Supreme Court Agrees to Take Guantanamo Bay Cases:
Wow — the Supreme Court has granted cert on the D.C. Circuit's Guantanamo Bay cases, Boumediene and Al Odah. What's remarkable about this isn't that the Supreme Court agreed to hear them, but how: the Court denied cert at first back in April, with several Justices writing opinions in the cert denial, and then granted a petition for rehearing. This is extremely unusual, and it is probably a pretty good sign that a reversal is likely. My take on some the legal issues can be found in my recent Senate testimony, available here. This is what I said about the D.C. Circuit's decision that will be reviewed:
[T]he reasoning in that decision is in obvious tension with the Supreme Court's language in Rasul. In Boumediene, the D.C. Circuit concluded that Guantanamo Bay is part of Cuba, not the United States, and that application of the habeas statute to persons detained at the base would not be consistent with the historical reach of the writ of habeas corpus. Judge Randolph rejected the relevance of Rasul in a short footnote. See id. at 992 n.10. Although the Supreme Court denied certiorari in Boumediene for procedural reasons, it seems highly likely that the Court will agree to resolve this issue in a future case. Given that Judge Randolph's approach in Boumediene is in obvious tension with the language found in the majority and concurring opinions in Rasul, it seems likely that a majority of the Supreme Court will view the case differently than did the D.C. Circuit in Boumediene.Here's my question: What are the chances that this grant will push the Bush Administration to shut down Gitmo?
We may never know what caused the justices to change their mind. One new thing in the record before the court since the previous denial of cert was the somewhat dramatic declaration about the CSRT process from a former military officer involved. (I thought that filing, while fascinating in substance, was a bit of a hail Mary at the time.) Lyle observes this today:
We should wise up and never take any prisoners!
Would Cuban courts have authority in that circumstance? Can the US courts address detention decisions made by the base commander in that circumstance?
Tell that to the Confederate POW's hung in retaliation for the Fort Pillow massacre of captured Union black troops by Nathan Bedfort Forrest's troops. The execution of POW's in retaliation for war crimes by the enemy against your own forces has long historic precedent.
Given that our enemy in this war routinely tortures captured American troops before killing them, and ALWAYS kills them, we have complete justification for killing all captured enemies.
I know, I know, your vision of law applying to war also applies only to us.
Only if both warring parties are signatories to the conventions or adhere to them. AQ did/does neither.
Or, have recent rumors that the Bush Administration was planning on shutting down Gitmo had any effect on the Court's decision?
The Court may be attempting to get out ahead of this issue so it doesn't look bad when the inevitable horror stories start flowing out of Gitmo more openly than they have been. It still saddens me a bit that the average citizen neither knows nor cares about what our soldiers have been ordered to do in places like Gitmo by the Bush administration and the damage it has done to our standing in the world.
And that is also why it wouldn't be a war crime for the army to start slaughtering schoolchildren and puppy dogs in, say, Utah. After all the children and puppies weren't signatories to any conventions. So, no war crime there.
Perhaps there might be some other form of redress, but, not clearly not a war crime.
If the administration closes Gitmo, will the suit be moot?
Raping noncombatants has a "long historic precedent," too. Our goal should be to be better than other nations.
I know, I know, your vision of law applying to war also applies only to us.
Our enemies won't be decent just because we demand it. We can only demand it of ourselves.
It would be a lot less embarrassing to the Administration then having civilian courts let the detainees go.
Do you have a link to any documented retaliation?
IIRC, while retaliation was discussed, it was rejected, though the Fort Pillow incident did lead to a closing down of prisoner exchanges.
I know, I know, your vision of law applying to war also applies only to us.Oh, knock it off. It applies to everyone. Al Qaeda beheading folks, attacking civilians, and torturing, besides being truly disgusting and abhorrent, are the epitome of war crimes.
And let me be perfectly clear. We're better than Al Qaeda. I thought that was the entire point of my argument.
That is why they get military status hearings. 1) Did you make war? 2) Are you an EPW under the conventions? A yes to 1 and a no to 2 gets you held at Gitmo as an unlawful combatant.
Because America is nice we also let folks go when they are not of any value.
Of course, what's at issue in the ongoing litigation is whether we will even attempt to determine who our "enemies" are.
If you accept that everyone at Guantanamo is our enemy, simply because people like Rumsfeld call them the "worst of the worst" in speeches, then yeah, I can understand why you wouldn't really care what happens to them.
I think that putting the prisoners on sovereign foreign soil might be enough to persuade the Court to leave the matter alone. But I suspect that, if the administration decides to close the base to moot the appeals, it won't take chances on a second round. In the president's shoes, I'd simply render the prisoners to a sovereign foreign state, such as Afghanistan, that's willing and able to hold them for a period of years while attempting (slowly) to sift the guilty from the innocent and repatriate the latter. I think that would achieve most of the administration's goals while cutting off the courts' jurisdiction.
I was arguing against the impression that some folks wanted us to round up and execute everyone we would have taken to Guantanamo.
That's not what is going on. These people are captured by US Forces or our Allies in the field, processed, and an adminstrative decision is made that they are unlawful combatants.
They then are sent to Gitmo where they get a status hearing and a formal determination that they are unlawful combatants.
Bush and Rummie are not picking names from the Kabul phone book to be arrested and sent to Gitmo, these people are captured in the field and their status is reviewed at least twice.
The Union high command decided against announcing a formal policy of retaliation for Fort Pillow. The best estimates I've seen were that about 50-100 Confederate POW's were hung in retaliation within about a month after the event, all of them by local commanders (brigade &under).
But the Union high command did publically state that evidence of any Confederate policy of murdering captured black troops would result in official Union retaliation. The Confederacy then proclaimed an "official" policy of enslaving captured black troops. In practice they tolereated a lot more murders, so Union colored regiments largely ceased taking Confederate prisoners.
Tziese,
I note that you've backed down from your contention that execution of prisoners is always criminal.
Hard cases make bad law, and war is always hard.
Us. Because "winning" entails not losing our character or tossing our morals to the wind the instant we're frightened of an enemy.
I will settle for better and winning than pristine/faultless and losing. We seem determined, however, to go down the latter path, though.
How do we "lose" to Al Qaeda? Are they going to storm our beaches and loot the Library of Congress? I consider "losing" to include "becoming too much like our enemy," and retaining our moral and ethical high ground to be a necessary part of "winning." From my perspective, then, you're openly advocating defeat, because people might get hurt in the course of winning the war. I realize that you have an entirely different perspective; I'm not trying to convert you, just pointing out that your temerity resonates very poorly with those of us who consider our nation's traditional high standards to be a necessary virtue.
I never made that contention. I contended (and still do contend) that "take no prisoners" is criminal, and that beheadings/torture/attacking civilians is criminal.
We should. We are making a real mistake in not doing that. Post WWII American forces had a lot of problems in Germany with Iraq style roadside attacks. Wires across the road were very popular as were ambushes.
We (America) gave each German captured a short hearing in front of a commissioned officer to determine if they were unlawful combatants. If the answer was "yes" then they were executed in short order.
German attacks ended quickly and by 1952 the US Constabulary (occupation troops) were no longer needed at all.
Do you sleep better at night believing that someone of unknown provenance handed over to us by the Northern Alliance was "captured by our allies in the field"? That still doesn't make it true. I can't even imagine what "field" you think you're referring to; maybe you're from the school that says the world is our battlefield.
They then are sent to Gitmo where they get a status hearing and a formal determination that they are unlawful combatants.
Right. Because cases like Hamdi forced those hearings to be held. And now that evidence like the Abraham affidavit is coming out to suggest that those hearings are little more than a joke, there's more litigation.
The fact that we routinely let people go after years of confinement suggests that we're hardly making a reasonable effort to ensure they're "enemies" when we first imprison them. And the fact that some of the released people have, in fact, been recaptured fighting against our forces suggests that we're not even doing a good job figuring out who to let go. We need a better process in all respects, and people who go around blithely declaring that everyone at Gitmo is surely an "enemy" are not helpful.
I know this is getting a bit far afield of the topic, but what is your source for this?
It is perfectly appropriate, and entirely lawful, to have a policy that captured unlawful combatants will ALWAYS be executed unless they as individuals cooperate with us. They have some GC rights against mistreatment as prisoners, but not against a policy of always executing them.
This was true under the GC in World War Two, when we did execute unlawful combatants merely for such status, including after the war when rooting out the Nazi Werewolves. We almost always gave them at least a sketchy trial by a miiltary court, though, but that was due to the requirements of our own Articles of War rather than any GC protocols requiring such - the GC then permitted execution of unlawful combatants on capture, or without any form of process after interrogation. The British and French did that as a matter of policy, particularly with the Werewolves after the German surrender. Well, they didn't limit it to the Werewolves either - they were much rougher on the German civilian population than we were.
The United States did not sign any postwar GC protocols concerning treatment of unlawful combatants. The only legal limitation on our execution of unlawful combatants on capture lies in our own statutes, and AFAIK those statutes do not prohibit retaliatory executions.
If they acted quickly and without notice and tranferred the detainees to foreign soil and turned them over to another government, I suspect the U.S. court would be powerless to order the military to unwind such a move, even if it was an end-run around a case the courts.
TZiese's original point was that "[d]ecreeing that you'll 'take no prisoners' is quite literally a war crime." That seems to be a substantively different point than you're addressing.
Hope we don't get to find out. There are people who've been locked up with no due process for 5, going on 6 years now. It is time to end this farce and hold real hearings -- the kind that you or I would be entitled to -- at which the feds have to put up or shut up as to their basis for holding these people.
Let's get the real terrorists tried, convicted, and sentenced, and the chaff set free -- all in a court of the United States, as a BELATED example of how the world's greatest judiciary does things.
I'm not saying that's not true, but this is a different proposition from "take no prisoners."
It is criminal to kill combatants (unlawful or not) who are attempting to surrender. They may be found guilty of crimes against humanity or crimes against peace later on, at which time they can serve the appropriate sentence or be executed. "Take no prisoners" necessarily entails shooting anyone attempting to surrender. (Unless you take the absurd proposition that this particular version of "take no prisoners" entails simply bypassing enemies who are surrendering.)
Summary execution most certainly is. And the types of Military tribunals set up after World War II (which is basically what the president opted for with the current system for detainees in the GWOT) were seen as fundamentally unfair by both the U.S. military and the international community as a whole. That was the impetus for the development of the UCMJ, which has much more rigorous standards of due process for all classes of detainees, regardless of their status. In fact, the uniformed military argued that the current UCMJ was perfectly adequate to deal with the detainees from Afghanistan but the Administration sought to return to the flawed and unfair system that existed before the UCMJ.
????
What would you call the 4th Geneva Convention--which forbids summary executions?
That is absolutely false and most certainly a war crime. Are you people lawyers or just a bunch of fascist thugs?
So you are saying we are allowed to violate our own laws? And even though you are wrong about Geneva, how about the International Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment where the Senate, in ratifying the treaty, specifically cited using the threat of summary execution to extract confessions as a form of torture?
I don't know, of course, because Cheney does not share his thoughts with us.
I do note that last week, when the stories leaked about lesser administration figures (such as the secretaries of state and defense) were considering proposals to close the island prison, CNN's Suzanne Malveaux reported that one possibility under consideration was for most of the Guantanamo detainees -- apparently those who would not be charged and tried by commissions -- to be sent to a new prison in Afghanistan. That would leave about 100 who would be transferred to the United States and eventually charged.
If that happened, the adminstration next would try the ploy that the MCA still strips habeas jurisdiction from these aliens. Which argument would almost certainly fail, but would burn more time.
(Meanwhile, there is an outside chance that Congress will act to close Guantanamo as an appropriations rider, which I suspect has more chance than the direct legislative efforts to undo the habeas-stripping provision of the MCA.)
The ultimate question would eventually be whether the military process used today and sanctioned by the DCA is a constitutionally adequate substitute for habeas. Even if the detainees get habeas review, that does not mean these non-resident aliens have due process rights. The actual process they might get could be very abbreviated. And if only the 100 baddest cases are in the United States to get such process, that any of them would actually get relief is a fantasy.
In any event, even though today's development may re-expedite things some for the detainees, the administration can probably run out the clock. One way or another, this will probably become the next president's problem.
But given the narrowness of his reasoning in Hamdan and the deference to Congressional intent I suspect Kennedy will be perfectly willing to side with the 4 righties in an opinion that eviscerates Rasul.
So I want to encourage the righties gloat - and let's praise all those who think war crimes are cool. (this is sarcasm in case it does not come through).
Best,
Ben
This is a far cry from carpetbombing cities, summary executions, and "take no prisoners."
Here's a hypothetical question. A car bomb plot was just disrupted in London. To kill the terrorists, we decide to carpetbomb the area of London where we suspect the terrorists are hiding. Would this make it more or less difficult for the US and its allies to win this war?
If it would be more difficult, why would carpetbombing areas of Baghdad or Tehran be any different?
There's one problem with that -- usually you actually surrender to something or someone? How exactly would this work in the case of Muslim terrorist, forced conversion of everyone in the world to Islam?
You have to be kidding. We cannot possibly 'lose' this war under any normal definition of war, which is why this isn't a war. They're going to keep bombing things no matter what. There just can't be "victory" against a tactic. We arrest the ones we catch and try them and let them rot in jail or execute them, and if a nation harbors these clowns and lets them do their thing there, we crush said nation. That's about all we can do. But I can't see how we 'lose', given the only way the radical element of Islam will quit is if the entire world converts to Islam.
Essentially, this is just going to be a game of whack-a-mole until either these idiots get sick of bombing or the other Muslims get serious about weeding out the criminal element of their religion. Color me not optimistic.
The correct course of conduct would have been to simply ignore the courts. The Constitution gives war making and national defense powers solely to the political branches, Congress and the President. No one should have appeared in the courts on behalf of the government and all orders/writs should have been tossed in the trash.
Once the courts got tired of having their authority flaunted, they would have stopped this interference.
Yes, I know that such a course would have been "illegal". The President, in my humble opinion, would have won the "constitutional crisis" though. Perhaps not, then someone else would be President. Better that than this farce.
As I said, far too late in the game now.
You could try Google. I'm at the office and don't have access to my books at home. William McNeill's multi-volume history of the Civil War probably has it, with citations to sources.
Bob from Ohio: The correct course of conduct would have been to simply ignore the courts. * * * Yes, I know that such a course would have been "illegal". The President, in my humble opinion, would have won the "constitutional crisis" though.
This has been an exercise in parataxis.
We just don't see enough suggestions along these lines on the VC any more. More like this, please. It's awesome.
Why give up now? Bush and Cheney still have 571 days to execute such a coup, they have the full-throated support of "patriots" such as you, and they have all the guns and bayonets.
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is the "4th", only forbids summary execution if AQ "accepts and applies the provisions thereof."
The United States has never said it would be bound by the 1977 Protocol which would provide for a hearing first, much less signed the Protocol.
With respect, I think that's not right.
From the Fourth Geneva Convention:
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
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.
"In the territory of one of the High-Contracting Parties" includes Cuba, Afghanistan, Iraq, and the United States. All are signatories.
Common Article 3 puts obligations on ALL contracting parties, including the US, with regards to all conflicts not between nations, including the war against Al Qaeda. Persons captured are "hors de combat," via detention, regardless of the legality or illegality of their combatant status. Their summary execution is flat illegal.
What next will you argue for, secret police to take away the liberal obstructionists?
The military ships the prisoners to [somewhere else]. The court dismisses the case. The military brings the prisoners back. The court takes the case. The military ships the prisoners...
You get the idea.
Now you know why I post under a pseudonym.
Let me get this straight. You "like the bloodthirstiness" of carpetbombing the capital and largest city of our greatest cultural and military ally, killing untold UTTERLY INNOCENT civilians, in the attempt to kill a few would-be terrorists who failed in their mission?!
I quite literally don't know how to respond.
"Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."
AQ members are not members of armed forces.
Further, "Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations."
Under your argument, Iraqi government forces would be covered, but not AQ nor Taliban forces. Under your argument, I am not sure of the status of Sadr forces. I think it would depend on their organization structure, uniform items, and orders from their leader as to following the Conventions.
The WHOLE POINT of this language is NOT to create a "neither/nor" category of person who is unprotected under the Convention. The Nuremberg Trials gave lots of examples of classification as a tool of mass murder.
Any reading seeking to create such a category is automatically suspect.
But in any event, the operative phrase is "Persons taking no active part in the hostilities." This phrase is later clarified as including "members of armed forces who have laid down their arms and those placed hors de combat...."
Common Article 3 makes no sense if it states that only members of the opposing armed forces, and not ordinary civilians, must be treated humanely.
Nope. The majority were "captured" by Afghan forces (usually warlords) and then sold to the US for bounty money. We have only the word of those getting lots of money for prisoners. Given the number that actually have been freed, "the worst of the worst" is a bad bit of hyperbole.
The Supreme Court of the United States, in Hamdan v Rumsfeld, settled the question about which you continue to sputter: The detainees we are holding in Guantanamo are covered by Geneva Common Article 3. It was in all the better papers.
And just to introduce another fact into the discussion, which is at variance with the imaginary universe you describe, the CSRT tribunals have not found anyone to be "unlawful combatants," and are not authorized to do so. Rather, the CSRTs have found detainees to be "enemy combatants."
Let's see where we do agree. AQ members are not EPWs, otherwise they would have uniforms and barracks as good as American troops upon capture. Further their officers would have BOQ quality suites and be drawing US pay.
They are not contracting parties.
The 4th comtemplates contracting parties and only those "adhereing" being bound.
Thus, our point of disagreement is whether AQ members are "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause".
I cannot say that I think they are.
Can you explain more about your position in the 1/2 hour I have before I start my holiday weekend, or should we agree to disagree?
Common Article 3 applies in conflicts not between two states, such as our present War on Terror. Or, indeed, during civil wars or rebellions entirely within one state.
You claim that Common Article 3 only protects contracting parties.
There are no nonstate contracting parties. To what sort of situation do you think Common Article 3 applies?
Myth. There was almost no "insurgency" in Germany whatsoever.
WikiPedia has an overview of the Ft. Pillow events, and indicates that the existing historical record has some unresolved ambiguities. There are no doubt far more detailed sources available even on the intarweb. But the article is informative.
Where did you find this "deserved to win" nonsense?
I'm rather liberal but I'm fully aware that the only way to minimize terrorism (which is the best we can realistically hope for) is to have all governments of the world actively helping us in the battle to accomplish that minimization (well, that and get our human intelligence forces back up to snuff, we probably need a lot more people in that area, ones who can infiltrate these criminal organizations). If someone doesn't want to cooperate, and in fact goes the other way and openly allows them to operate there, then I don't think action against those countries is completely off base. The main thing is to show said activity with real proof. We blew enough credibility with Iraq, it's probably best we don't make that mistake again.
South Carolina gulag vs. Cuban gulag. I don't think they'll notice much of a difference.
Terror Plot Involves Islamic Extremists; Police Have 'Crystal Clear' Picture of Suspect
At some point enough people might realize that war is not peace, and that the rules of war should be applied to non-citizens instead of the laws of peace.
Or as, James Taranto noted, the laws of peace will be modified for citizens, to the loss of liberty and freedome for all, to deal with foreign terrorists.
Better music in Cuba.
Meanwhile, Mr. Holsinger is astonished that anyone thinks that criminals who try to blow people up should be dealt with by ... police?
It depends on your definition of "lose". In terms of our enemies, no. There the only question is how many Arabs will survive the West's crushing of Islamic extremists. Lee Harris said on this point:
The only way we can "lose" this war is to give up our freedom for security. The fastest way to do that is to stop fighting the enemy abroad, retreat here, try only domestic security measures, and fail at those only to give up our freedom in the process.
And THEN we will destroy our enemies abroad, but by then we won't be Americans anymore.
As an example, we may be a more credible, effective, and forceful ally of Israel is we cultivate a reputation of scrupulous adherence to applicable and valid domestic and international law and of dogged commitment to the rights of all persons, even our enemies. If, however, we allow ourselves to be typecast as enemies of all Islam, rather than as enemies of murderous zealots (and Guantanamo and Abu Ghraib make it too easy to mischaracterize us), then we lose the high ground that helps us justify our policies on the global stage. I seem to recall something along those lines being Al Qaeda's goal in attempting to spark a general war between the West and Islam.
That's all very abstract, of course, and worth exactly what you paid for it. You have, however, convinced me that a "loss" is possible in the same sense that a "loss" is possible in traditional wars. I believe that unlawful treatment of detainees takes us closer to those loss conditions, and that the worst possible loss would be to abandon our commitment to legal ideals out of fear.
I'm not sure about whether we "deserved to win", either, that is pretty subjective. But most Japanese and Germans are glad we did, they realize their lives are better for it.
You're right, many we release return to the battlefield, as many as 10% of them are confirmed as such I understand. That would indicate many still at Gitmo are baaaaad folks, if they're the ones we're actually still holding, don't you think?
We executed plenty of folks in Germany, and in the Pacific War, too. The military justice was swift. You get a hearing. You get a judgement. Then you get a rope. That's why Bush has stalled this so long. If he'd put those guys in front of a panel of uniforms any time within the first year or so... when the uniforms were first being bloodied out in the field... there woulda been some execution sentences handed down, make no mistake... perhaps hundreds of 'em. Far less chance of that now... which was the whole intent. You can't let 'em go, and you can't put 'em in front of a panel, so you wait... and take the heat, which is what we've been doing.
As for those pining for Congress to shut down Club Gitmo, don't hold your breath. My Senator, Stabenow, cozied right up to Bush on that tribunal bill last year. Our good liberal senator wasn't gonna side with Osama in the middle of a reelection campaign, you understand. You BDSers can whine all you want about that, but I'll count all the demopublicratican votes, to determine where this all truly stands. I'm bettin' that Club Gitmo will remain a nice little sunny spot for Osama's crew to have their teeth fixed, glasses fitted, corrective surgeries performed, and weight gained from the politically correct diet.
Oh, and we ain't taking many prisoners now, if you notice. Wonder why? How's that whole Geneva/SC circlejerk working out, gang?
Hey, I was an occupation troop (Besatzungstrupp) in Berlin between 1967 and 1970, and I have a U.S. Army of Occupation medal to prove it. I like to think that I was "needed," even though I and my fellow Besatzungstruppen didn't get to participate in the traditional occupation, uh, occupations (rape, pillage, plunder, etc.) Cold War is hell.
Many who deserve to win, lose, &vice-versa.
Happily, we defeated the Nazis, so that Volokh commenters are free to emulate them in word if not in deed. See above, passim.
A couple of thoughts:
1. A number of prisoners have district court orders requiring notice (usually 30 days) before they are removed from Guantanamo. I wouldn't expect DOD to disregard these, and so the midnight removal idea isn't likely. Releasing the Boumediene petitioners -- who were mostly arrested in Bosnia, by the way, not on some battlefield -- might moot the case, but the next group is right behind them in the queue.
2. Outsourcing detention isn't going to moot the cases. It'll just make it worse for the government, because it will be unable to control access to the prisoner.
3. Closing the prison is an obvious solution to the black hole problem, but doesn't get the government out of its bigger problem: that it tortured and abused a huge number of people who knew little or nothing about anything. They'll have a right to habeas if they're brought to the US, and some very ugly truths will come out.
4. Many of the prisoners were civilians, and many others were low level people. There's no real risk -- certainly not of 'losing the war on terror' that attaches to releasing Osama's driver, or a Taliban private, much less some sheep trader. Anyone who thinks there are no such people hasn't been looking at the CSRT and ARB records.
5. The high level people should be tried in Leavenworth, or the S.D.N.Y. So what if KSM gets to say his bit? Are we really afraid to put the guy on trial?
If the President defied the first (lower) federal court and he was not impeached and removed from office, then Congress would have ratified his actions.
Don't make a fetish about the judiciary or judicial review. Even the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes.
The "political question doctrine" appears nowhere in the Constitution.
Reading this thread, I am inclined to comment again that I suppose this is the level of support one has to expect for the Administration's lawless policies when their approval ratings are down to 30%.
First, David Rivkin was interviewed by Jim "Gee Whiz" Angle, breathlessly reinforcing his favorite and fallacious strawman: that if Guantanamo is closed, all the detainess will immediately be treated as civilian criminal defendants with full due process and almost certainly released. Fred "Barney Rubble" Barnes later concurred in this weighty legal judgment. Morton "Waterboarding is Cooler than Wedgies" Kondracke averred that he trusts John Roberts, Samuel Alito and Anthony Kennedy to find a middle ground.
FWIW, Charles Krauthammer opined, as if in response to Orin's question above, that Bush will close Guantanamo this summer to "preempt" the Supreme Court.
There are no illusions about the regressive seventh century enemy we face. This enemy expects and demands that non-muslims pay a tax and keep their hands off muslims. It also believes that it is authorized by no less than God to execute our troops. Indeed, our execution or maltreatment of its 'muslim' warriors makes it imperitive that ever more terror attacks be launched against us.
The way to deal with such a threat is to ignore its divine pretensions and judge it by our well established civilian standards for such dellusional actions. If need be, send them to prison for life. Some of them need to be in the prison mental health ward.
Treating them with special procedures is a mistake for they are but common criminals-- not all Muslims--just this group. Such treatment makes them feel specially effective warriors and celebrate as martyrs mentally disturbed or misguided delusional and destructive operatives.
And our friends in Saudi Arabia need to shape up and grow up into a responsible state instead of turning out such destructive forces. This should be the focus of our foreign policy.
Many here forget that the AQ approach to the West was also the approach we funded to push out the Soviets from Afghanistan. We just left the battlefield without unloading and holstering this weapon becauase 'state-building' was not our forte. At this time the Court has an opportunity to show that at least torturing prisoners is not our forte. Maybe nation building needs to be our forte and we should do the job right this time.
"The biggest problem which has emerged in the last several months in this war...much more difficult than the counter-insurgency in Iraq...is an overly aggressive arrogant and imperialistic attitude of the judiciary, that becomes engaged in scrutinizing military decisions to a level unheard of in our political and constitutional history."
We executed plenty of folks in Germany, and in the Pacific War, too. The military justice was swift. You get a hearing. You get a judgement. Then you get a rope. That's why Bush has stalled this so long. If he'd put those guys in front of a panel of uniforms any time within the first year or so... when the uniforms were first being bloodied out in the field... there woulda been some execution sentences handed down, make no mistake... perhaps hundreds of 'em. Far less chance of that now... which was the whole intent. You can't let 'em go, and you can't put 'em in front of a panel, so you wait... and take the heat, which is what we've been doing.
We won with a segregated military during WWII as well. We weren't saints back then. Nor are we saints now.
Yes, you can put suspected terrorists in front of a panel. Just as long as it's legal.
Also, I'm not sure I'd endorse a system where the due process is described as "You get a hearing. You get a judgement. Then you get a rope." That's not justice. That's a show trial. If you're arguing against Geneva, lobby Congress to withdraw from the treaty. If you don't like the UCMJ, lobby to change it. But until that dark day, I'll continue to insist that our nation continue to be a nation of laws, not of men.
On Senator Stabenow "side[ing] with Osama," with regards to shutting down Gitmo, do you also agree that the Defense Secretary, the Secretary of State, among others, have sided with Osama? After all, Gates and Rice also believe Gitmo should be closed. And if our two highest cabinet officials have truly turned traitorous, we're in much worse shape than I thought.
Also, I had to look up what "BDSers" meant. I assume you mean "Bush Derangement Syndrome." I'm not deranged. Nor do I hate President Bush. Indeed, recently, he's done pretty well. I thoroughly endorse the expansion of the PEPFAR anti-AIDS package. I endorse the aims of NCLB. In Texas, Governor Bush was great on education, including endorsing the "10%" system for college admissions. I like where his heart is with regards to immigration. I fully support the invasion of Afghanistan. Though I did not support the Iraq war initially, I believe the surge should be allowed its chance. I support General Patreus. I believed that Roberts and Alito should have been confirmed, though I disagree with some of their views. Most of all, President Bush seems to be a personally decent guy. In person, he's tolerant of gay and lesbian Americans (politically, it's slightly different.) Additionally, he's beyond reproach in terms of racial and gender tolerance, assembling a very diverse cabinet without personal congratulations or much fanfare.
Indeed, it would be perfectly legal if we were to simply detain all Al Qaeda members (and all suspected Al Qaeda members) for the duration of hostilities, as long as we treat them humanely.
No, I'm not deranged. I don't impugn your motives. Please don't question mine.
Don't make a fetish about the judiciary or judicial review. Even the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes. Don't make a fetish about the judiciary or judicial review.
Call me old-fashioned, but I am amazed by the contempt for the rule of law embodied in such remarks, which ignore Marbury and a couple of centuries of precedent and history. Thankfully, no justice – regardless of ideology or philosophy – agrees with such drivel. Dick Cheney just might, and that is something worth worrying about for the next 19 months.
You have an opinion of what the UCMJ says, and perhaps it's correct, but others disagree with you on that. We know we whacked folks in WWII, and I'm not convinced that the military hasn't the authorization to do that now. That's why Bush kicked the can down the road, and I believe that was the tough but smart road.
But one of the chief problems with giving the GWOT detainees the process due to US civilian citizens is that evidence acquired by certain means of intelligence (electronics, spies) cannot be made public without compromising those means of intelligence. In a conflict where the enemy operates almost entirely in the shadows and strikes without warning, intelligence is the most important countermeasure we possess. Civilian due process would force us either to show our hand in terms of intelligence, thereby severely compromising our ability to prevent terrorism, or to simply release the detainees.
I acknowledge that the detainees do presently face a process that is stacked against them, that has far fewer safeguards than we would consider acceptable in a traditional legal proceeding. But granting them civilian due process is, from a national security perspective, simply foolhardy.
If the choice is between imperiling the security of the United States with regard to terrorist attacks or denying detainees civilian due process, I'll go with national security every time.
(I have enough confidence in our armed forces, moreover, that I doubt the characterization of the detainees as poor innocent shepherds caught in the maw of an undiscriminating US war machine is at all accurate.)
Judge Posner(!) would seem to agree.
Contempt for the rule of law? This is what he said: "the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes. Don't make a fetish about the judiciary or judicial review."
How is that contempt for the rule of law? Today's decisions depend on how Justice Kennedy is feeling.
I'm with Bob from Ohio on this one. The President will have to tell the Court to #**@ off if we're to win the war on terror. Let them whine. He won't be impeached, and the Court will finally learn some humility.
I don't expect this Court-worshipping blog to understand such sentiments. But then again, just because you dress up some unelected snobs in black robes doesn't mean you get to call every word that issues from their mouths the "Rule of Law," especially when their words are entirely arbitrary.
The following was written by CJ Rehnquist and joined by Justices O'Connor, Scalia, Kennedy and Thomas in United States v Morrison
Of course, John Roberts and Samuel Alito weren't around for that case in 2000. But anyone who thinks they would disavow the doctrine of judicial review and supremacy simply does not know them. This is the mainstream conservative position.
If George W. Bush defied a court order as suggested by commenters such as Bob in Ohio and Daniel950, the President would get a 9-0 smackdown without delay.
And by this definition, the folks in the WTC are all winners. Great critical thinking skills... I hope you're in law school, we can sure use a few hundred more of you to ensure a steady flow of corpses who will never again be in danger of becoming too much like the enemy.
The folks who died on 9/11 certainly aren't losers in my book. But come on, now.
"The biggest problem which has emerged in the last several months in this war...much more difficult than the counter-insurgency in Iraq...is an overly aggressive arrogant and imperialistic attitude of the judiciary, that becomes engaged in scrutinizing military decisions to a level unheard of in our political and constitutional history."
That's absolutely astonishing. The last three months have been the deadliest quarter for U.S. troops since the war began more than four years ago, Republicans are defecting from Bush's war plans, support for the war in U.S. opinion polls continues to sink, and the "judiciary" -- headed, we were certainly reminded this week, by a Supreme Court with a solidly conservative majority -- is a much bigger problem than the counter-insurgency in Iraq?
Here's a study from Berkely on post war justice in Germany.
The main point made right away is that the British favored summary execution but the United States convinced them to give the Nazi's trials. The majority of these trials did NOT result in the death penalty and in half the cases where it did, the sentence was commuted. In total, the US sentenced 450 Germans to death AFTER giving them a fair trial with representation.
In contrast, by some estimates, the Soviet Union summarily executed 45,000 Germans in occupied East Germany. Perhaps Happyshooter is confused. He can't tell the difference between United States history and commie history.
Yes, trials in front of military tribunals. Not in Article III courts.
The Supreme Court of the United States, in Hamdan v Rumsfeld, settled the question about which you continue to sputter: The detainees we are holding in Guantanamo are covered by Geneva Common Article 3. It was in all the better papers.
I may be wrong, but I'm pretty sure that particular bit was in the part of the plurality opinion Kennedy did not join. Which, under Marks means it was not a holding of the court.
Look at Happyshooter's post above. This is what he claimed we did in Germany.
That's not even a military tribunal. In addition, everythign I've been able to find says we followed the letter of the Geneva Conventions in dealing with POWs.
In fact, in 2004, the Germans issued a formal thank you to us for how we treated their combatants.
... The President will have to tell the Court to #**@ off if we're to win the war on terror. Let them whine. He won't be impeached, and the Court will finally learn some humility.
I couldn't ask for a better example of contempt.
Clusters of such comments often seem to pop up in legal blog threads when this administration faces a serious setback in the courts. I do wonder if White House operatives find it in Bush's political interest to make deniable threats. Or maybe these particular bombthrowers are Giuliani provocateurs, stirring his natural base.
Perhaps I am wrong, and such a crass anti-legal attitude just springs up in the population like weeds after a rain. But why would such persons spontaneously visit legal blogs in such cohorts?
I don't think a single person here disagrees with this. The question is not the title of the court, it's whether they provide fundamental fairness.
I actually think that unfortunatley there are plenty of people who disagree with that. In any event, under Quirin, neither "fairness" nor any other issues are appeallable to federal courts.
A number of commenters above would do well, in my opinion, to refresh themselves on the US history recounted by the Court in Quirin.
The administration has been playing this need for secrecy card (in a number of different ways) for a some time now, but is actually true? Nobody has yet to explain exactly why civilian courts aren't capable of developing methods to protect these sources of intelligence- can't the court just engage in some in-camera review and editing to protect this source? (surely I'm simplifying, but is it really completely unfeasible?)
Secrecy also insulates the administration from review by the other branches and the public and thus allow a number of injustices that probably wouldn't have occured if there were more transparency in the process in these cases. Is the alleged risk to intelligence really worth this?
Depends on who you ask. That's the thing about democracy. The people are sovereign, not the Court.
The Court is all about one thing, and one thing only: expanding its own power. Thus, we don't know what the rules are for Constitutional governance in this country until Justice Kennedy decides to make up his mind.
If that's not the rule of men, I don't know what is. The strange thing is that if you stick some elitist in a black robe and give him a job for life, people are dumb enough to call the frivolous whims issuing from his mouth the "rule of law."
Do you have the same confidence in Afghan bounty hunters? Pakistani police? Bosnian police? What if, say, the Bosnian authorities decide that they made a mistake, and there isn't sufficient evidence? What if their courts order the release of prisoners for lack of evidence? Do you trust that? What if the CIA picks up people at, say, the Macedonian border and flies them to prisons in Afghanistan, because they have names that are similar but not identical to people with names on a watch list?
What if our government agrees to characterize dissidents from a certain country as terrorists -- even though they've never done anything remotely like terrorism nor taken any position against the US -- in exchange for that country agreeing to abstain from a certain UN security council vote? Are you willing to trust Chinese diplomats?
What I don't get is why people are so afraid of these relative nobodies* that they're willing to ditch so much of what makes our system good in order to avoid facing the real possibility that a bureaucracy makes mistakes.
* Obviously, everyone is somebody to his/her family and friends. I mean in the context of a struggle against violent threats to US lives.
Gildas: I may be wrong, but I'm pretty sure that particular bit was in the part of the plurality opinion Kennedy did not join. Which, under Marks means it was not a holding of the court.
The way I read it, that holding was found in Parts VI through VI–D–iii, which were included in the opinion of the Court. The last of those enumerated parts begins, "Common Article 3, then, is applicable here …"
I'm not sure that per Quirin is as clearly on Bush's side as you think. Consider the definition of "unlawful combatant in that opinion.
So what makes someone an unlawful combatant is basically the way they fought, not identifying themselves as the enemy in violation of the Laws of War, not whether the cause they fought for was legal. The guy who pretends to be an Iraqi civilian and then attacks would qualify, but does the guy who participates and is captured in a stand-up fight?. It's not at all clear that Bush is making this distinction and I think that's the significance of the military lawyer's charges recently that the administration was providing no real process for determination of status.
The Court also refused to agree that the enemy combatants should be refused access to the court to determine the Constitionality of the tribunals themselves and notes the makeup and character of those tribunals as constituted in determining their constitutionality. So the Court could easily come to the conclusion that the military tribunals as constituted then were legal and todays are not because the same legal fairness that existed then is not in place now.
The Court also indicates that there are a class of offenses that are only triable by jury under the constitution and therefore military tribunals could not be applied in those cases -- even if they were unlawful enemy combatants.