strengthen the country and improve the relations of the US with the world? What idealistic naivete. Well, that basically sums up the Obama administration, and all of his deluded followers. I feel so sickened by it.

Re: War and Crimes

blighter — Mon, 16 Nov 2009 23:57:30 -0000

First, just as a general historical question, in all of those many years of anglo-saxon, roman & christian history, can you name me an example in which these rights which are, I agree, for the most part, both a sign and source of strength have been extended to non-citizens whose only connection with the polity recognizing those rights was a deep desire to destroy it demonstrated by actually blowing part of it up? Or were all those countries secret totalitarian stalinists because they felt that defending themselves against foreign enemies was more important than bending over backwards to extend to every enemy the deepest rights they had secured for themselves?

Quite aside from that, in the case of KSM we have very clearly at the very least violated some of the more recent innovations in criminal rights. There is no good chain of evidence. He almost certainly was not mirandized. We might be able to fill him in on all of our intelligence but it probably would be about as advisable as when we did the same for the World Trade Center bombers and the information was in Al Queda's hands within days, letting them know precisely what parts of their organization were compromised.

So to your mind we must, by our signs of strength and in keeping with our ancient rights, release this man. And you feel that in the middle east this will be viewed as a sign of how incredibly strong the West is? Look at them, they get attacked and let the attackers go free because they are so beholden to their strong ancient rights?

You don't think that just maybe an immam or two will make the argument that this is all part of God's plan, that he has weakened the great satan to the point where it won't fight back even to the boldest of attacks? That this indicates the time of victory is at hand and all manner of attacks must be made? Really?

And, of course, in all future wars we must be sure to mirandize all potential prisoners, maintain elaborate and effective chains of evidence for all potential evidence, force soldiers to come home to appear as witnesses at the beck of our enemies, share our intelligence with those same enemies, and release those enemies for whom any of these actions has not been fully complied with. We must wage war this way or we are Stalinists, yes?

Re: War and Crimes

derek — Mon, 16 Nov 2009 22:31:23 -0000

Two issues.

First, this isn't KSM on trial. It is the whole Bush anti-terror apparatus and procedures. If KSM is acquitted, then the idea will be presented that what Bush did was unjust and forced the state to let him off. I'm not quite sure if that will turn out as Holder may believe. I would suspect something close to insurrection.

Second, everything that was done previous to this moment with KSM was with the goal of preventing another attack, rolling up his networks, etc. Not to procure a criminal prosecution. Dig out Wright's book Looming Tower and read how the two branches, the FBI with a goal of prosecution and the CIA with a goal of preventing were in conflict, and in the end made it trivial for a bunch to fly planes into a building. Gathering evidence that will be allowed in court to prove beyone a reasonable doubt is far different from intelligence work during a time of war. That is why nations under attack act differently than when there is a crime spree.

Derek

Re: War and Crimes

Harun — Mon, 16 Nov 2009 22:17:13 -0000

How soon everyone forgets...

911 planned in Afghanistan and Pakistan. Training done there.

Those are not places we can send in the FBI, as they do not have jurisdiction even if they could somehow get there. So if you use only law enforcement, you essentially have to let AQ sit around planning and training in safe havens and be okay with that. It may look like a good call NOW that we have troops in Afghanistan but it did not look smart in 2001.

Secondly, do we remember the Scheer book where they talk about CIA snatch teams planning to take Osama down? The lawyers involved? The endless planning to have "comfortable" chairs and how to restrain him? (no duct tape, might hurt his beard." This made it impossible to actually attempt the mission.

Timothy McVeigh - imagine if he had a training camp in Canada, and trained followers to infiltrate the USA and conduct multiple bombing attacks. Canada for some reason refuses to cooperate and lets him do this with impunity. Explain to me how law enforcement works in this situation, even if he is a "citizen." It doesn't.

Re: War and Crimes

Martin — Mon, 16 Nov 2009 21:37:29 -0000

Ann, ajwpip

What I keep wondering about is whether they'll have to put the entire families of the jurors in the witness protection program for life. At the very least, the jurors and their families will be under constant threat throughout the trial, and it could be a long trial.

You're both so right. We should have military courts for Mafia suspects!

After all, domestic (local!) crime syndicates could much more easily reach members of a jury than foreign terrorist organizations.

blighter

The theory there being that he says we're too weak to actually win the fight against them; we're maybe even too weak to even fight it. If we decide to let him go because of idiotic application of evidence rules, he's proven right.

We've tried terrorists in the past. England and Spain tried the perpetrators of their terrorist attacks. But blighter and others are willing to throw our principles and the rule of law out the door because of his fixation on what "they" think of us.

What a bunch of cravens. Thank god commenters here are not representative of the American people. Otherwise KSM would have already won.

Re: War and Crimes

iolanthe — Mon, 16 Nov 2009 21:21:26 -0000

This is not a new problem except for Americans. Both the British and Israelis have been dealing with this issue for years.

The long war against the IRA started out American style, with torture and arbitrary detention, before it was realised this was entirely counter-productive and acted as one of the Provo's main recruiting opportunities. It's also relevant that one the things the IRA dearly wanted and were consistently denied was political status but this was refused - much better to see oneself as a romantic revolutionary rather than a criminal gang with political pretentions. The only time the IRA saw any advantage in criminal status was in accessing compensation available to those whose rights had been abused which they seemed quite happy to do so and I was similarly happy as it put their military pretensions firmly in their place.

In the last two decades of the war, it moved almost completely to a criminal model of prosecution, albeit with help from the military. If you could get a "clean kill" (ie with gun or bomb in hand and not dropping it when challenged) you did so, otherwise you arrested them and they went to trial. Quite a few were acquitted who in all probability were guilty but it was quite clear who had the moral high ground and was effective in getting most of the bombers of the streets. I can't see any reason why the same can't be done to Al Quaeda.

Re: War and Crimes

Was_Holdfast — Mon, 16 Nov 2009 21:14:57 -0000

If he is judged not mentally unfit then he can fire his counsel and do whatever he wants. From what I've read KSM is essentially sane, he just has very different beliefs and goals.

Sure the judge will appoint some lucky ACLU crapweasel to be his "standby counsel", but he can't stop KSM from pleading guilty.

Re: War and Crimes

Was_Holdfast — Mon, 16 Nov 2009 21:10:51 -0000

Replying to Jon:

Reasons why McVeigh and KSM are different and require different responses:

-Although there were others that supported McVeigh, most of them were more talkers than doers, and almost all were horrified by the death toll of his attack, especially the daycare. Once he and Nichols were arrested, his particular group no longer posed a threat. KSM's followers / trainees think that 9/11 was a nice first step, and will have to suffice until they can acquire nukes.

-McVeigh was an American citizen - that still means something.

-McVeigh was arrested by domestic law enforcement, and was given constitutional protections from the start. KSM's apprehension took place in the "wild east" of Pakistan, was a joint effort by the CIA and the notoriously vicious Pakistani security services.

Re: War and Crimes

BulgingBracket — Mon, 16 Nov 2009 20:58:54 -0000

That's a feature, if you apply the Geneva Conventions as written and not the nihilistic Leftist version.

Anyone caught out of uniform is an illegal combatant and gets summary execution. They are outside the laws of war and merit nothing but death as and when we see fit.

I'm going to take a wild guess and say that that's not what you have in mind.

This is simply a continuation of the anti-imperialist struggles for many people. Now, as then, they are conspiring to aid and abet the other side. Now, as then, they will get away with crimes against humanity - no one got a rope after 89, despite the vast numbers who merited one.