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Thoughts on the Oral Argument in Boumediene v. Bush:
I just returned from this morning's oral argument in Boumediene v. Bush. Here are some thoughts on the argument and where the Court might go.

  Overall, I thought it was a frustrating argument. The problem, I think, is that 8 of the 9 Justices have already expressed a view on whether Guantanamo Bay is part of the United States for habeas purposes (5 yes, 3 no). So there wasn't much that was fresh to debate there. Then, once you get past that threshold question, you run into the uncertainty of knowing what to do next. It's easy for the Supreme Court to tell the D.C. Circuit that there habeas rights at Gitmo. But it's really hard to get into the adequacy of of the DC Circuit's proceedings when we don't really know what those proceedings are or what rights those proceedings might protect. Indeed, these were the prudential reasons why the Court initially lacked the needed four votes to grant cert.

  As a result of those difficulties, neither Waxman nor Clement seemed to get traction in their argument. There was a lot of individual venting by Justices with strong views. Justice Scalia took on Waxman, and Souter took on Clement, each Justice expressing their frustrations with the positions taken by the other side. But it wasn't clear if either of these exchanges were at all relevant to where the Court might go. (Waxman even made some subtle jokes about this, making clear that Scalia's questions expressed his concerns but not those shared by a majority of the Justices.)

  Justice Kennedy was unusually quiet. Justice Kennedy didn't say a word until Waxman's argument was about half over, and even then he didn't seem to take strong views on either side. He seemed to be most interested on what sort of proceedings would go on below in the D.C. Circuit or the District Court if the Supreme Court reversed; there was an interesting dicussion more generally around that same point in the argument about why the D.C. Circuit has been so unusually slow in deciding Guantanamo-related cases. But on the whole Justice Kennedy didn't seem particularly worked up about one side or the other.

  What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.

  UPDATE: You can now listen to the argument yourself via C-Span; Howard's post has the link. Also, Marty Lederman offers his quick take here.
Anderson (mail):
In terms of Marty Lederman's analysis from the Federalist Society debate, it sounds like Prof. Kerr expects the Court to answer "yes" on (1) and punt on (2) and (3).

The first question, stated most simply, is whether aliens who are being indefinitely detained by the military at Guantanamo have a constitutional right to challenge the legality of their detention in federal court. * * *

The Court will need to answer the second question only if, as expected, it answers the first question in the affirmative. That second question is whether Congress has provided an adequate alternative process for reviewing the legality of detentions, in lieu of the habeas procedure to which the petitioners would otherwise be entitled. In other words, does the appellate procedure established by the Detainee Treatment Act and Military Commissions Act "providing for a limited review of Pentagon detention determinations in the Court of Appeals for the District of Columbia Circuit"give the petitioners all of the protections the Constitution requires, or does it fall materially short of the review they would receive in a habeas proceeding? * * *

The third question is the substantive merits issue that is perhaps the most important single question arising from the Bush Administration's treatment of the so-called "war on terror -- namely, has Congress authorized the Executive branch to detain persons based upon the broad definition of "enemy combatant" that the Bush Administration has employed?


It would be disappointing if they didn't rule on the adequacy of the CSRT's, but no matter what the Court rules, Bush will flout the letter and spirit, and nothing will happen until January 2009 at best.
12.5.2007 12:43pm
ejo:
after 2009, when confronted with how serious the issue actually is and that the jihadists actually are still out there and haven't disbanded due to Bush no longer being in office, expect the press and the Dems (if a Dem elected) to move on to other crisis. I expect actually having responsibility if something goes wrong will both sober and enlighten the Dems.
12.5.2007 1:02pm
EH (mail):
ejo: Thanks for the predictions. Who are you picking for the Super Bowl?
12.5.2007 1:06pm
wm13:
If Prof. Kerr is correct, doesn't that kind of undercut Jack Goldsmith's argument? I mean, the administration shut down (or so we hear) all or most of the secret CIA prisons, went to Congress openly and got a statute passed, but the Court still isn't going to defer to the political branches.

On the other hand, the Court seems to be mostly trying to make symbolic statements, when you look at how long these detainee cases drag on. When an important political actor, like the New York Times, has a problem, the wheels of justice move at a rather different speed. Is there someone with a less cynical explanation of what the Court is doing?
12.5.2007 1:08pm
Westie:
I thought Lederman was exactly right in his quick comments: Waxman absolutely demolished Clement's "the procedures are adequate" argument with his short anecdote.
12.5.2007 1:09pm
Bart (mail):
Anderson (mail):

In terms of Marty Lederman's analysis from the Federalist Society debate, it sounds like Prof. Kerr expects the Court to answer "yes" on (1) and punt on (2) and (3).

It would be disappointing if they didn't rule on the adequacy of the CSRT's, but no matter what the Court rules, Bush will flout the letter and spirit, and nothing will happen until January 2009 at best.

How can they without a record?

The lower court will need to conduct a factual hearing, much of it in chambers for security reasons.
12.5.2007 1:10pm
Bart (mail):
I thought Souter's question implying that the Constitution provides as definition of a POW and that definition was adopted in the Geneva Conventions was amazing. Exactly where does the Constitution provide this definition and when was the GC ever based on our Constitution?

If Souter is this far in left field on these facts, it is scary to contemplate his thinking on the other issues before the court.
12.5.2007 1:14pm
Oren:

I expect actually having responsibility if something goes wrong will both sober and enlighten the Dems.


I suppose we can deduce that holding at least one provably innocent man for 6 years doesn't count as "wrong" in ejo's mind. He must be quite the ethical gymnast, as it were.
12.5.2007 1:14pm
OrinKerr:
Westie,

Why?
12.5.2007 1:16pm
IB Bill (mail) (www):
I think it's been pointed out here and elsewhere that when a case contains elements that would either benefit or hinder the legal profession, the legal profession wins, regardless of the merits of the underlying case.

A group of lawyers are going to decide (1) whether more lawyering will be done [that is, trying the detainees' claims in federal court], or (2) that less lawyering will be done [not trying the claims].

It's a no brainer when you look at it like that.

And I'll happily admit to being wrong if it goes that way.

BTW, I have no idea how to solve this particular problem with our justice system.
12.5.2007 1:26pm
ejo:
I'll take you up on those mistakes. Juries in our country make egregious mistakes-do you propose that we eliminate the jury system, too, based on those mistakes, oh ethical guru? I happen to think that extending the power of lawyers to control what we do in wartime will hamper our ability to fight and win-I think our civilian courts expanding their powers to such situations will hurt the courts, given their lack of experience, and our ability to fight. historically, it appears I am correct in that our judicial ancestors didn't feel they had such power. I don't think FDR went hat in hand to the Supreme Court to beg for permission to conduct a war. Of course, he was, in today's language, a warmonger and fascist.
12.5.2007 1:33pm
patriot concerned about american security:
The fact that the Supreme Court is even considering this is a disgrace. The Supreme Court does not have jurisdiction over foreign policy and national security. Those in Gitmo have no rights. They are enemy terrorists who are lucky we have not executed them yet.
12.5.2007 1:33pm
AF:
BTW, I have no idea how to solve this particular problem with our justice system.

This guy and this guy seem to have figured out how.
12.5.2007 1:35pm
IB Bill (mail) (www):
AF: Yeah, I didn't want to go down that road.
12.5.2007 1:41pm
Point of Fact (mail):

Westie,

Why?


Orin Kerr, pimp-slapping fools since 1979.
12.5.2007 1:52pm
Westie:
Orin,
Kennedy asked a question about sending the case back to the DC Circuit for review of the adequacy of the established procedures. Clement discussed an answer to that question, but also spent quite a bit of time discussing how there was no need for that, since the procedures in place were already quite accurate and sufficient.
Waxman presented a short and sweet anecdote that completely undercut Clement's assertions and the actual adequacy of the current procedures. Essentially, Waxman pointed out that (because of the presumptions re evidence in place, and lack of access to counsel) serious errors are being made in the CSRT hearings, and that the prisoners are entitled to a factual hearing where they can present evidence.
You need only listen to the last 5 minutes of the oral argument to hear Waxman's rebuttal and the anecdote (or see the transcript when it's available).
12.5.2007 1:53pm
Ben P (mail):

On the other hand, the Court seems to be mostly trying to make symbolic statements, when you look at how long these detainee cases drag on. When an important political actor, like the New York Times, has a problem, the wheels of justice move at a rather different speed. Is there someone with a less cynical explanation of what the Court is doing?


I think you're being overly cynical, things just take a long time.

I think it's relevant that the Korematsu case was not argued until the Fall Term of 1944, less than 11 months before WWII ended. (The Decision Issued December 18th 1944)

Given that this is now the third round of supreme court decisions on this topic in 7 years I think the pace isn't overly slow.
12.5.2007 1:54pm
TMac (mail):
Next step: The Supremes grant Constitutional rights to terrorists held by the US in Afghanastan and Iraq.
12.5.2007 2:01pm
Logicman (mail):
You need only listen to the last 5 minutes of the oral argument to hear Waxman's rebuttal and the anecdote (or see the transcript when it's available).

I heard it. Why do you think that story undercut Clement's claims?
12.5.2007 2:06pm
OrinKerr:
Westie writes:
Essentially, Waxman pointed out that (because of the presumptions re evidence in place, and lack of access to counsel) serious errors are being made in the CSRT hearings, and that the prisoners are entitled to a factual hearing where they can present evidence.
You need only listen to the last 5 minutes of the oral argument to hear Waxman's rebuttal and the anecdote (or see the transcript when it's available).
Just to be clear, I heard Waxman's rebuttal; I was in the courtroom and heard it live. But I'm not sure why it's such a powerful response to Clement. Yes, serious errors were made in the CSRT proceedings in the executive branch. But why is that relevant at this stage? The issue before the Court is whether judicial review in the D.C. Circuit is adequate and effective. I thought Waxman's point was a bit odd, in that he was trying to argue the adequacy of Fifth Amendment due process in a case about habeas remedies.
12.5.2007 2:06pm
Anderson (mail):
Next step: The Supremes grant Constitutional rights to terrorists held by the US in Afghanastan and Iraq.

And after that, they will probably grant Constitutional rights to criminals! Right here in America, no less!
12.5.2007 2:06pm
GV_:
I'm listening to the argument now. Is it just me, or did Clement do a particularly bad job at argument? He talked over several justices, didn't seem to understand that Justice Scalia was often asking him friendly question, and was obviously exasperated several times when talking with the justices. He's normally excellent. What gives?
12.5.2007 2:08pm
cboldt (mail):
Yes, serious errors were made in the CSRT proceedings in the executive branch. But why is that relevant at this stage?

.

I took the argument as being directed to the adequacy of the review process, both in the CSRT, and at any Court that the US might find has the power to review some or any aspect of the detention.

.

The government argued that the review process is adequate; which implies that new evidence, especially exculpatory evidence, or evidence that correct past errors in finding, will be admitted.

.

Waxman's "anecdote," accompanied with the legal conclusion that the new evidence would be inadmissible, undercuts the government's argument that the review process is adequate.
12.5.2007 2:16pm
PS (mail):
Where can I find a record or link to the oral argument?
12.5.2007 2:17pm
Oren:

I don't think FDR went hat in hand to the Supreme Court to beg for permission to conduct a war. Of course, he was, in today's language, a warmonger and fascist.


Of course, Germany has an actual army with, you know, troops and tanks and planes. Al Qaeda is so pathetic they can't even hold on Afghanistan let alone threaten the US in a meaningful way.

The obscene aggrandizement of actual terrorist capabilities aside, there was no need for the SCOTUS to interject itself into FDRs conduct because it was, overall, exemplary of American (and British) ideals during a time of war. That's not to say FDR didn't have his faults (internment wasn't so hot) but he stands a mile high next to W.
12.5.2007 2:24pm
Logicman (mail):

Waxman's "anecdote," accompanied with the legal conclusion that the new evidence would be inadmissible, undercuts the government's argument that the review process is adequate.



Isn't the adequacy determination a matter of comparing CSRTs to Article 5 hearings under Geneva? And didn't Congress already make that determination in MCA + DTA? And wouldn't D.C. Circuit have to establish a factual record first? So isn't Waxman's anecdote totally irrelevant?
12.5.2007 2:29pm
Logicman (mail):

He's normally excellent. What gives?



I'm not with Scalia. I'm trying to get Breyer to see my argument makes sense to him. And certainly I concur with Kennedy. Breyer and Kennedy, yes.
12.5.2007 2:31pm
Westie:
Orin,
"Yes, serious errors were made in the CSRT proceedings in the executive branch. But why is that relevant at this stage? The issue before the Court is whether judicial review in the D.C. Circuit is adequate and effective."

Clement argued the review is adequate given the present procedures. How is judicial review adequate when new evidence can't be admitted? Waxman showed that in his particular anecdotal case, it was the new evidence that was exculpatory, directly undercutting Clement's adequacy argument.
12.5.2007 2:33pm
Zombie Richard Feynman (mail) (www):
I thought Anderson absolutely demolished TMac's "Constitutional rights to terrorists" argument with his short sentence.
12.5.2007 2:35pm
George W. Obama (mail):
I thought Anderson absolutely demolished TMac's "Constitutional rights to terrorists" argument with his short sentence.

This must be sarcasm. I am pleased.
12.5.2007 2:39pm
Dave N (mail):
Oren,

Korematsu, the WWII case most are citing, had nothing to do with German troops and tanks and planes. It did have to do with American citizens being detained on the basis of ancestry without due process of any kind (you know, that "internment was not so hot" thing).

The other major WWII case I can think of, Ex Parte Quirin (1942), did deal with German soldiers, but they abandoned their uniforms (and personally had no troops or tanks or planes at their disposal). The Supreme Court ruled that these men were enemy combatants and were subject to trial before military commissions.
12.5.2007 2:50pm
ejo:
Did they know in 1943 that WWII would be concluding in 1945 such that the Courts would have had no problem with detaining someone from 1939 to that year? or, would a court in that era simply have realized that armed conflict cannot be subject to its fiats.
12.5.2007 2:54pm
alias:
Prof. Kerr, thanks for this. It's helpful to have people like you, Marty Lederman and Lyle Denniston reporting on these arguments. I don't trust the AP accounts.
12.5.2007 2:54pm
Westie:
Orin,
Verifying my recollection about Waxman's discussion will have to wait until the transcript, but I think perhaps your "odd" impression of Waxman's argument is because he wasn't talking about 5th Amendment due process. I thought he prefaced his anecdote by arguing that as originally understood, a habeas hearing regarding executive detention back in the old days (1789) meant that the detainee had a right to a factual presentation on the merits. His anecdote was meant to show that, contrary to what's currently allowed, the presentation of facts by the detainee could make the difference between release and continued detention.
12.5.2007 2:56pm
OrinKerr:
Westie writes:
Clement argued the review is adequate given the present procedures. How is judicial review adequate when new evidence can't be admitted? Waxman showed that in his particular anecdotal case, it was the new evidence that was exculpatory, directly undercutting Clement's adequacy argument.
But there are two distinct reviews here. First, there is the the CSRT review of the lawfulness of the detention. Second, there is the Article III review of whether the CSRT complied with the CSRT procedures plus any constitutionally mandated review of the detention. Was Waxman making a point about the adequacy of the first review or the second? The second is the only relevant issue for suspension purposes, at least as I understand the law.
12.5.2007 2:57pm
IB Bill (mail) (www):
I don't think Anderson demolished anything ... except an inability to distinguish between enemy combatants and U.S. citizens.
12.5.2007 2:58pm
Bart (mail):
If Kennedy creates a constitutional right to habeas corpus for foreign POWs, I will be interested in seeing exactly what precedent he will cite and whether he has the guts to expressly reverse Quirin and Eisentrager.
12.5.2007 3:01pm
OrinKerr:
Westie writes:
I thought he prefaced his anecdote by arguing that as originally understood, a habeas hearing regarding executive detention back in the old days (1789) meant that the detainee had a right to a factual presentation on the merits. His anecdote was meant to show that, contrary to what's currently allowed, the presentation of facts by the detainee could make the difference between release and continued detention.
If that's his argument, it doesn't strike me as strong one. The fact that the writ extends to a person does not mean that a particular process is constitutionally required. See Hamdi. If his point is that more procedures can lead to better fact-finding, that's certainly true. But I don't know how it's responsive to the legal issues raised in the case.

To be clear, I think Waxman's point was rhetorically effective, and may have left a helpful impression in support of his case. But I just don't see why it was a strong legal point.
12.5.2007 3:01pm
Bart (mail):

I don't think Anderson demolished anything ... except an inability to distinguish between [foreign] enemy combatants and U.S. citizens.

That false coflation which has no basis in law is the entire basis for the petitioner's argument.
12.5.2007 3:03pm
Bart (mail):

I don't think Anderson demolished anything ... except an inability to distinguish between [foreign] enemy combatants and U.S. citizens.

That false coflation which has no basis in law is the entire basis for the petitioner's argument.
12.5.2007 3:03pm
Ben P (mail):

Korematsu, the WWII case most are citing, had nothing to do with German troops and tanks and planes. It did have to do with American citizens being detained on the basis of ancestry without due process of any kind (you know, that "internment was not so hot" thing).


I think the "tanks and troops and planes" is only relevant to the extent that there was no substantial dispute over how German (Or Japanese) prisoners of war ought to have been treated.

It still bothers me that so many frame this between constitutional rights and apparently letting terrorists go free.

We are in something substantially resembling a war, and ignoring for the moment concerns about how long this "war" might last, we would be fully within our rights declaring individuals captured on the battlefield to be prisoners of war and holding them for the duration of hostilities.

We just couldn't do things like interrogate them, but do we really think someone that's been at Guantanamo for 6 years has substantive intelligence left to give us?
12.5.2007 3:03pm
Oren:
Dave N,

I explicitly claimed that FDR was not perfect -- Korematsu is, in fact, proof of that. Nevertheless, there is one thing that FDR never contemplated which was essentially indefinite detention without a meaningful trial. The Nuremberg defendants, many of which were responsible for the murder of millions, were given full trials with attorneys and evidence commensurate to the gravity of the charges and punishment against them.

Meanwhile, innocent or marginal men in Guantanamo (certainly none of them butchered millions) are denied even the most basic right to counsel, to hear and defend the charges against them and to potentially exculpatory evidence against them.

Certainly we've lost a sense of scale somewhere in the intervening 50 years.
12.5.2007 3:04pm
Oren:


I don't think Anderson demolished anything ... except an inability to distinguish between [foreign] enemy combatants and U.S. citizens.

That false coflation which has no basis in law is the entire basis for the petitioner's argument.


If the accused were indeed treated like US citizens, their release would have been ordered 5+ years ago for failing to bring them before a neutral magistrate in a timely fashion. The only logical fallacy here is the false dichotomy between full constitutional rights and zero constitutional rights without accepting even the possibility of an intermediate solution appropriate to the current situation.
12.5.2007 3:08pm
Ben P (mail):

I don't think Anderson demolished anything ... except an inability to distinguish between enemy combatants and U.S. citizens.


If only for the sake of argument, Why should someone who holds citizenship only through birth in US territory or even birth to US parents abroad who has no other connections to the US and subsequently is captured fighting on the battlefield against US forces receive more felicitous treatment than someone who is simply not a US citizen?

All you're doing is bringing into focus the practical problems of attempting to declare people who are, for all practical purposes, "soldiers" albeit for a non-state entity to be criminals.
12.5.2007 3:08pm
ejo:
I wonder, will there be a war on terror when a Democrat is elected president or will they just wither away as they did during the Clinton years?
12.5.2007 3:08pm
Oren:

I wonder, will there be a war on terror when a Democrat is elected president or will they just wither away as they did during the Clinton years?


Why shouldn't the Dems get a chance to nominate their own abstract quantities to wage grammatically inappropriate "wars" against? I mean, given how well the war on poverty, drugs and terrorism are going it seems prudent to declare war on abstract notions as often as possible!
12.5.2007 3:11pm
Bart (mail):
I wonder if anyone on the Supreme Court has thought about the outcome of treating foreign enemy combatants as criminal defendants.

There is no way the military is going to agree to become police and conduct evidence gathering investigations on the battlefield.

Rather than sending captures back to the States to be released by civilian courts to return to the battlefield, I would suggest that the military going to limit the taking prisoners for only intelligence gathering purposes and killing the rest without giving them a chance to surrender. The prisoners taken for intelligence purposes will be kept in allied prisons so the lawyers cannot say that they are under US control. Indeed, it appears that we are already placing prisoners in Iraqi and Afghan custody in anticipation that the Supremes act without thinking.
12.5.2007 3:12pm
Oren:

We just couldn't do things like interrogate them, but do we really think someone that's been at Guantanamo for 6 years has substantive intelligence left to give us?


That's a bit much Ben. Even I concede the propriety of continued detention of men who, if released, will pose an actual danger to the US or allied countries. I just differ from some folks in that I demand that this fact be actually proven in a non-trivial manner.
12.5.2007 3:14pm
Oren:

I wonder if anyone on the Supreme Court has thought about the outcome of treating foreign enemy combatants as criminal defendants.


Objection, false dichotomy. Suspected enemy combatants can be given a level of rights less than criminal defendants but greater than the current mockery of justice.
12.5.2007 3:15pm
IB Bill (mail) (www):
If only for the sake of argument, Why should someone who holds citizenship only through birth in US territory or even birth to US parents abroad who has no other connections to the US and subsequently is captured fighting on the battlefield against US forces receive more felicitous treatment than someone who is simply not a US citizen?

Took me a while to get what you're asking. The short answer: Because they're U.S. citizens. Duh.
12.5.2007 3:16pm
Bart (mail):
Ben P (mail):


If only for the sake of argument, Why should someone who holds citizenship only through birth in US territory or even birth to US parents abroad who has no other connections to the US and subsequently is captured fighting on the battlefield against US forces receive more felicitous treatment than someone who is simply not a US citizen?

Our civilian criminal system is based on the proposition that the crime is already committed and it is better to forego punishing ten guilty people than to punish once innocent.

However, war is an ongoing mass murder which only ends when the other side is dead, captured or surrendered. In a war, is it truly better that we release ten enemy combatants back to the battlefield to kill hundreds of civilians and troops or to keep them detained along with one innocent?

On the battlefield, we accept that we will accidentally kill an occasional civilian in the crossfire in order to kill the enemy and end the war. This brutal logic applies to captures as well.
12.5.2007 3:19pm
ejo:
I wonder if those in the WTC considered jihadist terror an abstract notion. I wonder if those killed abroad by it also consider it abstract. I wonder if the Iranians fund and participate in abstractions or if they have actual goals and desires. When I read things like that, I realize that, quite simply, one side of the argument thinks it is a joke. unfortunately for our future, they might be the majority on the Supreme Court.
12.5.2007 3:22pm
Ben P (mail):

Took me a while to get what you're asking. The short answer: Because they're U.S. citizens. Duh.


Citizens are different because they're citizens?

That's not circular at all.

Courts have held that Even US Citizens held as POW's cannot use due process to get out of a POW camp. (In Re Territo (1946) regarding A US citizen captured in italy)
12.5.2007 3:22pm
ejo:
really now Oren-what level of "due process" less than full civil rights in our courts are you willing to accept. If you don't like military tribunals, what will you accept?
12.5.2007 3:24pm
IB Bill (mail) (www):
Citizens are different because they're citizens?

Yes.

That's not circular at all.

Your question is circular. Cheers.
12.5.2007 3:24pm
IB Bill (mail) (www):
That is, if I understand your question, you're asking what's the difference between citizen and non-citizen combatants. The answer is that one set are citizens, and one aren't. That's what I mean by circular.

Unless you were asking something else ...
12.5.2007 3:28pm
Ben P (mail):

However, war is an ongoing mass murder which only ends when the other side is dead, captured or surrendered. In a war, is it truly better that we release ten enemy combatants back to the battlefield to kill hundreds of civilians and troops or to keep them detained along with one innocent?


That's completely non-responsive to what I'm arguing.

We have every right to hold individuals captured on the battlefield as prisoners of war. Should we choose to do so, almost all of this goes away as prisoners of war don't get due process on that particular status, but they do get due process if they are to be charged with crimes.

I understand there's at least some doubt as to whether or not AQ types can be considered combatants under the Geneva conventions, but that says nothing about whether or not we may choose to decide that they do.

What do we lose security wise by declaring them such except the potential ability to interrogate them? and By the time someones been in US custody for several years I doubt they have much left to give us.
12.5.2007 3:29pm
Ralph Phelan (mail):
I wonder if anyone on the Supreme Court has thought about the outcome of treating foreign enemy combatants as criminal defendants.
Objection, false dichotomy. Suspected enemy combatants....

How does the addition of the word "suspected" reduce the grunt's incentive to kill rather than take prisoners?

When "improving" the current system for determining which suspected enemy combatants really are and which aren't, take care lest you inadvertantly replace it with something far worse - a de-facto policy of "Kill 'em all and let God sort 'em out."
12.5.2007 3:31pm
Ben P (mail):

That is, if I understand your question, you're asking what's the difference between citizen and non-citizen combatants. The answer is that one set are citizens, and one aren't. That's what I mean by circular.

Unless you were asking something else ...


The point of the question was that what's to stop a "citizen combatant" from also returning to the battlefield and fighting against US forces again.
12.5.2007 3:31pm
IB Bill (mail) (www):
The point of the question was that what's to stop a "citizen combatant" from also returning to the battlefield and fighting against US forces again.

Oh, ok.

The answer is either (1) jail, or (2) nothing.

That is, citizen combatants should be tried in U.S. courts. Pardon me if I missed it, but are U.S. citizens being held in Gitmo?
12.5.2007 3:38pm
Oren:

How does the addition of the word "suspected" reduce the grunt's incentive to kill rather than take prisoners?


It doesn't. Nor do I believe that any reasonable people are proposing limits on grunts' unfettered authority to detain people on or near the battlefield. There is, however, a major difference between imposing any restrictions on the grunts and imposing restrictions people as far upstream as Gitmo which is, for all intents and purposes, hors de combat.

The inability to make a distinction between combatants on the battlefield and combatants that are held prisoner in a secure camp 10,000 miles away must be an intentional rhetorical tool.
12.5.2007 3:41pm
IB Bill (mail) (www):
We have every right to hold individuals captured on the battlefield as prisoners of war. Should we choose to do so, almost all of this goes away as prisoners of war don't get due process on that particular status, but they do get due process if they are to be charged with crimes.

I understand there's at least some doubt as to whether or not AQ types can be considered combatants under the Geneva conventions, but that says nothing about whether or not we may choose to decide that they do.

What do we lose security wise by declaring them such except the potential ability to interrogate them? and By the time someones been in US custody for several years I doubt they have much left to give us.


Let me back up a second because I'm missing a few facts. You mean the prisoners at Gitmo are not POWs? What are they, then?
12.5.2007 3:43pm
Anderson (mail):
This must be sarcasm. I am pleased.

If it wasn't for sarcastic praise, I wouldn't get no praise at all ...

Anyway, it is hornbook law that *some* constitutional protections extend even to non-citizens. We can and should argue the scope of those protections, but the notion that non-Americans are, legally speaking, dirt, will not stand.

As some commenters observed in discussing the structural nature of the Suspension Clause, can the U.S. government enslave non-Americans outside of U.S. soil? Some of the above commenters would appear to think that the answer is "yes," because non-Americans outside the U.S. have no constitutional rights.
12.5.2007 3:45pm
Bart (mail):
Ben P (mail):

BD: However, war is an ongoing mass murder which only ends when the other side is dead, captured or surrendered. In a war, is it truly better that we release ten enemy combatants back to the battlefield to kill hundreds of civilians and troops or to keep them detained along with one innocent?


That's completely non-responsive to what I'm arguing.

We have every right to hold individuals captured on the battlefield as prisoners of war. Should we choose to do so, almost all of this goes away as prisoners of war don't get due process on that particular status, but they do get due process if they are to be charged with crimes.

You misunderstand the petitioners' argument. It does not matter what privileges we grant them as POWs. As per the al Qaeda manual, they deny that they are combatants who can be held as POWs and seek to be released by the civilian courts through the habeas corpus vehicle to return to the battlefield.
12.5.2007 3:47pm
Anderson (mail):
What are they, then?

"Unlawful enemy combatants." (See the MCA.) If they were POW's, we'd have to give them the appropriate Geneva protections. So Bush has been strenuously arguing that they are NOT in fact POW's.
12.5.2007 3:47pm
Bpbatista (mail):
Mr. Kerr,

Given the nature of the questioning, what do you think of the possibility that they will dismiss the case on the grounds that they improvidently granted cert?
12.5.2007 3:47pm
Bart (mail):
Ralph Phelan (mail):

BD: I wonder if anyone on the Supreme Court has thought about the outcome of treating foreign enemy combatants as criminal defendants.

Objection, false dichotomy. Suspected enemy combatants....

They lost the appellation "suspected" when the CRST held them to be enemy combatants.

The point I was making is that grunts on the battlefield are less likely to take prisoners if the Supreme Court makes it easier for those prisoners to return to the battlefield and try to kill them again.
12.5.2007 3:52pm
Ralph Phelan (mail):
The inability to make a distinction between combatants on the battlefield and combatants that are held prisoner in a secure camp 10,000 miles away must be an intentional rhetorical tool.

You're missing my point, which is that if the grunts don't trust that what's happening in that secure camp 10,000 miles away protects their safety, they might start making their own unofficial policy in the field, and neither of us are going to like what they come up with.
12.5.2007 3:53pm
George W. Obama (mail):

Anyway, it is hornbook law that *some* constitutional protections extend even to non-citizens [who are enemy combatants captured and held outside the territorial jurisdiction and soveriegn authority of the United States].



Show me that hornbook.
12.5.2007 3:57pm
Anderson (mail):
which is that if the grunts don't trust that what's happening in that secure camp 10,000 miles away protects their safety, they might start making their own unofficial policy in the field

And then they might clothe Petraeus in the purple and march on Washington!

--I have more respect for the U.S. soldier than Mr. Phelan appears to.

Whether a prioner is ultimately released years down the road is not, and never has been, the soldier's worry. The mere fact that interrogation of the prisoner might save the lives of the soldier and his comrades, leaving aside little things like "duty" and "honor," should be enough to govern a soldier's "policy" in this respect.
12.5.2007 3:57pm
Ralph Phelan (mail):
"can the U.S. government enslave non-Americans outside of U.S. soil? Some of the above commenters would appear to think that the answer is "yes," because non-Americans outside the U.S. have no constitutional rights."

Correct, I don't think there's any constitutional or legal constraint against Congress approving and the President executing an evil foreign policy. Are there legal precedents saying otherwise?
12.5.2007 3:57pm
IB Bill (mail) (www):
Anderson:

Oh, right. They are not POWs because they were not in uniform, etc.
12.5.2007 3:58pm
Oren:

They lost the appellation "suspected" when the CRST held them to be enemy combatants.


With apologies, the CSRT could deem a ham sandwich to be an enemy combatant. I put about as much faith in the CSRT as I do in the government brief (after all, that's basically what they are).


You're missing my point, which is that if the grunts don't trust that what's happening in that secure camp 10,000 miles away protects their safety, they might start making their own unofficial policy in the field, and neither of us are going to like what they come up with.


Because grunts are keenly aware that it's worth killing a man that might given them useful information that will protect them tomorrow on the vague theory that he might be released in a few years? I'd accuse you of insulting our troops' intelligence if I had the impression you actually thought that argument through.
12.5.2007 3:58pm
Ralph Phelan (mail):
"--I have more respect for the U.S. soldier than Mr. Phelan appears to."
I'm not expecting full scale mutiny, just some slightly different decisions in marginal cases. But that is a cost to be considered.
12.5.2007 3:59pm
George W. Obama (mail):
Correct, I don't think there's any constitutional or legal constraint against Congress approving and the President executing an evil foreign policy. Are there legal precedents saying otherwise?

No.
12.5.2007 3:59pm
Bart (mail):
Anderson (mail):

Anyway, it is hornbook law that *some* constitutional protections extend even to non-citizens.



No it is not. Constitutional rights are not extended to foreign persons who have not made themselves part of the citizenry and most definitely not to foreign persons who have never even set foot in our country.


What are they, then?

"Unlawful enemy combatants." (See the MCA.) If they were POW's, we'd have to give them the appropriate Geneva protections. So Bush has been strenuously arguing that they are NOT in fact POW's.


This is also incorrect.

Under the common law of war, POWs are simply enemy combatants who are being detained for the duration of the war to keep them from returning to the battlefield.

GC3's far more narrow definition does not define POWs for any other purpose except to determine whether they receive protections granted by the GC3.

Under your argument, enemy combatants who violate the laws of war and do not qualify for GC3 protections would receive the greater protections of civilian criminal defendants. That makes no sense at all.
12.5.2007 3:59pm
Anderson (mail):
Mr. Obama -- you went to a madrassah in Texas, right? -- the point remains that the $64K question is this: does the administration have the unreviewable right to designate, say, Boumediene as an "enemy combatant"?

The inability of the administration's defenders to quit begging this question is truly remarkable.
12.5.2007 3:59pm
Philistine (mail):
My understanding is that the main issues relating to continued detention are for those who are caught away from the battlefield. E.g. either brought in for a bounty by Afghani tribesmen or, like Boumediene himself, picked up far from any battlefield.

Showing that someone captured on a battlefield should be detained is pretty trivial--at least for the duration of the hostilities.
12.5.2007 4:00pm
Ben P (mail):


The answer is either (1) jail, or (2) nothing.

That is, citizen combatants should be tried in U.S. courts.


And roundabout back to where I started. Why these arguments that present this as either accepting the status quo or letting "terrorists" go free, (or more recently, leaving the military with no choice but to summarily execute them because those "justices" are just going to let them go free.)


The side track about citizens was only meant to illustrate the practically arbitrary nature of these differentiations between various kinds of enemy combatants and where they're held.


There are decent arguments as to why we may have the ability to declare terrorists some middle catagory rather than simply POW's or Unlawful Combatants (Quirin), thereby denying them both the rights of Pow's and the Competent Tribunals of Qurin (the German saboteurs did get lawyers and hearings)

I'm asking what we gain by doing this? If we hold AQ types as POW's we can still charge particular deserving ones of crimes, we just have to make the choice of doing so under full due process rights or continuing to hold them merely as POW's.
12.5.2007 4:02pm
Bart (mail):
Oren:


BD: They lost the appellation "suspected" when the CRST held them to be enemy combatants.

With apologies, the CSRT could deem a ham sandwich to be an enemy combatant. I put about as much faith in the CSRT as I do in the government brief (after all, that's basically what they are).

I understand that you disbelieve everything your own soldiers tell you and trust the enemy petitioners implicitly.

With all due respect, the Lenin used to call folks with this belief "useful idiots."
12.5.2007 4:02pm
IB Bill (mail) (www):
Anderson: No, I would say the U.S. cannot legally enslave non-citizens outside of U.S. soil. Just because someone doesn't have constitutional rights doesn't mean they don't have any rights. All men have inalienable rights (see Declaration of Independence). This doesn't mean, however, that enemy combatants have a right to access U.S. courts. It doesn't mean that we can do whatever we want.
12.5.2007 4:04pm
Ben P (mail):

You misunderstand the petitioners' argument. It does not matter what privileges we grant them as POWs. As per the al Qaeda manual, they deny that they are combatants who can be held as POWs and seek to be released by the civilian courts through the habeas corpus vehicle to return to the battlefield.


I understand their argument, but their argument is only possible in the context of "enemy combatant" rather than POW.

If we were guaranteeing rights under the geneva convention (as we're mostly doing already) I doubt the courts would be seriously considering arguments on their part to be made free.
12.5.2007 4:04pm
George W. Obama (mail):

Mr. Obama -- you went to a madrassah in Texas, right?



Pure slander disseminated by the despicable Clinton war machine. It proves your bias on this issue, as Seth Waxman is a Clinton era flack. You Clintonites stick together like flies on [redacted by Bush adminstration].
12.5.2007 4:06pm
OrinKerr:
Bpbatista asks:
Mr. Kerr,

Given the nature of the questioning, what do you think of the possibility that they will dismiss the case on the grounds that they improvidently granted cert?
I saw no reason to suggest that, and given the tension between Rasul and the DC Circuit's decision, that seems quite unlikely.
12.5.2007 4:06pm
Anderson (mail):
The issue of the rights of non-Americans outside U.S. territory is relatively novel, as most of the commenters here are well aware.

As for the general issue of non-citizens, see Yick Wo:

The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality * * *

Now, is Gitmo "within the territorial jurisdiction" of the U.S.? I believe that Rasul settled this question. (See section 4 of the opinion of the Court.)
12.5.2007 4:08pm
IB Bill (mail) (www):
Ben P: Didn't mean to sidetrack. Truth is, with your explanation, I am in way over my head in this discussion. What you said sounds reasonable, but I simply don't have the background to discuss it intelligently.

Thank you for your patience. I learned quite a bit on this thread. Regards, Bill
12.5.2007 4:09pm
Oren:

As per the al Qaeda manual, they deny that they are combatants who can be held as POWs and seek to be released by the civilian courts through the habeas corpus vehicle to return to the battlefield.


And, as per some reasonable procedure that comports with Western notions of justice, we can put the evidence that said detainee is, in fact, not a civilian but a member of AQ in front of an impartial panel and make a finding of fact.
12.5.2007 4:12pm
Anderson (mail):
All men have inalienable rights (see Declaration of Independence). This doesn't mean, however, that enemy combatants have a right to access U.S. courts. It doesn't mean that we can do whatever we want.

Okay. I would submit that (1) habeas is a fundamental right, inseparable from the right to liberty recognized in the Declaration; that (2) a right is meaningless without a way to enforce it; and that (3) the Executive cannot and should not be trusted to unilaterally make such decisions in the case of persons like Boumediene, who was not captured on any battlefield.

That leaves as (4) my conclusion that the independent judiciary should make such determinations; it's what they're for.
12.5.2007 4:12pm
IB Bill (mail) (www):
Thanks also to you, Anderson. You've been helpful. Best, Bill
12.5.2007 4:13pm
Bob from Ohio (mail):
More plowing over the same exhausted field.

Two quick points.

1. Anderson is right, no matter what happens, there will be no trials or hearings or whatever until after a new president takes over.

Then the new AG will ask for an extension until they can develop a policy. I guess 2010 until a federal judge has to face signing an order releasing someone the executive calls a terrorist and a threat to the US. After appeals, the first Gitmo prisoners may be released about 2012. Or later.

2. FDR had an American citizen hung after a rump trial before a military commision. A citizen captured in the US. Yet, some can claim with a straight face that:


That's not to say FDR didn't have his faults (internment wasn't so hot) but he stands a mile high next to W.


Oh yeah, internment without charge of hundreds of thousands of totally innocent people. Including children. Not 350.
12.5.2007 4:13pm
Anderson (mail):
12.5.2007 4:15pm
Ben P (mail):

GC3's far more narrow definition does not define POWs for any other purpose except to determine whether they receive protections granted by the GC3.

Under your argument, enemy combatants who violate the laws of war and do not qualify for GC3 protections would receive the greater protections of civilian criminal defendants. That makes no sense at all.


But the GC3 also states that any detainee has the right to have his status determined by a "competent tribunal."

Further, and although this is completely and totally non binding, we have the opinion of the Yugoslavia Tribunal

"there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied."


Moreover, those very protections given by the GC3 still allow legal POW's to be tried for crimes, they must merely be granted rights accorded under the convention in the process.
12.5.2007 4:19pm
Dan J. (mail):
Bart: the applicability of constitutional provisions of non-citizens within the territorial limits of this country is hornbook law. The Equal Protection Clause as well as the Due Process Clause of the 14th Amendment apply, textually, as protections of people This is, of course, in contrast to the protection provided by the Privileges or Immunities Clause to citizens in the same amendment. The ability of permanent residents and other non-citizens within this country to seek constitutional protection under such provisions is well-settled. The question in such circumstances, rather, is the nature of the protection available to them under the constitution. The first case supporting this, that comes to mind, is Plyer v. Doe. I hope you're contesting the categorization of the applicability of constitutional provisions to non-citizens outside U.S. territorial jurisdiction of the United States as hornbook law. I agree with you to the extent that statement fails to be hornbook law. Otherwise, I believe your mistaken when referring to constitutional rights as only extended to those who make themselves part of the citizenry. I understand the philosophical basis of your statement, but not the legal basis.

P.S. Prior to posting this, I noticed Anderson's posting on Yick Woo - which backs up exactly what I'm saying
12.5.2007 4:21pm
srg:
Anderson, I hope that you agree that Guantanamo is a special case and that the rights granted to prisoners there do not apply to, for example, prisoners we hold in Afghanistan or Iraq. I don't think we want POWs or enemy combatants all over the world to have access to our courts, whereas if they are in the U.S. (or Guantanamo), that is a different story.
12.5.2007 4:21pm
Anderson (mail):
Srg, I would suggest that you read the transcript of today's case, which I'm doing now, and which has interesting things to say about combatant status determinations in Vietnam and in the European theater of WW2.
12.5.2007 4:27pm
ejo:
to those that argue for the detainees, any hearing or tribunal that doesn't rule they are innocent goatherds will be found suspect. none have offered a suggestion of something less than full trial rights in our civilian courts, an absolutely unheard of suggestion-can you think of anything military related they would accept?

further, these enhanced rights will only be available to those not wearing uniforms or attempting to follow the rules of war. the logic of this position escapes me but I am sure Bush is somehow responsible for it. essentially, the soldier wearing a uniform and not hiding behind civilians is a sucker, don't you think given the law they want to have?
12.5.2007 4:32pm
J. F. Thomas (mail):
I understand that you disbelieve everything your own soldiers tell you and trust the enemy petitioners implicitly.

With all due respect, the Lenin used to call folks with this belief "useful idiots."


You are simply being dishonest and disingenuous and ignoring the facts of the case before the Court. These men were arrested by Bosnian police (in violation of a court order and after the Bosnian Supreme Court determined there was insufficient evidence to proceed with the charges against them) and turned over to the U.S. military. They were not caught on the battlefield shooting at soldiers. We don't know what evidence the government has against them because it is classified. We do know that whatever it is it is insufficient to sustain criminal charges in Bosnia.

Contrary to what you claim, many of the detainees at Gitmo are in very similar circumstances. They weren't caught on the battlefield by our soldiers. Rather they were turned over by Pakistan or Afghanis, often for cash bounties. It is clear that many are completely innocent. Also, under Bush's rules, one can be declared an "illegal combatant" simply for providing material support to Al Qaeda--in the case of the Lackawana Six, attending an Al Qaeda training camp and leaving when they realized what was going on was determined to be "providing material support". Under the current rules you could be held forever just for giving money to a terrorist organization.
12.5.2007 4:42pm
J. F. Thomas (mail):
to those that argue for the detainees, any hearing or tribunal that doesn't rule they are innocent goatherds will be found suspect. none have offered a suggestion of something less than full trial rights in our civilian courts, an absolutely unheard of suggestion-can you think of anything military related they would accept?

Where on earth did you get this. Nothing could be further from the truth. All I have ever argued for is that the detainees be treated in accordance with the procedures the uniformed military JAG corps suggested when the war in Afghanistan first started. That is, under the rules established by the GC and the UCMJ.

You are simply being dishonest and distorting my position.
12.5.2007 4:45pm
Bart (mail):
Now that I have had a chance to review the transcript, Kennedy's questions to Waxman indicate that he wants to avoid habeas corpus hearings in the federal district courts and instead wants to punt this back to the DC Circuit for review of the propriety of the past CSRT hearings under the standards established by Congress in the DTA.

It is possible that the petitioners may win the habeas corpus battle, but lose the substitution war.

Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts. All the DC Circuit can do under the DTA is either approve the prior CSRT hearings or make the CRSTs hold new hearings. The DTA does not allow the DC Circuit to substitute the civilian courts for the CSRTs for the determination of whether the prisoner is an enemy combatant.
12.5.2007 4:47pm
Ralph Phelan (mail):
The issue of the rights of non-Americans outside U.S. territory is relatively novel
I'm reminded of one of the shortest Monty Python sketches ever - a guy facing the camera saying "I say we should tax all foreigners living abroad."

Wasn't that the original point of the British Empire?
12.5.2007 4:47pm
Kazinski:
SCOTUS has been pretty clear in other wars that being a US citizen isn't a get out of jail free card, if the citizen is an enemy combatant (legal or illegal). In Quiren, they came to the conclusion that citizenship status of one of the illegal combatants wasn't even a relevant fact.

As Scalia pointed out, 300 years of precedent has established that enemy combatants (legal or illegal), are subject to the laws of war, not to civil law.
12.5.2007 4:51pm
Anderson (mail):
Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts.

False. It defers the issue pending the results of the D.C. Circuit, which in an alternative universe *could* hold that the CSRT's are ridiculous Vyshinskian charades.
12.5.2007 4:55pm
J. F. Thomas (mail):
As Scalia pointed out, 300 years of precedent has established that enemy combatants (legal or illegal), are subject to the laws of war, not to civil law.

Well I hope Scalia realizes that what the government is trying to do here is make these "enemy combatants" not be subject to any laws, not even the laws of war.
12.5.2007 4:59pm
Orielbean (mail):
No, ejo, if they wear a uniform and don't hide in a civilian population, they are considered a POW when captured and have more rights than the enemy combatants who dress like innocent goatherds and hide in Supreme Court chambers.

They would not get a full civilian court trial, they would get a lawyer to represent them like the Quirin tribunal and be able to present evidence that would aid their situation. Stop bringing up BDS like it was the cure for your ignorance.

The point is that because the limited review given to the suspects was so biased and did not offer any reasonable chance for the suspect to explain himself, it looks very much like a "kangaroo court" that democracies try to avoid as much as possible. We see these mock tribunals given as simple lip service to the concept of justice that has made our country great and has not had us fall to the heathens in a few hundred years. If the administration bothered to act in good faith on this issue, they would have gotten everything they wanted, but they insisted on rewriting the rules and not letting anybody see the criteria.

Nobody would just "go free" if they were going to be charged with a crime. That's the point here. When your military lawyers protest the tribunals, why bother even having the tribunals at all? Stick the scum in a memory hole and forget about them forever? Could you accuse a military JAG of being a terrorist-lover? C'mon. And for people fighting to spread democracy, this looks pretty discouraging that we'd abandon our principles so easily to grab some simple-minded scumbags.
12.5.2007 5:03pm
Anderson (mail):
And for people fighting to spread democracy, this looks pretty discouraging that we'd abandon our principles so easily to grab some simple-minded scumbags.

And for those fighting in al-Qaeda, it's rewarding to see how quickly fear makes us abandon those truths we held self-evident back in 1776.
12.5.2007 5:07pm
somebody:
Oren wrote


Of course, Germany has an actual army with, you know, troops and tanks and planes. Al Qaeda is so pathetic they can't even hold on Afghanistan let alone threaten the US in a meaningful way.


Is this meant to say that Germany was a bigger threat to US than Al Qaeda? I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC. Oh, and those embassy bombings and the Cole . . .

Nope, no threat to us at all. Or, if they've beconme a threat, it's only because Bush upset them. Except that these attacks on Americans happened before Bush did anything . . .

Reality is hard.
12.5.2007 5:17pm
Anderson (mail):
Is this meant to say that Germany was a bigger threat to US than Al Qaeda?

If I may speak to Oren, "yes."

I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC.

Right. So?
12.5.2007 5:20pm
Bart (mail):
Anderson:

Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts.

False. It defers the issue pending the results of the D.C. Circuit...


My friend, the DTA only permits the DC Circuit to make two determinations when reviewing a CSRT determination - whether the CSRT determination in a particular case was conducted in accordance with the "standards and procedures" established by the Pentagon and "whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States."

The DTA assumes that the CRSTs and not the civilian courts will make the substantive decision of whether the detainee is an enemy combatant. The DC Circuit is limited to determining whether the CRST followed its own procedures and whether those procedures comport with the Constitution. While it is possible that the DC Circuit could compel DoD to adopt additional procedures if it somehow finds that the Constitution provides procedural rights to foreign prisoners, but the DTA does not permit the DC Circuit or any other civilian court to make the final substantive status decision.

Therefore, Kennedy has no reason to defer habeas corpus proceedings in the federal district courts and allow the DC Circuit to continue its DTA reviews unless he intends to allow the CRSTs under DC Circuit review to substitute for civilian court habeas corpus review.

Waxman did not view Kennedy's suggestion as merely a deferral of civilian court habeas corps review. Rather, he vigorously tried to convince Kennedy that this was a bad idea because the CRST's are "fundamentally flawed." Waxman realized as I do that the DTA assumes that the CRSTs will make the final substantive status decisions.
12.5.2007 5:26pm
Jiffy:

I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC. Oh, and those embassy bombings and the Cole . . .


But I do seem to remember something about Germany allying itself with Japan and declaring war on the US immediately after Japan killed thousands of Americans at Pearl Harbor.
12.5.2007 5:30pm
Oren:

Is this meant to say that Germany was a bigger threat to US than Al Qaeda? I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC. Oh, and those embassy bombings and the Cole . . .


Five times as many Americans drown in their bathtubs and pools than are killed by AQ (3000 vs 600 a year). Far more Americans are intentionally killed by each other Americans (~10k a year) or unintentionally while driving (~40k/yr, half relating to DUI).

9-11 was a terrible and tragic event but it was also a statistical fluke. It is the perfect example of a 'black swan' that commands attention so far in excess of its actual significance that it has distorted seemingly reasonable people into illogical contortions that are in direct contradiction with statistical fact.


Nope, no threat to us at all. Or, if they've beconme a threat, it's only because Bush upset them. Except that these attacks on Americans happened before Bush did anything . . .


Bush had nothing to do with it. AQ was not a threat before Bush and will not be a threat after he leaves. Believe it or not, some things are beyond the reach of even the Commander in Chief (e.g. Osama bin Laden).


Reality is hard.


So is objective fact. Try it sometime.
12.5.2007 5:32pm
Anderson (mail):
Bart, you and I appear to have read two different transcripts.

From past experience, I think it would be counterproductive to carry our discussion beyond that, though I'm interested in having my mistakes pointed out by anyone else.
12.5.2007 5:39pm
Oren:

Well I hope Scalia realizes that what the government is trying to do here is make these "enemy combatants" not be subject to any laws, not even the laws of war.


Even worse, the government is reducing (to nil) the scrutiny needed to apply the designation 'enemy combatant'. I have no problem with highly restrictive policies regarding enemy combatants so long as the determination of 'enemy combatant' status is made in an impartial manner and backed up by objective fact.

At the very minimum, there is no value in a CSRT when the government does not feel bound to its conclusion if they don't like it. Specifically, there are documented cases of the government calling multiple CSRTs until a detainee is found to be an EC. How anyone can defend a procedure under which the government gets to keep trying until it gets the desired result is beyond me (all other very important flaws int he CSRTs notwithstanding)
12.5.2007 5:44pm
Benjamin Davis (mail):
I find it absolutely amazing that the hysteria has gotten to the point where persons would actually see Al-Qaeda as a greater threat to the United States than Germany was in WWII. I am dumbfounded.

As to the oral argument, I think the key is the question of whether the the MCA and CSRT are read to permit the DC Circuit to release someone - the fundamental habeas relief. If that is part of the Supreme Court's decision then the Supreme Court will leave all the issues below. Not because the other issues of "enemy combatant" and "adequate procedures" should not be decided in this round, but because the parsimonious nature of Supreme Court decisions today (No grandeur of Judicial Power of a coequal branch; more like legal auto mechanics). I wonder how an international criminal tribunal will look back at all this maneuvering some time in the future.
Best,
Ben
12.5.2007 5:48pm
PLR:
The constant transcript references to "General Clement" continue to annoy some of us who retain a modicum of respect for the English language.
12.5.2007 6:02pm
Oren:

I find it absolutely amazing that the hysteria has gotten to the point where persons would actually see Al-Qaeda as a greater threat to the United States than Germany was in WWII. I am dumbfounded.


Rhetorically speaking, I don't know how to respond to people that even think AQ is in the same league as Germany. Hell, they aren't even playing the same game! I've tried reasoning it through, I've tried whacking people over the head with statistics. I've even tried mixing in my absolute disgust at AQ has with my attempts to bring back perception of their actual capabilities back to earth.

None of it works.
12.5.2007 6:03pm
Dave N (mail):
The constant transcript references to "General Clement" continue to annoy some of us who retain a modicum of respect for the English language.
Paul Clement has the title of Solicitor General of the United States. As a result, he is referred to as "General Clement" in argument. Every state attorney general (though not the deputies) also have this informal title while serving their respective posts. None will ever be confused with either General Patton or General Motors.

Remember also, that in the phrase "solicitor general" or "attorney general" (or even "surgeon general" or "postmaster general" for that matter), "general" is the adjective modifying the preceding word.

Personally, I find it no less grating than referring to judges I personally despise as either "Your honor" or "the Honorable" even when I am deeply convinced they are not honorable and bring no honor to the bench. It is just a matter of respect.
12.5.2007 6:25pm
Bart (mail):
Anderson (mail):

Bart, you and I appear to have read two different transcripts. From past experience, I think it would be counterproductive to carry our discussion beyond that, though I'm interested in having my mistakes pointed out by anyone else.


Opiniojuris gathers Kennedy's statements and comes to the same tea leaf reading that I do:

First Exchange (pp. 20-21):

JUSTICE KENNEDY: Suppose there had not been a six-year wait, would it be appropriate then for us to — if you prevail — remand the case to the habeas court and instruct the habeas court to defer until the Court of Appeals for the District of Columbia has finished the DTA review proceedings?

MR. WAXMAN: I would argue that the answer is no for two reasons. The one because there is no prospect, no prospect that the DTA proceedings will be conducted with alacrity or certainty …

JUSTICE KENNEDY: Why should I assume that the district court in Washington would be any faster than the court of appeals?

Second Exchange (p. 22):

MR. WAXMAN: … the Petitioners have to have the right to adduce and present evidence to controvert the government's return which was — almost all of the government's evidence was introduced ex parte, in camera, and with a — to boot with a presumption that it is accurate and genuine.

JUSTICE KENNEDY: Why can't that take place in the CSRT review proceedings that are pending?

Third Exchange (p. 53):

JUSTICE KENNEDY: I didn't understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are — - to make the determination — are consistent with the Constitution --

GENERAL CLEMENT: Yes, Justice --

JUSTICE KENNEDY: — that's provided in the MCA.

GENERAL CLEMENT: It absolutely is….

Fourth Exchange (p. 54):

JUSTICE BREYER: …. [Y]ou could have the best procedure in the world, and they're totally constitutional.... They're not going to concede it. They're assuming it. On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted….

JUSTICE KENNEDY: But the statute talks about standards. Why can't that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?

Fifth Exchange (p. 55):

JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in — under the MCA have the authority to question the constitutionality of the definition of noncombatant — of unlawful combatant?

GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.

Sixth Exchange (pp. 73-74):

MR. WAXMAN: … We can raise that claim because they have to establish that the procedures and standards were consistent not only with the Constitution but also with the laws of the United States. And the problem this is this --

CHIEF JUSTICE ROBERTS: That is an argument that, I gather, both sides agree is available to you under the DTA before the D.C. Circuit.

MR. WAXMAN: That is absolutely correct….

JUSTICE KENNEDY: What does that tell you about the adequacy of the substitute?


We shall see...
12.5.2007 6:31pm
loki13 (mail):
A word to the wise...

For those of you unaware (see Anderson's post, supra)-

The poster 'Bart' is Bart dePalma, who consistently... um.... enhances threads with his uncommon insight (in that no one else shares it) and repetitious nature over at Balkinization.

If you see a post of his that you know is factually untrue or legally unsound, please realize that others know this as well.
12.5.2007 7:04pm
Kazinski:
Just because Al Qaeda doesn't pose the same level of threat that Nazi Germany or Japan did doesn't mean Al Qaeda doesn't need to be crushed like bugs.

It is just a straw man argument, the fact that they need to be hunted down and killed doesn't depend on their level of threat.
12.5.2007 7:25pm
Kazinski:
J.F. Thomas
Well I hope Scalia realizes that what the government is trying to do here is make these "enemy combatants" not be subject to any laws, not even the laws of war.

No, the Bush Adminstration and Congress is trying to make enemy combatants subject to the jurisdiction of Military Commissions, consistent with the laws if war, established Supreme Court precedent, Congressional legislation, and common sense.
12.5.2007 7:41pm
Oren:
Kazinski,

Of course AQ needs to be hunted down and killed - I never implied otherwise. I only make reference to the magnitude of the threat to distinguish from more bona-fide threats to the existence of the US (WWII) and to allow me to scale my response in a rational way - I would not, for instance, be in favor of a plan that would utterly destroy AQ at the cost of half the US GDP.

More importantly, however, the magnitude of the threat determines that amount of 'collateral damage' that I'm willing to accept while attempting to crush them. This is purely a utilitarian argument based on the relative utility of ridding the world of this evil (which is equal to the sum total of their threat) versus the disutility of harming those that are innocent (which not related to their threat).
12.5.2007 7:42pm
Oren:

No, the Bush Adminstration and Congress is trying to make enemy combatants subject to the jurisdiction of Military Commissions, consistent with the laws if war, established Supreme Court precedent, Congressional legislation, and common sense.


Accepted. I just don't accept that Boumediene is an enemy combatant nor that the procedure for declaring him as such is sufficient.
12.5.2007 7:48pm
Kazinski:
Oren,
The smaller the threat the less collateral damage should be tolerated.

Military Commissions to determine combatant status is the process the supreme court required, and Congress implemented via legislation.
12.5.2007 7:56pm
Oren:

Military Commissions to determine combatant status is the process the supreme court required, and Congress implemented via legislation.


The CSRTs are not sufficient - as I said before, they would classify a ham sandwich enemy combatant. When an 'innocent' verdict is not binding on the gov't the process can best be described as a joke.
12.5.2007 8:14pm
louisvillelawyer (mail):
the repeat tribunals are the real clincher, as someone said before. Google repeat CSRT for the article, it is the first result.

If one CSRT finds a detainee not to be an EC, they can keep doing it until they get the answer they want?????!! come on. is that American? Doesn't any human being, even if not a citizen, deserve to have a fair hearing as to whether they are actually an enemy combatant as opposed this kind of kangaroo (i.e., it can keep trying you until you're found guilty) court?
12.5.2007 9:32pm
wm13:
loki13, anyone to the right of Hugo Chavez will be unique among the commentators at Balkinization, so your characterization doesn't tell us much about where Mr. DePalma falls on the spectrum of real life political and judicial opinion.
12.5.2007 9:40pm
MarkField (mail):

anyone to the right of Hugo Chavez will be unique among the commentators at Balkinization


You must not read the comments there very often. A number of conservatives post there.
12.5.2007 10:39pm
Point of Fact (mail):
I believe that Rasul settled this question.

Which is exactly why the issue was not briefed and the Court did not accept the case for review. Oh, wait.
12.6.2007 12:02am
Christopher Cooke (mail):
Orin:

I think we can agree that this is a politically-charged case (harkening back to your proposed umpire test for Roberts), that the conservative position would be to adopt the government's position that the Supreme Court has no jurisdiction to hear the case, and that Roberts will vote for that view.

Anyone disagree? (NOTE: I am not saying who is right or wrong on the legal issues, just showing how this sort of categorizing and predicting is not the impossible task that prior comments seemed to describe.)

Also, as I said before (and which you now agree), Kennedy will write the controlling opinion, and say that Congress can't take away the Supreme Court's right to review this, and essentially punt on the rest by sending it to the DC Circuit.
12.6.2007 1:38am
George W. Obama (mail):
Check out when Kennedy "scowl[s]".
12.6.2007 2:45am
George W. Obama (mail):
JUSTICE KENNEDY: I didn't understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are -- - to make the determination -- are consistent with the Constitution --

GENERAL CLEMENT: Yes, Justice --

JUSTICE KENNEDY: -- that's provided in the MCA.

GENERAL CLEMENT: It absolutely is. I think Justice Breyer's hypothetical was cleverly crafted, though, to take that off the table.

JUSTICE BREYER: It wasn't cleverly redrafted. I wanted to say that the people I'm thinking of are not challenging those procedures. What they say is you could have the best procedure in the world, and they're totally constitutional -- we'll assume that -- they're assuming it. They're not going to concede it.

They're assuming it.

On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted.

JUSTICE KENNEDY: But the statute --

JUSTICE BREYER: They are arguing it.

JUSTICE KENNEDY: But the statute talks about standards. Why can't that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?

GENERAL CLEMENT: Well, I think, again, that Justice Breyer's hypothetical, as I understood it, sort of assumed away the adequacy of all of the standards and just said: Putting all of that to one side, I have some other constitutional claim.

And I'm just not so sure that habeas ever allowed you to sort of bring every claim that you possibly wanted to; and I think the -- what I -- the way I read this Court's Hamdi decision is what was envisioned on a habeas case in a case where Army Regulation 190-8, which, of course, the plurality cited, was complied with. It was in that case: The habeas petition in court would take that as a starting point, and that you wouldn't necessarily be able to say: Look, it was nice that we had that proceeding, but put that to one side. I have another claim.

I don't think the court, even in habeas, would have envisioned that that would go forward.

JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in -- under the MCA have the authority to question the constitutionality of the definition of noncombatant -- of unlawful combatant?

GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.
12.6.2007 3:04am
NatSecLawGuy:
As good as Waxman's anecdote was at the end (I agree with Lederman (see Balkinization) that is probably the best part of the argument overall) I don't think Justice Kennedy is willing to dabble in the arts of process. Rather, he will kick it back downstairs for that determination (with maybe Justice Ginsberg being another supporter of that approach??).

I agree with many commentators that it will likely be a 5-4 vote with Kennedy writing the opinion holding that they are entitled to a constitutional right of habeas. However, I really think Eisentrager will live to fight another day, because Kennedy sure liked using its analysis in his Rasul concurrence. Whether he can get all the 4 to agree with that construct for analysis is a broader question.

Thus, I think we will see a totality of the circumstances analysis focusing on the six Eisnentrager factors ((a) alien enemy; (b) never been or resided in the US; (c) was captured outside of our territory; (d) was tried by commission outside US; (e) offenses against laws of war; (f) imprisoned outside of US), and that factors (d) and (f) will come out against the government and be enough to entitle the detainees to habeas proceeding.

Just my wager with the odds being undetermined, because we really didn't get a lot of Kennedy yesterday. Although for a great recap of what we did get there is a good post over at Opinio Juris.
12.6.2007 8:34am
Anderson (mail):
Mr. Obama quotes an exchange that I thought was amazingly bad lawyering on Clement's part:

GENERAL CLEMENT: It absolutely is. I think Justice Breyer's hypothetical was cleverly crafted, though, to take that off the table.

JUSTICE BREYER: It wasn't cleverly redrafted [sic].


I would not say to a Justice's face in oral argument that he had "cleverly crafted" a hypo. Not that, at this level, one's going to lose Breyer over a gaucherie, but still.
12.6.2007 9:14am
Anderson (mail):
As for whether Kennedy thinks that D.C. Circuit review under the DTA is adequate, I think that depended on Clement's taking a much more expansive view of the DTA's scope of review than the D.C. Circuit itself is likely to take, absent express direction from the SCOTUS.

But focus on the D.C. Circuit review is just stupid, to put it suavely. The CSRT process doesn't come close to due process of law, and there's no way a reviewing court can make up for the problems.

For instance, Waxman's celebrated retort. The reviewing court could see the name of the alleged terrorist that had been withheld from the prisoner. But without the prisoner's counsel having that name, how could they go to Germany, find the supposedly-dead guy, and get his testimony on the record?

I don't think that the Supreme Court is relegated to wearing blinders and missing the big picture of Gitmo, which has been contempt for the rule of law from Day One - that's why they are AT Gitmo. Unfortunately, I am among the pessimists who suspects that Justice Kennedy will punt and avoid the "judgment" part of his job description. I will be very happy to eat crow if I'm mistaken.
12.6.2007 9:23am
Benjamin Davis (mail):
Anderson just hit the nail on the head. I heard David Rivkin on the radio saying as much. He said something like "if we have to provide them with better evidence, we will not be able to hold them." The whole Rube Goldberg (dating myself to some of you no doubt) CSRT and MCA structure is a conviction machine not due process. Not good enough is what the Supreme Court should say. However, I am terribly pessimistic about their ability or willingness to rise above legal auto mechanics and look at the big picture of system design.
Best,
Ben
12.6.2007 9:39am
ellisz (mail):
I have a few questions for Anderson and others who have followed this closely.

First, correct me if I am wrong but POWs may be held indefinitely, until hostilities end. (I understand the Admin has held enemy combatants at Gitmo aren't POWs.)

2nd, do POWs get some sort of status hearing to determine if in fact they fought for the enemy? I assume not, it would be logistically impossible in any normal war.

If I'm correct on both, then by granting habeas rights to enemy combatants at Gitmo, aren't we granting them more rights than would be enjoyed by lawful POWs?

also - what would suffice for proof that someone was in fact an enemy combatant? say some special forces guys grab a guy they catch shooting at them in the backwoods of Afghanistan. how does the govt prove that's the case? does it have to call those troops to testify? allow them to be crossed by counsel for the shooter? do the troops have to read Miranda rights to the shooter on detention?

again, I've not followed this matter closely so please correct any misimpressions that are evident.
12.6.2007 10:30am
Anderson (mail):
Elisz, it's not "more," it's "different."

(1) Right, POW's can be held indefinitely, because it's a war between actual states that can negotiate a cessation of hostilities. Besides the fact that someone like Boumediene is not a "POW" in any honest sense of the word -- any more than Tim McVeigh was -- whom are we fighting the Global War on Terror with, and when will it end? With whom will we sign an armistice?

(2) If you'll look at the oral argument transcript, you'll see facts adduced as to status hearings' being held in Vietnam and WW2. They generally aren't a huge deal in most cases, since a guy nabbed in a Wehrmacht uniform crawling out of a Tiger tank is not likely to deny his combatant status. Fuzzier situations place greater demands on the need for status hearings.

The level of proof required is not great, and the situation you describe would likely result in the shooter's being adjudged either a POW (if he meets those tests) or an unlawful combatant (i.e., a civilian who's broken the law), who could be tried in the normal court system. There's no Miranda requirement that I know of; as to the soldiers' testimony, I frankly don't know. N.b. that usually, status hearings are held in the field or in close temporal proximity thereto.

The basic problem is that KSM and his ilk are criminals, not persons legitimately at war with the U.S. Yet we chose to torture them in our fear that they had knowledge of impending attacks on the U.S. That makes it very, very difficult to try them in a court of law, for two reasons: (1) exclusion of evidence and (2) disgrace.

Hence the need to insist on trying KSM et al. in front of ad hoc "military commissions" that don't offer anything like basic human rights -- confronting your accuser, seeing the evidence against you, reasonable opportunity to call witnesses or investigate the case against you, excluding evidence obtained under torture or duress.
12.6.2007 10:53am
srg:
Anderson wrote:
"The basic problem is that KSM and his ilk are criminals, not persons legitimately at war with the U.S."

This, of course, is highly controversial. Or do you consider "criminal" and "unlawful combatant" the same thing? If so, then wouldn't unlawful combatants have all the rights of alleged criminals?
12.6.2007 10:58am
Anderson (mail):
Srg, the morality of torture is "controversial" these days; that doesn't stop me from taking seriously only one side of the "controversy."

Regardless, if KSM is an "unlawful combatant," then that raises certain questions. By what definition? In what conflict between states? What "unlawful combat" did he undertake?

If you try to argue that we went to war with Afghanistan, and that he's a unlawful combatant in that struggle, then apparently he's off the hook for 9/11.

It's a category mistake to treat these criminals as soldiers. KSM embraces the latter designation, as seen in his statements at Gitmo. I'm very sorry that Bush, Cheney, et al. have chosen to support him in his pitiful attempt to elevate the murder of men, women, and children into an act of war -- even as they simultaneously deny him the protections that would flow from that acknowledgement. They want to have the cake and eat it.
12.6.2007 11:16am
PLR:
Remember also, that in the phrase "solicitor general" or "attorney general" (or even "surgeon general" or "postmaster general" for that matter), "general" is the adjective modifying the preceding word.

That's my whole point. It makes no sense to use the adjectival part in the title, and the people who hold your parenthetically mentioned positions are never referred to other than by the whole title. "General Joycelyn Elders?" I think not.

It should be SG Clement and AG Mukasey. Or even "Mr."
12.6.2007 11:17am
srg:
Anderson,
I don't think KSM is either a soldier or a mere criminal. I think he is an unlawful combatant (you didn't answer my question about whether you consider unlawful combatants and criminals the same thing) who is part of a non-state organization (Al Qaeda) which considers itself at war with us. As such, he is not entitled to all the protections given POWs or alleged criminals, but is entitled to some degree of protection. I am not a lawyer and cannot spell out these protections in detail, but they certainly should go beyond what the Bush administration has been claiming.
12.6.2007 11:41am
Anderson (mail):
I think he is an unlawful combatant (you didn't answer my question about whether you consider unlawful combatants and criminals the same thing) who is part of a non-state organization (Al Qaeda) which considers itself at war with us.

I didn't respond to that part because it makes no sense to me. The notion that al-Qaeda's delusions of grandeur are sufficient to take them out of the reach of the law and into some bogus category made up by Yoo and Addington ... well, I don't share those delusions, to put it mildly.

I can go out tomorrow and declare myself "at war with the U.S." and shoot up 8 people in an Omaha mall, but that does not make me an "unlawful combatant." It merely explains the motives behind my criminal behavior.

Question: If Tim McVeigh belonged to a white-supremacist group that had "declared war on America" before the OK City bombing, would it have been proper to detain him as an "unlawful combatant" and send him to Gitmo for 6 years? Why not?
12.6.2007 12:08pm
srg:
Anderson,

So are you arguing that KSM should be given all the rights of other alleged criminals, e.g. Miranda rights, the right to see a lawyer immediately, the right to refuse interrogation? This seems absurd.
12.6.2007 12:21pm
ellisz (mail):
Anderson, I appreciate you replying to my questions.

But I don't understand why you seem to believe we have 2 choices - treating AQ types as POWs or common criminals. Is there any law we've signed that dictates this?

If not, then why not have a third category that applies to terrorists like KSM? surely most everyone would agree that they do not merit the protections accorded honorable POWs, and surely most everyone can see the problems posed by treating them as run of the mill criminals (Miranda foremost among them).

Of course we should have fair review proceedings to assure that we aren't just holding some poor guy handed off to us for bounty money, and i can't say if the ones in place now meet that standard. But once we take that step and make that showing, I don't see any reason not to question a guy at length, unaided by counsel, and to hold him at our leisure. If someone out there wants to avoid this fate, the means are simple enough.

ps - I believe one of the inspirations for the Geneva Convention protections for POWs was to encourage a certain level of conduct in wartime. but if we accord people like KSM more rights than your average POW (eg counsel, speedy and open hearings, right to confront accusers), then why would the average soldier not opt to go beyond the limits imposed by the GCs in fighting, as going beyond those limits may make fighting easier?
12.6.2007 12:24pm
srg:
Ellisz,

Very well put.
12.6.2007 12:29pm
Anderson (mail):
Elisz, my 1st problem with a "third category" is, Why? Is there something wrong with America's laws and courts? I don't get this point; I am pretty proud of them both, myself.

There is absolutely no basis for treating KSM as a POW, an "unlawful combatant," whatever, any more than we would do with a Mafia don or a Tim McVeigh. All the stuff about Geneva, etc. is a red herring.

The problem with KSM's prosecution isn't with the law, it's with Bush's contempt for the law he is sworn to uphold. I mean, what exactly would've been so hard about reading KSM his freakin' rights, since you repeat the Miranda point?

At this stage, the best I can hope for is to have KSM transferred into civilian custody and have the FBI start the case against him from square one, without relying on any of the tainted evidence. See here for some of their problems.

If you'll read Ron Suskind's fascinating "The One Percent Doctrine," you'll learn a lot about the bad choices that went into the detention and interrogation of KSM and others. Jane Mayer also has an excellent article on the subject.

--Srg, I have no problem with a KSM's being interrogated for national-security purposes, assuming there's a firewall between that and interrogation for the purpose of securing his conviction. I don't think anyone has seriously suggested otherwise.
12.6.2007 12:36pm
Oren:

Of course we should have fair review proceedings to assure that we aren't just holding some poor guy handed off to us for bounty money, and i can't say if the ones in place now meet that standard.


Either you haven't read about the CSRTs or that's a joke.
12.6.2007 12:40pm
Anderson (mail):
Of course we should have fair review proceedings to assure that we aren't just holding some poor guy handed off to us for bounty money, and i can't say if the ones in place now meet that standard.

Ellisz, the whole *point* of the present CSRT procedures is to ensure that they will not be fair. You don't have to read up very much on the subject to see that.

I mean, you're the feds - you're arguing that some guy is a Crazed! Terrorist! Baddie! who should never see the light of day again - but you have to keep him from seeing the evidence against him? You rely on what he said while you were pouring ice-cold water on his naked body in a 50-degree-F room? Why is that, exactly?

We have an ADVERSARIAL system of justice, on the theory that the guy most likely to do a bang-up job of proving the feds' evidence false, is the guy who's about to be put away for life. Think of it as free-market incentives.
12.6.2007 1:01pm
Oren:
I would hasten to add to Anderson's point that the CSRTs would be inadequate irrespective of the interrogation techniques used or the general treatment afforded the detainees. It's a fundamentally (and perhaps deliberately) flawed procedure.
12.6.2007 1:25pm
J. F. Thomas (mail):
ps - I believe one of the inspirations for the Geneva Convention protections for POWs was to encourage a certain level of conduct in wartime. but if we accord people like KSM more rights than your average POW (eg counsel, speedy and open hearings, right to confront accusers), then why would the average soldier not opt to go beyond the limits imposed by the GCs in fighting, as going beyond those limits may make fighting easier?

Because if you aren't declared a POW you can be charged with murder or attempted murder for doing your job (i.e., shooting at and killing the enemy). That is what POW status gives you, absolution for acts that you performed as a soldier that would be capital crimes if you committed them as a private citizen. It is like asking why would the prison guard who flips the switch on an electric chair want that job when he could make more money doing the same job as an electrician.
12.6.2007 1:34pm
ellisz (mail):
Anderson, the problem with giving KSM Miranda rights - as he apparently requested - is he would've then asked for a lawyer and shut down questioning. I don't think there is any reason to hobble ourselves in this fashion.
(your suggestion of a firewall is notable but i suspect this would prove unworkable in practice)

the answer to why a third category? is that the current two arent designed to deal with this.

Oren, like I said, I don't know the details of the current proceedings. they should be corrected if they are as defective as you say.

JF Thomas, sure, you can be charged w/ murder - assuming we have evidence you actually killed someone, of course. (why do you assume we would have that? far more likely, we'd have some guys we grab after a firefight or before a bomb goes off, in very suspicious circs but no more.) if charged, you get counsel, are free from questioning, and get to try to gum up the enemy's courts with this or that goose chase. if you don't think that would be appealing to some of the folks we're facing, I think you're ignoring what they say and do.

I don't want to be misunderstood. i agree that we must take steps to ensure we have actual bad actors and not unlucky ones. once we've done that, though, we should be able to hold them indefinitely like a POW, while pressing them for info.
12.6.2007 2:00pm
cboldt (mail):
-- we should have fair review proceedings to assure that we aren't just holding some poor guy handed off to us for bounty money, and i can't say if the ones in place now meet that standard. --
.

I think that's the bottom of the issue in Boumediene and others under military detention, and everyone will say they want a just process with a fair, accurate and speedy outcome.

.

The operator of the system, the Pentagon, will say not only that it wants that outcome, but also that it is delivering it, without error.

.

The method by which one reaches the conclusion that the review proceedings are adequate (i.e., the outcomes are accurate and the process is fair and "speedy") is at question. The administration says "the proceedings are fair and accurate" and that "Congress has established the limits of Court jurisdiction, such that it is inappropriate for a court to question the factual findings we present to it."

.

As much as I don't like the outcome, and as strongly as I think the CSRT/MCA process is, in some (but not all) cases a kangaroo court and a farce as far as fundamental due process goes, there is a quite legitimate argument that a court is powerless to remedy the errors of a military justice system operating under rigged rules crafted by Congress, and where no individual case is entitled to have factual findings subjected to independent oversight.

.

-- If someone out there wants to avoid this fate, the means are simple enough. --

.

What are those simple means? Use el Masri as an example - while he wasn't held at GTMO, he could have been.
12.6.2007 2:01pm
Oren:

Oren, like I said, I don't know the details of the current proceedings. they should be corrected if they are as defective as you say.


That's all I've been asking for this entire thread!
12.6.2007 2:15pm
Anderson (mail):
As much as I don't like the outcome, and as strongly as I think the CSRT/MCA process is, in some (but not all) cases a kangaroo court and a farce as far as fundamental due process goes, there is a quite legitimate argument that a court is powerless to remedy the errors of a military justice system operating under rigged rules crafted by Congress, and where no individual case is entitled to have factual findings subjected to independent oversight.

Don't keep us all in suspense, cboldt!
12.6.2007 2:20pm
srg:
Anderson, I don't think the kind of interrogation necessary when dealing with people like KSM (and I don't mean waterboarding) is consistent with their having Miranda rights and constant access to a lawyer.

I also don't think that when it comes to people like KSM the principle that it's better for 1 guilty person to go free than 10 to be convicted holds up.

People like KSM should at best be given trials similar to court martials rather than full civilian trials.
12.6.2007 3:06pm
Anderson (mail):
Anderson, I don't think the kind of interrogation necessary when dealing with people like KSM (and I don't mean waterboarding) is consistent with their having Miranda rights and constant access to a lawyer.

Not sure what you mean - are you referring to Padilla-style brain-scrubbing via isolation? I don't think that's necessary, desirable, or legal.

I think it's within executive discretion - tho I'd prefer to see a statute covering it - to hold a suspect like KSM for up to, I dunno, 6 months or so, for purposes of debriefing. I would want a FISA-style court to approve the detention, to avoid some of the farcical abuses we've seen.

As for his ultimate trial, I just don't understand this notion that sufficiently bad people don't deserve trials. I don't think that's right, I don't think that's American, and I pretty much defy anyone to prove otherwise.
12.6.2007 3:42pm
srg:
Anderson, I guess we've reached an impasse. I don't see why non-citizens who are members of a foreign, worldwide terror organization which sees itself at war with us should get more than some kind of court martial. But I do agree with you about the debriefing.
12.6.2007 4:02pm
ejo:
depsite the bleats to the contrary, they absolutely would extend better rights and privileges to the non uniformed. as one poster noted above, charge them with a crime or release them-well, if you charge them with a "crime", they get juries, constitutional protections available to all suspects and "proof beyond a reasonable doubt". Miranda rights, prompt arraignments, and discovery all come with those criminal charges. Certainly, nobody above would suggest you can treat them any worse than the uniformed sucker. the bottom line is still that they would be receiving rights and protections never offered in the past and, making absolutely no sense, more procedural protections than those who follow the rules. quite an incentive to following those rules, don't you think?
12.6.2007 4:19pm
Anderson (mail):
I don't see why non-citizens who are members of a foreign, worldwide terror organization which sees itself at war with us should get more than some kind of court martial.

Well, one more try. What did KSM do wrong? He plotted the murder of 2,900+ people. Well, morally that's terrible. But otherwise, so what? What's wrong with it?

The answer to that vapid question is, he broke the law. It was illegal to murder those people; it was illegal to plan their murder, even tho KSM did it in some Afghan hut.

Therefore, the reason we do more than merely deplore KSM is that he has committed felonies under U.S. (and, for that matter, New York) law. (Since I would like to see him executed, I would just as soon forget NY.)

People who commmit felonies are criminals, and what we do with criminals is arrest them, try them, and punish them.

What "foreign, worldwide terror organization which sees itself at war with us" KSM may have belonged to is simply irrelevant. I am unaware of any rule of law to the contrary. It's precious of him to think he's a field-marshal in the war against the infidels, and no doubt it helps him to sleep at night. But it's not of any legal import, unless perhaps a jury takes it into account in sentencing. Which I would urge them not to, were I the prosecutor.

Only states get to declare war. Other people who do warlike things are criminals. We killed 100,000 people in firebombing Tokyo; the Omaha mall-shooter killed 8. Leaving aside whether the former was actually a war crime, it was an act of war and as such nonculpable. The Omaha fellow did not have the option of saying "I'm at war with Omaha!" before he pulled the trigger, and thereby changing the legal analysis of his act.

So that's my position, and I would be happy if you would explain exactly why KSM's confused belief that he's "at war with America," or that he's the Great Gazoo, or whatever, should have any effect on our handling of him.
12.6.2007 4:20pm
SG:
Anderson,

You can't possibly mean what you're saying. And in fact, it seems that you don't as you'd allow KSM to be held for, say, 6 months for debriefing. That concession alone says that you do in fact see some trade-off between national security and the civilian notions of due process, just that you'd draw them in a different place.

But if you want to defend your original assertion that there's no conflict between our civilian system of laws and national security: How did KSM come to be apprehended in the first place? Who had authority to issue a warrant for his arrest? Does he have the right to contest his extradition from Pakistan? How was his location determined? Was that evidence properly gathered? Does he have the right to confront any informants used in determining his location? Do you not see the inherent problems in conducting war as a criminal investigation?

A declaration of war is knowing reduction in the amount of due process granted the enemy; search and arrest warrants, Miranda rights, the right to confront your accuser, even the notion of innocent until proven guilty, all of these notions are inapplicable under the laws of war. And this was the knowing intent of Congress when it issued the AUMF; the previous 8 years of the law enforcement approach against Al Qaeda that culminated in 9/11 was deemed inappropriate. Congress intentionally chose to reduce the amount of due process afforded Al Qaeda. This change was enacted with overwhelming bipartisan support and remains the current law of the land. You can certainly argue against the wisdom of the use of war against Al Qaeda. You can argue that Bush has failed to meet even the lowered bar that the law of war establishes. But Congress has declared war on Al Qaeda and it's simply not true that wartime enemies must be treated as ordinary criminals. The entire body of wartime legal precedent disagrees with you.
12.6.2007 4:22pm
Anderson (mail):
well, if you charge them with a "crime", they get juries, constitutional protections available to all suspects and "proof beyond a reasonable doubt".

Sucks to be an American, doesn't it? But there are plenty of other countries where none of the former rights are afforded to defendants. Shouldn't be too hard to move to one of them. Write us back and let us know what a grand time you're having there, okay?

P.S. - Bleat!
12.6.2007 4:22pm
srg:
Anderson, the more dangerous the person, the greater the risk in giving the person all the rights of a civilian trial. It's bad enough if a mafia hitman goes free, but far worse if a terrorist planning to get hold of biological or chemical or nuclear weapons goes free. It would be intolerable if someone like KSM got off on a technicality available only in civilian trials.

I think your idea that only states can be at war with us is outmoded, but perhaps international and domestic law have not caught up with this problem. 9/11 should be thought of as an act of war, not merely a criminal act.
12.6.2007 4:27pm
Anderson (mail):
You can't possibly mean what you're saying. And in fact, it seems that you don't as you'd allow KSM to be held for, say, 6 months for debriefing. That concession alone says that you do in fact see some trade-off between national security and the civilian notions of due process, just that you'd draw them in a different place.

I don't think the trade-off has ever been in dispute; but I don't see how I am contradicting myself. I think the required showing to a FISA-style court might have sufficient protections to be an alternative to habeas. I confess that I'm ignorant as to the ordinary time lag. If I'm arrested and file a habeas plea, how long does that normally take to get heard? Less than six months?

Regarding the concerns about KSM's apprehension, I think focusing on his particular case might actually make it too easy. It appears that the Pakistanis nabbed him, perhaps with American advice. IMHO, which I'd be happy to see disputed, the fact that he's held for intel questioning prior to being handed over for indictment is not a constitutional impediment; I'm sure his lawyers would argue to the contrary, but I don't see them getting much love from the courts on that.

Pragmatically, we've got to do SOMETHING with the KSM's of the world, and I don't see the SCOTUS treading on the executive's toes to that extent. Given the egregious conduct of Bush and Cheney, they've been remarkably subdued.

As for the AUMF, I see that as necessary b/c al-Qaeda was in a rogue state, Afghanistan, where only military force was going to serve to apprehend them. Consider if they'd been hiding out in the Welsh mountains. We wouldn't have had to go in, b/c the Brits would've produced them for us.

An AUMF is the functional equivalent of a DOW in some respects -- I'm not one of those "Vietnam wasn't really a war" Quixotes -- but it does not transform the target of the force into a proper subject for the laws of war. Consider *why* an AUMF, not a DOW, was considered the proper path to follow. I would argue that the nonapplicability of the laws of war to al-Qaeda made that particularly apt.

Finally, if we *are* at war with al-Qaeda, and if KSM *is* a soldier in Osama's army ... then why hasn't he been extended POW privileges?
12.6.2007 4:34pm
ejo:
thank god we at least have an admission (or a non-denial) of the simple fact that those whose conduct is the worst and most removed from the laws of civilized warfare will receive the most rights under the formulation proposed by the anti-bushes. it is absolutely the most twisted policy that could be proposed and the absolute worst incentive that could be offered. what are these people thinking?
12.6.2007 4:36pm
EJM (mail):
I got in late on this very excellent discussion, but in 200 odd posts, I'm still not seeing anybody make sense on why foreign nationals captured by the military are entitled to any US legal process whatever. I think the argument that Guantanamo is not US soil is reasonably specious -- but the lack of US nationality of these people seems to me significant. Why are these people any different than pirates ? Leaving aside the moral arguments, why, legally speaking, do the Guantanamo detainees (who are not US citizens) have habeas corpus rights, even assuming they're guilty of nothing ?
12.6.2007 4:37pm
Anderson (mail):
It would be intolerable if someone like KSM got off on a technicality available only in civilian trials.

See, that's the problem here -- mistrust of the American legal system. I just don't see a KSM getting off on any technicalities, unless the feds are supremely incompetent - in which case, blame them.

But that argument proves too much. What if Tim McVeigh had gotten off on a technicality? Wouldn't that have been horrible? I think so! Therefore ... what, exactly? We should suspend legal protection for Really Bad Criminals? Defined as ...?

As for war vs. crime, I think I've explained my position, and I don't see how to proceed with the argument against repetions of "but it's a war, because it's a war, because it's a war." Why is it a war?
12.6.2007 4:39pm
cboldt (mail):
-- there is a quite legitimate argument that a court is powerless to remedy the errors of a military justice system operating under rigged rules crafted by Congress --

.

See Justice Scalia's dissent (Joined by CJ Rhenquist and Justice Thomas) in Rasul v. Bush, 542 U.S. 466 (2004)

.

US courts can't fix every screw-up and injustice that the US government perpetrates. Sometimes that's a case-by-case shortcoming, sometimes entire classes of case are precluded from being considered, as a matter of absence of jurisdiction.

.

Matters labeled "military" and "crime perpetrated in a foreign territory" represent substantial jurisdictional carve-outs. Deserters have no recourse to the writ of habeas corpus in a federal district or circuit court, for example.

.

The issue of jurisdiction as between a military and civilian court is common. This article on Bolivian Court, while a far fetch from the issue of US Military holding foreigners in GTMO, illustrates the principle of multiple jurisdictional venues, with carefully controlled and limited "exchange" of cases.
12.6.2007 4:43pm
Anderson (mail):
why, legally speaking, do the Guantanamo detainees (who are not US citizens) have habeas corpus rights, even assuming they're guilty of nothing ?

Because the 14th amendment guarantees due process of law to any person within the territorial jurisdiction of the U.S.

The fact that you happen to be apprehended by a soldier in the Hindu Kush, rather than by a deputy in the Mississippi Delta, does not affect the extent of the 14th amendment, or make you an "unlawful combatant" rather than a particularly-hard-to-get-at criminal.

The piracy argument is actually not a bad one, though I think the rising tide of human rights in the West makes summary treatment of pirates, where not justified by necessity, unacceptable today. Haven't spent a lot of time thinking about it, since it's not usually a topic of much discussion.
12.6.2007 4:44pm
SG:
Anderson:

Al Qaeda is a wartime enemy because Congress declared them to be so. Absent the AUMF (which doesn't mention Afghanistan at all) I'd agree with you.

Also note that similiar language was used in the AUMFs (also not DOWs) issued against Iraq in 2002 and 1991. Surely those were wars, correct? It seems clear that Congress was granting the executive wartime power consistent with previous and future nation-state wars. I don't see the distinction you're attempting to draw present in the actual grant of authority given to the executive.

As to why KSM isn't granted POW privileges? Because he doesn't qualify for them, and it's been deemed not to our advantage to do so.
12.6.2007 4:51pm
SG:
As an aside, are there any good references/discussions as to why Congress typically hasn't issued a true "Declaration of War"? I haven't seen any compelling argument that there's a meaningful distinction between a DOW and an AUMF, so why don't they just issue a true Declaration of War? What is the hair they are splitting?
12.6.2007 4:59pm
ejo:
these rights have never been granted in a similar situation. that much is clear from all of this argument. One thing I can't quite figure out, from all this twisted reasoning, is how one can, on one hand, cite to the Geneva Conventions while simultaneously favoring a policy that is guaranteed to undermine the whole reason for them. Don't want to follow the rules-that's okay, by your failure, you've just earned yourself more rights than you would have had by following them. You get proof beyond a reasonable doubt, Miranda warnings, the works, you name it.
12.6.2007 5:01pm
EJM (mail):
Thank you for the link, Anderson. That looks to be an interesting article.

It seems clear then, that if matters turn out as you seem to expect, (that is, that this case follows both Rasul and Yick Wo) -- Guantanamo is an experiment which will not be repeated. In future, probably no "detainees" will be permitted to touch US soil at all, assuming they survive at all to be "detainees."
12.6.2007 5:02pm
Anderson (mail):
Okay, why doesn't KSM qualify for POW privileges?

As for the AUMF issue, we're off into very hazy legal territory indeed, I freely confess (not to mention my own lack of expertise therein). I would start from the premise that Congress cannot declare war against anyone or anything - that "war" has to be against some entity with whom one can actually fight a war.

Could Congress declare war against the Mafia, for instance? Against the KKK? Why or why not?

To the extent that Congress "declared war" on al-Qaeda, I'd say that was legally mistaken -- never mind the vanishingly small chance that our courts would even agree to rule on the question. Given this error, the thing to do now is to correct it, not to exacerbate it.
12.6.2007 5:02pm
Mark Field (mail):

I'm still not seeing anybody make sense on why foreign nationals captured by the military are entitled to any US legal process whatever. I think the argument that Guantanamo is not US soil is reasonably specious -- but the lack of US nationality of these people seems to me significant. Why are these people any different than pirates ? Leaving aside the moral arguments, why, legally speaking, do the Guantanamo detainees (who are not US citizens) have habeas corpus rights, even assuming they're guilty of nothing ?


There's actually been a good deal of discussion on this, though not all in this thread. The basic answer, as Anderson said, is that under the Constitution (both 5th and 14th Amendments), due process is owed to every person. That restriction on state/federal power is not limited to citizens, and the courts have repeatedly upheld this.

I should add that I disagree with Anderson to some extent. While I personally have no problem with the idea of giving Miranda warnings to captured terrorists -- I think it makes us look like we care a lot about justice -- I don't think that's required. Due process is a flexible term; in different situations, the amount "due" need not be the same. Thus, for example, deportation proceedings don't have the same protections as ordinary criminal trials. What's important in the particualar situation here is only that the core values of due process remain in effect: the right to be heard; the right to hear the evidence against you; the right to call evidence in your defense; the right against torture; and perhaps a few others.
12.6.2007 5:07pm
Anderson (mail):
In future, probably no "detainees" will be permitted to touch US soil at all, assuming they survive at all to be "detainees."

That will raise other questions. IMHO, wherever the U.S. in fact controls, U.S. law runs.

The post-Gitmo solution would appear to be the "black sites," where the U.S. has no legal authority but where cooperative regimes provide us with torture chambers. Congress is going to have to address that one with a statute, would be my guess.

SG, I'd like to know that myself re: the DOW phobia; maybe it's so they can tell The Folks Back Home that they didn't really vote for a war?
12.6.2007 5:09pm
Anderson (mail):
Due process is a flexible term; in different situations, the amount "due" need not be the same.

Agreed. It's just tricky to concede away anything without finding that the "core rights" amount to round bullets instead of square ones.
12.6.2007 5:13pm
Mark Field (mail):

In future, probably no "detainees" will be permitted to touch US soil at all, assuming they survive at all to be "detainees."


I'm not saying it never happened, but I don't believe cops generally kill people just to avoid all the inconvenience of a trial. And I really don't believe our soldiers would commit war crimes by murdering captives.

As for "touching US soil", IMO that doesn't matter. I understand that's probably not current law, but I expect it will be eventually. Courts don't generally look kindly on obvious gamesmanship. The whole history of habeas corpus shows us that.
12.6.2007 5:15pm
SG:
Okay, why doesn't KSM qualify for POW privileges?

Because Al Qaeda is not a party to the Geneva Convention, nor does KSM (or Al Qaeda generally) fullfil the 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.

See Article 4 of the Third Geneva Convention for the full details.

As far as not being able to declare war on Al Qaeda generally, the first war fought by the United States was against the Barbary Coast pirates. That seems ample precedent to me. Why is this not applicable?

Like I said, I'm open to the argument that war is the wrong tool for this job, but even if war is the wrong tool for this job it's the right tool for others. Blurring the line between enemies and criminals creates hazards on both sides. War can't be effectively conducted as law enforcement, and neither should law enforcement have the tools of war.

If we were to follow your precedent of saying Al Qaeda are simply criminals, then all the relaxations of due process you're prepared to countenance (being held for 60 days with only a hearing before a secret court?) will be available to be used against common criminals. And don't think they won't be used; look at how quickly the Patriot Act provisions were used against drug dealers. I'm much rather keep that particular genie in its current bottle.
12.6.2007 5:22pm
Anderson (mail):
Not to seriously argue KSM's a POW, b/c I don't think he is, but (1)-(3) don't seem to be a problem - they grabbed the guy in his house, &I don't think that nabbing a general in his boxers would make him a non-POW.

As for (4), that's part of my problem with the whole "war with al-Qaeda" thing. Of course they don't follow the laws of war -- they're not at war. But *we* for some reason want to have our cake &eat it too -- we "declare war" on Qaeda, and then refuse to fulfill our duties as a warring party b/c they don't play by the rules.

I hear ya on the extension of the GWOT to other crusades like the "drug war," but at least that's a problem within a legal framework, not an attempt to avoid problems by acting outside the rule of law.
12.6.2007 5:37pm
Oren:
Sg,

KSM is a war criminal (of sorts, anyway). Many of the other detainees are not. The question in Boumediene is whether the CSRTs are an adequate method for sorting them out.
12.6.2007 5:43pm
ejo:
don't backtrack from your fellows now-they want them charged with crimes or released. are you disagreeing with them? come on now, why do you hate this country so. they deserve jury trials, proof beyond a reasonable doubt and everything else-if you disagree, you hate the Constitution.
12.6.2007 5:46pm
Anderson (mail):
Here to lighten the mood is some dark humor. Compare Michael Hayden on the need for waterboarding etc. --

Hayden argued that CIA interrogators were older and as a rule better trained than military interrogators. "We weren't consulted about the army field manual, and no one ever claimed that the army field manual exhausted all the lawful tools that America could have to protect itself," he said.

-- with Jane Mayer:

On September 17, 2001, President Bush signed a secret Presidential finding authorizing the C.I.A. to create paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world. Yet the C.I.A. had virtually no trained interrogators. A former C.I.A. officer involved in fighting terrorism said that, at first, the agency was crippled by its lack of expertise. "It began right away, in Afghanistan, on the fly," he recalled. "They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world." The former officer said that the pressure from the White House, in particular from Vice-President Dick Cheney, was intense: "They were pushing us: 'Get information! Do not let us get hit again!' " In the scramble, he said, he searched the C.I.A.'s archives, to see what interrogation techniques had worked in the past. He was particularly impressed with the Phoenix Program, from the Vietnam War. Critics, including military historians, have described it as a program of state-sanctioned torture and murder. A Pentagon-contract study found that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by the Phoenix Program were of negligible importance. But, after September 11th, some C.I.A. officials viewed the program as a useful model.

Yeah, such expertise.
12.6.2007 5:47pm
ellisz (mail):
Anderson, Mark, et al, I'm with you on the need for a fair review to determine enemy combatant status. There are many reasons why this is worth the costs imposed (and there are serious costs), the al masri case a good example of the perils it avoids.

But once that's been established, you lose me on the notion that we must treat them as crim defs rather than as something less. I don't think the Const demands it, or has ever been read to demand it (consider the treatment of german saboteurs in WWII), and I don't think it is worth the cost. Once we know KSM is KSM we should be able to hold him til we've drained him of actionable info, then try him at our leisure. Keeping him off the field, so to speak, is a great positive in and of itself.
12.6.2007 5:59pm
Anderson (mail):
Omigod:

C.I.A. Destroyed Tapes of Interrogations
By MARK MAZZETTI

WASHINGTON, Dec. 6 — The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency's custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A's secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

The C.I.A. said today that the decision to destroy the tapes had been made "within the C.I.A. itself," and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.
12.6.2007 6:03pm
Oren:

General Hayden said the agency stopped videotaping interrogations in 2002.


Wonderful. We didn't stop torturing suspects, we just stop documenting it so we can stonewall and pretend it never happened!
12.6.2007 6:18pm
cboldt (mail):
-- I'm with you on the need for a fair review to determine enemy combatant status. --

.

The government says it has provided that, and in fact, always provides a fair and accurate review, does not require independent oversight, and that absent a grant from Congress, the detainee has no right to independent oversight. The independent review that Congress grants to detainees is a review of the law, and confirmation that the findings of fact produced by the government (without questioning the truthfulness of those findings - they have a conclusive presumption of being complete and accurate) support detention.

.

And that, says the government, is more than fair. But even if it wasn't fair (e.g., the factual findings are in error), the Court lacks the power to look any further than Congress says the Court may look.

.

"Due process" doesn't mean "correct outcome."
12.6.2007 6:24pm
Anderson (mail):
But even if it wasn't fair (e.g., the factual findings are in error), the Court lacks the power to look any further than Congress says the Court may look.

Unless Congress cuts back the protections of the Constitution ... right?
12.6.2007 6:30pm
Oren:

And that, says the government, is more than fair. But even if it wasn't fair (e.g., the factual findings are in error), the Court lacks the power to look any further than Congress says the Court may look.


Firstly, the Court is the final arbiter of their own jurisdiction and Congress cannot, consistent with Article III, overrule that determination. In your mixed-up world, Congress can pass a law banning abortion or private gun ownership (say) and inform the Court that it cannot inquire into the constitutionality of those laws only that they have been implemented faithfully.

Secondly, if these detainees have a right to a fair determination of their status then clearly there must be a remedy by which they can vindicate that right.
12.6.2007 6:40pm
MarkField (mail):

Because Al Qaeda is not a party to the Geneva Convention


This is not the test. Under the GC, they apply (I'm paraphrasing) when the conflict takes place within a signatory country. Afghanistan is and was a signatory country (and so are all other relevant countries like Iraq and Pakistan), so the fact that Al Qaida didn't sign is irrelevant.


But once that's been established, you lose me on the notion that we must treat them as crim defs rather than as something less.


The issue I see is this. We have to have a justification to hold people in prison. I think everyone agrees that we can't just willy-nilly grab people and throw them in a dungeon (I'll forbear snark about the Bush Administration here). We need to have a legal basis for doing so.

There are two generally accepted legal bases. One is to give them POW status. I'm not opposed to this, and it has the advantage that if they've violated the laws of war even while claiming combat, they can be tried under military law. That's all fine with me.

The other option is quasi-criminal (as I said above, I don't think they need the whole panoply of due process we provide here). Since you used the example of the German saboteurs, I'd note that they got exactly such a military trial, including not only counsel, but counsel who took their case all the way to the SCOTUS. It's hard to see why most Al Qaida types would be due less than Nazis (!) who were actually here to kill us.*

As for questioning, I don't think that's an issue most of the time. When the military captures someone, they have every right to question them (IMO). That's essential to their safety and to the determination whether they should hold them at all. I have no problem with that. Now, I agree there may be hard cases down the line, but the cases now before the Court aren't hard at all. These are people who (1) were NOT captured by the military; (2) were NOT on any battlefield; and (3) have been held for 6 frickin' years. There's no possible "intelligence" excuse for this. As for the hard cases later, it's like Rick said when asked how he felt about the Germans in London: "When you get there, ask me."

Finally, as for KSM, your comment simply assumes that he's actually guilty. Now, he may very well be, but the whole point of due process is to supply some evidence that that's true. It's fair to debate the issue, but not to assume the conclusion.

*Their trial was not perfect for reasons I won't detail here. I'm assuming no government shenanigans.
12.6.2007 6:48pm
cboldt (mail):
-- Unless Congress cuts back the protections of the Constitution --
.

I was trying to describe a legal framework, flawed as it may be. The "even if the facts are in error" is meant to illuminate a situation where the outcome is incorrect, but all the legal jots and tittles are properly crossed. "Due process" does not equal correct or fair outcome, or even "fair process."

.

The Court is co-opted into agreement with the decider below, by being denied the power to question the contents of factual findings.

.


Said another way, "all the protections allowed [to a person alleged to be an enemy, and being held by the military] under the Constitution" may be merely the presence of proper form, even if that form resembles a choreographed groupthink.

.

This issue of "fact finding" and production of exculpatory evidence is playing out in separate cases currently pending before the DC Circuit. The DC Circuit demanded the government produce all the evidence, and the government said it couldn't, without great effort. Bismullah v. Gates, Parhat v. Gates (SCOTUSblog: Government duty in detainee cases narrowed)
12.6.2007 6:49pm
cboldt (mail):
-- In your mixed-up world, Congress can pass a law banning abortion or private gun ownership (say) and inform the Court that it cannot inquire into the constitutionality of those laws only that they have been implemented faithfully. --

.

Congress couldn't legislate in those fields, as against people in the US at any rate, without coming under independent review by the Courts. The Courts would easily find jurisdiction, and it would be a cinch to find somebody with standing.

.

What turns the detainees issue into a conundrum is the fact that the detaining authority is the US military, which is running its own, independent operation of acquisition, detention, and evaluation, and then limiting its action to foreigners.

.

The administration argued for years that even Congress had no business setting procedure in this sphere. It wasn't until SCOTUS spanked both Congress and the administration in Hamdan that Congress enacted the procedure that the administration/Pentagon crafted for itself.

.

I think the outcome is a travesty of justice in identifiable cases. I think the administration is working and arguing in something resembling bad faith. But that doesn't mean the Courts have the power to assert a remedy. See, e.g., the prosecution of the perps and commanders (and coverup) of the massacre at My Lai. All done within the confines of the military justice system. Justice? Heheheh. Not reliably found on planet earth.
12.6.2007 7:06pm
Bart (mail):
Anderson (mail):

It would be intolerable if someone like KSM got off on a technicality available only in civilian trials.

See, that's the problem here -- mistrust of the American legal system. I just don't see a KSM getting off on any technicalities, unless the feds are supremely incompetent - in which case, blame them.


The American criminal justice system is designed to ensure that the innocent are not punished for crimes even if the guilty go free.

Detention of POWs is a preventative measure to keep the captured enemy from returning to the battlefield.

Under our criminal justice system, unless the government can offer admissible evidence which proves KSM's guilt of a specific crime beyond any reasonable doubt, KSM goes free to continue to war against the United States and murder our citizens. When the evidence consists of foreign witnesses who will refuse to appear and disclose their identities to al Qaeda and classified captured documents which we do not want to disclose to the enemy, then there is no legal way to convict someone like KSM under our criminal justice system.

Under the laws of war, so long as we have reason to believe that KSM is an enemy combatant, we can detain him off the battlefield for the duration of the war. This is in no way unfair. This rule of war has been used since armies have been detaining POWs.

You need to understand that each of our soldiers is sworn to do everything under their power, fair and unfair, all the way up to killing to escape and evade capture. If our soldiers were caught in the same situation as KSM, they have and would make up lies about being innocent civilians in order to escape imprisonment and return to the battlefield. Why would you expect anything less from al Qaeda and the Taliban?

Indeed, at least a dozen Taliban, including a regional commander, have lied convincingly about being civilians and have been released by the CSRTs from Gitmo and repatriated to Afghanistan, where they promptly returned to the business of killing our troops while bragging how they fooled the Americans.

If a dozen terrorists were released and returned to the battlefield under the present CSRT system, which only requires a preponderance of what would be normally inadmissible evidence in a civilian criminal trial, how many hundreds do you think will be released back to the battlefield if we treat them as civilian criminal suspects?

How many of our soldiers will those released terrorists kill?

Why would our soldiers bother any longer taking prisoners of terrorists fighting as civilians. As I pointed out above, they will not. They will kill them on sight unless they need intelligence and then they will render the captured terrorist to a foreign government for custody so our courts will not release them.

My friend, the maxim that it is better to release ten guilty men than convict one innocent does not seem like such a good idea if the ten guilty men will turn around and kill hundreds of others upon release.
12.6.2007 7:11pm
Oren:

What turns the detainees issue into a conundrum is the fact that the detaining authority is the US military, which is running its own, independent operation of acquisition, detention, and evaluation, and then limiting its action to foreigners. (my emph)


Independent of what? Certainly not the constitution! The US military was created (whole cloth!) by the US Constitution - otherwise, they'd just be thugs with guns.


My friend, the maxim that it is better to release ten guilty men than convict one innocent does not seem like such a good idea if the ten guilty men will turn around and kill hundreds of others upon release.


I have to agree (GASP) with Bart on this one. In a military context, the ratio is about 1:1. I certainly would not indefinitely imprison 3 men if I knew 2 were innocent but couldn't them out. As far as the CSRTs go, I get the feeling they would imprison 100 innocents to get a single terrorist.
12.6.2007 7:30pm
cboldt (mail):
Independent of what?

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The military justice system runs independently from the legal system for criminal prosecutions.

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And military commissions or tribunals, e.g., Nuremberg, can be set up with narrow and exclusive jurisdiction.
12.6.2007 7:43pm
Oren:

The military justice system runs independently from the legal system for criminal prosecutions.


So can I assume that you've conceded the fact that they are still subject to the US Constitution?
12.6.2007 7:45pm
cboldt (mail):
-- So can I assume that you've conceded the fact that they are still subject to the US Constitution? --

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I don't think that concession is worth anything, without a more specific statement of what you mean by "subject to the US Constitution." The US military is subject to the Constitution, and so are the Blackwater contractors who shot a bunch of innocents without provocation. That doesn't get a wrongfully detained prisoner a hearing in a US non-military courtroom.

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I do think the military tribunal procedure that the administration crafted for itself, and got Congress to endorse, lends itself to manufacturing "rightful detentions" out of thin air. That's not justice, it flat-out wrong. But that same process can be used to obtain a just conviction.

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Bottom line, I think the administration is screwing things up bigtime by manufacturing "success" at the expense of fair justice. It's not the first administration to act this way, see Korematsu. I think Congress is derelict in its duties. But I have to concede, I don't know of a precedent or constitutional principle that provides an enemy military prisoner with the right to have the facts of his case transferred to the civilian courts for an ultimate and final review.

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I think fundamental due process is grossly offended in identifiable cases, and reluctantly conclude that this defect may be persistent.
12.6.2007 8:22pm
Oren:

But I have to concede, I don't know of a precedent or constitutional principle that provides an enemy military prisoner with the right to have the facts of his case transferred to the civilian courts for an ultimate and final review.


But, if such a precedent or constitutional principle existed, you would have no problem applying it to the injustice you see manifest in the current CSRTs? What I mean is that we have established a violation of some notion of justice and the only question is the appropriate remedy by which to cure it?
12.6.2007 9:36pm
Oren:
English habeas applied to a foreigner in a foreign land.

And of course, we have Rasul to guide us here:

As Lord Mansfield wrote in 1759, even if a territory was "no part of the realm," there was "no doubt" as to the court's power to issue writs of habeas corpus if the territory was "under the subjection of the Crown." King v. Cowle, 2 Burr. 834, 854—855, 97 Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of "the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown." Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).14
12.6.2007 9:40pm
cboldt (mail):
Play the issue in the reverse order. Hypothesize a person accused of a criminal act, who, perceiving the civilian court is rigged against him, files a habeas petition to a military court to have the accusation (or outcome) reviewed. Would the military court be competent to take the case away from the civilian court?

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IOW, it's not so much that the detainee has no right to a hearing. He's getting one -- maybe a dishonest one, but it's a hearing. That's where the supposed "fundamental due process" inquiry plays. A right to hear the accusation, a right to rebut it, a right to counsel who is familiar with the legal process. Some standards as to admissibility of evidence. Some standard that guides reaching a conclusion (e.g.,preponderance; beyond reasonable doubt). All that process stuff is present *in form* in the MCA. That form may or not contain material that creates a fair proceeding.

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Or, what if SCOTUS said (as it did in Korematsu), "this is hunky dory legal." Point being, in some instances, an injustice is rationalized, institutionalized, or made "somebody else's wrong - not my problem."

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The system doesn't always deliver what it claims it will, fair and impartial justice.
12.6.2007 10:09pm
Oren:

Play the issue in the reverse order. . . . Would the military court be competent to take the case away from the civilian court?


This is a red herring. Unless the person committed a crime while in service of military during a time of war*, the military court has no jurisdiction over him. The Supreme Court, OTOH, is empowered to decide "all cases, in law and equity, arising under this Constitution" the last of which includes prisoners at Gitmo (per Rasul). In functional terms, one can always appeal from the court of narrow jurisdiction to that of broader one but not the other way around.

Moreover, the appropriate remedy, IMO, is not to 'take the case away' from the CSRTs but to remand to some form of tribunal that satisfies the criteria discussed ad nauseum in this thread. The role of the courts in this scenario would be to delineate these minimal criteria and ensure that they are being implemented properly.


IOW, it's not so much that the detainee has no right to a hearing. He's getting one -- maybe a dishonest one, but it's a hearing.


If the Constitution requires (and maybe it doesn't) that this hearing contain some basic elements of due process then it's just not good enough.


Or, what if SCOTUS said (as it did in Korematsu), "this is hunky dory legal." Point being, in some instances, an injustice is rationalized, institutionalized, or made "somebody else's wrong - not my problem."


If the detainees' rights under the constitution are being violated then it is the Court's problems because they are entrusted with protecting those rights. Korematsu was not only wrongly decided on the merits but fundamentally procedurally flawed insofar as the Court did not even attempt to do its constitutional duty but rather deferred to the executive outside its area of competence.
12.6.2007 10:40pm
cboldt (mail):
-- This is a red herring. --
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It wasn't meant to be more than a device to illustrate the "parallel" nature of the legal systems; each one independent of the other. Of course, a person in "the wrong one" would argue that his case belongs in the other system, and he'd need a reason.

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The detainees in question were picked up and are incarcerated by the military. This gets to your "If the detainees' rights under the constitution are being violated" threshold.

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The thread that these cases are hanging by is incarceration in GTMO. This discussion hasn't been undertaken with regard to the tens of thousands held in Iraq, Afghanistan; or the (whatever number, scores I'd guess) held at "black sites." How do THOSE people (some of which are wrongly held) get their case heard by a US court? See al Masri.
12.7.2007 8:43am
Oren:

It wasn't meant to be more than a device to illustrate the "parallel" nature of the legal systems;


It's more of an inner/outer rather than a parallel. The military courts exist inside the constitution which is, in its entirety, subject to review by the SCOTUS.


This discussion hasn't been undertaken with regard to the tens of thousands held in Iraq, Afghanistan; or the (whatever number, scores I'd guess) held at "black sites." How do THOSE people (some of which are wrongly held) get their case heard by a US court? See al Masri.


First, please try to remember that I don't want enemy combatants tried by US courts but rather want those courts to enforce minimal standards on the military courts.

Secondly, those held in Iraq and Afghanistan ought to be afforded a CSRT equivalent as soon as is militarily practical (if we are going to detain them indefinitely). Such a procedure worked fairly well in Vietnam and could be readily adapted here. I would give the military a wide berth but the principle remains.

Lastly, "black sites" are a fundamental violation of ICRC standards and ought to be eliminated. If the military wants to keep the existence of a prisoner secret, I would allow such a thing for 6 months, renewable to 1 year, upon review by a CSRT (a real one!) that the prisoner has actionable intelligence or that revealing his capture would be detrimental.
12.7.2007 9:54am
cboldt (mail):
-- I don't want enemy combatants tried by US courts but rather want those courts to enforce minimal standards on the military courts. --
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The US court (I assume you mean a non-military court; the CSRT's and Military Commissions are also forms of US courts) has to hear the case in order to enforce the application of procedural and evidentiary standards. How does the case even get in the door?
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The government argues that the MCA, with it's authorization to the DC Circuit to enforce the standards prescribed therein, is exactly your "[non-military] courts to enforce minimal standards on the military courts."
12.7.2007 10:15am
Oren:

The US court . . . has to hear the case in order to enforce the application of procedural and evidentiary standards. How does the case even get in the door?


The plaintiff submits a complaint alleging that the procedure applied in his CSRT violates the minimal standards required as a 'habeas substitute'. The District Court asserts jurisdiction based on the constitutional claim that the detainee has been denied habeas without an adequate substitute.


The government argues that the MCA, with it's authorization to the DC Circuit to enforce the standards prescribed therein, is exactly your "[non-military] courts to enforce minimal standards on the military courts."


The CSRT standards as prescribed in the MCA are constitutionally inadequate as is the standard by which the DC circuit is to review the CSRTs. Congress has no right to suspend the writ in the manner in which they have done. It is up to the court to either fix the fatal flaws in the procedure or punt back to Congress for an acceptable statute.
12.7.2007 4:31pm