Should POWs captured during NATO War in Afghanistan be brought to US and Tried in US Courts?

[FrenchieCat]

Poll question: Should POWs captured during NATO War in Afghanistan be brought to US and Tried in US Courts?

There's a story written by Nedra Pickler and Matt Apuzzo of Associated Press (AP) http://www.truthout.org/022109Z making the rounds which decries the Obama Administration for believing that POWs should be treated according to the Geneva Convention and should not be provided a precedenting setting rule that would allow them to be brought to trial in the United States and tried in US courts with US Constitutional protections. It is a similar stance made by a Canadian Court last year. http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080312/afghan_detainees_080312/20080312?hub=TopStories

I believe the fact that this is a NATO war disqualifies POWs captured in that war to receive any benefits from anything beyond the Geneva Conventions or the government of Afghanistan (preferably after the war) as it was done in WWII.

In otherwords, I do not believe that POWs captured and held during a NATO War in a foreign land should be afforded the same rights given to American Citizens in the United States under the US Constitution.

What do you believe?

[leftstreet]

1. Other: I believe the US has no business being in Afghanistan n/t

[FrenchieCat]

3. Well, they are......along with various countries that signed up for this 7 years ago.

Obama's been in a month, and I don't believe that he will keep this war going as we know it much longer. I have faith in that, no matter what the naysayers were saying 5 minutes ago.

[stillcool]

16. but it is who we are, and what we do...

A Brief History of U.S. Interventions:
1945 to the Present
by William Blum
Z magazine , June 1999
http://www.thirdworldtraveler.com/Blum/US_Interventions_WBlumZ.html

http://www.thirdworldtraveler.com/Blum/American_Empire_KH2004.html

The American Empire: 1992 to present
from the book
Killing Hope
by William Blum
2004 edition


Following its bombing of Iraq in 1991, the United States wound up with military bases in Saudi Arabia, Kuwait, Bahrain, Qatar, Oman and the United Arab Emirates.
Following its bombing of Yugoslavia in 1999, the United States wound up with military bases in Kosovo, Albania, Bulgaria, Macedonia, Hungary, Bosnia and Croatia.
Following its bombing of Afghanistan in 2001-2, the United States wound up with military bases in Afghanistan, Pakistan, Kazakhstan, Uzbekistan, Tajikistan, Kyrgyzstan, Georgia, Yemen and Djibouti.
Following its bombing and invasion of Iraq in 2003, the United States wound up with Iraq.
This is not very subtle foreign policy. Certainly not covert. The men who run the American Empire are not easily embarrassed.
And that is the way the empire grows-a base in every neighborhood, ready to be mobilized to put down any threat to imperial rule, real or imagined. Fifty-eight years after world War II ended, the United States still has major bases in Germany and Japan; fifty ears after the end of the Korean War, tens of thousands of American armed forces continue to be stationed in South Korea.
"America will have a continuing interest and presence in Central Asia of a kind that we could not have dreamed of before," US Secretary of State Colin Powell declared in February 2002. Later that year, the US Defense Department announced: "The United States Military is currently deployed to more locations then it has been throughout history."

[Hanse]

2. Since when are POWs given trials?

[FrenchieCat]

4. There was a problem seems to me, as Bush's War on Terror had no end.

Since the Obama Administration is no longer very much using the term "War on Terror", I believe that this issue will be resolved as it should.....as I expect there to be an "end" to this war in Afghanistan sooner than later.

[IGotAName]

10. Exactly.

People talking about trying "POWs"- for nothing more than acting in a war- need to brush up on their military justice theory.

[stray cat]

5. The problem is POWs are not criminals but prisoners of war - released when the war ends

or by prisoner swaps. The war has no end perhaps but POW isn't a criminal status either.

[MiniMe]

6. Bush decided on combatants as having a status of "other" instead of POWs

That is NOT how Obama is handling them as far as I can see. Bush denied those combatants POW status, and denied them the Geneva Conventions. If this President denies them the Geneva Convention, then I would have a problem.

[Buzz Clik]

7. Geneva Conventions. No exceptions.

[FrenchieCat]

8. I see big long threads about this newstory on this forum....

and would love it if the folks who appear to want POW to be tried in US courts in those threads would vote in this poll.

[IGotAName]

9. POWs tried- for what, being POWs?

My understanding is that honest prisoners of war, those who wear a uniform and attack military targets, are not to be tried at all. They aren't criminals. They can be held prisoner until the "end" of a war, but haven't broken a law under the Geneva Convention.

[FrenchieCat]

12. That never stopped AP and its reporting!

AP Story:
Washington - The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention.

-----------------
AP wants the left to get mad that the Obama administration agrees with the Bush administration that detainees in the Afghanistan theater currently being held have no constitutional rights in the U.S.

As the old saying goes, even a broken clock is right twice a day.
Detainees are nothing more than POWS and are subject to nothing more than the Geneva Convention rules, IMO.

[IGotAName]

19. People who bomb civilians deliberately and then run and hide but are caught are not POWs.

They are not engaging in "war." They are engaging in terrorism.

There is a huge, huge difference, and that's why they're called detainees and treated differently. Whether they have our U.S. Constitutional rights, these Afghans in Afghanistan, I'm not sure. There is a huge slippery slope there, though, you're right. Where ChimpCo went wrong was asserting that, because they're not POWs, they don't get a trial. That's BS.

It's just important that you understand that there is a "legitimacy" to war in its mutuality, and that's why we have the Geneva Convention. You're dealing with something different in terrorism.

[kwenu]

11. I believe Obama is going to do what he says he will until he doesn't.

And I think he is entitled to a reasonable amount of time to make a considered determination as to implementation and pursue his promises.

[Occam Bandage]

13. It depends. Are they actually POWs or not? nt

[FrenchieCat]

15. That's what they are although Bush called them "Detainees".....

Detainee is a term used by certain governments and their military to refer to individuals held in custody, such as those it does not classify and treat as either prisoners of war or suspects in criminal cases. It is used to refer to "any person captured or otherwise detained by an armed force."<1> More generally, it is "someone held in custody."<2>

The word "Detainee" is from the french word : "détenu" and the french verb "détenir". "Détenu" means prisoner in french "prisonnier". In French, a "détenu" is a guilty person, a "prisonnier" is not necessarily a guilty person, for example the prisoners of war or the persons before a judgment.

In wars between nations, detainees are referenced in the Fourth Geneva Convention.
http://en.wikipedia.org/wiki/Detainee

I think that label will be getting a make-over back to POW shortly enough....cause that's really all that they are.

[Occam Bandage]

17. Were they wearing uniforms and operating under a cohesive chain of command?

If they did not have uniforms, did they carry a fixed, distinctive marker visible and recognizable from a distance? Did they carry arms openly, not pretend to be civilians, and obey all rules and laws of warfare?

If "yes" to all, then yes, they are POWs and are protected by both United States law and the Geneva conventions. If "no" to any, then they are afforded no protections beyond the protections extended by United States law.

Unfortunately, there is no standardized international protocol for dealing with non-protected combatants, nor is there any domestic precedent for how non-protected combatants should be tried if they are held on foreign soil. I believe the Obama administration needs to act quickly in determining how it will treat non-protected combatants.

On edit: http://en.wikipedia.org/wiki/Third_Geneva_Convention

[Vattel]

22. This is incorrect.

You say: "If "no" to any, then they are afforded no protections beyond the protections extended by United States law."

Even unlawful combatants are entitled under the Geneva Conventions to humane treatment.

[Occam Bandage]

42. Which United States domestic law is in accordance with.

They are not POWs, so they are not to be offered POW protections.

[mmonk]

49. The Taliban could be considered POW's since they were

soldiers of the Taliban government. Al Queda might could be considered so. The rest are kidnapped Afghans and other nationals and are not (which at one time represented 55% of detainees in Guantanamo). They are civilians.

[Posteritatis]

14. POWs are ipso facto not committing a crime (nt)

[Occam Bandage]

18. I don't think we've captured a POW in Afghanistan in years.

[dcindian]

21. Do you agree then that the Bush administration broke no laws torturing people?

Since they are not covered under the Geneva convention?

[Vattel]

41. They are covered. Occam is confused.

For example, Occam suggests that if one doesn't wear a fixed distinctive sign and carry one's arms openly, one is afforded no protection. But consider the following passage from Article 5 the Fourth Geneva Convention:

"Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be."

Spies and saboteurs do not wear uniforms or carry their arms openly. But they are clearly afforded protection under Geneva even though their protection may not be that of someone who has full POW status.

[Occam Bandage]

44. They are protected, but they are not afforded POW protections. They are afforded civilian

protections, which are governed by domestic law so long as that law is humane. My argument isn't that they're legal non-persons with no coverage whatsoever; it's that they're captured civilians who are not afforded POW status, but rather the lesser protections of civilians.

[Vattel]

45. Sorry, I misunderstood

[Occam Bandage]

43. No. That was a violation of domestic law. nt

[dcindian]

46. Ok that sounds right to me.

The "They are not POW's" is exactly Bush's argument. I am glad you cleared that up.

[Occam Bandage]

47. Well, that's half their argument. The other half is "they aren't civilians either."

International courts have found in the past that all captured persons are either POWs or are civilians; Bush's argument is bogus.

[geek tragedy]

35. No. Some POW's are also criminals. n/t

[Renew Deal]

38. This is correct

I was going to say the same thing.

[dcindian]

20. There are basic human rights issues here.

For our country to deny any rights to a people of another country is wrong. It should not take a treaty for Americans to grant human rights to those they capture.

We should not use some sort of technicality to remove ourselves from the human rights side of the issue.


Nice push poll by the way.

[HamdenRice]

23. Sadly, there are many very uninformed DUers ready to bash Obama for made up bullshit

Prisoners of war have never had access to US courts. They are protected by the Geneva convention.

US citizens have "Constitutional" rights, as do aliens who are on US soil.

A lot of people are extremely confused about what is going on. Obama is ENDING extraordinary rendition, not continuing it. But "rendition" has always been part of the CIA/Military tool kit, and that simply means capturing someone overseas.

The difference between rendition (legal) and extraordinary rendition (illegal), is that rendition brings the person to trial in some criminal court, and if that court is a US federal court then the prisoner has "Constitutional" rights through the criminal justice system and because that person is on US soil.

Extraordinary rendition, created by the Bush administration, captures people and renders them to be tortured and/or holds them indefinitely without trial.

Obama had announced an END to extraordinary rendition.

http://www.harpers.org/archive/2009/02/hbc-90004326

[uponit7771]

24. Freepers with high post counts IMHO, they want to tear down the netroot base

[rug]

25. Constututional law professors agree with you.

"There is no real middle ground," says John Yoo, a constitutional law professor at the University of California at Berkeley School of Law and a scholar at the American Enterprise Institute. He says the choice is stark: "Is there going to be judicial review over this subject, or not."

http://www.csmonitor.com/2004/0420/p01s02-usju.htm

[mmonk]

28. Not completely that clear cut. In Afghanistan, we had our allies

sweep up people or turn people in for bounties that were not engaged in acts of war against us. We then mixed up both prisoners from the Taliban (which were that country's military), al Queda (which were a terrorist organization), and people unrelated to either, and denied them all the Geneva convention protocol.

[HamdenRice]

29. And that's the point. That's why human rights organizations applaud Obama

In the pre-Bush era, people were either criminal defendants or combatants/prisoners of war. One or the other. You got Constitutional protections in you were a criminal or Geneva protections if you were a combatant.

Bush said there were people who were neither, and that he could therefore do anything to them.

Obama is restoring the old system that is recognized in international law. If you are accused of being a combatant, then you have international legal rights to some form of due process to show you were not a combatant, and those people who were "swept up" will now be able to show that they weren't combatants. But that doesn't mean they get "Constitutional" rights.

[mmonk]

31. The Geneva Convention is a Constitutional right for POW's.

The others were taken to US soil (leasehold estate in Cuba) by the US. I think those taken away from their homeland should be realeased or provided due process in our courts or an international court. A military tribunal for them is suspect.

[HamdenRice]

32. Those taken to Guantanamo probably will get US federal court process

But that's because we took custody of them onto a US territory. Geneva is NOT a Constitutional right for POWs. It's a treaty right and international human right under international law. Calling it a Constitutional right is mislabeling it.

[mmonk]

33. The Constitution recognizes that international right. Therefore,

they can't be denied it by law nor declaration.

[HamdenRice]

34. You analysis is wrong

"Constitutional rights" refers to rights under the Constitution, especially the Bill of Rights. Those rights are then fleshed out in Supreme Court and other legal decisions, for example, in the area of "criminal procedure" as they apply to criminal defendants.

POWs do not have Constitutional rights at all. They do not have rights to have their cases tried under federal criminal procedure.

They have rights by treaty and by international law. The fact that treaty law is made federal law by the constitution does not make those rights Constitutional rights.

[mmonk]

36. Whatever. The Constitution says it is US law therefore, it is a right under

the Constitution because it is recognized as rights under US law. It was ratified. It is true that it isn't part of the Bill of Rights. Violations are against US law. We're arguing over semantics. Check Article Six of the Constitution.

[HamdenRice]

40. By your logic, the Bush tax cuts are "Constitutional Rights" as are a GSA purchase of a lap top

The Constitution does several things. It establishes the government. It tells how laws, including treaties, are passed. And it establishes fundamental rights (free speech, criminal procedure rights, religious exercise, press freedom, etc.) in the bill of rights.

You are confusing the fact that the Constitution tells the government how to pass laws and make expenditures, with Constitutional rights.

By your logic, the fact that the Constitution tells the Congress how to pass tax laws, makes each tax law, including the Bush tax cuts, a Constitutional Right. But your right to be taxed at a certain level pursuant to a current tax law is not a Constitutional right just because the method for passing that tax law is in the Constitution.

Same with treaties.

Heck the Constitution says that the executive can spend money that Congress appropriates. By your logic, the purchase by the General Services Administration of a lap top computer for a low level bureaucrat would be a Constitutional right because the appropriation was made pursuant to the Constitution.

The prisoners in Afghanistan simply do not have Constitutional rights. That's absurd.

[mmonk]

48. I'm just going by article six of the constitution in that

the Geneva Convention is the law of the land. If they are not prisoners of war, then try them in some other manner.

[mmonk]

50. Generally speaking, foreign nationals who are allowed access

to US courts have been allowed rights generally associated with citizens. The Constitution contains much much more than the function of government. It contains the Bill of Rights which the states would not sign until they were hammered out in the constitutional convention.

[mmonk]

37. Article Six of the Constitution:

Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It also validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.

[mmonk]

26. It depends on what is meant by POW's. POW by war or POW

by the precept of war on terror.

[Exilednight]

27. I vote OTHER........

Detainees should be treated according to the Geneva Convention, but let's say that we actually capture bin Laden. If this were to happen, then we should have enough faith in our justice system to bring him to American and put him on trial.

[mmonk]

30. What you are missing is that not all prisoners we got from the

Afghan theater were engaged in war against us. Over half of the prisoners gathered there were gathered through bounty and transferred with Taliban (POW) and al Queda suspects and sent to Guantanamo Bay.

[Spazito]

39. There is a distinct difference in why the decision to exempt

captured Afghans from the Charter of Rights and Freedoms and that is we do NOT run camps to house them. They are captured and turned over to Afghan authorities.

The "POWs" referred to in the article are those held by the United States in camps run by the United States. The question I have is: Are the camps run by the United States in Afghanistan defacto US territory or is the US merely contracted by the Afghan authorities to run the camps? I believe the camps run by the US in Afghanistan are defacto US territories as the Afghanistan authorities have NO say in what happens in them.

If they are, by my take, defacto US territories, then the decision by the USSC regarding the rights of detainees at Guantanamo Bay (POWs, as is used in the truthout article) would apply equally to those held in US camps in Afghanistan, imo.

[lunatica]

51. POW is not the same as terrorist so I believe we're the criminals when

we occupy other countries and start throwing our weight around about rights regarding those who resist us. But that's just me. I think our hubristic expansion into Empire and our self-righteous sanctimonious attitudes are criminal behavior. Invading entire countries to find one man doesn't sit right with me because many hundreds of thousands always seem to have to die for our cause. Using our military might to catch one flea is stupid. We overkill and then wonder if we shouldn't throw more weapons at them.