Self-Analysis

When I first started writing this blog, I had a very clear mindset as to what I was going to write about. In many ways I was even biased, as is apparent in my initial post. My initial interpretation of the rights of terrorists was that they should not be given any semblance of rights like those of American citizens. My initial posts followed this view point and failed to take into account that by denying them fair treatment, we are only further polarizing the issue in our country. As I continued my research, I found out more and more about the problems with limiting their rights.

I have learned much about the international laws that govern the treatment of POWs, the rules of war, and the distinctions between POW, criminal, and terrorist. As my knowledge of the topic grew, my views were altered to fit my new realizations. Prior to this blog, I was indeed a proponent of using torture against accused terrorists, whether this was legal or illegal, in order to acquire information that could save American lives. However, my view is now more intellectual and supported instead of emotionally charged. After studying the Geneva Convention, I realized that certain methods of interrogation were allowed by the rules of war in certain circumstances; however I also came to understand that in the majority of the time, these circumstances did not apply. One other revelation obtained through my research was that up to this point, I had classified all terrorists as men who took up arms against those they saw as inferior. I had failed to realize that terrorists, like most other groups, are multifaceted and require more infrastructure than I had previously thought. I discovered that there were many people who I consider to be "white collar terrorists" whose job it was to finance other operations.
As for the rights mandated to be read to terrorists upon their apprehension, I still disagree that they should be given the same rights as citizens. They are accused of committing actions with no regard for the sanctity of human life and thus should not be protected by the nation that they attack. Nevertheless, my initial opinion that they should have no rights has softened. Through conversation with my peers on my blog, I have come to realize that we must do what we can to protect those that might be innocent so long as it does not jeopardize national security.

White Collar Terrorism

Not all terrorists charge into buildings or markets with the goal of killings civilians. There are white collar terrorists as well. What do I mean by this? I mean those who use charities and legitimate businesses as fronts to finance terrorist activities elsewhere. In the past few years European nations have been plagued by charity fronts for Hamas terrorist actions in Israel. A major problem in all of these cases has been the acquisition of substantial enough evidence to convict them. The fronts have protection under the law and they exploit that protection to a maximum. Evidence is hard to come by when the accused hires the best lawyers in the nation to defend them. In the Swedish trial of charity representative
Khalid al-Yousef openly agreed that he had sent money to Palestinian groups who were directly connected to Hamas though he had no knowledge that they were connected at that time and also when it was proven that his charity did have knowledge of a Hamas connection, Khalid al-Yousef stated that he did not know that the money was going to finance terrorist activities. He was acquitted. I don’t know about you, but I find something extremely wrong with this situation. I am not advocating for a lessening of the burden of proof for a conviction, but I am pointing out that there is a major problem. I welcome any comments on how my readers would propose to rectify this situation.

Theory

The rectification of these two polar opposites seems highly unlikely at this point. One side calls for an outright end to all torture and interrogation and the providing of rights akin to that of an American citizen while the other side calls for harsher punishments and a more aggressive policy towards accused terrorists. In the past decade I can only find one occasion in which both sides were united against a common threat and that was in the months following September 11th 2001. It is painful to think that an atrocity of that magnitude is only action that has been shown to unite us and I pray we do not require another tragedy to come together again. For now the best strategy to unite these polar opposites is to come back to the things we have in common: our love of country and our desire to protect ourselves and each other from harm. Once we realize that we are indeed on the same side, we can go about finding a solution to this problem. This means however, that we will have to become intelligent citizens and not fall prey to media or political bias. Many of the most polar issues of this debate have only been accentuated by rhetoric that largely neglects or manipulates the facts. As a people we essentially believe in the same basic principles and if we can put aside our biases and passions, we can come to a consensus as to what needs to be done.

Class Links

These blogs represent a wide variety topics that i enjoy and am also passionate about:
All Quiet on the Western Blunt:Bud Wiser’s blog is well worth the read. He is able to discuss his points of view on the legalization of marijuana in an intellectual and yet incredibly stimulating way. He doesn't merely recite facts, but he also understands what he is talking about and has a clear grasp of his topic. It is an enjoyable read no matter what your views are on the topic.

American and Iranian Relations: I found this blog to be very intellectually stimulating. The author has provides multiple points of view and presents an unbiased look at the US relations with one of the most volatile nations in the world today. For everything from nuclear missiles to the recent election riots, check out this blog.

The Impact of Superweapons: If you have any interest in modern/future weapons and military technology then definitely check out this blog. It is a goldmine of info on the latest and greatest weapons and defenses that will make you say "Ain't it cool". The author does a fantastic job keeping the reader interested with weekly weapons while at the same time tackling the important policy and ethical issues surrounding their research and funding.

Abu Ghraib

In the past few weeks of maintaining this blog, I have come to notice that one of the main arguments of those opposed to any harsh treatment of accused terrorists is the abuses that have taken place at Abu Ghraib detention facility in Iraq. I would now like to take the time to clarify the differences between what happened at Abu Ghraib and the proposed treatments of accused terrorists.

Before I begin, I’ll start by saying that what happened at Abu Ghraib is horrible and wrong in every possible way. Those responsible for the torture and abuse of the prisoners there should be, and were, held accountable. Out of the seventeen soldiers who were accused of abuse, eleven were convicted and sentenced to military prison and dishonorably discharged. Also, new military units have been deployed whose sole purpose is to find and stop any and all instances of military abuse.

The difference that many members of the public fail to recognize is that the majority of the prisoners at Abu Ghraib are not accused or convicted terrorists. They are mostly criminals arrested by the US an Iraqi security forces at checkpoints for various reasons. Some of the prisoners there are even soldiers captured during the war who are awaiting trial. The crimes committed against these persons break almost every international law regarding the treatment of prisoners, but this has little to do with terrorists. The Guantanamo Bay facility, which houses mainly accused terrorists, has not had the legal battle that Abu Ghraib has. They have far stricter guidelines regarding the treatment of accused terrorists as well as the legal right to perform certain acts of interrogation such as isolation. The atrocities of Abu Ghraib are horrible, but they should not be used as evidence to support the rights of terrorists since accused terrorists were not the primary persons abused.

The Laws of Interrogation (Part II)

As stated before, this post will highlight the legal arguments against torture. First and foremost, there is little international support for an argument in favor of torture. In a time when we need as many allies as we can obtain, alienating them by torturing accused terrorists is not the way to go. Second, the legal ambiguities of the Geneva Convention can be interpreted in two distinctly different ways. The convention prohibits any action that provides “efficacious means” of preventing an imminent threat that has the ability to destroy the state. Legal analysts tend to have three major issues with these guidelines. First is in proving that torture is an effective and efficient means of producing intelligence. In general many combined techniques, none inflicting physical or mental harm, have been more effective than torture. The second clause, preventing an imminent threat, would require that we already possess the knowledge that there is going to be another attack. The source from which we gained this information is likely also to provide the location or the means by which we can stop the attack. The final clause, an attack that has the ability to destroy the state, implies that this single act of terrorism will somehow cripple the government and the nation. Short from a multi-pronged nuclear or biological weapons attack, a single act of terrorism is not likely to fulfill this requirement and if we somehow find out that it does, as in the previous case, we will likely already have a means by which to prevent it.

Analysis

In the wake of 9/11 public sentiment was vehemently against preferential treatment for any accused terrorist. They were seen as the most insidious of people and the American public’s desire for revenge reached almost racist proportions. However, once emotions settled and every Arab was no longer immediately suspected of a diabolical plot against our country, the question arose as to how those accused foreign terrorists should be arrested, detained, tried, and if convicted, sentenced. The Bush doctrine outlined the basic rights and rules that were to be followed: they would receive a trial by military tribunal, they would be held as persons who are dangerous to the state until trial, they would be represented by a licensed defense lawyer, they can call witnesses on their behalf, and most importantly they are innocent until proven guilty. More recently, the Obama administration has added the right to appeal and the mandatory reading of Miranda Rights during arrest to this list.

Almost as soon as these regulations were enacted, a debate began to rage over whether or not this treatment is fair and just.(Amnesty International) Those who opposed the Bush doctrine do so believing that the accused terrorists should receive the same rights as US citizens as defined by the Boumediene decision. The problem with this decision is that by granting them the same rights as US citizens, they now have access to health care, social security, and even veterans benefits if they were wounded during their capture.(Token Conservative)

The arguments against the Bush/ Obama policies are not limited to declaring accused terrorists US citizens. Another position is that they should be treated as prisoners of war and be granted those rights accordingly. These include protection from military tribunals and the right to be negotiated and released at the conclusion of the conflict. The definition of a POW as defined by the Geneva Convention requires that the captured combatant meet the following criteria (Convention III):

(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.

It is pretty clear however, that those accused of terrorism do not fit all or even most of the criteria. There is no commander directly responsible for his subordinates. Bin-Laden would not count as he is not directly in contact with each member. They do not wear a consistent and recognizable uniform and most of the time they conceal their arms. Finally, the targeting of civilians and police violates the stated laws and customs of war which fails part (d) of the criteria.

So if they are not US citizens and not POWs then how should they be designated? The closest approximation is that of an unlawful combatant or spy (The POW). During WWII Nazi saboteurs who snuck into the United States wearing civilian clothes and carrying concealed weapons with plans to destroy civilian factories were obviously classified as spies and when they appealed this treatment to the Supreme Court (The Middle East Quarterly), the Court decided that they were indeed defying the laws of war and that they should be treated as unlawful combatants subject to military tribunal and held outside the rights of the Constitution.(EX PARTE QUIRIN)

The Laws of Interrogation (Part I)

For the most part I have been avoiding the issue of torture. This is for two reasons: First, the issue has become polarized in the publics’ eyes and many fail to take into account the differences between torture and accepted interrogation techniques; second, it is a legal gray area with no distinct guidelines or rules. Due to the enormity that this issue has in the mind of the public, I am dedicating the following two posts to the issues surrounding torture, specifically an accused foreign terrorist’s rights during interrogation.

In this first post, I will focus on the legal arguments lending themselves to the allowance of enhanced interrogation techniques. This starts with a definition of said techniques by the Geneva Convention: “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.” This definition, while ambiguous, very clearly states that no form of physical or mental harm should befall a POW in the search for intelligence. What many don’t realize however is that interrogation techniques such as yelling or pounding ones fist on a table (both legal actions in the American judicial system) would be considered forms of mental torture under these guidelines. This being said, the articles of the convention clearly state that it is only POWs who are to receive these rights. As terrorists are not POWs (see previous post) and have no real defined title, they are not protected from said techniques.

The later articles of the Geneva Convention give protection to civilians in an occupied state. The guidelines state that any citizen who is suspected or caught participating in any action that is a threat to the security of the state are held accountable by the laws of that state and furthermore they are protected from physical harm so long as such protection is not “prejudicial to the security of such State.” While this seems like it prohibits physical torturing of accused terrorists, the final clause “prejudicial to the security of such State” implies that so long as the information held by the terrorist could prevent future harm to the state, the accused is not protected. This in effect gives any nation the legal ability to interrogate an accused terrorist if they are suspected of having knowledge of future plans.

POW or Unlawful Combatant?

I was recently asked how i thought these accused foreign terrorists should be treated and this question lead perfectly into this post. This first requires the understanding of the qualifications and treatment granted to POWs and how they differ from unlawful combatants. A POW is defined as a lawful enemy combatant of a foreign state. This means that the prisoner has allied themselves with a recognized state, has a legitimate commanding officer who is responsible for his subordinates, and follows the generally accepted rules of war. The privileges granted to anyone with POW status is protection from military trial, they are not subject to the laws of the capturing nation, they are commonly exchanged and released at the end of the war. There is a definite problem with designating terrorists as POWs and it starts with the latter privilege. By declaring them POWs, they are to be released at the end of the conflict. However, since we are not fighting a war against a legitimate government, it would be rather difficult to determine the end of the conflict and furthermore we would be releasing accused persons whom many have declared that they would do anything to kill Americans. Not the best of strategies for self-preservation. Also, they would be immune from trial of any kind by military tribunal which would essentially mean that if we were ever to capture Osama Bin-Laden, we could not try him for his involvement in planning the 9/11 attacks. However, by designating them as unlawful combatants they no longer have these protections. Unlawful combatant simply means that the soldier violated the agreed rules of war. They are no longer protected from trial and are held responsible for their actions which seems a fitting policy for accused terrorists.

Miranda Isn't For Everyone

The previous administrations’ policies on questioning and detaining accused terrorists were reasonable and fair. This all changed when the current Obama administration was elected. Since its inauguration, the Obama administration has banned almost all enhanced interrogation techniques, passed a bill that would allow accused terrorists to appeal their incarceration in the US court of their choice, and they have even started forcing soldiers to read any detained person their Miranda Rights. (NYPOST)
This current policy is backward and works against the interests of national security. First of all, in Miranda v. Arizona the Supreme Court held that all US citizens are to be given the right to consult an attorney during questioning, the right to avoid self-incriminating statements, and that these rights must be read and understood by the accused prior to any questioning by law enforcement. By mandating that accused foreign terrorists are to be read Miranda Rights the Obama administration is implying that they are to be treated with the same rights and privileges as US citizens. This implication of citizen’s rights has lead to accused terrorist being allowed to appeal their detention in US courts. This new law however fails to set limits on where they can appeal to and how many times they are allowed to enter the appeals process. These loopholes essentially allow any detainee held at the, now downsizing, Guantanamo Bay detention facility to appeal an unlimited amount of times to any court in the United States of their choosing. Hypothetically Osama Bin Laden could appeal his sentencing for the rest of his natural life to each and every court in every state. US citizens on death row are only offered one chance at appeal and even then only to the court nearest the place of their incarceration. This new law would, in effect, grant accused foreign terrorists more rights than US citizens and would infinitely complicate and muddle our legal system.

In the Pursuit of National Security

The terrorist attacks of September 11 2001 represent the start of a new war. The Bush administration dubbed it the “War on Terror”. The problem is that this war is without borders or nations and it is becoming increasingly hard to distinguish between soldiers and civilians. So when an accused terrorist is apprehended, what laws should govern their prosecution and what rights should protect them?

The Bush doctrine established a system of military tribunals to determine the guilt or innocence of the accused. The tribunals have similarities to US civilian courts, such as the accused is innocent and the burden of proof rest with the prosecution. The terrorism suspects still have access to a knowledgeable defense; there are more restrictions on who this can be however. Their initial representatives are pentagon military lawyers who can be backed up by private attorneys after they receive security clearance. Also, the accused are allowed to call fourth witnesses for their defense. The differences between the tribunals and civilian courts are necessary measures to protect national security and prevent accused foreign terrorists from abusing the judicial system. Terrorists do not have access to unlimited appeals. In order to prevent them from bogging down the tribunals with endless appeals, their cases can only be reversed by a review panel; this is similar to death row inmates who have only one shot at an appeal.(USATODAY) The most controversial issue with the Bush policy was the use of terrorism to extract information. Those critical of this policy say that the Bush doctrine violates the suspected terrorists’ rights. What they fail to realize is that these rights are only given to US citizens in the constitution. A foreign terrorist is not an American citizen and hence should not be attributed the same rights at the cost of national security.