Posted on 11/04/2004 2:02:41 PM PST by Calpernia
Judges and defense lawyers at Guantánamo tribunals argued over whether terrorism should be defined as a war crime.
GUANTANAMO BAY NAVY BASE, Cuba -- Arguing that the Nuremburg tribunals established genocide as an international crime 60 years ago, the colonel presiding over the first U.S. war-crimes court since World War II left open the possibility Tuesday that terrorism could debut as a valid war crime at Guantánamo Bay.
Defense lawyers argued in pretrial hearings for Australian captive David Hicks, 29, that the Bush administration has retroactively and illegally invented terrorism as a catchall war crime for al Qaeda detainees held at the detention center here.
They repeatedly cited the ex post facto factor in a bid to have charges dropped against Hicks, a Christian convert to Islam who was handed over to American troops in the post-Sept. 11, 2001, invasion of Afghanistan.
Defense lawyer Joshua Dratel of New York explained ex post facto this way: If you swam on Tuesday and Congress outlawed it on Wednesday, you cannot be charged with swimming illegally on Thursday.
''Terrorism is not an offense under the law of war,'' said defense lawyer Marine Maj. Michael Mori, calling it ``a descriptive term, not a charge in and of itself.''
The prosecutor, Marine Lt. Col. Kurt Brubaker, countered that the principle has been around since ``pirates posed a problem from outside our shores.''
Army Col. Peter Brownback, the presiding officer in the war-crimes court at Hicks' trial, resolved it this way: ``We're arguing from analogies here. Genocide wasn't a crime until Nuremburg, right? Nuremberg was the first one for genocide.''
The crux of the issue is whether the Bush administration has improperly designed a new legal system to try suspected terrorists captured in a third country, Afghanistan, and transferred to another country, Cuba, rather than use existing laws in U.S. military or civilian courts.
Attorney Kenneth Hurwitz of Human Rights First, the new name of New York-based Lawyers for Human Rights, watched the arguments with alarm, in part because two members of the three-judge panel have no legal training. In the Pentagon's newly designed court, the Marine and Air Force colonels sitting with Brownback have equal status in ruling both on facts and law, a fusion of the modern judge-and-jury system.
The prosecutor, Brubaker, characterized the new court and laws as suitable to the 21st century challenges of al Qaeda, a new kind of conflict that doesn't fit traditional international rules governing armed conflict.
''Defense tells you we could've shot him and killed him when he was on the battlefield. The laws of humanity say we can capture him, . . . detain him, and . . . try him under the laws of war,'' he said.
The panel is expected to rule this week on a series of motions that challenge the charges and President Bush's framework for trying them. If they lose, Hicks' trial is slated to start Jan. 10.
To be honest, I think UBL, Arafat, and all the foreign nationals who are terrorists and have killed Americans in the course of Jihad should face this type of justice.
You capture them, confine them, and bring them before a military tribunal instead of a court of law.
They dont deserve the protection of the Constitution
Resistance fighters have nearly always fought better equipped forces of superior number but they have found effective disruptive tactics that don't involve attacking civilian targets. Better knowledge of local terrain and conditions has often been to their advantage.
I suppose it depends a lot on what the final objective of the resistance is. It could be total liberation from an occupying force or it could be "buying time" or assisting some external liberating force.
In the case of Iraqi "resistance" I suspect the final objective is more to impose an alternative form of occupation than it is to liberate
I'm not even sure who the "enemy civilians" would be in the scenario of a soviet invasion of Britain. Do you mean Soviet civilian workers in Britain?
Your bit about forcing the enemy to retaliate against local civilians sounds like classic terrorist strategy.
You might feel this is justified by the circumstances but I would argue you have already lost the battle.
try this one: one mans rape could be anothers sexual fantasy.
evil is evil. this is not resistance
I'd have to agree with this 1000%!
I think terrorists are rightly classified as enemy combatants. This category does not preclude their being shot in the midst of "battle" even though they may be unarmed or unaware of being hunted. We kill enemy soldiers without remorse or mercy when we are in a clandestine operational mode. They kill our guys in the same way. That's the nature of war.
For that matter is it a crime against humanity to kill the enemy via artillery of any sort, or land mines? Or tanks at 4000 meters? Those are all examples of killing without "seeing" the enemy. In fact, some noncombatants may be killed at the same time as we are mowing down the pagan enemies of our country. Tough. That's war. We don't sanction our soldiers for "collateral damage." But we don't specifically target noncombatant civilians for mass slaughter as was the case with Sept. 11th. WE don't do that because we're supposed to be the good guys. WE don't do that.....yet. Before it's really over with, we may have to do that to insure our survival. It's still war. A new kind of war?.....Or an ancient version with modern technology?
No quarter asked and none given.
It's still WAR and active enemy combatants are subject to getting killed without mercy. We didn't make these rules, they did. But we're going to win.
Quit arguing put the panties on their heads and start shootin.
I do not think any of these suspected terrorists should have any legal representation paid for by the blood and money of American citizens.
Why is it that we do not hold military tribunals for all the prisoners at GitMo and elsewhere? I do not understand why a court of law is in play at all.
Bump and bookmark. Thank you.
bump
Wow, good thread. Interesting perspectives. Major BUMP!
I was trained in it, but most of my experience was in fighting terrorists in North Ireland, dealing with paramilitaries in Bosnia and Kosovo and some stuff in Iraq. And all groups change there tactics to suit the situation
If there had been a Soviet Invasion of Britain, there would of been British citizens who would collaborate.
British Citizens who would of just wanted to accept the status quo.
Enemy citizens part of the economic exploitation teams.
Enemy citizens part of the political teams.
Families of all the above.
All would have to be targets in one way or another.
There is only one way to drive the enemy out and that is make it unprofitable to keep the occupation going, what they are putting into maintain the occupation.
In America with your huge wide open spaces you could prob fight more of a gentlemen’s war of hit and run against isolated outposts and conveys along those miles of roads.
Britain is a small built up country it will be a urban built up war where the fight will be a lot more dirty. Less places to hide mean we have to rely on the people more, and there will be more than enough in any country who just wont want to get involved or will even inform on any partisan units just to keep the peace in there area.
So the old tactic of using the Soviets to react against the Civilian population so that they will support us more would be a viable tactic.
It would be nice to fight a Mel Gibson Patriot or Robin Hood type of war knowledge of local terrine enemy blundering into one trap after another.
But reality dictates otherwise.
Most terrorists or Para military I ever fought actually did not come from the local area they were forced to operate in.
Tony
This is not the argument.
The argument is that a terrorist will be classed as a War Criminal in international Law.
So how do you define a Terrorist in international law.
As far as any government is concerned a terrorist is someone who opposes that government whether at home or in an occupation.
This means that in international law if America was ever invaded and occupied your militia would be classed as war criminals.
From there follow the thread down on the diff tactics that would be used and why they are dictated by terrain.
Tony
Yes, I agree, you will need the support of your civilian population but remember how you came to be occupied. You became occupied because the military failed. The civilian population may have their own ideas about how they want to deal with occupation. They may be resigned to a long-term strategy for liberation or the intervention of a third party. You have no right then to presume your tactic of inciting the occupier to target them is in their best interests. This is the mentality of the terrorist and I would be disappointed to learn that this was a favoured strategy of the British army.
You might like to compare my thoughts on this to some Hollywood movie but they are more based on the various resistance groups under Nazi occupation. I would argue that there was rarely any need to incite the Nazi's to target civilians and that civilian support was generally adequate.
BTW I am British and was brought up near to Aldershot. I understand Britain's geography and wouldn't agree that any resistance fighting would have to take place in urban areas. I have nothing but admiration for you as someone who has served in Northern Ireland, Bosnia, Kosovo and Iraq. We certainly need more like yourself who are willing and able to fight terrorists - what we don't need are military strategists who are too eager to emulate them.
Not the British Army, the Armies job is to fight a conventional war.
But it is the mentality of other organizations whose job is to fight a unorthodox war using more unorthodox methods.
Look at some of the ops of the SOE during the last war.
Read up on the assassination of Heydrich, and the fallout from that on the Czech population.
I was at Aldershot at one stage I did the Para course so I remember the training grounds.
Cheers Tony
My thanks to all of you for having shared your knowledge with us.
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