Closing Gitmo and Ending Torture the Right Way

Last night, Jameel Jaffer, Director of the ACLU's National Security Project, was on The Rachel Maddow Show talking about President Obama's three executive orders and torture policy going forward.

Andy Worthington, who just guest-posted on the ACLU blog on inauguration day about the Guantánamo child soldier cases, penned an excellent piece on Huffington Post today that nicely distills the new Gitmo issues now before us. He writes:

… I look forward to further detailed analysis from the White House regarding the secret memos and presidential orders that purported to justify the Bush administration's flight from the law and its attempts to justify torture.

We do too, Andy.

Andy also points to the excellent Alternet article by Jeff Kaye about Appendix M of the Army Field Manual, which allows for some torture techniques that are not in compliance with the Geneva Conventions. (Jameel touches on this in his Rachel Maddow interview as well.)

Now, don't get us wrong: we're thrilled that President Obama has moved so quickly to end torture and close Gitmo. But our work isn't done. Before the ink of the executive orders signature dried, an uproar over the Guantánamo detainees ensued. President Obama's opponents are using a familiar fear-mongering tactic: they say any mainland detention facility that holds former Gitmo detainees will become instant terrorism targets. Not so, Glenn Greenwald writes today:

Both pre- and post-9/11, there are numerous other individuals who have been convicted in U.S. civilian courts of various acts relating to terrorism inspired by Islamic radicalism, including many alleged to be high-level Terrorists, who are now serving sentences inside the U.S., in U.S. prisons.

Moreover, terrorists accused of being members of Al Qaeda and affiliated groups have been successfully tried in the regular courts of other countries -- including Britain and Spain -- and currently sit in those countries' regular prisons, without a whiff of a problem. If it were really the goal of Terrorists to attack American prisons where their members are incarcerated and if they were actually capable of doing that, they already have a long list of "targets" and have had such a list for two decades.

So clearly, our work isn't done. So today, thank President Obama for his swift action. Tomorrow, it's back to work. It's a long road to the restoration of the rule of law, and we're ready to go the distance.

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radicallibertarian

Hey Suzanne does the ACLU sopprt trying the detainees in a federal court or in a military courts-martial? What's the differance?

Fed Arrestler

A fundamental part of humanitarian law involves classifying and categorizing different types of people so that it can be determined how they should be treated. Nobody, for example, thinks that soldiers and Red Cross workers should be treated in the same way. Different rights and protections are provided for different people.

The laws of land warfare require that lawful combatants wear identifiable insignia, carry their arms openly and follow a command structure. The Taliban foot soldiers did not. But let’s say we give them the benefit of the doubt. Perhaps assuming they would do those things if they were able (this, it must be noted, is an inherently prejudiced view, that the “little brown people” of third world nations are not capable of acting civilized and should not, therefore, be expected to). For some reason, the critics of current policy almost never come out and state this plain fact. That although these people clearly do not qualify for lawful combatant or POW status under Geneva, it should just be given to them.

These distinctions are important in ways that are often lost in the current debate. For example lawful combatants have the so-called “belligerent privilege” meaning they can lawfully kill their enemies on the battlefield. If they deliberately kill civilians, however, that would be a crime. Likewise “non-combatants” or civilians do not have the “belligerent privilege” and it would be a crime for them to kill soldiers. These rules are very important for humanitarian purposes. If we allow soldiers to routinely look like civilians, act like civilians and operate amongst civilians, it becomes impossible to ensure that (to the extent possible) only soldiers are killing each other on the battlefield. Soldiers that deliberately pose as civilians draw attacks from their enemies who have no way of determining who are lawful targets to be killed and who are not. This greatly increases collateral damage to innocent people. It is inhumane and cowardly. Lately, though, the practice draws little criticism, maybe because it isn’t America doing it? Just a thought.
But, you and I have agreed that Taliban foot soldiers can be given some…”extra credit” for humanitarian (?) reasons, and allowed to qualify under Geneva for this status, even though this will undoubtedly bring death and suffering to the civilian populace they cannot be distinguished from. At best we have agreed on a dangerous convenience. Perhaps because we think some immoral things may have happened at Gitmo and we think that by giving POW status we can stop this. Let us put out of our minds the possibility that at some future date; assassins, saboteurs, and spies of all kinds will likely demand the same privilege as we have made a once important humanitarian distinction meaningless. We are agreed, they are POWs.

What then is done with POWs under Geneva during time of war? They are detained indefinitely until their nations negotiate an end to hostilities. If you are saying they are POWs under Geneva you should have no objection to this possibility. In addition to this Geneva states that POWs cannot be deported to countries were they might be abused, making it even more unlikely that they will be going anywhere soon.

The truth is that most critics do not want them treated “exactly” like POWs. They want them to have all of the advantages of POW status, while retaining all the possible legal advantages of any other status as well. And that is no kind of policy, it is a muddled pile of insanity with potential negative consequences down the road.

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