FEOS
Bellicose Yankee Air Pirate
+1,182|6601|'Murka

http://www.stratfor.com/weekly/20091116 … t=readmore

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.

In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.
The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.
Very interesting take on the larger issue of domestic vs international law and criminal law vs. the law of war.

One of the best analyses I've seen on the matter. Hopefully, if no other good comes from the abysmally stupid decision to try KSM and his buddies in NYC than to bring the relevant laws in line with reality, we'll get something useful out of it.

Thoughts?

Mods: Request you keep this to a discussion on advancing international and domestic (US and other) law, not a "OMFG GITMO suxors" flamefest.
“Everybody is a genius. But if you judge a fish by its ability to climb a tree, it will live its whole life believing that it is stupid.”
― Albert Einstein

Doing the popular thing is not always right. Doing the right thing is not always popular
Mekstizzle
WALKER
+3,611|6811|London, England
It's kind of a unique thing in history though, you can't really compare it to something else to see what should be done or what is the right thing to do. On one hand, yeah it could be seen as an Act of War. Because the Taliban were the Government of Afghanistan at the time, and they pretty much let AQ do shit like 9/11.

On the other hand, AQ have no proper affiliation to any government, they're their own group. Headed by stateless exiles and shit like that. I remember reading that the Taliban even offered to put Bin Laden etc.. under trial themselves but instead the US simply declared war on the Taliban/AQ.
So in that sense, it's almost like if a guy planned an attack in Britain, carried it out in the US, Britain offers to put the suspect on Trial but the US instead declares war on the British government, and that guys organisation. When you say it like that, it does indeed sound more fucked up right.

edit: Wait it wasn't that simple, the Taliban also refused to extradite anyone responsible for 9/11 and they were a dubious government at best so it's still not really a surprise that eventually they were declared war upon.

Sometimes it makes you think. I know the Taliban and AQ tend to share some ideologies. But if the US were to cooperate with the Taliban on hunting down AQ in Afghanistan, how successful would that have been compared to just declaring war on everyone.

---

Really though, It's much much more like a terrorist attack than an actual act of war like Pearl Harbour. And I think it's fitting that the guys responsible for 9/11 are going to be tried in the city they attacked.

Last edited by Mekstizzle (2009-11-20 04:53:19)

RAIMIUS
You with the face!
+244|6905|US
Mek, your analogy fails.  The UK would not SUPPORT a terrorist planning an attack on the US.  The Taliban were more than happy to see AQ suceed...at least until they had their world rocked by a very angry US military.
ghettoperson
Member
+1,943|6840

Surely they can just prosecute him under RICO laws?
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

RAIMIUS wrote:

Mek, your analogy fails.  The UK would not SUPPORT a terrorist planning an attack on the US.  The Taliban were more than happy to see AQ suceed...at least until they had their world rocked by a very angry US military.
It was an analogy...
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Dilbert_X
The X stands for
+1,813|6296|eXtreme to the maX

FEOS wrote:

Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty
So what is he exactly? Terrorists are criminals as far as I remember.
Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation.
Of course they can, you're just too lazy to want to do it, nor do you want your illegal methods exposed, thats' your real complaint here
Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.
So basically the plan is Team America - World Police! Kill or torture whoever you like on your say so so you can feel big and tough and avoid dealing with the real issues.

Here's a better plan, stop fucking over the rest of the world to maintain your obscene standard of living.
Stop paying Israel to kill Arabs and steal their land.

Eventually your problems will go away.

In the case of KSM it doesn't matter anyway, Obama has rendered a fair trial impossible, saying KSM will be convicted and will get the death penalty.
Lawyers should have fun with that.

Last edited by Dilbert_X (2009-11-20 15:00:23)

Fuck Israel
RAIMIUS
You with the face!
+244|6905|US
Wow, you really scratched the surface and ran with you ideas there.

From the quote in the OP
The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.
Not exactly screaming "AMERICA, FUCK YEAH!" and "Kill, torture, and maim," now is it?
Dilbert_X
The X stands for
+1,813|6296|eXtreme to the maX
There is no legal limbo, terrorists are criminals.
They aren't acts of war unless committed by a nation state.

People like Bush like to call them acts of war so they can deploy the military and suspend human rights, and use the whole business as a cover for the rest of their agenda.
Fuck Israel
AussieReaper
( ͡° ͜ʖ ͡°)
+5,761|6343|what

Dilbert_X wrote:

People like Bush like to call them acts of war so they can deploy the military and suspend human rights, and use the whole business as a cover for the rest of their agenda.
"war on drugs"

"war on obesity"

"war on terror"

etc
https://i.imgur.com/maVpUMN.png
CameronPoe
Member
+2,925|6746
We need a hybrid law because the limbo that currently exists was exploited in a way that was very damaging to the image of the US internationally and the fact that the acts spoken of hard to define, lying somewhere between plain crime and an act of war. The 'non-uniform' element and the nature of the acts of violence/attacks means there has to be some forum for arguing your innocence, as you may well be.

The problem will be that the US and other nations haven't signed up to much in the way of internationally binding law (International Criminal Court?) in quite some time so producing some laws to address the issue might be a waste of time.

Last edited by CameronPoe (2009-11-21 11:16:37)

rdx-fx
...
+955|6782
There's too much attention being paid to where they came from or who they work for, and the main point of what they did is being disregarded.

By any reasonable argument, what the 9/11 attackers did was an act of war.
Regardless of whether they were employed by a nation-state, a terrorist organization, an international gang, a drug cartel, or acting alone.

Al Quaeda effectively pulled the functional equivalent of a "Pearl Harbor" on us.
Makes fuckall of a difference if they're a nation-state or not.

And, considering their blatant disregard for the rules of 'civilized' warfare (Geneva convention, etc), that pretty much leaves them in a black hole regarding treatment.

They do not have the rights of US citizens, they do not have the rights of uniformed enemy combatants.
They are the ones who picked how they wanted to wage this war - no uniforms, no innocents, no non-combatants.

So, simply put, kill them and any who profess allegiance to their cause.
We will make efforts to distinguish between combatants and non-combatants, even if they do not - as We have a sense of morals, ethics, and justice.
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

rdx-fx wrote:

There's too much attention being paid to where they came from or who they work for, and the main point of what they did is being disregarded.

By any reasonable argument, what the 9/11 attackers did was an act of war.
Regardless of whether they were employed by a nation-state, a terrorist organization, an international gang, a drug cartel, or acting alone.

Al Quaeda effectively pulled the functional equivalent of a "Pearl Harbor" on us.
Makes fuckall of a difference if they're a nation-state or not.

And, considering their blatant disregard for the rules of 'civilized' warfare (Geneva convention, etc), that pretty much leaves them in a black hole regarding treatment.

They do not have the rights of US citizens, they do not have the rights of uniformed enemy combatants.
They are the ones who picked how they wanted to wage this war - no uniforms, no innocents, no non-combatants.

So, simply put, kill them and any who profess allegiance to their cause.
We will make efforts to distinguish between combatants and non-combatants, even if they do not - as We have a sense of morals, ethics, and justice.
They're the equivalent of partisans and partisans have no rights. Throughout history they were strung up from the nearest tree without trial. The AQ people are getting far better treatment than any other partisans in history.
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Skorpy-chan
Member
+127|6535|Twyford, UK
Well, frankly, the geneva convention is full of holes anyway. I mean, where do PMCs stand in the whole thing, since it isn't clear at all on what happens to mercenaries?
rdx-fx
...
+955|6782

JohnG@lt wrote:

They're the equivalent of partisans and partisans have no rights. Throughout history they were strung up from the nearest tree without trial. The AQ people are getting far better treatment than any other partisans in history.
Pretty much.

Was trying not to use a label like 'partisan' for them. 
Too many secondary connotations that could be misconstrued.

And, to varying degrees, near historical partisans generally followed the concepts of 'civilized' warfare.
French resistance in WW-2, for the first example that comes to mind.
Most partisans attacked military or military infrastructure targets as a 1st choice, then supporting civilians as a secondary choice.


Not really a partisan analog that closely matches Al Quaeda's agenda, jihadist mentality, or organization.

(Also.. makes me think of [an earlier thread here ] describing someone I know taking part in the airborne drop into Grenada - and someone responds with 'and he lived after jumping on a grenade?!'.  They might think I was advocating the extermination of Parisians or Palestinians).

Last edited by rdx-fx (2009-11-21 17:12:04)

CameronPoe
Member
+2,925|6746

JohnG@lt wrote:

They're the equivalent of partisans and partisans have no rights. Throughout history they were strung up from the nearest tree without trial. The AQ people are getting far better treatment than any other partisans in history.
The founders of your nation would technically have been described as partisans. The fact of the matter is that the incumbent powers or those that are in a position of power will deem you to have 'no rights', whether you deserve them or not morally speaking. A 'moral' nation will/should not dismiss those rights. If they are powerful enough to be able to stamp all over morality then fair enough, but generally karma comes back to bite you in the ass.

Last edited by CameronPoe (2009-11-21 18:04:07)

Flaming_Maniac
prince of insufficient light
+2,490|6897|67.222.138.85

CameronPoe wrote:

The founders of your nation would technically have been described as partisans.
And they would have been strung up on a tree if we lost haha. "Give me liberty or give me death" wasn't really that dramatic.
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

Flaming_Maniac wrote:

CameronPoe wrote:

The founders of your nation would technically have been described as partisans.
And they would have been strung up on a tree if we lost haha. "Give me liberty or give me death" wasn't really that dramatic.
Exactly. Thomas Jefferson, George Washington, Ben Franklin et al would've been convicted of treason, hung, drawn and quartered. Rebellion is different as they were uniformed, acknowledged, enemy combatants. Sure, the leaders of rebellions are usually charged with treason and killed if they lose, but the soldiers themselves are generally treated as any other combatants.
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

CameronPoe wrote:

JohnG@lt wrote:

They're the equivalent of partisans and partisans have no rights. Throughout history they were strung up from the nearest tree without trial. The AQ people are getting far better treatment than any other partisans in history.
The founders of your nation would technically have been described as partisans. The fact of the matter is that the incumbent powers or those that are in a position of power will deem you to have 'no rights', whether you deserve them or not morally speaking. A 'moral' nation will/should not dismiss those rights. If they are powerful enough to be able to stamp all over morality then fair enough, but generally karma comes back to bite you in the ass.
What rights? The rights of an American citizen? They aren't Americans. The rights that they would've had in their own adopted country of Afghanistan? Public stonings and beheadings it is then!
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Dilbert_X
The X stands for
+1,813|6296|eXtreme to the maX

JohnG@lt wrote:

Exactly. Thomas Jefferson, George Washington, Ben Franklin et al would've been convicted of treason, hung, drawn and quartered. Rebellion is different as they were uniformed, acknowledged, enemy combatants.
But many of them were irregular, non-uniformed 'backwoodsmen' just like AQ.
Fuck Israel
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

Dilbert_X wrote:

JohnG@lt wrote:

Exactly. Thomas Jefferson, George Washington, Ben Franklin et al would've been convicted of treason, hung, drawn and quartered. Rebellion is different as they were uniformed, acknowledged, enemy combatants.
But many of them were irregular, non-uniformed 'backwoodsmen' just like AQ.
They wore buckskin shirts to uniform themselves.
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
RAIMIUS
You with the face!
+244|6905|US
Well, we didn't have the Hague and Geneva Convention back then, did we?

Sure, there was a generally agreed upon "civilized" way to fight.  It really was left to the winner to decide punishments for "uncivilized" behavior.

As to KSM, we are trying to give terrorists the same rights we would want.  Unfortunately, there are a host of legal issues with this.  American domestic law isn't designed to prosecute people captured in foreign war zones!
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

RAIMIUS wrote:

Well, we didn't have the Hague and Geneva Convention back then, did we?

Sure, there was a generally agreed upon "civilized" way to fight.  It really was left to the winner to decide punishments for "uncivilized" behavior.

As to KSM, we are trying to give terrorists the same rights we would want.  Unfortunately, there are a host of legal issues with this.  American domestic law isn't designed to prosecute people captured in foreign war zones!
We should give them the same justice they give to our prisoners. Public beheadings on al-jazeera.
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Mekstizzle
WALKER
+3,611|6811|London, England

JohnG@lt wrote:

RAIMIUS wrote:

Well, we didn't have the Hague and Geneva Convention back then, did we?

Sure, there was a generally agreed upon "civilized" way to fight.  It really was left to the winner to decide punishments for "uncivilized" behavior.

As to KSM, we are trying to give terrorists the same rights we would want.  Unfortunately, there are a host of legal issues with this.  American domestic law isn't designed to prosecute people captured in foreign war zones!
We should give them the same justice they give to our prisoners. Public beheadings on al-jazeera.
Want to shout Allah Akbar whilst you do it, hold a Koran, and then also start stoning people for stupid things. 'Cos you know, if they do it, then by God, why can't we right?
Jay
Bork! Bork! Bork!
+2,006|5548|London, England

Mekstizzle wrote:

JohnG@lt wrote:

RAIMIUS wrote:

Well, we didn't have the Hague and Geneva Convention back then, did we?

Sure, there was a generally agreed upon "civilized" way to fight.  It really was left to the winner to decide punishments for "uncivilized" behavior.

As to KSM, we are trying to give terrorists the same rights we would want.  Unfortunately, there are a host of legal issues with this.  American domestic law isn't designed to prosecute people captured in foreign war zones!
We should give them the same justice they give to our prisoners. Public beheadings on al-jazeera.
Want to shout Allah Akbar whilst you do it, hold a Koran, and then also start stoning people for stupid things. 'Cos you know, if they do it, then by God, why can't we right?
I wasn't being serious. I do feel that too many people are worried about them receiving their rights and will bitch and moan if they get death sentences. They're mass murderers. Sure, they're not convicted yet but if justice is done I don't want to hear a single person whining about it.
"Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don't you reform yourselves? That task would be sufficient enough."
-Frederick Bastiat
Mekstizzle
WALKER
+3,611|6811|London, England
I doubt you'll get many crying if they're convicted and given the death sentence. I'm only wondering why it's taken so long. I'm surprised they weren't tried or, dealt with, during the Bush era. Why is it upto Obama to put an end to it when most of these guys were captured fucking ages ago.

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