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Post-9/11 legal issues: Wikis

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A number of incidents stemming from the September 11 attacks have raised questions about legality.

These include:

Contents

Detentions and imprisonment

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Initial detentions

Soon after the attacks of September 11, 2001, the United States Government began detaining people who fit the profile of the suspected hijackers: mostly male, Arabic or Muslim noncitizens. By late November 2001, more than 1,200 people had been detained and held incommunicado (Without the means or right to communicate).

Guantanamo camps

Detainees upon arrival at Camp X-Ray, January 2002

Guantanamo Bay is a detainment facility of the United States located in Cuba. The facility is operated by Joint Task Force Guantánamo of the United States government since 2002 in Guantánamo Bay Naval Base, which is on the shore of Guantánamo Bay.[1]

The detainment areas consist of three camps: Camp Delta (which includes Camp Echo), Camp Iguana, and Camp X-Ray, the last of which has been closed. The facility is often referred to as Guantánamo, or Gitmo.[2][3] After the Justice Department advised that the Guantanamo Bay Detention Camp could be considered outside U.S. legal jurisdiction, prisoners captured in Afghanistan were moved there beginning in early 2002. After the Bush administration asserted that detainees were not entitled to any of the protections of the Geneva Conventions, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld on June 29, 2006 that they were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions.[4] Following this, on July 7, 2006, the Department of Defense issued an internal memo stating that prisoners would in the future be entitled to protection under Common Article 3.[5][6][7] The detainees held as of June 2008 have been classified by the United States as "enemy combatants".

On January 22, 2009 the White House announced that President Barack Obama had signed an order to suspend the proceedings of the Guantanamo military commission for 120 days and that the detention facility would be shut down within the year.[8][9] On January 29, 2009 a military judge at Guantanamo rejected the White House request in the case of Abd al-Rahim al-Nashiri, creating an unexpected challenge for the administration as it reviews how America puts Guantanamo detainees on trial.[10]

On May 20, 2009, the United States Senate passed an amendment to the Supplemental Appropriations Act of 2009 (H.R. 2346) by a 90-6 vote to block funds needed for the transfer or release of prisoners held at the Guantanamo Bay detention camp.[11] In November 2009, 215 prisoners remained at the Guantanamo Bay detention camp;[12] as of January 2010, only 193 remain.[13]

President Barack Obama issued a Presidential Memorandum dated December 15, 2009 ordering the preparation of the Thomson Correctional Center, Thomson, Illinois, so as to enable the transfer of Guantanamo prisoners there.[14]

Proceedings: Comparison with the American justice system

The United States has two parallel justice systems, with laws, statutes, precedents, rules of evidence, and paths for appeal. Under these justice systems prisoners have certain rights. They have a right to know the evidence against them; they have a right to protect themselves against self-incrimination; they have a right to legal counsel; they have a right to have the witnesses against them cross-examined.

The two parallel justice systems are the Judicial Branch of the US Government, and a slightly streamlined justice system named the UCMJ (Uniform Code of Military Justice) for people under military jurisdiction. People undergoing a military court martial are entitled to the same basic rights as those in the civilian justice system.

The Guantanamo military trials do not operate according to either system of justice. The differences include:

  • The accused are not allowed access to all the evidence against them. The Presiding Officers are authorized to consider secret evidence the accused have no opportunity to refute.[15]
  • It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before the enactment of the Detainee Treatment Act.[16] However, legally the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense.[17]
  • The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning, and without explanation.[citation needed]
  • The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission. [18]
  • The accused are not permitted a free choice of attorneys, as they can only use military lawyers or those civilian attorneys eligible for the Secret security clearance.[19]
  • Because the accused are charged as unlawful combatants, former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of a release.[20]

Iraq War

A dispute exists over the legitimacy of the 2003 invasion of Iraq. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breached international law, or if the United Nations Security Council authorized the invasion (whether the conditions set in place after the Gulf War allowed the resumption if Iraq did not uphold to the Security Council resolutions). [1] Those arguing for its legitimacy often point to Congressional Joint Resolution 114 and UN Security Council resolutions, such as Resolution 1441 and Resolution 678[21][22]. Those arguing against its legitimacy also cite some of the same sources, stating they do not actually permit war but instead lay out conditions that must be met before war can be declared. Furthermore, the Security Council may only authorise the use of force against an "aggressor"[23] in the interests of preserving peace, whereas the 2003 invasion of Iraq was not provoked by any aggressive military action.

There is a heated debate regarding whether the invasion was launched with the explicit authorization of the United Nations Security Council. The Government of the United States believes that the invasion was explicitly authorized by Security Council Resolution 678 and thus complies with international law.[24] There is no debate that Security Council Resolution 678 authorizes UN Member States "to use all necessary means to uphold and implement resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area."[25], just debate about what that resolution actually means. The only legal jurisdiction to find "aggression" or to find the invasion illegal rests with the Security Council under United Nations Charter Articles 39-42. The Security Council met in 2003 for two days, reviewed the legal claims involved, and elected to be "seized of the matter".[26] The Security Council has not reviewed these issues since 2003. The public debate, however, continues. Former UN Secretary General Kofi Annan expressed his opinion that the invasion of Iraq was "not in conformity with the UN charter [...] from the charter point of view, [the invasion] was illegal."[27]

Abu Ghraib

Beginning in 2004, accounts of physical, psychological, and sexual abuse, including torture[28][29], rape[28], sodomy[29], and homicide[30] of prisoners held in the Abu Ghraib prison in Iraq (also known as Baghdad Correctional Facility) came to public attention. These acts were committed by personnel of the 372nd Military Police Company of the United States Army together with additional US governmental agencies.[31]

Lynndie England holding a leash attached to a prisoner, known to the guards as “Gus”, who is collapsed on the floor.

As revealed by the 2004 Taguba Report, a criminal investigation by the United States Army Criminal Investigation Command had already been underway since 2003 where many soldiers of the 320th Military Police Battalion had been charged under the Uniform Code of Military Justice with prisoner abuse. In 2004 articles describing the abuse, including pictures showing military personnel abusing prisoners, came to public attention, when a 60 Minutes II news report (April 28) and an article by Seymour M. Hersh in The New Yorker magazine (posted online on April 30 and published days later in the May 10 issue) reported the story.[32] Janis Karpinski, the commander of Abu Ghraib, demoted for her lack of oversight regarding the abuse, estimated later that 90% of detainees in the prison were innocent.[33]

The United States Department of Defense removed seventeen soldiers and officers from duty, and eleven soldiers were charged with dereliction of duty, maltreatment, aggravated assault and battery. Between May 2004 and March 2006, eleven soldiers were convicted in courts martial, sentenced to military prison, and dishonorably discharged from service. Two soldiers, Specialist Charles Graner, and his former fiancée, Specialist Lynndie England, were sentenced to ten years and three years in prison, respectively, in trials ending on January 14, 2005 and September 26, 2005. The commanding officer at the prison, Brigadier General Janis Karpinski, was demoted to the rank of Colonel on May 5, 2005. Col. Karpinski has denied knowledge of the abuses, claiming that the interrogations were authorized by her superiors and performed by subcontractors, and that she was not even allowed entry into the interrogation rooms.

The abuse of detainees at Abu Ghraib was in part the reason that on April 12, 2006, the United States Army activated the 201st Military Intelligence Battalion, the first of four joint interrogation battalions.[34]

References

  1. ^ Afghan Prisoners Going to Gray Area: Military Unsure What Follows Transfer to U.S. Base in Cuba, Washington Post, January 9, 2002
  2. ^ Guantanamo Bay prisoners plant seeds of hope in secret garden, The Independent, April 29, 2006 -- mirror
  3. ^ Alberto J. Mora (July 7, 2004). "Statement for the record: Office of General Counsel involvement in interrogation issues". United States Navy. http://www.aclu.org/safefree/torture/29228res20040707.html. Retrieved 2007-05-27. 
  4. ^ "Hamdan v. Rumsfeld" (PDF). June 29 2006. http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf. Retrieved 2007-02-10. 
  5. ^ "US detainees to get Geneva rights". BBC. 2006-07-11. http://news.bbc.co.uk/2/hi/americas/5169600.stm. Retrieved January 5, 2010. 
  6. ^ "White House: Detainees entitled to Geneva Convention protections". CNN. 2006-07-11. http://www.cnn.com/2006/POLITICS/07/11/congress.guantanamo.ap/. 
  7. ^ "White House Changes Gitmo Policy". CBS News. 2006-07-11. http://www.cbsnews.com/stories/2006/07/11/politics/main1790470.shtml. 
  8. ^ "Obama Issues Directive to Shut Down Guantánamo". NY Times. 2009-01-21. http://www.nytimes.com/2009/01/22/us/politics/22gitmo.html. 
  9. ^ "Closure Of Guantanamo Detention Facilities". Whitehouse.gov. 2009-01-22. http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/. Retrieved 2009-01-27. 
  10. ^ "Judge rejects Obama bid to stall trial". NZ Herald - AP. 2009-01-29. http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10554318. Retrieved 2009-02-07. 
  11. ^ Taylor, Andrew (2009-05-20). "Senate votes to block funds for Guantanamo closure". Associated Press. Archived from the original on 2009-08-30. http://www.webcitation.org/5jPWyaCDq. Retrieved 2009-08-30. 
  12. ^ http://www.zeit.de/newsticker/2009/11/18/iptc-bdt-20091118-538-23037074xml (in German)
  13. ^ http://www.spiegel.de/politik/ausland/0,1518,673952,00.html
  14. ^ http://www.whitehouse.gov/the-press-office/presidential-memorandum-closure-dentention-facilities-guantanamo-bay-naval-base| Presidential Memorandum--Closure of Dentention Facilities at the Guantanamo Bay Naval Base <---Dead link ---/>
  15. ^ GQ Magazine August 2007 "The Defense Will Not Rest" by Sean Flynn Page one, fourth paragraph down
  16. ^ "FAQs about the Military Commissions Act". The Center for Victims of Torture. http://www.cvt.org/main.php/Advocacy/TortureisUn-American/FAQs:MilitaryCommissionsAct. Retrieved 2007-12-17. 
  17. ^ "Military Commission Instruction No. 10" (PDF). United States Department of Defense. March 24, 2006. http://www.defenselink.mil/news/Mar2006/d20060327MCI10.pdf. Retrieved 2007-12-16. 
  18. ^ rcfp.org Feb 28 2004
  19. ^ "Trial Guide for Military Commissions" (PDF). United States Department of Defense. August 17, 2004. http://www.defenselink.mil/news/Aug2004/d20040820guide.pdf. Retrieved 2007-12-17. 
  20. ^ Donald Rumsfeld, Richard Myers (March 28, 2002). "Transcript: Defense Secretary Donald Rumsfeld and General Richard Myers, briefed reporters March 28 at the Pentagon.". United States Embassy, Canberra. http://canberra.usembassy.gov/hyper/2002/0328/epf402.htm. Retrieved 2007-12-17. 
  21. ^ International Law and the War in Iraq, John Yoo. The American Journal of International Law, Vol. 97, No. 3 (Jul., 2003), pp. 563-576 doi:10.2307/3109841.
  22. ^ Future Implications of the Iraq Conflict. W.H. Taft and T’F. Buchwald. The American Journal of International Law, Vol. 97, No. 3 (Jul., 2003), pp. 553-563 doi:10.2307/3109841,
  23. ^ "Under the Charter, the functions and powers of the Security Council are:". http://www.un.org/Docs/sc/unsc_functions.html. 
  24. ^ CRS Issue Brief for Congress (February 2002). "Iraq-U.S. Confrontation". Alfred B. Prados and Kenneth Katzman (IB94049). http://fpc.state.gov/documents/organization/9043.pdf. Retrieved 2009-04-23. 
  25. ^ Department of State (2003-03-20). "Saddam Hussein's Defiance of UNSCRs". Press release. http://2001-2009.state.gov/p/io/rls/fs/2003/18850.htm. 
  26. ^ Patrick McLaren, 'Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq' (2003) 13 Duke Journal of Comparative and International Law 233 (Lexis); Bill Campbell and Chris Moraitis, 'Memorandum of Advice to the Commonwealth Government on the Use of Force against Iraq' (2003) 4 Melbourne Journal of International Law 178.
  27. ^ Bennett-Jones, Owen (2004-09-16). Excerpts: Annan interview. BBC. Updated 2004-09-16. Retrieved 2009-04-18.
  28. ^ a b Benjamin, Mark (2009-05-30). "Taguba denies he's seen abuse photos suppressed by Obama: The general told a U.K. paper about images he saw investigating Abu Ghraib -- not photos Obama wants kept secret.". Salon.com. http://www.salon.com/news/feature/2009/05/30/taguba/. Retrieved 2009-06-06. "The paper quoted Taguba as saying, “These pictures show torture, abuse, rape and every indecency.” [...] The actual quote in the Telegraph was accurate, Taguba said -- but he was referring to the hundreds of images he reviewed as an investigator of the abuse at Abu Ghraib prison in Iraq" 
  29. ^ a b Hersh, Seymour Myron (2007-06-25). "The general's report: how Antonio Taguba, who investigated the Abu Ghraib scandal, became one of its casualties.". The New Yorker. http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh?printable=true. Retrieved 2007-06-17. "Taguba said that he saw “a video of a male American soldier in uniform sodomizing a female detainee.”" 
  30. ^ Walsh, Joan; Michael Scherer, Mark Benjamin, Page Rockwell, Jeanne Carstensen, Mark Follman, Page Rockwell, Tracy Clark-Flory (2006-03-14). "Other government agencies". The Abu Ghraib files (salon.com). http://www.salon.com/news/abu_ghraib/2006/03/14/chapter_5/index.html. Retrieved 2008-02-24. "The Armed Forces Institute of Pathology later ruled al-Jamadi's death a homicide, caused by “blunt force injuries to the torso complicated by compromised respiration.”" 
  31. ^ <http://www.salon.com/news/abu_ghraib/2006/03/14/chapter_5/index.html
  32. ^ Annals of National Security: Torture at Abu Ghraib: The New Yorker
  33. ^ Rummy's scapegoat - Salon.com
  34. ^ Army Activates First Interrogation Battalion, an April 2006 press release from the American Forces Press Service

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