Friday, June 13, 2008
US Soldiers In Danger, Do Something About It!
This bit of Scalia's dissent will show, I think, why the whole thing is worth reading:
In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating.One of my concerns is that the history of Islamic terrorist organizations includes revenge attacks upon judges and families. It's not a rarity; journalists, officials, and indeed anyone in the public sphere who opposes the terror are targets. The Mafia in Sicily attempted to enforce an extralegal immunity for their actions using much the same tactics, and currently in some areas in Mexico the criminal gangs do the same.
At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, theCourt today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would be no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s”defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.
Forcing soldiers to be named and testify in habeas corpus proceedings may expose those soldiers and perhaps their families to attack in response. This is not an unfounded speculation of mine - it happens in Iraq now to the families and principals.
Patterico's interview with an unnamed Gitmo soldier who was in mental health elicited the startling information that he himself (forbidden to testify against, and charged with caring for, detainees), had been personally threatened and had had his family threatened. For this reason, the soldiers who worked with the detainees were not named!!!
Obviously, in a civilian court conducting a habeas corpus proceeding, Stashiu's anonymity would be revoked were he called to testify, or were the soldiers who originally captured called to testify or make depositions. I speak for the soldiers and their families when I say that this is just not right. This is not a danger that US Armed Forces personnel should be forced to run. I hope Congress will immediately take this up. I encourage all readers to contact their senators and representatives over this issue. Neither the lawyers nor the petitioners should ever have access to the soldiers' personal information.
I console myself slightly with the theory that the judges who now must hear these cases are perhaps at risk as well. That will not be a consolation to the judges, but eventually it will moderate this fine furor of constitutionality.
Stashiu was told by a detainee whom Stashiu said liked Stashiu that the detainee knew Zarqawi, and would have Zarqawi cut the heads off Stashiu's family while Stashiu watched, and then behead Stashiu. Stashiu's words when asked about releasing the individuals with whom he worked:
I don’t know that anyone is beyond reason, but I also don’t know more than a couple who I think might be ok to release. “Might” being the operative word there, I wouldn’t give the go-ahead on my own for any of them. There I are couple I could understand and would not go out of my way to protest their release. I can tell you that if I ever saw a detainee face-to-face here in the States, I would immediately assume that I was targeted and do my best to kill them without further warning. If I turned out to be wrong about their intent, I could live with that.The danger to the soldiers is real. It is a civilian duty to address it by petition to your elected officials in Congress. If you don't understand my concerns, please read the Patterico interview with Stashiu, which is in multiple parts. Stashiu was kind enough to answer many questions which were posted in the comments as well.
Carl at NOFP has written a first post on the decision. There is a series of posts on various issues up at Volokh. See Betsy Newmark's post. If you doubt the danger, AQ is quite active in Europe. See this post at Iberian Notes.
I am not addressing the question the Supreme Court addressed in this post; I am confining myself to the necessary and foreseeable consequences of that decision which include specific additional danger to Armed Forces personnel. I will contact my Congress Critters about this issue, and I would urge everyone to do the same.
Remember, what goes around comes around. It's not at all inconceivable that failing to act to protect the soldiers here could expose you and your family in prospective danger.
Good for the Supreme Court, the Federal government has to abide by the bill of rights when dealing with individuals. That may make the governments job a bit harder, but that is just the way it has to be.
To the previous poster: Your use of the phrase "concentration camp" is emotionally loaded, and false.
Gitmo houses a prison. Is it possible that an innocent has been swept up? Yes, but unlikely.
These are not ordinary criminals, nor people charged with ordinary crimes. They are charged with crimes at war, crimes against the very existence of civil society. The measures taken to protect the rights of alleged rapists, burglars, pimps, fraudsters, and cop-killers will not work against an army deployed to destroy our nation. That the army is an irregular army fighting out of uniform and placing itself beyond the protection of any part of the Law of war does not mean that its members should be given the dignity and rights afforded to the people who destroyed Enron.
Please, explain, if you wish to be taken seriously.
My logic is that the Geneva convention guarantees a certain level of treatment for legal combatants serving in the military forces of recognized states. The terrorists of today are not fighting an "honorable war" as recognized agents of a state, they wear no uniforms, they don't discriminate between civilian and military targets. (See Bill Whittle's Sanctuary part 1 for a discussion of the idea I'm trying to get to:
...) I think there NEEDS to be a downside to not playing by the rules of "civilized warfare" (oxymoronic as that may sound).
You all ask for clarification and that is a fair request. I will do my best given that to do the topic justice would take ten pages.
At a start, calling Gitmo a concentration camp is no more “emotionally charged” than calling any internee of said camp a “terrorist”. How do you know they are such if they have not had some sort of trial? We do know, as Maxed-out-mama stated that some 30 have been released that have gone back to fighting, or have taken up the sword after the treatment they received. Which led to which you cannot prove, not yet. No doubt most were terrorists from the start. But it is very possible some took up the sword of Islam after ill-treatment at the hands of the US of A. The mistreatment of some prisoners is a matter of record. It is a fact that a number of prisoners were released were not terrorists or any other sort of combatant. It is a matter of record that a number of the folks grabbed after the October of 2001 in Afghanistan were sold to the US for the bounties, and were never guilty of any sort of combat, just being in the wrong tribal area at the wrong time. Far more than 300 have been released, that means ~ 90 Percent were not guilty of any crime, by US government figures.
One problem with those that want unlimited power for the government over the so called Terrorists (housed in so called Concentration camps) is that there have been abuses of individuals by the US government. To name one area (which is easy to check). The US Army interrogation UCMG does not allow information found through torture to be used in a trail against a suspect. Now perhaps the word torture is “emotional charged”. So I will use a specific instance that every one accepts occurred (and resulted in a few deaths, opps), that is water boarding. It is considered an unacceptable method of interrogation by US army JAC. To get around this after evidence has been obtained by “this method” (not emotional charged), the subjects are interrogated again without such methods being used, at which time the information taken down can be used in so called military trials. Given that a fellow that has spent indeterminate time in a camp and been subject to “extralegal means of information retrieval”, how do you know they did not tell the interrogator anything he wanted to hear in order to stop the methods used? Could they be in fear that if they do nto talk again they will be tortured again? Anyone can be broken; it is just a matter of time and a skillful torturer. Further once broken they will generally say what the torturer wants them to say. If there is any doubt about this, consider reading “Darkness at Noon” (written about 1940 it is about soviet methods), which details how this is done. Consider the many show trials conducted by the Soviets in the 1930’s, all of which had the accused confessing to all sorts of things they did not do. The reason for Habeas corpus and legal representation and rules of evidence and all that other clap-trap which the Supreme Court ruled on is to prevent just such behavior by those in power.
Now, there is a legal way for the US to run camps with virtually unlimited duration, it is called a “prisoner of war” camp. First declare war, as the constitution requires. Then the folks captured are deemed Prisoners of War and can be held for duration. Any who can be proved to be guilty of a war crime can be punished. However then the prisoners have to be treated according to the rules of war, and cannot be mistreated and know they will be released at the end of the war. Further the camps and prisoners have access to international observers (Red Cross) and UN commissioners that deal with this sort of thing (forget the name of that branch of the UN). Since this has not been done the legal way of doing this is a normal trial, with normal methods of evidence and the Bill of rights apply. Sorry but that is they way it is. As to Maxed-out-mamas question, the accused has a right of confronting the accuser in a court of law. That is why the names of the solders must be an open public record. It is the open nature of such proceeding that prevents them from becoming corrupt and miscarriages of justice from occurring.
This could have been avoided had the present administration chosen to do things the right way. For whatever reason, they did not. Further they did abuse prisoners; I doubt very much anyone disagrees with that, though I am sure there is plenty of debate over how much abuse occurred and if it was systemic or sporadic. Regardless they abused their powers, the lot of them. So now they have to obey the rule of law, treating these prisoners under the civil code. That is why I think the Supreme Court was correct in this decision.
As too the last comment on the terrorists not being subject to the rules of war. After WWII there were trials of the Germans for applying such rules against the partisans in Byelorussian, France Northern Italy and Yugoslavia. We established, by those trials, the rules that combatants fighting without uniforms could not be denied the protections of the Geneva and Hague conventions. This is of course subject to some debate, as to what specific protections apply, but it was decided that placing such combatants in concentration camps as the Germans did was a war crime. Not that I really cry a tear for any combatant that is shot down in the heat of battle, but once captured they are subject to some sort of protection (at a minimum they cannot be summarily executed, nor tortured), especially if they are fighting in defense of their own land. That is what we maintained in 1946~1947. Is it right for us to change the rules now that they apply to us?
Now I am sure a retort will be that I am a military hating weenie, who cares about terrorists and not the good old US of A soldiers. Poppycock! What the above means is I believe in the rule of law and believe if you try to take a short cut you will end up doing evil. Said another way; “Those that stare into the abyss too long will find the abyss has made a home in them”. There exist rules of conduct and proscribed behavior limits over which wise men fear crossing. The distance between the criminal regimes of the Nazis and the Soviets are far less than we believe, all it takes is unsettled times for all sorts of evil to find a home in what else would have been good men’s hearts. The rule of law prevents this, if observed. The fact that the Supreme Court is just getting around to this 7 years after the start of this conflict of cultures means that for a time the limits were not observed. Now it is time to observe them again, if we wish the US of A to return to its former status as “mankind’s last best chance”.
Hope that helps.
Second, Congress and the Executive Branch did attempt to craft a balanced solution to this problem. (For the full story, read the Dissent penned by Scalia and joined in by the other dissenters.) The left-wing five ripped it up, threw away the pieces, disregarded the clause in the Constitution specifically allowing Congress to control jurisdiction of the Court in such cases, and made it impossible for the Executive and Congress to take any sure action, while in the same text calling on them to do so.
This was a case of five justices setting their own opinions over both precedent and the clear wording of the Constitution.
When you take prisoners on the battlefield, you do not hold trials. You keep them until the Power that controls their uniforms accepts defeat and calls on them to stop fighting OR until that Power is destroyed utterly and they give a credible promise not to take up the Cause again. With no uniform, they answer to no such Power and they have proven that they cannot give a credible promise. Thus it is necessary to hold them indefinitely.
The public evidentiary rules of a normal criminal trial expose critical intelligence methods; to use them is to help the enemy that the illegal fighters support. This is absurd.
The answer is that survival of civilization as a whole must, in the end, take precedence over individual cases because if civilization is lost then ALL individual cases are lost. Due process must be adjusted as far as is necessary to win the war, in specifically those cases where it is necessary.
1. the constitution and the rights you respect so highly were never described by the authors as applying to non-citizens
2. people caught in combat against duly-constituted military forces are not considered lawful combatants under the Geneva convention, and the historic treatment for them has been death. That is precisely what the terrorists are.
3. In WW2, for example, those ununiformed non-lawful combatants were generally given a short military trial and dispatched.
All that needed to happen here was consistent application of this historic standard. Instead, people who care far more about enemies captured on the field of battle than fellow Americans have opened the gates for further destruction of our country and people.
But I can tell you if I did, I would suddenly find that every potential unlawful combatant I came across had "made a threatening move" before capture.
The easiest way to avoid this dilemma is now to kill them all, rather than capture.
Until helmet cameras are attached to all our soldiers (as they no doubt will be some day), I suspect the ratio of live capture is about to take a nose-dive.
Instead of the short course, try reading longer ones, each with ample supporting citations. The detainees flunk the Geneva Convention definition of POWs (or civilians); instead, they're war criminals who could be shot on sight.
The whole purpose of the laws of war is to protect civilians to the greatest extent possible. Granting non-uniformed combatants who hide their weapons rights exceeding that of POWs only will encourage terrorists to hide among civilians, increasing non-combatant deaths. And drawing a distinction between declared and undeclared wars would allow war criminals to evade settled law and moral obligations.
But I am pretty sure that you are wrong. POW status is not the issue here at all. It appears that POWs similarly situated could file for habeas corpus under this precedent.
The procedure the court struck down was military review, then the CSRT determination, then challenge to US district court. That is the procedure set forth by Congress.
Instead, five of the SC here extend habeas corpus rights (non-defined) to non-citizens held under military control in a base such as Gitmo, or probably the German military bases.
See, for example, internal pages 38-40 of the linked SC doc. The distinction Kennedy is drawing has nothing to do with POW status, but rather to the degree, longevity and consistency of control of the area in which the detainees are held.
On page 41:
"It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution."
Well, now they do, and under this decision POWs could challenge their detention as well, although there are absolutely no clear lines drawn in the decision as to exactly under what circumstances. POWs do not have less in the way of constitutional rights than persons nabbed in the act.
I laughed out line at this bit of Kennedy's reasoning:
"In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.
Awfully hard to file a habeas corpus brief on behalf of a corpse.
"I don't believe that sacrifice of due process can be justified. If we are seen to defend our own values in a manner that does violence to them, then we run the risk of losing those values. Even worse, if our own standards fall, it will serve to recruit terrorists more effectively than their own propaganda could ever hope to. . . ." --John Major, former UK Tory Prime Minister
Oh, and what Anonymous said.
First I note none of you would touch the abuse issue with a ten foot pole. I note none of you really challenged me on those assertions or contest them (I am not saying you agree, just no one chose to contest that portion of my argument). I think those acts are why the Supreme Court stepped in. Had some of the documented abuse not occurred, I do not think the Supreme Court would have stepped in. That is the fundamental reason, in my humble opinion for the Supreme Court giving the detained persons this appeal. As NJCOMMUTER states, perhaps this is poor law. I have some reading to do to be able to respond in an educated manner. However poor law is established when excesses occur, which, I think reasonable people can agree did occur.
Now to respond to individual points:
“First, not all wars are declared. In fact, most are not.”
Well some brief military actions are run without declaration, true. But if you intend to commit the country and its young men into harms way for an extended period of time, you had best declare war. If not you are not obeying the fundamental law of the land. Now perhaps I am naïve, but there is a very good reason for that clause in the US constitution. It is to prevent the very state we find ourselves in now.
“When you take prisoners on the battlefield, you do not hold trials. You keep them until the Power that controls their uniforms accepts defeat and calls on them to stop fighting OR until that Power is destroyed utterly and they give a credible promise not to take up the Cause again. With no uniform, they answer to no such Power and they have proven that they cannot give a credible promise. Thus it is necessary to hold them indefinitely.”
How long I ask? For life? Without a fair trial? How do you justify that? It seems you say that we are at war, but we are not really. As said before, if they are prisoners of war, then there are rules that must be observed (which I point out we bitch about when these rules are not applied to our troops). We have not been observing them. If they are civilians, then the civilian courts have jurisdiction for any criminal acts. It may well be that this Supreme Court decision is wrong, but the actions of the executive branch have been lacking in coming up with a fair method of dealing with these folks. It may well be we need a new set of laws to deal with this new perpetual war, or better said “clash of cultures”. Then Congress and the President should get cracking, as what they have put together so far does not pass the smell test for reasons noted in my first post.
“The public evidentiary rules of a normal criminal trial expose critical intelligence methods; to use them is to help the enemy that the illegal fighters support. This is absurd.”
Good point and valid. The problem becomes one of: Are they prisoners of war or not? The administration wants it both ways, they are prisoners of war when it comes to court overview (the administration wants none), but they do not deserve the normal laws protecting such prisoners when it comes to collecting information. Sorry, that is wrong and just plain immoral.
“The answer is that survival of civilization as a whole must, in the end; take precedence over individual cases because if civilization is lost then ALL individual cases are lost. Due process must be adjusted as far as is necessary to win the war, in specifically those cases where it is necessary.”
Sorry fellow you are totally wrong here. What you just wrote above was the sort of justification that the Soviets used for all of their terrible acts: the ends justify the means. The basic problem is, you never get to the end, and the means just get more and more extreme, all in the name of some cause. Be it worker’s paradise (soviet), a master race (Nazi), a universal fellowship of believers (Inquisition), etc. The fight always starts out in some good cause and always ends up destroying all that is true and dear. It would take a long dissertation to describe why that is the case, but in short, taking such shortcuts always ends up in more shortcuts until the very innocent are served up on a platter for objecting to the crimes done in their name and for their supposed protection. What is civilization if it is not individuals acting in restrained ways beyond their baser natures? How are you going to put the acceptance of torture back in the bottle once it has come to be accepted?
Let me try another tack, as I think this point important. What good is law if it does not protect individuals against state power and abuse in the worst of times? You may say that these folks are bad people and I well agree with you. I do not like or condone any of the radical Islam types. You say further we need to ignore the law in some individual cases, suspend it for a while, while we go after these devils that cannot be gotten to otherwise. There we part company; for I have too much fear of what you will achieve should you succeed. You would suspend the law to get at these devils, but what will you do when you have made the laws protections useless and the devil turns about to face you? What will protect you then, the law won’t. Yes I would preserve the rights of the devilish, as without protections for the worst of men there is no protection under the law for me and those I love. If you say that folks lose all rights when they are declared foreign combatants, what then when someone you know is declared one? You say it won’t happen, I say history says it eventually will. That is why we have habeas corpus
“Well, Anonymous, that was a long presentation of your perspective all right, but short on facts. These are:”
I disagree, but let us proceed:
1. “the constitution and the rights you respect so highly were never described by the authors as applying to non-citizens”
I disagree. The bill of rights applies to the people, at least in cases of law. The very same people mentioned in the declaration of independence. Those people have certain “inalienable rights” I seem to recall, life, liberty and the pursuit of happiness. I also seem to recall we fought a war over this, over an entire class of people that were not citizens to extend the rights and immunities of the bill of rights to those people. Now a foreigner coming over here cannot expect to vote, but he does have the same rights before the courts as you and I, citizens all. The issue comes down to offering them the protection of law under prisoner of law rules (state of war) or treating their acts as criminal actions to be subject to civil law. Our legal tradition knows no third course
2. people caught in combat against duly-constituted military forces are not considered lawful combatants under the Geneva convention, and the historic treatment for them has been death. That is precisely what the terrorists are.
3. “In WW2, for example, those uniformed non-lawful combatants were generally given a short military trial and dispatched.”
Wrong again. Established by our military courts I might add. We executed both Japs and Germans for doing just that, executing US personal and civilians who were not in uniform but were fighting the Germans military. A few examples: 1) a German General was tried and executed in the summer of 1945 for executing 5 or maybe 8 OSS troops that were caught in German territory wearing German uniforms in late 1944. In the trial the Germans were found guilty, not of executing the Americans (there were in German uniform, a perfectly good reason for shooting them, we did it to German’s caught in the Ardennes) but for shooting them without a trial. The same thing happened to some Japanese in the Philippines who were guilty of a similar offense against Philippine partisans.
At the Nuremburg trial, which in general were an attempt to be fair and establish international law for future such conflicts, the Germans were castigated for such actions as you describe. It was held that captured partisans or even spies could not be shot without a trial. Several Germans had their necks stretched because of this omission. We insisted that our own “flying bandits” shot down over North Vietnam be treated according to the rules of war (I seem to recall someplace the North Vietnamese referred to them as such). I seem to recall that no state of war was declared against Vietnam. If there is no state of war declared, there is not protection of the various conventions, yet we held that since these men were in uniform they should be protected. Yet they were bombing a country we were not “formally” at war with.
“All that needed to happen here was consistent application of this historic standard. Instead, people who care far more about enemies captured on the field of battle than fellow Americans have opened the gates for further destruction of our country and people.”
I agree with you on the first sentence, disagree with you on the second. I care for the rights of all folks because I care about this country. If you throw away the rules when they are in the way of getting at bad people, you will eventual throw away the rules whenever they limit those in power from exercising their will. Then bad people will get in power, just so they can exercise their will.
Good points Maxed-Out-Mama, as I said, indeed to read the decisions and do a little research.
Well rather long winded but hopefully some of my points are clarified.
Sorry fellow you are totally wrong here. What you just wrote above was the sort of justification that the Soviets used for all of their terrible acts: the ends justify the means. The basic problem is, you never get to the end, and the means just get more and more extreme, all in the name of some cause. ...
... What is civilization if it is not individuals acting in restrained ways beyond their baser natures?"
The answer lies in an old observation by a wiser Supreme Court: The Constitution is not a suicide pact. It is at that point that you stop.
A sharper line is the difference between an attack within civilization and an external (or internal) attack on civilization. The importance of this line is highlighted by the attention paid to the crime of Treason (including its specific mention in the Constitution) because in that crime the line is crossed. Cop-killing, threats or violence against judges, jurors, and lawyers for the purpose of frightening them from their jobs eat at the edge of the line, too.
But when someone outside the country engages in warlike acts against the country or its citizens without the legitimacy or uniform of a State, we must be able to respond appropriately to the warlike actions. Were the actor a State, our course would be clear: a POW can be held; a war criminal can be held until it is convenient to try and execute him. Here the actor is not cloaked in the majesty of a State, and that is why we are having trouble. Once we recognize it, we can understand what principles must apply: There is no authority whose destruction will end the war nor whose declaration will constitute a surrender. Therefore any provision of mercy based on the expectation that the enemy can be defeated or forced to surrender in that fashion is based on false premises. (This answers the question of how long he may be held. The answer has always been "just as long as is necessary." That remains the necessary and sufficient answer. We will need to hold him for a longer time than we are used to, but other civilizations have had to defend themselves through multi-generation wars.) Yet the actor is attempting to destroy or suborn our State and our civilization, and we must have the appropriate means of action, nor may we reasonably cede to him our own courts as part of his battlefield.
What is needed is what von Clausewitz called a critical analysis. (If you have not read vom Kreig I recommend it to you, along with The Federalist.) In the meantime there are some precedents that may apply. In the nineteenth century, an international convention declared pirates the common enemy of mankind, which meant that they could be hunted without mercy and with the protection of the principle of hot pursuit. We are not yet at the point that we can do this with terrorists because many operate under the tacit or clandestine protection of a State. In this they are like privateers, though privateers generally were interested in treasure rather than in power or martyrdom. But the observation gives us a precedent to consider and a place to begin analysis.
I strongly recommend that anyone who wants to think seriously about this subject read Philip Bobbitt's The Shield of Achilles, which traces the development of our modern understanding of a State. The State's legitimacy is ineluctibly linked to its monopoly on internal violence and its duty to external violence when that violence is necessary. Warning: do not skip over or skim the introduction; it is the foundation of the book. Read it seven times if you must; go on once you understand it. And if you can't understand it, grok it, bellyfeel it, understand then that you have not crossed the pons asinorum.
But this is not protection only against foreign terrorist but against any threat. 4000 more or less died in the 911 attacks. How many have died since then because of a crappy health system or poverty or whose wealth was destroyed because of offshored jobs or globalization or in an undeclared war started by lies and misdirection for the desire of a president?
In that context, keeping a few rag heads in Gitmo and beating them in the name of protection is not protection of citizens but a method of terrorizing citizens to allow an elite to stay in power.
Yea there are bad eggs there, but in the large context of things, it is unimportant to the security of the US.
This is not about citizens or resident aliens. It is about aliens captured in non-US territory brought back to any relatively permanent US base, apparently.
POWs, whatever, everyone gets habeas corpus rights.
Since habeas corpus doctrine was formed with respect to police powers, which are quite different, it will be a quandary and a puzzle to the courts.
The military probably won't be able to hold prisoners taken in battle unless they try them almost immediately (are you going to produce the capturing personnel in court?), so I have to agree with Frank. A lot of people will be shot for no good reason, and many others will be sentenced to penal terms WITHOUT THE PROTECTIONS THAT THE LAW JUST STRUCK DOWN GAVE THEM.
While we're all thinking it over, it's worthwhile to note that this week about 1100 prisoners in Afghanistan (held in an Afghani prison) escaped. Several hundred of them, at least, were prisoners captured by our military in the fighting and turned over to the Afghani government.
If we're not going to fight on the ground, we will end up taking far more extensive actions sooner or later, in which the collateral casualties will be much higher.
I truly doubt this was a good day for the humanists among us.
The kind of overblown nonsense that people outside the US have grown tired of hearing in the past few years.
Why shouldn't soldiers be held to account? That's not to hold them to blame - it's just to get at the facts. And how would it be beyond the wit of the courts to safeguard their identities?
All that matters is the rule of law. Without it the US is nothing.
The quandary here lies in one thing: that war is being waged not by a government with defined territory and a defined citizenry but by a collection of shadow groups and individuals. Those protocols which are founded on the assumption that the enemy is a State can no longer work, and it will take time to construct their replacement, a fact to which which our learned Supreme Court is blind. One of the first points that von Clausewitz makes is that the enemy defines the war as much as you do, and that the enemy's purpose is to render your actions useless. The Supreme Court does not acknowledge this in its reasoning.
Bobbitt treats the effect of confusion over protocols which no longer apply in a chapter called The Kitty Genovese Affair and the War in Bosnia. It's not his strongest chapter IMO but it covers a gap that no one else covers except maybe Sun Tzu. And Sun Tzu's lessons require interpretation.
Consider the Miranda warning. This is well-established, but neither the warning nor the ruling that established it are basic principles. The principles are the right to counsel and the right to avoid self-incrimination. If someone games the system to take advantage of the rules surrounding the warning, they do not have to be allowed to get away with it. This was made clear a few years ago by SCOTUS in a couple of cases that caused an uproar. (Had the people who roared up actually read the casea, I suspect there would have been much less roaring.)
This is an important question, and deserves an answer (just in case anybody is listening). Soldiers should be held responsible, but they should be held responsible under the laws of war, not the laws of civil society.
The very existance of war waged by civil society requires that the soldier give over his moral judgement to his superiors, not by surrending it but by coming to trust that he would probably make the same judgement as they were he in their position. He must trust the moral judgement of his peers in the same way. He is held accountable then under rules of engagement and under various standing orders and conventions of war. He is not held responsible to the individual upon whom he wreaks violence; he can commit neither tort nor felony against that person. The Service to which he belongs takes that responsibility and insulates the soldier except when the soldier is in gross disobedience of lawful orders. Even then, it is the business of the Service to punish, not some theoretically superior court--because if there were a recognized superior court covering both the soldier and the individual against whom he has wrought violence it would not be a military affair in the first place, but a civilian affair under civilian authority.
"America's prison for terrorists often held the wrong men
"McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.
"This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.
"The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners."
1) completely ignores the tie between sovereignty and jurisdiction--hint: The Declaration of Independence is only aspirational and not part of United States law, and law is bound by the reach of the sovereign;
2) mangles the difference between military and civilian justice. Read Johnson v. Eisentrager, 339 U.S. 763 (1950), which denied foreign-captured enemy combatants use of Habeas and access to U.S. courts, and Ex Parte Vallandigham, 68 U.S. 243 (1863), which separated both the tribunals and principles of justice applicable to military vs civilian trials;
3) has not understood what international treaties provide in such circumstance: Article V of the Third Geneva Convention, which limits the rights of combatants not qualifying as POWs to a "status" hearing; Article V of the Fourth Geneva Convention, which says combatants disguised as civilians "shall not be entitled to claim such rights and privileges under the present Convention" and need not be tried (but if tried, must be fairly treated).
American military law and process in Git'mo fully conformed to the Constitution and rule of law--until the SCOTUS ignored the Constitutional text and four hundred years of history to make extra-judicial headlines.
I've a news flash for you, boss. The Constitution is what the Supremes say it is. Not the President, some right wing organization or the Congress.
That said, my guess is that the supremes would have gone alone with the Administration, just as they have in the past except this one is arrogant and incompetent.
Every day, bad folks with reach greater than any rag head would dream of, think Mafia, criminal gangs and the like are put though the courts and it all works out. Yea witnesses are threatened and put at risk and things that local pols want hidden are exposed. But it does work.
You see, boss, when the state has unlimited power to destroy folks; when it is held to a low bar of evidence it just screws up a lot and kills off a lot of innocent citizens because the folks that enforce the law are like the rest of us, basically want to do their duty with the least effort. When government is held to high bar and forced to really work at destroying folks, it gets it act together and puts really bad folks away.
If you study the terrors trials actually held in the US to day, you find that the current Justice Dept not only screwed but screwed up so bad that courts reprimanded it. This gives me no confidence that the folks that want gitmo really know what they are doing are and are looking at any way to appear they are doing something important when in reality an outside observer sees total incompetence.
IMHO the best way to protect out soldiers lives is to impeach the current Pres and VP. Any emotion about the dangers of a handful of rag heads in gitmo is both mis directed and mis informed.
I do not admire reality politics, but I could live with and support a competent administration that spills a bit of innocent blood and from time to timelocks up innocents for long time. I cannot live with a bunch of bumbling fools that use national security concerns to hide their foolishness.
Well, Vader, did you ever stop to think that is because the DOJ is set up (and somewhat competent) to prosecute criminals, but not competent to try warriors (assymetric in this case, but warriors nonetheless)?
Until we start deposing soldiers who say so-and-so shoot their AK47, DOJ will continue to be hapless against these terrorists.
And once the soldiers are deposed, the court will come to discover that no one shouted "POLICE! COME OUT WITH YOUR HANDS UP" (identified themselves appropriately) or read the Miranda rights or some other such nonsense, so the captures, evidence, and prosecutions continue to fail.
There is no effective way out once you start treating enemy combatants (especially those that are 'unlawful' by international convention) as criminals, and accord them munificent rights of *Americans* accused of crime.
We cannot win a war in such conditions, which it seems to me is the objective of the liberal machine.
I agree that Padillo is a special case that does not fit with the 'captured on the battlefield' others however I think the administration truly did not have a good option for him. They had intelligence he was planning an attack of mass destruction but with limited "hard" evidence that would stand up in court. I expect this kind of case will continue to pose real problems until the Islamofacists get lucky and take out a city or two. At that point, our laws against treason will be revised - and enforced, even with only intelligence as evidence. I do not want to see this as it would mean the end of precious American liberties. But it seems to be the consequence of the path we are now on, thanks to the SCOTUS.
Still long on opinion but short on facts:
1. “the constitution and the rights you respect so highly were never described by the authors as applying to non-citizens”
"I disagree. The bill of rights applies to the people, at least in cases of law. The very same people mentioned in the declaration of independence. "
I believe the Constitution to which the Bill of Rights are an attachment begins "We, the People of the United States". Nothing about foreign terrorists caught in battle against the US.
2. “In WW2, for example, those uniformed non-lawful combatants were generally given a short military trial and dispatched.”
"Wrong again. Established by our military courts I might add. We executed both Japs and Germans for doing just that, executing US personal and civilians who were not in uniform but were fighting the Germans military"
Here's a place to start: http://www.newsday.com/community/guide/lihistory/ny-history-hs738a,0,75215.story
3. "German General was tried and executed in the summer of 1945 for executing 5 or maybe 8 OSS troops that were caught in German territory wearing German uniforms in late 1944".
I think you are referring to General Anton Dustler, in which case you are wrong again. The OSS troops were wearing US uniforms, which made treating them as unlawful combatants a war crime. http://www.oldmagazinearticles.com/pdf/YANK%20OSS.pdf. Unless you are referring to some OTHER German general who executed OSS troops in 1944, you have further supported my point. Thank you!
4. “All that needed to happen here was consistent application of this historic standard. Instead, people who care far more about enemies captured on the field of battle than fellow Americans have opened the gates for further destruction of our country and people.”
"I agree with you on the first sentence, disagree with you on the second. "
More opinion again, but we're looking for fact.
This is necessity of fact, but when read alone a total repudiation of the very idea of a written constitution. The job of SCOTUS is to interpret the written constitution AS WRITTEN with all other interpretive contributions visible only through the gaps that appear when circumstances strain the words. And even then, they must knit together the gaps, not rewrite the written words.
"Every day, bad folks with reach greater than any rag head would dream of, think Mafia, criminal gangs and the like are put though the courts and it all works out. Yea witnesses are threatened and put at risk and things that local pols want hidden are exposed. But it does work."
Perhaps greater reach, perhaps not. Look at how extensive al Quaeda's financing system was. We are still trying to follow its tendrils.
You can put a few hundred witnesses and their families in protection programs. You cannot do that with entire armies and the families and extended families of a million or more servicemen. Nor can judges and their families disappear after a case is tried; we will continue to need their skills to try other cases.
"You see, boss, when the state has unlimited power to destroy folks; when it is held to a low bar of evidence it just screws up a lot and kills off a lot of innocent citizens ..."
Yes, many of us fear that SCOTUS has done this. Not, perhaps, with the least intellectual effort (it was hard to twist Constitution, Statute, and precedent as it has been twisted) but with the least exposure to doubt that comes with difficult moral choices. Accepting the words of the Constitution over your own values is difficult, though it is easier when you accept that you are a conservator rather than a living conduit to the wisdom that is "Constitution."
What you proclaim is not "government of the people, by the people, for the people," but "government of SCOTUS, by SCOTUS, for the perfection of society under SCOTUS."
"If you study the terrors trials actually held in the US to day, you find that the current Justice Dept not only screwed but screwed up so bad that courts reprimanded it."
It takes time for an organization to gain experience. Did the judges who issued the reprimands have any experience themselves in such cases?
"But this is not protection only against foreign terrorist but against any threat. 4000 more or less died in the 911 attacks. How many have died since then because of a crappy health system or poverty or whose wealth was destroyed because of offshored jobs or globalization or in an undeclared war started by lies and misdirection for the desire of a president?"
This gets back to the basis of the legitimacy of the State. Does the State's legitimacy derive from keeping its citizens safe and not placing obstacles in their way, or does it derive from looking after their welfare in any way possible? If you care to argue this point, please, please read Bobbitt's Shield of Achilles before going further. The welfare state came about more or less after the War Between the States and the US did play a part in it, but other governments played a stronger part. Bobbitt quotes Kaiser Wilhem II on the point.
"McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records."
But how much of McClatchy's conclusions came from each source? "Detainees" are automatically suspect; their statements should only be accepted when corroborated. "Local officials" may be enemy sympathizers, or may be driven to protect members of their own tribe or clan, to whom their strongest loyalty is owed.
"This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals."
Well, a Taliban grunt is as much an enemy as Bin Laden, and as worth of imprisonment. And, if he committed an atrocity, as worthy of execution.
"In effect, many of the detainees posed no danger to the United States or its allies."
We released people who "posed no danger" and at least thirty have been killed on the battlefield, where it turns out they did pose a danger.
"The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners."
"Abused"? Given the amount of press coverage and the documented attempts of the bad guys to claim brutality and mistreatment, no claim is credible on its face without hard documentation. Bruises are not adequate evidence; people can bruise themselves and it's a small price to pay for a chance at freedom. Oaths are no proof; terrorists demonstrate by being terrorists that their moral system has no regard for the enemy nor for the innocent nor for the sanctity of any law but their own. Their training teaches them to lie, even under oath, to manipulate our legal system and to garner sympathy. No lie, no atrocity is too great if it brings about their holy end.
the claim that our soldiers identities or intelligence sources will be compromised is inaccurate/
the spreme court in it's opinion specifically remanded the case back to the court of original jurisdiction with directions that procedures for implementing access to the writ NOT compromise necessary secrecy.
"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible. Cf. United States v. Reynolds, 345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege in a civil damages case where “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged”).
my parting comment God bless America, the rule of law and the constitution have prevailed.
if we loose our basic rights then the terrorists have won.
But more generally, commenters supporting the Boumediene result based on the asserted necessity to protect individual rights or to uphold the rule of law err by assuming the conclusion. The rules of war are distinct from criminal process, and Bill of Rights protections have never been obliged under military law. So it's not true that no rules exist; the rules and rights simply are different, U.S. military law deriving from Article I, Section 8, clauses 14 & 16, not the first ten Amendments.
The ironic result of Boumediene is to provide suspected unlawful combatants greater rights than either POWs or U.S. soldiers accused of violations of military law. That's neither just nor consistent with the rule of law.
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