It is wonderful that the Guitmo trials have been sabotaged, but what exactly would you do with these people now? Perhaps we could just let them go like we did with Abdullah Saleh al-Ajmi, who recently killed six people in a suicide attack in Iraq. It is interesting that neither Ms Belezon nor Ms. Lithwick found that story worth covering. I am not holding my breath for it to ever appear in Slate. There is no way that these people can or will be held indefinitely. Someday they will be released like Mr. Aimi was. On what basis can the US hold them?

I think the authors need to think about the effects hyper-legalizing warfare. Consider the plight of the uniformed soldier. In war he can be shot on sight unless he is wounded or surrendering. If he surrenders he can be held in a prison without trial for the duration of the war. Now compare that to the situation of the irregular terrorist under the legal scheme Ms Balezon and Ms. Lithwick are celebrating so much. The terrorist doesn't wear a uniform and is in no danger of being killed outside of when he is actually committing an act of terror. If he is captured, he is entitled to a gold plated criminal trial which must prove beyond a reasonable doubt that he is in fact guilty of terrorist acts without the use of hearsay or coerced evidence. He no doubt will get a top legal defense team that will ensure a fair trial where process is more important than factual guilt or innocence and a public relations team that will ensure he receives the love and affection of the likes of Ms. Lithwick and Ms. Balezon.

Terrorism is nothing new. Civilized countries dealt for hundreds of years with terrorists or people out of uniform making mischief on the battlefield by summarily hanging them. That may sound harsh but there was a reason for doing it. As we have found out in the last seven years, partisan or asymmetric warfare is a wonderfully cheap and effective way to make war. It also creates an environment where civilians are indistinguishable from combatants and is much worse and more brutal than regular warfare. Thanks to the efforts of people like Ms. Balezon and Ms. Lithwick we have now created a system where it is advantageous to be a terrorist or irregular fighter rather than a uniformed soldier. Over the coming decades that is going to have lasting and disastrous effects on the conduct of war. I think maybe when Mr. al-Qahtani is finally released, and he will be, Ms. Balezon and Ms. Lithwick should offer him a job as a warfare correspondent for Slate because he and his type are the future. They have helped make it that way.

krudge,

I'm not one to defend Ms. Lithwick and Ms. Bazelon--in fact I'd like to accuse them of some very unsavory (and un-lawyerly) conduct for their insulting suggestion that Judge Susan Crawford has but a "filiment of legal integrity." I wonder if either of these "senior editors" had in their possession any credible evidence to suggest Ms. Crawford has anything less than the highest standards of "legal integrity" or professional ethics if you'd prefer. Last time I checked, it was considered exceedingly bad form for an attorney to throw around unwarranted and unsupported attacks on another attorney's ethics.--- Would this warrant an apology--I'll let you be the judge, but I doubt it will be forthcoming.

Nevertheless--I think you misstate the thrust of this article. I don't believe the authors suggested it would be offensive to hold these detainees (call them unlawful combatants if you like) without trial indefinately---assuming a status hearing is held within the meaning of Article 5 of the Third Geneva Convention (GPW) the law of armed conflict would apparently permit holding them in humane conditions until the conflict ends.

I'm also not sure the article speaks out agains summary executions. I don't think this was ever an American practice in the past. It also it seems to me that summary executions would violate U.S. military doctrine--not to mention the law of armed conflict. I think even the anticipated domestic backlash against such a practice would prohibit its implementation. Since we are a democracy after all, its entirely legitimate for the military to eschew practices abhorred by the populace. This is true even if some believe summary hangings would be effective. (I happen to think the suggestion of effectiveness is incorrect in the current conflict with the emotional appeal of myrtardom and the speed of information flow...)

What I think the article opposes is putting these accused before a "rigged" trial and calling it justice. I agree with that sentiment--and frankly there's no indication Susan Crawford or any of the military attorneys involved in the Commissions disagree.

.

Let me make it clear, I do not think we should go back to the days of summary executions. The US did execute people out of uniform and found on battlefields numerous times during the civil war. My point was that we cannot make it advantageous to be a non-uniformed combatant. As it stands, we are getting close to that point. There is no way the US can hold these people indefinitely. They are not POWS. If they are not POWS then they are criminals and cannot be held forever without charge.

I would suggest that Lithwick and company go back and read the actual history of the Nuremburg trials. Those trials were nothing like what we have now. People were convicted by virtue of membership and position within the Nazi party. Hearsay evidence was used and evidence obtained by Soviet interrogators who used brutal methods were entered into evidence.

Bush screwed this up because his people didn't know anything about history or how this was done. We should have pulled the rules for the Nuremburg trials off the shelf and adopted them verbatim. When Lithwick and her ilk screamed murder, we could have pointed out that they are still accepted international law and the law of the United Nations. Once we did that, you declare membership or aid to Al Quada to be criminal and punishable by death. The trials then relate to one issue, membership in Al Quada. After that is establish, the accused can then plead for mercy based on his lack of standing or actions and the tribunal can adjudge sentence. Had Bush done that, these trials would have ended years ago and justice would have been done

Not so fast. I don't think all of the detainees are Al-Quida suspects--some of them are Taliban fighters. I think this is a real sticking point for Article 5 hearings as many thoughtful people believe the Taliban were combatants (the lawful kind) in Afghanistan. This is where the phrase "unlawful combatant" came into use---the Geneva Conventions do not have much to say about them. Presumably because they are "unlawful" they are not entitled to POW protections--but that does not make them "criminals" who must be tried in a military or civilian criminal venue. I just don't understand the law of armed conflict to require this. I think there's plenty of ambiguity to support the idea that an "unlawful combatant" because he's a "combatant" may be held until the cessation of hostilities AND that because he's "unlawful" he isn't entitled to all the special POW protections.

The whole debate about hearsay evidence is nonsense. Hearsay (meaning the limited types of hearsay evidence that would be kept out of an U.S. court or court-martial by the federal/military rules of evidence) is ROUTINELY used by the UN Security Council-created international courts for the former Yugoslavia, and Rawanda. It will also be used by the international criminal court. Nobody should be shocked that hearsay evidence will be weighed in an effort to reach justice in these types of cases. Further, using hearsay is a two-way street. As I understand the rules, if the prosecution gets to use (otherwise inadmissable) hearsay, the defense does too.

The rules for Nuremburg wouldn't be appropriate as they accomodated a multi-national panel of judges and prosecutors that included our Soviet allies. No rule that was a not to the Soviet system of justice ought to remain in use today.

I think you're close to correct about making membership or support to Al-Quida a universal crime. I believe there are two UN Security Counsel resolutions that do precisely this--requiring all UN member countries to impose criminal statutes outlawing membership or support of terrorist organizations--or helping them acquire WMD. The "punishable by death" this is of course incorrect, as most countries and the ECHR prohibit the death penalty.

Bush screwed this up because his people didn't know anything about history or how this was done. We should have pulled the rules for the Nuremburg trials off the shelf and adopted them verbatim. When Lithwick and her ilk screamed murder, we could have pointed out that they are still accepted international law and the law of the United Nations. Once we did that, you declare membership or aid to Al Quada to be criminal and punishable by death. The trials then relate to one issue, membership in Al Quada. After that is establish, the accused can then plead for mercy based on his lack of standing or actions and the tribunal can adjudge sentence. Had Bush done that, these trials would have ended years ago and justice would have been done

(Italics added by me.) Justice? Possibly--if everyone detained were verifiably Al Qaeda. Considering that there is strong evidence that that is not the case, however, I'm not sure how you arrive at the word, "justice". Per dictionary.com, the definition of justice is: 1. the quality of being just; righteousness, equitableness, or moral rightness: to uphold the justice of a cause. 2. rightfulness or lawfulness, as of a claim or title; justness of ground or reason: to complain with justice. 3. the moral principle determining just conduct. 4. conformity to this principle, as manifested in conduct; just conduct, dealing, or treatment. 5. the administering of deserved punishment or reward. 6. the maintenance or administration of what is just by law, as by judicial or other proceedings You do realize that we pay a bounty to people who turn in Al Qaeda members, right? Anytime there is a demonstrated gain, financial or otherwise, in having someone arrested, you are going to see abuse of the system. Yet it sounds like you either think that all Muslims are Al Qaeda and, thus, deserve to die; or you are advocating a "kill'em all and let (our) God sort'em out" policy that would result in the murder of innocent people. Frankly, I find that rather sickening. I also find that pretty far from the definition of "justice".

The ones who were members of the Taliban and are not charged with crimes have already been released. They were actual POWs. All an article 5 tribunal does is determine whether you have POW status. We shoul dhave done Article 5 Tribunals on all of these people in the begining but the Bush Administration stopped it for reason that defy logic. But, once they lose their Article 5 hearing and are declared not to be POWs, then the country has to have a reason to keep them. Article 5 was created as a way to determine who got POW protection and who didn't. In the past that was very important because if you were not POW and you were at the mercy of your captures and generally you were hung. Basically, if you are not a POW you are treated as an ordinary criminal by the capturing state.

What does that mean? Well people like Lithwick want it to mean that anyone who is not a POW should be tried in federal court just like any other criminal. That is widly inpractical. The answer is that you have a military commission like we are having here. The Nuremburg tribunals are still valid international law. They have never been repudiated by the UN or any subsequent treaty. The US is perfectly within its rights to use them.

That is not what I am advocating at all. Lots of people were aquitted at Nuremburg. Many given prison sentences. Only the very top worst actors were actually hung. Nuremburg is still today the gold standard of international tribunals. I do not think that all Muslims are al-Quada. Indeed, if we fail in prosecuting the war against Al Quada it will be Muslims who suffer the most.

I would suggest you read the history of the Nuremburg trials and how they actually worked. They struck a proper balance between victors justice and the need to do justice for incredible crimes. If you think that Georing and Company and now OBL and company deserved more justice than what was given at Nuremburg, then nothing short of just letting them go and surrender will satisfy you.

you write

The ones who were members of the Taliban and are not charged with crimes have already been released. They were actual POWs.

I'm fairly confident this assertion is factually incorrect.

First--the US treated NO Taliban fighters as "actual POWs". I think we should have--but that's a different subject. They were instead labeled "unlawful combatants" based on the authority--to the best of my knowledge of a statement made by then White House spokesman Ari Fleischer that Taliban fighters didn't comply with the GPWs requirement to wear distinctive uniforms on the battlefield in order to receive POW treatement. Sorry--all detainees e.g. Taliban, Al-Qeada(classic), AQI(Al-Qeada Iraq), Sunni Iraqi insurgents, Shi'a Iraqi Mahdi Army, and various other bad guys, were treated the same--as unlawful combatants and ushered through various non-POW compliant detention facilities (Bagram Air Base, AbuGahrib etc.).

Second. I think it is also factually wrong that all the Taliban fighters were released. Well it's clearly wrong, there are scores of them held in Bagram right now. I believe some of them are also at Git-Mo. Active combat operations against the Taliban continue--which makes it unnecessary and unwise to release Taliban fighters unless we've got some reason to believe they're either insignificant or pose little risk of re-joining the fight against US/NATO forces in Afghanistan.

P.S. Its a fool who's accusing you of the muslim hating business. I suspect you're an avid Al-Quada hater (good for you) but I've not detected a hint of bigotry in your posts.

I don't think we should forget that Congress should properly be in charge of creating a fair/impartial system, separate from the military, for determining whether someone is an unlawful combatant, terrorist, whatever. Some ad hoc civilian tribunal, perhaps?

People often talk about "terrorists" getting the gold-plated standard of american justice in the courts. Well, how do we know they're terrorists and not some goat-herder who got caught up in some dragnet? The Administration's say-so? This Administration has such a credibility problem now, I seriously doubt half of us would believe Bush if he said rain was wet.

I wish I could find you the link but I am quite positive several Taliban fighters were released on the basis that they were POWs and the war with the Taliban was over. Some of them did wear distinctive uniforms are at least close enough and were not guilty of war crimes.

The problem is that there is no way to declare these people POWs. They either were caught fighting for the Taliban and should be released because that war is over or they are part of what amounts to an international criminal organization and are not eligible for POW status. I don't see a legal basis for the US to hold them indefinitely. The US does not and should not give them trials in US District Court. Agreed that they should receive fair trials and we should be certain at least by a large preponderance that they are in fact guilty. I have no doubt that innocent people get caught and we ought to do our best to make sure those people are released. The problem is that Lithwick as usual is being completely disingenuous. She thinks it is wonderful that the tribunals are failing but she doesn't give any alternative to the tribunals. If she honestly thinks they all should be tried in District Court or just released she ought to say so. But the truth is that we know several of these people are guilty and are extremely dangerous but there is no way to convict them in US District Court. What should we do with them? That is a really tough question. It is a question that Lithwick, one of the worst most dishonest legal "reporters" I have ever read, is unwilling to answer.

The ones who were members of the Taliban and are not charged with crimes have already been released.

Nope, not quite. In fact we are only STARTING to release folks who are completely innocent like the Al Jazeera cameraman who spent most of the equivilent of a Manslaughter sentence in solitary confinemnet with the threat of torture hanging over his head.

The problem here is that if we used the Nuremburg trials against the detainees. We would end up having to indict Cheney, Powell, Rice, Rumsfeld, Feith, and probably about 1/4 of the Gitmo staff on the evidence of war crimes that would be turned up. It is precisely because of this, that the CSRTs were constructed and why the US won't use The Hague Tribunal for these trials.

Several have been released.

And no, these folks are not POWs - they never were. At best they were members of a criminal conspiracy. But herein lies the rub. The US never had a basis for holding them. MOST of them were

• Rendered to the US extrajudicially by the Pakistani Secret Police
• Had been accused to the Pakistani's by bribed informants (they got rewards for turning them in)
• And have been held under what amounts to Writs Of Attainder.

There was no unconscious fuckup by the administration here. This was a very clear CYA. The Combat Status Review Tribunals were kangaroo courts from the outset in some cases trying, retrying and then re-re-trying the defendants until the "right" conclusion was drawn.

This was to cover up the fuckup Bush made in Afghanistan and Tora Bora.

the other major screwup from a legal sense, was the overly rapid creation of sovereing puppet governments. It avoided the political and legal consequences of being deemed an "Occupying Power" - but it created the unfortunate side effect that the USA no longer had any right to detain ANY POWs.

After all if the government we were at war with is no longer, and a sovereign ally has taken its place, we have to let any POWs go (that's according to Geneva and the US Constitution). Furthermore, if we continue to help our newly formed and allied nation (when did the Senate ratify the treaty of mutual defense??) defend itself from insurgency and incursion, we can do so, but ALL POWs must be turned over to the sovereign nation.

Now this last is probably how the US will deal with the Gitmo victims. We will simply hand them over to the Iraqis and Afghanis who will torture them and execute them.