Those Crazy Activist Judges Are At It Again

They’ve gone and given the Gitmo detainees habeas corpus rights! What’s next? Fair trials? Madness!

That said, for my money, the news here is not that the Supreme Court reaffirmed the rule of law and the US Constitution, but that it did it by the scary-thin margin of 5-4, with the four against it being — you guessed it — Scalia, Thomas, Roberts and Alito. Which makes John McCain’s promise to appoint more judges of that stripe just that much more problematic.

Here’s the actual ruling (pdf link).

402 thoughts on “Those Crazy Activist Judges Are At It Again

  1. Actually, they didn’t quite do that, but they’ve come very, very close.

    Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

    http://volokh.com/posts/1213280702.shtml

  2. The thing that boggles the mind for me – and probably always will – is that this needed to happen in the first place (as in, they needed to restore something that shouldn’t have been taken away to begin with).

    I do agree with you about the margin – that’s scary.

  3. I told a friend about this decision. He said he could guess who the 4 were: RATS. (Roberts, Alito, Thomas, Scalia.) It fits so well.

    The part that scares me most, however, is Roberts’ comment that — in effect — “we already went too far, and they still want more.”

    It’s enough to make me both smile and weep.

  4. In which previous war did the United States extend the right of writs of habeus corpus to captured enemy combatants, let alone to unlawful enemy combatants?

  5. Oh, and feel free to further explain how this decision comports with Geneva III and the customary laws of warfare.

  6. Oh Scalia. Its a tragedy for the US that one of the best legal minds around (Scalia is ferociously intelligent) is also a total bigoted asshole. And that’s not loony liberal exaggeration. Look at the line quoted by Adam @2. Now look at what he says in Lawrence v Texas: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.”

    I’ll also note that he’s being deliberately rude. The very strong convention is for justices to say “I respectfully dissent.” In both this judgment and Lawrence, he leaves out the ‘respectfully’. Ass.

  7. John @ 8: I forget, did we formally declare war?

    We declared war as formally as we have for every military action since 1945.

  8. Gerrymander and Rodney:

    On who?

    The titular detainee in this case was a man of North African original living legally in Bosnia who was arrested from planning a bombing, released from prison when the Bosnian Supreme Court declared there was no evidence to hold him, then turned over to the US military who kidnapped him and took him to Cuba. Is the US currently at war with Bosnia, then?

  9. I forget, did we formally declare war?

    You’ve put your finger on the beauty of the whole system. Declared normal wars have a way of ending, at which point you generally have to give prisoners of war back or resolve their status somehow. (Or, in some cases, disappear them).

    But the War on Terror, like the War on Poverty and the War on Drugs, will never end. We have always been at war with Oceania and always will be. Neocons are thrilled to have found a loophole in this bothersome rule of law that permits them to detain people forever without review and based exclusively on the discretion of the executive. They have created the category of unperson — someone utterly without rights. And please note in the past the administration has steadfastly taken the position that (1) you have no right to know what criteria we use to classify someone as an enemy combatant [unperson], (2) you have no right to review what facts we used to make that determination or how we applied those facts to our definition that you can’t know.

    Now, no doubt some of the people at Gitmo are terrorists (that is, people aiming to use violence to cause terror to affect political change). In fact, I bet most of them are. But there is no rational reason to believe they all are. Bear in mind that the government picked up some of these people through a bounty system offered to warring Pakistani and Afghani tribesmen — a system that, in terms of reliability, ranks up with telling the Crips that you’ve give them money for every Blood drug dealer they bring you. The government doesn’t even believe they are all terrorists — they’ve released some. (Of course, some of those have gone on to commit terrorist acts after release. Administration supporters have used this as evidence that they are all terrorists; such supporters are able to engage in the mental gymnastics necessary to believe that the government is sometimes wrong about people being not terrorists but is never wrong about them being terrorists.)

    Civilized people would not classify a group as nonpersons outside the rule of law. People who were not servile to government would not tolerate a scheme in which the executive could pluck any human being on the face of the planet and make him a nonperson outside the law, giving only a long-winded “fuck you” as a response when questioned about it.

  10. Ken,

    a-freakin’-men.

    I don’t see how anyone could honestly look at the “Enemy Combatant” thing and not see it for what it is: a legal construct designed to avoid having to afford someone the rights of a criminal defendant or that of a prisoner of war.

    The absolute worst thing about it is the arbitrary nature of it. It’s what the Executive defines it to be, it’s not subject to review, and the Executive does not have to share the standards or evidence used in making that determination. It’s full-on Banana Republic justice, and it’s unworthy of a civilized nation.

  11. Yes, and any minute now, the terrorists are going to ride over the horizon on Islamic battle tigers with “Vote Obama” stickers on their butts. We’re all doomed.

  12. Dave Robinson:

    “They,” of course being “those who believe the Constitution is meant to be something other than neo-con toilet paper.”

    In which case: Yes, you’re right about that.

  13. This is awesome news. Made my day!

    Dave Robinson:

    I’m not dead, so the fight’s not over, so it doesn’t matter who’s “winning” at the moment.

  14. Dave Robinson (again):

    You don’t teach community college level English for a living, play bass and guitar and live in Central California, do you?

  15. Before everyone jumps on Dave Robinson, he might mean that the terrorists have won by inducing us to ditch ancient liberties in a fit of panic.

    It is, indeed, arguable that the terrorists have won a substantial victory by changing our society for the worse through our reaction to their vile acts.

  16. The terrorists played fast and loose with habeas corpus, Ken?

    I agree that we needed to respond to the attacks on Americans on our own soil, sharply and harshly. Whether we needed to also and (as noted today) illegally curtail certain civil liberties is another question.

  17. That’s my point. When we react to danger by meretriciously abandoning cherished liberties, the people who threaten us win — they can credibly say they’ve successfully terrified us into changing our society fundamentally.

  18. #6 Rodney Graves:

    In which previous war did the United States extend the right of writs of habeus corpus to captured enemy combatants, let alone to unlawful enemy combatants?

    There’s scant legal framework for declaring anyone an “unlawful enemy combatant” without some sort of trial.

    Geneva convention signatories can’t just grab people, declare they’re bad guys, and hold them without a trial. at least, not according to the international body that decides such things.

    In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ‘ There is no ‘ intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution — not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.

    Does that answer your question? We never voted to abandon the Geneva Conventions. With proven accusations of torture leveled against the US, along with proven cases of kidnapping of the innocent, and “extraordinary rendition” of those innocents to places where they were tortured, I should bloody well think that habeas corpus is important.

    It certainly is to me.

  19. John,

    Did we declare war in the XYZ (while most of the founding fathers were both alive and still politically active) affair? If not, were our naval actions against France piracy?

    Did we declare war against the Barbary Pirates?

    Did we declare war during the Korean Conflict?

    How about the Vietnam conflict?

    A formal declaration is NOT required for a state of war/conflict to exist and for the customary laws of warfare to pertain.

  20. Ken,

    The terrorists chose to make war upon the United States firm in the belief that we would treat their acts of war as criminal matters. That we are now making war upon them in return, and enforcing the customary laws of warfare in so doing (and to their detriment) is a consequence to be celebrated.

  21. RGG, could you clarify your statement re “The terrorists chose to make war upon the United States firm in the belief that we would treat their acts of war as criminal matters”.

    Is that a fact (with documented evidence) or an assumption?

  22. Rodney G. Graves, if you were making war upon them in return, the people in Guantanamo would be regularly visited by the Red Cross, would receive letters and packages, couldn’t be interrogated nor would they be forced to divulge more than their identity. Not to mention the explicit prohibition of humiliating and degrading treatment.

    So, no, you’re not “making war upon them”, nor you’re treating them as criminals. You’re just behaving like some criminal gangs, or African dictator.

  23. “A formal declaration is NOT required for a state of war/conflict to exist and for the customary laws of warfare to pertain.”

    Apparently not. But it helps.

    Be that as it may, I have notably little sympathy for the Bush Administration in this particular case, since the ruling is the result of the administration’s unwillingness to use previous models of judicial conduct regarding combatants; it decided that it would make a new model, and in doing itself opened itself up to the sort of judicial scrutiny it’s experiencing. If it didn’t want that, it should have stuck with the previously tried-and-true models.

  24. The problem is, John, that the previous treatment accorded to illegal combatants — spys, saboteurs, and those not following the rules of war, none of whom are POWs — was field interrogation followed by summary execution or eventual exchange, and people objected to that. The treatment of POWs is not a criminal matter (unless in the case of some crimes committed by the POW while in captivity) and these people, by definition, are not POWs.

    It may be that what eventually happens is that they are handed back to the governments in charge of Iraq and Afghanistan, for whatever treatment, legal, horrible, or both, that those governments decide to hand out.

  25. htom:

    I’m all for a more sensible way to deal with combatants who do not fit into standard slots. I’m not entirely convinced (nor was the Supreme Court, apparently) that how the Bush folks decided to do it was the best way.

  26. In which previous war did the United States extend the right of writs of habeus corpus to captured enemy combatants, let alone to unlawful enemy combatants?

    In previous wars, the United States had in its custody Prisoners of War, or enemy combatants. Both of those have specific legal positions both internationally and within the U.S. In this war, the Bush administration has unilaterally declared people “illegal enemy combatants”, a designation without legal meaning. The SCOTUS, quite reasonably, said “No way.”

    If they’d made them POWs, none of this would have been a problem. But that would have caused problems with things like indefinite detainment and torture, to name two.

  27. *pinches bridge of nose*

    I freely admit – this one’s too hard for me to answer clearly. But I’d really like to take a moment to try to pick at some bits.

    We’re not at peace – but we’re not at war. We’re in a state of undefined unrest, people are dying, our young men are abroad in a hostile and dangerous place. They’re hurting, being maimed and they’re dying. But we’re not at war.

    We’ve been attacked – very unpleasantly, very nastily and in ways that hurt us far beyond the small number – and compared to so many things, the 9/11 death toll is indeed a small number – who were murdered that day.

    We’ve lost a lot these last seven years, I think. We’ve lost a lot of innocence, we’ve lost a lot of freedom, we’ve lost a lot of faith in our leadership and in the belief that We Are The Good Guys. At least I have, mercy knows.

    But I do know this – it is important, more so than ever, for us to be The Good Guys. Every time someone with the power to do so decides that The Rule of Law must be adhered to – regardless of how inconvenient – we win. We, the Civilised, win. Every time someone with the power to do so decides that the Inconvenient Documents of the Bill of Rights, the Constitution and statutes of state and the morality of decent behaviour should be pushed aside in the name of expediency, we lose.

    And we lose more than ground, we lose more than lives, we lose more than resources – we lose ourselves. So this is a triumph, albeit a small one in a field where America – as a nation – is effectively directionless or at best led by a moron. It’s not about compassion for our foes, it’s not about bleeding-heart liberalism, it’s not about weeping as one pulls the electric chair’s switch – it’s about doing the civilised thing of adhering to the rule of law, of upholding due process, of carrying the torch of civilisation.

    The people who want to hurt us don’t do that. They do what the man with the book tells them to do, without thinking. They do what the man with the gun tells them to do, without daring to question. They do what the man in the uniform tells them, because you obey men in uniform. America is supposed to be different from that. America is meant to be better than that.

    Today, it was. I hope this starts a trend.

    Brainvent ends.

  28. Ken,

    At last count eight detainees who were released from detention at Guantanamo Bay were subsequently killed or recaptured while engaged in terrorist activities. Seems pretty close to the classical standard of 10:1 (better that ten guilty men should go free than one innocent be imprisoned) to this observer.

  29. Hugh,

    It’s the historical record and the understanding of al Qaeda leadership based on captured documents.

  30. G.

    The ICRC has made regular inspections of Guantanamo Bay, and still does so.

    Only Prisoners of War are entitled to the other provisions you cite. Only legal combatants become Prisoners of War when captured.

    Nor is there any obligation under the customary laws of warfare to accept the surrender of illegal combatants.

  31. Rodney G. Graves:

    “Seems pretty close to the classical standard of 10:1 (better that ten guilty men should go free than one innocent be imprisoned) to this observer.”

    I’m not aware of American legal jurisprudence suggesting that any innocent man should be imprisoned. Perhaps you can show me the relevant statutes permitting this?

  32. MarkHB,

    Long on vent, short on the other.

    This really comes down to enforcing the customary laws of warfare, or allowing them to lapse through non-enforcement. Warfare without regard to the customary laws of warfare is barbarism at its worst.

  33. Rodney,

    We may have to agree to differ on this one. I’m pretty sure that a lot of what’s happenning is actually in contravention of the rule of law.

  34. There is no problem with indefinite detainment of a POW.

    In some circumstances it’s allowed to hold them incommunicado.

    It’s true that the phrase “illegal combatant” does not appear in the text of the GC, but that’s not an especially useful argument, as the GC makes no pretense to covering everyone. It describes groups, how to recognize members, and what rights and privileges members of those groups have. “PoW” and “civilian non-combatant” are two (of I don’t know how many, spy, saboteur, clergy, medic, …) of the groups. There is no claim that the list of groups covers everyone.

    Most of this is in the Geneva Conventions, 1949, parts III and IV.

    http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm

  35. John,

    I thought you were an educated man.

    The underlying philosophy of our legal system is that the system is defaulted towards the presumption of innocence.

    Encapsulated by Sir William Blackstone (1769) as: “Better that ten guilty persons escape than that one innocent suffer.”

    That is the very generous standard of our system of criminal laws.

    The terrorists are not being tried for violations of United States Code. They are being tried for violation of the customary laws of warfare, which is a different legal basis and standard, but which still (as practiced by the Bush Administration which you malign) demonstrably approaches that generous standard.

  36. Rodney,

    does the term Post hoc, ergo propter hoc mean anything to you?

    Do you think that some of those eight may have decided to get a piece of the Great Satan because they were hosted in a chicken wire apartment for a few years without legal redress? ‘Cause, you know, that kind of treatment would certainly make me hold a wee bit of a grudge against the people who subjected me to it.

  37. Mark HB,

    Which law? The only set of laws I know of which run globally are the customary laws of warfare which are in effect and enforceable by any sovereign power whenever and wherever there is armed conflict.

  38. Rodney,

    You seem to have addressed the points that you think you know the answers to, but not what is directly at issue here. The person who took the case which is linked in this post was NOT captured in Iraq or Afghanistan. He was captured in Bosnia, a country which I do not think the US in currently engaged in hostilities against. The laws of the country in which he legally resided found that he had no case to answer. He was then forcibly removed from his own country, flown to Cuba, and detained without trial.

    1) How is he in any sense engaged in a war against anyone

    2) If you accept that the unproven charges against him are true, why on earth should the United States have jurisdiction over his trial and punishment? Rather than, oh, say, Bosnia?

  39. I’ll submit that just as soon as you submit evidence that they committed any crimes against the United States before they were locked up.

    Apparently, not even the military and intelligence folks in charge of Gitmo found that kind of evidence, because they were let go, weren’t they?

  40. Eddie,

    don’t forget to ask that if the charges against him were true, how come the US sent him home with a shrug and a “sorry”?

  41. MarkHB @ 34

    “We’ve lost a lot these last seven years, I think. We’ve lost a lot of innocence, we’ve lost a lot of freedom, we’ve lost a lot of faith in our leadership and in the belief that We Are The Good Guys. At least I have, mercy knows. But I do know this – it is important, more so than ever, for us to be The Good Guys. Every time someone with the power to do so decides that The Rule of Law must be adhered to – regardless of how inconvenient – we win. We, the Civilised, win. Every time someone with the power to do so decides that the Inconvenient Documents of the Bill of Rights, the Constitution and statutes of state and the morality of decent behaviour should be pushed aside in the name of expediency, we lose.”

    Thank you, for clearly and succinctly expressing something I’ve been trying to articulate for the last five or so years.

  42. Rodney G. Graves:

    First, do me a favor and compile your responses to several people into a single comment when at all possible. Multiple responses in a row by the same person annoys me for some indefinable reason. Thanks.

    Second, I am indeed a educated man, which is why I find puzzling that I cannot find in US jurisprudence the idea that its acceptable to imprison innocent people for any circumstance, as you seem to suggest. I ask you for an actual cite; you return me a quote that does not have actual legal relevance; you also, independent of this query, appear to imply that the Gitmo detainees don’t have rights under US law, which I imagine would come as a surprise to the SCOTUS, given today’s ruling.

    In any case, returning a quote when you’re asked for a legal cite is nonresponsive. I’ll just assume, in fact, that the US system of law does not have somewhere in its bowels an asterisk that says it’s okay to imprison innocent people. Indeed, I think there’s a legal term which means that the government must show cause to keep a person locked up. For the life of me I can’t remember what it is. Oh, well, it’ll come to me.

  43. Ex parte Quirin

    Ex parte Quirin requires judicial review to certify that the those held are, in fact, illegal combatants. The Bush administration had not allowed this.

    Since Ex Parte Quirin, the United States signed the Geneva Conventions, which hold that a prisoner must be according POW treatment until their status is determined by a competent tribunal. That has not happened either.

  44. There is nothing in the Geneva Conventions to prohibit the indefinite detention of a POW, which is what the appellant appears to be claiming to be. There are even provisions there for holding him incommunicado (although I’m not sure that he can be held secretly, but it may be that the IRC would accept being told and not announce it.)

  45. marko @ 47 – Lets not forget proof that any of this evidence was not coerced by torture. And the right of the accused to have their counsel make sure no evidence against them was coerced by torture.

    We’re just getting started on how badly Bush has messed things up for our legal system, and any shred of a chance that people who we did nab, and are real terrorists.

    F*****g with the legal system means that real bad guys get a chance to have convictions and detainment ceased. If we had shown any sense at all, we’d have scrupulously followed the rules on this, and not had to release actual terrorists.

    Unless we decide that the rule of law is a thing to be abandoned because we might have a bad guy. Which Bush has done. If that’s the road we want to take, we should at least do so knowingly.

  46. the argument is specious in its playing of the supreme court and its staffing…
    your real concern is in the enactments of this war which make you fear that as the enemies are nefarious and subjectively identified, that you, me, and everyone else is at risk, and maybe so, but probably not…

    understand that believing in the sanctity of Constitutional provisions for me doesn’t transfer to everyone…and someone has to decide which is which…that’s what they’re doing…there’s no need to wring hands over severed rights when there are none.

    so couching this in political supreme assignments is basesless here, the sendups from the last three presidents and their distinctly unpredictably unpolitical decisions and reasoning is very good proof of that…but don’t for a minute think the trend couldn’t change; internal domestic activism is at the core of bo’s shill, and a few choice scholars could change our internal freedoms forever, and have a far greater bearing on the lives of our children and grandchildren.

    i won’t belittle the risk to our Constitutional protections on any front; i hate the goofy airport crap and the chance of ending up on some watch list due to expressions that i am guaranteed the freedom of…but we haven’t been blown up again, yet.

    if the choice is between the possibility of “conservative” appointees exascerbating dngerous restrictions on citizens which must be adamently opposed…or the merchants of internal “hope and change” (talk about overreaching and dangerous restrictions and control), then give me my conservative.

    i think it is very dangerous to confuse these issues; control of the supreme court is control of our nation for generations,..external conflict and its management ebbs and flows, internal conflict and its “management” ebbs and ebbs, and ultimately drowns.

    jtc

  47. There is nothing in the Geneva Conventions to prohibit the indefinite detention of a POW, which is what the appellant appears to be claiming to be. There are even provisions there for holding him incommunicado (although I’m not sure that he can be held secretly, but it may be that the IRC would accept being told and not announce it.)

    There are a laundry list of rights that the Geneva Conventions require which have not been extended to the detainees in Gitmo.

  48. But it is not determined that he is a POW (although there’s a section that says some people should be assumed to be, combatants who are not following the rules of war might not be part of that group of people; more lawyers, send more lawyers!)

    Citizen and POW have traditionally been considered to be mutually exclusive groups, and it is not at all clear what this attempt to extend citizen rights — or USAian inhabitant rights, to coin a poor phrase — to foreign POW not held within the USA is going to be confusing at best.

  49. John @ 50: you also, independent of this query, appear to imply that the Gitmo detainees don’t have rights under US law, which I imagine would come as a surprise to the SCOTUS, given today’s ruling.

    (With apologies to Rodney G. Graves for speaking for him)

    The Scalia Boumediene dissent answers the question of law: by relying on the Johnson v. Eisentrager decision to extend habeas protections outside of sovereign US territory, the majority ignored a key ruling of Eisentrager — namely, that US-detained foreigners outside of US sovereign territory have no habeas rights.

  50. gerrymander:

    “The Scalia Boumediene dissent answers the question of law”

    Actually, no, it doesn’t, inasmuch as the current SCOTUS ruling now applies. There’s a reason why Scalia’s opinion is a dissent.

  51. But it is not determined that he is a POW

    Uh, yes, that’s sort of what this thing is all about.

    and it is not at all clear what this attempt to extend citizen rights — or USAian inhabitant rights, to coin a poor phrase — to foreign POW not held within the USA is going to be confusing at best

    Is habeas corpus a right extended only to citizens?

    The Scalia Boumediene dissent answers the question of law: by relying on the Johnson v. Eisentrager decision to extend habeas protections outside of sovereign US territory, the majority ignored a key ruling of Eisentrager — namely, that US-detained foreigners outside of US sovereign territory have no habeas rights..

    Yes, they essentially overturned Johnson v. Eisentrager. The Supreme Court is allowed to do that, you know.

  52. I’ve always been of the opinion (but I am not the King) that USAian legal rights belonged to USAian persons, a group that includes citizens of the USA, and those here legally, and those here illegally and peaceful, and perhaps some others. Those in Gitmo, though, are not here.

    I don’t think that they apply against other governments or in other places.

  53. Data Dump: Article 4 of Geneva III

    A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

    (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil[sic] the following conditions:

    (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. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

    (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    B. The following shall likewise be treated as prisoners of war under the present Convention:

    (1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

    (2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

    C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

  54. MarkHB wrote:

    But I do know this – it is important, more so than ever, for us to be The Good Guys. Every time someone with the power to do so decides that The Rule of Law must be adhered to – regardless of how inconvenient – we win. We, the Civilised, win. Every time someone with the power to do so decides that the Inconvenient Documents of the Bill of Rights, the Constitution and statutes of state and the morality of decent behaviour should be pushed aside in the name of expediency, we lose.

    What, exactly, does “being the Good Guys” gain us, if the attempt to follow the Constitution and extend legal protections to terrorists THAT THEY AREN’T LEGALLY ENTITLED TO BY ANY LAW OR TREATY CURRENTLY ON THE BOOKS leads to an inability to capture and interrogate terrorists, or indeed to fight back against terrorists in any effective way at all?

    Will you still feel that “the rule of law” must be followed if a detainee has information about a pending major attack on the United States, and breaking “the rule of law” means saving half a million lives and probably the existence of the United States as a nation?

  55. Thanks for still not responding, Rodney :). Questions about the Geneva convention / enemy combatants / prisoners of war become a bit harder when you can’t actually point to a war in which the prisoner is involved, don’t they?

  56. John asks:

    [snip request for consolidation, previously addressed]

    Second, I am indeed a educated man, which is why I find puzzling that I cannot find in US jurisprudence the idea that its acceptable to imprison innocent people for any circumstance, as you seem to suggest.

    I see… Not an issue of education but one of mis-characterization…

    Most folks understand that systems of justice which depend on humans for implementation will not be perfect. This recognition dates back to before Blackstone, but it was he who set the classical standard that a system of justice should be tilted towards the presumption of innocence for the accused even if that meant that ten guilty men might go free such that one innocent would not be falsely imprisoned.

    It is true that this is not explicitly mentioned in the Constitution nor in the USC. Both also fail to mention that water is wet, yet both are nonetheless true.

    Is it “OK” that an innocent be imprisoned? No. Does it happen in every justice system known to man? Yes.

    Build a new straw man, this one’s done for.

    I ask you for an actual cite; you return me a quote that does not have actual legal relevance; you also, independent of this query, appear to imply that the Gitmo detainees don’t have rights under US law, which I imagine would come as a surprise to the SCOTUS, given today’s ruling.

    Until today they did not. Nor have enemy combatants ever had such rights, before today.

    In any case, returning a quote when you’re asked for a legal cite is nonresponsive. I’ll just assume, in fact, that the US system of law does not have somewhere in its bowels an asterisk that says it’s okay to imprison innocent people.

    Though carefully and lovingly reconstructed, this straw man is still a straw man.

    Indeed, I think there’s a legal term which means that the government must show cause to keep a person locked up. For the life of me I can’t remember what it is. Oh, well, it’ll come to me.

    When it does, you may want to include the legal basis (prior to today, of course) on which a person not in the United States, nor a United States Person, is entitled to the protections of the Laws of the United States. I think that’s called jurisdiction, but I’m sure you know better…

  57. Will you still feel that “the rule of law” must be followed if a detainee has information about a pending major attack on the United States, and breaking “the rule of law” means saving half a million lives and probably the existence of the United States as a nation?

    Straw man.

    Forced interrogation–oh, let’s not be coy: let’s call it what it is, torture–has not yet been proven to give reliable intelligence. Victims of torture say what they think the torturers want to hear, whether or not it’s the truth.

    Actual military interrogators have shown over and over again that the best means of obtaining reliable intelligence is by forming a bond with the captive and wheedling information out of them rather than by inverting them on a board and pouring water over their heads.

    Additionally, the ticking-bomb scenario is just that–a scenario out of fiction. Reality is not an episode of “24”. And in fact “24” is having too much of an impact on reality.

    I’ll take being the Good Guys over becoming the black hats for the rest of the world, thank you very much.

  58. John at 67: I’m amused we went to exactly the same place.

    I’d have responded more quickly but I spent a while tracking down that New Yorker piece, which I want everyone & their brother to read. It’s pretty damning.

  59. “…Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

    That’s the problem right there.

    1.) Is there doubt? That should probably be taken on a case-by-case basis. However, if you’re paying an Afghan or Pakistani tribesman 5,000 dollars per terrorist (that’s the equivalent of 500,000 to 1,000,000 for an American citizen) the temptation to bring you someone, regardless of their actual status,,is fairly strong. See the comment on “Bloods and Crips” above.

    2.) Do the military commissions qualify as “competent tribunals?” If they are accepting evidence gained through torture, or not allowing the prisoners to learn/respond to the full nature of the case against them, then they clearly are not “competent” by any measure. (Habeas Corpus, BTW, is not exactly a newfangled idea – a tribunal that doesn’t recognize it won’t get any respect from me.)

    2.) Are the detainees at Guantanamo Bay being protected by the Convention until they have been before the tribunal?

    Clearly, the detainees have not been protected as mandated by the Convention.

  60. Eddie Clark,

    Far fewer wars in U. S. History (and world history, for that matter) have been the result of formal declarations than you seem to think. The wonderful thing about the customary laws of warfare, is that being an illegal combatant is a crime punishable by death.

  61. Rodney: a significant part of the majority opinion (all I’ve managed to read so far) is a discussion of whether or not people who are in Guantanamo Bay are, in effect, in the US.

    The government’s argument is that Guantanamo Bay is sovereign territory of Cuba, and that while we have a lease over the land under a treaty with that country, we do not actually exercise jurisdiction there.

    The argument on the other side is that this is a absurd, and that while Cuba maintains *de jure* sovereignty over Guantanamo Bay, its legal system has no authority whatsoever there, and that the US has de facto sovereignty over the territory.

    The majority opinion sides with this argument. Justice Kennedy makes a particularly telling point: under the government’s theory, it could sell any unincorporated territory to a third party, lease it back, and proceed to establish a tyranny there … an idea which is utterly inconsistent with the principles behind the Constitution.

    So, you might want to alter your rhetoric a bit: this decision is based on the presumption that the detainees in Guantanamo Bay are effectively within the US.

  62. Rodney Graves:

    “It is true that this is not explicitly mentioned in the Constitution nor in the USC.”

    “This is not explicitly mentioned?” Are you suggesting it is implicitly mentioned? That there is an implicit right to lock up innocent people?

    What you can’t actually seem to admit, Rodney, is that in fact, neither explicitly nor implicitly, is there an excuse to imprison innocent people. The best you can suggest is that sometimes it happens. Which doesn’t make it right when it does, nor does it imply that it should be tolerated when it happens. Your “straw man” in this case is the actual heart of the issue, and the fact that you see it as a straw men is instructive, to say the least.

  63. aphrael,

    I’d be perfectly content to completely “outsource” the detention and interrogation of illegal combatants at this point. Should such “outsourcing” be blocked, I can live with the black flag as well.

  64. John,

    Is there something you failed to understand about:

    Is it “OK” that an innocent be imprisoned? No. Does it happen in every justice system known to man? Yes.

    That straw man is in dire need of replacement at this point.

  65. Rodney G. Graves:

    I understand it’s inconvenient for you to admit to yourself that you lost this particular argument, which is why you trot out the “straw man” defense to avoid such an admission. Well, that’s fine. You go on ahead and do that.

  66. Wolfwalker –
    The ‘ticking bomb’ is a fantasy of french cinema and not a product of any real world event. Still, let’s presume for a moment that there is a ‘ticking bomb’ event. Laws against torture apply. Hero Jack tortures bad guy and saves Washington DC. Is a jury likely to convist this man? Even if a jury does convict what political price would any president pay for a pardon for Hero Jack?
    And there is more than one way to destroy our country. To subltly change it’s character with a slow erosion can just as effectively destroy our country. When fighting barbarians it is important not to become barbarians.
    And never ever create a political power or tool you are not willing to hand to your worst political enemy.

  67. John,

    Since beating the straw man back into its constituent straws does not suffice, I’ll burn it for you:

    1) No human system of justice is perfect.

    2) It is not “OK” that an innocent man should be punished.

    3) Because of (1) there will inevitably be cases of (2).

    4) In light of (3), the classical approach (see Blackstone) is to make it difficult to obtain convictions.

    5) Demonstrably the system in place (until today) at Guantanamo was upholding (4) in light of the earlier demonstrated cases where those released as presumptively innocent returned to the fray and were subsequently killed or captured.

    6) The traditional method under the laws of war for dealing with illegal combatants (as in what was formerly done with pirates) was that any sovereign power capturing same gave them a summary trial (often in the field) and then executed them.

    7) The system which was in place at Guantanamo was much closer to the Blackstone standard than to the customary laws of warfare.

    8) If you find that insufficient, I say hoist the black flag.

  68. Rodney @ various – I said I was swearing off political arguments for the month, so this post is costing me $10 (see my blog) but the argument is this:

    1) Who decides if somebody is a POW, an illegal combatant, or a civilian?
    2) What set of rules should be followed?

    Under the US system of law, the courts make that decision. See Ex Parte Quirin, cited above, in which The Supreme Court decided Quirin and his merry crew were enemy combatants.

    Even if you don’t want the US court to make that decision (and frankly I’m not sure that they should, at least for people not US citizens and not on US soil), whatever body does make the decision needs to be reasonably fair. This includes things like legal representation, rebuttal evidence, etc. The Combatant Status Review Boards don’t meet that standard.

  69. Rodney, you just keep dancing around what was a simple question:

    Q: Is it acceptable under US law to imprison innocent people?

    Which also has a simple answer:

    A: No.

    We’re done.

    Everything else you’re adding to it is you just going “yeah, but…” Well, add all the “yeah buts” you want, the answer is still “no.” I’m confused why you continue to have such a hard time with this.

  70. John,

    You are also aware that there were automatic reviews and appeals built into the system just overturned, and the appeals would be heard (after those reviews and appeals required) by the DC Circuit and then the Supreme Court?

    But hey, outsourcing or the black flag both work for me.

  71. John,

    Black Flag it is. We lose some intelligence, but it’s just so much simpler to kill all the combatants than to sort them out.

  72. Rodney:

    I’m aware the system that was just thrown out was unconstitutional, so the details of how it worked are neither here nor there in that regard, now, are they?

    Re: Black flag: Sadly for you, Rodney, you don’t get to make these decisions.

  73. Scream it. Not whisper it, say it, sing it or cry it – scream it.

    “UNCONSTITUTIONAL!”

    This is what we are.

  74. Actually, the answer to the question “Is it acceptable under US law to imprison innocent people?”, is (sadly) “yes, as long as something like the correct procedures at the time were followed.”

    Our criminal legal system is not our warfare legal system (and it’s not our admiralty legal system or civil legal system or patent or … how many are there, anyway, a dozen?) Using the procedures and standards of one for another is going to produce bizarre results.

    The presumption of innocence is supposed to be a feature of our criminal courts; it is not always available in others (and effectively does not exist for some charges even if the court pretends that it does.)

  75. *quietly fiddles with the breech of a very large gun behind Mr. Scalzi*

    Don’t mind me.

    *fixes the lie of his bolt*

    Don’t mind me a bit, just bein’ quiet here.

    *snik*

  76. I legally declare Rodney an illegal combatant, just because I can, and it means nothing anyway. Now I can do what I like.

    Pow. I win the argument.

    You’ve got to love word-play.

  77. htom,

    You are correct. And under the customary laws of warfare, one does indeed detain enemy combatants until cessation of hostilities. You should also note that the U. S. is not signatory to Genva IV nor the special protocols, which is why I cited Geneva III.

  78. John,

    Believe it or not, I hope you’re right. But my reading of history says we just kicked the props out from under the customary laws of warfare.

    Where that leads, none of us want to go.

  79. Rodney:

    Mixing Greek and latin is pretty atrocious, but I know very little Greek I’m afraid, so all I’ll add to what you said is:

    ad absurdum infinitum.

  80. Rodney, I apologise, I was taught by my latin teacher that meant “over my dead body”.

    Quite nice having a convo with someone you disagree with that doesn’t end up on the screeching chimp level, if I’m honest mate :thumbup:

  81. “You may take them, from my cold, dead hands” is probably a good English translation. You can say a lot in a few words of ancient Greek. Wikipedia has more.

  82. htom,

    The menace is more implied than stated…though I cannot say that the translation you provide is any less accurate either to the original, or my intent.

    My offer remains open, Andy.

  83. “under the customary laws of warfare, one does indeed detain enemy combatants until cessation of hostilities.”

    Therein lies the rub.

    You seem to be defining “enemy combatants” by quoting chapter and verse from the Third Geneva Convention, but it’s not clear to me exactly which of those terms you think defines a North African living in Bosnia as an “enemy combatant”.

    And what, exactly, defines “cessation of hostilities” in an open-ended, undeclared “war on terror”? When every terrorist in the world is in captivity? Or only when John McCain’s hundred years of occupation of Iraq have expired?

  84. Note: I just released a whole bunch of posts in the queue from the spam trap/moderation queue, so it might be worth it to look up and down the thread again.

  85. 5) Demonstrably the system in place (until today) at Guantanamo was upholding (4) in light of the earlier demonstrated cases where those released as presumptively innocent returned to the fray and were subsequently killed or captured.

    Actually, that hasn’t been proven. I submit that it’s more likely that the poor treatment those individuals received in US custody led directly to their entry (not return) into the fray. If we released them as presumptively innocent, in a context where we’ve been refusing to release prisoners even when there’s ample proof of mistaken identity or false information, then the fact that we released them implies that they actually were innocent of terrorism–before we abused them.

    In short, we helped make those guys terrorists. Sure, we weren’t alone in it. But the conditions at GTMO, and the international press about it and Abu Ghraib, did an awful lot of OBL’s recruiting work for him.

    That they became terrorists after release is to be abhored, but it is not, actually, a surprise.

  86. Rodney G. Graves: Is it “OK” that an innocent be imprisoned? No. Does it happen in every justice system known to man? Yes.

    Are you kidding? We’re not speaking of the more or less isolated miscarriage of justice, we’re speaking of a whole illegal system who discards the presumption of innocence, the habeas corpus, the prohibition of torture and inhumane or degrading treatment and the right to a fair trial, effectively renouncing to centuries of that Western tradition you’re so eager to defend.

  87. You know, the legal half-assery is kind of making my head spin, but the fact that it’s being backed up with “dum dum dum DUM the terrorists will COME GETCHA” tells me all I need to know about its factual basis.

    We do not allow prosecutors to declare that people accused of particularly evil crimes are not really ‘defendants’, but have some kind of quasi-defendant status, and therefore are not afforded the protection of the law to which criminal defendants are entitled. We do not permit them to do this even when the defendants are very likely guilty, or are not American citizens, or when they pose a threat to the community.

  88. Those liberal activist judges are mad for power, usurping the plain language of the constitution. Giving people RIGHTS and restricting the divine rule of Our Fearless Leader– it’s a wonder why we haven’t fallen into anarchy.

  89. G,

    No, I’m not kidding. Fair chunks of the customary laws of warfare are codified by binding treaties ratified by the United States Senate (Geneva III, Treaties of the Hague, etc.). These laws are indeed less protective of the accused than are our domestic criminal code, and I view that as both fitting and proper.

    If one does not want to be held to the customary laws of warfare, one need only refrain from engaging in warfare.

    Arguments concerning the application of said customary laws against United States Persons were moot under the acts which the court took issue with, as United States Persons were specifically exempted.

  90. I think I should have used a few more words earlier.

    When I said “They’re Winning” I was actually referring to the terrorists. The very idea that four out of nine Justices believe that Habeas Corpus should not be applied to the Guantanamo detainees is a terrorist victory, if only a “moral” one for the moment.

    It’s the same goal Russian Anarchists of the nineteenth century were after: force a government crackdown so as to make any alternative seem more appealing.

    And no, I don’t live in California or play the guitar :)

  91. Rodney, your argument seems to boil down to “we’re within our legal rights to kill them outright, so we’re actually being magnanimous by indefinitely detaining (and quite possibly torturing) them.” Is this correct?

    I’m also somewhat curious what the Bosnians would think about us simply opening fire on someone their justice system just released.

  92. A few minor nits that want picking:

    1. The question raised by John (I’m not aware of American legal jurisprudence suggesting that any innocent man should be imprisoned) requires two points in response.

    a) the “should be imprisoned” is an overstatement of intent which is beneath the dignity of a professional writer; it is demagoguery, not reason.

    b) Given that the legal standard required for imprisonment is “proof beyond reasonable doubt” rather than “proof beyond all doubt”, it seems certain that American jurisprudence contemplates the occasional erroneous conviction, nicht wahr?

    2. I trust that Marko knows that “Post hoc, ergo propter hoc” is the name for a logical fallacy and was being ironic in his usage.

    3. Many of those supporting the SCOTUS decision are demonstrating emotion rather than reason and a willingness to abandon reason when they like the result. I doubt many of you are as quick to declare the results “CONSTITUTIONAL” when the decision goes 5-4 (or even 7-2) against your preferred position (e.g., the 2000 decision halting the Daley recount of presidential ballots.)

    4. It seems to me that a fundamental difference exists between those for and against this decision: one side views the Terrorists as criminals, entitled to all Constitutional processes of the American courts (a view shared by the terrorists, BTW, as captured documents demonstrated their intention to tie-up in the courts any attempts to prosecute them — including false claims of torture) while those deploring the SCOTUS decision are obviously agreed that the Terrorists are engaged in acts of war against the United States and therefore are subject to the Laws of War which do not extend such rights as habeas corpus to such combatants. As both sides are arguing from incompatible premises there can be no meeting of minds.

  93. DG Lewis,

    Our enemies hide amongst civilian populations, do not bear their arms openly, and do not observe the customary laws of warfare. All of these (individually and most assuredly together) are war crimes punishable by death. Were it not for the first two, we would not be collecting suspected illegal combatants from agencies of other nations.

    You should also note that in warfare, suspicion is grounds for the use of lethal force.

  94. Chief Justice Roberts Wrote in his dissent:

    Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.”

    Can’t say I disagree with the man. I’ve been looking for examples of where he’s wrong, and my search-fu is fierce. I could find nothing contradicting this.

    Next to Kelo, this will be the most reviled SC decision in recent memory for years to come.

    Andrew

  95. mythago (#110):

    We do not allow prosecutors to declare that people accused of particularly evil crimes are not really ‘defendants’, but have some kind of quasi-defendant status, and therefore are not afforded the protection of the law to which criminal defendants are entitled. We do not permit them to do this even when the defendants are very likely guilty, or are not American citizens, or when they pose a threat to the community.

    You might try explaining that to the children in Texas who were taken from their parents and placed in foster care (and who have now mostly? been returned; they were still taken, and held.)

    Part of what’s happened is that war has changed. It always was a bit of a media and law thing, but modern communication has overturned the old balance. Getting your position onto the airwaves first makes it much more likely that your view will be seen as being true, even if it is not. Making a fuss in court gets you publicity these days, while it used to just get you another day in the brig. Further, it is not enough to “hold the high moral ground”, it is essential to be seen to be doing so. The easy way to deny that is to point out any flaw in the enemy treatment, and proclaim that the flaw is the standard required.

  96. Andrew @ 117:

    “Most reviled SC decision?” Aww, and I was hoping for Lawrence v Texas – unlimited gay sex is much more revolting than, yknow, upholding the rule of law.

    Rodney @ everywhere: (Sorry for caps, my html sucks and they are in lieu of bold)

    You still haven’t answered my questions. You’re saying that this debate is (I quote): “enforcing the customary laws of warfare, or allowing them to lapse through non-enforcement. Warfare without regard to the customary laws of warfare is barbarism at its worst.”

    You then say to me: “The wonderful thing about the customary laws of warfare, is that being an illegal combatant is a crime punishable by death.” (presumably guantanamo is better than this)

    This STILL requires a state of warfare under which combatants, legal or otherwise, are operating.

    By what logic is it reasonable a legal resident of a foreign country with which the US is NOT EVEN ARGUABLY IN CONFLICT WITH allowed to be unilaterally detain someone not guilty of any crime, or of undertaking any aggressive act whatsoever against the US to be abducted from his country and detained in Cuba for six years? Declared or underclared, there is NO state of war between Bosnia and the United States. Unless being ACQUITTED of terrorism charges in a foreign country immediately makes one part of some amorphous supra-national Masters of Evil group out to Get the United States, this is clearly an extra legal abduction. In which case an immediate habeas corpus application is the only justifiable course of action.

    I await your response, Mr Graves.

  97. When fighting barbarians it is important not to become barbarians.

    When fighting a war of annihilation (no, I don’t want to annihilate them, but they most certainly want to annihilate us), it’s most important to win.

    And never ever create a political power or tool you are not willing to hand to your worst political enemy.

    Agreed. SCOTUS just did exactly that, by handing our political and military enemies in this war the ability to use our own court system against us.

    Oh yeah, Scalzi: I’ve never watched an episode of 24. I live in the real world — the one you and your kind explicitly reject when you commit yourselves to the delusion that putting moral principle above survival in a war of annihilation is actually a winning strategy. Two thousand years ago, Christians thought the same thing when they were marched into the Colosseum to face the lions. They went to their God with a song in their hearts and a smile on their lips.

    But at the end of the day, the only ones smiling were the lions.

  98. A few questions:
    Was the Constitution being used as “neo-con toilet paper” by the SCOTUS in their 2005 6-3 decision in Johnson v. Eisentrager, which found:
    1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.

    2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States. Ex parte Quirin, 317 U.S. 1 ; In re Yamashita, 327 U.S. 1 , distinguished. Pp. 777-781.

    3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. Pp. 781-785.
    [ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=339&page=763 ]
    HT: James Taranto

    Are the government officials not duty-bound to adhere to SCOTUS precedent?

    Further addressing John’s earlier poser:
    “Q: Is it acceptable under US law to imprison innocent people?

    Which also has a simple answer:

    A: No.

    We’re done.”

    The answer, as anyone who saw “The Paper Chase” (or, less commonly, has endured instruction via the Socratic Method) knows, is not so simply done.

    In the first place, please demonstrate that US law does not permit imprisonment of innocent people. Please address the issues of protective custody, material witness, preventive detention and Korematsu (we’ve said we were wrong, but we haven’t overturned the precedent and thus it remains the Constitution) in your answer. Include in your answer the purpose of the appellate process if imprisonment of the innocent is not a possibility contemplated. Also address the issue of custody upon suspicion of criminality

    Second, even if we grant your assertion of never imprisoning the innocent for the basis of discussion, a simple “no” does not end it. What procedures and processes do you propose to assure we never imprison the innocent? In law all decisions entail consequences which must be addressed; if you say no innocent person may be imprisoned you must assert what standards of proof you are willing to abide: preponderance of evidence, beyond reasonable doubt or beyond a shadow of a doubt?

    The only standard logically consistent with the position you can take is that last one. Which would mean that we must grant Osama bin Laden is innocent of the crimes perpetrated by the 9/11 attackers and that our attacks upon him were unprovoked and improper.

  99. Wolfwalker:

    “I live in the real world”

    I think you’re terrified of the real world, actually. Which is not the same thing as living in it.

    Honestly, the neocon philosophy of stripping civil rights in the guise of security makes perfect sense if you assume that at their heart, they’re all a bunch of truly frightened pussies.

    RES:

    “The answer, as anyone who saw ‘The Paper Chase’ (or, less commonly, has endured instruction via the Socratic Method) knows, is not so simply done.”

    No, it really is. This is a fairly binary matter under US law.

  100. Eddie Clark asserted:
    “This STILL requires a state of warfare under which combatants, legal or otherwise, are operating.”

    Actually, it doesn’t. You are in error, you are mistaken, you are wrong. It merely requires a state of declared hostilities be in effect, which has been properly declared by Congress.

    You further asked:
    “By what logic is it reasonable a legal resident of a foreign country with which the US is NOT EVEN ARGUABLY IN CONFLICT WITH allowed to be unilaterally detain someone not guilty of any crime, or of undertaking any aggressive act whatsoever …”

    What, pray tell, is the subject of your sentence?

    In response to your statement:
    “Declared or underclared, there is NO state of war between Bosnia and the United States.”

    Nor is it necessary for such a state to exist when the “abductee” is a third party combatant, operating with or without the consent or knowledge of (to use your example) Bosnia. Under the established rules, our troops are free to engage any combatant and kill or capture them regardless of their residency. And in war there is no requirement for combatants to ascertain the intent or guilt of their opposition; reasonable suspicion is quite adequate. The logical alternative being to give any enemy combatant at least “one free” shot and increase the number of our troops wounded and killed. In such circumstances, merely being in the wrong place at the wrong time is crime enough.

    These misunderstandings result from attempting to deal with the terrorists as “criminals” rather than enemy combatants. Very different standards apply.

  101. “This is a fairly binary matter under US law.”

    Nonsense. Your refusal to recognize serious questions does not mean they don’t exist, just as your ipse dixit argument is the logical equivalent of “I got nuthin’.”

    I will reiterate my primary questions, as I erred in giving the date of the case: Was the Constitution being used as “neo-con toilet paper” by the SCOTUS in their 1950 6-3 decision in Johnson v. Eisentrager?

    Are the government officials not duty-bound to adhere to SCOTUS precedent?

    As I have amply shown, US Law does indeed anticipate, contemplate and condone the imprisonment of innocent persons. You have utterly failed to rebut, you have offered neither argument nor evidence in support of your position. You ain’t shown a leg to stand on.

  102. After going thru the thread, I think one thing is being ignored, and that’s the purpose of the Geneva Conventions.

    These rules and regulations were designed to limit the amount of damage to non-combatants and civilians. Under the rules, combatants are required to wear uniforms or other easily recognizable “shoot me, not them” signs.

    Those considered enemy non-combantants detained by the military during firefights or other attacks are by definition NOT covered by the Geneva Conventions. The allowance for summary executions in this case are supposed to be a maximally strong deterrent to insure that civilians are protected and the laws of war are followed.

    What this SCOTUS decision does is weaken the punishment aspect of the rules, and will further open a big can of worms. And all that will do is force the military to open up a big ol’ can of something else on anyone that causes suspicion.

    And we all lose on that. We ARE the good guys, and we’re trying to protect those that are being preyed upon by those that are using them as human shields. And quite frankly, despite the snarky comments, we ARE being generous by not executing them on the battlefield. The military has every right to do so.

    This SCOTUS decision will come back to haunt us, I’m afraid to say.

  103. Oh, my apology for the serial posting, but just one more thing (as Columbo was wont to say):

    “Honestly, the neocon philosophy of stripping civil rights in the guise of security makes perfect sense if you assume that at their heart, they’re all a bunch of truly frightened pussies.”

    That is an ad hominem argument and logically a fallacy. Further, You keep using that word [neocon]! I don’t think it means what you think it does, as The Spaniard said. Frankly, I don’t think you’ve ever even bothered to read the Wikipedia entry, much less any actual neocon essays. Your usage reminds me of a guy who reads porn and thinks he knows all about sex.

  104. Rodney Graves writes, “If one does not want to be held to the customary laws of warfare, one need only refrain from engaging in warfare.” And how, one might ask, would one prove that one was not engaging in warfare from a cell in a U. S. prison in Cuba?

    Is the ground really going to open up and swallow the U.S. because detainees can seek habeas corpus review? Somehow I doubt it. I’d much rather detainees have that right than that the President gets to detain people without being subject to judicial review. Even if those people are not U.S. citizens. Of course, I’m not a xenophobe.

  105. RES:

    “Nonsense. Your refusal to recognize serious questions does not mean they don’t exist”

    I don’t refuse to recognize serious questions. You may infer the seriousness with which I take your examples therein.

    “Was the Constitution being used as ‘neo-con toilet paper’ by the SCOTUS in their 1950 6-3 decision in Johnson v. Eisentrager?”

    Come back, RES, when you can ask a question that is not inherently ahistorical. Start by fixing in your mind when “neo-conservative” became an operative phrase.

    As for detaining innocents, for example, material witnesses, I certainly agree the current administration has a penchant for using the material witness statutes to detain those it sees as suspects for unconscionably long periods of time, but the legality of such detentions, perhaps not entirely surprisingly, is in some dispute at the moment. Beyond that, while I think it’s amusing that you’re attempting to conflate, say, witness protection with indefinite and/or illegal detention of a criminal suspect who nevertheless has the presumption of innocence, I’m not obliged to treat such a conflation with any seriousness, and don’t.

    “That is an ad hominem argument and logically a fallacy.”

    It is neither an argument nor a logical fallacy. It’s an opinion.

    htom:

    Thanks for the link — I’ll look at it. A quick glance at it suggests there’s a complication in that there was an actual commission of a crime involved, as opposed to the fellow being out and out innocent (and thus, having no additional sentencing complications).

  106. Oh yeah, one last question:

    While I realize many wish to argue as unencumbered by facts as possible, I occasionally find it useful to actually know what I’m talking about, so I proffer this passage from Justice Roberts’ dissent:

    Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

    The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

    The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

    The administration and the Congress relied upon SCOTUS precedent as established in at least two precedents, Hamdi and Johnson v. Eisentrager. The majority opinion rewrote the Constitution without adequate cause.

    My question is, What does Boumediene mean in practice?

  107. The answer, as anyone who saw “The Paper Chase” (or, less commonly, has endured instruction via the Socratic Method) knows, is not so simply done.

    Having watched an old movie about law school does not make one a lawyer, or an expert on the law. (Neither does watching Law & Order: SVU. Sorry, guys.)

    I’m a little puzzled by Rodney’s assertion that if you don’t want to get swept up into GTMO, you simply refrain from engaging in warfare. It seems at odds with his claim that modern terrorists don’t engage in what we commonly think of as “warfare”. It also smacks rather loudly of good old Edwin Meese’s assertion that people don’t get arrested unless they’re guilty of something.

    I’m personally quite tired of people who loudly insist that they’re smarter than all of the Framers put together, and that this different. And if those people then go on to pretend they are “strict constructionalists,” they should be slapped with a pailful of dead smelt. Even, and perhaps especially, if they are Supreme Court Justices.

  108. RES:

    “The majority opinion rewrote the Constitution without adequate cause.”

    I’d bet the majority would disagree with you there, RES. And as they are Supreme Court justices and you’re a largely anonymous commenter, I’m inclined to bow to their jurisprudential experience on the matter. Sorry.

  109. Well, as you invited it, John:

    Come back, RES, when you can ask a question that is not inherently ahistorical. Start by fixing in your mind when “neo-conservative” became an operative phrase.

    The question was not ahistorical; it was reflective that the “neocon” position was based upon a 50 year-old precedent and that therefore it is the current majority, not the neocons, who wipe their bottoms with the Constitution. Too subtle for you? My apologies. You are apparently using “neocon” according to the diktat of Orwell regarding “Fascist” — as a word meaning something you don’t like as opposed to referring to any actual philosophy.

    By your unwillingness to recognise as serious the questions posed, I certainly do infer the seriousness of your thinking. Certes, you are not obliged to treat any arguments or questions posed here with seriousness, and clearly doijng so is not in your interest.

    You stated as an ABSOLUTE position that:

    Q: Is it acceptable under US law to imprison innocent people?

    Which also has a simple answer:

    A: No.

    We’re done.

    I provided multiple examples to the contrary. It is your error in conflating those exceptions to your absolutist principle of no imprisonment of innocents with the detainees at GTMO. I am glad you were amused although I regret you didn’t try thinking.

    As you keep ignoring, the GTMO detentions were based upon long established SCOTUS rulings.

    I do appreciate your clarification about the opinion expressed, and I apologise for the assumption you might base your opinions upon evidence and/or reason.

  110. Yeah, but if I’m reading the actual Supreme Court ruling correctly (and I may not be), the ruling pretty much punts the defendant back to the district court, telling him to try a different tack on procedural grounds. The ruling sucks, in my opinion, but it doesn’t say he’s obliged to stick out the full term of his sentence, regardless of his innocence; it says he needs to go back and attack it in another direction. It’s Kafkaesque, yes, and I think it’s badly decided. But is it genuinely dispositive on the question of an innocent person being wrongfully detained? It seems not, albeit on a fairly shameful technicality.

    Now I want to find out whatever happened to this dude.

    RES:

    “The question was not ahistorical; it was reflective that the ‘neocon’ position was based upon a 50 year-old precedent and that therefore it is the current majority, not the neocons, who wipe their bottoms with the Constitution.”

    Not really. The neocon position was made up out of whole cloth and then retconned into what the Adminstration wanted to claim was within its scope of powers; the SCOTUS in this as in several other recent cases involving detainees, said “nice try” and threw out their bad logic and bad law. Now, maybe you think that “make up an extra-legal trial system and find something in the case law to justify it” is a fine way to fiddle with the Constitution, but I don’t, and clearly the Supreme Court doesn’t either, Bush’s attempt to jam as many fellow travelers onto the court notwithstanding.

    “I provided multiple examples to the contrary.”

    You provided multiple not-on-point examples to the contrary, which continue to be not on point, despite your insistence to the contrary. Again, I’m not obliged to take them seriously, and don’t. I suggest you leave it. If it makes you feel better to declare victory on the point, be my guest.

  111. mythagoon wrote:

    “The answer, as anyone who saw “The Paper Chase” (or, less commonly, has endured instruction via the Socratic Method) knows, is not so simply done.”

    Having watched an old movie about law school does not make one a lawyer, or an expert on the law. (Neither does watching Law & Order: SVU. Sorry, guys.)

    Nor did I assert it did, eh? I merely provided it as an example of thought, trained, disciplined thought. As in, there is ALWAYS another question because your arguments have consequences which ought be addressed.

    And John, the majority clearly disagree with me, as did the majority in Dred Scott and Plessy v Ferguson. That doesn’t make them right and me wrong. And both of those were as much the Law of the Land as this current decision … and for that matter, as were the precedents which this has overturned. you are confusing being in power with being right. I doubt you would be so quick in that judgment had the ninth vote gone the other way, so you will understand if I take your approval of the result as being merely your opinion, unless you can provide me evidence of your similarly supporting the majority in Bush v. Gore.

  112. RES:

    “And John, the majority clearly disagree with me, as did the majority in Dred Scott and Plessy v Ferguson. That doesn’t make them right and me wrong.”

    Well, in those cases, no. In this case, however, it does (more accurately, in this case they happen to be right, and you happen to be wrong, independent of other factors and relationships). However, I do find it amusing you haul out Dred and Plessy after lots of comments bemoaning the current court’s (in your opinion) lack of love for stare decisis. The conditional suppleness of your commitment to that cause is instructive.

  113. John,
    From what I have read, yes, this is just another punt by the judicial eminences who, like many book reviewers, don’t know themselves how to do what they demand, but are cocksure of their ability to judge how others do it.

    Obviously, I misread your assertion that

    I’m not aware of American legal jurisprudence suggesting that any innocent man should be imprisoned.

    as restricting the principle ONLY to the issue of GTMO detainees. My apologies for thinking you meant what you wrote; I s’pose even a professional author must be granted some leeway in posting to his blog.

    As you provide no evidence for your claim that

    The neocon position was made up out of whole cloth and then retconned into what the Adminstration wanted to claim was within its scope of powers

    I will take it as merely an opinion having no basis in fact and contrary to the evidence and arguments I’ve presented, evidence and arguments you apparently find inconvenient.

    As to your claim that

    the SCOTUS in this as in several other recent cases involving detainees, said “nice try” and threw out their bad logic and bad law.

    that is precisely what the SCOTUS ordered the Administration and the Congress to do in its 2006 Hamdan decision. Now you blame the Administration (and not the Congress?) for their reliance on established SCOTUS precedent and inability to anticipate the whims of the Court? Well, you are certainly entitled to your opinion and by the way it is informed and defended others are entitled to form opinions about you. That, of course, is the wonderful thing about opinions: they’re like sphincters in that everybody has them and they’re most notable for emitting foul odors.

    Be assured it gives me no pleasure to “declare victory” as I could have done that without a single post here. No, my hope was to stimulate thought and find reasons why I might be in error, and there I must confess to have failed and am thus disappointed.

    I am quite confident your time and energy are far better spent on writing novels, an area in which I am sure you are far more accomplished.

  114. wolfwalker @120:When fighting a war of annihilation (no, I don’t want to annihilate them, but they most certainly want to annihilate us), it’s most important to win.

    This depends on your definition of victory.I’m an Israeli, we’ve been under threat of annihilation from before I was born.I have repeatedly stated, and I believe most Israelis would agree with me, that I would rather see my country destroyed and my people dead(and that means me and my close family as well- so I don’t make this declaration lightly) then see them rejoice in the destruction necessary to keep us alive.Because on that day even if no Palestinian is left alive, we would lose, we would lose not because our bodies are destroyed but because we would become the monsters that we abhor.

    Dave @125:I believe the issue under contention here was the question of identifying said people- for example the detainee who filed the current SCOTUS challenge was nabbed after being cleared of charges of terrorism in Bosnia, his place of residence.I do not believe I’m knowledgeable enough to engage in this debate, since I do not follow those matters on regular basis

  115. Anton,

    Actually, I wasn’t posting to the Bosnian question, but to the concept in toto. Being cleared in Bosnia doesn’t mean he was cleared by the U.S. troops that detained him. That’s a separate jurisdiction.

    The rest of my argument holds. By giving non-uniformed irregulars Geneva status without their formal acceptance actually undermines and would eventually destroy Geneva as an effective rule set.

  116. RES:

    “I will take it as merely an opinion having no basis in fact and contrary to the evidence and arguments I’ve presented, evidence and arguments you apparently find inconvenient.”

    You have an overinflated opinion of the quality of your arguments, RES; they are inconvenient, in that many of them are not particularly good. I understand you want to believe that your every jot and twitter must me addressed, but I hold a different view. I do apologize that you are not getting to have the conversation you seem to think you should be having, but this is what happens when you talk with real live people who can decide for themselves which branches of discussion are worth having and which are not.

    “Now you blame the Administration (and not the Congress?) for their reliance on established SCOTUS precedent and inability to anticipate the whims of the Court?”

    I certainly blame do the Administration for helping to craft a law that did not meet judicial scrutiny; contrary to your opinion, it doesn’t appear to me that this should have been an onerous task. And yes, by all means, the Congress deserves ample blame in this as well, especially folks like Arlen Specter, who apparently believed the law was unconstitutional on its face (as it was) and voted for it anyway. To be sure, there’s more than enough bi-partisan blame to go around there. But inasmuch as the Administration’s jaskassedness handling of detainees got the ball rolling, they certainly have the lion’s share of the blame.

    “I am quite confident your time and energy are far better spent on writing novels, an area in which I am sure you are far more accomplished.”

    Indeed. A pity, given my likewise opinion of your ability to frame and articulate arguments, that you apparently do not have such another enthusiasm to apply yourself. Allow me to suggest some sort of papercraft.

  117. John opined:

    in this case they happen to be right, and you happen to be wrong, independent of other factors and relationships). However, I do find it amusing you haul out Dred and Plessy after lots of comments bemoaning the current court’s (in your opinion) lack of love for stare decisis. The conditional suppleness of your commitment to that cause is instructive.

    Well, not exactly, but unsurprisingly so. You have clearly not understood my arguments, as I am sure you would never stoop so low as to misrepresent them.

    The criticism of the Court wasn’t based upon its abandonment of stare decisis — the stare decisis argument was merely offered as evidence of the Administration and the Congressional effort to comply with the Constitution and the Court.

    Dred and Plessy are not the only instances where the Court has erred and later reversed itself; they are merely the best known and most dramatic cases.

    Of course, if you review my posts I think you will find I have not written two words of my own criticizing the Court’s decision. I have stated I disagree with it, but my real criticism is for those who declare unwavering support for the opinions of “best of nine” when it fits their prejudices. I recognize the authority of the Court even when I think they’ve reached a decision without regard to the Constitution or precedent, just as I recognize the authority of an umpire calling a runner “out” or “safe” at home even when they were clearly out of position and incapable of seeing the obvious.

  118. RES:

    “You have clearly not understood my arguments”

    Well, yes, although I would imagine we would differ on the cause of this.

    “I recognize the authority of the Court even when I think they’ve reached a decision without regard to the Constitution or precedent, just as I recognize the authority of an umpire calling a runner ‘out’ or ‘safe’ at home even when they were clearly out of position and incapable of seeing the obvious.”

    Indeed, as do I, which is why, to go back to your earlier reference to Bush v. Gore, I accept that particular ruling even though I find it atrociously ruled.

  119. John:

    You have an overinflated opinion of the quality of your arguments, RES; they are inconvenient, in that many of them are not particularly good. I understand you want to believe that your every jot and twitter must me addressed, but I hold a different view.

    As you have addressed none of my arguments their weakness remains yet one more thing about which you have merely proffered an opinion absent evidence evidence. And no, I do not expect “every jot and twitter” to be addressed, I would merely have evidence of fault in my reasoning if any jot or twitter had been rebuted.

    Indeed, I am joyed that you have finally recognized the effort by the administration and the Congress to address the matter, even if you are incapable of doing so without further assertion of opinion. It must be nice to live in a world where you don’t have to engage others in discussion; very satisfying to the ego, I imagine.

    And as you say, who am I to quibble with the great John Scalzi or bother him with rude arguments and evidence, especially when he has opinions!

    Oh, BTW – thank-you for the occupationial suggestion. As it happens, I have been engaged in a form of papercraft, ever since passing the CPA exam. Not that I think argument from authority superior to actual reasoning, of course, and I am sure you are lamenting the lax standards of the accounting profession for letting such churlish folk as me in.

  120. I am not going to hijack someone else’s blog here; I just want to make a couple of things clear that seem a bit muddled upstream.

    This was purely procedural decision. It did not set anyone free; it did not declare that anyone is not a terrorist, or indeed improperly in US custody. It said, instead, that the method the constitution establishes for challenging detention applies to everyone unless the government follows the method specified in the constitution to suspend that method. Further, the standard for getting released pretrial on a habeas petition is extremely demanding; the government need prove only probable cause for continued detention, not guilt beyond a reasonable doubt (and don’t kid yourselves: even judges who don’t trust the government very much will give the government the benefit of the doubt on a pretrial petition).

    There’s a remarkably poor grasp of military history reflected in both the dissents themselves — to list only one example, Scalia’s assertion that it’s harder to “win” a conflict by following the prevailing rules, when in reality (statistically, both worldwide and Western-only) it’s the other way around — and further up this thread. I see this every couple of years (and have since the late 1980s): every time someone wants to justify denying Geneva Convention rights to non-state actors, they point to the XYZ Affair and the Barbary Pirates… conveniently forgetting that a lot of things we’d call an “act of war” requiring a declaration of war now wouldn’t have been so treated before 1815, let alone 1903.

    There is no valid intelligence reason to keep the detainees any longer. There might be a valid incapacitation justification for doing so… but that’s exactly what a trial is supposed to determine.

  121. Our enemies hide amongst civilian populations, do not bear their arms openly, and do not observe the customary laws of warfare. All of these (individually and most assuredly together) are war crimes punishable by death. Were it not for the first two, we would not be collecting suspected illegal combatants from agencies of other nations.

    Rodney, I agree with you about the intent of the Geneva conventions. And I agree with you about the reasonable nature of the Laws of War – clearly we don’t want people shooting civilians, and discouraging this is a good idea.

    However, the particular circumstances of the imprisonments at Guantanamo make things problematic. For example:

    Should we treat a 15-year old child (Omar Khadr
    – look him up) as an “enemy combatant,” or should we treat him as a non-competent minor who was brainwashed by terrorists in war-torn country? Why are we charging this kid with murder and refusing to grant him Habeas? Why isn’t he in foster care?

    What about the people who were “sold” to the US government in return for a reward? If they weren’t captured during battle, how do we know they violated the conventions? All we have is the word of the person who got paid to bring them in. This makes your contention that such people are “enemy combatants” very difficult to prove.

    What about evidence derived from torture, either via “rendition” or practiced by US soldiers at Guantanamo? Surely a “competent tribunal” would exclude such evidence.

    As I said, I agree with the intent of the Geneva Conventions. Unfortunately, your interpretation of these rules is fairly simplistic. A simplistic interpretation would probably be appropriate on the battlefield – obviously one needs to make quick decisions about how to handle captured Geneva violators – but it is entirely inappropriate given the actual complexities we’re dealing with in the real world.

    This is why it’s important to make sure that we’re the good guys. If we don’t torture we then have a clear chain of good evidence – and we can shoot the people who need shooting.

    If we don’t prosecute a brainwashed minor for murder, and instead get him medical and psychiatric treatment, (or at least try him as a juvenile) we can feel good about shooting the people who brainwashed him – they clearly deserve it.

    If we don’t pay someone a small fortune to declare someone else a criminal, we can be sure that we haven’t bribed people to give false evidence. Then we can shoot the people who were actually shooting at us.

    Lastly, keep in mind that Habeas Corpus (produce the body) is not a recent invention of modern and thoroughly depraved liberalism. It dates from (at least) the 13th Century, and it was designed to keep the Crown from imprisoning someone without stating the reasons for their imprisonment before a judge. As rights go, this is fairly basic and primitive – the fact that we haven’t produced Habeas Corpus hearings, (or the appropriate military equivalent) in six years is thoroughly damning.

  122. RES:

    “As you have addressed none of my arguments their weakness remains yet one more thing about which you have merely proffered an opinion absent evidence”

    Why yes; if I’m not going to address your arguments because I think they are weak, I’m also likely not to address why they are weak, because that just adds a layer of redundancy to the whole proceeding, now, doesn’t it.

    “It must be nice to live in a world where you don’t have to engage others in discussion.”

    I wouldn’t know; I engage others in discussion all the time, and generally fruitfully. I do suppose not everyone has the discussion they assume they are going to have, and that’s fine. I do invite you to engage me in other discussion threads, however; perhaps on those we won’t spent so much time talking past each other.

    “As it happens, I have been engaged in a form of papercraft, ever since passing the CPA exam.”

    In all sincerity: Congratulations on passing that exam, and the best of luck in accountancy. It’s a woefully underrated profession. I have an excellent accountant who has done very well by me. I expect you will do the same for your future clients.

  123. It bears some repeating…

    The US could fully discharge its obligations under the Geneva Conventions by holding hearings about each detainee, in which they are allowed to know the nature of the evidence against them and to present evidence in their defense, and then treating each person according to their status as determined at that hearing.

    In the first place, this would have greatly simplified things by allowing the prompt release of innocent people – like a hero of the Afghan resistance and stauch opponent of the Taliban, turned in by his enemies, the very people we’re fighting. That would have demonstrated good will and cluefulness on our part, areas where US rep needs all the help it can get. It would have given us info about repeat peddlers of prisoners we didn’t want, so that we could firmly discourage them, and of course it would have reduced the resources necessary by reducing the number of detainees.

    In the second place, it would have provided grounds for some summary executions, since a few of the people in captivity actually are bad guys in categories for which the Geneva Conventions permit execution.

    Then we’d be left with many fewer cases than we have now, covering combatants who meet the standards for soldiers and a few others. And those we could detain humanely and decide about in a sensible and timely matter. I personally think that the number of detainees not clearly covered by the Conventions’ categories is zero, but I might be wrong. What I know I’m right about is that if we established innocence and freed people who shouldn’t have ever been captive in the first place, we wouldn’t be in this mess now and would be in a much better position to decide any fringe cases that do remain.

    So it’s worth asking: why is an administration willing to throw away hundreds of millions at a time on boondoggles unwilling to ever spend a few tens of millions (at most) for fair tribunals constituted exactly like many before them, staffed by people with appropriate training and conducted according to widespread, familiar standards of evidence? You’d almost think they felt they had something to hide, or that looking right away would have been embarrassing.

    (Oddly enough, I happen to have been reading about World War II handling of POWs and other matters of military law just this week. Scott Turow’s novel Ordinary Heroes deals with them, and that got me looking up facts behind the story. So my intuition that good tribunals are straightforward and pretty cheap to boot when supported by the authorities is born out by research done fresh.)

  124. How is it possible that in Munaf v Geren, also decided yesterday, a unanimous Supreme Court ruled that U.S. courts have habeas corpus jurisdiction over two U.S. citizens held in U.S. military custody in Iraq, but the dissenters in Boumediene v Bush seem to be saying that Guantanamo Bay is not under U.S. jurisdiction when it comes to alien detainees? Doesn’t make the least bit of sense to me.

  125. Let me try and pour some oil on these flames (!), because I am under the impression that many of you – especially those in favour of keeping Guantanamo the way it was – fail to see the wood for the trees.
    Let’s leave aside all legal (and moral!) issues as there seem to be unbridgeable gaps. But I guess everybody in this round agrees that this terrorism (with which the US is in “state of war”) is a hideous beast. And since all of us are so wonderfully erudite quoting in Greek and Latin I’ll use a classical metaphor: This beast called Terrorism most surely is a Hydra.
    Have you ever wondered how you are going to win the “war on terrorism”? When will that be achieved? When every last “potential terrorist” is annihilated?
    Sorry to tell you, but that won’t happen on the current course of action. The more you kill, the more you torture, the more sympathizers with anti US currents will be created and the bigger will be the draft for anti US terrorist organizations.
    If you really want to solve the dilemma some crazy Muslim fanatics and you have forced unto the world you need to calm down, bite your tongue (no matter how much it hurts) and start acting like you truly stand for freedom (and not for your own political and economical interests in the Middle East). Other than that you will only be fuelling the circle of hate until no one is left standing.
    I know not everybody in this forum might agree with this point of view but mind that this is how you are perceived throughout most of Europe (and better not ask for the viewpoints of most “Middle Easterners”).

  126. The underlying truth, of course, is that terrorism is not a serious problem for the US. Al Qaeda got nearly 4,000 of us in a one-host effort; heart disease gets half a million of us every year, and it doesn’t get uncounted billions of dollars thrown at it. The US already spends as much on our military as the rest of the world combined, literally. We are at no risk from invasion, and as we’ve demonstrated, we can destroy a society from top to bottom when we want to. Next time we do that it’d be nice to get one that had been a threat to us, as opposed to being a bitter enemy of the people who actually did attack us.

    What can destroy America as a civil society is the hard work of dedicated schemers exploiting popular panic. But we’re not going to get uncounted billions spent on an independent investigation culmination in criminal and war crimes trials, either.

  127. RES @ 123:

    “It merely requires a state of declared hostilities be in effect, which has been properly declared by Congress.”

    My apologies for incorrect terminology. But my point still stands, really. And you answered my point for me. I finally get what it is you’re arguing: Under the laws of war, any country is free to enter any other country, kidnap its citizens, and detain them arbitrarily, so long as they think maybe said person might possibly be a threat. That sounds like nothing vaguely resembling war or any sort of organised hostility.

    That seems to be genuinely what you’re arguing, in which case I’m going to take John’s approach – the argument is weak, and absurd, and I’m going to stop responding.

  128. So they went ahead and did this eh? Fine, the decision works for me… We can just kill enemy combatants instead. BTW, for those that are supposedly so “up on the law” you should be ashamed of yourselves for not seeing the ramifications of this precedent.

    The lack of foresight on this issue, in this setting, is very disappointing.

  129. Rodney @#116:

    “Our enemies hide amongst civilian populations, do not bear their arms openly, and do not observe the customary laws of warfare. All of these (individually and most assuredly together) are war crimes punishable by death. Were it not for the first two, we would not be collecting suspected illegal combatants from agencies of other nations.

    You should also note that in warfare, suspicion is grounds for the use of lethal force.”

    This scares me more than the terrorists.

    Correct me if I’m misreading your view, but you seem to be saying (a) we are at war with “terrorists”, wherever and whoever they may be; (b) these terrorists hide among civilian populations, which is a war crime; (c) such a war crime is punishable by death; (d) because we’re “at war” with terrorists, even suspicion that someone is a terrorist hiding among civilians is justification for killing them.

    I can not honestly believe that you mean this.

    Because if you do, then you are saying that my friend Hatim could be walking down a street in Amman and a US government agent could pull out a gun and shoot him because he suspects him of being a terrorist.

    And therefore, anything short of shooting a suspected terrorist out of hand is actually milder action than we’re entitled to take.

  130. There are at least a half-dozen posts (and several hundred comments) now at Volokh discussing various aspects of this decision. Probably thousands on the web, I point there because of the real lawyers (those commenting might not be.)

  131. So they went ahead and did this eh? Fine, the decision works for me… We can just kill enemy combatants instead.

    You think so little of our troops that you believe they will start committing war crimes rather than accept surrenders? Fascinating.

  132. “The underlying truth, of course, is that terrorism is not a serious problem for the US. Al Qaeda got nearly 4,000 of us in a one-host effort; heart disease gets half a million of us every year, and it doesn’t get uncounted billions of dollars thrown at it.”

    Good point, Bruce. I addressed the same point at length here.

  133. Just found out this morning that the British shadow home secretary has resigned over this same issue (for Britain).
    He is forcing a by-election so that if re-elected, he has a mandate to focus on stopping the loss of British civil liberties.
    Article here –

    http://www.mister-info.com/?cmd=displaystory&story_id=10853&format=html

    (or google news for “British MP resigns”)

    video here –

    http://freestudents.blogspot.com/2008/06/mp-resigns-for-right-reasons.html

    There still remain a few people who care about restoring habeus corpus as a fundamental right.

  134. JD, bearing in mind that I have not read either the Munaf decision or the Boumediene dissent yet, it seems possible to reconcile these positions by arguing that U.S. courts have habeas jurisdiction over U.S. citizens anywhere they are in U.S. custody (unless the writ is suspended); but U.S. courts only have habeas jurisdiction over nonresident aliens when they are in U.S. custody in U.S. sovereign territory.

    A good chunk of the main Boumediene opinion was a discussion of whether or not Guantanamo is effectively U.S. territory, and the argument basically was that because Guantanamo is effectively U.S. territory, the writ should run; but it doesn’t necessarily run, with respect to nonresident aliens, everywhere the U.S. armed forces do.

    In general the constitutional distinction between citizens and non-citizens is a slim one, but this may fall within that narrow gap.

  135. Um, forgive me, but there’s something I’m not getting. Why, exactly, are we arguing legal/historical/political justifications for/against torturing people? I mean, whatever else they may have done, they’re still human beings. What more do you need?

  136. Mister Clark states:

    You still haven’t answered my questions. You’re saying that this debate is (I quote): “enforcing the customary laws of warfare, or allowing them to lapse through non-enforcement. Warfare without regard to the customary laws of warfare is barbarism at its worst.”

    Do you take issue with the above or agree with it?

    You then say to me: “The wonderful thing about the customary laws of warfare, is that being an illegal combatant is a crime punishable by death.” (presumably guantanamo[sic] is better than this)

    Still not finding your position here… Do you have one?

    This STILL requires a state of warfare under which combatants, legal or otherwise, are operating.

    Terrorists have been carrying out acts of war against the citizens and interest of the United States for roughly thirty years. This was dealt with (poorly) as a law enforcement issue (Lawfare) until, in the aftermath of 9/11, the Bush Administration began dealing with terrorists as entities at war with the United States.

    By what logic is it reasonable a legal resident of a foreign country with which the US is NOT EVEN ARGUABLY IN CONFLICT WITH allowed to be unilaterally detain someone not guilty of any crime, or of undertaking any aggressive act whatsoever against the US to be abducted from his country and detained in Cuba for six years?

    By the logic that we are engaging the enemy wherever we find them. We usually strongly encourage other nations to deal with this themselves. But if they do not, we have and will take direct action. If a nation where terrorists are resident and/or operating takes exception to direct action by the United States, they are of course free to make war upon the United States or take such other actions as will suit their interest in maintaining their sovereign rights as a nation.

    Declared or underclared, there is NO state of war between Bosnia and the United States.

    Neutrality must be enforced by a neutral power. Allowing a belligerent to operate within their territory is a violation of neutrality and an act of war. Bosnia seems to have handed the suspected belligerent over to the United States for dispensation.

    Unless being ACQUITTED of terrorism charges in a foreign country immediately makes one part of some amorphous supra-national Masters of Evil group out to Get the United States, this is clearly an extra legal abduction.

    You must be reading a different case than I. The case I read clearly implied that the Bosnians, having failed to establish one way or the other on the suspected belligerent, punted the problem to the United States, our representatives having indicated continuing interest and suspicion.

    In which case an immediate habeas corpus application is the only justifiable course of action.

    If we were trying said suspected belligerent under USC for violations of USC, you would be correct. Since we are instead detaining, investigating, and if required trying the suspected belligerent under the customary laws of warfare, the established procedures of the customary laws pertain.

    Here endeth the lesson.

  137. Rodney, I reply to you as I did to RES above:

    “I finally get what it is you’re arguing: Under the laws of war, any country is free to enter any other country, kidnap its citizens, and detain them arbitrarily, so long as they think maybe said person might possibly be a threat. That sounds like nothing vaguely resembling war or any sort of organised hostility.”

    Your argument is essentially: War is what I arbitrarily declare it is, and under the customary laws of warfare, I can do exactly as I want to people I arbitrarily declare unlawful combatants. This boils down to this: As long as there is any possible terrorist threat against the USA anywhere in the world, US forces are allowed to arrest anyone, anywhere, for anything, and detain them indefinitely.

    If that’s not what you’re actually arguing, could you please explain how it isn’t a necessary implication of everything you’ve said? Cos if it is, come on, you can’t seriously believe thats a good idea???

  138. Nor did I assert it did, eh? I merely provided it as an example of thought, trained, disciplined thought.

    The Paper Chase is a dated movie about law school. I’m not sure that’s what I’d be holding up as a lodestar of disciplined thought, particularly when there are actual lawyers and people-with-legal-comprehension kicking around here.

  139. Alex states:

    Rodney, I agree with you about the intent of the Geneva conventions. And I agree with you about the reasonable nature of the Laws of War – clearly we don’t want people shooting civilians, and discouraging this is a good idea.

    However, the particular circumstances of the imprisonments at Guantanamo make things problematic. For example:

    Should we treat a 15-year old child (Omar Khadr
    – look him up) as an “enemy combatant,” or should we treat him as a non-competent minor who was brainwashed by terrorists in war-torn country? Why are we charging this kid with murder and refusing to grant him Habeas? Why isn’t he in foster care?

    The customary laws of warfare are silent as regards the age of combatants. Historically (within the time frame of the customary laws, which date back to the 18th century), it has been common for armed forces to have what we would consider children as part of their operational forces. If I recall the case you mention correctly, the detainee in question was an adult by the time he reached Guantanamo. I am also under the impression that it is possible to try suspects as young as 13 as adults under U. S. Criminal law. I thus find it both reasonable and proper to try him at a tribunal for any war crimes he may have comitted.

    What about the people who were “sold” to the US government in return for a reward? If they weren’t captured during battle, how do we know they violated the conventions? All we have is the word of the person who got paid to bring them in. This makes your contention that such people are “enemy combatants” very difficult to prove.

    That is the purpose of Combatant Status Review Tribunals. They are charged to determine if there is ample evidence that the detainee was indeed operating as a combatant, and if they should continue to be detained.

    What about evidence derived from torture, either via “rendition” or practiced by US soldiers at Guantanamo? Surely a “competent tribunal” would exclude such evidence.

    What evidence has been admitted which was gained via torture?

    As I said, I agree with the intent of the Geneva Conventions. Unfortunately, your interpretation of these rules is fairly simplistic. A simplistic interpretation would probably be appropriate on the battlefield – obviously one needs to make quick decisions about how to handle captured Geneva violators – but it is entirely inappropriate given the actual complexities we’re dealing with in the real world.

    What we established not only met, it exceeded the letter and intent of the appropriate treaties as regards due process. But in the spirit of commity, I’m perfectly willing to outsource the Combatant Status Review Tribunals and the War Crimes Tribunals to the French operating under the Code Napoleon.

    This is why it’s important to make sure that we’re the good guys. If we don’t torture we then have a clear chain of good evidence – and we can shoot the people who need shooting.

    No, we need to maintain a clear seperation between the customary laws of warfare and our domestic criminal code and courts.

    If we don’t prosecute a brainwashed minor for murder, and instead get him medical and psychiatric treatment, (or at least try him as a juvenile) we can feel good about shooting the people who brainwashed him – they clearly deserve it.

    Nope. Taking up arms against the United States and failing to adhere to the customary laws of warfare in so doing must inevitably end very badly for the individuals and groups which do so.

    If we don’t pay someone a small fortune to declare someone else a criminal, we can be sure that we haven’t bribed people to give false evidence. Then we can shoot the people who were actually shooting at us.

    We need to capture, try, and shoot not only the shooters, but the planners, procurers, logisticians, and transporters; the entire terrorist structure, from root to branch, from nit to full grown lice.

    Lastly, keep in mind that Habeas Corpus (produce the body) is not a recent invention of modern and thoroughly depraved liberalism. It dates from (at least) the 13th Century, and it was designed to keep the Crown from imprisoning someone without stating the reasons for their imprisonment before a judge. As rights go, this is fairly basic and primitive – the fact that we haven’t produced Habeas Corpus hearings, (or the appropriate military equivalent) in six years is thoroughly damning.

    It is only damning as to your understanding of the customary laws of warfare where no such right (habeous corpus) has ever (before yesterday) existed.

  140. DG Lewis quotes me thus:

    Our enemies hide amongst civilian populations, do not bear their arms openly, and do not observe the customary laws of warfare. All of these (individually and most assuredly together) are war crimes punishable by death. Were it not for the first two, we would not be collecting suspected illegal combatants from agencies of other nations.

    You should also note that in warfare, suspicion is grounds for the use of lethal force.

    This scares me more than the terrorists.

    Then you are a rather timid soul for the world you live in.

    Correct me if I’m misreading your view, but you seem to be saying (a) we are at war with “terrorists”, wherever and whoever they may be; (b) these terrorists hide among civilian populations, which is a war crime; (c) such a war crime is punishable by death; (d) because we’re “at war” with terrorists, even suspicion that someone is a terrorist hiding among civilians is justification for killing them.

    A bit of an oversimplification, but correct in general enough details. We generally try to get the cooperation of the state where the suspected combatent is operating from. We also make great efforts to get it right, but (to no realist’s great surprise) do indeed sometimes get it wrong. If we detain such a suspect in Guantanamo and subject them to the CSRT and WCT processes, there is some chance of discovering and correcting such mistakes. If instead we can no longer rely on such processes and find it necessary to engage all such with lethal force where found, such mistakes will of course be permanent.

    It’s a small price to pay for your clear conscience, though!

    I can not honestly believe that you mean this.

    I believe you.

    Because if you do, then you are saying that my friend Hatim could be walking down a street in Amman and a US government agent could pull out a gun and shoot him because he suspects him of being a terrorist.

    No, that would be an assasination, which is proscribed by Executive Order. But a meeting of Hatim and his friends (several of whom are also strongly suspected of being belligerents) is entirely likely to be crashed by an uninvited Hellfire missile.

    And therefore, anything short of shooting a suspected terrorist out of hand is actually milder action than we’re entitled to take.

    If we’re feeling magnanimous.

  141. Rodney @ 165 – the problem with the Combatant Status Review Tribunals was that the accused was not allowed to present evidence on their behalf or know the reason they were held. This does not meet the “competent tribunal” standard of Geneva, under French or any other legal system I’m aware of.

    Just for the record – I agree with you about Omar Khadr. But here’s the problem – we need to hold a hearing to determine if he’s a legitimate combatant (thus a POW with the rights thereof) or an illegal combatant. If, as I suspect, he’s the later, then we need to figure out what we’re going to do to illegal combatants.

  142. Chris,

    I had cause to review the transcripts of several CSRT’s about two years ago. Detainees have counsel, can call witnesses, and can submit evidence (and did so in several of the transcripts I reviewed). The only evidence which detainees are not permitted to review was sensitive (i.e. classified) information which their counsel was permitted to review and challenge on their behalf.

  143. I see I’m going to have to correct a few more historical (and legal) errors… In no particular order:

    165 (Graves)

    The customary laws of warfare are silent as regards the age of combatants. Historically (within the time frame of the customary laws, which date back to the 18th century), it has been common for armed forces to have what we would consider children as part of their operational forces.

    First, the so-called “customary laws of warfare” date back a lot farther than the 18th century; consider, for example, the well-documented issues arising from the slaughter of prisoners at Agincourt (1415). I think you’re getting confused by the rise of the nation-state in the seventeenth and eighteenth century that resulted in codification of the customary laws of warfare, particularly as expressed by de Groot (usually known by the latinized Grotius).
    Second, there’s a huge distinction between impressed members of a largely mercenary force (consider, for example, the Sack of Magdeburg) and at-least-purportedly voluntary members of an arm of a nation-state; they are neither legally nor ethically equivalent, nor perhaps even comparable. Try reading Schiller’s account of the Thirty Years’ War (auf deutsch, natürlich) to get some flavor of what those earlier “child-soldiers” really were… and then, too, consider that the definition of “child” has necessarily changed due to changes in average/median lifespan, reliance upon human musclepower, etc. In short, this comparison is at best meaningless.

    165 (Graves)

    If I recall the case you mention correctly, the detainee in question was an adult by the time he reached Guantanamo. I am also under the impression that it is possible to try suspects as young as 13 as adults under U. S. Criminal law. I thus find it both reasonable and proper to try him at a tribunal for any war crimes he may have comitted.

    Not quite so fast. Trying the young as an adult requires a showing of good cause before a neutral tribunal in a separate proceeding. At best, there has been a mixed proceeding between “age” and “probable cause” in front of the military commissions. That fails constitutional and statutory requirements… and there is strong, strong case law that no person is subject to the laws of armed conflict who is not independently capable of understanding them, which is a factual inquiry and (under US law) essentially requires a finding that such an individual was a voluntary member of a regularized military force representing a recognized nation-state. Thus, this argument fails completely, unless some form of activism allows you to rewrite law and history.

    166 (Graves)

    We generally try to get the cooperation of the state where the suspected combatent is operating from. We also make great efforts to get it right, but (to no realist’s great surprise) do indeed sometimes get it wrong. If we detain such a suspect in Guantanamo and subject them to the CSRT and WCT processes, there is some chance of discovering and correcting such mistakes. If instead we can no longer rely on such processes and find it necessary to engage all such with lethal force where found, such mistakes will of course be permanent.

    This is a classic example of a false dichotomy founded upon an unstated premise. The false dichotomy is that if we do not use the CSRT and WCT processes, the only alternative is shooting people on the battlefield. The unstated premise is that the rule of law has no valid impact during the exigencies of combat. I always managed (even during the so-called “Cold War”) to follow the rules of engagement, so I simply don’t see this.

    165 (Graves)

    That is the purpose of Combatant Status Review Tribunals. They are charged to determine if there is ample evidence that the detainee was indeed operating as a combatant, and if they should continue to be detained…. What evidence has been admitted which was gained via torture?

    That is a complete misstatement. The CSRTs are, instead, tasked with determining whether a particular prisoner has presented a sufficient case that he was not an unlawful combatant who requires continued detention. RTFS! Not only is that a single step, but by putting the burden of “proving innocence” on the prisoner, it makes things virtually impossible, given the refusal of the government to allow prisoners to even see much of the evidence against them.
    And the less said about what constitutes torture — another unstated premise — the better. Bluntly (and I’ll put my years of experience as an interrogator up against yours), torture does not work to produce reliable, verifiable information except in truly exceptional circumstances… and in those circumstances, everything still must be verified by other means. Torture does get people talking, but there’s a reason that we train soldiers to resist interrogation by mixing lies with the truth from the first moment they open their mouths.

    160 (Aphrael)
    The summary of the distinction between the two cases provided here is not too misleading, but misses an important distinction. In Hunaf, granting the habeas petition would result merely in transfer of the prisoners to another sovereign; in other words, it concerns not freeing the prisoners so much as which sovereign is the right one to maintain custody and the right to further proceedings. In Boumediene, however, there is (at least at this time) no other sovereign seeking to engage in proceedings against the prisoners before the court.
    What this really points out, though, is that we’d better stop using the term “detainees” to refer to people held at GITMO, or Bagram AB, or anywhere else under US control: They are prisoners with habeas rights.

  144. Rodney, there’s the old Irving Kristol line that a neoconservative is a liberal that’s been mugged by reality.

    Now I’m not calling you a neocon, I have no idea what you political beliefs, but you seem to have the same deeply pessimistic (and vaguely paranoid) view of reality that this sort of thinking requires.

    I’m not going to argue that the customary law of war doesn’t allow the things you assert – you seem to know the area much better than me. But I will say that seeing the US as in a constant state of low-level warfare reflects a view of the world that I don’t subscribe to. Your view of reality doesn’t seem to match with mine – as such our fundamental premises differ, and we’re never likely to agree. I think you’re wrong and paranoid, you think I’m wrong and naive. Who knows, we could both be right on that ;).

  145. Well I’m a real lawyer and I WAS trying, John :P. I just erm, don’t have any expertise in the laws of war. Mr Graves’ arguments just didn’t pass a general logical/legal sniff test, but I couldn’t quite say why. Thanks to CE Petit for doing so :).

    Now if you want to get in a big debate about electricity or broadcasting regulation or various other aspects of admin law I can comment with professional knowledge :P.

  146. Rodney G. Graves @#166 confirms that his standard of proof for the US Government to kill any person anywhere in the world is suspicion that the person is a terrorist.

    Let me say that again: If someone in the US Government suspects that you are a terrorist, Rodney feels that the Government is justified in killing you.

    Um, does anyone else have a problem with that?

  147. 166 – Rodney G. Graves:

    Because if you do, then you are saying that my friend Hatim could be walking down a street in Amman and a US government agent could pull out a gun and shoot him because he suspects him of being a terrorist.

    No, that would be an assasination, which is proscribed by Executive Order. But a meeting of Hatim and his friends (several of whom are also strongly suspected of being belligerents) is entirely likely to be crashed by an uninvited Hellfire missile.

    Killing one person who is suspected of being a terrorist is wrong. Killing several people who are suspected of being terrorists (plus, anyone else who just happens to be in the area) is A-OK.

    Is that a air summation of your position?

  148. Comes now C. E. Petit to set us strait:

    165 (Graves)

    The customary laws of warfare are silent as regards the age of combatants. Historically (within the time frame of the customary laws, which date back to the 18th century), it has been common for armed forces to have what we would consider children as part of their operational forces.

    First, the so-called “customary laws of warfare” date back a lot farther than the 18th century; consider, for example, the well-documented issues arising from the slaughter of prisoners at Agincourt (1415). I think you’re getting confused by the rise of the nation-state in the seventeenth and eighteenth century that resulted in codification of the customary laws of warfare, particularly as expressed by de Groot (usually known by the latinized Grotius).

    Mea culpae. I did indeed oversimplify the history of the “customary laws of warfare”, though I’m not quite clear that the customs pre-existing Grotius (and immediately succeeding him for that matter) are as pertinent and relevant to this discussion as are the more formalized versions in effect since the 18th century.

    Second, there’s a huge distinction between impressed members of a largely mercenary force (consider, for example, the Sack of Magdeburg) and at-least-purportedly voluntary members of an arm of a nation-state; they are neither legally nor ethically equivalent, nor perhaps even comparable. Try reading Schiller’s account of the Thirty Years’ War (auf deutsch, natürlich) to get some flavor of what those earlier “child-soldiers” really were… and then, too, consider that the definition of “child” has necessarily changed due to changes in average/median lifespan, reliance upon human musclepower, etc. In short, this comparison is at best meaningless.

    Actually, this harks back even further, to tribal warfare, given the origins of the case at issue in Afghanistan. Frankly, when it comes down to the customary laws of warfare versus tribal conventions of warfare, I hold that Napier’s precedent (viz sutte or sati) answers wonderfully.

    165 (Graves)

    If I recall the case you mention correctly, the detainee in question was an adult by the time he reached Guantanamo. I am also under the impression that it is possible to try suspects as young as 13 as adults under U. S. Criminal law. I thus find it both reasonable and proper to try him at a tribunal for any war crimes he may have committed.

    Not quite so fast. Trying the young as an adult requires a showing of good cause before a neutral tribunal in a separate proceeding.

    I don’t seem to find that under Geneva III, nor under the treaties of the Hague concerning the conduct of Land Warfare.

    At best, there has been a mixed proceeding between “age” and “probable cause” in front of the military commissions. That fails constitutional and statutory requirements… and there is strong, strong case law that no person is subject to the laws of armed conflict who is not independently capable of understanding them, which is a factual inquiry and (under US law) essentially requires a finding that such an individual was a voluntary member of a regularized military force representing a recognized nation-state. Thus, this argument fails completely, unless some form of activism allows you to rewrite law and history.

    I’d like to see the citations for those cases when you can provide same.

    As a practical matter (if the facts are congruent and the case law as you assert), this would be a bar to culpability for war crimes. It would not be a bar to continuing detention as a captured enemy combatant.

    166 (Graves)

    We generally try to get the cooperation of the state where the suspected combatant is operating from. We also make great efforts to get it right, but (to no realist’s great surprise) do indeed sometimes get it wrong. If we detain such a suspect in Guantanamo and subject them to the CSRT and WCT processes, there is some chance of discovering and correcting such mistakes. If instead we can no longer rely on such processes and find it necessary to engage all such with lethal force where found, such mistakes will of course be permanent.

    This is a classic example of a false dichotomy founded upon an unstated premise. The false dichotomy is that if we do not use the CSRT and WCT processes, the only alternative is shooting people on the battlefield.

    What other alternative do you propose which is not injurious to our ability to prosecute the war?

    The unstated premise is that the rule of law has no valid impact during the exigencies of combat.

    No. The customary laws of warfare apply universally, and in our case the UCMJ pertains as well. However, the customary laws of warfare, being reciprocal in nature and enforcement, an enemy which does not accept surrenders and which slaughters both non combatants and those few of our troops they manage to capture, forfeits the protections of the customary laws. I thus argue that it would be both well precedented and justifiable for the NCA to order our forces cease accepting surrenders from this enemy.

    I always managed (even during the so-called “Cold War”) to follow the rules of engagement, so I simply don’t see this.

    I’d rather not see this as well, but if these illegal combatants are going to wind up in our criminal courts, it would be less damaging to our system and our civil liberties to cease capturing them.

    165 (Graves)

    That is the purpose of Combatant Status Review Tribunals. They are charged to determine if there is ample evidence that the detainee was indeed operating as a combatant, and if they should continue to be detained…. What evidence has been admitted which was gained via torture?

    That is a complete misstatement. The CSRTs are, instead, tasked with determining whether a particular prisoner has presented a sufficient case that he was not an unlawful combatant who requires continued detention. RTFS! Not only is that a single step, but by putting the burden of “proving innocence” on the prisoner, it makes things virtually impossible, given the refusal of the government to allow prisoners to even see much of the evidence against them.

    That is an argument as to standard of proof. You find it inadequate. I think we shall have to agree to disagree on that point.

    And the less said about what constitutes torture — another unstated premise — the better. Bluntly (and I’ll put my years of experience as an interrogator up against yours), torture does not work to produce reliable, verifiable information except in truly exceptional circumstances… and in those circumstances, everything still must be verified by other means. Torture does get people talking, but there’s a reason that we train soldiers to resist interrogation by mixing lies with the truth from the first moment they open their mouths.

    What proof have you that evidence obtained via “torture” has been admitted?

  149. Scalzi

    Be that as it may, I have notably little sympathy for the Bush Administration in this particular case, since the ruling is the result of the administration’s unwillingness to use previous models of judicial conduct regarding combatants; it decided that it would make a new model, and in doing itself opened itself up to the sort of judicial scrutiny it’s experiencing. If it didn’t want that, it should have stuck with the previously tried-and-true models.

    You are aware that the Court ruled against Congress, not Bush, right?

    Specifically the Detainee Treatment Act of 2006.

    Clearly Bush was in favor of the bill ’cause he signed it, but it passed 65 to 34 in the Senate, which is reasonably bi-partisan

    And it passed the House 250-170 a bit less bi-partisan.

    Senator Obama voted Nay

  150. Frank:

    “You are aware that the Court ruled against Congress, not Bush, right?”

    I’m aware who writes laws, yes. That said, it’s a bit disingenuous to suggest the administration didn’t have a hand in the formation of the law, or that the law would have been necessary, were it not for the administration’s choice to build a whole new extra-constitutional legal system to deal with these folks, for which it was slapped down by the court.

    That said, as noted upthread, I’m certainly more than willing to grant the stupidity regarding this law is shared by the two branches of government, and across party lines. On balance lots of blame accrues to Bush, but not all the blame, to be sure. There’s lots of blame to go around.

  151. Wintermute,

    What I said was that a U. S. Government Agent shooting a suspected enemy combatant on the streets of Amman would qualify as an assassination, and that assassination is proscribed by Exectutive Order. A missile strike on a meeting of (strongly) suspected enemy combatants (such as happen regularly in Pakistan) would be a legitimate and legal act of war against an active enemy of the United States.

  152. John Scalzi @ 147:
    Well, you will understand that, in spite of your assurances otherwise, I will continue to believe your failure to acknowledge that US jurisprudence does countenance imprisonment of the innocent owes less to any weakness of my argument (actually, in this instance there is no argument, merely evidence) than it does to the obvious fact: You got nuthin’.

    I doubt we will find other areas of agreement as I doubt your other threads will engage me; from what I’ve seen here (and on other threads current at your blog) there is little reason and an excess of opinion, and that I can get in ample supply from sources more congenial. I appreciate the reminder of why I long since took to eschewing discussions such as this as exercises in mutual self-abuse, of the sort I can find in any bar – only here you don’t serve drinks. But if ever we’re at the same con I will gladly stand you to a beer.

    Bruce Baughon @ 151:

    The underlying truth, of course, is that terrorism is not a serious problem for the US. Al Qaeda got nearly 4,000 of us in a one-host effort

    Well, sure. If you ignore the attempted homicide of 100,000 people. And their intent to throw the US economy into a Depression. Or even the environmental havoc posed by the destruction of those buildings.

    Eddie Clarkon @ 152:

    I finally get what it is you’re arguing: Under the laws of war, any country is free to enter any other country, kidnap its citizens, and detain them arbitrarily, so long as they think maybe said person might possibly be a threat. That sounds like nothing vaguely resembling war or any sort of organised hostility.

    Twaddle. “All’s fair in love and war,” remember? You are mistaking as proscriptive a statement which is descriptive. I do not endorse the principle, merely recognize it. If that doesn’t sound anything like “war or … organised hostility” I can only applaud your innocence.

    mythagoon @ 165:

    The Paper Chase is a dated movie about law school. I’m not sure that’s what I’d be holding up as a lodestar of disciplined thought

    Nor present it as such, Myth (or do you prefer to be called goon?) — it was offered as an example of the application of the Socratic Method, a manner of education with which you are obviously unfamiliar even though it has been in use for some 2500 years. If that method is no longer being employed in our law schools it would certainly explain much of the mushiness that passes for thought in our courts.

    A general point: many here seem to believe that their are basic human rights and rules of conduct which should be in force in the world. There’s nothing in history to support such a belief and much to dissuade.

  153. RES:

    “Well, you will understand that, in spite of your assurances otherwise, I will continue to believe your failure to acknowledge that US jurisprudence does countenance imprisonment of the innocent owes less to any weakness of my argument (actually, in this instance there is no argument, merely evidence) than it does to the obvious fact: You got nuthin’.”

    Naturally, RES, I wouldn’t have it any other way. And while I don’t drink beer, at the next con we’re at, I’ll be happy to let you get me a diet Coke.

  154. Rodney: I’m still confused.

    Are you saying that if a US solder were on active duty, patrolling the streets of Amman, and he sees someone that he has reason to suspect might be a terrorist (for example, they wear Baathist symbols, they don’t consent to be searched, or they don’t stop at a checkpoint), then it would be illegal for them to shoot that person?

    If that is the case, then what, exactly did you mean by “You should also note that in warfare, suspicion is grounds for the use of lethal force”? Also, do you believe that those US soldiers who have acted with lethal force in such a situation should be court martialed? What charge do you believe is appropriate?

    But, given all of that, why should the killing of a single individual require presidential review, if the killing of several individuals is not? Either killing people suspected of being enemy combatants is an lawful act of war, or it is an assassination. Why does it matter how many you kill per shot?

  155. wintermute,

    Not going to get into hypotheticals with you, because it requires a familiarity with the laws of warfare (and USC) on the part of the audience not in evidence. Furthermore, it touches on current operations. While I am not privy to the details of current and planned operations, I have the requisite background and sources such that my commenting would be both unwise, and possibly illegal.

  156. RES:

    “Twaddle. “All’s fair in love and war,” remember? You are mistaking as proscriptive a statement which is descriptive. I do not endorse the principle, merely recognize it. If that doesn’t sound anything like “war or … organised hostility” I can only applaud your innocence.”

    I can only applaud your teeth-grindingly patronising assishness. Pat me on my head and call me innocent if you want. It doesn’t actually answer my question. If all you have to offer is “You don’t have to like, it but that’s the way the world is, sonny”, I don’t think much of either your grasp on right or wrong, or your argument style.

  157. Rodney Graves @112: “If one does not want to be held to the customary laws of warfare, one need only refrain from engaging in warfare.”

    Yes, exactly. And conversely, we see what happens when one feels that one absolutely, positively must engage in warfare.

  158. Scalzi

    That said, as noted upthread, I’m certainly more than willing to grant the stupidity regarding this law is shared by the two branches of government, and across party lines.

    Well that would include the Supreme Court itself.

    Recall that the Detainee Act was created in response to the Court’s decision in Hamden. The set forth clear guidelines for dealing specifically with the Habeas issue. Yet, the same Justices that endorsed “hearsay” evidence in Hamden rejected the new law for use of hearsay evidence.

    This is especially troubling. How many soldiers will now be called off the battlefield in order to testify in Court?

    Worse, in my mind, is that the court rode roughshod over stare decisis by reversing Johnson v. Eisentrager without having the balls to say that’s what they did.

    Will this be the disaster that Scalia claims? Perhaps. Perhaps not.

    But to fault Congress for crafting a law that wouldn’t pass Constitutional muster is fine so long as you also blame the very same Justices that rejected the law.

    And who in Congress would have guessed that the Court would reject Eisentrager?

    I think the response of Congress to Hamden was a good faith and reasonable one. Not stupid at all.

    But given this decision (and noting that the same bunch essentially decided Kelo) I am more concerned about the what will come (presumably) next week in District of Columbia v. Heller than I was at the beginning of the week.

    This group of justices are truly erratic, to put it mildly.

  159. RES:

    A general point: many here seem to believe that their are basic human rights and rules of conduct which should be in force in the world. There’s nothing in history to support such a belief and much to dissuade.

    People here are arguing that human rights should be in force around the world. You are, lamentably, correct in pointing out that throughout history these rights have been lacking.

    That, however, does not change the fact that we are better than medieval warlords or modern terrorists. Of course, if you don’t believe that you are, then that is your choice. Just don’t pull the rest of us down with you.

    Be the change you want to see, and all that.

  160. Frank:

    “I think the response of Congress to Hamden was a good faith and reasonable one. Not stupid at all.”

    Well, you can have that opinion. I disagree, especially in light of folks like Arlen Specter suggesting it was unconstitutional (and then voting for it anyway, which was a real “wtf?” moment). As it turns out, Specter was right. They should have done a better job.

  161. Scalzi

    They should have done a better job.

    Perhaps you are correct. But to my untrained legal eye, it seemed to me that Congress followed the guidelines of the Court, expressed in Hamden, rather closely.

    And what’s more, whereas in Hamden these same Justices for all intents and purposes said there was a Legislative solution, it appears to me that now they say there isn’t.

    Perhaps some of the legal eagles here could refocus on the topic at hand and tell me where I’ve gone wrong in this.

  162. Wintermute @ 183 – what Rodney’s not telling you is that a US serviceman in Iraq couldn’t shot somebody for “suspicion of being a terrorist.” Under current Rules of Engagement, “hostile intent” is required. Hostile intent is defined as (at least) carrying a weapon.

    Frank @ 190 – not a lawyer, but it seems that the court had a heartburn with the mechanics of the review. If the review process was more fair, including rights to see classified information, and conducted more briskly, we might not be in this boat.

  163. “Let me say that again: If someone in the US Government suspects that you are a terrorist, Rodney feels that the Government is justified in killing you.

    Um, does anyone else have a problem with that?”

    Considering that I am not a US citizen, and, therefore, could be justifiably killed simply because YOUR military suspects me of being a terrorist (maybe because of meetings I had with my anarchist friends), yes, I have a big fucking problem with that.

    And you people still have a hard time undestanding why the rest of the world hates your country so much?

    I sure as hell hope the next election proves that most of you guys are not willing to accept another krypto-fascist christian fundamentalist who has the innate objective of making Doomsday come as early as it possibly can…

  164. And what’s more, whereas in Hamden these same Justices for all intents and purposes said there was a Legislative solution, it appears to me that now they say there isn’t.

    Uh, since the decision explicitly lays out a method for Congress to follow if it wants to suspend habeas corpus, that’s a bit of a silly thing to say, isn’t it?

    (Hint, the method is actually in the Constitution).

    And you people still have a hard time undestanding why the rest of the world hates your country so much?

    Interestingly, accordingly to the Pew Global Attitudes study released today, quite a large number of people around the world don’t hate Americans.

  165. Frank @187: How many soldiers will now be called off the battlefield in order to testify in Court?

    I wouldn’t worry too much about that, Frank, as one of the folks responsible for capturing a few of these shitheads, I have no problem testifying. In fact, I and my team would be glad of the chance – because, see, our oath is to the Constitution, and it shames us to see it trampled the way it has been for the last seven years. SCOTUS’s decision to uphold habeas corpus means that for a change this administration is going to have to do what it should have done in the first place – the right thing.

    My full response can be found here.

  166. Rodney – sorry to bust your bubble, but Google spits back 1.5 MILLION hits on “US ROE Iraq.” More then a few of those front-page hits are milbloggers. Methinks the secret is out.

  167. Rodney @ 195:

    The Standing ROE and Use of Force is unclassified and widely available.

    Specialized Rules of Engagement under certain circumstances can be restricted, but that’s not what Chris was talking about.

  168. “All y’all have been callin we’uns barbarians for as long as ah can recollect. Recon all-y-all can now live with the reality.”

    With people like you, who believe that non-US citizens around the world should be killed by US military under the suspicion of being terrorists, I think it’s pretty clear why that is, right?… it’s pretty easy to defend something as absurd as that when you’re not the one who could be killed for no simple reason other than suspicion… which just goes to prove John’s declaration that you neocons are just a bunch of fucking pussies…

    Years ago, a brazillian was shot and killed in the middle of a train in England because he was suspected of being a terrorist. He wasn’t. So, rest assure, we ARE living in the reality that bastards like yourself are capable of defending…

  169. While it’s one thing to say these are POWs and we can lock them up because they were trying to kill us on the field of battle, it’s another thing entirely when we take into account the admission of our C-in-C he lied about the intelligence he used to justify the current military actions.

    If he lied about that, then everything that occurs subsequently is also in question. The fact is the public has practically no idea who most of the people imprisoned at Git-mo are. How can we possibly decide if these prisoners are being held legally if we don’t even know who they are or where we captured them and under what conditions?

    We know, for instance, that at least one of the prisoners was simply a tele-journalist working for a news agency some people at the DoD thought should be shut down.

  170. George,

    Funny, I’m not the one making mewling noises. But by all means, the same invitation I extended to Andy Jones above applies to you as well. Though I suspect that you too will prove to be shy.

  171. John Scalzi @ 181:

    while I don’t drink beer, at the next con we’re at, I’ll be happy to let you get me a diet Coke

    John, as a fellow non-drinker (got nothing against it, but I’m no longer able to do it myself) I would be delighted to buy you a Diet Coke (although I admit to preferring the pure quill myself; I figure if you’re drinking toxic waste, why try to ameliorate it?

    Eddie Clarkon @ 185:

    I can only applaud your teeth-grindingly patronising assishness. Pat me on my head and call me innocent if you want. It doesn’t actually answer my question. If all you have to offer is “You don’t have to like, it but that’s the way the world is, sonny”, I don’t think much of either your grasp on right or wrong, or your argument style.

    Don’t grind your teeth, Eddie. They’ll wear out. Right & Wrong are moot questions when you’re mouldering in the grave, sonny; they’re human inventions and cuturally founded. Unless you provide me a basis for their universality we’re left with you arguing “should be” while I’m arguing what “is”. Doen’t mean I like it, and don’t mean I live my own life as if there were no difference. But I don’t much like gravity being 32 ft per second squared (5 squared would be so much easier on my knees than 2 to the fifth) – don’t mean I fool myself into thinking I can change it.

    And you sure as heck can’t change it without recognizing its basis and distinguishing facts from wishes.

    As to your question, you didn’t actually ask one, did you? You imputed an argument to me then denounced it. Maybe you learned a different kind of English grammar than did I? But yes, there is only one reason nations don’t “enter any other country, kidnap its citizens, and detain them arbitrarily” — it would be an act of war and would invite reprisal. Your argument is essentially that, during WWII, the Allies couldn’t have entered, say, Austria, kidnapped and detained Hitler. Perhaps you claim that such wouldn’t be an arbitrary act? But the US military claims their detentions in GTMO are not arbitrary.

    For what it’s worth, your argument style hasn’t impressed me much either, so I guess we’re joined in a mutual dis-admiration society.

    Another Dave @ 200:

    While it’s one thing to say these are POWs and we can lock them up because they were trying to kill us on the field of battle, it’s another thing entirely when we take into account the admission of our C-in-C he lied about the intelligence he used to justify the current military actions.

    Oh please, ‘nother; don’t trot that dead horse out again and try to saddle up. If Bush lied so did Jay Rockefeller, Teddy Kennedy, both Clintons as well as most of their administration. Maybe you weren’t paying attention during the five years leading up to the invasion, but others of us were.

  172. RES:

    “I would be delighted to buy you a Diet Coke (although I admit to preferring the pure quill myself; I figure if you’re drinking toxic waste, why try to ameliorate it?)”

    In my case, my excuse is that if I drank as much of the non-Diet stuff as I do of the diet stuff at the moment, I would have to be rolled places. Stupid 39-year-old metabolism.

  173. John Scalzi @ 204:
    “Stupid 39-year-old metabolism.”

    Crap – I have paperbacks older than you, and I bought them new. Wait until you’ve really had ample time to accumulate genetic damage.

    OTOH, better you should start adjusting now than later, right? Turns out I wasn’t as impervious to harm as my adolescent experimentation led me to believe.

  174. George @199
    Please understand that there are plenty of US-residents who AREN’T bent on making the world hate us, and sticking our tongues out like children while we do so. Some of us are civilized, and those who act like it’s our business to go around shooting people for no good reason are a complete embarrassment.

  175. Rodney,
    A glass of wine is unfortunately not an option for all, as I discovered when I realized a glass of decent red was taking me straight to hangover, skipping tipsy mech less pukin’. (To anticipate the flood of advice, I know it is the tannins causing a histamine reaction which can be avoided by taking Benadryl – but the idea of taking a pill in order to swig a glass of wine repulses me.)

    As for exercise, that went out the window after I blew the knee and spent 15 years with back spasms. While I hope John never knows those pleasures, I hope he won’t mind if I proffer a few reasons why such advice isn’t always applicable.

    Damn, I do miss chianti. It’s almost worth the migraine.

  176. Rodney G. Graves:

    Alas, family history with alcohol contraindicates a daily glass of wine. But I am following up on the exercise.

  177. Rodney,

    Omar Khadr was 15 when he was captured by US troops. Here is the Wikipedia link, with the usual caveats about the reliability of that site. You might check out the footnotes. His biography is quite interesting.

    So once again, why isn’t Khadr in foster care, or at least in a juvenile detention facility?

  178. aphrael–Thanks, I think you hit the nail on the head. It’s that whole citizen/non-citizen thing. The President thought he could create a prison camp for non-citizens at Guantanamo Bay that would be outside judicial review, but the court disagrees.

    I think there’s a good reason that some people want to talk about the detainees in a way that implies they were all captured in battle. They want to create the image of someone with a rifle or other weapon instead of someone being pulled out of bed in the middle of the night. But if you separate the images, it seems likely that the person actually caught in battle is not going to get far with habeas corpus. So the person most likely to benefit is someone picked up going about their everyday lives which is a much less powerful image than the crazed terrorist some people want us to imagine.

  179. Right & Wrong are moot questions when you’re mouldering in the grave, sonny; they’re human inventions and cuturally founded. Unless you provide me a basis for their universality we’re left with you arguing “should be” while I’m arguing what “is”. Doen’t mean I like it, and don’t mean I live my own life as if there were no difference.

    Heinlein did “The world ain’t a purty place, young ‘un” better and a long time ago.

  180. Alexon @ 212:
    “Omar Khadr was 15 when he was captured by US troops….”

    How old was Joan d’Arc? How old was David when he threw rocks at Goliath? In most cultures in the history of the world, Khadr has been full-grown for at least two years. You might wanta be careful about projecting your values on other societies.

    Davidon @ 214:
    “Heinlein did “The world ain’t a purty place, young ‘un” better and a long time ago.”

    Where do you think I learned it? As for “Heinlein doing it better” – were that the standard there wouldn’t be more than 5 SF books a year published.

  181. I have one minor superpower: I combine logic (or foolish consistency as my family and friends would tell you) with a legal education focused on Constitutional law.

    Torture is bad and imprisoning people for alleged wrongdoing without trial is also bad. But not everything that is bad is necessarily unconstitutional. (And nothing is good merely because it is Constitutional.)

    Should non-citizens held by the US outside the US have the right of habeas corpus? Yes. In fact, I wish everyone held by anyone anywhere had the right.

    However, habeas corpus is right that which the Court is not free expand. Fortunately, they are also not free to limit it. The job of the Court is to analyze the right and then decide how to apply it to the case at hand.

    Unfortunately, the right of habeas corpus had always been understood to only apply non-citizens when they were actually in the sovereign territory of that country. (Scalia is unfortunately too accurate in his assertion that this almost goes without saying and that any case–like this one–to the contrary would have been an notable expansion of the right.) Guantanamo Bay is sovereign territory of Cuba not the US.

    I wish it were otherwise, but wishing doesn’t make it so.

    We need to amend the Constitution to add, “The right of habeas corpus shall extend to all prisoners of the United States or the several States regardless the the citizenship of the prisoners and regardless of where the prisoners are held.”

  182. David opines:

    Heinlein did “The world ain’t a purty place, young ‘un” better and a long time ago.

    And yet the lesson went unlearned…

    RES, guess you need a bigger stick.

  183. And yet the lesson went unlearned…

    Got learned by a lot of people, though not the ones who do the “aw, shucks, I don’t like the world, I’m just describing it” routine.

  184. Chris,

    How about:

    The right of habeas corpus shall extend to United States Citizens, Legal Residents of the United States, and foreign nationals legally present within the sovereign territory of the United States.

  185. Rodney:

    Please, try to combine multiple responses into a single post. You’re setting off my OCD.

  186. John,

    That admission (You’re setting off my OCD.) brings mental images of a “Kick Me” sign to my eyes…

    I will endeavor to be a better guest.

    In re wine, I understand both your and RES’s position, and both seem prudent given stated circumstances. One size does not fit all. That and it leaves that much more for me!

  187. “Where is the provision of Geneva III which designates juvenile combatants as a separate class?”

    Once again Rodney, you’re right on the law, but you’re missing the point entirely. Legally, we don’t have to designate juveniles as a separate class.

    However, no legal obligation says we must treat a brainwashed juvenile as an “enemy combatant.”

    And that is the point. Why, given two options, does the Bush administration, (and it’s military) always pick the least just, least merciful, least moral, least intelligent option? How hard would it be to put the child on a reservation, set the boy up with a sympathetic therapist/interrogator, plus a kind and well-coached, peer group, and avoid the whole problem of “You’re unlawfully imprisoning and torturing children?” It’s a no-brainer. Maybe even a propaganda coup.

    I agree one-hundred percent that people who violate the laws of war should be shot. But why be so completely fucking stupid about it, when it’s possible to do it the smart way? And why can’t you, an obviously smart and well-educated person, see the very, very obvious problems here.

    It’s really, really simple. Having captured some possible Geneva violators, you very carefully, very publicly, with full attention to justice, weed out the children and the innocent, then after careful, just trials, you shoot the guilty while carefully explaining how the laws of war benefit civilians in the long run. Then our country wins the propaganda game instead of losing it, and everyone can sleep at night.

  188. Well shucks then, why don’t you explain to us how the world really is, then? Be sure to include Darfur in your survey.

    My commenting would be both unwise, and possibly illegal.

    and foreign nationals legally present within the sovereign territory of the United States.

    What part of that did you not understand?

  189. Alex opines:

    Once again Rodney, you’re right on the law, but you’re missing the point entirely. Legally, we don’t have to designate juveniles as a separate class.

    However, no legal obligation says we must treat a brainwashed juvenile as an “enemy combatant.”

    You overlook the nature of the enemy, who already hide amongst civilian populations and deliberately target non-combatants. You propose to provide them a loophole: recruit jihadi as chidlren and send them out to kill and the American’s won’t kill them.

    And that is the point. Why, given two options, does the Bush administration, (and it’s military) always pick the least just, least merciful, least moral, least intelligent option?

    Because unlike your perfect world scenario, this policy will actually work to discourage the activity we deplore.

    How hard would it be to put the child on a reservation, set the boy up with a sympathetic therapist/interrogator, plus a kind and well-coached, peer group, and avoid the whole problem of “You’re unlawfully imprisoning and torturing children?” It’s a no-brainer. Maybe even a propaganda coup.

    Is that more or less likely than the junior jihadi returning to the fray and killing more innocents? Would you care to bet the lives of YOUR family (and I mean your entire family) on the outcome?

    I agree one-hundred percent that people who violate the laws of war should be shot.

    Then why are you creating exemptions?

    But why be so completely fucking stupid about it, when it’s possible to do it the smart way? And why can’t you, an obviously smart and well-educated person, see the very, very obvious problems here.

    Why do you persist in overlooking the nature of the enemy?

  190. Chris Brennan:

    Man, that superpower needs a little tuning up. Gitmo is sovereign territory of Cuba? Are you kidding? Can someone get a Castro on the line over here and ask him if he agrees….

  191. David,

    We expect the first and doubt the second.

    And allow me to amend for the hopelessly dense:

    The right of habeas corpus shall extend solely to United States Citizens, Legal Residents of the United States, and foreign nationals legally present within the sovereign territory of the United States.

  192. Rodney Graves:

    Since you have a clearer understanding of “the enemy” than the rest of us, please give us a clear plan on how to “win” the war. If you are “correct”, I would like you to explain, pragmatically, how to bring this “war” to an end. You will be awarded bonus points for pictures.

  193. Todd Stull,

    If you would care to rephrase your question(s) into a question about policy vice a series of gotcha opportunities, we could perhaps lay a framework and actually have a productive discussion of the issues.

    Are you willing to be that intellectually honest?

  194. We expect the first and doubt the second.

    It was a quote from one of your earlier messages–I’m sorry, I forgot to add the quote marks.

    foreign nationals legally present within the sovereign territory of the United States

    I understand the “solely” part. What do you fail to understand about the part above?

  195. The Rodster,

    I am having trouble parsing your phrase “vice a series of gotcha opportunities.” Are you willing to speak in coherent English?

    In any case, nobody (well, except for John, but certainly not me), is stopping you from posting/promoting/pimping any sort of response to my question, other than a trite, “Are you willing to be that intellectually honest?”

    A) What sort of assessment tools are you going to be using to gauge my intellectual honesty?
    B) Why do you suspect I am intellectually dishonest from the start?

    I will take this opportunity to lay some of my biases out there. I think we should listen to people like Jim Wright from upstream. I don’t know this for sure, but it sounds like Jim led Special Forces against some of those fucktard terrorists (apologies to John, but I do so enjoy that word), and I hope he corrects me if I am wrong, but it seems like in his expert opinion, the fact that we torture and do not protect the rights of those we capture is having some tragic fucking consequences for American military and civilians.

    And since my brother is serving in Afghanistan right now, trying to protect us from the aforementioned fucktards, I guess there is more than intellectual honesty motivating me to find the right solution to what is going on, you sanctimonious prick. You post utter nonsense about how we should prosecute this war, and I begin to wonder what kind of chips you have on the line in this unending fucking war.

    We find actionable intelligence that there are terrorists somewhere in Afghanistan or wherever, fine, let’s go in there and either kill them or capture them. But once we capture them, figure out a way to either execute them, prosecute them for war crimes, or set them free. Don’t just let them rot in hell, because God help me, my brother isn’t risking his life so that some rich privileged white boy named George Bush can shit on the Constitution.

  196. Todd,

    Rodney doesn’t have a clearer understanding of the enemy than the rest of us. Simply put, he has demonized the enemy to the point where he cannot imagine any sane course of action but to kill them all as quickly as possible. The idea that our American ideals of justice and morality are actually advantages in the struggle against terror isn’t something he can see.

    When I think about the war on terror I’m reminded of the Germans during the First World War. There was much talk in pre-war Germany about the need to export German culture and the German way of life to other countries, which as the Germans conceived it, needed German culture desperately. They imagined that after a small interval, the Belgians and French would welcome German occupation of their countries, just because German culture was so magnificent and superior.

    Thus the Germans committed the war crime of invading other countries. When Belgian and French patriots attacked the occupying forces, the Germans, quite naturally, either killed them or brought them in for trial as war criminals. After convicting the patriots for violating the laws of war, the Germans then further violated the laws of war by exacting reprisals against the families and villages of those patriots, whom they decried as terrorists. The Germans didn’t have clue what everyone was getting so worked up about. After all, their superior culture was scrupulously obeying the laws of war by killing the French and Belgian partisans.

    After the war, G.K. Chesterton, commenting on Ludendorf’s book, My War Memories, 1914-1918 wrote:

    “It is astounding how clumsy Prussians are at this sort of thing. Ludendorff cannot be a fool, at any rate, at his own trade; for his military measures were often very effective. But without being a fool when he effects his measures, he becomes a most lurid and lamentable fool when he justifies them.”

    The circumstances in the War on Terror are definitely different – we were attacked and have every right to counterattack as we see fit. But that Germanic, World War One mentality is still there. “I want to be as mean and vicious and brutal as possible. Why don’t you understand that it’s the right thing to do? If we don’t torture children, the terrorists win!!” And anything remotely resembling a sense of justice or perspective goes right out the window.

  197. he has demonized the enemy to the point where he cannot imagine any sane course of action but to kill them all as quickly as possible and any innocent people who get in the way.

    Edited that one slightly for you.

  198. foreign nationals legally present within the sovereign territory of the United States

    I understand the “solely” part. What do you fail to understand about the part above?

    Allow me to spell it out more clearly. Guantanamo Bay is American territory, per yesterday’s ruling. Foreign nationals suspected of terrorism are brought there through legal means. Therefore, they are foreign nationals legally present in U.S. territory. I’m not sure how much more forcefully you can be beaten over the head with this.

  199. anonymous/Toadd,

    A simple no would have sufficed in place of the obscenity strewn exemplar of BDS.

    I wish you brother well and every success, and I bid you: Have a better day.

    Alex,

    Since you have taken it upon yourself to answer for me, there is obviously no point in responding to you substantively, is there?

    I bid you a better day as well.

    David,

    The five justices and yourself can continue to insist that Guantanamo Bay, Cuba is the sovereign territory of the United States. You may also collectively insist that your collective fouth points of contact are your elbows, with equal veracity.

    And considering what comes from your mouth, please refrain from attempting to put words in mine, sirrah.

  200. Three general comments:

    (1) Graves continues to try to press the “what proof do you have that any evidence in front of the CSRTs resulted from torture” meme as a way to deflect from the underlying issue: It doesn’t matter to their propriety. If evidence put in front of an unconstitutional body is independently produced by unconstitutional means, that’s just piling on. There’s a long preference in the common law for using procedural safeguards to prevent substantive abuses, and this is an example of one.

    (2) Graves has never even attempted to deal with his false dichotomy. Let me try to fill the hole. The false dichotomy is roughly:
    * Shoot ‘em all on the battlefield, or
    * Mistreat ‘em all in unlawful detention
    These are not the only two choices. One can always choose:
    * Detain them on the battlefield and treat them under the rule of law after battle
    It seemed to work for Bundesrepublik Deutschland in dealing with the so-called Red Army Faction, to list just one of a large number of “successes.” The key point here is just this: We largely don’t hear about the “successful” antiterrorist action; we hear only about failures and abuses. Under my NDA, all I can say is that {“successful” antiterrorist actions that still respect the rule of law} is not an empty set, and that I have both personal experience and historiographical expertise on the issue that I cannot display in this forum.

    (3) Graves also tried to send people down a false path with his references to the Geneva Conventions. What he neglected to note is that the Geneva Conventions also provide that noncombatants are to be treated, as a default, as civilians not subject to the laws of armed conflict, unless and until there is an individualized finding that they are combatants (lawful or otherwise) under the procedural rules otherwise applicable to civilians. Most of the time, this individualized finding can be stated quickly and easily: “We caught this 37-year-old man placing an IED at the roadside.” The key point there, though, is the 37-year-old man… who has no special procedural protections of the kind afforded to children. The corresponding statement under US law might look like “We caught this 15-year-old boy placing an IED at the roadside, with specific intent to kill lawful combatants that would be sufficient to have him tried as an adult for the equivalent, purely civilian offense.” Similarly, the Geneva Conventions don’t say anything specific about trying the mentally infirm/ill… although the process of the Nurembur trials did.
    Thus, even though the Geneva Conventions don’t explicitly say that pre-adults are to be treated differently, if the domestic law of the relevant nation says they are, they must be. And this is precisely the converse of what the various attempts to form military commissions at GITMO have tried to do… as Hamdan points out, however inelegantly.

    * * *

    Law is not a scientific experiment. It is virtually impossible to make anything in law into a truly independent variable, and then test that variable in a replicable fashion. Or, to put it another way, there is no valid analysis of content without valid analysis of context. Bluntly, I’m seeing not only little valid analysis of content, but blatant pretence that context matters not at all. And as a veteran who put my butt on the line for the constitution, having sworn to protect the constitution against all enemies foreign and domestic, I find that more than a little bit offensive. Democracy/the democratic republic is hard work, and the means influence the ends.

    I therefore request that those pushing the “we can do whatever we want to combat terrorism” position stop merely repeating arguments from the assumption that conclusions of convenience are necessarily correct. It’s one thing to actually have a disagreement; it’s another to turn the volume up a few notches and repeat one’s prior point without acknowledging shifts in context.

  201. Rodney Graves:

    But I didn’t say no. I asked you to rewrite part of your question because it didn’t make a damn bit of sense. And, I asked you to define intellectual honesty, whatever that is. I can’t begin to construct a response to your assertions when I have no idea what your assumptions about intellectual honesty are. You answered neither of those questions.

    Instead, you respond with feigned shock that I would swear as a way to highlight emotional content – you, the same person who was lecturing others on the cold hard reality of the world. Surely someone as worldly as you doesn’t find coarse language so disconcerting?

    You also failed, failed, failed to even respond with a solution, workable or not, regarding how to successfully prosecute and end this “War on Terror”. Instead, you wish my brother well. Thanks, except, here’s the rub – the policies you seem to support, based on your statements here, seem to be making the world more dangerous for my brother. Rather disingenuous. I invite you to use your superior argumentative skills to demonstrate the opposite.

    Your problem, I believe, is that your arguments suck, and your argumentative style sucks. You continue to avoid questions because to answer them directly might undermine some of your beliefs.

  202. The five justices and yourself can continue to insist that Guantanamo Bay, Cuba is the sovereign territory of the United States.

    And you can continue to insist that it isn’t. I suspect that the Supreme Court’s interpretation will win out.

    And considering what comes from your mouth, please refrain from attempting to put words in mine, sirrah.

    Gosh, the only words I’ve put in your mouth are your own. So ashamed of them already?

  203. Todd Stull dares to doubt me: “Man, that superpower needs a little tuning up. Gitmo is sovereign territory of Cuba? Are you kidding?…”

    Nope. I’m not kidding about either my very minor superpower or the legal status of the territory there.

    It’s only Wikipedia, but until you’ve got something more than snark then it’ll do just fine: http://en.wikipedia.org/wiki/Cuban-American_Treaty

    “The Cuban-American Treaty was signed on February 16, 1903 by the first President of Cuba, Tomás Estrada Palma, and on February 23, 1903 by the President of the United States, Theodore Roosevelt. As per the agreement, the Republic of Cuba will perpetually lease to the United States the Guantanamo Bay area (surrounding areas of land and water) for the purpose of coaling and naval stations. The United States will have absolute jurisdiction and control over the area, and in return will recognize the Republic of Cuba’s ultimate sovereignty over the area.”

  204. Guantanamo Bay is Cuban territory.

    The United States has perpetual lease of the land under the 1903 Cuba-America treaty.

    IIRC,the US sends Castro a check each year. That he does not cash it doesn’t matter…

    Andrew

  205. Chris Brennan:

    Thanks for pulling that up. I’m sure your superpower is real.
    And thanks for the link. It shows how even in 1903, double-talk was alive and kicking.

    From Dictionary.com – One definition of sovereign is, “having supreme rank, power, or authority.” Huh. So let’s try a little experiment. From your quote, let’s substitute a few words….

    The United States will have absolute jurisdiction and control over the area, and in return will recognize the Republic of Cuba’s ultimate supreme rank, power, or authority.

    Now I’m not a lawyer, nor do I have superpowers (although *puffs up for a moment* I did score 170 on an online IQ test once – you’re all jealous now, right?), but, gosh…it almost sounds like Raoul or Fidel Castro was or should have been consulted about what should happen to the detainees there, because he is the one who has the ultimate supreme rank, power, and authority over what will happen to the terrorists.

    Of course what Gitmo has always been is a place for the US military to exercise its influence on the area. That whole little war we had with Spain, and the yellow journalism that spurred the public to support that war…gosh, I’m trying to remember what parallel that might follow. I’m sure I’ll remember.

    Anyways…why didn’t we just call up Fidel and Raoul to give us disposition on what to do with the detainees? They, after all, exercise ultimate authority over what is happening in Gitmo, according to the treaty that is being rigorously followed.

  206. The important phrase is: “The United States will have absolute jurisdiction and control over the area…” and the important word is “jurisdiction.”

    According to dictionary.com, the first definition of “jurisdiction” is “The right, power, or authority to administer justice by hearing and determining controversies.” Thus the legal system at Gitmo is that of the United States of America.

  207. RES, deliberately misreading people’s names is so third-grade, don’t you think? And yes, I’m quite familiar with the Socratic method, having undergone it personally rather than seeing a movie about it. You don’t seem to be much for engaging in it yourself.

    I’m seeing a lot of self-congratulatory twaddle, but not a lot of actual, well-thought-out argument. As far as I can tell, all you can offer is “we can do whatever we want as long as we’re at war”. It apparently has not occurred to you that the United States would not have a monopoly on the exercise of that logic.

  208. I’m disgusted, but not surprised, at the conservative tendency to treat children as adults in domestic trial, and in war. The concept of a justice system that does anything other than inflict retribution and punishment is opposed by conservatives. The conservative justice system is there to intimidate you into doing the right thing by being as big a threat as they can make it. Not to mention a tool to enforce community standards about behavior between consenting adults.

    How young *does* a child have to be before treating him or her like an adult becomes repugnant even to conservatives. We pulled at least one 12 year old into Gitmo. Eventually we let him go, but presumably with a suspension of Habeas, our government could pull in any kid old enough to hold a gun.

    The darling of the Right, Michelle Malkin, defended internment of infants based on racial origin. She’s got a vast conservative fan base, an makes a good living espousing this sort of nonsense, when she’s not busy keeping the airwaves safe from paisley scarves.

  209. Every soldier and citizen that dies because of this travesty of a decision will be on the heads of every “person” that supports this insanity. Traitor doesn’t begin to descibe the 5 liberal judges who foisted this abortion on us. This is a naked power grab by unaccountable judges. I hope you are all happy.

  210. Josh,

    I think in many cases, it’s not how young the child is that some find repugnant, but what that young child doing they find repugnant.

  211. Ceroth:

    “This is a naked power grab by unaccountable judges.”

    Just like Bush v. Gore!

    So, Ceroth, do you get your conservative cliches fresh from a garden, or do you have them delivered vacuum-packed?

  212. Petit returns to lecture us some more:

    Three general comments:
    (1)Graves continues to try to press the “what proof do you have that any evidence in front of the CSRTs resulted from torture” meme as a way to deflect from the underlying issue: It doesn’t matter to their propriety. If evidence put in front of an unconstitutional body is independently produced by unconstitutional means, that’s just piling on. There’s a long preference in the common law for using procedural safeguards to prevent substantive abuses, and this is an example of one.

    Petit bases his argument on facts not in evidence. Thus the argument is that since it is possible, but by no means established, evidence of questionable propriety (and considerable emotional loading) could be admissable, the entire proceeding is tainted. Were this same standard applied to eye witness testimony (demonstrably the least reliable evidence of all), the vast bulk of all cases would be tainted as well.
    Furthermore, the supreme court did not strike down the CSRT’s as “unconstitutional.” Instead they ruled that said CSRT’s were not a sufficient alternative to a habeas petition before a federal court, and extended the right of a writ of habeas corpus to captured enemy combatants (an unprecedented extension both in U. S. jurisprudence and in those systems of jurisprudence descending from English Common Law).

    (2) Graves has never even attempted to deal with his false dichotomy. Let me try to fill the hole. The false dichotomy is roughly:
    * Shoot ‘em all on the battlefield, or
    * Mistreat ‘em all in unlawful detention

    More precisely, my position is thus:
    1. A perfect adequate body of law (the customary laws of warfare) exists. They are globally enforceable by any sovereign power as regards war crimes and the disposition of captured enemy combatants.
    2. Lawfare (the practice of responding to terrorist acts of war via criminal prosecution) has been a miserable failure, as demonstrated by the consistently escalating levels of international terrorism culminating in the events of 11 September 2001.
    3. Effective prosecution of terrorists for war crimes will of necessity involve materials which must not be revealed in open court. Nor can such evidence be revealed to defendants while protecting the sources and methods of collection (see Lynn Stewart). This would effectively prevent the successful prosecution of most terrorists before the federal courts as they currently exist.
    4. Modifying the federal criminal courts to allow secret evidence and proceedings would be an unacceptable precedent which would imperil domestic civil liberties.
    5. If enforcement of the customary laws of warfare is frustrated and the cases are moved to the federal courts, it is less damaging to the republic to enforce the customary laws by not accepting surrenders than it would be to play capture and release (3) or to corrupt our system of criminal prosecution (4).

    If counselor has a solution which avoids the capture and release threat (3) while preventing the corruption of our criminal courts and processes (4) while simultaneously enforcing the customary laws of warfare, he has been reticent in producing it.

    These are not the only two choices. One can always choose:
    * Detain them on the battlefield and treat them under the rule of law after battle

    The Geneva III standard is that such prosecutions may not take place until a captured beligerant is determined to be an illegal combatant or until the cessation of hostilities. That remains, for the moment at least, black letter international law.

    It seemed to work for Bundesrepublik Deutschland in dealing with the so-called Red Army Faction, to list just one of a large number of “successes.” The key point here is just this: We largely don’t hear about the “successful” antiterrorist action; we hear only about failures and abuses. Under my NDA, all I can say is that {”successful” antiterrorist actions that still respect the rule of law} is not an empty set, and that I have both personal experience and historiographical expertise on the issue that I cannot display in this forum.

    Facts not in evidence, counselor…

    (3) Graves also tried to send people down a false path with his references to the Geneva Conventions. What he neglected to note is that the Geneva Conventions also provide that noncombatants are to be treated, as a default, as civilians not subject to the laws of armed conflict, unless and until there is an individualized finding that they are combatants (lawful or otherwise) under the procedural rules otherwise applicable to civilians. Most of the time, this individualized finding can be stated quickly and easily: “We caught this 37-year-old man placing an IED at the roadside.” The key point there, though, is the 37-year-old man… who has no special procedural protections of the kind afforded to children. The corresponding statement under US law might look like “We caught this 15-year-old boy placing an IED at the roadside, with specific intent to kill lawful combatants that would be sufficient to have him tried as an adult for the equivalent, purely civilian offense.” Similarly, the Geneva Conventions don’t say anything specific about trying the mentally infirm/ill… although the process of the Nurembur trials did.

    Except of course that the supreme court did not strike down the CSRT’s, but instead struck down Congresses limitation of the appeals process for those found to be illegal combatants by said tribunals.

    Thus, even though the Geneva Conventions don’t explicitly say that pre-adults are to be treated differently, if the domestic law of the relevant nation says they are, they must be. And this is precisely the converse of what the various attempts to form military commissions at GITMO have tried to do… as Hamdan points out, however inelegantly.

    I’m sure Haupt will be glad to hear that, as will Yamashita.

    Law is not a scientific experiment. It is virtually impossible to make anything in law into a truly independent variable, and then test that variable in a replicable fashion. Or, to put it another way, there is no valid analysis of content without valid analysis of context. Bluntly, I’m seeing not only little valid analysis of content, but blatant pretence that context matters not at all. And as a veteran who put my butt on the line for the constitution, having sworn to protect the constitution against all enemies foreign and domestic, I find that more than a little bit offensive. Democracy/the democratic republic is hard work, and the means influence the ends.

    This veteran finds it offensive that anyone would attempt to extend the protections of our Constitution to non United States Persons who have been waging war against the United States in violation of the customary laws of warfare. This veteran also finds it offensive and disturbing that a lawyer would jeopardize the civil liberties and criminal procedures I risked my ass to defend for the sake of foreign enemies sworn to the destruction of our system of government.

    I therefore request that those pushing the “we can do whatever we want to combat terrorism” position stop merely repeating arguments from the assumption that conclusions of convenience are necessarily correct. It’s one thing to actually have a disagreement; it’s another to turn the volume up a few notches and repeat one’s prior point without acknowledging shifts in context.

    Duly noted. Appropriately filed.

  213. I remember this one Chinese restaurant near where I lived also sold donuts, and one night a friend of mine and I came in near closing time and wanted to get some bear claws. Five minutes and ten dollars later, we walked out of these with every single donut in the store. Truly, one of the greatest nights of my life.

  214. mythago @ 251,

    If “mythago” is actually your name, you probably have a good case for parental malpractice and mental cruelty against your parents. If it is not, if you have instead adopted “mythago” as a nom-du-net (to coin, I think, a term… alas not.) of your own free will, then perversions of said nom-du-net are an entirely foreseeable consequence of your own actions, are they not?

  215. You’ve never eaten Italian until you’ve eaten it in Thailand. It was the most unique meal I’ve ever had.

  216. I’m sorry if I got angry earlier. I’m conservative. I always have been and nothing will ever make me change. I have my opinions and you have yours. I do respect your work, Mr. Scalzi. I thought “Old Man’s War” was one of the best works of literature I’ve read in the last ten years. I have “The Ghost Bridages” in my reading list (if I can ever find the time, rolls eyes). I just listened today to the Starship Sofa podcast about you and your work. It was very enjoyable even though he kept mispronouncing your name. Well, I’m off to bed now. Take care and have a nice weekend. :)

  217. Thank you to all those who pointed out Mr Graves’ error with regards to the Rules of Engagement. My head just about exploded when I read that post.

    C.E. Petit, especially, it is both interesting and enlightening to read your comments. I thank you for your insights, and your service to your country. It is not my country, but having read your posts in this thread, I am convinced that it was also to the benefit of all humanity. I raise my hat to you, sir.

    Ceroth, you seem to use the term ‘traitor’ rather lightly. Might I ask just what service you have done for your country, and beliefs? As for the members of SCOTUS being unaccountable, I think you’ll find that this is not the case at all. They are accountable to themselves, their peers, their government, and thus, the US public. If you don’t like the decisions they make, you might take it up with those that appointed them to the position, and possibly even vote against them.

    Personally, my view is that this decision will help limit the loss of US lives, both military and civilians, but that is merely my opinion. Hopefully it will also help limit the loss of other lives, as well.

  218. I have a strict policy — particularly on others’ websites, unless explicitly invited to be a guest contributor on a particular topic — of allowing two, and exactly two, opportunities for someone to either (1) actually acknowledge a disagreement or (2) admit to incorrect understanding, and in either event to stop merely repeating previously contested arguments and assertions of fact. I have no problem trying to correct the clueless, but trying to correct Know-Nothings is hopeless.

    As that is not happening here, I won’t participate further in this particular argument. Suffice it to say that I’m not surprised… and not because of Our Gracious Host, but because of a strident guest or three.

  219. @Rodney G Graves:

    This veteran finds it offensive that anyone would attempt to extend the protections of our Constitution to non United States Persons who have been waging war against the United States in violation of the customary laws of warfare.

    Speaking as another (UKian) lawyer, albeit not practising in the field of public international law, can I say that one of my pet hates is accountants thinking that because their training includes some law, they are equipped to lay down the law.

    Unfortunately, they do tend to identify the wrong issue – as Rodney has done here. I don’t think anyone here is advocating extending (US) constitutional protection to non-United States Persons who have been waging war against the United States in violation of the customary laws of warfare – beyond of course that protection resulting from the fact that the US Constitution gives legal status to treaties concluded by the USA with other nations. Instead, the sense is that such protection should not be removed from those present within US jurisdiction; I suppose that the principle is that were the US writ runs, so runs the writ of habeas corpus.

    Until you have identified who is a “non-US person…[etc]” and who is not – by a competent tribunal – international law (Protocol 1: Article 45) extends to every one of those present in Gitmo the protection of GC3; and even those identified as such still retain the protections of Article 75 of the same Protocol.

    That latter Article gives anyone – whether PoW or not – charged with any offence due process rights before a regularly constituted court.

    Hamdin gave the Administration the chance to create non-habeas corpus procedures that met the USA’s domestic legal obligations. This decision shows that they blew that chance,and until they meet those obligations, habeas corpus is the only instrument available.

    It is true that this means that some terrorists may be afforded habeas corpus protection, in the course of ensuring that the non-terrorists have that protection; but that is an inevitable result of due process and the rule of law. You’re not one of those who consider that 10 innocent persons should be imprisoned to avoid freeing one guilty person, are you?

    On the topic of the effectiveness of lawfare; please tell me when the last IRA bomb exploded in Northern Ireland or elsewhere? We recognised decades ago that the introduction of internment was a mistake that increased IRA recruitment; in the end IRA terrorism was ended through the use of political and criminal processes – lawfare. Had we adopted the US response to IRA terrorism we would have invaded the Republic, and committed random acts of destruction throughout Boston and elsewhere. Northern Aid workers would have been kidnapped from the streets of New York and dragged off to a prison camp in Hong Kong. Any bets on how quickly all that would have ended the Troubles?

  220. Brennan @ 217 and others – I’ve been in GITMO (please note capitalization – it’s an acronym) on several occasions. Please let me assure you that it is 100% under American control. The second largest minefield in the world (the other one’s on our side of the DMZ in Korea) keeps it American.

    Pretending it’s not based on the 1903 treaty is like pretending I am dating a supermodel. It may be desired and helpful, but it’s not a fact.

  221. @Chris Brennan (#217):

    Guantanamo Bay is sovereign territory of Cuba not the US.

    Which implies that Cuban law applies. Has anyone asked the Cuban authorities what they think of the USA kidnapping foreigners and holding them captive on Cuban soil? Is that legal udner Cuban law? If Cuba has legal sovereignty, would it not be legal for the Cuban equivalent of the SAS to mount a daring raid into the kidnappers’ base to free the detainees?

    What’s that you say? Cuban law doesn’t apply, USA law does? Then what’s the problem with habeas corpus running there?

  222. Ceroth:

    No worries. Everyone has their own opinions, political and otherwise, and life would not be interesting if they were all the same. Glad you’re enjoying the books, and feel free to come ’round here any time and speak your mind.

  223. @274,

    It’s Cuban territory leased to the Americans. The terms of the lease also says America has absolute jurisdiction over the leased area.

    Take from that what you will…

    Andrew

  224. Levett @ 271,

    The problem with solicitors (which sometimes manifests even more starkly in barristers) who opine outside their narrow speciality is that they often fail to understand which laws and treaties are actually applicable. Let us take for example the immediate incident:

    I did not fail to cite the additional protocols because they would be injurious to my position. I did not cite them because they do not pertain; the United States has not signed them. They have never been submitted to the Senate for ratification (and would not be ratified if they were submitted). The Government and Courts of the United States do not recognize them.

    Petit @ 270

    Permission is granted to proceed on duties assigned.

  225. David doubts my my very minor superpower too.

    “Have you even read the Supreme Court decision? They do, you know, actually consider and analyze the sovereignty question. It might be a little more useful than, say, wikipedia.”

    I live to serve. But let’s start with the Constitution and the treaty themselves.

    “This Constitution. . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”

    And the treaty: “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water”

    Moving on to the opinion, the Court admits the legal answer is clear. “We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay.”

    Of course, the Court then proceeds to disregard the legal answer. And then throughout the case it has to explain why it is disdaining what it sees as mere technical legality and formalism in favor of “practical concerns” and “prudential considerations.”

    The Court’s opinion brings to mind the old saying, “When the law is on your side, argue the law. When the facts are on your side, argue the facts.”

    The irony of this case is that many of the people who like the outcome of this case are worried about an government that disregards the law to get what it wants for particular circumstances.

    PS I am still opposed to detentions without trial regardless of where the prison is. Unfortunately, habeas corpus is not the appropriate legal remedy in this particular situation.

  226. Of course, the Court then proceeds to disregard the legal answer. And then throughout the case it has to explain why it is disdaining what it sees as mere technical legality and formalism in favor of “practical concerns” and “prudential considerations.”

    That you do not like the Supreme Court’s analysis is not the same thing as it being wrong. SCOTUS made the distinction between technical and practical sovereignty. Unless you’re prepared to argue that Cuban law actually applies to Gitmo, then you are arguing that the United States government can create places outside any legal code. SCOTUS did not like that idea and neither do I.

    The Court’s opinion brings to mind the old saying, “When the law is on your side, argue the law. When the facts are on your side, argue the facts.”

    Way to destroy the poetry of the actual saying, which goes: “When the law is on your side, bang on the law. When the facts are on your side, bang on the facts. When neither are on your side, bang on the table.”

  227. David:

    “Unless you’re prepared to argue that Cuban law actually applies to Gitmo, then you are arguing that the United States government can create places outside any legal code. SCOTUS did not like that idea and neither do I.”

    And indeed, the whole point of putting the detainee camp at Gitmo, unless I’m wildly mistaken, was that the Administration wanted to take advantage of the “oh, well, technically it’s not American territory” loophole. The Supreme court recognized it as the cynical ploy that it was and closed that particular loophole.

  228. Rodney, I agree wholeheartedly that it is entirely foreseeable that random net twits will, when stung by the fact that their arguments are shown to be not as clever as they would like, turn to grade-school games that are equally unclever.

  229. And indeed, the whole point of putting the detainee camp at Gitmo, unless I’m wildly mistaken, was that the Administration wanted to take advantage of the “oh, well, technically it’s not American territory” loophole. The Supreme court recognized it as the cynical ploy that it was and closed that particular loophole.

    Yep. My guess would be that the Supreme Court had previously essentially winked and nodded at this because it was a rare occurrence in a temporary situation. Now that it’s part of “The Long War” and being used deliberately, SCOTUS isn’t willing to let the loophole exist.

  230. I think that the primary point of locating the camp at Guantanamo was to find a creative loophole where US law did not apply, with a side of out of sight, out of mind.

    This administration has shown a fondness for the apparent technicality, no matter how strained. That’s how we get:
    1) Torture isn’t cruel and unusual punishment because you haven’t been convicted of a crime, so it’s not punishment
    2) Nothing is torture unless the purpose is to inflict pain, so if the purpose is to elicit information, it’s not torture
    3) The 4th amendment says that probable cause is required for issuing a warrant, so a warrantless search doesn’t need to meet the probable cause standard

    In general, there are two reasons to go to lawyers for legal advice:
    1) “Is what I want to do legal?”
    2) “How close can I get to the edge of being illegal and not cross it?”

    The Bush administration has found a third way: “Find some reason to tell me this is legal.” (And, of course, they also argue that if someone tells you it’s legal, you can’t be held liable for following that advice. That’s some catch, that Catch-0.4545…)

  231. Naturally, I left out a 0 and ruined my “inverse of Catch-22″ joke. Probably just as well…

  232. @Rodney (#277):

    I did not fail to cite the additional protocols because they would be injurious to my position. I did not cite them because they do not pertain; the United States has not signed them. They have never been submitted to the Senate for ratification (and would not be ratified if they were submitted). The Government and Courts of the United States do not recognize them.

    You are misinformed. The US did sign them, and with the (ostensible) intention of subsequently ratifying. I am well aware, however, that neither for the first, nor the last, time Congress demonstrated that the word “plenipotentiary” is a misnomer in relation to US treaty negotiators.

    The rest of the world accepts that the Protocols form part of the customary law of war, and therefore of international law.

    I take it, by the way, that you would defend the actions of Tarleton as legal?

  233. Levitt,

    I sit corrected in part, and correct in part. The first additional protocol was signed but not ratified. I’m having some difficulty finding a source, but I don’t believe the second or subsequent protocols were signed and they have certainly not been ratified according to the ICRC.

  234. Rodney:

    Again, you are factually wrong. And I’m still waiting for some practical answers from you about how you imagine we can End the War on Terror. Feel free to include in your answer the use of Gitmo as it previously existed, before the SCOTUS ruling this week. Or are you incapable of this? Feel free to also clean up your prose. You sound like a wannabe University twit waxing poetic.

    Since I doubt you can formulate a response, I’ll take this opportunity to come up with a plan on how to end the War on Terror.

    1) We extend the rights of due process to all people in our courts, military and civilian. Why? So that we regain some of the respect of other nation’s governments and peoples, we don’t create more terrorists from those who are found innocent, and because you know, it’s the right thing to do. Rodney, aren’t you worried that we are missing critical intelligence from human sources, as a direct result of people not trusting our government to treat suspects with a coherent and fair law process?

    2) The courts that will process terrorists can have some restrictions on them. They don’t have to be just like every other court in America. If we are worried about national security issues, then close aspects of the prosecution to the media and general public. However, that doesn’t mean we get to indefinitely detain people and not allow them to see the evidence against them.

    3) Establish in America a core of educated Islamic scholars who interact with suspected terrorists to point out why their extremism is anathema to Islam as understood by the vast majority of people. I believe Yemen has a program where they try to rehabilitate some of these people, and once they are rehabilitated, the detainees are tracked. The idea is that few things are more demoralizing to the enemy that someone you’ve turned to your side.

    4) While we have these scholars talking to them, get some Intelligence operatives with a moderate understanding of Islam and Islamic extremism, as well as the requisite language skills, to build rapport with detainees. Pump them for information. Stop torturing.

    5) Work on the Public relations angle with the world. Have the President admit that we can’t solve all of our problems by invading countries, occupying them militarily, and kidnapping suspects. Have the President apologize for some of our heavy handed mistakes. Have him unroll a programs like the Peace Corps, targeted towards terrorist hotspots, and make it a priority. Draw down troops and spending in Iraq, and refocus them on Afghanistan and this new Peace Corp like program. Make outreach towards “terrorist” sympathizers the first goal, and beat organizations like Hamas at their own game.

  235. Given the length of the above, I doubt my comments will sway anyone to change sides, nor do I expect any response. Some of you may be right that the suspension of constitutional rights, even if to people not from this country, is troubling. But I fought in the Iraq war. The people we picked up on the battlefield weren’t innocent schmucks trying to herd their camels to the nearest oasis. Nor were they lost and accidentally swept up. These people were on a battlefield and carrying guns. Now, let’s just assume that Achmed the Camelherder was actually out innocently looking for a lost camel with his AK-47 across his back. Along comes a company of Bradly fighting vehicles and an ambush by the “bad guys.” Fighting goes on for several hours, during which Achmed is still innocently standing by looking for his lost camel. Finally, a platoon of US soldiers takes him prisoner – a terrible miscarriage of justice – for SHAME!

    Any of you people who SERIOUSLY think Achmed is innocent and deserves a taxpayer-funded lawyer need to sign up and join us in Iraq. You might accidentally find out that the world is a far different place than the fantasies you dream up.

  236. >>>a terrible miscarriage of justice – for SHAME!

    Yes, it is.

    What do you think the American Revolution was all about?

    So we could summarily toss what they fought for all away in the name of expediency? Justice is hard work. Democracy is hard work. If you want to be fat and lazy and be deluded into thinking others will do a proper job and keep you safe, you don’t deserve either — and you’re not safe, either.

  237. Thomas Brooks @289:

    So if that’s the story with Achmed, where’s the problem in telling it in court? That’s what habeas corpus is—explaining why the government has these people locked up.

    The problem is that Ali, in the cell next to Achmed, may be an Afghani goatherder who was sold to us by someone who didn’t like him as much as they liked our money. That’s a tale that needs telling too, even if it’s a mite awkward that we’ve waited so long to get round to the idea.

    The purpose of the legal system is to separate the innocent from the guilty. It’s harder work than arresting them all and letting God know his own, but that’s the way we as a nation have wanted to do things in the past. It would be a shame to give up on it now.

  238. Thomas:

    Achmed may probably be guilty. It’s the innocents that have been picked up and released without due process that are troubling. It’s the ramifications of that which are troubling. I have a great deal of respect for soldiers. With the exception of the Abu Ghraib swine, I think our soldiers deserve all the respect we can give them.

    Frankly, if Achmed gets arrested, and has due process, I’m all for it. If Achmed is carrying an AK-47, and gets shot, I’m supportive of the American troops that identified him as a threat.

  239. mythago @ 251

    RES, deliberately misreading people’s names is so third-grade, don’t you think? And yes, I’m quite familiar with the Socratic method, having undergone it personally rather than seeing a movie about it. You don’t seem to be much for engaging in it yourself.

    I’m seeing a lot of self-congratulatory twaddle, but not a lot of actual, well-thought-out argument. As far as I can tell, all you can offer is “we can do whatever we want as long as we’re at war”. It apparently has not occurred to you that the United States would not have a monopoly on the exercise of that logic.

    Myth, I not only consider such deliberate misreading thrid-grade, I deem it second-grade. But I also consider ascribing deliberate intent to possibly inadvertant error positively pre-K. If you will take the time to copy your post (any post) into Notepad for ease of composition and insertion of HTML tags before posting (as well as convenience and accuracy in replying to multiple comments in a single post, per John’s request), you will note that, owing to the peculiarities of John’s site formatting’ interaction with Notepad, “Mythago on 13 June” becomes Mythagoon 13 June” — I apologise for my error and assure you that, were it my intent to engage in childish ridicule I would employ far more entertaining methods.

    You err in assuming that my using a film as an example of a method that I have not undergone it myself. Whether such fallacious thought is deliberate, a result of poor reading and thinking skills or consequent of other deficiencies I leave to the judgment of individual participants here. I choose to be charitable. And for the record, if you will review the original post you will notice (if you read it very very carefully; others probably grasped it on first perusal) that I was not myself employing that method nor pretending to be so doing. The point of it was that in law, as in life (and unlike in fiction) things are rarely so simple as John’s argument attempted to make them seem. It would be presumptious in extremis for me to endeavor to teach the participants in this forum through the Socratic Method. indeed, I strongly suspect that many are ineducable, an opinion I’ve no doubt many here hold of me – the distinction, of course, being that I am right. ; )

    As to your second point, no, it never occurred to me that the US would have a monopoly on that logic, the Principle of Reprisal being the underlying basis of the law of war. As in life, “we can do whatever we want” is always the rule, so long as you don’t forget the subordinate clause which should always follow: “so long as we are willing to abide the consequences.”

    Robin Levett @ 275:
    I agree that sometimes a little training in the law sometimes give accountants the erroneous belief they understand the law. Just as the extensive training in law accrued by lawyers often leads them to believe that none but lawyers can understand law.

    My opinions on law are at last equally shaped by having intimate acquaintance with a number of lawyers, both before, during and after their matriculation at some of this nation’s best law schools. It is further informed by the belief that Law was never intended to be an arcane practice whose meaning was occluded to ordinary logic and thought.

    As a lawyer, I am sure you are aware of the weaknesses of argument from authority, just as I am confident that, as a “(UKian) lawyer, albeit not practising in the field of public international law” you are aware that your knowledge and understanding of American jurisprudence is unlikely to be applicable here. In this instance you are just another layman, albeit one better informed than many (a not terribly high bar, admittedly.)

    Robin Levett @ 285:
    I recognize your question was directed at Mr. Graves, but my criticisms of LtC Tarleton would be that his actions were counterproductive. I regretably forget which statesman to credit for the following statement, whose wisdom is profound: It was worse than a crime, it was a blunder!

    To all others, I will apologise in advance for failing to recognise and acknowledge the obvious superiority of your (choose one):
    a) Enlightenment
    b) Wisdom
    c) Reasoning
    d) Evidence
    e) Typing ability
    f) Comprehension of (pick one)
    law
    human nature
    international politics
    g) Other __________

    But I’ve family visiting from out of town and other family recovering from major surgery and, entertaining and educational as I find you all, time is at a premium this weekend so it is unlikely I will have further opportunity to observe how many here are actually capable of rational, disciplined thought and argument. I am sure it will be my loss and, if my Monday permits, I will endeavor to return for further elucidation of my inadequacies intellectual, logical, educational, emotional, and hygienic.

    Lord knows, this forum clearly needs a person who recognizes a joke when it is posted (or made law by a one vote majority.)

  240. RES @ 294: “You don’t understand. Someone on the Internet is WRONG!”

    I understand. I think most of here do.

    Have a good — what’s left of your — weekend.

  241. Any of you people who SERIOUSLY think Achmed is innocent and deserves a taxpayer-funded lawyer need to sign up and join us in Iraq. You might accidentally find out that the world is a far different place than the fantasies you dream up.

    Here’s what we don’t do in this country: we don’t decide people are guilty and lock them up and throw away the key until they’ve had a chance to see the evidence against them and make some defense against that evidence.

    Last week, the Supreme Court upheld that conception of America. I’m proud that they did so. Why aren’t you?

  242. Thomas, we give people who are demonstratively guilty of heinous crimes taxpayer-funded lawyers. We do so even when those people are caught red-handed in the act of the crime, or when the police officers who arrested them are 100% sure that they have seen evidence of guilt. We even provide them with legal representation if they admit their guilt. Even if they are accused of treason.

    You served honorably to defend America against its enemies. One of the things you were defending is that America is a free country, organized by a Constitution. We don’t throw people in jail forever and assume their guilt because a bounty hunter said “He’s guilty.” We don’t allow an arresting officer’s word to be all that is needed to imprison or execute someone accused of a crime.

    There are plenty of horrible regimes around the world that do, in fact, engage in that kind of approach to persons accused of crimes. You did not pledge to support one of those regimes, or to serve to defend them.

  243. Mike Cane

    “So we could summarily toss what they fought for all away in the name of expediency? Justice is hard work. Democracy is hard work. If you want to be fat and lazy and be deluded into thinking others will do a proper job and keep you safe, you don’t deserve either — and you’re not safe, either.”

    I agree wholeheartedly, but let me add something. Having a democratic and just society requires risk. There is a small, but quantifiable chance that not wiretapping Achmad from Afghanistan without a warrant will result in him blowing me up. It’s a minuscule* risk, to be certain, but a risk all the same. In choosing a just society, I am choosing to take that tiny, very minor risk. The payoff for taking that risk is twofold. First, belonging to a very just society is its own reward. Second, I decrease the chance that I will be wiretapped without a warrant.

    To me, choosing this risk embodies what it means to be American – if our forefathers could take the gigantic risks required to mount a revolution against an unjust king, I can certainly maintain the very small risk of being blown up by Achmad in order to preserve what the Founding Father’s fought for. If I won’t do that, I’m just coasting along getting all the benefits of being American, but not doing the extremely minimal work necessary to preserve liberties.

    *When I say minuscule, I really mean it. In 2001, the very worst year we’ve ever had for terrorism in the US, you were more than twice as likely to die because you took the wrong over-the-counter pain medication than by getting killed by Al Qaeda. Taking it to a ten-year average, you’re more than 20 times as likely to die by taking an over-the-counter pain reliever – the number of people who die because they’re allergic to Motrin (or whatever) stays constant, while terror deaths don’t.

  244. Thomas, here’s the thing – let’s say our Achmed is actually named “Dilawar”, and he’s arrested for driving a cab past a base just after it’s been attacked.

    While in US custody, he’s beaten to death by US troops as part of what appears to be a routine softening up. (The three people in his cab? Taken to Guantanamo, where they were released a year later.)

    If you object to the specific Dilawar case, even in Iraq, as of 2004, the Red Cross released a Coalition estimate that 70-90% of detainees were completely innocent. A lot of these detainees aren’t rounded up on the battlefield; they’re seized based on faulty intelligence or just because the right guy wasn’t home and it’s convenient to grab someone else.

    If you don’t see any shame in American soldiers beating an innocent taxi driver to death, then I’m afraid you’re part of the problem. A colonial counter-insurgency occupation is corrosive for both the occupiers and the occupied, and that’s what the real world tells us.

  245. Fungi says, “A colonial counter-insurgency occupation is corrosive for both the occupiers and the occupied …” So, that’s what you think we are doing in Iraq, setting up the 51st state? We want a colony, and we are occupiers, not liberators? I guess the Nazi’s felt the same way – after all, all they wanted was Europe subjugated under them. What a shame that we had to spoil their fun.

    Fungi adds, “…70-90% of detainees were completely innocent.” Gee, that’s an interesting pseudo-factoid. I guess Achmed really was innocently wandering around a combat zome carrying his AK-47, but was not shooting at us.

    Abi says. “… [Achmed's cellmate] may be an Afghani goatherder who was sold to us by someone who didn’t like him as much as they liked our money. ” I’m going to pretend that’s an honest question. I spent a lot of time in Iraq on two deployments and I was fairly high up on the command tree, once at Division and once at Theater level. There was never a case of us paying for the prisoners we took, except for those we offered bounties on. And if you really think Uday and Qusay are fairly represented by your Afghani goatherder, then you need to sign up and join us.

    David says, “the Supreme Court upheld that conception of America.” The Supreme Court made it impossible for us to take prisoners of war. And that’s not saying the people we took qualify as POWs. There were enemy combatants operating in violation of the Law of War as laid out by the Hague and Geneva conventions. In accordance with the Laws of War, people picked up on a battlefield, armed but in civilian clothes, can be assumed to be spies and can be executed. However the Laws of War do not prevent us from treating them better than is required.

    I know of no case during WW1, WW2, or Korean war where an enemy captured on the battlefield was given the same rights as an American citizen. The Supreme court just made it harder for me to keep you safe, and made it more likely that anyone I do catch will be able to kill more people. But I **DON’T** mind that. I’m a soldier and getting shot is goes with the job. I suspect this action will lead to more joint operations with our allies, and when prisoners are taken, more of them will go to Jordan, Egypt, Turkey, Pakistan, Saudi Arabia, and other countries rather than being kept by us. I’m sure the next Achmed or Ali that is taken will appreciate the Supreme Court’s efforts on their behalf.

    mythago says, “We don’t throw people in jail forever and assume their guilt because a bounty hunter said “He’s guilty.” Thanks, mythago, I’m glad to hear that I’m a bounty hunter.

    Mikey says, “What do you think the American Revolution was all about?” I think it was about America, not about the entire world. What do you think WWII was about? It wasn’t about extending US citizenship to the Nazis.

    Let me say that I appreciate all the responses, especially those I responded to above. I hoped that there would be such responses, because I hope that thinking Americans can see just how at odds with truth the views of the Extreme Liberal Left is. The ELL says we are bounty hunters. The ELL says we regularly beat innocent people to death. The ELL says that a beating is standard procedure to soften people up. The ELL says terrorists deserve MORE rights that you do, those who may be killed in the next 911. The ELL says we are colonialists and occupiers – that the terrorists are just defending their homes. More importantly, the ELL comes up with stories about issues that someone else made up – things that never occurred, but like most lies, if they are screamed loudly and often enough, they may seem like the truth.

    I wish I could leave the ELL to live in the country they want, where the soldiers and police have their hands tied and are targets in a shooting gallery. A country where a terrorist trying to destroy our country has more rights than you do. But it’s my country too.

    Nothing I can ever say will change their lies or their warped view of the world. But the rest of you have the opportunity to ask whether you trust someone who has a political agenda and has never been to Iraq over a soldier who deployed their twice.

  246. Hey, Thomas,

    Iraq is not Afghanistan. The ways that people ended up in Guantanamo from the two countries (leave aside anyone from other places) are not the same. I brought them up together because the law has to cover both sets of people.

    Take the group of Uiger tribesmen trying to reach Europe overland, who were turned over to our troops and ended up in Guantanamo. Five of them were not only released (after five years), but we arranged asylum for them in Albania. Hardly your gun-weilding camel herder, are they?

    Again, where’s the harm in actually telling a court why we’re holding these people?

  247. Alex says, “There is a small, but quantifiable chance that not wiretapping Achmad from Afghanistan without a warrant will result in him blowing me up. It’s a minuscule* risk, to be certain, but a risk all the same. In choosing a just society, I am choosing to take that tiny, very minor risk. The payoff for taking that risk is twofold. First, belonging to a very just society is its own reward. Second, I decrease the chance that I will be wiretapped without a warrant.”

    First, Alex, there were about 3000 people who died on 911 who might have disagreed with your position. Be that as it may, what you either don’t understand or don’t want to understand is that wiretapping was about calls to non-US persons. You were and still are protected from wiretapping without a court order as long as your phone calls are made to another US citizen. Now I realize that the “Constitutional rights belong to the entire world” crowd will object to that, but that is still what the government was seeking, stating that if a US Citizen calls a non-citizen, the non-citizen’s part of the conversation is not protected.

    Instead of worrying about your personal privacy, think about someone else for once. (Not that any analyst is really interested in whatever your call is about anyway.) Let’s say someone in the US calls bin Laden’s private cell phone number. If it’s on purpose and if it’s to help protect us from an attack, I think the Constitution does allow the wiretap, and I think it’s a good thing. And if the US caller was actually trying to order a pepperoni pizza and accidentally dialed bin Laden by mistake, I don’t think it’s the end of the world for that call to have been recorded. If I ever try to order a pizza and accidentally wind up talking to bin Laden, it would reassure me to find out that the government is still trying to protect me from bin Laden, even if they question me about the call.

    Try to use a little more logic and a little less paranoia. If bin Laden gets his way, you’ll have a lot more to worry about than whether someone listens to your phone calls.

  248. Abi, little as you might believe it, I appreciate the situation of the Uiger tribesmen, not that I was personally aware of it. Isn’t it interesting that we arranged asylum for them in Albania?

    I know of other cases, of people we are or have been holding in Gitmo that we would like to release. So why don’t we? Because the countries they came from don’t want them, or because the detainee has refused to be sent back because he’s afraid he will be killed upon arrival.

    Look, I’m not saying everything done in the war has been perfect. I’m saying we’re doing the best we can. Take your Uiger tribesmen – we wouldn’t have picked them up if they hadn’t been armed and in an area they shouldn’t have been in. And we probably tried to release them, but either they refused to go or they were refused permission to return, otherwise we wouldn’t have had to go through the problems of finding a country to give them asylum. Even that last word “asylum” should give any thinking man cause to question the situation. It doesn’t matter to me if asylum is sought for being a criminal or being a persecuted minority – either way we had to take additional action to get rid of them after (perhaps LONG after) we decided to release them.

    There’s a war being fought to keep 911 from happening again and it’s amazing to me how much sympathy there is for terrorists and how little sympathy there is for past and future victims of terrorism. It’s amazing to me that people are afraid their phone calls will be tapped – the same people who loudly and annoyingly use their cell phones in public places. It’s amazing to me that we get no credit for having arranged asylum for someone – just blame for having had them.

  249. @Thomas Brooks:

    I spent a lot of time in Iraq on two deployments and I was fairly high up on the command tree, once at Division and once at Theater level.

    I’m sorry, but I call bullshit. Somebody who can in all seriousness say:

    There were enemy combatants operating in violation of the Law of War as laid out by the Hague and Geneva conventions. In accordance with the Laws of War, people picked up on a battlefield, armed but in civilian clothes, can be assumed to be spies and can be executed.

    has never been high enough up the command chain to learn the laws of war as laid out in the Hague and Geneva Conventions (as opposed to those Hague and Geneva Conventions ratified by the US). Both GC3 and Additional Protocol 1 (itself accepted – by most of the world anyway – as representing customary law) are explicit that such a person is entitled to the presumption of PoW status, until a finding otherwise.

    Alternatively, I am wrong – but that your comment is indicative of serious failures of training within the US forces in Iraq.

    The Supreme Court made it impossible for us to take prisoners of war.

    I find this claim difficult to understand. SCOTUS has said nothing about whether or not you can take PoWs; the problem has been that the current Administration has sought to treat those entitled to the presumption of PoW status in violation of the Geneva Conventions.

    By the wy, the majority of those in GITMO were not picked up on the battlefield – certainly not by US forces. The West Point study published last year clarifies that. The majority of those remaining in custody in GITMO are eligible for release – according to the Administration’s own figures.

  250. Every time someone argues that United States cannot and must not follow its own ideals and constitution; that the handful of Islamist terrorists and the Iraqi guerillas are a worse threat than Nazis, Japanese Empire or Soviet Union, and cannot be dealt with under the same rules; that torturing someone is okay, because they might know something important; that it’s okay to suspend the rule of law because it is inconvenient…

    That’s when the terrorists win. Every American who lets themselves to be terrorized into supporting Bush and his policies is helping the terrorists to win. Nothing, and I mean nothing bin Laden and his followers could have done on their own to hurt, hinder and debase United States comes even close to what US has done to itself, by giving fear and hatred a free reign.

    The last several years will be a permanent black mark on the historical record of United States. I sincerely hope that this Supreme Court decision indicates that this period is nearing its end.

  251. Fungi adds, “…70-90% of detainees were completely innocent.” Gee, that’s an interesting pseudo-factoid. I guess Achmed really was innocently wandering around a combat zome carrying his AK-47, but was not shooting at us.

    Uh, you did notice that it was the Coalition that made that estimate? And it’s the height of bankrupt argumentation to come up with a hypothetical situation to use as a counterpoint to actual evidence.

    David says, “the Supreme Court upheld that conception of America.” The Supreme Court made it impossible for us to take prisoners of war. And that’s not saying the people we took qualify as POWs. There were enemy combatants operating in violation of the Law of War as laid out by the Hague and Geneva conventions. In accordance with the Laws of War, people picked up on a battlefield, armed but in civilian clothes, can be assumed to be spies and can be executed. However the Laws of War do not prevent us from treating them better than is required.

    The Supreme Court did not make it impossible to take POWs. In fact, had the administration decided to treat captured folks as POWs, with all the attendant rules therein, absolutely none of this would have happened.

    And why not treat them as POWs? Yes, I realize that you can make an argument that the United States doesn’t have to, but why not? There’s a clear and organized set of rules having to do with POWs that are straightforward and accepted and it would have avoided all of these problems. So why not? (“Because we can” is not a valid argument).

    I know of no case during WW1, WW2, or Korean war where an enemy captured on the battlefield was given the same rights as an American citizen. The Supreme court just made it harder for me to keep you safe, and made it more likely that anyone I do catch will be able to kill more people

    They weren’t given the same panoply of rights as American citizens. They were given access to the specific and universal right of habeas corpus, one that is specified in the Constitution as applying non-Americans as well as Americans. Your beef is with the Constitution.

    The Supreme court just made it harder for me to keep you safe

    Oh, try not to repeat Scalia’s talking points without thinking about them. In a counterinsurgency, a lot of success is not just about defeating those actively fighting us, it’s about preventing them from recruiting others to their cause. Every time the United States does something like torture or imprison indefinitely, it helps with the jihadi recruiting. “Hearts and minds” isn’t just an empty phrase.

    Nothing I can ever say will change their lies or their warped view of the world

    How remarkably offensive. I’m sad to hear that you live in an America where people can’t have different ideas and thoughts and beliefs. I don’t believe that the United States is actually like that; perhaps you should join the rest of us.

  252. For those asserting that the USA gave WW2 POW access to the American court system to challenge their capture or detention, I’d like a reference, please. I want to read about it.

  253. For those asserting that the USA gave WW2 POW access to the American court system to challenge their capture or detention, I’d like a reference, please. I want to read about it.

    There’s a remarkable amount of literature about the Nuremberg Trials and the war crimes trials in the Pacific. All of those were carried out according to established rules of law, the defendants were given lawyers and allowed to see the evidence against them, and yet shockingly western civilization did not collapse as a result.

  254. @htom (#309):

    The whole problem here is that the Administration doesn’t want to treat the GITMO inmates as PoWs. WW2 PoWs were treated as PoWs; and they were not held in territories under US jurisdiction.

    Nobody here is asserting that they were given access to the US court system.

  255. @ David in 310,

    David, I am scouring what resources I have available to me, but from 1939 to 1945 I cannot find one instance of an enemy soldier being held by an allied power suing.

    In particular, from 1943 to 1945 when there were more than Germans in PoW camps in the US, none of them sued for their right of Habeus Corpus.

    Were laywers back then just not on top of things?

    Andrew

  256. @ Robin, 311

    So, if the 150 camps that Germans were sent to in the Continental US during WW2 are not sovereign US territory, whose territory were they on?

    Andrew

  257. Thomas Brooks

    “Instead of worrying about your personal privacy, think about someone else for once.”

    I am thinking about somebody else – for example, yourself. I worry that you, and everybody else, even if I disagree with their politics, gets their Constitutionally mandated share of privacy.

    Alex, there were about 3000 people who died on 911 who might have disagreed with your position.

    They probably wish Bush had listened to Richard Clarke.

  258. @Andrew (#313):

    So, if the 150 camps that Germans were sent to in the Continental US during WW2 are not sovereign US territory, whose territory were they on?

    I’m afraid I’ll have to give you that one – I was focussed on those who were subsequently tried for war-crimes, who were exclusively – at the time of their trials – held in Germany.

    However – you continue htom’s comparison of apples with oranges. The fact that the Germans and Italians (and other nationalities) in the USA were, and were treated as, PoWs, is undisputed, as is the right of the Allies to detain them until the conclusion of the hostilities for that reason.

    The Administration however insists that those at GITMO are not PoWs. Comparison with the position of PoWs is therefore not in point.

  259. mythago says, “We don’t throw people in jail forever and assume their guilt because a bounty hunter said “He’s guilty.” Thanks, mythago, I’m glad to hear that I’m a bounty hunter.

    Thomas, really, this thread is NOT all about you. If you’d bothered to read along, you’d have seen that some of the detainees at GTMO were, in fact, rounded up by bounty hunters.

  260. htom:

    For those asserting that the USA gave WW2 POW access to the American court system to challenge their capture or detention, I’d like a reference, please. I want to read about it.

    I think the real problem is this; the majority of the Supreme Court felt that the detainees were being treated unjustly, and they wanted (and needed) to address it. Unfortunately, their means of addressing the problem is very limited – they must state their decisions in terms of US Law and the US Constitution. This led to them ruling about the case in a manner which follows US Law quite closely, but does not track the Geneva Conventions or the practicalities of being a military person in charge of POWS very well.

    The Geneva Convention reads, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

    If the Supreme Court had simply specified what a “competent tribunal” was, and how it should operate according to US Law, including statutes of limitations and habeas corpus rights, it would have been a much better decision.

    On the other hand, had the administration simply done the right thing and had everyone examined by a fair and competent tribunal rather than simply insisting that all the captives were “unlawful combatants,” they and the military would not be subject to the current ruling. The ruling is not an attack on the military by vicious liberals. It is a response by the court system to the Bush Administration fucking around with the rules.

  261. David, I am scouring what resources I have available to me, but from 1939 to 1945 I cannot find one instance of an enemy soldier being held by an allied power suing.

    You’re moving the goal posts. Your original question asked about WW2 POWs and was not limited to the years between 1939-45. The Nuremberg Trials, which happened after 1945, were of POWs from WW2, so my response was certainly on target.

    In any case, the comparison is faulty for another reason. The United States currently insists that it holds NO POWs, as understood by the Geneva Convention. Instead, it insists that the illegal enemy combatants it holds have no rights other than what the administration is willing to give them. They put those captives deliberately in a place where they thought U.S. law did not apply.

    During WWII, on the other hand, the legal status of German POWs was perfectly clear and that’s why the American government had no worries about putting them into camps in the continental U.S. Had the current administration followed that precedent and simply decided to declare the captives POWs all of this would have been avoided. Why didn’t they?

  262. The Nuremberg Trials were not an access by POWs to the American court system. If that’s the best reply, then I conclude that there was no such access.

  263. McClatchy has a new article up on the detainees: America’s Prison for Terrorists Often Held the Wrong Men

    ” GARDEZ, Afghanistan — The militants crept up behind Mohammed Akhtiar as he squatted at the spigot to wash his hands before evening prayers at the Guantanamo Bay detention camp.

    They shouted “Allahu Akbar” — God is great — as one of them hefted a metal mop squeezer into the air, slammed it into Akhtiar’s head and sent thick streams of blood running down his face…

    But Akhtiar was no terrorist. American troops had dragged him out of his Afghanistan home in 2003 and held him in Guantanamo for three years in the belief that he was an insurgent involved in rocket attacks on U.S. forces. The Islamic radicals in Guantanamo’s Camp Four who hissed “infidel” and spat at Akhtiar, however, knew something his captors didn’t: The U.S. government had the wrong guy.

    The McClatchy website also hosts
    an enormous archive of documents which give background about the story, including court martial papers against soldiers who mistreated detainees.

    Just as an aside, I’ll note that regardless of the politics, this is the Internet at it’s best. McClatchy does not just provide a story, they provide a massive document dump of their sources, including video interviews, court martial records, military manuals, Supreme Court decisions, and other documents. If you want to learn about Guantanamo, this is a fantastic treasure trove, and I wish every news story worked like this does.

  264. htom @319 – what you seem to be missing is that by your carefully-parsed terms, there is no such access now.

  265. htom

    The Nuremberg Trials were not an access by POWs to the American court system. If that’s the best reply, then I conclude that there was no such access.

    I believe you’re correct. IIRC, Nuremberg was a special court, convened internationally by the victors of World War II. However, the defendants did receive a fair trial. They were allowed lawyers, they were allowed to cross examine witnesses, view all the relevant documents, and were fully informed of the charges against them.

    In many cases, however, the Nuremberg defendants were not POWs. Frequently they were surviving civilian members of the Third Riech, so the idea that they had access to civilian courts should not be seen as carrying any special relevance to the current discussions. I should also note that they were not tried until the war was won, and any menace from the Axis powers had been ended with extreme prejudice.

    So the Nuremberg case is not a close parallel with the Guantanamo prisoners. Very simply, the prisoners at Guantanamo got access to the civilian court system because the Bush Administration did not follow the black letter law of the Geneva Conventions.

  266. David,

    Since I did not ask the question,I am not sure how I can be accused of moving the goal post.

    That said, a great deal of the Germans tried at Nuremburg were not PoW’s. Only a couple had been captured during the course of the war (Hess being the most well know probably). The rest were taken into custody after the war was over and tried for War Crimes, or were tried in absentia. Can a person be a prisoner of war after the War is over?

    By my understanding, limited as it is admittedly, the prisoners at X-Ray enjoy more legal protections than those tried at Nuremburg.

    Andrew

  267. Sorry for the continuing posts…hit return when editing the previous one

    David,

    If we are to take the administration to task for not following “black letter law” with regards to their legal status on US Jurisdiction, at the same time you must admit that by a “black letter” reading of the Geneva Conventions some of those held in X-Ray do not meet the requirements of being a Prisoner of War.

    The whole process in setting up a system to try the people captured has been long and involved (and bipartisan no less) and this latest ruling does no better than to muddy the waters without solving anything. I suspect it’ll be eight or SC rulings before the process is finished…

    Andrew

  268. Andrew

    “a “black letter” reading of the Geneva Conventions some of those held in X-Ray do not meet the requirements of being a Prisoner of War.

    Absolutely. We all know that some of the prisoners at Gitmo are very evil dudes. But it shouldn’t take six years to sort out which is which. Basic decency would have seen the process over within three to six months. We also know that some were captured in error, and that at least one was a 15-year-old child when captured. This is standard investigative stuff, not rocket science. Any mid-sized police force in the US could have handled this in less than a year.

  269. Andrew @323: By my understanding, limited as it is admittedly, the prisoners at X-Ray enjoy more legal protections than those tried at Nuremburg.

    Your understanding was reported by Nat Hentoff to be a Bush administration talking point, and at least one of the Nuremberg prosecutors disagrees with it.

    I call special attention to why Col. Davis resigned – that he was told there couldn’t be any acquittals at Guantanamo, even though there had been at Nuremberg.

  270. In many cases, however, the Nuremberg defendants were not POWs. Frequently they were surviving civilian members of the Third Riech, so the idea that they had access to civilian courts should not be seen as carrying any special relevance to the current discussions. I should also note that they were not tried until the war was won, and any menace from the Axis powers had been ended with extreme prejudice.

    “in many case” does not equal “in all cases.” Certainly, Goering was a military officer, and many generals were tried.

    The idea that they were given a trial that followed the procedures of justice–defense lawyers, discovery, etc–is certainly relevant to this discussion.

    As to “access by POWs to American court system” someone has already pointed out that by that parsing, it doesn’t exist now.

    (In addition, 9 German spies were given access to the court system in World War II to argue that they were POWs. They lost, but they were given access.).

    Since I did not ask the question,I am not sure how I can be accused of moving the goal post.

    Why do you need to be the one to ask the original question to move the goalposts? Someone established the question, I answered it, and you then criticized that answer for not being the answer to something that *wasn’t* the original question. That’s certainly goalpost shifting.

    And in a perfect example of irony:

    David,

    If we are to take the administration to task for not following “black letter law” with regards to their legal status on US Jurisdiction, at the same time you must admit that by a “black letter” reading of the Geneva Conventions some of those held in X-Ray do not meet the requirements of being a Prisoner of War.

    Since I did not post the comment about ‘black letter law’, I don’t know why this is addressed to me.

    In any case, I’ll repeat a question I’ve asked before which no one has answered: why NOT treat them as Prisoners of War? That gives the government a clear set of guidelines to follow, leaves the administration in an essentially impregnable position, and solves the problem before it even starts. So why not? (And don’t say “Because they don’t deserve to be.” By that standard, thousands of Germans and Japanese who committed war crimes didn’t deserve to be treated as POWs. They usually were, nonetheless.)

  271. and this latest ruling does no better than to muddy the waters without solving anything

    How did they “muddy the waters”? It’s not a difficult concept.

  272. As to “access by POWs to American court system” someone has already pointed out that by that parsing, it doesn’t exist now.

    (In addition, 9 German spies were given access to the court system in World War II to argue that they were POWs. They lost, but they were given access.).

    Without careful parsing, the Law is nothing but the (ab)use of Power. I have seen several posters (I don’t remember if any of them were here) claim that WW2 POW were so able to contest their capture and/or detention.

    The case(s) of the German spies, I think, is a much closer parallel to that of the current detainees. I presume that in their losing, precedent was established that was (until now) keeping the current detainees out of court?

  273. Robin: Call whatever you like, but if you check carefully, you’ll find it’s coming from you. I’m a senior sergeant. I said I was high up in the command tree, not the chain of command. Also, you’ve misinterpreted the Geneva and Hague conventions, probably to back up your position. The Laws of War REQUIRE that combatants wear something that distinguishes them as combatants, and specifically says that failure to do so makes them illegal combatants, and subject to being treated as such. Yes, a person is entitled to the presumption of POW status, UNLESS the person deliberately violates the laws of war.

    As far as my statement, “The Supreme Court made it impossible for us to take prisoners of war.” I could have phrased it better, as follows: The SC has made it impossible for us to take prisoner those who are not entitled to POW status, but which we choose to accord them, more or less.” The point is that we choose to give them some of the treatment of POWs, not because they are entitled to it, but because we’d rather interrogate them than take them out and shoot them as illegal combatants. As I stated earlier, I suspect more of those captured on future battlefields will go into the hands of our allies, who are perhaps less interested in treating prisoners humanely.

    David: For whatever reason, I can no longer find Fungi’s original comment, but it was passed through at least 3 entities before reaching Fungi. As Mark Twain said, “there are lies, damn lies, and statistics.” I’m not going to argue quotes which could easily have been taken out of context with either of you. I only note that “someone” claimed that “someone else” claimed that the coalition said …

    And I’m over here fighting for your right to lie and have a warped view of the world. Your comments are just as offensive to me. Don’t I have the same rights to be offended that you do?

    Yes, there is plenty of literature about Nuremberg, the last of which occurred in 1948, 3 years after the end of the war. What is wrong with waiting until the end of Iraq before we start freeing combatants to fight again?

    Why didn’t the administration blanketly declare all captives POWs? Simple. Because they WERE NOT entitled to it. For example, you are aware that some of the people fighting us have beheaded people on camera, yes? Well that is a violation of the Laws of War, and the perpetrator is not entitled to the protection of POW status. Shall I give other examples? Gobbels was not entitled to POW status and neither is Khalid Sheik Mohammad. Those who used white flags to get us to stop shooting, and then moved to other positions to continue the fight violated the laws of war. So did those who used mosques, hospitals, and ambulances to store and move military hardware and combatants. So, if we blanketly declare them to be POWs, we make it harder to prosecute them for these crimes. Also, if they receive POW status, they are entitled to repatriation at the conclusion of hostilities. I can’t imagine freeing Khalid Sheik Mohammad at the end of this war.

    Alex: In ALL cases, those brought before the Nuremberg trials were not POWs. For those who were in the military (Goering, for example), they were charged with war crimes, which when proven, removes the protection of POW status. But again, this was YEARS after the war ended. So just why are you and those like you so anxious to release enemy combatants before the end of fighting? The answer, of course, is it supports your political position. I suspect this question will become less interesting to you after November.

    Someone mentioned “hearts and minds”. Despite what the media does not report, I see almost daily reports of people joining the Sons of Iraq, the police force, the Iraqi Army, and providing tips to US forces. We have a chance to win this one, if certain people will quit providing aid, comfort and encouragement to the enemy. It’s all intellectual to you, but it’s not intellectual to the guy on the ground. Funny that so many of you are concerned about freedom for Gitmo detainees, and apparently could give a damn about the life of the soldier just trying to survive. And don’t waste time saying, “if Bush hadn’t sent them, their lives wouldn’t be in danger, so it’s not your fault.” That’s just a cop-out. Sure, you have the right to be Jane Fonda if you want to. But having the right doesn’t make it right.

  274. David

    “The idea that they were given a trial that followed the procedures of justice–defense lawyers, discovery, etc–is certainly relevant to this discussion.”

    Absolutely. It’s very clear the Bush Administration is unwilling to give the inmates at Guantanamo any kind of fair hearing – probably because they expect to lose the majority of cases. At this point, even the cases they “win” will be suspect.

  275. @ mythago

    From Roberts dissent:

    “The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.”

    Unless of course the Chief Justice is wrong and these have been spelled out somewheres…

    Andrew

  276. But Thomas, don’t ALL human beings have some rights? Taking away rights is what evil people do. Preserving and expanding rights is what the founding of our country (The Good Guys) was all about. It is what separates us from them… Even if they are scum, they are human, and we are supposed to stand for human rights.

    Also, why do we expect them to follow the Geneva Conventions? They didn’t sign them. They are terrorists, and have no “country” that acted as a signatory. We can’t use the legal fiction that they violated a “law” that is not within our jurisdiction to apply. This again undermines our goal to be an example to the world for how to run a country.

    (NOTE: I believe that by purposefully choosing an arbitrary third nation to hold our war in, we violated at least the spirit of the Laws of War. Our actual enemies didn’t live in Iraq, but it was an out of the way place few people liked where we could lure all the bad guys and slaughter them. A tactically sound, but ethically repugnant idea. Because we are generating more enemies than we are killing, it also seems to have been strategically unsound.)

    If you believe in America as a CONCEPT that should inspire the world, then you MUST believe in a system where it’s ok to let them have their day in SOME court. If that system is just, they won’t walk away free. By denying them hearings of ANY sort, we appear to be afraid of our own concept of justice.

    We cannot continue to use a system of Laws of War that was designed to operate around conflicts between signatory nations. We must find a new system that preserves the rights we are fighting for (mostly diplomatically) in every despotic region in the world, or we label ourselves hypocrites. If we allow a system where ANY human can be held FOREVER without so much as a hearing, then we have abandoned the most sacred foundation our nation is built on.

  277. Thomas Brooks:

    “So just why are you and those like you so anxious to release enemy combatants before the end of fighting? The answer, of course, is it supports your political position. I suspect this question will become less interesting to you after November.”

    Thomas, don’t put words in my mouth or thoughts in my head. I don’t want to release anyone – not one single person – who violated the laws of war.

    I do want to have a process for dealing with detainees that is honest, just, and transparent. First, because such a process is right, and second, because such a process demonstrates to the world that our system of justice is fair and good, and should not be attacked through terror. A clear and unequivocal demonstration that we are the good guys has enormous power to convince others to support us, or at least not attack us.

    On a practical level, an Iraqi who learns that we gave Achmad the Goat Herder a fair and honest trail, declared him not guilty, and sent him home to his goats is less likely to plant an IED or shoot an American soldier. By the same token, an Iraqi who learns that we’ve held Achmad for six years without putting him before a “competent tribunal,” that we’ve decided without good evidence that Achmad is a member of Al Quaeda, and that we’ve been interrogating Achman non-stop for six years… then our hypothetical Iraqi will be much more likely to aim his rifle at you.

    “Hearts and minds” isn’t some abstract thing we liberals think about. It has real and serious consequences for your life.

  278. Questions to those who disagree with the SC ruling:

    In WWII, there were British and American nationals, many in the direct pay of the USA and England, who infiltrated France and fought alongside the French Underground.

    What if Germany had won the war, and rounded up ALL Americans living in occupied France, and held them for life without a hearing, just because they MIGHT have been “illegal” enemy combatants? How would you feel about that?

    On the other side of WWII:

    On the West Coast, we rounded up 100,000 men, women, and CHILDREN, who were American born of Japanese descent, and sent them to camps without hearings. Are you proud of that? Was it necessary? Was it legal?

    Note: My apologies if these questions were covered earlier. I’m into this one late and couldn’t read all the comments…

  279. “Absolutely. We all know that some of the prisoners at Gitmo are very evil dudes. But it shouldn’t take six years to sort out which is which.”

    In this day and age? With everyone even peripherally attached to the issue feeling the need to chime in on what to do? The rules for military commissions were laid down initially, found to be wanting, overturned, and deliberated upon again. Each time they were challenged by outside interests.

    The prisoners have fallen into a grey area where many of the Laws of War (as if there could be such things) are concerned. In order to start the prosecutions, the problems have to be defined and resolved. Thats been attempted twice, once by a group of individuals not known for its speed in getting things done.

    Besides, you can bet that if in the three to six months after they had been captured the very bad Guys had been dealt with, the outcry would be even greater as an abuse of power and a lack of due process. Heck, there are US citizens who have been on Death Row for 20 plus years, and the evidence against them is a heck if a lot more concrete than some of the inmates at X-Ray.

    “We also know that some were captured in error, and that at least one was a 15-year-old child when captured. ”

    Well, warfare is never cut and dried. I fully expect any of those found to be innocent to be released,whereupon they will then turn around, and with counsel present hold a press conference talking about their new lawsuit…

    BTW, is there an minimum age limit on combatants spelled out somewheres? What is it with you and this 15 year old you keep bringing up? Do you believe him innocent becuase he’s only 15? If he were 18 you’d be OK with his capture? Because if that’s the case I have some friends who can introduce you to 15 year olds (and younger) who will quickly disavow you of that notion.

    Andrew

  280. @ Alex

    IIRC, there have been more than a few prisoners (someone said 30 earlier) who have been released, and have subsequently been killed attacking coalition forces in Iraq and other nations.

    Did we let guilty people go, or by incarcerating them, did we turn them into what they became after their release? Or possibly both?

    Andrew

  281. @Thomas Brooks (#330):

    Yes, a person is entitled to the presumption of POW status, UNLESS the person deliberately violates the laws of war.

    Wrong – under both GC3 and Protocol 1. Someone entitled to PoW status, even presumptively, retains those rights whatever their actions before capture. GC3 in particular makes specific provision for trying PoWs for war-crimes and crimes under international law.

    It is however true that members of militias and volunteer corps (including resistance movements) conducting operations in breach of the laws of war etc thereby lose entitlement to PoW status (GC3 Art 4(2)); but until that determination is made, the presumption remains.

    Even then Protocol 1 provides for minimum standards of treatment, and they don’t include being shot out of hand; see eg articles 44, 45 and 75.

    Why you think your allies in Iraq are less interested than you in treating prisoners humanely I have no idea; we have, after all, signed up to GC4 and the Protocols without reservation.

  282. From Roberts dissent

    If you have a problem with something in the Court’s ruling, quote that. Don’t quote me a context-free line from the dissent about what Roberts says he thinks the majority said or did.

    Of course, that requires you to read and analyze the opinion critically, instead of cherry-picking a line you like from the dissent and saying “Go go gadget dissenter!” Have at.

  283. edward: I agree with you – all human beings have some rights. We’re disagreeing about just which rights they should have and when they should receive them. We haven’t shot them, we feed them and give them medical care, we give them copies of the Koran, and many other things, but I don’t see us getting any credit for that.

    I don’t expect them to follow the Geneva Conventions. But they are the rules which most nations have signed on to, in order to reduce the brutality of war. If I don’t make a point of insisting on enforcement of the Laws of War, them what will stop the next set of Neanderthals from ignoring them? It is not a legal fiction, nor is it something we set up, nor is it something we enforce alone. Slobodan Milosevic and the other Bosnian and Kosovaran war criminals were or will be prosecuted for those violations, but not by the US.

    You say, “I believe that by purposefully choosing an arbitrary third nation to hold our war in, we violated at least the spirit of the Laws of War.” I think you are confusing two issues. I was in Kuwait in January of 2003, waiting to see if Saddam was going to allow inspections, quit firing on the planes enforcing the no-fly zones, and stop killing his own people. NOTE: These issues were decided by the UN, not by the US. The only thing we did was act to enforce UN resolutions. It is linked to the War on Terror, but I think it’s ludicrous to claim it was arbitrary or just to attack al Qaeda.

    “If you believe in America as a CONCEPT that should inspire the world, then you MUST believe in a system where it’s ok to let them have their day in SOME court.” I agree with you – I just think that day should be AFTER we pull out of Iraq, or at least have a stable elected government.

    “We cannot continue to use a system of Laws of War that was designed to operate around conflicts between signatory nations. We must find a new system that preserves the rights we are fighting for (mostly diplomatically) in every despotic region in the world, or we label ourselves hypocrites.” Ok, that’s one opinion, and I respect it. But I also see people who never spoke up about Clinton’s use of the military in Bosnia and Kosovo, who are frothing at the mouth over Bush’s use. (Hypocrisy) No one seems aware that we still have troops in both locations. (More hypocrisy.) I’m not a Bush fan, and I’ll only vote for McCain as the lesser of two evils, but no one seems to remember that shortly after the invasion of Iraq, Libya suddenly gave up support of terrorists and allowed inspectors in. I’d like America to be loved and respected. But if it stops another 911 and convinces Gaddafi to stop supporting terrorists, I’ll settle for being feared.

    If someone walks up to you and punches you in the nose every day, you have to decide if you can live with that or not. But if every time he punches you, you fight back, the bully will eventually pick another target. I’m sorry you don’t see it that way, but terrorists are bullies and “respect” doesn’t work for them. The only way to deal with a bully is with force.

    “What if Germany had won the war, and rounded up ALL Americans living in occupied France, and held them for life without a hearing, just because they MIGHT have been “illegal” enemy combatants?” Edward, if Germany had won, I expect exactly that anyway and far worse, so what is the point? The people we dropped in to France to work with the underground KNEW they would be shot as spies if caught. And no, I think the internee camps were a low point for the US, especially considering the combat record of 442nd Regimental Combat Team, which was mostly Japanese-Americans.

    Alex: Puting thoughts in your head is probably impossible, but just for a laugh, I’ll treat your “honest, just, and transparent” process seriously. If we wait until after the war, I agree with you, but to do it now means I have to fly combat troops back from the war to sit in a court and testify that Achmed the Camelherder wasn’t just looking for a lost camel, he fired his AK-47 at us and then ran into the nearest mosque. And nothing ever happens quickly in a court, so my combat soldiers will be sitting around for months waiting to testify, while the defense files delay after delay in hopes of getting a mistrial. AFTER the war, I can accept this, but not while it’s still going on. Please excuse me if I accidentally put a thought into your head.

    Robin: Take a deep breath, Robin, and try to remember that the caveats you cite can be set aside by an official citing a breach of the Laws of War. I know you hate the idea, but I defy you to find an instance during WWII where the POW protections were set aside publicly, or by other than an official of the capturing nation. In short, if I as an Infantry squad leader pick up someone using a Red Crescent vehicle to transport ammunition, and I bring him to my battalion commander with the evidence, someone between my battalion commander and the theater commander can convene a court martial and have him shot the same day. That’s how the rules read, and we haven’t done it, at least not that I am aware of, but we could have. It’s you who are wrong.

    As far as how are allies might treat prisoners, I wonder what other reason there is why Gitmo detainees have refused release? You are aware, in your righteous indignation, that there are people we want to release, who refuse to return to their country?

  284. @Thomas (#340):

    Take a deep breath, Robin, and try to remember that the caveats you cite can be set aside by an official citing a breach of the Laws of War.

    No; they can be set aside on a showing before a properly constituted court. The accused is entitled to assert a claim to PoW status (note – not be entitled to PoW status) before the Court that tries him.

    Protocol 1 Article 45(2) reads:

    If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence.

    I know you hate the idea, but I defy you to find an instance during WWII where the POW protections were set aside publicly, or by other than an official of the capturing nation.

    Where did that one come from?

    And please bear in mind that the law has moved on since WWII.

    In short, if I as an Infantry squad leader pick up someone using a Red Crescent vehicle to transport ammunition, and I bring him to my battalion commander with the evidence, someone between my battalion commander and the theater commander can convene a court martial and have him shot the same day.

    Protocol 1 Article 45(3):

    Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol.

    Protocol 1 Article 75:

    No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure…

    Comply with those principles within a day – then yes, fine, you can do this. That isn’t what you originally said; which was that they could be shot without benefit of any suc protection.

    As far as how are allies might treat prisoners, I wonder what other reason there is why Gitmo detainees have refused release? You are aware, in your righteous indignation, that there are people we want to release, who refuse to return to their country?

    I am aware of that. Which of those nations are allies of yours in Iraq? I don’t particularly see it as to the USA’s (or the UK’s) credit that many of those detained at GITMO took sidetrips to such countries before getting there so that they could be tortured without getting our hands dirty.

    Keep in mind, by the way, that those interrogations – held before determination of status – were themselves in breach of GC3. That evidence obtained by such interrogations is even notionally admissible before the CSRTs that purport to determine status is…odd…

    No-one, by the way, has refused to return to my country, so far as I am aware; instead, our nationals are clamouring to be returned here.

    If I don’t make a point of insisting on enforcement of the Laws of War, them what will stop the next set of Neanderthals from ignoring them?

    No comment required.

  285. Why didn’t the administration blanketly declare all captives POWs? Simple. Because they WERE NOT entitled to it.

    So what? Was Goering? Probably not, but he was treated as a POW anyway. My point, which you are resolutely ignoring, is that POW status gives the United States all kinds of advantages too, including a clear-cut legal status, the pr-advantage of being visibly better than our enemies. So why not?

    So, if we blanketly declare them to be POWs, we make it harder to prosecute them for these crimes.

    As someone else has pointed out, this is completely untrue.

    Also, if they receive POW status, they are entitled to repatriation at the conclusion of hostilities.

    Not if they’re convicted of war crimes, it won’t.

    And I’m over here fighting for your right to lie and have a warped view of the world. Your comments are just as offensive to me. Don’t I have the same rights to be offended that you do?

    I would never dispute your right to be offended or to hold your opinions or express your opinion. And that’s the difference between the two of us. I don’t like your opinions, but I don’t accuse you of treason for holding them.

    Yes, there is plenty of literature about Nuremberg, the last of which occurred in 1948, 3 years after the end of the war. What is wrong with waiting until the end of Iraq before we start freeing combatants to fight again?

    And if we had declared them POWs, then we could have done exactly what you want: hold on to them until the end of hostilities and then try them. So why aren’t we declaring them to be POWs again?

    Someone mentioned “hearts and minds”. Despite what the media does not report, I see almost daily reports of people joining the Sons of Iraq, the police force, the Iraqi Army, and providing tips to US forces.

    How shocking that that happened after the U.S. started paying more attention to winning “hearts and minds” by cleaning up in Abu Ghraib and by working harder to be friendly.

    We have a chance to win this one, if certain people will quit providing aid, comfort and encouragement to the enemy. It’s all intellectual to you, but it’s not intellectual to the guy on the ground. Funny that so many of you are concerned about freedom for Gitmo detainees, and apparently could give a damn about the life of the soldier just trying to survive. And don’t waste time saying, “if Bush hadn’t sent them, their lives wouldn’t be in danger, so it’s not your fault.” That’s just a cop-out. Sure, you have the right to be Jane Fonda if you want to. But having the right doesn’t make it right.

    Good Lord, what a sad rant. You’re so overwhelmed with fear and xenophobia that not only don’t you understand the world you live in, you don’t even know and understand your fellow Americans. Anyone who expresses a different thought–a scary thought–has to be labeled a traitor, a “Jane Fonda”, so there’s no chance that you will have to contemplate the thought, or contemplate the idea that things might not be as simple as you’d believed.

    Have Daddy check under the bed before you go to sleep every night. It’ll help with the darkness.

  286. Robin, you must be a lawyer. My fault for attempting to say something simply rather than citing reams of case law. You said, “they can be set aside on a showing before a properly constituted court”, which is correct, but what constitutes a properly constituted court? The US Military has preferred not to get into this insofar as POWs are concerned because we don’t want to try them. But as demonstrated by signatories to the Hague and Geneva conventions, it can be little more than the official I mentioned.

    “The accused is entitled to assert a claim to PoW status (note – not be entitled to PoW status) before the Court that tries him.” Sure, but few of them are. In fact five, including Khalid Sheik Mohammad, had their first court appearance just last week. One was planning to use a lawyer, but the other five convinced (threatened, browbeat) him not to. None of them entered a plea, but KSM said, “This is what I wish, to be a martyr for a long time. I will, God willing, have this by you.”

    I know you hate the idea, but I defy you to find an instance during WWII where the POW protections were set aside publicly, or by other than an official of the capturing nation.

    “Where did that one come from?” You are on the side which is arguing that POWs deserve a public trial before the end of hostilities. Don’t be obtuse.

    “Comply with those principles within a day – then yes, fine, you can do this.” Good, you agree with me. “That isn’t what you originally said; which was that they could be shot without benefit of any suc protection.” No, that’s not what I said, it’s what you inferred. What I was getting at is that the strict interpretation of the Laws of War would allow a person to be tried in a military court martial and convicted without any public view of the trial, international outcry or supervision, or the meddling of people who want more prisoners released. The pure fact that over TWO DOZEN previous internees at Gitmo have been taken on the battlefield a second time argues that our process has been too lenient, and yet you want to make it more so.

    As far as how are allies might treat prisoners, I wonder what other reason there is why Gitmo detainees have refused release? You are aware, in your righteous indignation, that there are people we want to release, who refuse to return to their country?

    “I am aware of that. Which of those nations are allies of yours in Iraq?” Oh, I just love the way you try to twist words. “allies of yours” as if they weren’t allies of the US. But what does it matter who they are? We found a country to accept the tribesmen mentioned earlier. Why was it necessary for us to find someone to take them? Perhaps they were criminals and could be expected to be returned to jail. In the case of Iraqis and perhaps Afghanis, perhaps most understand that their governments will choose to try them as terrorists if the US should return them. If I were in such a situation, I too would be glad to stay in Gitmo. US prisons are far batter than their Afghani and Iraqi counterparts.

    “I don’t particularly see it as to the USA’s (or the UK’s) credit that many of those detained at GITMO took sidetrips to such countries before getting there so that they could be tortured without getting our hands dirty.” No one I know of ever participated in that nor is there any prisoner I know of in Gitmo who was treated that way. It may well have happened, but I suspect it’s one of those claims made by some terrorist who was caught in an attempt to gain sympathy. Go to ANY prison in the world, and I’m sure you will have no trouble finding people claiming to be innocent, or at least mistreated. Another chance for certain people to blow things out of proportion for political gain.

    “Keep in mind, by the way, that those interrogations – held before determination of status – were themselves in breach of GC3. That evidence obtained by such interrogations is even notionally admissible before the CSRTs that purport to determine status is…odd…” And thus we get back to uniform, a requirement for consideration as a POW, although as you state, it doesn’t prevent the terrorist from asking for POW consideration anyway. So as long as the person has not done anything to attempt to be a legal combatant, his request for POW status can be denied, and he can be treated as a spy, for which interrogation is legal.

    “No-one, by the way, has refused to return to my country, so far as I am aware; instead, our nationals are clamouring to be returned here.” Since you don’t say what country that is … but at one point we had nearly 100 people that we wanted to release, but that did not want to go either to their country of origin or the country in which we picked them up. That’s NOT our fault.

    If I don’t make a point of insisting on enforcement of the Laws of War, them what will stop the next set of Neanderthals from ignoring them?

    “No comment required.” Once again, we are agreed. If terrorists want to be treated as POWs when captured, then they need to play by the rules. If they choose not to, it’s not my fault.

    The long and the short is that by their own choice terrorists have chosen not to be lawful combatants, but you want to force me to treat them as if they are. Further, you want to distract from the conduct of the war by going through this legal process now – anything to deny the US (or is it the Republican party?) a victory, as well as deny a chance for peace to Iraq and perhaps the Middle East. Your tendency to quote, misquote, and quibble, a trait I’m sure most lawyers share, is the best reason we should wait until after the war before we get into this.

    Corby, I’m also glad you left, so we are both happy and the military is a better place without you. What do you need, a pat on the head or can you just be happy that other people sacrifice willingly to make you safe?

  287. David

    “My point, which you are resolutely ignoring, is that POW status gives the United States all kinds of advantages too, including a clear-cut legal status, the pr-advantage of being visibly better than our enemies. So why not?”

    Among other things, because they would be allowed to communicate. We don’t need them refining their tactics or telling their buddies how they were picked up until combat is over.

    “I would never dispute your right to be offended or to hold your opinions or express your opinion. And that’s the difference between the two of us. I don’t like your opinions, but I don’t accuse you of treason for holding them.”

    I never accused you of treason. I do accuse you of willingly adding risk to the lives of the soldiers on the field, but if that doesn’t bother you, then I’m ok with it. Being shot at isn’t a new thing to me. The thing is your side seems to think only you have the right to be offended.

    “And if we had declared them POWs, then we could have done exactly what you want: hold on to them until the end of hostilities and then try them. So why aren’t we declaring them to be POWs again?”

    *IF* declaring them to be POWs would allow us to hold their trials after the end of the war, I’d be in favor of it. But I don’t think that would be enough for some on your side.

    “Someone mentioned “hearts and minds”. Despite what the media does not report, I see almost daily reports of people joining the Sons of Iraq, the police force, the Iraqi Army, and providing tips to US forces.

    How shocking that that happened after the U.S. started paying more attention to winning “hearts and minds” by cleaning up in Abu Ghraib and by working harder to be friendly.”

    No, we started out that way, despite what some loose cannons at Abu Ghraib did, although it doesn’t surprise me that you wouldn’t see it that way. It would hurt you, wouldn’t it, to give us credit for trying to do the right thing.

    We have a chance to win this one, if certain people will quit providing aid, comfort and encouragement to the enemy. It’s all intellectual to you, but it’s not intellectual to the guy on the ground. Funny that so many of you are concerned about freedom for Gitmo detainees, and apparently could give a damn about the life of the soldier just trying to survive. And don’t waste time saying, “if Bush hadn’t sent them, their lives wouldn’t be in danger, so it’s not your fault.” That’s just a cop-out. Sure, you have the right to be Jane Fonda if you want to. But having the right doesn’t make it right.

    “Good Lord, what a sad rant. You’re so overwhelmed with fear and xenophobia that not only don’t you understand the world you live in, you don’t even know and understand your fellow Americans. ”

    You post your rant and have the unmitigated gall to complain about mine? You are deluded, aren’t you? Fear? I suppose that’s why I’m on my 8th overseas deployment. Xenophobic? I have dozens of Moslem friends. As far as understanding Americans, I’m one too. What’s your excuse for your pissy attitude?

    “Anyone who expresses a different thought–a scary thought–has to be labeled a traitor, a “Jane Fonda”, so there’s no chance that you will have to contemplate the thought, or contemplate the idea that things might not be as simple as you’d believed.”

    Traitor was your word, not mine. If that’s the way you feel about Fonda, that’s *YOUR* fault, not mine. It’s never about thought – it’s about actions which increase the risk to our soldiers. That risk is clearly increased through support for terrorists, as demonstrated by the release of those that took a second shot at our people. I don’t blame you for wanting to duck the responsibility for your opinions and the actions that you support, but that also isn’t my fault. If you cannot or will not see how you increase the risk to our soldiers, then that’s a problem in you, not in the person who tries to show you the results of those actions. I’m not demanding that you accept any accountability for your views. So if you feel it, maybe it’s because deep inside you understand your culpability but cannot admit to it. Don’t blame me for your weakness.

    “Have Daddy check under the bed before you go to sleep every night. It’ll help with the darkness.”

    Thanks for adding that. After your accusing me of calling you a traitor, it’s good to see childish name-calling is the best you can do.

  288. Thomas:

    Guess what bud? It’s not just an intellectual exercise for a lot of us. My brother is being shot at in Afghanistan (for his second deployment there) precisely because 9/11 and our response to it has created exactly what the terrorists wanted. So why don’t you get off your high horse? You better believe your sweet ass that if Uncle Sam could give me a guarantee that if I joined up, I’d be able to watch my brother’s back wherever he got deployed, I’d do it in a second.

    I don’t wake up in a cold sweat worried about my brother and his sons and daughter because I have some sort of pedantic and detached love affair with arguing the particulars of law. It’s because I don’t want more terrorist recruits shooting at my brother. Gitmo has become the perfect recruiting device for the terrorists. All of the lies those Islamic extremists were spouting before 9/11 found a focal point for at least some truths – we have detained people without a competent tribunal, we have made them endure torture either at American hands or the hands of a third party country, and we have violated their basic rights. We have become to many the Great Satan.

    I don’t want you or my brother taking a bullet because George Bush, Cheney, and their neocon buddies got together in a room drinking expensive liquor, smoking cigars, and creating legal fictions to terrorize the terrorists.

    As for the ones we released from Gitmo and who rejoined the hostilities, my opinion is that some of them were radicalized by their detainment and some of them lied their way out of detainment. Yeah, it sucks. However, the damage being done to the Army’s ability to win hearts and minds and conduct counter-insurgency operations because of Gitmo far far far outweighs the mistakes made by releasing those guys prematurely.

    Be safe.

  289. Alex: Puting thoughts in your head is probably impossible, but just for a laugh, I’ll treat your “honest, just, and transparent” process seriously. If we wait until after the war, I agree with you, but to do it now means I have to fly combat troops back from the war to sit in a court and testify that Achmed the Camelherder wasn’t just looking for a lost camel, he fired his AK-47 at us and then ran into the nearest mosque. And nothing ever happens quickly in a court, so my combat soldiers will be sitting around for months waiting to testify, while the defense files delay after delay in hopes of getting a mistrial. AFTER the war, I can accept this, but not while it’s still going on.

    How about this: During the war, in the country where the war is taking place, some military officers (or noncoms) form a “competent tribunal” to evaluate claims for POW status. Since you’ve got contact with the locals, it shouldn’t be hard to investigate claims while giving the captive provisional POW status. It shouldn’t be too hard to determine whether Achmad had goats with him or whether it’s SOP to take a gun along when herding goats because of possible goat rustlers, or whether Achmad’s gun had been fired, or even whether Achmad is, in fact, a goatherd.

    During the “competent tribunal” Achmad could be informed of the charges against him, and be given an advocate. All this, as I said, could take place IN THE WAR ZONE.

    I understand that the current Supreme Court ruling makes this idea much more difficult – it would have been much better for everyone if the Court had framed their ruling within the Conventions – but the ruling only had to be made because the Bush Administration didn’t play by the Geneva rules in the first place, as they should have.

    As I understand the Geneva Conventions, this is what they envision – not a full-on trial, but a status hearing where all the facts come out. If Achmad fails the hearing, then you can treat him as an unlawful combatant. As I’ve said before, fair hearings have enormous propaganda value!

    Please excuse me if I accidentally put a thought into your head.

    There’s no need to be insulting. We have different ideas about how to win the War on Terror, but we are on the same side.

  290. Thomas:

    Wow. Just … wow.

    Thanks for making my point, you puffed-up, self-important jack hole.

    I don’t need a pat on the head. I don’t even need you to die for my freedom. I can take care of it myself, thanks. You don’t need to play the martyr for me. You’re not Jesus, no matter how important you think you are.

    If you opened your eyes, you’d see that to this administration, you’re just another meat shield for their oil interests.

    FYI: I joined the military under Bush 1, and participated in the oil interdiction operation in the Red Sea. I know how much they hate us – and it’s generally because of people like yourself.

    So yes, I am better out of the military, but I really think the military is not better off without people like me.

  291. Everyone take a deep breath and see if you can continue talking to each other without either making it personal or taking it personally. Thanks.

  292. @Thomas Brooks:

    >>>Mikey says, “What do you think the American Revolution was all about?” I think it was about America, not about the entire world. What do you think WWII was about? It wasn’t about extending US citizenship to the Nazis.

    Don’t “Mikey” me, you proto-Nazi. You are a poor representative of this nation. Please move.

  293. I must have missed the point where the US Constitution became world law. Silly me, thinking that it is for US citizens.

    By the same reasoning, all the POW’s taken in WWII should have been able to file habeus corpus writs and come before civilian courts. To my mind, that is insane.

    I also thought I saw some people mentioning the Geneva Conventions. Are you aware that under the conventions, any signatory has the option to shoot unlawful combatants out of hand? And that the Conventions are only binding when both sides in the conflict are signatories?

    By the way, unlawful combatants are those that fight in civilian clothes, use civilians as human shields, use hospitals or ambulances as military strongpoints or to supply fighters with military equipment.

    All of the foregoing tactics are currently used by Islamic fascists who would like nothing better than to blow you, me, and all our loved ones into little bitty bloody chunks.

  294. By the way, unlawful combatants are those that fight in civilian clothes, use civilians as human shields, use hospitals or ambulances as military strongpoints or to supply fighters with military equipment.

    The rules of “illegal” combatants makes the assumption that there are “legal” combatants. These rules were made up for confrontations between large armies fighting for established groups (like nations).

    The specific point that irks me is the uniforms. This is the one being horribly abused by the USA in the current conflict. Do we really expect all the various insurgent groups to come up with a uniform? I mean, gosh, even the Viet Cong had their famous “black pajamas.”

    Most of the people being picked up were not hiding behind children, or smuggling guns in ambulances. They were wearing civilian clothes. That has become the technicality used to deny PoW status to the suspects. But wait… there ARE no uniforms… how can there be when there is no “one” enemy guiding all the combatants? ANY system which can be misused to strip ALL persons of ALL rights (that matter – see last part of comment) is inherently flawed and wrong to continue using. Bush and company are equally flawed, so they LIKE the system, but we as a nation should demand better.

    Perhaps we need a new definition of what constitutes an enemy combatant that accounts for the new type of war we are fighting. In WWII it would have been impossible to let all PoWs have court dates, but in this war the numbers are small enough that we can, and SHOULD do a more thorough job of screening them, and only keeping the real bad guys. Declaring ALL combatants “illegal” is just a cop-out to avoid the responsibility of decency.

    It’s funny how when the “illegal” combatants were fighting for a cause we believed in (fighting the Soviets in Afghanistan), we called them Freedom Fighters using guerrilla tactics. But when they turn around and fight us, we call them terrorists.

    Thomas, you said, “We haven’t shot them, we feed them and give them medical care, we give them copies of the Koran, and many other things, but I don’t see us getting any credit for that.

    Please tell me you were being facetious…

  295. oleander @ 352

    The terrorists wish to wage an asymmetrical war in which they wage war by terror on the West, and the West treats it as a criminal matter. This works to the terrorists advantage in the following ways:

    1. Publicity. Both the act and the trial will receive considerable news coverage. Statements and claims made at the trial, no matter how outrageous, will be publicly reported.

    2. Disclosure of Intelligence Sources and Methods. In order to present evidence in court against the terrorist the evidence must be disclosed to the terrorist and the terrorists counsel. As demonstrated by Lynn Steward, this information will then be passed back to the terrorist organizations for development of counter measures.

    3. Small Downside. At worst the terrorist, if convicted, may be executed shortly before dying of old age given the seemingly endless appeals process and the ready availability of counselors willing to work the cases for money and/or fame.

    When Western Nations instead wage war against the terrorists, the advantages shift to the West.

    1. Terrorism is a war crime. The terrorists preferences in targets, means, and organization (separately and combined) are violations of the customary laws of warfare punishable by death.

    2. Lower Standard of Proof. Both military action against terrorists and war crimes tribunals for captured terrorists have a different basis in law and thus different standards of proof which are easier for the West to meet. In addition, sources and methods of intelligence can be protected.

    3. Greater risks for State Sponsors. Allowing hostile forces to take refuge in or operate from one’s territory is a violation of neutrality. Military action against such hostile forces leaves the putative neutral with the options of a strongly worded protest, or of military retaliation against the United States (thus clearly establishing them as co-beligerants of the terrorists).

    I choose the option less favorable to our enemies.

    You?

  296. Senator Obama has a deep understanding of this decision and how it relates to history:

    Obama, a former senior lecturer at the University of Chicago Law School, cited “that principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are. I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.”

    Of course, none of the Nuremberg defendants had access to Habeas proceedings in US courts.

  297. Frank,

    I know this is a right-wing meme now – that Obama is mistaken about the Nuremburg Trials – but it’s just not so. He never says that the Nazi defendants had access to American Courts. He was making a valid point about the importance of a person’s (ANY person’s) rights to the protections afforded by habeas corpus.

  298. @Thomas (#344):

    As it has now become obvious that you have not done me the courtesy of reading my previous posts perhaps you would do that before we proceed further (nationality, profession, what I hate). You might also want to read Protocol 1 Article 75.

    @Brian (#351):

    I also thought I saw some people mentioning the Geneva Conventions. Are you aware that under the conventions, any signatory has the option to shoot unlawful combatants out of hand?

    Funnily anough, we’re not. Start with the fact that the GC do not even mention “unlawful combatanats”, and finish with the fact that Protocol 1 guarantees a fair trial to anyone not entitled to the protection of the other covnentions. And add the fact that Protocol 1 is considered to reflect the customary law of war. You’ve got a lot of reading to do.

    @Rodney (#355):

    As I understand your claims, because the UK didn’t bomb Boston to get Northern Aid contributors, and shoot IRA members out of hand, there’s still a terrorist campaign going on in Northern ireland. It hasn’t made the news recently, I have to say.

    Shorter Rodney; to defeat terrorism, one has to become terrorists.

    You’re wrong, by the way – war crimes tribunals for captured terrorists still operate with the usual due process, under the GC and Protocols.

  299. shorter Levett,

    The US must adhere to treaties it has explicitly repudiated.

    In contrast, only Geneva III’s procedures concerning determination of status pertain.

  300. Rodney @ 355 – You’re still not getting it. If the CSRT / Military Tribunal system had had:

    1) decent due process for the accused
    2) moved marginally faster then a glacier

    We wouldn’t be in this boat. It didn’t, in large part because the Bush administration seems to have a permanent cranial-rectal inversion.

    Frank @ 356 – you do know that we (the US) sent the Chief Justice of the Supreme Court to serve as our judge at Nuremberg? Basically, the US courts bought into the idea that, at Nuremberg and other war crimes venues, we’d created a system that was fair.

  301. Levett,

    Please remind us of how the quiet dispatch of bobbies from Scotland Yard quelled the Malaysian Emergency…

    The brutal solution, bordering on terrorism itself (which I am not advocating) would be to make it tribal. When the identity of a terrorist is determined through capture or examination of remains, the entire extended family or tribe is exterminated.

    Then a silence came to the river,
    A hush fell over the shore,
    And Bohs that were brave departed,
    And Sniders squibbed no more;
    For he Burmans said
    That a kullah’s head
    Must be paid for with heads five score.

    There’s a widow in sleepy Chester
    Who weeps for her only son;
    There’s a grave on the Pabeng River,
    A grave that the Burmans shun,
    And there’s Subadar Prag Tewarri
    Who tells how the work was done.

    Chris,

    You are the one not getting it. The letter of the law (the law being the customary laws of warfare, and not a jot more), a speedy trial, and the well deserved long drop on a short rope.

  302. John,

    It occurs to me that much earlier we talked past each other on a significant issue.

    Imprisonment versus Detention.

    Imprisonment is punitive. It is the sentence of a court arising from conviction for a crime.

    Detention is non-punitive. Enemy combatants who are captured by an opposing power are detained until (at the discretion of the capturing power) they are either traded or until the cessation of hostilities.

    The open ended nature of the war as practiced by the terrorists makes that detention prolonged, but is an entirely forseeable and avoidable consequence of their own actions (operating as illegal combatants).

  303. CV Rick @ 357

    He never says that the Nazi defendants had access to American Courts.

    Yeah, I know. Just like he never “said” he would negotiate with our enemies.

    Just like he never “said” our military in Afghanistan mostly kills civilians.

    But the fact is, (contrary to Chris Gerrib, LT, USN (retired) @ 361) the Detainee Treatment Act of 2005

    …requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

    You can find this in Section 1005 (e) of the Detainee Treatment Act of 2005. And the Detainee Treatment Act of 2006 did not remove this, in fact

    It strengthens it. That is, because the Supreme Court’s Hamdan decision created confusion about whether the DTA was meant to apply retroactively to the 400-plus habeas petitions that were already filed, the MCA clarifies that all detainees who wish to challenge their imprisonment must follow the DTA procedure for doing so. But, importantly, the right to challenge imprisonment is itself reaffirmed.

    Section 7 (b) of the DTA 2006 clarifies this:

    (b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

    So the fact remains that the SCOTUS just wanted to do what they did, stare decisis be damned, and so they did it.

    And now it’s done.

    But don’t tell me that there was no review process and don’t tell me that it was not in alignment with what the court said they wanted to see in Hamden and don’t tell me Senator Obama was correct in his statement regarding Nuremberg.

    Because none of it is true.

  304. Edward @ 352 — My understanding is that previously courts have held that it is the distinctive wear that constitutes a uniform for the purpose of the GC, and that things like armbands or head covers were sufficient if worn by members and not worn by non-members. Putting your armband in your pocket, however, was an attempt to hide as a civilian and you could handled as if you were a spy or saboteur.

  305. Rodney @ 362 – so by your own admission, holding people without a trial for six years is a violation of the customary laws of war?

    Frank @ 364 – I read your link. I fail to see Obama saying that we gave the Nuremburg defendants access to US courts. He said “their day in court.” Please note, this special war crimes court (Nuremburg) allowed the defendants to hear evidence against them (even classified stuff) and have legal representation.

    If you look up-stream, you’ll see an actual lawyer (C. E. Petit) who also served in military intelligence explaining the problems with the CSRT.

    Lastly, the argument in the National Review link that GITMO is somehow “not US territory” is bullshit. Been there and frankly it’s more “American” then parts of Chicago.

  306. Gerrib,

    Not by my admission, nor as a matter of the law. Captured combatants are detained until traded, until the cessation of hostilities, until released at the pleasure of the power which captured them, or until determined to have been an un-lawfull combatant and held for trial by a war crimes tribunal.

    Did you sleep though the mandatory classes on the Laws of Warfare?

  307. Rodney @ 367 – In your remarks @ 362, you said “a speedy trial.” Six years of faltzing around does not a speedy trial make.

    No, I did not sleep through my laws of warfare classes – good thing since my undergraduate degree is in military history ;-).

  308. Gerrib @ 366,

    Under Geneva III enemy combatants once captured are detained until one of the following occurs:

    1. At the discretion of the capturing power, detained enemy combatants may be exchanged for detainees of the detaining power held by another power. Since the terrorists pretty much slaughter those they capture, this one’s right out.

    2. At the discretion of the capturing power, detained enemy combatants can be paroled (give there solemn word that they will not rejoin the conflict against the power which had captured them. Given the 30 (vice the 8 I could recall) detainees released from detention who have subsequently been recaptured or killed on the field of battle, this one too seems right out.

    3. At the cessation of hostilities.

    4. Upon determination that a detainee is an unlawfull combatant, they may be transferred to a war crimes tribunal for adjudication.

    5. Upon indictment for a crime against the detaining power, which crime and indictment both are subsequent to capture, the detainee may be transfered to stand trial for that crime. Note that such transfers and trials are usually deferred until the cessation of hostilities (several examples vis a vis German PoW’s in the United States, and American PoW’s in Germany during WWII).

  309. Gerrib @ 368,

    We will shortly be on the fourth iteration of proceedure for CSRT’s and third for WCT’s thanks to the ever changing dictates of the black robed sovereigns, and you overlook the Geneva III requirements for transfer of detainees for trial, again.

    The academe obviously has a lot to answer for.

  310. I think at this point it is clear that Frank, Thomas, and Rodney simply do not wish to understand the arguments on the other side. There’s not a lot that can be done, there.

    On a related note, Glenn Greenwald has a column today refuting John Yoo’s assertions that 1) all detainees were captured on the battlefield and 2) the Supreme Court decision grants “captured Al Qaeda terrorists” the same rights as US citizens in a civilian court. Those arguments seemeth passing familiar.

  311. Chris Gerrib, LT, USN (retired) @366

    Frank @ 364 – I read your link. I fail to see Obama saying that we gave the Nuremburg defendants access to US courts. He said “their day in court.”

    Please. The Senator did not give a lecture on Nuremberg. He talked about it relative to Boumediene clearly implying that now the detainees at Guantanamo have what the defendants at Nuremberg had.

    Please note, this special war crimes court (Nuremburg) allowed the defendants to hear evidence against them (even classified stuff) and have legal representation.

    All of which was afforded these detainees at least since the DTA of 2005.

    However now, the Government will be much more reluctant to reveal classified data in Open Court which, to my mind, will threaten the integrity of a case against a detainee who deserves to be detained.

    How many have already been released who should not have? Quite a few. I do think that number will likely increase.

    But we’ll get through it. Maybe next time he won’t be so lucky to be captured…

    If you look up-stream, you’ll see an actual lawyer (C. E. Petit) who also served in military intelligence explaining the problems with the CSRT.

    Yes. So? There were problems with Nuremberg. But we managed to muddle through.

    Lastly, the argument in the National Review link that GITMO is somehow “not US territory” is bullshit. Been there and frankly it’s more “American” then parts of Chicago.

    Except that previous Courts had already decided that Guantanamo Bay was not US territory leaving this decision open to application for any detention camp run by the US anywhere.

    Which is fine, but let’s be clear about what has been done.

    Scalzi @372
    George Will’s column today is on topic, and interesting.

    As always, Will delivers an excellent piece. And his quote from Justice Roberts is the crux of my displeasure:

    “The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

    Splendid.

  312. The Perfect can always be better than the Good, even if they are not enemies. Rarely does making it up as you go along (pointing fingers at the DoD, the Executive, the Congress, and the Courts) approach either.

  313. Rodney:

    Your attempt at a cost-benefit analysis in #355 was incomplete. You forgot to include Disadvantages to Terrorists because we treat them as criminals, and Disadvantages to the West because we wage war against terrorists. I am deducting points from your final exam total; however, you can make up some of this through extra credit. Your assignment – something you may never have done before – is to argue for why being a civil libertarian is morally good.

    Disadvantages to Terrorists When They are Criminalized

    1) We don’t make them martyrs by executing them precipitously.

    2) We don’t make an intelligence blunder by executing them precipitously and then realizing, whoops! that guy had some information we needed.

    3) Publicity – We can show evidence to people who suspect we are the Great Satan, that our legal system respects due process and human rights. This cuts into a great recruitment slogan that terrorists are using even now to recruit people to come after you and yours.

    4) Your small downside is not exactly right – a lot of terrorists would clearly rather be executed quickly and become martyrs, than to rot as a convicted criminal in prison. See 1 above.

    Disadvantages to the West to Wage War on Terrorists

    1) We are subject to the scorn of other governments, governmental bodies, and their public because they see us as warmongering and war profiteering and not interested in liberty and human rights.

    2) We engage our traditional war industries in a trade that a large portion of our forces just plain suck at. For example, how useful will jets and tanks be in winning hearts and minds and destroying terrorist refuges in Pakistan? Our special forces operatives and intelligence personnel are better equipped to deal with this threat, and there was never a need to make this into a War to fully mobilize them. In fact, we may have given aid to the enemy by telling them we declared war on them.

    3) We use a lower standard of proof to convict terrorists, thus opening us up to propaganda attacks by terrorists, which increases their reservoir of participants and sympathizers.

    I do award you points for noting that we risk giving up intelligence sources in court, so I would expect that there would be carefully enumerated limits on coverage of these courts to protect these sources.

    I award you no points, but do not deduct any either, for your suggestion that state sponsors are more at risk because of the War on Terrorism. To my mind, there is not strong evidence that countries are changing their behavior because of this. Libya may have appeared to change their behavior because of our invasion of Iraq (which, ostenstibly, was either to kill terrorists, kill Saddam, find weapons of mass destruction, free the people, or establish military bases, or all of the above), but what I have read suggests Libya was already going to renounce terrorism before our invasion. In the meantime, you still have places like Pakistan.

  314. From the “Gee, that didn’t work, let’s do it SOME MORE files.”

    (Via Don Surber)

    Obama vs. terrorists
    Democratic Sen. Barack Obama wants to turn the clock back to 1993.

    On ABC News, Obama said:

    ”And, you know, let’s take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

    “And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’

    “So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent w ith our laws.”

    The Weekly Standard pointed out the factual errors in that statement.

    I ask, if how we handled the 1993 attack so well, why did we have a 9/11?

    That’s an excellent question which Mr. Surber asks. Let’s examine a few of these latest factual errors and factors lightly skipped over:

    Obama’s America Is September 10th America
    His latest remarks betray an alarming ignorance.

    By Andrew C. McCarthy

    This is June 2008. That means it marks the ten-year anniversary of Osama bin Laden’s indictment.

    He was first charged by my old office, the U.S. Attorney’s Office for the Southern District of New York, in June 1998. That was before the bombings of the U.S. embassies in Kenya and Tanzania (hundreds killed), before the bombing of the U.S.S. Cole (17 U.S. members of the U.S. Navy killed), and before 9/11 (nearly 3000 Americans killed). So it’s fair to ask: How is that strategy of prosecuting him in the criminal-justice system working out?

    You mean that scofflaw (bin Laden) has been under indictment for for ten years and still has not surrendered? The GALL!

    This is a remarkably ignorant account of the American experience with jihadism. In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).

    Ah yes, the thorny issue of jurisdiction, which the proponents of Lawfare perpetually ignore or tap dance around. How do we get a neutral or unfriendly nation to surrender these scoff laws?

    Follow the link back to McCarthy’s excellent and factually devastating article as to the limits of Lawfare for the rest of his dismantling of B. H. Obama’s stunningly ignorant account.

  315. Graves, I believe Bush actually said he doesn’t even think about bin Laden anymore – which makes me wonder just how committed he ever was to actually, oh, I don’t know, bringing the REAL terrorists to justice after 9/11?

    Maybe if we had NOT attacked a sovereign nation who was no threat to us and instead focussed on the REAL threat of bin Laden and Afghanistan, which last time I heard had less US Military troops than there are cops in New York City – maybe we would actually be safer, and not recruiting more terrorists to Iraq?

  316. CV Rick

    I know this is a right-wing meme now – that Obama is mistaken about the Nuremburg Trials – but it’s just not so. He never says that the Nazi defendants had access to American Courts. He was making a valid point about the importance of a person’s (ANY person’s) rights to the protections afforded by habeas corpus.

    That’s a typical right-wing strategy – lie about what someone said, then argue with your lie. The total lack of intellectual honesty is appalling.

  317. Rodney Graves:

    I ask, if how we handled the 1993 attack so well, why did we have a 9/11?

    Perhaps because the Bush Administration did not continue the Clinton policy of aggressively attacking Al Queada? Clinton policies included, I might note, the use of military force?

  318. Kennard opines:

    Graves, I believe Bush actually said he doesn’t even think about bin Laden anymore – which makes me wonder just how committed he ever was to actually, oh, I don’t know, bringing the REAL terrorists to justice after 9/11?

    I believe President Bush may have access to more and better information than what you or I are privy to. And did you, perchance, notice that the actual planner of the 9-11 attacks is being tried before a War Crimes Tribunal (or at least was before the five black robed sovereigns bolluxed the system up for the second time)? Were you also aware that Khalid Sheik Mohammed has been under U. S. Indictment even longer than bin Laden has?

    From the afore linked article by Andrew McCarthy:

    Khalid Sheikh Mohammed has been under indictment by the Justice Department even longer than bin Laden. He was first charged in 1996, in connection with the so-called “Bojinka” plot to blow up American airliners as they flew over the Pacific (one Japanese tourist killed during a dry run). The plot was also found to include plans to assassinate President Clinton and Pope John Paul II.

    So what happened? Because criminal prosecution is incapable of dealing with the likes of KSM — a highly insulated foreign jihadist operating from terror safe havens sprinkled across the globe — he remained free to plot murder and mayhem for years, finally masterminding 9/11.

    KSM was apprehended only after the Bush administration changed strategy and started regarding terrorists as what they are: wartime enemies, rather than in possession of Obama’s suggested “criminal defendants” status.

    Indeed. War accomplished in five years (removing KSM from the fray) what lawfare failed to accomplish in the preceding five years (for ten years en toto). Lawfare failed to prevent a whole series of terrorist onslaughts planned by KSM between his indictment, and 9-11. Warfare seems to have been much more effective.

    Kennard then further gifts us with more BDS:

    Maybe if we had NOT attacked a sovereign nation who was no threat to us and instead focussed on the REAL threat of bin Laden and Afghanistan, which last time I heard had less US Military troops than there are cops in New York City – maybe we would actually be safer, and not recruiting more terrorists to Iraq?

    My.

    Perhaps it escaped your attention that we have remained in a state of war (a cease fire merely marks a cessation of active operations, a distinction no doubt lost on you) with Iraq since our original invasion to liberate Kuwait. Undoubtedly you have also turned the same level of scrutiny and intellectual honesty to the evidence (as opposed to the summaries) of the various reports on Iraqi support for terrorists and their ongoing programs for the development of WMD.

    Demonstrably you have either turned a blind eye to actual events in Iraq, or get your “news” and “opinions” pre-formed (if not pre-chewed) by the decrepid gray lady and the other MSM auxiliaries of the jackass party, as the reality is that Iraq has been the roach motel of terrorist operations over the last few years. Those who have answered the siren call of Jihad in Iraq are mostly now serving the planet in the best fashion they ever could have: as fertilizer.

  319. Rodney:

    You do an excellent job conflating an inability to capture certain terrorists with an assertion that the criminal justice system failed. They are two distinctly different ideas. Maybe if our foreign partners in the intelligence community trusted us more, like say because we didn’t go around invading countries and rattling our saber constantly, we’d be able to capture these people. Alternatively, maybe if we weren’t seen as the Great Satan by average people in those countries where terrorists are hiding, we could actually use human intelligence to find them.

    Your smugness doesn’t make up for the fact that your arguments suck.

  320. I am unaware of any habius corpus proceedings in the Neuremburg trials. Point me at them, please?

  321. Graves:

    “I believe President Bush may have access to more and better information than what you or I are privy to.”

    Doesn’t mean a thing if he sits on it or lies about it or doesn’t act on it.

    “And did you, perchance, notice that the actual
    planner of the 9-11 attacks is being tried before a War Crimes Tribunal (or at least was before the five black robed sovereigns bolluxed the system up for the second time)? Were you also aware that Khalid Sheik Mohammed has been under U. S. Indictment even longer than bin Laden has?”

    What does this have to do with your comment about wanting bin Laden to turn himself in and my comment about Bush remarking on TV after at least a year of warfare that he doesn’t even think about bin Laden even though his was the name put out there as the head (even if he is just a figurehead) of Al Qaida and the reason we invaded Afghanistan?

    “My.

    Perhaps it escaped your attention that we have remained in a state of war (a cease fire merely marks a cessation of active operations, a distinction no doubt lost on you) with Iraq since our original invasion to liberate Kuwait.”

    So? And no, I understand the distinction, thanks. Your mind reading needs quite a bit of practice.

    “Undoubtedly you have also turned the same level of scrutiny and intellectual honesty to the evidence (as opposed to the summaries) of the various reports on Iraqi support for terrorists and their ongoing programs for the development of WMD.”

    You mean the intellectual honesty of taking not PHOTOGRAPHS of chemical weapons trailers, but ARTIST RENDITIONS to the UN to get support for an attack? Or the reports of Iraqi WMD programs like the Downing Street Memo that was proved demonstrably false and that Iraq was NOT trying to buy yellow cake uranium? Or the fact that Bush’s father asked him NOT to attack Iraq and threw no support behind it? Or that Bush Jr. himself actually gave an interview where he admitted there were NO WMDs in Iraq, but that was an excuse to rid the world of a dictator as a precautionary measure? You mean THAT intellectual honesty?

    “Demonstrably you have either turned a blind eye to actual events in Iraq, or get your “news” and “opinions” pre-formed (if not pre-chewed) by the decrepid gray lady and the other MSM auxiliaries of the jackass party, as the reality is that Iraq has been the roach motel of terrorist operations over the last few years.”

    On this we agree – the last few years. The ones where we invaded, broke the country, dismantled the police and military, and offended nearly every contingent of Islam known to Earth. Before that, Saddam kept an iron fist on his country, yes, but he kept the terrorists out – at least the Al Qaida and Hezbolla and those like them. He was just as much a target as we were, because he was a secular leader, and considered just as evil as America.

    The terrorists were largely made up of Saudis and Pakistanis, with a little of everything else thrown in. Bin Laden is Saudi. I was and still am in full support of a war in Afghanistan where the terrorists trained, lived, and still flow out of to Iraq, among other places. Now that we are IN Iraq, we need to clean up and leave. But I will NEVER say we needed to be there because, well, we shouldn’t be.

    “Those who have answered the siren call of Jihad in Iraq are mostly now serving the planet in the best fashion they ever could have: as fertilizer.”

    You no doubt know for a fact that every single person killed in Iraq was a terrorist, including the women and children killed by stray mortar fire, dirty water, starvation, IEDs while shopping to feed their babies, etc. No, wait. You couldn’t possibly know that because “I believe President Bush may have access to more and better information than what you or I are privy to.”

  322. Kennard replies to my earlier statement that:

    “I believe President Bush may have access to more and better information than what you or I are privy to.”

    disingenuously with:

    Doesn’t mean a thing if he sits on it or lies about it or doesn’t act on it.

    You of course have some evidence to support this accusation, since making it without such evidence would be prima facie evidence both of calumny and clinical BDS?

    I had continued with:

    “And did you, perchance, notice that the actual planner of the 9-11 attacks is being tried before a War Crimes Tribunal (or at least was before the five black robed sovereigns bollixed the system up for the second time)? Were you also aware that Khalid Sheik Mohammed has been under U. S. Indictment even longer than bin Laden has?”

    To which Kennard again replies in confusion (or the appearance thereof) with:

    What does this have to do with your comment about wanting bin Laden to turn himself in and my comment about Bush remarking on TV after at least a year of warfare that he doesn’t even think about bin Laden even though his was the name put out there as the head (even if he is just a figurehead) of Al Qaida[sic] and the reason we invaded Afghanistan?

    What I actually wrote was:

    “You mean that scofflaw (bin Laden) has been under indictment for ten years and still has not surrendered? The GALL!”

    I’ll be sure to include [sarcasm] flags next time for the sarcasm impaired. The intended subtext was that indicting bin Laden doesn’t seem to have been terribly effective (as McCarthy points out) in bringing that individual to justice. Nor would I ascribe his greatly reduced effectiveness in terms of planning and carrying out attacks against the citizens and interests of the United States to that indictment. That threat (eventual capture, prosecution, and punishment) seems far more remote to this observer than the unannounced arrival of a Hellfire missile.

    I had further stated:

    “Perhaps it escaped your attention that we have remained in a state of war (a cease fire merely marks a cessation of active operations, a distinction no doubt lost on you) with Iraq since our original invasion to liberate Kuwait.”

    So? And no, I understand the distinction, thanks. Your mind reading needs quite a bit of practice.

    Your stated understanding is not reflected in your writing.

    I continued with:

    “Undoubtedly you have also turned the same level of scrutiny and intellectual honesty to the evidence (as opposed to the summaries) of the various reports on Iraqi support for terrorists and their ongoing programs for the development of WMD.”

    You mean the intellectual honesty of taking not PHOTOGRAPHS of chemical weapons trailers, but ARTIST RENDITIONS to the UN to get support for an attack? Or the reports of Iraqi WMD programs like the Downing Street Memo that was proved demonstrably false and that Iraq was NOT trying to buy yellow cake uranium? Or the fact that Bush’s father asked him NOT to attack Iraq and threw no support behind it? Or that Bush Jr. himself actually gave an interview where he admitted there were NO WMDs in Iraq, but that was an excuse to rid the world of a dictator as a precautionary measure? You mean THAT intellectual honesty?

    You really haven’t been keeping up, have you?

    Me again:
    “Demonstrably you have either turned a blind eye to actual events in Iraq, or get your “news” and “opinions” pre-formed (if not pre-chewed) by the decrepit gray lady and the other MSM auxiliaries of the jackass party, as the reality is that Iraq has been the roach motel of terrorist operations over the last few years.”

    On this we agree – the last few years.

    What, you thought this would be quick or easy? You think war is susceptible to arbitrary time tables?

    The ones where we invaded, broke the country, dismantled the police and military, and offended nearly every contingent of Islam known to Earth.

    Indeed we did invade. Said invasion being the fastest and least damaging invasion given the sizes of the forces involved and the force ratios (adverse to our side) in the history of warfare. As regards the policy of de Ba’athification as practiced, you should do some research on whose policy that was.

    Before that, Saddam kept an iron fist on his country, yes, but he kept the terrorists out – at least the Al Qaida[sic] and Hezbolla and those like them. He was just as much a target as we were, because he was a secular leader, and considered just as evil as America.

    An assertion not supported by the actual factual recital (as opposed to the summary) of the recent Rockefeller report.

    The terrorists were largely made up of Saudis and Pakistanis, with a little of everything else thrown in.

    Who were mostly infiltrated in via Syria and Iran, with arms and explosives provided by Iran and Syria. There was also a strong contingent of former Ba’athist officials who had nothing to lose when it came to resisting a government largely dominated by the ethnic majorities they had brutally oppressed for decades. The Iraqis turned on them, first on the foreign contingents, and then on the Ba’athist holdouts. There were pitched battles over two years ago between the locals and the foreigners, which you seem to have missed as well.

    The last of the significant anti-government forces were the Quds supplied and directed Mahdi Army, which was badly bloodied by the nascent Iraqi Army and security forces in their own local enclaves. Between that drubbing and the conspicuous absence of their “leader,” the Mahdi Army now appears well on the way to defeat in detail as well.

    Bin Laden is Saudi.

    And water is wet.

    I was and still am in full support of a war in Afghanistan where the terrorists trained, lived, and still flow out of to Iraq, among other places.

    Not as much as you think. The last two Taliban “spring offensives” were unmitigated disasters for the Taliban, most of whom now equip, train, and stage from the “tribal” areas of Pakistan. Most of the action is now along the Afghan/Pakistan border, and most of the Taliban leadership are doing their very best to avoid being discovered in Pakistan, not for fear of arrest, but for fear of Hellfire. What “safe havens” remain for the Taliban in Afghanistan are becoming both small and notoriously unsafe (for the Taliban). Nor are the tribal areas of Pakistan working out real well for the Taliban of late, for that matter.

    Now that we are IN Iraq, we need to clean up and leave.

    Before or after we clean up and leave from Germany, Japan, Korea, and Bosnia?

    But I will NEVER say we needed to be there because, well, we shouldn’t be.

    One can lead a horse to water…

    I had continued:
    “Those who have answered the siren call of Jihad in Iraq are mostly now serving the planet in the best fashion they ever could have: as fertilizer.”

    to which Kennard replies:

    You no doubt know for a fact that every single person killed in Iraq was a terrorist, including the women and children killed by stray mortar fire, dirty water, starvation, IEDs while shopping to feed their babies, etc.

    Not what I said, as you well know. But let’s examine your counter:

    Most of the Women killed in Iraq have been killed by terrorists in indiscriminate bombings. The rate of collateral incidents (the inadvertent killing of non-combatants in the course of engaging combatants) has been remarkable low in historical terms, especially given the terrorists illegal use of civilians as cover for their operations and the well documented attempts by the terrorists to create civilian casualties which they can blame on the Americans. This has not worked out as planned by the terrorists, as the Americans are much more accurate in their application of force than the terrorists counted on.

    Same goes for children.

  323. Not one word of which actually answers anything I said, and further proves that you have no intention of “playing fair.”

    Thanks for the intellectual exercise. I’m done.

  324. Todd Stull

    Maybe if our foreign partners in the intelligence community trusted us more, …

    Oh you mean not having intelligence appear on the front page of the NY Times? Yeah. That would help.

    But actually, OBL and a lot of his cohorts are under the protection of Pakistan. The rest are being annihilated in Iraq and in other places around the world.

    Now I know Senator Obama is all for invading Pakistan (or is he?) but are you?

    It must be clear that the most efficient way to get these guys is to have boots on the ground, going from village to village, and rounding people up.

    Is that what you are suggesting?

    That’s not going to happen anytime soon. But there is a renewed effort to take out bin Laden for a number of reasons: one of which is that time is running out for Musharraf.

  325. Kennard,

    As a self description of your own contribution I’d give your parting post an A, but since you confuse the source of the well demonstrated intellectual dishonesty, an F will be your final grade.

    Don’t go away mad…

  326. Ah, more words, in my mouth, not from me.

    Again, work on your mind reading.

    But thanks for the grade. I can only assume by “F” you mean “Fine. Just fine.”

    Thanks again.

  327. Kennard,

    Odd, I see no quotations nor attributions. Then again, factual accuracy has not been your strong point here, has it?

    As regards mind reading, there really is little choice given the quality of the semi-connected words and phrases you have gifted us with.

    And while you are indeed welcome for the final grade of “F” I regret to inform you it stands for “Fail.”

    You are of course welcome and I wish you future success commensurate with your demonstrated intellect and honesty here.

  328. Rodney:

    If you are going to steal metaphors from me, perhaps you should refrain from commenting on intellect and honesty in the same breath.

  329. Heh,

    Echoing my 371 “Nurenberg was a war crimes tribunal, not a court of law.” are the lawyers over at Powerline:

    In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.

    The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:

    In order to ensure fair trial for the Defendants, the following procedure shall be followed:

    (a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

    (b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

    (c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

    (d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

    (e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

    The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. Article 26 provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”

    In short, the procedural protections afforded the Guantanamo detainees under the statute before the Supreme Court in Boumediene substantially exceed those accorded the Nuremberg defendants. Obama’s unfavorable comparison of the legal treatment of the Guantanamo detainees with that of the Nuremberg defendants suggests either that he does not know what he’s talking about, or that he feels free to take great liberties with the truth.

    Indeed.

  330. Think Progress cites a Seton Hall report that debunks the claim that 30 Guantanamo inmates later attacked Americans. (Hat tip, Lawyers, Guns & Money).

    Who could have predicted that Scalia would include a fact in his dissent that was not factual?

  331. Fungi,

    I stated “…were subsequently killed or recaptured while engaged in terrorist activities.”

    Had you actually given that some thought, you’d see that it is not mutually exclusive for detainees released from Guantanamo Bay to have been “…subsequently killed or recaptured while engaged in terrorist activities.” while failing to “…later attacked Americans.” As evidence of this, I present the following:

    Report: Former Guantanamo detainee carried out Iraq suicide attack

    CAIRO, Egypt: Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

    A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

    The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

    Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

    Mosul is believed to be the last urban stronghold of al-Qaida in Iraq.

    That’s seven dead that would have been prevented by the continuing detention of that particular “innocent.”

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