Saturday, June 14, 2008
The Gitmo decision
John McCain called yesterday's decision by the United States Supreme Court to allow non-citizen prisoners at Guantanamo Bay access to courts "one of the worst decisions in the history of this country." The editors of the National Review, almost certainly leaning on Andy McCarthy's expertise, explain why.
For a complete exegesis on the folly of treating captured foreign terrorists as criminals and why it is impossible both to try them (under American rules of criminal procedure) and interdict their attacks, read McCarthy's book
It will be very interesting to see how the next president deals with this decision. It will certainly make for some extremely difficult choices (e.g., do you release a foreign suspected jihadi, or prosecute him and reveal the source of the intelligence that exposed him?). Since that strikes me (at least after having read McCarthy's book) as a fairly obvious problem, my question is this: Is Barack Obama similarly worried and just not saying so because of his constituency, or does he not understand the issue?
40 Comments:
By 
, at
Sat Jun 14, 09:23:00 AM:
Barak Obama doesn't understand the issue.
The next thing they are going to do is start ruling on the legal rights of plague victims. The bacteria and viruses will thrive.
The lawfare against the United States continues, and the good guys have just lost a big one. The socialists, communists, terrorists and some Democrats are going to be really happy about that.
By , at
Sat Jun 14, 10:04:00 AM:
Fixed it for you.
We hold these truths to be self-evident, that SOME men are created equal, that they MIGHT BE UNLESS WE DECIDE TO REVOKE THEM endowed by their Creator with UNcertain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, BUT ONLY WHEN WE AREN'T FIGHTING A WAR WITHOUT END. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the FEAR of the governed, — That whenever any Form of Government becomes destructive of these ends, BUT ONLY IF YOU CATCH THEM MORE THEN 15 TIMES, it is the Right of the WHITE People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes EXCEPT HAVING TO DO WITH WHAT TWO ADULTS DO IN PRIVATE; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, THROUGH UNCONTESTABLE DETAINMENT, SAY, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security AND ONLY SECURITY. aLL OTHER RIGHTS CAN AND MUST BE TRAMPLED IN THE NAME OF SECURITY.
By 
JPMcT, at
Sat Jun 14, 11:16:00 AM:
Did you pull that document from the Koran? I think it appears right below the paragraph about killing all infidels and beheading their families.
Look Tyree...we are all equal in the eyes of God. We are VERY unequal in the eyes of the Law. We are downright despotic when it comes to WAR...and that's how it should be...it's how you win!!
Gee...if we could all just get along...(***mellow folk guitar playing Kum BA Ya in the background**).
By joated, at
Sat Jun 14, 12:18:00 PM:
I'm guessing he doesn' understand the problem AND doesn't care that intelligence sources would be exposed.
By Steve M. Galbraith, at
Sat Jun 14, 12:20:00 PM:
Is Anonymous actually arguing that we must give complete US Constitutional rights to every non-American in the world at every place and at every time?
We must extend constitutional habeas rights and the full complement of substantive and procedural due process rights to every soldier/combatant we ever capture anywhere in the world?
Does he (or she) think (among other problems) this is even remotely feasible?
Does he (or she) think this what the Framers meant? Or the people when they ratified the Constitution?
By , at
Sat Jun 14, 01:47:00 PM:
Does this mean that we will have to protect the rights of all non-US citizens in other countries as well. i.e. Are we now going to need to go to war against the UK and other EU countries to protect our non-citizens 2nd admendment rights? Should be fun.
By , at
Sat Jun 14, 02:22:00 PM:
Our founding documents and rights conceptions don't impact people that don't follow them/aren't bound by them, but at least in theory they apply to us and the actions of our government, even during trying times; that's why they're inalienable rights. For this reason, it seems UNAmerican for US to obviate the rights of individuals we are dealing with. I might be more sympathetic if the abuse arguments were even vaguely touched on, or if the cases of innocents being snatched up with everyone else were dealt with. Generally, procedural arguments would be appreciated; yes, bad people are bad and we can do bad things to them, but we face the fundamental problem of using fallible instruments decide who these bad people are.
Essentially, the "just trust us/the US" stance doesn't fly in my mind, because any real Conservative knows the answer to the question "Mother, should I trust the government?"
By Steve M. Galbraith, at
Sat Jun 14, 02:25:00 PM:
Does this mean that we will have to protect the rights of all non-US citizens in other countries as well
Well, Kennedy limited (or tried to; I'm sceptical) the ruling to those aliens held in Guantanamo. Not all non-US citizens everywhere in the world.
That is, he viewed it as: US controlled territory, as seven years into the war, in a safe location, and not in the middle of a "hot" war.
Presumably, had this been Bagram, Afghanistan, or right after 9/11, et cetera, the ruling would have been different.
At least, for Kennedy. As for the four other liberal justices, I'm not sure what they would like.
By Steve M. Galbraith, at
Sat Jun 14, 03:07:00 PM:
it seems UNAmerican for US to obviate the rights of individuals we are dealing with.
As CJ Roberts pointed out, we've given the most generous set or procedural protections (rights if you will) ever afforded to aliens detained by this country as enemy combatants.
No prior Administration in the history of this country has ever extended such protections before.
This despite the fact that never before in the history of this country or in the history of Western traditions have enemy aliens captured been viewed as protected by such laws.
We're talking about positivist laws of the people who live under this government; not such nebulous inalienable rights of non-citizens.
If you wish to give the full protection of all of our rights (voting rights? right to counsel? Miranda? free speech?) to non-citizens, then pass a law. Don't make it up.
By , at
Sat Jun 14, 03:35:00 PM:
If people argue that we can't detain these aliens without a habeas w/due process hearing (because they have these inalienable rights), that logically means we can't kill them without first giving them a hearing to ensure their rights aren't violated.
After all, the inalienable rights of life, liberty and property cannot be taken away without due process.
Underscoring the complete utter absurdity of the premise.
By Miss Ladybug, at
Sat Jun 14, 04:13:00 PM:
Under the Geneva Conventions, these people are unlawful combatants. Since they are unlawful combatant, we have ever right, under the Geneva Conventions (to which the US is a signatory, don't anyone forget...), to shot the on the spot on the battlefield. This is a horrendous ruling and, I fear, will have terrible implications for the future safety and security of this country.
By , at
Sat Jun 14, 04:27:00 PM:
Under the Geneva Conventions, these people are unlawful combatants. Since they are unlawful combatant, we have ever right, under the Geneva Conventions (to which the US is a signatory, don't anyone forget...), to shot the on the spot on the battlefield
That may be true (I'm not sure it is) but the US is also a signatory to other treaties that forbid such actions.
Not to mention domestic laws that prevents us from doing so.
It's more than the Conventions that proscribe US actions.
By , at
Sat Jun 14, 05:13:00 PM:
This decision is just one further step in the evolution of a Court that has gone from interpreting a specific legal document to one that firmly believes that if something is "wrong" (in its opinion) then it violates the Constitution. No one in their right mind has ever assumed the habeas right applied to enemy combatants. What other Constitutional rights do they have? Certainly we're messing with their free speech and association rights.
This is why conservatives can't take a pass on this election, even if they don't trust McCain--do you have any question that Obama will appoint justices who think just like the majority in this case?
KSG
By , at
Sat Jun 14, 05:29:00 PM:
I put this case under the heading of "bad facts make bad law". Our approach to Gitmo has been a PR disaster. It is no wonder it ultimately results in a bad decision. indefinite detention, with no real access to counsel, or a country that cares about you, results in an un-american view of us and our values. Let's get over ourselves and simply treat these folks like real prisoners of war. If we had from the begining we wouldn't have had this bad decision forced upon us.
By , at
Sat Jun 14, 05:30:00 PM:
one further step in the evolution of a Court that has gone from interpreting a specific legal document to one that firmly believes that if something is "wrong" (in its opinion) then it violates the Constitution
If they want to do it - because they think it is wrong - they simply "enliven" the Constitution to turn it into a right.
We probably should give some sort of (limited/qualified) habeas protection to such detainees to prevent government abuse. The critics are right in discussing the potential for wrongdoing (although where the DTA/MCA laws are insufficient baffles me).
But it's clear to me that the Constitution doesn't require it. And that's what judicial review is supposed to be about; not right or wrong, fair or unfair, just or unjust.
But Constitutional or unconstitutional.
By , at
Sat Jun 14, 05:34:00 PM:
indefinite detention, with no real access to counsel, or a country that cares about you, results in an un-american view of us and our values.
We've set up military trials with counsel (military and civilian) to give hearings for these people. These are the same tribunals we use to try our own men and women in uniform.
If they're found guilty, we'll hold them just as we would if they were found guilty in a civilian court of law.
Why isn't the DTA/MCA laws sufficient?
One of the reasons we're getting bad publicity out of this is because of the nonsense and lies that critics are disseminating about the facility and the process.
Meanwhile, tens of thousands of Chinese are held in prison camps with no habeas rights or other protections.
And the world is silent.
By Sweating Through fog, at
Sat Jun 14, 05:36:00 PM:
As I wrote on my blog, the Supreme Court just gave McCain the election, provided McCain has the courage to go further. He can win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.
By , at
Sat Jun 14, 05:44:00 PM:
Read the Wiki article on the history of legal wrngling related to Gitmo and if you are not reminded of a third-world kngaroo court system, rather that the greatest democracy in the world, I would be surprised. We have hardly covered ourselves with glory in our handling of this entire issue.
By , at
Sat Jun 14, 05:52:00 PM:
Read the Wiki article
Sorry, you think Wikipedia - edited by who knows? - can give an adequate account of the issues involved in this case?
The fundamental problem - one that Wiki overlooks - is that we are breaking new ground as the government must deal with an entirely new set of legal and security issues.
Until now, the Courts have almost exclusively (if not entirely) allowed the detention of alien enemy combatants to be handled by the political branches, especially the executive. They've been extremely reluctant to step in.
Now they have and they've made a complete hash of it. E.g., exactly what type of habeas rights do these people have? Or due process rights?
Does anyone know? Did SCOTUS give any guidance at all on this?
A fair critic of the Administration would have to admit that the courts have messed this up as well.
By , at
Sat Jun 14, 06:05:00 PM:
I do agree the recent decision is bad...hence the reference to "bad law". I think the administration has tried so hard for so long to avoid treating everyone like a prisoner of war under the geneva convention (something that we all know how to impliment and follow)that the courts have been drawn in on a number of "bad facts" cases. if we acted as fair as we think we are this wouldn't have happened.
By Steve M. Galbraith, at
Sat Jun 14, 06:06:00 PM:
and if you are not reminded of a third-world kngaroo court system, rather that the greatest democracy in the world,
That's absurd. A third world court would have rubber-stamped whatever the leader of the country wanted. Nothing remotely like that has happened.
This mess has happened, in part (I'm not absolving the White House and Congress), because the left legal critics of the policy never were willing to accept a compromise. Never.
They want full constitutional rights/protections and total access to civilian courts. Anything less is unacceptable and they would continue to file lawsuit after lawsuit, issue complaint after complaint until they got their way.
Lawfare indeed.
The White House made the critical error of assuming that they could treat these detainees the way that past Administrations had done and that the courts would also stay out of the matter (as they have done).
The Courts have now taken over the detention policies of this country during warfare.
All of the critics of the White House have now gotten what they've wanted.
Congratulations.
By Steve M. Galbraith, at
Sat Jun 14, 06:15:00 PM:
I think the administration has tried so hard for so long to avoid treating everyone like a prisoner of war under the geneva convention (something that we all know how to impliment and follow)that the courts have been drawn in
But that wouldn't have mollified the critics.
The critics say that some (many?) of these detainees are simply farmers or innocent civilians who were caught up in the war and improperly held.
Even if the WH had labeled them POWs, these critics still would have claimed that the habeas rights must be given, no matter what status the detainees were given, to prevent government misconduct or abuse.
The 200+ years of precedent that the WH followed (poorly on occasion) was simply ignored by the Courts (fast foward from 1942 to today: FDR held over 200,000 Germans POWs: You think there wouldn't be demands today for habeas hearings for those POWs?).
The Courts want to run the detention policy of the government. It matters not whether they are POWS or unlawful combatants or whatever status is given.
By juandos, at
Sat Jun 14, 07:35:00 PM:
"John McCain called yesterday's decision by the United States Supreme Court to allow non-citizen prisoners at Guantanamo Bay access to courts "one of the worst decisions in the history of this country"...
Well isn't this just the cutest?!?!
The Manchurian Candidate thinks its a dangerous move, eh?
Well why did the sorry, senile son of a bitch make this statement?
By , at
Sat Jun 14, 07:52:00 PM:
I hear a cacophony of cries that the people at Gitmo are enemy combatants, and as such we can do what we please with them, and they should be pleased that we're as charitable as we are, damnit.
Here's the big question that drives many dissenters on the torture, illegal detention, and other such debates: how do you know? Let's say 5 terrorists go into a house (we have video of 5 going in) but we only find three and a bunch of hostages. Two people in that bunch are terrorists, so we can't let them go. But if we detain all of them, we necessarily imprison a bunch of innocent people without cause.
If we had a bulletproof system for identifying illegal combatants, we wouldn;t have this debate. But we DON'T, and as such we can't pretend that we do and hold people indefinitely without transparent trial. You don't trust the government with your taxes in a process that is totally transparent, so why do you trust the government in a totally opaque process that has employed things dubbed war crimes in WWII?
Especially when we release people for being innocent after yers of inquiry, perhaps sending the to foreign countries to be beaten? Prominent example: we busted Maher Arar, a Canadian who had done nothing wrong. Empowering the government in this way opens up huge avenues for abuse, which is why exogenous oversight is required.
Perhaps if the administration hadn't lied about supposed war heroes, been caught wiretapping when the president stated flatly that he wasn't, hadn't trumped up the ground for war with Iraq, and other such things, we would have some faith to fall back on.
But there's none of that left, so we should diversify responsibility to minimize corrupt practice.
By Steve M. Galbraith, at
Sat Jun 14, 08:03:00 PM:
Let's say 5 terrorists go into a house (we have video of 5 going in) but we only find three and a bunch of hostages. Two people in that bunch are terrorists, so we can't let them go. But if we detain all of them, we necessarily imprison a bunch of innocent people without cause.
Using your argument then, we can't drop a bomb on a group of terrorists during the war. Or shoot at them either
Because, after all, the government might be mistaken. We must apprehend them, read them their rights, make sure they're terrorists, give them counsel, let them examine the evidence, et cetera, et cetera.
Even after all that, the government still makes mistakes (it's better that a thousand guilty terrorists go free then one innocent man go to jail?).
To your other point, we have set up military tribunals - the same courts we use to try our men and women in uniforms - to determine the guilt or innocence of these detainees.
Along with those tribunals, the detainees have the right to appeal their combat status (only) in the Federal District Court.
Why isn't that sufficient?
Do you support giving complete habeas rights - the same rights that all US citizens have - to these detainees?
That's the issue on the table.
By , at
Sat Jun 14, 08:33:00 PM:
Let's say 5 terrorists go into a house (we have video of 5 going in) but we only find three and a bunch of hostages. Two people in that bunch are terrorists, so we can't let them go. But if we detain all of them
Sorry, but you have absolutely no idea as to how the military takes prisoners.
None whatsoever.
If you think they just grab everyone in a room and send them off, you really need to read up on our ROE.
By , at
Sat Jun 14, 10:05:00 PM:
@ Anonymous: the scenario I posited was to demonstrate the conundrum that is faced. The Rules of Engagement have lots of very interesting things to say, and if this was a forum where the average post length was longer than 15 lines I might delve into such complexity. As it stands, I doubt the research, citations, and nuance would do much good, so I opted for something shorter to make a basic "Bad guys don't wear black hats, nor good guys white" argument. Until you have a way of IDing the bad guys that doesn't sweep up bystanders, you can't treat everyone you sweep up like a bad guy without probable cause.
@Galbraith: First, "hot" zones are different from "not" zones, and I think this distinction alone solves most of your problems in a fairly obvious and commonsense way. We don't have the military officers in train stations and airports assessing risk like they would in Afghanistan, and for good reason. On the front, rules are different, but the inside of our of our own jails is not usually "on the front." Secondarily, if certain units of the military developed a track record of killing people of questionable status, we wouldn't deploy that unit as often and go into investigations; as it stands, Gitmo has swept up innocents and continues to release people actually declared "innocent" after extended periods of detention. Further, other aspects of US detainment have stained the record involved, thereby legitimating oversight. Finally, if there is mortar fire coming from a particular area in foothills, no tribunal is necessary as such observations meet the probable cause clause.
To deal with the "well, war is hard" argument before it is even raised, intelligence sources needn't be compromised in sealed trials by nonmilitary courts if we segregate the people convicted this way and limit communication. Additionally, further investment in human and electronic intelligence sources instead of billions of dollars in nuclear and large-scale conventional weaponry could make up for the shortfall. Long term physical entrenchment of our forces in a hostile area drains blood and treasure that can be used to defend against a moving threat, rather than hunkering down after said threat moves.
By , at
Sat Jun 14, 10:17:00 PM:
Until you have a way of IDing the bad guys that doesn't sweep up bystanders, you can't treat everyone you sweep up like a bad guy without probable cause.
Sorry, do you think the military just grabs an entire village or house of suspected terrorists and sends them to Gitmo? Suspects and innocents/bystanders?
Is that what you think is occurring?
By Steve M. Galbraith, at
Sat Jun 14, 10:27:00 PM:
Finally, if there is mortar fire coming from a particular area in foothills, no tribunal is necessary as such observations meet the probable cause clause.
This isn't, of course, what is happening.
E.g, the US sends Predator drones over Pakistan/Afghanistan and fires missiles at suspected AQ agents.
Or we go into a suspected terrorist location/house in Iraq. No warnings to "Come out with your hands up". Et cetera, et cetera.
According to your view, because the government cannot be trusted to go after these suspects (they may be innocent after all), we must be 100% sure of their guilt before taking action.
If we can't detain them without trials, habeas hearings, the full complement of constitutional rights, why can we blow them up?
And we're not talking about soldiers involved in firefights.
Finally, none of the critics of the current detention and tribunal legislation (DTA/MCA) can indicate why they aren't sufficient to safeguard the detentions of innocent peoople.
By , at
Sat Jun 14, 10:55:00 PM:
I already made the frontlines/not frontlines distinction, so if you missed it the first time I am too lzy to repeat. As for not trusting them to avoid imprisoning innocent people, it's because THEY IMPRISONED INNOCENT PEOPLE. See Maher Arar and the other less famous cases that were detained, hled for extended periods, and released.
What is it with you guys and thinking that the Congress can't spend you money properly in a transparent format but that the military will be perfect in secret trials?
By , at
Sat Jun 14, 11:07:00 PM:
I already made the frontlines/not frontlines distinction
So, suspected terrorists have no constitutional rights if they're in a "hotzone" or on the frontlines, including being in a village in Pakistan, but they have full constitutional rights if we simply detain them abroad?
Somewhere that makes sense; but not here.
Interesting how the chicken little hysteria about government abusing its powers become silent.
What is it with you guys and thinking that the Congress can't spend you money properly in a transparent format but that the military will be perfect in secret trials?
So, you want - no demand - open trials with full evidence presented to the suspects?
The right to confront your accusers, discovery, the whole nine yards.
Because if we don't, the government will just round up everybody and lock them up forever.
BTW, Maher Arar was detained before in 2002 for two weeks. Then handed over to the Syrian government.
This took place all before the DTA and MCA acts setting up the detainee process was created.
Give us the name of an innocent person who was held at Gitmo.
Just one.
Not someone who was later determined to be no longer a threat. Not someone released to another government.
A innocent person held at the place.
By Dawnfire82, at
Sat Jun 14, 11:11:00 PM:
I trust the military over Congress any day of the freaking week.
By Steve M. Galbraith, at
Sat Jun 14, 11:17:00 PM:
The issue on the table, of course, is whether the Constitution requires that we give habeas rights to enemy alien detainees held overseas during a war.
Not whether it's dangerous not to. Not whether we want to. Not whether the government should do it.
But whether the Constitution says so.
Since the detention and trials are limited to aliens, I can't for the life of me see how that would be a threat to US citizen's rights.
It's not of course. But scaring folks tends to cloud their thinking.
By , at
Sat Jun 14, 11:22:00 PM:
If the government is so devious that it is going to take away all of our liberties and lock us all up simply because we don't give full constitutional rights to alien enemy detainees held overseas during a war (!!!), imagine what they'll do with all of our medical and health records once we have national health care.
Not to mention a thousand and one other powers they currently have over our lives.
Run, run now.
By , at
Sun Jun 15, 12:06:00 AM:
A huge fraction of our government is structured the way it is for fear that the power will be abused. Thus guilty until proven innocent, openness except in cases of compelling state interest, and all the specifically enumerated freedoms that we possess. We give serial killer suspects the full benefit of the doubt, even if locking the sucker up and throwing away the key this one time would be totally sweet, for fear of such powers being used for harm now or in the future. This nibbling around the edges of rights seems to be exactly what TH was damning in his free speech posts, and that point is very well taken.
As for the problem of innocence, I'll deal with MA first and move on. I hardly think that detaining someone, handing him over to thugs to be beaten for information, then ensuring his release a year and a month later counts as just a minor detainment. Further, I think people that are "later deemed to no longer be a threat" sound an awful lot like people found innocent at a later date, unless you were brainwashing them in the meantime. Anyway, links.
http://www.cbsnews.com/stories/2002/10/11/eveningnews/main525342.shtml
http://abcnews.go.com/WNT/story?id=1629283
http://www.alternet.org/rights/55993/
Objection one: but those are just foreigners. If you can't challenge your detention, what does it matter if they claim to only pick up foreigners? Further, why isn't it wrong to detain foreign citizens, torture and release them after a year or more when they have done nothing wrong.
Objection 2: But there are so few of them. How many people are you comfortable having thrown under the bus by the military? Do you have a specific number of innocent people that you're willing to detain before you demand a better system?
Objection 3: Well, what's your advocacy then? Use civilian courts to for habeas corpus challenges and appeals of military tribunals as necessary, seal from public scrutiny cases or evidence that would harm the national interest should they be made public, and avoid having a military and intelligence operation bunkered in one place when you're facing a necessarily nongeographic threat.
By , at
Sun Jun 15, 12:41:00 AM:
First off, I'm glad this flushed McCain's true views on Guantanamo out into the open. I was beginning to think torture and similar abuses really would be curtailed under his administration, but obviously, as any conservative would know instinctively, merely changing the geographic location of the prison won't change the flawed policy which led to the problems in the first place.
Secondly, to tyree and others, it would be a great boon to this country if a President with experience in constitutional law were to be elected at this time; and to say that Obama does not understand the issue (regardless of whether you agree with his views or not) is about as stupid as saying George Bush doesn't understand the game of baseball. I am quite sure Barack will be happy to debate the issue any hour, any day of the week with John McCain and I look forward to it.
Thirdly, let's be very clear about what the SCOTUS ruling actually says (the ruling can be downloaded from the Supreme Court here):
It does not afford alien petitioners the same rights as US citizens.
It does not have any bearing on how U.S. combat operations are conducted.
It does not have any bearing on the capture of enemy combatants.
It does not prevent the use of military tribunals.
It does not direct how US detention policy should be carried out.
It simply says the US cannot hold the Guantanamo detainees indefinitely without a stated reason and disallow them some form of habeas corpus protection simply because there is some legal limbo regarding the prison's sovereignty.
Lastly, we should remember the Writ works both ways, not only protecting the detainee, but also the detainer. This line by Anonymous above is amusing:
One of the reasons we're getting bad publicity out of this is because of the nonsense and lies that critics are disseminating about the facility and the process.
Yeah, here we have innocents released from Guantanamo like Murat Kurnaz telling lies about their capture (says he was picked up off a public bus cause he was white!) and detention and there's no way to disprove it! Well, ain't that sumbich.
...
Remember, it is absolutely impossible for a hypocrite to win a war of ideas.
By Dawnfire82, at
Sun Jun 15, 11:45:00 AM:
"It simply says the US cannot hold the Guantanamo detainees indefinitely without a stated reason and disallow them some form of habeas corpus protection simply because there is some legal limbo regarding the prison's sovereignty."
Wow, is that all?
So any foreign enemy captured during a time of war can now only be held if they are charged with a crime... which is novel, since unless they had physically invaded the US and committed these 'crimes' here, our courts tend to not have jurisdiction.
Not a big deal at all. Why, I can't see how that would impact military policy in the slightest.
"it would be a great boon to this country if a President with experience in constitutional law were to be elected at this time; and to say that Obama does not understand the issue (regardless of whether you agree with his views or not) is about as stupid as saying George Bush doesn't understand the game of baseball."
Well he doesn't seem to have too strong a grasp on the 2nd amendment...
By , at
Sun Jun 15, 02:32:00 PM:
@ Dawnfire on 2nd amendment: well regulated militia. over and over again, that clause. If you have any credible claim to being a militiaman, fine, otherwise you're probably deriving your claim to weaponry from judicial interpretations of the 2nd amendment and not the text itself. I haven't delved into the case law recently enough to put forward the maxim that encompasses case law and whatever gun control policy, but I imagine there's an interpretation of the conflict duties of government to protect and secure arms liberties somewhere.
Also, as for all of these ridiculous "well now we have to do all this stuff for all people in all wars ever" arguments, No. No no no. No. All the law concerning catching combatants in enemy uniform still applies, all the law concerning catching enemy combatants not in uniform WHEN THEY SHOULD BE applies, this segment of the law applies to th interior of a US prison far from the front in cases where the government is unwilling or unable to produce grounds for detainment under those old laws. See Squealer above, read the decision, or just interpret what people are saying rather than putting words in their mouth.
By Dawnfire82, at
Sun Jun 15, 03:53:00 PM:
"Title 10, Subtitle A, Part I, Chapter 13, § 311
Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
Ahem.
"this segment of the law applies to th interior of a US prison far from the front in cases where the government is unwilling or unable to produce grounds for detainment under those old laws."
The government did, in fact. It decided to use military tribunals. Which, incidentally, is precisely the form of judgment required for the treatment of unlawful combatants under the Articles of War.
And if you think that this ruling will not be used as a precedent in the future to challenge the legality of holding foreign prisoners... well. It's naive.
By , at
Sun Jun 15, 04:32:00 PM:
I hardly think "Unorganized militia" qualifies for the purposes of "well-regulated." But whatevs, I haven't done the reading to have an opinion set in stone.
Regarding the ruling, if you assume that every decision or action by the government will be taken to the naturally absurd extreme, I am going to have to guess that we will all be conscripted and sent to Iraq, down to a man. Because it's an important cause dontchaknow.
The right to challenge detention in places where there isn't combat going on, in cases where there is little or no national affiliation, when civilians are frequently apprehended and nigh indistinguishable by construction of how the fighters operate, addresses a prominent and modern facet of warfare.
And when there are accusations of corruption flying by people that were once part of the system, such oversight is shown to be necessary:
http://www.independent.co.uk/news/world/americas/guantanamo-military-lawyer-breaks-ranks-to-condemn-unconscionable-detention-398033.html
Additionally, all that stuff about how secret trials and picking up innocents and handing them to thugs for beatings is bad for the US image abroad, cooperation with our allies, propaganda for the enemy, etc. Also, I was under the impression that the AoW were superceded by the UCMJ.
