Trials are important things really

A man held for 13 years at Guantanamo Bay appears to have been a victim of mistaken identity, as US officials admitted they had confused him with al-Qaeda operatives with similar names.
When Mustafa al-Aziz al-Shamiri, a Yemeni national, was transported from Afghanistan to the US detention facility in Cuba, his captors believed he was a courier and trainer for al-Qaeda.
They have now determined that he was a low-level Islamist fighter, and not part of the al-Qaeda chain of command.

Not just because it gives the accused a chance to put their side of the story, but because people tend to collect and check evidence before a trial. On both sides….

38 thoughts on “Trials are important things really”

  1. Err, so is the right under the Geneva convention for POW’s not to be put on trial. Quite rightly, the same convention states that people who refuse to fight in uniform are to be regarded as “franc tireurs” and are entitled to sod all.

    He might have wasted some money on the basis he wasn’t worth holding, but he’s still a nasty bugger, and the Yanks were perfectly entitled to hold him without trial for as long as they want.

  2. So Much For Subtlety

    he was a low-level Islamist fighter

    You know, somewhere I can hear the world’s smallest violin playing.

    A quick military hearing, a quick hanging, a dignified burial. Save us all a lot of time and grief.

  3. I’m with SMFS, my heart hardened. Mercenary and fighting out of uniform to boot. That’s summary execution time, isn’t it? No Geneva convention protections for you. Guantanamo was the merciful option.

  4. Err, so is the right under the Geneva convention for POW’s not to be put on trial.

    They have or should have the right to challenge their detention. Everyone should. No state should have the freedom to indefinitely detain anyone without some kind of fair process.

    Quite rightly, the same convention states that people who refuse to fight in uniform are to be regarded as “franc tireurs” and are entitled to sod all.

    SCOTUS has ruled otherwise.

  5. ukliberty,

    “SCOTUS has ruled otherwise.”

    Well, they’re wrong then. The whole point of the uniform part of the Geneva Convention is that you can separate the troops from the civilians, so you know the legitimate targets you can shoot at from otherwise. The protections troops get are an incentive to wear a uniform.

  6. So Much For Subtlety

    ukliberty – “They have or should have the right to challenge their detention. Everyone should.”

    Because nothing should be allowed to come between a lawyer and a decade of Legal Aid fees.

  7. No sympathy for the RoP gang but no one should be detained at the pleasure of the scum of the state. Shoot him in combat, give him a trial or let him go.

    Guantanamo is an abomination against the Western world and everybody involved in it would pay with their lives if I was running the show. And everybody who supports it deserves the noose as well.

  8. Mr Ecks would end up being dictator of a very small country. Possibly with a population of 1.

    Or 0 if he found himself disagreeing with himself and had himself hanged for it.

  9. The problem with Guantanamo was the concept of “unlawful combatants”. Yes, under LOAC you’re a POW and protected, as long as you’ve met the standards (distinguishable uniform or symbol, arms borne openly, traceable chain of command, &c) or else you’re not and you’re a criminal to be brought to trial and punished for your crimes: but the notion that you could be placed in some middle ground, indefinitely, at the whim of your captors, was what offended folk like me.

    One important issue is that there’s a recognition of “levee en masse”, where in the event of invasion the occupants spontaneously take up arms (aimed to deter issues like Germans shooting franc-tireurs and Belgian postmen) provided they “respect the laws and customs of war”. Note that’s individually, not collectively: if you grab folks off the battlefield they’re PoWs until proven otherwise.

    The ICRC have the relevant instruments at:-

    https://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter33_rule106_sectionb

    It’s not as if being a POW is a bed of roses, any significant tactical value was noticeably gained, or the standard of “competent tribunal” required to determine status especially demanding: but Guantanamo was the equivalent of double-shotting a thirty-two pound cannon with roundshot over grape, then sticking both feet in the muzzle and shouting “FIRE!”.

  10. Well, they’re wrong then. The whole point of the uniform part of the Geneva Convention is that you can separate the troops from the civilians, so you know the legitimate targets you can shoot at from otherwise. The protections troops get are an incentive to wear a uniform.

    There’s more to the Geneva Conventions than uniforms. The fundamental point here is that everyone is entitled to at least minimal protections of some kind of fair challenge or process (and against inhumane treatment).

    The alternative is that the state can put anyone into an offshore prison (and do terrible things to them) and keep them there indefinitely.

    (And states shouldn’t try to find ways to circumvent treaties and domestic law. If you don’t like the law, try to change it – not ignore it or wheedle around it.)

  11. I’m with the others who say that someone is either a “legitimate” member of opposing armed forces – and entitled to protection; or they are a criminal and entitled to a trial.

    This whole “we think but aren’t prepared to try and persuade a court” business is an anathema in a civilised society. IMO, if you are going to war (which is near enough what the western world has done) on moral grounds, your moral ground should be solid.

  12. A low level Islamist? So he just did the slaughterin, rapin and beheadin, rather than organise said activities at a higher level.

    Let him go, he’s small fry. Let’s instead up the surveillance on the Eagles to finally nail them for that arse pat in Boston in 1971.

  13. Bloke in Costa Rica

    Unless there’s a fairly good chance that they will have actionable intelligence, Jihadist captives should be executed on the battlefield within ten minutes of capture. If they do have actionable intelligence, they should be interrogated until they divulge it, and then executed. Guantánamo should be unnecessary.

  14. Guant exists to set the precedent so they can do the same to anybody.

    BiG: If my transgression was great enough–Yeah. As Rorschach said “There is good and there is evil and the wicked must be punished”.

  15. The authorities got his identity wrong once and took a decade to realise it. What are the chances that they have got it wrong again? Who could have any faith in anything done by these bullying clowns?

  16. @Jason: under LOAC you’re a POW and protected […] or else you’re not and you’re a criminal to be brought to trial and punished for your crimes

    And therein lies the problem, who is supposed to try such people – the ‘government’ of Afghanistan or Iraq? They’ve committed no offence against the laws of the US that they could be tried for.

  17. They’ve committed no offence against the laws of the US that they could be tried for.

    That’s not true of all them. Khalid Sheikh Mohammed, Mustafa Ahmad Al-Hawsawi, Ali Abd Al-Aziz Ali and Walid Bin Attash, all captured in Pakistan, were (eventually) charged with crimes related to 9/11.
    If they haven’t committed a crime as such, but merely prisoners of war (or similar, depending on Stigler’s uniform requirement), a fair process is still required to determine their status and whether they should be detained or released.

  18. Chris Miller,

    “And therein lies the problem, who is supposed to try such people – the ‘government’ of Afghanistan or Iraq? They’ve committed no offence against the laws of the US that they could be tried for.”

    Exactly why declaring them “illegal combatants” and locking them up for a decade is pointless. It *is* legal to take up arms against foreign soldiers who have come to your country, whether said foreigners like it or not.

    If they’re guilty of crimes locally, then either the occupying power or the local government can put them on trial (and if we’ve handed over power to incompetent and/or corrupt locals too early, whose fault was that?).

    If there’s a proper war and you need to keep enemy combatants detained, call them prisoners of war and you can hold them for as long as you want.

  19. ‘”SCOTUS has ruled otherwise.” Well, they’re wrong then.’

    Has SCOTUS always been such a heap of shite, or have their been spells in American history when it was better?

  20. It *is* legal to take up arms against foreign soldiers who have come to your country

    And if it isn’t your country, e.g. Shaker Aamer? If only the world were the neat and tidy place you believe it to be.

  21. If it’s not a country you are a citizen of I would suppose it depends if you join an organisation in that country defending their country, after all some Americans joined the British armed forces before the US joined WW2 and the Spanish civil war had foreign volunteers. So it goes back to the uniform, chain of command etc in the Geneva convention.
    Just turning with a gun so you can shoot people because it’s a war zone wouldn’t be the same thing.

  22. FWIW, I see this as part of a larger problem. It has long been a maxim of common law that “better nine guilty men go free, than that one innocent man goes to jail”. And this was all very fine, laudable and sensible when the worse that could happen was that a guilty man could carry on robbing people or, in the extreme worse case, stab one or two. But in a world where a guilty man can fly an airliner into a large building and kill thousands, that changes the moral calculus, doesn’t it?

    Discuss.

  23. And if it isn’t your country, e.g. Shaker Aamer? If only the world were the neat and tidy place you believe it to be.

    Captured in Afghanistan and handed to the USA in exchange for cash (IIIRC the going rate was four figures in USD) – not one of those captured in battle. Yes, that does make it more complicated. How on earth can the planet’s most powerful state cope?

  24. If someone came to my house and offered a couple of grand in exchange for some names, there are times when I might be tempted to shop some of my neighbours. We know that this used to happen in East Germany, even without the offer of financial rewards. This guy could so easily fit into this category. Would you trust these bozos to get it right?

  25. Umm – how do you define a uniform?
    The Taliban were murdering Afghans – any Americans were easy meat but almost irrelevant. If the Taliban could not distinguish friend from foe they would have killed each other. To say that “Oh, it’s not a good enough uniform for some nearly brain-dead American GI to recognise so it doesn’t count” is total bullshit.
    I have no sympathy for the Taliban who were desecrating the Qu’ran when claiming to act in its name, but we should act to higher standards. However this case highlights the incompetence of the US Army’s bureaucracy and why even, or particularly, such venal individuals as those writing the “Declaration of Independence” and the US Constitution thought it necessary to have a separation of powers between the Executive and Judiciary

  26. Diogenes,

    It was routine to the point of tedium by 2004 that detainees at Camp Bucca (down near Az Zubayr, reasonably well-run) who had been lifted as “high-risk Bravos, strong local intelligence” turned out to be guilty of nothing worse than being business, romantic or otherwise rivals with someone who had the wit to use Coalition forces to sort out the dispute – especially when you could shop a rival and get paid well for the privilege.

    Given the tribal and clan rivalries on top of all the usual business and personal rivalries, plus declining support and consent for MND(SE) which meant even less enthusiasm for actively helping us, by 2005 (when I was there) we’d pretty much given up on grabbing people based on phone-ins – the US seemed much more wedded to the concept, though,

    There was a lightening of spirit after one of the operations against suspected IED teams in Al-Amarah, though: ISTAR had noted how, on Thursday evenings, numbers (dozen-plus) of young men congregated on a disused warehouse outside town for a few hours after dark. A raid was set up to grab them: Broadsword observation, fast air standing off for top cover, infantry hanging back to cover and special forces doing close target recce and the initial entry.

    All went well as the sneaky-beaky types closed the building, right up until they got eyes-on the interior… and the urgent order to abort and withdraw came through.

    Turned out that the covert rendezvous wasn’t a bomb-maker’s college… it was Man-Love Thursday.

  27. And what was this Saudi citizen with British residency status doing in the middle of a war, ukliberty? If you really believe the obvious cobblers about ‘charity’ work, perhaps you can also help me liberate this $25 million I’ve got stuck in a Nigerian bank account?

  28. Thanks Jason…ordinary people are venal and who knows what they will do to get free money, but I don’t want to base a justice system on that. Some guys on this thread hold different views to me…they are allowed to

  29. Chris Miller,

    And what was this Saudi citizen with British residency status doing in the middle of a war, ukliberty. If you really believe the obvious cobblers about ‘charity’ work, perhaps you can also help me liberate this $25 million I’ve got stuck in a Nigerian bank account?

    Criticism of a thing doesn’t entail support of another thing. I neither believe or disbelieve Aamer’s account. I have no opinion of it.

    Do you think states should be free to indefinitely imprison anyone without challenge?

  30. Of course I don’t “think states should be free to indefinitely imprison anyone without challenge”, I’m seeking your considered views as to what should be done with murderous nutters captured in a war zone (hint: patting them on the head and telling them not to be so naughty in future probably isn’t going to work). I won’t hold my breath in anticipation of a thoughtful answer, though, as you probably have ‘no opinion’.

  31. Chris Miller,

    Of course I don’t “think states should be free to indefinitely imprison anyone without challenge”, I’m seeking your considered views as to what should be done with murderous nutters captured in a war zone

    Alleged murderous nutters – alleged being the operative word. I thought I was quite clear upthread about my views.

    I’m glad you agree states should not be free to indefinitely imprison anyone without challenge. It seems to follow that, in principle, you would agree there must be some kind of limit and/or some kind of challenge process. And if there is a process it follows that it should be fair, because an unfair process would defeat the purpose of having a process at all. We can argue about the details of that but what seems to be in dispute is the fundamental principle. That the “moral calculus” has changed so the fundamental principle must be overturned. That is what I understood the argument to be about. Hence my question.

    And the state concerned doesn’t limit itself to warzones Or regions adjacent to warzones. Some people have been taken from Europe. The CIA has wrongfully detained a couple of dozen people in Guantanamo and blacksites – IIRC there’s no dispute about that – there is a dispute about whether there have been more wrongful detentions, and what “detention” has actually involved.

    (hint: patting them on the head and telling them not to be so naughty in future probably isn’t going to work).

    Thanks for your “considered view”.

  32. If you’re running around with an AK47 in a war zone, I think your behaviour is a little more than ‘alleged’.

    I’m still waiting to hear what you consider appropriate treatment. but I guess we’ll never know. No point arguing with conspiracy theorists – you keep clear of those black helicopters, K?

  33. If you’re running around with an AK47 in a war zone, I think your behaviour is a little more than ‘alleged’.

    Yeah, that’s some of them. That’s fine – caught on the battlefield therefore prisoners of war (or enemy combatants or whatever, depending on uniforms etc). Entitled to at least minimal protections.
    What about the people handed over in return for cash (e.g. your example Shaker Aamer)? What about the people taken from Europe, who (to be clear) were not “running around with an AK47 in a war zone”?

    I’m still waiting to hear what you consider appropriate treatment.

    The swift and fair determination of the status of the prisoner, whether they should be detained and if so for how long (and/or address that on a regular basis). It’s not clear to me why you haven’t gleaned this from my posts to this thread. E.g.

    The fundamental point here is that everyone is entitled to at least minimal protections of some kind of fair challenge or process (and against inhumane treatment).

    The alternative is that the state can put anyone into an offshore prison (and do terrible things to them) and keep them there indefinitely.

    “(And states shouldn’t try to find ways to circumvent treaties and domestic law. If you don’t like the law, try to change it – not ignore it or wheedle around it.)

    Christ, even on amoral pragmatic grounds you’d think the state should want to know it has a person of genuine interest, rather than a case of mistaken identity or other wrongful detention. Surely?

    but I guess we’ll never know. No point arguing with conspiracy theorists – you keep clear of those black helicopters, K?

    What have I said that you think is “conspiracy theory”? That the CIA have (or had) a clandestine rendition, detention and interrogation program is a matter of public record. Bush admitted it in September 2006. The story including “black sites” first appeared in the Washington Post in November 2005.

  34. If your posts are meant as absurdist theatre, ukliberty, they’re really, really good. Are you associated with UK Liberty? I think we should be told.

  35. Chris Miller, which bits are you struggling with? It’s difficult for me to tell because you have yet to make a substantive comment.

    Here is an article about President Bush on the clandestine rendition, detention and interrogation program:
    http://news.bbc.co.uk/2/hi/5321606.stm

    Here is the Washington Post article:
    http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644_2.html

    Here is a Washington Post article about a wrongful detention of a man taken from Macedonia:
    http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html

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