16 Dec Scholars’ Statement on U.S. Detention Policy
At the risk of contributing further to Ken’s angst about the coming post-Guantanamo future, I thought OJ readers might be interested in this latest entry in the public what-to-do-next discussion. Fordham Law School’s Leitner Center for International Law and Justice has begun posting a series of white papers prepared by various groups of scholars with recommendations about international human rights issues under the new administration. Of particular interest might be the Scholars’ Statement of Principles for the New President on U.S. Detention Policy, which addresses Guantanamo (among other things). Prepared under the auspices of the progressive think tank Center for American Progress, the detention white paper is signed by, inter alia, Derek Jinks, Sarah Cleveland, Gene Fidell, and Brig. Gen. David R. Irvine, U.S. Army (Ret.) (Irvine is a former interrogation instructor at the Sixth U.S. Army Intelligence School). Full disclosure – I signed onto it, too. For what it’s worth, at least “some” in the scholars group acknowledged the possibility of ongoing detention – consistent with U.S. and international law – for some of those currently held at Gitmo.
Some of the undersigned note that the new Administration, in its own review, may identify exceptional cases in which a detainee has not demonstrably committed a crime (for example, because there is a lack of admissible evidence to try the detainee for a crime), but the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States. Continued detention of such detainees must be in accordance with the principles and policy recommendations outlined in this Statement … [and applicable U.S. and international law].
UPDATE: Lest my nudge back to Ken risk distorting the overall gist of the document, I should hasten to clarify that the signatory scholars were united in opposing “any effort to extend the status quo by establishing either (1) a comprehensive system of long-term ‘preventive’ detention without trial for suspected terrorists, or (2) a specialized national security court to make ‘preventive’ detention determinations and ultimately to try terrorism suspects.”
Ouch! Double ouch-ouch! lol
I noticed that there is a principle that proposes “Apply a Zero Tolerance Rule Regarding Torture and Other Illegal Abusive Treatment:”
I read the text and did not see the principle mentioned of criminal prosecution of high-level civilians or generals who authorized torture (see Dick Cheney’s interview yesterday with ABCNEWS where he admitted to having committed the war crime of torture). If these scholars are not willing to keep criminal prosecution on the table, I would suggest that they are just whistling in the wind on Zero Tolerance and should be called out for that weakness in their recommendations.
We are having a panel on criminal prosecution of the high-level lawyers (includinhg those in academia) at the AALS Annual Meeting in the SALT suite at lunch on Wednesday, January 7, 2008. Come there to see some scholars who are willing to put teeth into zero tolerance.
For more information go to http://www.saltlaw.org.
Best,
Ben
If we are going to prosecute lawyers, then we better be prepared to include those who signed this statement. The road to Hell and to jail can be paved with good intentions. There are two alternate systems. A criminal is charged individually for things he has personally done. His case operates under domestic law and, in the US, he is entitled to the protections provided by the Constitution. A soldier has combatant immunity and may not be charged with civilian crimes or tried in civilian courts for the things he does in lawful combat as a soldier. He is protected by international law and the Geneva Conventions. When captured, he is not treated individually and we may not take revenge for things he did. The front line soldier must be treated the same as the captured cook. Captured soldiers are treated as a group, not as individuals, and held for being soldiers and not for specific acts (unless they committed war crimes). If a soldier invades the US and during combat kills a policeman, he wants to be treated as a POW and not as a criminal. In civilian law, someone who kills a policeman is a murderer. The soldier… Read more »
Of course, the distinction with these academics is that they did not have operational rolls in a conspiracy to torture – so I fail to see how they could be subjects of prosecution. More importantly, this type of action by them is a kind of citizen’s action to try to get the US in compliance with international and domestic obligations. In turn, your analysis Howard and that of others is an excellent citizen effort to help us see clearly the important aspects of the contours between criminal law settings and military law settings. Something I greatly appreciate to read. Given the Senate Armed Service Committee report last week that Abu Ghraib was not just a few rotten apples, I thought it appropriate to note here this report from Jurist about the new Colonel to head up the military commissions: Col. Pohl “Pohl, who has served as a military judge since 2000, is best-known for declaring the Abu Ghraib prison in Iraq a crime scene [JURIST report] and forbidding its demolition in 2004. Pohl also refused to allow [JURIST report] lawyers for the court-martialed soldiers to question then-Defense Secretary Donald Rumsfeld about the chain of command leading down to the soldiers charged… Read more »
Ben: In the civilian justice system there is a more visible distinction between the administration of justice (judges, lawyers, juries, due process, presumption of innocence) and the administration of prisons (wardens, guards). That line is blurred in military detention because the two chains of command end at the same place, but it is still a logical distinction for argument. The Scholar’s Statement and my comments address the legal basis for detention and the status of prisoners. Is the poor front line soldier standing in the Panjshir with his AK47 a “terrorist” because of something he did not know done by a handful of people half a world away? Is his detention to be governed by domestic criminal statutes or in common international law? How to balance the possibility of Constitutional violations of due process for a civilian with the possibility of committing a war crime by charging combatants with civilian offenses? The same people who made these decisions in the previous administration may also have been responsible for violations of both domestic and international law in the administration of prisons, but that is a different topic and they were acting in a different capacity. The Statement would stray off topic if it confronted that issue now.… Read more »
Howard’s problem is that he never gets the actual law right, mostly because he’s too busy editing the facts and the law to fit his conclusions. A soldier who kills a policeman outside the context of a lawful military operation is subject to prosecution for murder like anyone else. Same goes for rape, looting, armed robbery, etc.