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Monday, October 02, 2006

Good Catch!

I'm baaack. Blogger wouldn't let me post for some reason.... The title of this post was inspired by this story:
The girl was hanging over a concrete sidewalk 18 1/2 feet above the ground when neighbor Mary Bussey and her son, Brandon Bussey, noticed her, police said.

Mary Bussey waited under the child while her son ran upstairs, and the girl fell into her arms.
Sometimes we just have to pick up the slack, wouldn't you agree? And on that note, I now proceed to Steyn, who makes an important point about law in his latest:
Of course, for the likes of Sen. Leahy, not only is the war far from over, it hasn't even begun. Almost every argument in this area isn't "about" the war so much as whether there even is a war. As the Washington Post reported, "The Senate joined the House in embracing President Bush's view that the battle against terrorism justifies the imposition of extraordinary limits on defendants' traditional rights in the courtroom."

Well, they're only "extraordinary" if you regard these men as traditional "defendants." If you regard them as traditional wartime detainees -- rather than OJs in turbans -- the only "extraordinary" aspect of this is the kid gloves with which not just their Qurans but the jihadists themselves are handled. This is the only war in American history in which enemy detainees have been freed before the end of hostilities. Of those released, at least 22 are known to have returned to the battlefield in Afghanistan, Pakistan and elsewhere. The ones who remain are dangerous men, no matter how "sensitive" you are. They unscrewed the foot pads from those Asian-style toilets and used them as bludgeons to attack the guards.
There's another important point - the ones who were released were those that the US authorities regarded as no longer dangerous. They have released hundreds, so 22 isn't that bad. However, it is likely that at least as many more are back at their old terroristic tricks but just haven't been caught at it. How many US soldiers have died because of these releases? How many Afghanis and Iraqis have died? We don't know.

It's not as if this question has never come up before. Johnson V. Eisentrager dealt with a similar situation during the WWII era, and the ruling there was pretty decisive:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army.

1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.

(a) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments. P. 769.

(b) In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act. P. 771.

(c) Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security. P. 774.

(d) A resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and [339 U.S. 763, 764] whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment. P. 775.

(e) A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts. P. 776.

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.

(a) The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us. Pp. 782-783.

(b) The claim asserted by respondents and sustained by the court below would, in practical effect, amount to a right not to be tried at all for an offense against our armed forces. P. 782.

4. The petition in this case alleges no fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers. Pp. 785-790.

(a) The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established. P. 786.

(b) It being within the jurisdiction of a military commission to try these prisoners, it was for it to determine whether the laws of war applied and whether they had been violated. Pp. 786-788.

(c) It is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, wisdom or propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. P. 789.

(d) Nothing in the Geneva Convention makes these prisoners immune from prosecution or punishment for war crimes. P. 789.

(e) Article 60 of the Geneva Convention, requiring that notice of trial of prisoners of war be given to the protecting power, is inapplicable to trials for war crimes committed before capture. Pp. 789-790.

(f) Article 63 of the Geneva Convention, requiring trial of prisoners of war "by the same courts and according to the same [339 U.S. 763, 765] procedure as in the case of persons belonging to the armed forces of the detaining Power," is likewise inapplicable to trials for war crimes committed before capture. P. 790.

5. Since there is no basis in this case for invoking federal judicial power, it is not necessary to decide where, if the case were otherwise, the petition should be filed. Pp. 790-791.
I just wanted to introduce a note of reality into this debate. To extend habeas corpus to people captured in Afghanistan or Iraq would, as the court above noted, effectively prevent them from being charged at all. Indeed, the drive now is to force their release legally through habeas corpus proceedings.

I think the distinction the court made in this case was important, and we should strive to preserve it. It is relatively easy for courts to gain the type of information used to prosecute those who are captured on US soil in solitary or limited acts of violence. The same is not true for those swept up in military operations. At a minimum, this is because the persons who captured them may no longer be alive and probably will not be available to testify. I am sure that this sometimes leads to acts of injustice. This is one of the risks you take in wartime when you engage in such activities or consort with those who do.

The laws of war have generally permitted non-uniformed guerrilla fighters engaged in attacks upon troops or civilians to be shot or hung at the order of military tribunals. This is because the laws of war were set up to limit conflicts and injury to civilians, and the most important way of doing that is to have surrender mean surrender. Quite a few of the prisoners at Gitmo would have traditionally been killed by now.

I don't approve of extreme methods of interrogation, although on the battlefield I am sure they have always been used. I also don't approve at all of the left's drive to destroy the laws of war. If they succeed, it will lead to a new era of widespread barbarism which I do not want to see. Those attacking the police and armed forces of Iraq, who are in the service of a democratically elected government, are unequivocally violating the laws of war. How is it that all the debate centers around the actions of the legal actors by the laws of war in this conflict? Can the NY Times spare no pity for the civilians of Iraq, who have been caught in the center of precisely the medieval sort of conflict that the laws of war are supposed to prevent?

Habeas corpus literally means "You shall have the body". A habeas corpus action is mounted to force the legal authority to show proof that a criminal act occurred which would justify holding of the suspect. My God, I would say to Senator Leahy - we have thousands and thousands of bodies. This conflict opened with an act of unconventional warfare which all the laws of war strictly prohibit. When Saddam Hussein took time out from his bloody acts against his own people, he funded the families of those who committed such activities abroad, and boasted of it, just as Edgy Adji of Iran boasted of his nuclear jihadis in Indonesia. These same acts are what we see in Afghanistan, Iraq, Gaza and Lebanon.

Can the senator spare no pity for the people caught in this zones of terror and chaos? Does he know no history? The Hundred Year War in Europe was the type of conflict that engendered the laws of war, and I can see no reason for abandoning those laws now. Non-uniformed guerrilla warfare conducted against civilian authorities is a crime in and of itself. It is a crime because it leads to the destruction of civilian society. Armies are supposed to protect their own societies, but these sorts of guerrilla actions almost always destroy their own societies.

The attacks from Lebanon by guerrillas on Israel, and the resultant counter-attack by Israel, ought to have been a wake-up call for the world, and instead we are still mired in a navel-gazing conflict with our own refined sensibilities, which are only refined because those parading those sensibilities are insulated from the realities of this type of war. If Vermont were experiencing the violence that Israel experienced, Senator Leahy would be the first to demand a response from his president. If armed terrorists were rigging up car bombs in Vermont, Senator Leahy would be the first to demand that the FBI and the National Guard stop it. There is an element of surreality to much of our political debate that does not withstand reasoned scrutiny. It is a moral failure of no mean proportions.

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