More Afghan captives head for Cuba

Security at the base has been massively beefed up Another 30 Taleban and al-Qaeda prisoners have left Afghanistan by plane for Guantanamo Bay in Cuba, it is reported.

The prisoners, who were shackled and had white caps covering their faces, boarded a C-17 transport plane at trhe US base in Kandahar, the Associated Press reports.

Each prisoner was flanked by two US soldiers as they walked across the tarmac to the aircraft.

The first group of 20 detainees arrived in Guantanamo Bay on Friday and the US has defended their treatment amid international concern.

The US Defence Secretary, Donald Rumsfeld, contradicting the Red Cross, said the captives "will be handled not as prisoners of war, because they're not, but as unlawful combatants".

But he insisted the prisoners - who are under heavy guard - would be treated humanely and within the terms of the Geneva Conventions.

The first prisoners were taken to a temporary site - called Camp X-ray - at the Guantanamo Bay military base on Friday.

They will be kept separate, in cells measuring 1.8 by 2.4 metres (six feet by eight feet) with open, chain-link walls, a concrete floor and wooden roof.

The human rights group Amnesty International has voiced concern about the "cages" used for accommodation, saying they would "fall below minimum standards for humane treatment".

The International Red Cross (ICRC) says it regards the prisoners as PoWs with full rights under the Geneva Conventions.

The ICRC says it plans to start visiting them early next week to ensure they are being treated humanely.

Amnesty International said that "all those in US custody following the military operations in Afghanistan must be treated humanely, with full respect for international standards".

None of the prisoners has yet been charged but some could face military courts authorised by President George Bush following the 11 September attacks.

A new prison is being built at Guantanamo Bay to hold up to 2,000 prisoners behind razor wire.

Experts say the use of Guantanamo is carefully calculated - it is technically Cuban territory, leased to the US military - and if the detainees are never brought to American soil, they can have no recourse to appeals under US federal law.

The first detainees, who also arrived from Kandahar, were described by task force commander Marine Brigadier General Michael Lehnert as the "worst elements" of the al-Qaeda terrorist network.

The extraordinary security measures have been put in place amid fears of a prisoner uprising such as happened at Mazar-e-Sharif in Afghanistan.

sez who?

For starters the Supremes in recognized in ex parte Milligan that it is undisputed law that if the civilian courts are open and functioning, the armed forces cannot convene a military commission or tribunal to try offenses that fall within the civilian courts' jurisdiction. Yes, I realize that Rehnquist has written that in time of a *declared* war the government has greater authority to infringe civil liberties; however, wartime does not change due process.

Sorry, but Ashcroft and Lawrence Tribe chanting "unlawful combatants" does not save Bush's tribunals. In a recent article in " The American Prospect", George P. Fletcher wrote:

"The Supreme Court first used the term in 1942 in Ex parte Quirin to solve a particular problem that arose when eight German spies landed in civilian clothes on the beaches of Long Island. The FBI arrested them before they executed any of their planned acts of sabotage. President Franklin D. Roosevelt was resolved to prosecute them for something, and it turned out that there was a suitable law on the books -- a provision of the U.S. Code prohibiting spying in wartime near or around American military installations. That statute required trial by either court-martial or military tribunal and imposed an automatic penalty of death. Roosevelt quickly established the military tribunal that the statute authorized, but the constitutional dilemma remained. To see it, we have to concentrate on one horn at a time.

" The first problem was that these spies were members of the German army. We were at war with Germany and therefore the eight captives were arguably just like soldiers who might have crossed the Canadian border in tanks. And if they were combatants, then by the rules of international law we were not entitled to try them for acts committed in the pursuit of legitimate aims of war. As Chief Justice Harlan Fiske Stone wrote for the Supreme Court in Quirin: 'Lawful combatants are subject [only] to capture and detention as prisoners of war by opposing military forces.' The reason for this rule lies in the general understanding that a soldier is simply a servant of the state. He does not do anything in his own name. He cannot be held personally liable for the ravages of war.

"Now, admittedly, there are various ways around the rule. One is to deny that the military engagement is a war and call it instead some kind of police action. But the danger of trying too hard to deny the combatant status of those engaged in military battle is that we then encounter the second horn of the dilemma: If these are merely criminals who have committed crimes against the United States, they must be tried in a federal district court. That is the holding in the 1866 decision Milligan. In fact, it seems to be the tack taken by Harvard University law professor Anne-Marie Slaughter, who argued against Bush's tribunals in The New York Times, saying that al-Qaeda members fighting in Afghanistan are really just 'common criminals' and shouldn't be dignified with the status of combatants.

"Here, then, was the quandary faced by the Supreme Court in 1942: Either the eight German spies were combatants or they had to be tried in federal district court -- with full procedural protections -- for their apparent conspiracy to commit sabotage. To find a way out of this predicament, the Court invented the category of 'unlawful combatant.' Eureka! The spies fell conveniently between the stools of international law (no trial for combatants) and the rule in Milligan (an obligatory trial in available civilian courts); thus, they could be tried in Roosevelt's tribunal. The soldiers were 'unlawful' because they wore civilian clothes when they slipped behind enemy lines to spy. They did not deserve to be treated as combatants exempt from prosecution because by virtue of their deception they had not run the risk that all combatants run, namely of being shot when they cross into enemy territory.

" But if there is one idea that those now commenting on Bush's proposed tribunals systematically distort, this is it. They use the word 'unlawful' as if it were the equivalent of 'violating the laws of war.'Recall Tribe's line: 'In wartime, 'due process of law'...permits trying unlawful combatants for violation of the laws of war.' His logic seems to be that any soldier who commits a war crime would be an unlawful combatant and subject to trial by military tribunal.

" Alberto Gonzales, the chief White House counsel, betrayed the same root mistake when he addressed the American Bar Association in late November. He tried to demonstrate the limited scope of the tribunals by saying that the administration was only after 'enemy soldiers.' Then someone reminded him that enemy soldiers are protected by the Geneva Conventions and cannot be prosecuted at all. He corrected himself by saying that tribunals were after 'unlawful combatants.' He, too, seems to believe that the category of 'unlawful combatant' is so broad that it includes anyone the administration might want to prosecute in a special tribunal -- anyone who has done something unlawful and is a combatant. But that is not the meaning of the Quirin precedent.

"Much of the confusion arises from the failure to recognize that there are two bodies of law -- both called 'the law of war.' To understand the difference between them, we have to think ourselves back into the period before the Nuremberg trials, before the Japanese war-crime trials, when the law of war was not primarily about crimes; it was about how you conducted yourself as someone embedded in a chain of command and therefore qualified for the immunity from prosecution promised to combatants. It meant, among other things, that you had to wear a uniform, fight with your company, and cease fighting when the army surrendered.

" During World War II, the 'law of war' came to refer primarily to war crimes that violated basic principles of morality and decency. But when the Quirin case was decided, that transformation had not yet become apparent. There was nothing immoral -- by contemporary standards -- about the Germans spying in the United States. The Americans would surely have done the same thing in enemy territory (and probably did if they were smart). Perhaps there was something duplicitous about crossing enemy lines in civilian clothes, but one could hardly imagine bringing a case to The Hague on those grounds. Quirin did not incorporate the universal standards of morality that we now associate with the principles of the Geneva Conventions and the Rome Statute of July 1998 proposing an International Criminal Court.

" The key case in the transition to the modern law of war was the 1946 appeal to the U.S. Supreme Court by the Japanese General Tomoyuki Yamashita. A military tribunal in the Philippines, established by the postwar commander of the islands, Lieutenant General Wilhelm Styer, had charged Yamashita for allowing his troops to go on a rampage and commit atrocities against local civilians. The military tribunal had invented a new war crime that amounted, in effect, to a commander's negligent supervision of his troops, and the Supreme Court affirmed that it could do so. Thus was born the idea of a war crime under the law of war.

" If President Bush had a precedent on his side of the argument, it would be Yamashita v. Styer. According to this case, he surely has the power to use tribunals to prosecute war crimes (in the modern sense) that -- like the atrocities in the Philippines -- occur entirely outside the jurisdiction of the United States courts. Anyone who looks into the Yamashita case, however, will find that it stands together with Korematsu v. United States, the 1944 decision upholding the military internment of American Japanese, as one of the disgraceful episodes of World War II jurisprudence. Among other things, the Yamashita decision violated the Geneva Convention of 1929, which provides that prisoners of war may be convicted and sentenced 'only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power.'

" In other words, General Yamashita and every foreigner suspected of a war crime should have received the same procedural protection as was available in an American court-martial. (Thus, under the Geneva Conventions, Bush's executive order mandating military tribunals is unacceptable because it permits, among other things, a death sentence based on a two-thirds vote, while an American court-martial requires a unanimous vote.) The weakness of the Supreme Court's reasoning in Yamashita is exposed in stinging dissents by Justices Frank Murphy and Wiley Rutledge."

Botton line is that the Bill of Rights guarantees a civilian court trial to anyone accused of crimes in violation of federal statutes, with only two historically entrenched exceptions, neither of which apply here.

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