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Guantanamo Detention Discussion Thread

Discussion in 'Archive: The Senate Floor' started by Ender Sai, Jun 15, 2006.

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  1. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    My unsophisticated view is simply that while I am opposed to the concept of mandatory detention ( mandatory anything really)and particularly the mandatory detention of children, IDC detention takes place during the course of an application process to determine the detainee's status following their illegal arrival in Australia, ie, as they hit our shores without visas and without clearing immigration and customs controls they are all illegal immigrants until their status as refugees or whatever is determined. At the risk of being contradicted, all of the detainees know why they are there, they have broken Commonwealth laws with respect to the legal framework for entering Australia. If not imediately deported on the grounds of an application for refugee status or political asylum they are advised on the status of their applications. The system breaks down when the application process drags on for years. Clearly, spending years in detention is not good for anybody and Australia has not done itself any favours on that front.

    What bothers me with Gitmo, is that anybody can be snatched off the street and held at Gitmo without being presented with any charges or even being advised of the basis upon which the person is being detained. This seems to me to be the critical difference between any comparisons between IDCs and Gitmo. Everyone on this board seems to be arguing over whether the detainees are illegal combatants or enemy combatants or POWs etc etc, but the point is that the detainees need not be 'illegal combatants' or POWs to be detained. In fact, there does not appear to me to be any satisfactory criteria which determines whether a person can or should be detained at Gitmo. Mamdouh Habib appears to be a case in point. He was taken off a bus. He was not armed, was not found in a terrorist stronghold plotting a terrorist campaign or caught in the act of committing a terrorist act. Yet, he was detained and tortured and finally released without ever having a case to answer or even without having broken a single law.

    If someone can satisfactorily explain how this could happen and how it fits within a constitutionally acceptable legal framework then I would be much enlightened.
     
  2. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

    Registered:
    May 21, 2002
    But again, that's the point. No one has said much about the IDC's compared to GitMo at all..

    It's been one of my points since the begiining.

    You've put yourself in the dangerous position of making excuses for all the rapes, fires, riots, and hunger strikes in Australian detention centers while condemning far less in Gitmo. After all, it's only 6 months in Australian camps...(well, except for the ones who have been there 6 years, but Howard says they deserve it...)

    It stings though, when I pull up all sorts of accounts of Australian indiscretions and attempt to paint them as Australian policy because that's not the real picture is it?

    If Alfred McCoy visited Baxter, would he find, in his opinion, a defacto laboratory for torture? It sure meets his criteria. The thing is, McCoy will never visit Woomera, and in fact, he never visited Gitmo, but still based his opinions on that fact.

    How can Lord Goldsmith deliver a personal opinion that says "Gitmo should be closed down because it makes the US look bad," as part of a speech that supports the exact same thing in HM Belmarsh? If Gitmo is making the US look bad, why isn't Belmarsh making the Brits look bad?

    Same international standard, different international opinion.

    You even threw the term gulag around, but in the same breath feign outrage that Australian IDC's would even be mentioned.

    Does Australian policy violate international law? No? Then how does a specific perception reconcile that fact?

    I know. Even though Australian policy doesn't violate the letter of the law, the government should take the "democratic way out" and build luxury apartments for all of it's detainees. Why simply meet the law, when you can exceed it and look that much better?

    But wait, the Australian government might claim such a proposal isn't realistic. They must just be immoral, but it doesn't matter, because it's all based on perception and not what actually exists.

    I know, we can even call it the "Australian war on safety" or other media driven title, and people will magically believe all sorts of things, even if they don't match up to what is actually happening.
     
  3. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    What bothers me with Gitmo, is that anybody can be snatched off the street and held at Gitmo without being presented with any charges or even being advised of the basis upon which the person is being detained.

    But this is simply not true. All the detainees are brought before a review board which outlines their status. Some detainees have been before two different panels.

    It's no different than what you posted here: "ie, as they hit our shores without visas and without clearing immigration and customs controls they are all illegal immigrants until their status as refugees or whatever is determined."

    That only applies if one assumes that every foreign national is aware of Australian law. If they aren't, it could very well look like to them that they are snatched off the streets for no reason.

    Ironically, the man you mention- Mamdouh Habib HERE, is currently accusing the New South Wales Police of abusing, torturing, and assaulting him. Claims which he has repeated before.

     
  4. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    But Mr44, I think it's more a case of you using IDCs as a red herring because you figure my moral and longstanding opposition to Gitmo, coupled with my current job, means I'll see you perspective issue and agree with you.

    But the two are simply not the same. You have immigration detention in the US, and yet the FBI haven't been astounded by the counter productive practises (such as psychological torture/abuse) they've seen there.

    Moreover, in all of this, you've avoided dealing with the specific allegations, from within and outside the US government, using the very weak "but others have bad things too" defence.

    Unless you're saying US immigration detention facilities are the same as Gitmo which are the same as our immigration detention, then I'm not sure how to respond.

    E_S

     
  5. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    I'm not making excuses for anything Mr44 - I believe long term detention leads to all of the things you mentioned above and I obviously don't condone it or wish to rationalise it. I think detention is reasonable only if the application process does not drag on for years. Long term detention leads to riots and hunger strikes and is an appalling practice one which Australia should be ashamed. Having children detained in such an environment is also appalling.

    But, being "brought before a review board which outlines their status" is miles away from the legal framework of detention in IDC - the illegal immigrants have broken the law. They haven't committed crimes worthy of punishment but they have broken immigration laws.

    What laws did Mamdouh Habib break to justify his detention in Pakistan, his rendition to Egypt and then detention at Gitmo for three years?

    I'm no advocate for Habib, but, at the time of me typing this post he has not been charged with any crime nor has he broken any law, immigration, criminal, traffic or otherwise. It's all good to be suspected of terrorist activities, but that does not justify three years in detention.

    I don't know much about the other detainees - perhaps they were all caught firing RPGs at US troops - I don't know. I do know that Habib was snatched off a bus during an altercation by a third party with authorities in Pakistan.

    Mr44 - I'm more concerned about how people come to be detained in the first place. The conditions of places like Gitmo and Woomera and Baxter are all of concern as well. But, unless somebody can explain to me how a person can be detained for three years and then released without charge or any evicence of wrongdoing then I believe places like Gitmo make the US appear foolish in the same way that the activities that went on in Abu Ghraib make the US appear foolish.

     
  6. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    And that, is the point.

    If you are in Australia illegally, either by overstaying a visa or by entering illegally, you have reasonable forseeability that you'll end up in jail, and as this article indicates, most people are willing to take that chance.

    Can the same be said for people like Habib, or Hicks?

    Hicks, I believe, has many things to answer for but he is not, at all, answering for them as he is; and for Habib to face three years in Gitmo with no charge? o_O

    I notice you neither defend nor dispute these incidents Mr44, which is troubling.

    E_S
     
  7. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    Ah, but you are missing my point then. I'm only condemning or supporting these examples in realtion to the system that they exist in.

    It's perfectly allowable under even Geneva to be "detained, held and then released without being charged..." Because that's what the international community agreed upon. There are dozens upon dozens of examples that fall under this basic premise.

    Australian detainment policy, as harsh as it is, isn't prohibited by national or international law. Since that's the case, then the perception of said events have to exist within that reality. That should have been made clear by all the examples I supplied above.

    Gitmo isn't any different.

    If people are concerned about the actual treatment of detainees-no matter their status or origin- then people should start making those concerns known to their national leaders who would then bring those concerns before the UN as an amendement or separate treaty. Such action would still have to follow the established procedure though.

    Again, why has no one even mentioned the BBC article on HM Belmarsh? The US adopted their interrogation techniques from the British, and the same justification for Belmarsh also applies to Gitmo.

    Realistically, the US could simply transfer all of the Gitmo detainees to Belmarsh, where they would literally get the crap beat out of them, and I don't think anyone would care because "it isn't Gitmo.."

    Since the US DOD announced that it would apply Geneva to all of its detainees, even though they don't qualify, why hasn't a similiar announcement been delivered by the British Home Office, or the same UK Attorney General who criticized such a practice?

    Why hasn't the Howard government released a statement saying, "hey, I know we don't have to, but we're going to treat all of our detainees under Geneva as well?"

    The easy answer is because Australian policy isn't covered under Geneva, and that's true. But neither are enemy combatants, spelled out specifically in Geneva. That's the point.

    Because there hasn't been a universal concern, just one directed at the US. If the goal is to improve the treatment of detainees everywhere, turning Gitmo into a boogeyman while ignoring situations that are worse isn't going to accomplish that. Condemning the US for following the letter of the law isn't going to accomplsih that either. Making excuses for one policy while riling against another isn't going to either.

    That's when I'll address my concerns.
     
  8. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    Being a "becaon for democracy" doesn't mean we also have to be the chump of the world

    I think you're wrong on that point. I think being a beacon for democracy necessarily means you become the chump of the world. It may not be fair or just, but that is essentially why there is not "universal concern" in relation to the treatment of detainees - Australia and Britain are seen as lapdogs of the US, but the US is the main player and so the US draws the majority of the criticism.

    Australian politicians receive criticism for IDCs from its people in Australia but we are not on the world stage to even remotely the same degree as the US and so we escape global scrutiny and criticism.
     
  9. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    Of course they would care; the difference is the Brits wouldn't flaunt the establishment as something to be proud of in the war against terra.

    E_S
     
  10. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    No one is proud of the situation, and I haven't seen anything to the contrary.

    However, I do remember someone suggesting that the US adopt Australia's policy because it gets the job done, while at the same time, glossing over the harsh conditions/ maltreatment that results from such a policy. Is that pride? I'm not sure, but then what is it? Is Howard jumping up and down like Scrooge McDuck, gleefully counting off all the people detained under Australian policy? Or does Howard realize it's a tough decision based on a difficult circumstance? Besides the specific policies, I still don't see how the sitautions are different.

    Are you really claiming that the detainees in the IDC's should have expected their treatment because they violated Australian policy? Following that logic, shouldn't David Hicks have at least suspected something not-so-good might happen to him when he joined the other side during a war? If David Hicks was a foreign national who was detained for a year in an IDC for violating Australian policy, would the same level of concern be there? Is the difference because you understand and recognize Australian policy for what it is?

    I never claimed that Gitmo was easy, or that the detainees wanted to be there. I've only claimed that the detainment doesn't violate international law, and is on par with the standard that exists in any other Western Country. My point has always been the difference between peception and reality, and the point where the two diverge.

    Because no one wants to be at Baxter, or Belmarsh, or Sante (the French prison where the guards forced the inmates to fight or be raped) centers either.

    You keep saying that Gitmo is nothing but an example of the US's immorality, while claiming that Baxter, etc.. are just tough luck consequences for those who violate policy. A tough luck consequence for those who violate policy is precisely what Gitmo is as well.
     
  11. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    Wait; there's a world of difference between saying Gitmo an example of the US' immorality and an immoral act reflecting horribly on the US.

    The latter is what I'm saying, not the former.

    Gitmo's treatment has been, from all available sources, purposefully implemented with an eye to breaking the resolve of prisoners for interrogation or similar purposes.

    That is, rape at an IDC is an exception; having David Hicks lyingo n a concrete floor, naked, in a purposefully airconditioned room for hours is more of a rule.

    That's the difference.

    E_S
     
  12. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    You keep saying that Gitmo is nothing but an example of the US's immorality, while claiming that Baxter, etc.. are just tough luck consequences for those who violate policy. A tough luck consequence for those who violate policy is precisely what Gitmo is as well.

    Except you have never addressed the question: what policy or law did Habib violate to justify his detention at Gitmo.

    Frankly, I'm not focussing on the treatment of detainess once they are in detention - I want to focus on the process that justifies detention in the first place.
     
  13. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    Participating in al Qaeda operations directed against the US in Afghanistan doesn't matter?

    But that's the problem with focusing on individual examples. None of us were involved with the government when he was detained, so none of us know the exact circumstances. Of course, Habib claims he is innocent, and the entire debate breaks down according to who one believes more. Government evidence < > Habib's personal claims.

    All I know is that Habib was afforded a chance to go through the detainee review process, which is what was required.

    It's the same with Moazzam Begg. He claims he was innocent, the government claims he was making bombs for the Taliban. Again, the evidence was presented at his status review hearing, but we're not privy to it.

    Either way, the evidence was reviewed in both cases.

    Appearantly, Habib had been under ASIO scruntiny for 8 years prior to 2001, and the ASIO had enough evidence that the organization was granted a continuance of their wiretappings. Again, we'll never know what the ASIO had, because they will never reveal it. But again, who knows, I looked up the last part on Wikipedia, as much as that is worth.
     
  14. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    Participating in al Qaeda operations directed against the US in Afghanistan doesn't matter?

    I suppose it does matter if that is what he was doing but we will never know because the so called "evidence" never formed the basis of any charge. I don't know what this detainee review process entails so I can't comment on how the "evidence" was presented or "reviewed". I also don't know either what evidence ASIO had or has but that's obviously not the point.

    The man should never have been detained in the first place and both the US and Australia look foolish when they take centre stage in the fight against terror and talk about freedom and justice and democracy whilst keeping a man in detention for three years without charge.

     
  15. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    But then, a standard of proof, being what it is, is what separates of Person of Interest from a criminal.

    You point to someone in an IDC and say, "why are they here?", demonstrable proof can be shown.

    You point to, say, David Hicks and say, "Why is he here?"; the proof is absent.

    Not, necessarily, non-existant - Mr Howard wouldn't hold the stance he does for no reason - but absent.

    Again, therein lies the concern.

    In any event, you keep comparing Gitmo to IDCs mainly because you know I find Gitmo indefensibly inhumane and I work in Immigration - none of which takes the "red herring" aspect away.

    ES

    EDIT: Wasn't Habib picked up in Pakistan?
     
  16. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    The man should never have been detained in the first place

    Yeah, sure. I can respect that opinion, but it almost doesn't matter on its own.

    I mean even Martin Bryant had a mother who thought he was innocent, or at least didn't believe he knew what he was doing. I'm not saying that you would support Martin Bryant, but again, when things like this come down to opinion, we can only look at what we know.

    Maybe Habib shouldn't have been detained. Maybe he is the most brilliant terror mastermind in the world... We don't know either way, but a process did exist which at least reviewed the situation and the evidence.

    You point to, say, David Hicks and say, "Why is he here?"; the proof is absent.

    The proof is absent? Hicks was captured in the middle of a battlefield running around with the enemy forces. Hicks watched the WTC attacks on television, and then made the decision to join the defense against the allied forces. He was captured during actual combat aganist the coalition. Again, in any other conflict, he could have been simply shot on sight. Of all the detainees, Hicks's situation is the most cut and dried.

    and note- I'm not using the IDC's because I know you work in immigration. I'm using them because they're Australian. I was certainly willing to discuss the examples in the UK (ala BBC article) or the examples in France (earlier on) or the Spanish and the Basque detentions (way earlier in the thread) but no one was interested in discussing them.

     
  17. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    Martin Bryant's mum may have thought him innocent; the rule of law, however, found him guilty.

    Habib may have claimed him was innocent, and no rule of law found otherwise.

    Hence, the problem.

    E_S
     
  18. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    Ironically Martin Bryant got better treatment than Habib in terms of human rights. At least Bryant got charged with something and got a trial and was legally represented.
     
  19. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    But you of all people know that the law of warfare exists on its on. It's agreed upon international law, which may or may not match up with specific national law.

    A state of hostilities that exist between 2 participants is itself, not a criminal situation. That's why international treaties like Hague, Geneva and the law of land warfare exist. At the very basic level, someone like Hicks could be captured without being subject to criminal proceedings at all.

    It's like we're returning to page one all over again.

    Again, what trial were any of the IDC detainees subjected to? None, you say? They were simply given a policy hearing? BOO-URNS I SAY, BOO-URNS!
     
  20. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    Mr44 you mentioned Bryant in the first place, it's all your fault :p

    Hicks and Habib could be captured firing RPGs at US troops and not be charged with a crime under national or domestic law - that's not the point. They have to be charged with something though. Particularly Habib who was "captuared" doing nothing more than siting on a bus in Pakistan. How does that represent " a state of hostilities"?

    As for IDC detainees - I don't think they stand "trial" as they have not committed a crime, but they certainly face adminstrative proceedings for violating immigration laws. Their violations are a matter of public record. That's more than you can say for Habib.
     
  21. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    LOH, I'm not disputing any of that. But again, you are using personal opinion to try and characterize a situation. Opinion that we can't confirm nor deny.

    Habib says all he was doing was sitting on a bus. What if he just finished delivering RPG rounds to Taliban fighters? We don't know for sure either way. Was he monitored beforehand? Was he traced? Habib's opinion doesn't become the defacto one, and neither of us can claim to know what the situation really was.

    As I said, that's where debates like this break down. Whatever the evidence, it was reviewed and a determination was made based on what it was. He wasn't just wisked off a bus never to be heard from again. A review panel reviewed whatever the evidence was, just like a policy board reviews the status of those being held in IDC's.

    Neither are strict criminal proceedings. But then again neither have to be, and that doesn't automatically mean they are any better or any worse.
     
  22. Darth Mischievous

    Darth Mischievous Jedi Grand Master star 6

    Registered:
    Oct 12, 1999
    I must say that Mr44 has 'teh owned' this discussion so far.

    It's interesting reading, that's for sure.
     
  23. LostOnHoth

    LostOnHoth Chosen One star 5

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    Feb 15, 2000
    I disgaree that I'm using personal opinion. Those are the facts as given by Habib. They have not been contradicted by US or Australian authorities.

    If the US or Australian authorities had evidence to the contrary then that evidence should have formed the basis of a case against him alleging a violation of some law which would justify his detention. The fact that none of us know what the situation was or know what the evidence is or was and yet the man was still detained without having a case to answer for over three years is abominable.

    The IDC detainees are at least informed that they have violated a law which explains their detention.

    edit - it is an interesting discussion DM and made all the more pleasurable by the lack of condenscension and venom portrayed in some of the posts above -enough to keep me away from this thread and this forum.
     
  24. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

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    May 21, 2002
    Well, we've been working very hard to try and reduce the venom as much as we can. Even if E_S and I are having a heated debate, we still respect each other a lot.

    I hope that translates into the thread, or at least into what the Senate is.

    No one should ever feel unwelcome. LOH, you, or anyone are always welcome to post :)
     
  25. Ender Sai

    Ender Sai Chosen One star 10

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    Feb 18, 2001
    Mr44;

    Detainees can certainly request a hearing before an appellate court if they wish.

    They're also informed of the day-to-day status of their case(s) by case officers.

    Why, though, was David Hicks not only not informed of the situation with his British citizenship, but was he and the other inmates aware the USSC had ruled on the camps?

    ES
     
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