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March 11, 2009

When Judges Meddle

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.

The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus—its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. I nonetheless agree with JUSTICE SCALIA’s analysis of our precedents and the pertinent history of the writ, and accordingly join his dissent. The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ’s scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called “habeas” or something else.

- Chief Justice Roberts, dissenting opinion in Boumediene v. Bush

Last June in a decision I and many others predicted would come back to haunt us, a split Supreme Court arrogantly set aside the Constitution, the separation of powers doctrine, and the last remaining vestigies of judicial modesty:

Instead of an elected Commander in Chief as outlined under our Constitution, we now have a committee of nine unelected jurists who wish to prosecute war by bringing in international law; ignoring their own precedent and the text of the Constitution as the urge strikes them...

As the Court continues to render citizenship and sovereignty increasingly irrelevant, one wonders what will be left to defend and more importantly, whether we will be left any means of defending it?

Sadly, rather than realizing their error, a reckless judiciary has chosen to further erode the Constitutionally mandated structure of our federal government: that of three separate but co-equal branches necessarily operating in tension with each other to check and balance the powers asserted by each alone:

Last June, in its cataclysmic Boumediene decision, the U.S. Supreme Court ruled — against the weight of precedent, tradition, and common sense — that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts. The decision was a calamity on many levels, but two merit our immediate attention.

First, the 5–4 majority dramatically and dangerously revolutionized the separation-of-powers doctrine that is the cornerstone of our liberty. For more than two centuries, we proceeded under the assumption that a self-determining people makes its most significant decisions through the political process, with policymakers answerable to voters and therefore removable if they fail either to protect our security or to respect our freedom. ...

Boumediene cast all of that aside. It did not merely vest constitutional rights in hostile aliens with no claim on them. It supplanted Congress and the commander-in-chief in prescribing the entitlements of enemy prisoners, a function hitherto understood to be military and diplomatic — not legal. And worse still, the Court refused to concede its duty to defer to the supremacy of the political branches in their realms of constitutional responsibility, or, indeed, that there are any areas in which politically insulated judges are institutionally incompetent. Rather, in the breathtaking decree of Justice Anthony Kennedy, the “Executive’s powers as Commander in Chief” are “vindicated” when they are “confirmed by the Judicial Branch” — that those powers are assigned by the Constitution to the executive rather than the judiciary apparently is irrelevant.

But even more alarming than the Court's evisceration of the separation of powers is its stunning refusal to recognize the implications of judicial overreach. Not only has the Court done violence to the Constitution; it has, by virtue of three successive decisions, fundamentally changed the concept of a nation-state: a political entity composed of citizens who live within defined borders and who enjoy rights intended for those who submit to the social contract and whose jurisdiction (literally, power to speak the law) does not and cannot be willfully extended by judicial fiat to non-citizens at war with the United States.

In a recent and related decision (al Odah) the Court has now reached the preposterous conclusion that in addition to possessing Constitutional rights, wartime detainees should be handed MORE protections than United States citizens. Where American criminal defendants are due only discovery that is exculpatory in nature, the Court in its infinite wisdom has the protections afforded to American citizens are not good enough for our sworn enemies. They must be allowed access to all evidence, even if such evidence is classified and even if it does not provide evidence that they are innocent. This is madness.

Given that the New York Times regularly discloses classified material to our enemies, the Court has effectively given the keys to the vault of national secrets to those with an avowed desire to destroy us. Back in June I linked Victoria Toensing's compelling testimony before the Senate Judiciary Committee. Ms. Toensign, a co-author of the FISA statute, testified that the rules which protect criminal defendants were never designed for the battlefield, much less for application in nations with laws which fundamentally differ from our own:

A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence.

At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents.

It was in recognition of these very real constraints, not out of any desire to trample the rights of detainees, that Congress stood up an alternate set of courts to review the detention of wartime prisoners; a system the Court arrogantly set aside without bothering to demonstrate how it failed to protect the rights of non-U.S. citizens detained during a time of war. Now, with the prospect of forced disclosure of classified information, the option of detaining rather than killing foreign combatants is recklessly swept aside - all in the name of "protecting" their rights. In the Court's learned opinion, it is better to be dead than to be tried by a military tribunal:

The primary reason enemy combatants may be detained under the laws of war is to prevent their return to the battlefield. The depletion of enemy assets brings the war to a more rapid, more humanitarian conclusion. American courts now stand this principle on its head. Henceforth, the price of detaining an enemy operative will be the coerced disclosure of intelligence that may be more valuable to the enemy than is the combatant himself. Factor in the enormous resource drain the litigation requires, and holding prisoners becomes a net loss for the war effort. And the war effort becomes a waste of time unless you only kill rather than capture — which is al-Qaeda’s way of doing things, but not ours.

This outcome has always been the fondest dream of the anti-war Left. That is why the Democrat-dominated Congress turned a deaf ear when, after Boumediene, the Bush administration (especially Attorney General Michael Mukasey) implored lawmakers to fashion rules and procedures for combatant-detention hearings. “We don’t have to pass anything,” Rep. Jerrold Nadler told Newsweek. “Let the courts deal with it.” Democrats knew that, if they sat on their hands, the courts would do their dirty work for them. And so it has come to pass. The war is over, at least until the next 9/11 — we can make ourselves defenseless, but radical Islam is not calling off the jihad.

Congress' shameful failure to act and the Court's reckless arrogation of judicial modesty, far from yielding a kindler, gentler, more just war, will render us little better than those we fight. As the military gentleman who sent this to me so cogently remarked:

...this why I don't think I will ever tell any of my people to go to any great length to capture a bad person [rather than simply killing him]

Can you blame him?

When priests are more in word than matter;
When brewers mar their malt with water;
When nobles are their tailors' tutors;
No heretics burn'd, but wenches' suitors;
Then shall the realm of Albion
Come to great confusion.

When every case in law is right;
No squire in debt, nor no poor knight;
When slanders do not live in tongues;
Nor cutpurses come not to throngs;
When usurers tell their gold i' th' field,
And bawds and whores do churches build;
Then comes the time, who lives to see't,
That going shall be us'd with feet
.

Posted by Cassandra at March 11, 2009 07:26 AM

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Comments

I guess we won't need to be taking prisoners on our next deployment, then...

Posted by: Pogue at March 11, 2009 10:48 AM

"Can you blame him?"
Absolutely not. The unintended -or not- consequence of decisions void of any scrap of common sense. Not to mention their consistent assaults on the Constitution.

Would passage on a rail, as in a wooden 6x6, to deepest, darkest Europe with a tar/feather bon voyage gratuity be anything but appropriate under the circumstances?

"But even more alarming than the Court's evisceration of the separation of powers is its stunning refusal to recognize the implications of their imperial and countermajoritarian overreach. They have not just done violence to the Constitution. They have, by virtue of three successive decisions, fundamentally altered the concept of a nation-state. No longer is America a political entity composed of citizens who live within defined borders and enjoy benefits designed for those who submit to the social contract. American legal jurisdiction (literally, power to speak the law) has been willfully extended by judicial fiat to those who wish to destroy the social compact: non-citizens at war with the United States who reside beyond our borders."
That needs to be repeated often and at no small level of volume.

*returns to trench in order to inventory torches and pitch forks*

Posted by: bthun at March 11, 2009 11:01 AM

With this post methinks Cass just 'spanked' herself. In my humble, fly-over mentality, this goes directly to Limbaugh's motive, opportunity, and means of radio programming.

Or did I miss something?

Ok Vet66, drop and give me a hundred! But Gunny, I don't have my wallet....do you take Visa?

Posted by: vet66 at March 11, 2009 11:23 AM

How so?

Did Rush help us get another conservative into the Oval Office? Because that's the only way I know of to get conservative judges appointed.

Posted by: Cassandra at March 11, 2009 11:33 AM

Cassandra, the current court is VERY conservative. In the three decisions you discuss here, and I would be very careful accepting analysis from the Levin/Mccarthy ideologue set at NRO when fine conservative analysis can be found at Volkoh (I mean, obviously, they're still wrong, but at least they look at the law first and politics second), the Court is articulating the fact that no human being rests outside the framework of human rights.

A soldier, or God fear 'em and bless 'em, a Marine may kill on a battlefield within the parameters of the law. The law doesn't end just because John Yoo and Lindsay Graham said it does. There are no black holes to throw our enemies in. If one has committed a crime against the US or participated in a conspiracy to do, then he has rights, no matter where we take them prisoners.*

*Unless it is in the course of hostilities, in which the prisoner is a POW and covered under the Geneva convention.

The very idea that the US military or the CIA could break your door down tonight and haul you off to rot in a Navy brig with no charges, no access to counsel, and no access to the law based on a tip is antithetical to being an American. We don't even hold illegal aliens, caught in per se violations of law, without trial.

Everyone has rights and one of those is that if the US government says you're bad, they have to show proof of it. Otherwise, well, America just ain't America.

Posted by: timb at March 11, 2009 11:46 AM

Tim, I think you've done about as fine a job of articulating the liberal position on this as can be.

But here's where I disagree with you:

the Court is articulating the fact that no human being rests outside the framework of human rights.

To which I would reply: show me where it says that in the Constitution.

What I see here is a Court that has exceeded its authority. They reached what is arguably the right decision (like Roe v. Wade, which even Justice Ginsburg agreed is bad law and wrongly decided) using invalid reasoning.

Justices don't get to add things to the Constituiton that aren't there. If they did, we wouldn't have provisions for amending it. And I think we all recognize that had this been subjected to public debate, the same end would not have been reached. This is an age-old debate between those who view the Court as a vehicle for accelerating "social justice" (as well as some very admirable principles) well in advance of gaining the agreement and consent of the electorate, and those who believe we live in a Republic where the Constitution is the supreme law of the land, subject to amendment ONLY through representative referendum. IOW, society NEEDS to weigh in on these issues rather than having an imperial - and imperious - Court lift them out of our hands. We need to have these debates.

The Court failed to demonstrate that military tribunals (as outlined by Congress) fail to adequately protect the asserted interest.

Here I have to point out to the that all on its own, the government has decided NOT to prosecute several detainees. People often think the UCMJ offers FEWER protections than civil law. The truth is that you're more likely to be acquitted by a military court (because they actually follow their own procedures!) than a civil court. And many military lawyers have come forward to express doubts about aspects of detainee review and imprisonment.

I think this proves the system works. Not perfectly, but well enough that the Court needs to be VERY careful in ignoring both its own precedent (which they did) and decades of prior decisions which have upheld the authority of the executive branch.

I doubt we're going to agree on this :p But I'm happy to have you argue your points.

Posted by: Cassandra at March 11, 2009 12:03 PM

No, Cassandra, the Courts have just insured that more Americans will be killed and maimed both here and abroad; because they ignored history, precedent et al. Unprincipled diletantes like Specter made the likes of Kennedy, Ginsburg, Souter possible.

Posted by: narciso at March 11, 2009 12:09 PM

tim,
The problem is that our gov't (and it's legal system) is not based in such a nebulous concept such as "human rights" (which are pretty much defined as whatever anyone wants them to be at any given moment) but rather on Constitutional powers (which are enumerated) and rights (which are enumerated or derived as the negative of enumerated powers).

The U.S. constitution covers the U.S. citizens in U.S. legal systems. It does not cover Non-citizens in foreign countries in military operations.

Say it with me: War is not Crime! There is a reason you seperate the military from the police. The police protect and serve the people. The military destroys the enemies of the state.

What you want to do is have the military become the police. But when the military becomes the police the enemies of the state tend to become the people.

Posted by: Yu-Ain Gonnano at March 11, 2009 12:11 PM

the Courts have just insured that more Americans will be killed and maimed both here and abroad; because they ignored history, precedent et al

Given that my husband recently returned from a year in Iraq and I have many friends in both Iraq and Afghanistan, I'm unlikely to forget that.

Posted by: Cassandra at March 11, 2009 12:38 PM

...this why I don't think I will ever tell any of my people to go to any great length to capture a bad person [rather than simply killing him]

Here's another reason -- the Supremes have just opened the door allowing a detainee to sue the soldier who captured him -- and his immediate chain-of-command -- for false arrest.

If that ever happens, you will see the number of live captures drop to zero.

Posted by: BillT at March 11, 2009 01:06 PM

"you will see the number of live captures drop to zero."
Sir, you can turn a phrase.

Posted by: bthun at March 11, 2009 01:21 PM

I understand everyone's points about your fears of expanding rights, but in these case>b>s, your well-intentioned call for judicial modesty is not appropriate.

We are signatories to the Geneva Conventions, which, as the Court found in Hamdan, apply here. There is only one group of people unprotected by either the Geneva Conventions or the Constitution: enemy combatants out of uniform or spies (see the fate of the SS infiltrators during the Battle of the Bulge or the decision of the Court in Ex Parte Quirin, where there was still a tribunal).

The Bush administration argued the detainees at Gitmo fell into that latter category, but the Court properly rejected it. The crime (moral) of the Bushies was attempting to extend that rationale to every country in the world, including American citizens.

In sum, rights enumerated under international treaties are as much part of our legal system as rights enumerated in the Constitution (so says the Constitution in Article 6, paragraph 2). The Court followed the letter of those treaties when determining the scope of "human rights." Recognizing that fact is acting Constitutionally and the real crime is that 4 members of the Court agreed with the Bush administration.

Posted by: timb at March 11, 2009 01:40 PM

Let's not criminalize philosophical or policy differences, OK?

To conservatives, using international evolving standards is a "crime" against our Constitution. But I don't advocate locking up Anthony Kennedy (though it's tempting sometimes!).

I think to understand my position properly, you need to read Justice Roberts' dissent, the opening of which is exerpted at the beginning of my post.

As he observes, there are many ways to protect rights. Even if (as you aver) detainees ARE covered under Geneva - and I don't agree that they are - that doesn't give them rights under the Constitution. What Justice Roberts said was the the Court failed to show their "habeus" rights were inadequately protected by the military tribunal system.

I think he's right. Justices don't get to invent Constitutional rights as the means to a desired end. That's committing a legal wrong to achieve a moral "right". The Court didn't say they had rights under Geneva.

They said they had rights under the Constitution. Wrong, and extraConstitutional to boot.

Posted by: Cassandra at March 11, 2009 01:56 PM

FWIW, Hamdan was the first of the three decisions I cited (from which you may infer I don't agree with that one either :)

Posted by: Cassandra at March 11, 2009 02:01 PM

I hate to be that cavalier, or frankly that blunt with my statements, but only a court that ignores
the law, so persistently, cannot help but have a bad end. We've seen in it with the release of Al Shehri, and Al Ajmi, and Abdullah Massoud, and we will see it again with Al Marri and Al Quahtani.
We saw it with the clownshow that was Mousaoui and Padilla.

Posted by: narciso at March 11, 2009 02:19 PM

I understand.

Believe me, I am furious about this. But I try as much as I can to keep emotion out of my writing and concentrate on the subject. I have no doubt that hurts me, traffic-wise. But it's the only way I know to write about these things.

I try to look at the other side when I can. Here, I can see what the other side is but I can't reconcile myself to it mentally or emotionally.

Posted by: Cassandra at March 11, 2009 02:24 PM

There is only one group of people unprotected by either the Geneva Conventions or the Constitution: enemy combatants out of uniform or spies...

Kewl -- you’ve just awarded Constitutional rights to everyone on the planet. BTW, mercenaries are *also* specifically prohibited from being granted POW status.

However, to the case in point, the Laws of Warfare, based primarily on the Third Geneva Convention, are divided into four categories:

a. Conduct of hostilities, forbidden targets, illegal tactics, and unlawful warfare techniques,

b. Treatment of wounded and sick on land and sea,

c. Treatment of prisoner of war, and

d. Treatment of civilians.

Article 3, paragraph 1 states

"…To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The above are illegal acts and violations of the Law of War -- remember them, because, Article 4 defines those personnel who are entitled to protection as POWs:

"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."

The detainees at Gitmo failed to meet at least three of those four requirements, and therefore fit the definition of “Unlawful Combatants,” and their status changes to that of a civilian who has engaged in conduct that violates the Law of Warfare.

They now fall under the Fourth Geneva Convention, which states they are not only subject to capture and detention, but are also subject to trial and punishment by military tribunals for those acts which they committed.

(see the fate of the SS infiltrators during the Battle of the Bulge or the decision of the Court in Ex Parte Quirin, where there was still a tribunal).

Tribunals are convened as necessary by the Commander. And Third and Fourth Geneva both permit the capturing power to detain enemy combatants for the duration of a conflict. They are guaranteed a fair tribunal -- which is not necessarily a speedy one...

http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68

Posted by: BillT at March 11, 2009 03:12 PM

There is only one group of people unprotected by either the Geneva Conventions or the Constitution: enemy combatants out of uniform or spies

Even though I disagree with this statement (there's a ton of people still not covered by either document), even you, yourself, have just made our case for us.

All of the people in Gitmo (or places like it) are "enemy combatants out of uniform". Since they are all members of a group you specifically excluded, how do you now include them?

Posted by: Yu-Ain Gonnano at March 11, 2009 03:44 PM

Hey! That's what *I* said -- ummmmmm -- in a slightly more verbose manner...

Posted by: BillT at March 11, 2009 05:53 PM

Folks, I did not MAKE your case. The Bush administration claimed those people were enemy combatants and this was rejected by the Supreme Court.

As for Bill T's claims, one does not equal another. Having rights does not mean one has full Constitutional protection. Yet, we extend those rights to foreigners/non-citizens detained in the US. We extend it to people who violate our laws and are turned over to us (think Noriega). Our signature of the Geneva Convention means Article Three applies to non0-combatants.

But, who wants to live the bully world that would be otherwise, where foreign governments could kidnap another country's citizens and hold them indefinitely with no hearings and no process? Sounds like Thunderdome to me and I don't like it (and neither did the Italians, Germans, French, and Canadians whose citizens were "arrested" by our government and detained without hearings.

After all, the standard for trying these gents is not exactly rigorous: hearsay is allowed, classified evidence is redacted from defendant and his counsel, and he is not allowed to cross-examine some witnesses. With similar rules, I could detain everyone here as being a flying platypus and guilty of causing the Spanish-American War...

The fact that they cannot convict them, despite (as Cassandra noted) the best and honest efforts of the JAG corps, is proof of the weakness of their cases.

Nice discussion, though.

Posted by: timb at March 11, 2009 11:07 PM

You think because a court comes to a decision, ignoring precedent; Kelo's another example, that means something, it doesn't it's just another sign of the Court's usurping authority it's not entitled to have. And we have an example of when human rights of US citizens are violated in other lands, Daniel Pearl, Paul Johnson, Nick Berg, I'm sure the ACLU filed a timely protest on those occasions; not that it mattered any.

Posted by: narciso at March 11, 2009 11:38 PM

As for Bill T's claims, one does not equal another.

The requirement to provide Constitutional protections to the incarcerated only applies to prisoners held on US soil. Guantanamo Bay is Cuban soil -- we're merely tenants.

Having rights does not mean one has full Constitutional protection.

The Supreme Court, in Ex Parte Quirin, upheld the government's right to deny Constitutional protections to the unlawful combatants (German saboteurs) -- who were captured, held, and tried by military tribunal *on* US soil.

Posted by: BillT at March 12, 2009 01:16 AM

Our signature of the Geneva Convention means Article Three applies to non0-combatants.

Fail. Article Three defines those actions which are prohibited in war -- it specifically does *not* refer to non-combatants. Because the Gitmo detainees engaged in activities and atrocities contrary to the Laws of War as defined in Third Geneva, Article 3, they are legally civilians who have engaged in committing acts contrary to the Laws of War. As such, they fall under the specifications contained in Fourth Geneva.

They have committed war crimes, therefor they have self-removed themselves from non-combatant status.

Posted by: BillT at March 12, 2009 07:51 AM

But, who wants to live the bully world that would be otherwise, where foreign governments could kidnap another country's citizens and hold them indefinitely with no hearings and no process?

Dude -- what part of "captured on the battlefield while engaged in combat" escapes your cognitive facilities? The salafi kidnap -- we don't.

I don't like it (and neither did the Italians, Germans, French, and Canadians whose citizens were "arrested" by our government and detained without hearings.

"Arrested" isn't the applicable word, "captured" is. Seven French, one German, two Canadian, and zero Italians are/were detained at Gitmo -- out of 650 detainees. BTW, why aren't you upset about the Saudis, Yemenis, Afghans, Pakistanis, Jordanians, Egyptians, Moroccans, Kuwaitis, Uighurs, Tajiks, Turks, Bahrainis, Chechens, Uzbeks, and Syrians they were captured fighting side-by-side with?

Posted by: BillT at March 12, 2009 08:24 AM

Most assuredly an interesting repartee. I would think that timb is a law student or an ACLU barrister, what with his positions and posturing based on his interpretations of documents.

On a battlefield, generally speaking there is no time for such geteel pursuits, such as the finer points of the Geneva Conventions. I challenge timb to stare down the business end of an AK and tell the holder of said AK that he has rights under the Law of Land Warfare, the Geneva Conventions and the Constitution of the United States of America. I am fairly certain that the next sounds heard will be the staccato tones of an AK magazine being emptied via the barrel into timb's center of mass.

No sir, when we enter a space or an area, my first charge, my first concern is MY people. Anyone who raises a weapon or makes a move contrary to my/our demands is a THREAT and threats will be eliminated with extreme prejudice.

It must be that way unless, timb, you are prepared to accept that every time we step outside the wire, we are on a suicide mission. Of course, since you are not on the playing field but merely a spectator in the cheap seats, you like don't think twice about protecting Mo or Abduls' "rights" over our people spilling guts to give them their "rights" that the Supremes (not Diana, Mary and Flo even though they might make better decisions) have conferred upon them as citizens of the world.

No sir, because we are dealing with unknown, possibly rabid vermin, we remain vigilant and on guard. We are a team who pulls together and we all know that there is nothing worse than letting your people down. We protect ourselves first and deal with the consequences.

I suggest that if you see it differently, you need to suit up, and pay a visit to the front lines. Do NOT draw a weapon, and conduct operations on your own, or with a platoon of your own kind (bleeding heart liberal lawyers.) See how long your stated positions keeps the blood flowing in your circulatory system, and not running down a drain in a back room somewhere as you hear "Allahu Akbhar!"

Have a good day. And we are quite proud to defend this great nation and even people like you, who would needlessly put us in harms' way in the name of "law."

Posted by: The Instigator at March 12, 2009 08:55 AM

Parthian shot.

After all, the standard for trying these gents is not exactly rigorous: hearsay is allowed, classified evidence is redacted from defendant and his counsel, and he is not allowed to cross-examine some witnesses.

I'd suggest you actually *read* the UCMJ instead of relying on DU snippets. The whole thing.

I have a lawyer acquaintance who read it and stated he could have gotten *Charlie Manson* acquitted if he'd been tried by a military tribunal...

Posted by: BillT at March 12, 2009 09:20 AM

timb,
SCOTUS also said that segregation was Constitutional.

SCOTUS rulings just mean that that is the way things will be, not that those things are correct.

Posted by: Yu-Ain Gonnano at March 12, 2009 10:08 AM

In any case, I didn't ask you for the SCOTUS ruling.

I asked *you* how *you* justify including a group after *you* had just specifically excluded them.

The logical statement is clear.
1: Enemy combatents out of uniform have no Constitutional/Geneva rights This is your premise
2: GITMO Detainees are enemy combatents out of uniform
Therefore: Gitmo Detainees have no Constitutional/Geneva rights

The logic is unmistakably clear. The only way to come to a different conclusion is to substitute your personal policy preference ahead of the law.

Posted by: Yu-Ain Gonnano at March 12, 2009 10:16 AM

Yu,

the unlawful enemy combatant thing applies to state actors operating out of uniform (like the Ex parte Quirin case both Bill and I cited). Contrary to Instigator's claims (which I will get to in a moment) the VAST majority of Gitmo detainees were turned over the US by the Pakistanis and Northern Alliance. Neither the Taliban nor Al Queda is a State actor; thus they are considered bandits and criminals, not state actors out of uniform.

I don't want to get to sarcastic here, but are you alleging the US can invade a nation and execute its citizens without trials? Are you saying I have more rights against US authortities than I do another State's forces, i.e. the FBI can't summarily execute me, but Canadian or Mexican authorities could if fell into their hands?

I mean, drop your fears of terrorism and think about what that means; it means you want to fight Al Queda by basically becoming them, i.e. murdering political enemies without process. That's just wrong in my world.

Instigator, read the next post

Posted by: timb at March 12, 2009 06:19 PM

Are you saying I have more rights against US authortities than I do another State's forces, i.e. the FBI can't summarily execute me, but Canadian or Mexican authorities could if fell into their hands?

If you, as a private citizen, picked up a gun and shot at their soldiers, then yes.

Posted by: Yu-Ain Gonnano at March 12, 2009 06:32 PM

Instigator,

Guilty to the former (student); supporter of the latter (ACLU).

As I noted in my original comment on the subject, US armed service members are still governed by law, as you know well, and a nice gentleman pointing an AK at you falls within those ROE's. There are few of those types at Gitmo, because the mortality rate of pointing an AK at US forces tends to be rather high. Still, US servicemen aren't allowed to indiscriminately shoot folks; they are allowed to destroy their enemies and protect themselves and others.

As far as the rest of your post goes, it is applicable to a hot battlefield and has nothing to do with any of the three SC cases we were discussing. Few Gitmo detainees were captured on the battlefield. Most were handed over to US forces by the Northern Alliance or the Pakistanis (for bounties no less). Specifically, none of the three petitioners was caught fighting US forces.

And another quick word about me, my brother-in-law, a career Navy man, is serving in Afghanistan as we speak. It is his second tour supporting the Army (the first was in Basra).

One of my favorite cousins is an Annapolis grad. He then joined the Marines, served two rotations in Iraq (Haditha and Fallujah) made captain as quickly as possible, and has re-enlisted. He just finished Marine Special Ops training, and is preparing for a deployment to Africa to help train allied armies. If I were any more proud of his professionalism and integrity, I would burst. He is thoughtful, educated, and the exemplar of American values.

Please don't imagine I regard the lives of my family members and fellow citizens any less than you do. Force protection is a messy and complex decision. In this instance, however, we aren't talking about it.

Posted by: timb at March 12, 2009 06:39 PM

Perhaps I should expand my statement a little.

If you, as a private citizen, picked up a gun and shot at their soldiers in a theater of war, then yes.

If you, as a private citizen, are providing support to other private citizens who are shooting at their soldiers in a theater of war, then yes.

If you, as a private citizen, are engaged in unlawful warfare, then yes.

That was the entire point of the Geneva conventions. To provide an incentive for all belligerent parties to stay "above board". For those who didn't, well, all bets were off.


Posted by: Yu-Ain Gonnano at March 12, 2009 06:55 PM

And that's the problem, IMO.

The entire purpose of the Geneva Convention was to secure reciprocal treatment in wartime.

There is no way that the concept of reciprocity translates to al Qaeda. For one thing, there's no centralized authority to negotiate with. They're a decentralized network of terrorist cells (and terrorism violates all known laws of war) with only loose allegiance to bin Laden.

It's a complete bastardization of the spirit of Geneva to apply it to terrorists.

That said, I will say this: we placed ourselves in a precarious position the moment we brought these people to Gitmo. It was done (like extraordinary rendition) from a desire to be more open and above board. And that willingness to trust our institutions is now being used against the Bush administration. Where Clinton sent rendered persons to countries that brutally tortured them and executed them after mock trials conducted in absentia (and where, O where is Dana Priest on THAT one?), we tried a different route.

Have there been some abuses? Certainly. But there are teachers who sexually and physically abuse their students, too. Do we abolish a school system every time there's a Columbine or a teacher rapes or abuses a student?

No.

Do we abolish prisons every time it comes out that there has been abuse of prisoners by those placed in lawful authority over them?

Of course not. Why? Because people are imperfect, and we haven't come up with a better system that eliminates the chance that fallible humans will abuse the rules.

Duh. If people were perfect, we wouldn't NEED rules. The alternative in this case was that many of these folks would have been shot stone cold dead when their camps were overrun. Would that have been a better outcome? Or would it only have made us *feel* better, as when Saddam was brutally torturing and starving his own citizens but the average American didn't have to be bothered about it b/c it wasn't a weapon to use against a Republican president?

Hey. Not in my backyard. I don't want to know.

Just keep me safe, as after 9.11 when I had to listen to progressives who were literally BEGGING my husband, who was in anti-terrorism, to violate their Constitutional rights.

And then the fear wore off and they turned on the real enemy: their own government and the military. Sometimes I just want to throw up.

Posted by: Cassandra at March 12, 2009 07:11 PM

And I should point out that summary executions aren't what I *want* to happen. I would view it as a tragedy, but that doesn't make it any less *legal*.

What *I* would prefer is to lock them up until the end of hostitilities and use them for information.

But apparently *that* isn't acceptable either.

Posted by: Yu-Ain Gonnano at March 13, 2009 11:02 AM

The VAST majority of Gitmo detainees were turned over the US by the Pakistanis and Northern Alliance. Neither the Taliban nor Al Queda is a State actor; thus they are considered bandits and criminals, not state actors out of uniform.

In that instance, which I ststed 'way up there, they fall under Fourth Geneva, and, as I also stated, may be tried by military tribunal.

Posted by: BillT at March 13, 2009 11:23 AM

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