Sunday, June 12, 2005

Redefining Liberty and Justice - Part II

Part II of II

gitmo_detainee3It is clear the Bush administration has taken great pains to marginalize detainees and remove them outside the protections of national and international law. This provides many advantages in both the treatment and continued detainment of these individuals.

Because there are no protections guaranteed to these detainees, the executive branch is free to grant or deny liberties as wanted or needed. This gives interrogators increased flexibility both with tools and techniques (possibly even torture). The detainment centers can also exist outside lawful boundaries, with only defined sections open to international agencies.

Because these detainees belong to no legal category and are between the margins, the military can be free to create its own system of classification with no interference whatsoever. This also gives the administration latitude in re-classifying detainee groups or individuals as is politically expedient. The movement becomes a confusing blur of shells where one day a detainee becomes "X" and the next day "Z". The practice also lends itself well to creating "ghost detainees" who have no classification whatsoever and thus undocumented within the system itself.

By keeping the international community off-guard like this, the likelihood of a unified backlash is greatly reduced. But the ingenuity of indefinite detainment in the "War on Terror" is in giving other nation states the opportunity to imprison their own dissidents as terrorists. Many countries such as Spain, Britain, and Russia have taken advantage of this. If they were to decry the American detainment, theirs too would become suspect.

In May of 2003, the Bush administration astounded many by declaring Taliban detainees worthy of Geneva Convention protections, but then waffling on their POW status. All other detainees (presumably those associated with Al Queda and other terrorist organization) were declared unprotected, despite the protections in the Fourth Geneva Convention. The announcement went further, reducing the relevance of the Geneva Convention itself:
The war on terrorism is a war not envisaged when the Geneva Convention was signed in 1949. In this war, global terrorists transcend national boundaries and internationally target the innocent. The President has maintained the United States' commitment to the principles of the Geneva Convention, while recognizing that the Convention simply does not cover every situation in which people may be captured or detained by military forces, as we see in Afghanistan today.

What this announcement signifies is the President's dedication to the importance of the Geneva Convention and to the principles that the Geneva Convention holds. In terms of the treatment of the prisoners, even though the President has determined that they will not be treated legally as prisoners of war, they will be afforded every courtesy and every value that this nation applies to treating people well while they're in our custody. So it will not change their material life on a day-to-day basis; they will continue to be treated well because that's what the United States does.
What can this mean? The Geneva Convention is out-of-date, but at the same time as important today as it was then? These detainees are being treated according to the Geneva Conventions even though the President is careful to reject the legal applicability? These paradoxes point to only one conclusion: the detainees should have no legal basis for challenge or redress.

There was one legal victory against these broad policies, at least for US citizens living in America. In December of 2003, a federal appeals court ruled that the president does not have the power to detain an American citizen seized on US soil as an enemy combatant. This decision did not apply to the detainment of US citizens in other countries however. Nor does it protect any foreign nationals on US soil from being detained.

The strange assumption in the US detainment policy is its ignorance of nationality and citizenship. Regardless of a suspect's citizenship, he/she are treated as a transient without any embassy protection. This basically reduces a detainee to becoming an international refugee outside the boundary of any nation's civil code.

In April of 2005, the Pentagon polluted the legal waters even more by broadening their definition of "enemy combatant" as follows:
c. Additional Classification. In reference to the Global War on Terror there is an additional classification of detainees who, through their own conduct, are not entitled to the privileges and protection of the Geneva Conventions. These personnel, when detained, are classified as enemy combatants.

(1) Enemy Combatant (EC). Although they do not fall under the provisions of the Geneva Convention, they are still entitled to be treated humanely, subject to military necessity, consistent with the principles of GC, and without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria, and afforded adequate food, drinking water, shelter, clothing, and medical treatment; allowed the free exercise of religion consistent with the requirements of such detention. There is a comprehensive list of terrorists and terrorist groups identified under Executive Order 13224, located at Anyone detained that is affiliated with these organizations will be classified as EC. Furthermore, there are individuals that may not be affiliated with the listed organizations that may be classified as an EC. On these specific individuals, guidance should be obtained from higher headquarters. As defined by the Deputy Secretary of Defense, an EC is defined as:

“Any person that US or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States is engaged in an armed conflict. This may include those individuals or entities designated in accordance with references E or G, as identified in applicable Executive Orders approved by the Secretary of Defense.”

Deputy Secretary of Defense global screening criteria, Feb 20, 2004

Reference E – Comprehensive List of Terrorists and Terrorist Groups Identified Under Executive Order 13224 (updates at

Reference G Patterns of Global Terrorism. Department of State, 2002 (updates at

(2) Enemy combatants may be identified into the following sub-categories: (a) Low Level Enemy Combatant (LLEC). Detainees who are not a threat beyond the immediate battlefield or that do not have high operational or strategic intelligence or law enforcement value that requires the specialized type of exploitation capability available at a Joint Interrogation and Debriefing Center.

(b) High Value Detainee (HVD). A detainee who possesses extensive and/or high level information of value to operational commanders, strategic intelligence or law enforcement agencies and organizations.

(c) Criminal Detainee. A person detained because he is reasonably suspected of having committed a crime against local nationals or their property or a crime not against US or coalition forces. Excludes crimes against humanity or atrocities. (Note: this sub-category may also be applied to CIs).

(d) High Value Criminal (HVC). A detainee who meets the criteria of a HVD and is reasonably suspected of having committed crimes against humanity or committed atrocities, a breach of humanitarian law that is an inhumane act committed against any person.

(e) Security Detainee. A civilian interned during a conflict or occupation for his or her own protection.

By detailing specific types of "enemy combatants", the Pentagon enlarged the criteria for indefinite detainment and created its own heirarchy of justice, without any civilian basis. All present and future oversight is predicated upon the consent of the executive branch with no civilian legal recourse.
This is how the US fights terrorism: spreading liberty and justice by denying liberty and justice. No American in his/her right mind should support the administration's detainment strategy.

Be a true patriot and support Amnesty International now.


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