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Topic:
Civil liberties and the war on terror
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Kimball_Kinnison
Registered:
Oct '01
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Date Posted:
10/8/07 8:28pm
Subject:
RE: Civil liberties and the war on terror
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dizfactor posted:
 If I made a home video of myself and my friends declaring war on China, does that make me capable of waging war on China? Should China consider itself to be at war with me, were I to do that? Would the Chinese government be negligent if it were to choose not to go onto a war footing when faced with the terrifying threat of me with a manifesto and a videocamera?
I'm not doubting anyone's intent, but intent does not equal ability.
There is a rather big difference between you and your friends and bin Laden. Have you and your friends already carried out a massive terrorist attack on Chinese soil? Have you helped engineer attacks on Chinese military installations or embassies? Bin Laden and Al Qaeda have done that with regard to the US.
Kimball Kinnison
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Mr44
Registered:
May '02
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Date Posted:
10/9/07 2:14am
Subject:
RE: Civil liberties and the war on terror
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Ikrit, JF asked a fair question that didn't need a DoD copy-paste answer
In a way it did though.
especially since we know key individuals like Mamdoub Habib were captured from a bus stop in Pakistan before being interred at Gitmo. happy And released without charge. Whoops, or just clear cut proof that we should not sink to their level?
This is why, especially with a topic like this, it pays to start from a general sense and become more focused, instead of starting with a specific example and working backward. We already know that international law recognizes that a state of conflict doesn't necessarily stop at arbitrary map lines, but rather it's dependent on the actions being examined.
Let's say Country A and Country B are fighting. If Joe Smith is caught engaging in an activity that furthers the goals of County B and/or is detrimental to the effort of Country A (or vice versa), he could be considered to be a party in the conflict due to his own action.
It's not a new concept, and similar wording has been included in every document since the original Hague of 100+ years ago.
Now, the point is that Mamdouh Habib's situation could certainly be examined, but the matter of where he was captured doesn't have a special relevance on its own, nor would it automatically make him any less of a participant in a conflict. What it illustrates is more a limitation contained within the treaties, and represents why this same topic keeps going around and around.
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Jediflyer
Registered:
Dec '01
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Date Posted:
10/9/07 8:10am
Subject:
RE: Civil liberties and the war on terror
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Mr44 posted:
Ikrit, JF asked a fair question that didn't need a DoD copy-paste answer
In a way it did though.
But that was basically my point. The only reason we have to believe that they were captured on the battlefield is because the administration says so. However, we know of many cases (Ender's for example) where these people were sold out to us from Pakistan because they were having unrelated conflicts. We also know that many of those held in Guantonamo have been released 3-4 years after their capture.
All of these things don't add up.
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Lord_Vivec
Registered:
Apr '06
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Date Posted:
10/9/07 8:29am
Subject:
RE: Civil liberties and the war on terror
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Now, the point is that Mamdouh Habib's situation could certainly be examined, but the matter of where he was captured doesn't have a special relevance on its own, nor would it automatically make him any less of a participant in a conflict. What it illustrates is more a limitation contained within the treaties, and represents why this same topic keeps going around and around.
To us it may not make a difference, but to him it could be the difference from getting his genitals electrocuted or not being interrogated because he may not actually know something 
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yuna_kenobi
Registered:
Aug '06
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Date Posted:
10/9/07 8:39am
Subject:
RE: Civil liberties and the war on terror
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just pointing out one thing,
isn't one of your civil liberties the right to life under a government that protects you to the very best of its ability?
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Jediflyer
Registered:
Dec '01
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Date Posted:
10/9/07 8:43am
Subject:
RE: Civil liberties and the war on terror
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isn't one of your civil liberties the right to life under a government that protects you to the very best of its ability?
No.
A civil liberty is a category of action the government is restricted from taking.
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Mr44
Registered:
May '02
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Date Posted:
10/9/07 11:56am
Subject:
RE: Civil liberties and the war on terror
- Date Edited:
10/9/07 12:01pm (1 edits total)
Edited By:
Mr44
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However, we know of many cases (Ender's for example) where these people were sold out to us from Pakistan because they were having unrelated conflicts. We also know that many of those held in Guantonamo have been released 3-4 years after their capture.
Yes, but the point is that there isn't a recognized requirement for anyone to be "captured on the battlefield" for such capture to be valid. What matters would be the actions of the person which made them a part of the conflict.
Slobodan Milosevic, as an example, was captured by military forces inside of his vacation home and nowhere near a Yugoslav "battle site." Milosevic could have been sitting there drinking tea and reading the Sunday paper, but that setting alone wouldn't have made the military capture any less valid.
All I was pointing out is that claiming that "so and so was captured at a bus stop and not on a battlefield" has no bearing on its own. The person's actions would have to be examined.
As far as being released goes, the only requirement specified in the Geneva Conventions is that the captured subject be released when the hostilities are concluded. The unexplored territory comes about when the subjects themselves don't qualify for such protections.
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Ender_Sai
Title: Manager Emeritus
Registered:
Feb '01
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Date Posted:
10/9/07 2:50pm
Subject:
RE: Civil liberties and the war on terror
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I'm sorry Mr44, perhaps you're familiar with Mr Habib?
Whereas Milosevic was implicated in committing jus cogens crimes, Mr Habib was never charged with anything and was snatched due to overlapping political interests with Pakistan and the US.
He was never directly shown to be involved in any conflict. In what could otherwise be called "unthinkable" circumstances, he was ostensibly detained for nothing.
E_S
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Mr44
Registered:
May '02
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Date Posted:
10/9/07 3:13pm
Subject:
RE: Civil liberties and the war on terror
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See, but that's the response you should be supplying. You are absolutely correct about Milosevic, but the fact that he wasn't participating in battle operations had nothing to do with his capture. Milosevic himself never recognized the authority of his capture, but his own personal feelings didn't matter.
Originally, all you simply threw out was "captured at a bus stop before being interred at Gitmo," the implication being that such capture was not legitimate based on that setting.
Being familiar in international law, you already know that there is no requirement that says that the parties involved in a conflict can only be captured on a battlefield. Not only that, but the Geneva Conventions themselves don't require any charges to be filed. That's why the conventions were adopted in the first place.
Habib did engage in intelligence collection for the Taliban, which most certainly would have made him directly involved in that conflict. (Operation Enduring Freedom)
Habib has also claimed that he was tortured by Pakistani officials, Australian officials, US officials, and Egyptian officials. In short, he claims that he was tortured by every single official who came in contact with him, all of which have been denied.
Of course, we'll never know what really happened, but his own claims aren't any more legitimate that the claims made by the government against him. (the reverse also being true)
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Ender_Sai
Title: Manager Emeritus
Registered:
Feb '01
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Date Posted:
10/9/07 4:22pm
Subject:
RE: Civil liberties and the war on terror
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If he was cuplable of anything, surely charges would have been laid?
Or: Why you don't suspend habeas corpus?
Habib was never charged, so the notion he or Milosevic's recognition is required is unrelated and a complete red herring. Under international law, there was clear enough evidence to indicate Milosevic under the 1998 Rome Statute of the ICC which collated existed jus cogens resolutions under a broad legislative umbrella.
Habib was never charged under any of the whacky non-laws used by the US at Gitmo. He was released, in fact, without charge. I am also willing to believe he was subject to torture in part, not because I like the guy, but because Gitmo is known for it.
In any event, what I am outright saying is that Mr Habib was detained on spurious grounds and the lack of charges indicates that an overzealous political direction was being undertaken using new policies as a justification.
I look forward to more examples which ignore apparent faults in the counterterrorism policies of the US and look to shoehorn in the Balkans.
E_S
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GrandAdmiralStrife
Title: FanForce CR
Austin, TX
Registered:
Jun '01
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Date Posted:
10/9/07 8:58pm
Subject:
RE: Civil liberties and the war on terror
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Civil liberties are overrated, and the Constitution/Bill of Rights are outdated relics.
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Lord_Vivec
Registered:
Apr '06
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Date Posted:
10/9/07 10:02pm
Subject:
RE: Civil liberties and the war on terror
- Date Edited:
10/9/07 10:03pm (1 edits total)
Edited By:
Lord_Vivec
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GrandAdmiralStrife posted:
Civil liberties are overrated, and the Constitution/Bill of Rights are outdated relics.
lol, pre-911 mindset
Edit: you were kidding, right? I can never be sure these days.
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Mr44
Registered:
May '02
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Date Posted:
10/9/07 10:04pm
Subject:
RE: Civil liberties and the war on terror
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But see, E_S, this is why topics like this always break down.
You're familiar with international law enough to already know that the law of land warfare doesn't contain provisions for habeas corpus in the criminal sense, nor are specific charges required to be filed against subjects captured in the course of belligerent* action. You're applying a standard that doesn't exist in this area. You're doing so to make a point, but your focus is wrong. The entire reason why the original Hague agreements were created, and why the Geneva Conventions later refined those ideas is because armed conflict doesn't fall under regular criminal rules.
In your own country, tell me why the Australian Intelligence Service has different operating perimeters than the NSW police? Or under what authority the ADF deploys under when it engages in a military operation?
I don't mean in the sense of discussing operations, but the authority they both operate under. The ASIS, for example has extensive leaway in collecting data against persons. The ASIS can monitor foreigners with almost no restriction, and simply requires Minister approval to monitor national Australians. The NSW police have to operate under an assumption that is similiar to the concept of probable cause that exists in the US. The NSW police couldn't just snatch a person unless it's part of a valid criminal arrest. The ASIS has different authority.
If someone were to point out that the ASIS was wrong in not using probable cause, that person's conclusion would be incorrect, because probable cause doesn't apply to the ASIS in the traditional sense.
Or if someone were to ask why the ADF didn't obtain search warrants to conduct safety sweeps during something like the Timorese mission, it's because the ADF isn't required to. The ADF's deployment would fall under the law of land warfare, and not Australian domestic criminal law.
The topic here is no different. Habeas corpus does exist as a legal concept, but it's not absolute under the laws of land warfare, which exists under a different authority, and which has different protections. Neither concept is any more "correct" or "incorrect" in relation to the other, but they simply exist under their own authority.
*=belligerent being used here in the recognized military use of "subject engaged in hostile action against another."
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Ender_Sai
Title: Manager Emeritus
Registered:
Feb '01
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Date Posted:
10/10/07 1:09am
Subject:
RE: Civil liberties and the war on terror
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Mr44, don't you get tired of constantly dancing around the issues and trying to bog people down int he details so they give up?
You're aware Mr Habib was, on the balance of probability, wrongfully detained, but I can't figure out why you can't suggest this. Nor why you can't `consider the prospect that Gitmo might actually be perhaps one of the biggest miscarriages of justice simply because the fanatical zeal with which the Administration responded to 9/11 was perhaps less rational than one might hope for.
Even the courts are expressing grave misgivings, though I'm sure you'll counter this with more obfuscation and an unrelated commentary on the Balkans.
E S
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Mr44
Registered:
May '02
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Date Posted:
10/10/07 2:39am
Subject:
RE: Civil liberties and the war on terror
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Really? For someone who can launch into a pages long description about jus cogens, I'd imagine that you of all people would recognize that the devil is in the details. It's the Senate, we both thrive on providing details.
Although you didn't answer my questions. What authority does the ADF operate under, compared to the authority the NSW police operates under, compared to the ASIS? I'll grant that it is a slightly rhetorical question, because I know we both already know the answers.
But this is why I'm so puzzled when you make claims like "Habib was captured at a bus stop" or "he was released without charge" and letting those statements stand on their own.
It's not a win-loose type of debate we're currently having. At the basic level, international law allows a nation to detain a person involved in a conflict against it. There's no requirement to bring formal criminal charges against the person, nor to provide for habeas corpus relief. I know you already know this because you've brought it up before. This is where the details matter.
Specifically relating to Mr Habib, I don't buy into the "Habib taught terrorists karate" nonsense and so on, but the man collected intelligence in Afghanistan that was used by the Taliban against NATO forces. That alone qualifies as a hostile act under international law, and that alone would warrant his capture. Everything else are just claims and counter-claims that we aren't privy too.
Habib's strongest claim of torture was that he was tortured in Pakistan under the control of an Australian intelligence officer, long before he was ever sent to Gitmo. The allegations against the US and Egypt were added on. Was he tortured by everyone he came in contact with? It's possible, but unlikely.
Although as an aside, the BBC article you linked to described that a judged ordered Rahman to be kept in Gitmo so he wouldn't be tortured in Tunisia. Shouldn't that be the other way around?
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