Circular Reasoning 101

Al Qaeda's "worst of the worst" do not deserve Geneva Convention protections.
The "worst of the worst" are held in Guantanamo.
Detainee "X" is in Guantanamo.
Therefore, detainee "X" does not deserve Geneva Convention protections.
He is al Qaeda.

Trust us.

Who is to say which detainees are al Qaeda and which are innocents? By the administration's spokespersons, there are no innocents there. And indeed, some of the Guantanamo prisoners may be the worst of the worst. A cunning few so far released have returned to the fight, as the Washington Post reported as early as October 2004.

And such reports further justify for the administration harsh treatment of "enemy combatants": designated such by the executive branch and deserving of indefinite detention. Without review. Without oversight. And without access to legal challenge by any due process Americans would recognize from our own system of justice. Those released for having no intelligence value or for posing "no further threat" receive no acknowledgement of innocence, no acknowledgement of U.S. error and no apology. Detainees are guilty by virtue of being detainees.

The Supreme Court's ruled last week in Hamdan v. Rumsfeld that the administration's tribunals can go forward, but not by it's own ad hoc rules (that allow, among other illegal practices, the admission of coerced evidence). The strictures of the Geneva Conventions apply, the court decided. The jettisoning of the accused's basic rights cannot be justified on arguments of "practicality." The tribunals must conform to law, either the Uniform Code of Military Justice (as JAG lawyers have argued) or to new rules set by Congress.

SCOTUSblog reviewed the ruling this way:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

As two callers to NPR's "Talk of the Nation" asked, critics of the ruling ask how stateless actors such as members of al Qaeda merit protection under the Geneva Conventions. It's stunning how people have bought into the argument that anyone held in Guantanamo is, by definition, a member of al Qaeda.

The Supreme Court's ruling addressed the nature of the Guantanamo tribunals (as well as the applicability of Geneva standards). But no charges have even been made against many Guantanamo detainees. So let's review a few cases of Guantanamo's "stateless actors."

Chinese Muslims sent from Guantanamo to Albania
Lawyer plans trip to check on clients after legal battle ends
By Charlie Savage, Globe Staff May 6, 2006

WASHINGTON -- The US military said yesterday that it had transferred five Chinese Muslims from its Guantanamo Bay prison to Albania, apparently ending a long legal fight over their fate on the eve of arguments before a federal appeals court.

The five men, who all belong to an ethnic group known as ''Uighurs," had been imprisoned at the base for more than four years. More than a year ago, a military tribunal had determined that none of them had been enemies of the United States after all, and cleared them for release.

However, the US could not send them back to their homeland because the Chinese government has a history of persecuting Uighurs, who have been seeking greater autonomy from the central government. No other country would take them in, either, and they remained stuck in the American prison.

Last December, a federal district judge ruled that it was illegal for the Bush administration to continue to incarcerate the men because it had no basis for holding them.

No lawyers and thin accusations

Newsday, June 15, 2005

... a German Turk, Murat Kurnaz, was held in part because he knew another man who "engaged in a suicide bombing" -- except, Kurnaz's lawyer says, the man is alive.

Cases like Kurnaz's, lawyers say, show how thin the evidence can be. He was told at his tribunal he was being held in part because he was friends with Selcuk Bilgin, who "engaged in a suicide bombing." Kurnaz said he knew of no ties Bilgin had to terrorism, and the tribunal gave no evidence that he did. Not only is Bilgin alive, but Kurnaz's lawyer, Baher Azmy, has a letter from German prosecutors clearing Bilgin. On top of that, classified portions of the proceedings, later revealed in a briefly declassified filing, indicated Guantanamo's intelligence task force thought Kurnaz had no value to the U.S.

From an NPR interview regarding this case:

HITT: The reason they give for holding him? A friend of his named Selcuk Bilgin blew himself up as a suicide bomber in Turkey in 2003. That’s 2 years after Kurnaz got picked up.

AZMY: So, setting aside the sort of remarkable legal proposition that one could be detained indefinitely for what one’s friend does, it’s actually preposterous in that a simple Google search or a call to the Germans would have revealed that his friend is alive and well, and under no suspicion of any such thing.

HITT: You heard that right. Kurnaz is in Guantanamo because two years after he got picked up, a guy he knows became a suicide bomber. Except that he didn’t become a suicide bomber and is currently living in Germany.

And this. Abdullah Al-Noaimi was interviewed this spring; he is one of three Bahrainis released without comment last November after four years in Gitmo. He and others, he said, had been turned over for cash. He sounded like an American kid:

HITT: This is not how he thought things would go with the Americans. In fact, back when he was being held in a Pakistan jail, when he found out Americans would be taking them, he was relieved. He told the other prisoners it was good news. He knew America. He knew how the people were.

ABDULLAH: I lived in so many places, like Europe and England and Germany and France, but the difference was in the States, everywhere you go, they welcome you. Like, when you go into supermarkets, everybody goes like, “How you doing?” and everything. That’s the thing that was in my mind. I was like, please, oh, everything’s going to be fine. They’re gonna understand.

HITT: So how did he know so much about American supermarkets? Well, in 1994, he came to America for the World Cup finals. In fact, Abdullah’s been here a lot. He’s been downhill skiing in the Midwest. He attended Old Dominion University in Virginia for a while, and has taken other trips, too.

ABDULLAH: And in ’96, I was in Disneyland in Orlando. (Hitt chuckles) And for spring break, I was in Daytona Beach with some of my friends.

HITT: You were in Daytona Beach for spring break?

ABDULLAH: Yeah it was year 2000. Bikers Week. (Hitt laughs) I remember the guys, some guys, standing by the sidewalk holding up the signs for the cars passing.

HITT: Right.

ABDULLAH: Some expressions, “Show us…”

HITT: Oh! “Show us…” Right. Yeah, that expression. The “show us your..”

GEN. RICHARD MYERS: We've got to remember that these are very dangerous people. These are people that would gnaw through hydraulic lines to bring [the military transport plane] down.

As of February, 180 of these homicidal hose gnawers had simply been let loose (not just released into the custody of their home governments), per the DOD's own website. 300 (total) "worst of the worst" have been released as of now, per Sunday's Los Angeles Times. Whether or not those released so far ever had any connection to international terrorism, it is clear that the "process," like much else this administration has undertaken, is not working either well or legally.