The Washington Post reports on Col. Morris Davis' testimony at Salim Ahmed Hamdan's military commission trial yesterday.
Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."
Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.
"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "
Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."
He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.
According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.
Related Posts (on one page):
- Brigadier General Hartmann Removed from Role in Military Tribunals:
- Col. Davis for the Defense:
- A Prosecutor for the Defense:
Fair enough. The most important national security issue facing this country is keeping the Democrats out of the White House.
So what, this guy wanted to let some terrorists walk to 'give the process added legitimacy'? Which side is making a mockery of the legal system again?
In fact, a large number of prisoners had been released merely by signing a pledge. ( and then later got back into terrorism, which shows they were being quite a bit more lenient than they should have been )
What possible relevance do Davis's policy disagreements with his superiors have to do with Hamdan's case? There is not a single allegation here nevertheless proof that Hamdan's judge or prosectors have done anything improper.
The Court better not let these trials turn into circuses.
If we were required to 'try' every German, Japanese, and Italian POW as criminal defendents, the overwhelming majority of them would have been found not guilty (not necessarily because they weren't guilty, but because there simply would be no evidence of guilt: rounding up teenagers on a battlefield, performed by other teenagers who happen to be wearing a different uniform, doesn't yield criminally defensible evidence). The overwhelming majority would have been held for years and then found 'not guilty.'
And thus, here we are. Taking POWs, then treating them as criminal defendents, is a contradiction in processes. Of course some POWs will be found 'not guilty' if treated as criminal defendents. Of course POWs are held for years. Thus, of course, if POWs are entitled to trials, they will have been found not guilty after having been held for years.
Sk
And to those who lament the usage of due process or letting the terrorists/liberals win; we would have had our precious victory against these scumbags if we were not so hasty to weaken our Afghanistan front for the Iraq front.
This war would have been over years ago if we were not preoccupied with occupation in too many countries at once. We knew at one time, that a country must be on a war footing, with rationing, war bonds, and no tax breaks for anyone until the fighting is finished. We were wiser, yes.
When the Germans went after the Russians for punitive instead of strategic reasons, they sealed their own fate and reduced their margin of probability for winning the war on their terms. They spread their efforts too thin.
I have the ultimate faith in the training and deployment of our special forces. They were not given the tools that they needed and the manpower to secure such a large and lawless area as Afghanistan.
This may not make him a good defense witness, but it certainly adds to his credibility for those of us who are concerned about the morality and fairness of the trials, but are willing to let the chips fall where they may once a fair trial has been held.
It seems that once the Administration made the decision not to treat these detainees as POW's they defaulted to the status of criminals. In fact, one of the ways to undercut the political goals of a terrorist is to treat them as nothing more than a common criminal.
The one who thought that only one outcome was possible.
Of course, in a real court with real rules of evidence Colonel Davis' opinion as to Hamdan's guilt would not be admissible, would it? He has no personal knowledge, and in any case guilt is a conclusion left to the trier of fact.
I'm really tired of this stupid false dichotomy between "letting terrorists go free to kill" and "we can do whatever we want with them."
As others have pointed out, the root of this problem is our decision not to accept that the Geneva conventions apply. I realize there is a legal argument that they may not apply because Al Queda/whatever isn't a nation state. But whether or not it's legally necessary doesn't necessarily have a bearing on whether or not it's a good idea.
That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants.
(Incentives matter, and the point of the distinction is to protect the non-militarized population by keeping the military and the civilian thoroughly separate.
If, however, the un-uniformed get protection both as presumptive civilians while not in active combat and as "prisoners of war" when captured, as if they'd been fighting by the rules, that's a thoroughly perverse incentive and leads to the destruction of the very rules that try to civilize war.)
But back to the post, we have "But he said Hartmann replied that "everything was fair game -- let the judge sort it out.""
That statement seems about right to me; isn't that what judges are supposed to do? And opposing counsel, for that matter?
If, for example, police get a confession outside of a Miranda warning, there's nothing improper about offering it in court - but opposing counsel won't be kind to it.
Haven't you heard the old adage; if the law is on your side, pound on the law, if the facts are on your side, pound on the facts, if neither is on your side, pound on the table. The lawyer here is just doing the best he can for his client.
That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants."
Yes, I didn't want to muddy the waters further by bringing up the whole 'in past wars, combatants out of uniform would have been executed as spies' argument because 1) I don't know the exact procedure for doing so (was the authority for an execution at the Colonel level? Brigadier General? General in Chief-a la Eisenhower? I don't know), and 2) that brings up a whole host of additional arguments. Arguing whether the detainees are POWs are not, arguing whether they should be entitled to civil defense processes or not, arguing whether they can be held without trial, and finally, arguing whether they can legally be executed as spies are all complex and drastically different (legally and of course morally) arguments.
In the confines of this little post, it is difficult enough to get people to realize that POWs in past wars didn't enjoy counsel (other than in very unusual circumstances: the Nuremberg Trials, the trials over the Malmedy Massacre, etc) without bringing up execution.
Re: your second point:
But back to the post, we have "But he said Hartmann replied that "everything was fair game -- let the judge sort it out.""
"That statement seems about right to me; isn't that what judges are supposed to do? And opposing counsel, for that matter?
If, for example, police get a confession outside of a Miranda warning, there's nothing improper about offering it in court - but opposing counsel won't be kind to it."
This is the whole point of my post. Soldiers on the battlefield don't collect evidence. They also don't 'arrest' people in any legally defensible manner. They shoot at, or intimate, enemy soldiers until those enemy soldiers stop fighting or die. Thus, if we are honest, NO combatants held would be 'chargeable' in a court: there won't be defensive evidence collected, and proper procedures ('Miranda warnings') won't be followed when the 'defendents' are seized.
You are arguing for a system in which, by definition (based on the procedures in place when the defendents were originally seized), the defendents will be found 'not guilty' on procedural grounds and go free.
Or are you arguing that Judges should 'sort it out,' but not apply law when doing so? Perhaps judges don't maintain standard rules of evidence (because there would be none), and don't worry about standard procedural rules of detention (because soldiers don't follow them)-instead, they kind of 'logic out' or 'figure out' whether the guys are guilty or not?
Sk
As previously stated, if these pople were in uniform they wouldn't be at Guantanamo. They are unlawfull combatants.
Giving them any protections at all makes it harder for non-combatents. The ratbags have no fear of being caught hiding among non-combatents because there is no penalty for risking innocent lives.
There are limits to this even in civil litigation. A lawyer cannot, for example, allow a witness to give testimony that he (the lawyer) knows is perjured. Prosecutors have stricter rules -- among other duties, they have an obligation to assure that the accused receives a fair hearing. Thus the rule in Brady v. Maryland, for example.
Actually, you are oversimplifying the GC rules on whether someone is lawful or unlawful combatant--in some instances (e.g., irregular forces fighting invaders) non-uniformed fighters can be considered lawful. Afghan members of the Taliban certainly had at least a colorable claim to being lawful combantants.
As for the "traditional law of war", this country has operated under the GC for well over a hundred years and summary executions have been prohibited by our (and most western) military for at least the entirity of the twentieth century. The British executed some of their own soldiers in the Boer War for the summary execution of non-uniformed enemy combatants (watch Breaker Morant if you want background on the incident).
The UCMJ and the GC strictly prohibit the summary execution of anyone at any time for any reason. To contend otherwise is to simply misread the conventions and ignore U.S. law. Only a duly constituted legal tribunal can punish anyone, no matter what their status is under Geneva, under military law.
1. The Geneva Conventions does not call anyone an "unlawful combatant".
2. Common Article III applies to allegedly unlawful combatants, as established by binding US Supreme Court authority, and that means no summary execution.
3. Even if we assume that pre-Geneva, one could summarily execute combatants out of uniform, (1) that doesn't mean one should, (2) it doesn't mean that one can torture them, or hold them in Guantanamo, or do the other things we have done to them, and (3) it doesn't mean that the US wants to set a precedent that its special forces can be summarily executed, tortured, or held hostage if caught in another country.
Making facile comparisons of people seized in police raids in peaceful areas to Germans captured on the field of battle is too stupid to comment on.
Anyone who knows anything about Guantanamo knows that only a small number of detainees were actually captured by US solidiers on the field of battle.
Most detainees were simply handed over to us by bounty-hunters for a cash payment. We shipped them to Gimo no questions asked. On top of that we have many that were taken in nighttime raids FAR from the field where we DO have the luxury of actually establishing guilt.
But keep scrambling. I'm sure one day you'll find an argument rooted in fact rather than baseless accusations based on personal prejudice.
Like most people who glibly throw out supposed loopholes in the Geneva conventions it is clear that SK doesn't know anything about them other than what he has been told by so-called authorities he does have the brains or intellectual independence to question.
Third Geneva Convention "relative to the Treatment of Prisoners of War"
Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War"
And, no, the term "unlawful combatant" does not appear anywhere in any capacity. It is, however, a great expression for people who only want to APPEAR like they know what they are talking about.
Blackwater employees are not combatants who conduct offensive operations against the enemy. They are security guards on a static defense mission.
Even if they were considered combatants, the Blackwater employees fall under the definition of privileged combatants under the GCs by openly carrying their weapons and wearing gear which identifies them at a distance as a combatant and not a civilian.
Al Qaeda and its allies are not privileged combatants under the GCs because they disguise themselves as civilians, hide among civilians, commit war crimes in violation of the GCs and do not observe the GC requirements privileged combatants.
Do you really think that our enemies need a "precedent" before they will kill or torture American soldiers?
So, when US soldiers have been captured in Iraq, absent Gitmo, they would have been released unharmed instead of being tortured and killed?
Or going back a little further, when Petty Officer Robert Dean Stethem was killed, what US "precedent" was being followed?
When our Ambassador to the Sudan was killed by the PLO, what "precedent" was being folowed?
What "precedent" was followed when John McCain was tortured?
When US prisoners n Korea were taken to China and "brainwashed", what "precedent" were they folowing?
Actually they wouldn't, since they don't wear insignias of rank. Also they fit they would fit the definition of mercenary because they are not part of the regular military and make much more than ordinary American soldiers doing the same job.
Of course not. They aren't the ones who need the precedent, we are. We need the precedent to confirm that when our enemies behave like this, we can shout to the world about how barbaric they are and how justified we are in tracking them down. We lose that platform of justice if we behave like our enemies do; we're no better than they are.
Like most people who glibly throw out supposed loopholes in the Geneva conventions it is clear that SK doesn't know anything about them other than what he has been told by so-called authorities he does have the brains or intellectual independence to question."
Um..I didn't write the paragraph you quoted. JK Thomas did.
In fact, I never mentioned the geneva conventions in either previous post, and never referred to the geneval conventions. I also never mentioned a loophole to the geneva conventions, either.
Sk
Lies. Most PMCs wear civilian clothes and no uniforms or any other insiginia identifying themselves as combatants. The only "gear" that they carry identifying themselves as combatants are their guns.
The Mahdi army - which I assume you do not consider to be privileged - also carries their arms openly. Frankly, ANY material standard under which PMCs qualify as combatants ALSO applies to groups like the Mahdi army as well.
"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."
Yes you did.
Scroll up dude. You wrote:
Now you have lied about what the Geneva Conventions say and lied about what you said about the Geneva Conventions. Are you Hillary Clinton? If you are going to lie about what you said or did not say please dont do it when the evidence that you ar lying is so easily available.
P.S. Geneva Conventions DO NOT call ANYONE "unlawful combatant". It is clear that you have never read it and are simply parroting points that you have read from other people.
This is to protect non-combatant personnel such as cooks, non-military medical personnel and the like--not mercenaries. Mercenaries, which are illegal combatants and not entitled to POW treatment, even if they are wearing uniforms, are not covered by that provision. In fact according to SK and his ilk, they can be summarily executed.
I assume it says this somewhere in the J. F. Thomas codicil to the convention? Otherwise, since it doesn't say that anywhere in the written text, you seem to just be waving your arms and screaming "Mercenaries! Mercenaries!"...
As I see this it's a factual question. (As to who determines the facts I'm not really sure in this case)
You have reporters accompanying your units. They clearly fall under that treaty section as "war correspondents." Same with civilian technical specialists.
You might be able to make the case that people like this fall under this section of the GC's even if they're armed for self defense. But on the other hand, if they're doing something like escorting VIP's through arguably hostile territory, it's quite a bit harder to argue that they're legitimately "civilian members accompanying the armed forces."
The fact that every job enumerated is a non-combatant role certainly makes his point more compelling than just screaming "mercenary". I don't know how this article is traditionally interpreted but I wouldn't be surprised if J.F., and not you, had the bulk of precedent behind him.
Furthermore,
Exclusively focusing on the Geneva Convention distracts us from the important point that many GWOT detainees were seized outside of both combat and any warzone.
The idea that most GWOT detainees were taken "in flagrante delicto" is simply wrong. It is a fantasy! This claim is either a mistake made by trusting people or a bald-faced lie by someone who knows better. Most GWOT detainees were never captured by US forces much less in "combat". Most were handed over to us by foreign entities (governments or local groups) in return for $$$ or favors. Others have been taken in raids far outside the borders of any warzone.
It is one thing to argue that the GC doesn't cover an armed man who was captured in the middle of combat operations - his guilt can be presumed. It is another to argue that the same applies to people who were taken, unarmed, out of their beds during police-style raids or people who were simply rounded up because they were men of military age caught up in routine sweeps after an IED explosion or people who were simply handed over to us by others who said "this man is a terrorist". The fact is that plenty of Iraqis and Afghans have played us for suckers by handing over personal enemies to us and claiming they were terrorists.
It is bad-faith to argue that the 3rd GC even applies to unarmed people who were captured outside of combat. Unarmed people outside of combat are presumed to be civilians. Arguing their status as war criminals begs the question of their guilt. You cannot simply start by assuming someone is a terrorist, and hence not covered by the GCs for Civilians or POWs, and then use this assumption to justify not applying the GC to them.
The part about pay doesn't sound any more plausible.
Moreover, if a Blackwater security guy shoots somebody, he has to justify as self-defense (just as you or I would); if a soldier shoots somebody, he only has to justify it under his commander's rules of engagement.
Here are the requirements for irregular forces:
(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.
Blackwater meets all of these elements.
BTW, merecenaries are hired soldiers. Blackwater do not provide soldiers. They are no more soldiers that are the Secret Service.
Of course, being in his position an dbeing a critic of Bush's policies will get you great press, as he surely knows. When is the book due out?
"Yes you did.
Scroll up dude. You wrote:
That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants." -SK
Now you have lied about what the Geneva Conventions say and lied about what you said about the Geneva Conventions.Are you Hillary Clinton? If you are going to lie about what you said or did not say please dont do it when the evidence that you ar lying is so easily available."
The quote is from a post by Sigivald. Not me. Take a deep breath, reread the postings, and start over.
Sk
You're right. I'm wrong. My apologies for misreading.