Guantanamo Bay

Due to the recent suicides committed by three detainees at the Guantanamo Bay detention facility, the "horrible conditions" at the detention facility are again the rage of discussion.

I wish to try and set the record straight. First I wish to point to an audio link. (See here) a National Public Radio piece where two "experts" from opposite sides of the spectrum were to discuss the conditions at Gitmo. Notice how the discussion quickly turns from the overall conditions at Gitmo to interrogation techniques. Why is this? Is it because it is in THAT area improvements to treatment of prisoners is still required but no valid complaints about overall conditions can be fielded? This piece also includes an interesting discussion about just how long the detainees can be held.

(See here) an ABC News piece that reports: "Detainees are enjoying better treatment at the U.S. prison camp at Guantanamo Bay, and the Red Cross is satisfied with its access to them, the humanitarian agency's chief said on Tuesday."

(See here) an Armed Forces Information Service piece that reports: "Gone are the days of concrete slabs and open-air chain-link enclosures in Camp X-Ray. Hood explained that Camp X-Ray was a hastily built structure to deal with a rapidly changing situation in the war on terrorism and that the facilities there were never meant to be used for long-term detention."

(See here) a WAVY piece that reports: "Even as much of the international community presses for the closure of the Guantanamo Bay detention camp, an Afghan delegation found conditions there "humane.""

I sure wish that anyone who wants to discuss the conditions at Gitmo at least tried to stay abreast of current conditions before they attempt to discuss them. Yes, conditions at first might have been a little miserable but they have changed and improved. Yes, valid criticism (at least in my opinion) can still be levelled about interrogation techniques, but apparently not about overall conditions themselves.


Blogger Michael said...

Missing the point.

- indefinite detention
- held without charge
- no access to independent lawyer
- no access to friends or family

If you where held in those conditions for 4 years even in the penthouse suite of a luxury hotel, you would probably have thoughts of suicide as well.

Michael Tam

6/23/2006 09:41:00 PM  
Blogger Little David said...

Perhaps I would (have thoughts of suicide).

However I do not think the conditions you list are any different from those experienced by previous Prisoners of War in previous conflicts.

6/24/2006 09:36:00 AM  
Blogger Michael said...

Then perhaps you should brush up on the Geneva Conventions then before declaring that Guantanamo Bay follows them in fact or in essence.

Michael Tam.

6/24/2006 09:18:00 PM  
Blogger Little David said...

If you are such an expert and not the one needing to brush up, surely you will have some valid examples you can site off the top of your head. The 4 conditions you listed as being objectionable are not valid complaints. Hopefully any links you provide this time are current.

Of course in the past you have made the statement that if the prisoners were treated under the Geneva Convention, this would mean they must be released. So let me quote the Fourth Geneva Convention of treatment of prisoners as contained in Article 118: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

Please note Article 4 lists some conditions for combatants to qualify for treatment as Prisoners of War. These include the requirements contained in paragraph (2): "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

Now it is my opinion that the prisoners should enjoy treatment as Prisoners of War, however the argument the Dubyah Bush administration makes against such treatment is not without merit.

I also wish to point out that any members of coalition forces that have been captured have not enjoyed treatment in any way approaching the requirements of the Geneva Conventions. Most times they have been subjected to torture and execution.

That last point is a valid consideration because one of the reasons Allied Prisoners of War were not subjected to worse conditions then they were (the Germans threatened to summarily execute them) was because Allied powers threatened to treat Axis POW's in the same manner if this happened.

6/25/2006 10:04:00 AM  
Blogger Michael said...

Relevant parts of the convention here.

I also wish to point out that any members of coalition forces that have been captured have not enjoyed treatment in any way approaching the requirements of the Geneva Conventions. Most times they have been subjected to torture and execution.

Yes, and that is a blight on the "insurgents" in Iraq and Afghanistan. However, that is beside the point as the US is a signatory to the conventions, Part I, Article II (excerpt):

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.

The problem with the tribunals in particular, Part I Article III, 1 d:

[the following acts are and shall remain prohibited at any time and in any place whatsoever] the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The military tribunals are (were) not a "regularly constituted court" and certainly did not "afford all the judicial guarantees which are recognsied as indispensable by civilized peoples".

For a long time, the US needed to be convinced of Article 9 (excerpt):

The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross...

And Part II, Article 13 (excerpt):

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.

The US almost certainly has not complied with Part III, Article 17 (excerpt):

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

The US has not complied with Section 5, Article 71 (excerpt):

Prisoners of war shall be allowed to send and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war, the said number shall not be less than two letters and four cards monthly...

Again with the military commissions, Article 84 (excerpt):

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized...

Article 118 (excerpt):
Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

US vs the Taliban Govt of Afghanistan is over as is the US vs the Saddam Husseine Govt of Iraq. In both countries, the US has installed a friendly government. The continual civil war/insurgency in those countries is not a reasonable reason to continue to hold prisoners of war from those two conflicts.

The "war on terror", BTW, doesn't really count. I quote the brilliant Gore Vidal:

Little Bush says we are at war, but we are not at war because to be at war Congress has to vote for it. He says we are at war on terror, but that is a metaphor, though I doubt if he knows what that means. It’s like having a war on dandruff, it’s endless and pointless.

Michael Tam

6/25/2006 08:11:00 PM  
Blogger Michael said...

As before, Google is your friend.

The supposition that the US has been following the substance or even the spirit of the Geneva Conventions with regards to the conventions on treatment of prisoners of war (as applied to the detainees) is simply ludicrous. At present they are not treated as POWs and they certainly have been denied the status of POWs.

The argument that many of those detained do not fit the definition of a prisoner of war is not without merit. That, however, is not justification for indefinite detention without charge.

Michael Tam

6/25/2006 08:16:00 PM  
Blogger Little David said...

The brilliant Gore Vidal. Heh heh, well then according to Mr Vidal, we were not "at war" in the Korean War or the Vietnam War either. Chuckle. Simply ludicrous.

If the WARS (and I insist on so describing them as such) in Afghanistan and Iraq are over, then why are coalition (and it is indeed a broad coalition in Afghanistan by the way) forces still required to combat the insurgents and prop the ELECTED governments up?

The US is permitted to hold Prisoners of War until the end of active hostilities. "Active hostilities" are still present in both theatres. Nowhere does the Geneva Convention require that the definition of "active hostilities" must meet the requirements Gore Vidal insists on.

As for tribunals, let me quote from Article 5:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

In past conflicts, such as WWII, military tribunals have been used.
Again, the Dubyah Bush administration position is not without merit. Cases which will define what a "competent tribunal" is are currently winding their way through the courts. Dubyah recently stated he is waiting for guidance from the Supreme Court on one such case before he acts. The Dubyah administration is not being allowed to dictate, the Supreme Court is going to get its chance to get in on the action.

As for torture, you will not get any arguement from me. We should not be torturing ANYONE except under the most compelling of instances, and nothing approaching the instances justifying the use of torture has been approached.

As for the sending and receiving of cards and letters. I am not sure of the exact numbers, but the ICRC has been delivering correspondence both to and from the prisoners. The correspondence has been subjected to censorship, however this is specifically permitted under the Geneva Conventions. Some prisoners have not enjoyed such correspondence, however these prisoners have not been able to provide addresses for those with whom they wish to correspond.

As for your complaints about Article 9 and ICRC visitation, that might have been true, however the ICRC is now satisfied with conditions and access and I provided a link in my original article to support this. If this was a problem, this problem has been solved, so why do we need to continue to complain about it? The ICRC at least is no longer amongst those complaining.

6/26/2006 12:26:00 PM  
Blogger Little David said...

Ooops, one rebuttal of my own post I will provide myself.

The ICRC has only said that conditions have "improved" and has not stated conditions are "perfect". However the ICRC does seem to think that their access is adequate and that their concerns are seriously considered and dealt with by those running the Gitmo camps.

6/26/2006 12:37:00 PM  
Blogger Michael said...

Cards and letters. I have one specific example. David Hicks. Australian. No contact except through his excellent lawyer.

By all reasonable definitions, the wars in Iraq and Afghanistan are over. The US has no plans of occupation of either Iraq or Afghanistan. If the US simply withdrew from the arena, there is no formed force "waging war" in the International legal sense with the US. Like it or not, the US and other coalition forces are in those nations at the "invitation" of the new Iraqi and Afghan governments.

The governments of both the Taliban and Saddam are over, and have been for years.

The continuing "insurgency" in both nations are by definition civil conflicts.

The problem with YOUR definition of active conflict is that if there is civil unrest in Iraq for the next 100 years, the "war" then has never ended. If the Guantanamo detainees were held as POWs, then they need to be released either back to their country of origin or a suitable neutral third nation with all expediency.

As for your argument on the "competent tribunal" I think you argued against yourself.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

That is, the detainees should be treated with full POW status if their status is not clear until proven or shown otherwise (by the competent tribunal). If there is a question about their status that needs to be put through the courts, they should in the interim be held as POWs (which is not what is happening).

Yes, military tribunals have been used before. Indeed, the Geneva Conventions state that they are preferable to a civilian court were applicable. However, the criticism worldwide is that the military tribunals in Guantanamo are unfair and deny fundamental legal rights for the detainee. Bush and Co. have more than once stated that the detainees are not entitled / do not deserve these rights.

As for Red Cross, thankfully that has at least been addressed. I agree with you that generally the physical conditions in Guantanamo Bay are for the most part adequate.

In any case, the crux of my criticism of your piece and recent axillary postings:

You wrote here on 20 June 2006 (same date as your original article on your blog):

While Dubyah Bush insists on labeling those detained as "illegal combatants" they are being treated as Prisoners of War...

...What conditions are the prisoners subjected to that do not conform to the Geneva Conventions on detention of Prisoners of War? That is other then unreasonable requirements like providing every prisoner with his own personal laboratory?

I think that it is patently clear that the detainees are not held as prisoners of war and are certainly denied the rights under Geneva Conventions for prisoners of war. It is madness to claim otherwise.

I believe that the detainees SHOULD be held as POWs and apparently you agreed:

America has the right to detain combatants. These combatants should be treated like Prisoners of War.

If we then do follow the Geneva Conventions (which is what the "Allies" want the US to do with regards to Guantanamo), then the conclusion should be obvious.

European criticism and calls for the closure of the camp is not "anti-Americanism" as oft stated by many right wing nationalists in the US. There is a strong argument that the detainees should be afforded their rights as POWs under the Geneva Conventions even if they do not necessarily satisfy the criteria. Even if they are not POWs and fall into a legal "no man's land", the indefinite detention with charge must stop. As per the "muted" official UK line, it is an "anomaly".

Michael Tam

6/26/2006 10:13:00 PM  
Blogger Michael said...

That would be "...the indefinite detention without charge must stop."


Michael Tam

6/27/2006 07:07:00 AM  
Blogger Little David said...

Ahem, in my opinion, "by all reasonable definitions" the wars in Afghanistan and Iraq are not over.

Just because the coalition forces are in both countries by "invitation" does not prove what you think it does. This was true in both the Vietnam and Korean wars. Surely you would agree there were "Prisoners of War" in both these conflicts?

You seem to object to "my" definition only because it might justify long term detention of the prisoners.

As for David Hicks, I have read reports which indicated his family is now receiving at least some correspondence from him.

Yes, I do hold the opinion the prisoners should be treated as Prisoners of War. However I do not think that their being thus treated is going to result in all the changes you think it would.

6/27/2006 08:54:00 AM  

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