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Bagram, anyone?

Here is the draft executive order for shutting down Guantanamo. Note this language (emphasis added):

Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

“Transferred to another United States detention facility”—including an American military facility, an American military facility located in another country?

There is this:

4(c)(5) Consideration of Issues Relating to Transfer to United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States and the review participants shall work with Congress on any legislation that may be appropriate.

But that hardly answers the question, indeed, suggests that the answer may be “yes.”

Observer:
"they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility"

I think the key interesting word here is "released." What is this supposed to mean, that current Guantanamo detainees could be released and allowed to live in the United States?????
1.22.2009 12:12pm
AntonK (mail):

(2009-01-13) — As news broke that Barack Obama reportedly plans to issue an executive order on his first day in office closing the U.S. terrorist detention center at Guantanamo Bay, Cuba, Democrat governors across the country lobbied Mr. Obama for the privilege of welcoming the remaining 248 former enemy combatants as residents of their states.

As word of the planned shuttering of “Gitmo” leaked from Obama transition team officials through reliable anonymous sources to The New York Times, phones in the Office of the President-Elect began to ring, with one governor after another offering increasingly sweeter deals to woo released detainees.

“Gitmo is the great civil rights tragedy of our time,” said one unnamed source familiar with transition team thinking. “Naturally, Democrat governors feel compassion on these men — unjustly imprisoned, held without bail or trial, and all because of a war that George Bush started because he hates Muslims and wants more oil for his buddies in the petroleum business. What governor wouldn’t want to be part of this humanitarian rescue? It’s an honor to give them their first taste of freedom.”

Insiders said nearly all Democrat governors have checked in, vying for their “fair share” of Gitmo detainees with offers of government jobs, usually in the state capitol, Medicaid coverage, and low-interest mortgage loans or even HUD Section 8 vouchers to cover the cost of renting a new home in a nice suburban neighborhood. Some have sweetened the deal with small business loans or grants, and cheap rent in “business incubators” allowing the former the enemy combatants to return to their former trades. Others offered to help these deeply-religious men to construct new places of worship, and to use government-owned public address systems to issue their calls to prayer five times daily.

“The governors see an opportunity to right a grievous wrong perpetrated by America,” said the source, “and at the same time they’re eager to make their home states, and the ranks of state employees, more diverse. They see President-elect Obama as the second Great Emancipator and they want to secure their places in history alongside of him
.”
1.22.2009 12:15pm
J. Aldridge:
Why doesn't Obama just release them since that is what any loony federal judge will end up doing on the grounds their rights have been violated!
1.22.2009 12:18pm
geokstr:

Here is the draft executive order for shutting down Guantanamo. Note this language (emphasis added):

Sec. 3. Closure of Detention Facilities at Guantánamo.

Does this mean that the entire Guantanamo base will be closed and revert to Cuban authority or just the "detention facilities" there?
1.22.2009 12:23pm
zippypinhead:
Nice try, but... Bagram is too close to the action in the event of coordinated jailbreaks, and with luck control over that base will be turned over to a potentially less-than-reliable "partner" government one of these days after we eventually declare "mission accomplished" in Afghanistan and withdraw...

Better idea: If you don't actually want them located within the jurisdiction of the U.S. courts, just outsource the future detention of all the Gitmo alumni to the Chinese. The Chinese will like it because it will fit nicely with their domestic "economic stimulus" policies by helping keep our balance of payments to them as deeply in the red as before the economic downturn. Besides, I hear China also doesn't particularly like Islamic terrorists very much, and given the way their penal and justice systems work, the detainees will all be dead in a year or two and U.S. taxpayers (or debt-holders) can stop funding their incarceration...
1.22.2009 12:26pm
dbett (mail):
Hope and change baby.
1.22.2009 12:30pm
Sigivald (mail):
Observer: It means they could be released. It in no way suggests that they'd be allowed into the United States at all, let alone to live there.

(At least if they're foreign nationals; if there are any US citizens in the set of people involved, things might change. But I don't know that any of them are, or for sure that anything would necessarily change .)
1.22.2009 12:33pm
Federal Dog:
"transferred to a third country"

Rendition?
1.22.2009 12:34pm
Suzy (mail):
Observer, another key word is "or". Released does not necessarily mean released in the U.S. A person who is returned to home country or transferred to another country could still be under detention. Released could mean that they are released in one of those other places, as opposed to being returned to detention in home country, transferred to a third party, or transferred to another U.S. facility.

In short, all options are open. Why would that be bad, assuming that they'll want to take a careful look at each case?
1.22.2009 12:35pm
Don Miller (mail) (www):
From a former-military perspective, one of the reasons why Gitmo was a great place to hold prisoners was the remoteness of if.

Their chance of escape was small, but if they did escape, they would most likely be escaping into Cuba, thereby making them not an immediate threat to American lives. The ability of Al Quaeda to organize an outside escape attempt was also greatly diminished. They would almost need the active cooperation of the Cuban government to gather the personnel and material needed to make an attempt.

No other Military detention facility in the world will have both of these advantages.

I think the Bush Administration, in the long run, would have been better off calling these detainees Prisoners of War, and treating them that way in the first place. I know there were political and emotional reasons not too, but I think the US Courts would have been very reluctant to go along with all the Habeus petitions for people designated as POWs.
1.22.2009 12:35pm
Nicholas Stabile (mail) (www):
I'm assuming that Prof. Posner believes "other U.S. detention facitil[ies]" cannot be inside the U.S. proper.

So then why include that language? Possibly just for flexibility reasons. If Obama truly wants to close Gitmo, then he'll likely want to close other Gitmo-esque bases (or at least not increase their utilization). [Assuming this isn't all just a political ploy].

In response to geosktr--Maybe your finding suggests the meaning of "released". The prisoners will simply be let go in Cuba. Then possibly they will just be part of Cuba, possibly arrested. I don't know what type of international law problems this poses, but I imagine there are some.

So what happens to them?
-Prosecuted in U.S. courts;
-Given to third country, e.g., China;
-Returned to home country;
-Held by U.S. overseas; or
-Held by U.S. at home.
1.22.2009 12:39pm
PLR:
Unlike the great military strategist and prison warden zippypinhead, it wouldn't surprise me if at least a few detainees should appropriately be relocated to Bagram.
1.22.2009 12:45pm
PLR:

The prisoners will simply be let go in Cuba.

Non-starter.
1.22.2009 12:46pm
Richard Aubrey (mail):
It wasn't that Gitmo was so awful. It was that it was visible and a tool with which to bash Bush and the war.
If the boys are sent elsewhere, they'll still be a tool to bash the war. The Usual Suspects aren't going to bash O, and, since he now owns the war, won't bash that, either.
So we may find--probably not find it, given the change in lineup--that the situation for the Gitmo Goons has not changed, or possibly has changed for the worse, but nobody will be pretending to care.

Someone said years ago that he wished a dem had been elected in 2004, so the dems wouldn't mind winning the war. I hate to see a dem in office, but there is that in the calculations.
1.22.2009 12:49pm
Zaggs (mail):
I don't see Bagram happening. First off its reputation is worse then Gitmo (the only deaths at Gitmo coming from suicide). As previous posters mentioned its too close to the front lines and not the most secure facility (people have escaped from it before). nor do I think he can legally try to wiggle his way into a foreign base as they do not technically belong to the US as they usually are leased. Gitmo is US land by treaty.
As Aubrey says nothing was really wrong at Gitmo. No one died from their treatment there. Hell no one was severely injured which is amazing when you consider the guards literally get shit on damn near everyday.
1.22.2009 12:58pm
David Drake:
A news report I heard on the radio this A.M. said "a NATO facility in Afghanistan." -radio station of an historically black university, FWIW. That makes sense to me. Don't know if NATO will be thrilled about taking them, though. If it's Bagram, I'd like to hear the rationale for why that is different from Gitmo.

AntonK--great work!
1.22.2009 1:01pm
bornyesterday (mail) (www):
Maybe Obama has worked a deal with Raul whereby we let the 248 out the front gates, Cuban police pick them up and deposit them in the Havana Penitentiary, and in exchange we end our embargo of the country. Of course it will all be hush hush, so the liberals have two things to celebrate - the closing of gitmo and the beginning of reconciliation with our cuban brethren - and another thing to protest - the inhumane treatment of prisoners in Cuba. Of course, they could have been protesting the latter for the last 50 years, but that wouldn't have jived well with their general pro-Castro lean.
1.22.2009 1:01pm
Dave N (mail):
Richard Aubrey,

I agree with much of your post. Gitmo has become a symbol (mostly of of BDS) more than anything else. The Bush Administration chose the location because their legal theory was that it was outside the United States and the host country would have zero say.

The Supreme Court torpedoed the "outside the United States" theory. But even then, Gitmo was possibly the best place to hold the detainees outside of the continental United States.

However, your last paragraph, while nice to contemplate, would never have happened. By 2004, the Democratic Party was tied to the message that Iraq was unwinnable and that we should immediately withdraw.

Even today, I can't think of a single Democrat (outside of Joe Leiberman) who has said, "We were wrong in our 2004 assessment; the surge worked; if the current trajectory continues, we will have won."
1.22.2009 1:01pm
JoeSixpack (mail):
They should all be hosted at the White House. Maybe they can share the Lincoln Bedroom and vote in the next election.
1.22.2009 1:04pm
ed (mail) (www):
Hmmmm.

If this nonsense wasn't so awful I'd be laughing right now.

And when it turns out that these detainees are transferred to a similar facility that has as it's only value that it's not located in Gitmo, I will laugh at every liberal that screamed about Gitmo.

Because no doubt, since it's Obama, they'll be just A-ok with it.
1.22.2009 1:05pm
ed (mail) (www):
Hmmm.

Personally how about SF Bay? located right next to Code Pink HQ?

That'll get some knickers in a twist.
1.22.2009 1:06pm
wfjag:
He's specifically invoking GC III.
Art. 22 of GC III (1949) states:


ARTICLE 22

Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries.

Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favourable climate.
The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture, except with their consent.


Looks like he has to put them all in one place (unless they concent to be seperated). Other provisions govern the conditions of confinement. Generally those are required to be the same as for the depot troops of the detaining Power. US Army Soldiers are generally provided small suites in which to live (4 Soldiers in 2, 2-bed rooms with a common area, with shower and toilets in the same building (usually on the same floor), and a common area/recreation area with TV, snack machines and video games in the same building (usually on the first floor). [And, "Yes" this does sound like college dorms, since beginning in the early 1980s, that's what has been the model for junior enlisted barracks.]

It doesn't look like anyone who understands what, in fact, is being ordered has reviewed this. Why does that not surprise me?
1.22.2009 1:17pm
Fidelity (mail) (www):
Maybe we should just round them all up, and shoot them. After all, it's not like we're going to pull "justice" out of thin air and make their treatment excusable in the history books. We certainly - for what ever reason(s) listed above - can not release them with dignity, apologize sincerely, and beg for their forgiveness.

Fuck'm, shoot'm, leave them in a field. It's easier than being moral.
1.22.2009 1:18pm
Houston Lawyer:
Alcatraz

You could get even more tourists to go look at these guys.
1.22.2009 1:21pm
Richard Aubrey (mail):
David N.
You presume the dems said those things because they believed them.
IMO, they said those things because a republican was president and would have turned on a dime, whatever that is, had a dem won in 2004.
1.22.2009 1:25pm
Awesome-O:
And when it turns out that these detainees are transferred to a similar facility that has as it's only value that it's not located in Gitmo, I will laugh at every liberal that screamed about Gitmo.

That's one reason that taking a year to close Gitmo is politically shrewd. Obama signs an executive order closing the prison, with much fanfare. Today's headlines: "Obama Signs Order Closing Guantanamo Prison." The left loves it, Europe loves it, the UN loves it.

Twelve months from now Gitmo will be a distant memory, and the left won't even be paying attention to where the former Gitmo prisoners are currently being held.
1.22.2009 1:28pm
RPT (mail):
What is the basis for the conclusion that any of the detainees are so dangerous? Are they worse than the Supermax guys? Do they have access to weapons? Do they have superpowers? Aren't they ordinary persons (albeit collectively demonized for various reasons(? Colorado, California, New York, etc. all have maximum security prisons to house people who objectively appear much more dangerous than any Guantanamo detainee. Isn't this just more GWOT hype to justify failed policies? Don't all of you have to insist on this fantasy in order to justify the past? Really, name one detainee who would be a threat in a maximum security state or federal prison, and explain why he would be so.
1.22.2009 1:32pm
Thomas_Holsinger:
Transfer them to Congress. Hold them in the Capitol Building. This will reduce the damage both can do to the U.S.
1.22.2009 1:32pm
Thos.:
I like the "transferred to a third country" option.

I could see enemy combatant detention becoming a niche-market specialty in international trade. The island-nation of Nauru operated a contract detention facility with the government of Australia for a few years, so the idea isn’t totally without precedent.

This idea could be developed in many ways, but here's one stab at it:

A maximum-security facility is built in some sovereign state (ex: the fictional nation of Q).

The US turns over detainees to Q, accompanied by a certification that they are lawfully held.* The government’s certification provides Q immunity from any challenge to its role in the detention (provided they perform according to contract). The responsibility for putting a detainee there is entirely the Federal government’s and any attempt to make Q answer for it is enjoined.

Along with the prisoner and the certification, the US also gives Q a sizable bond. If a detainee escapes, Q forfeits the bond. From that point on, Q is paid a modest fee (per prisoner, per day) to cover a portion of its operating costs. At the end of the agreed-upon term of detention – could be years, could be life – Q cashes in the bond and reaps its profit, plus interest.

All detainees would be given a periodic review of their cases. This could be done at the start of a new administration to hedge against use of this system for political purposes, at regular intervals of time or whatever ends up being appropriate. Thus, the law on enemy combatants is allowed room to evolve naturally over the course of time without permanently locking in bad decisions.

If review of a detainee’s case finds the detention improper, the US forfeits the bond to Q (for violating their certification that detention was legal). If review of conditions finds that Q has treated the detainee inhumanely, Q forfeits the bond.

If you wanted to get really wild, you could partner with a Native American tribe to do this on a sovereign reservation. I trust that that would be way messier than working with a country like Nauru, but a part of me also likes the idea of the .gov partnering with Native American tribes to solve difficult legal/political problems. It’d be nice if the US’s default stance towards Native Americans was toward active engagement rather than just ignoring them as much as possible.



*The question of detention facilities is separate from what kind of review best balances detainee due process rights and national security. That is for the President, Congress and the Courts to work out. Regardless of how that process ends up working, you still have to keep people someplace.
1.22.2009 1:36pm
ginsocal (mail):
Personally, I think a tragic "accident" during their transfer (with the "lucky" aircrew being the only survivors) would be the optimal outcome.
1.22.2009 1:39pm
Observer:
Sigivald: "Observer: It means they could be released. It in no way suggests that they'd be allowed into the United States at all, let alone to live there."

Then why is "released" being offered as an alternative to them being "transferred to a third country" or "returned to their home country," both of which also involve them being "released"? I think that Section 3 says that basically one of four things will happen to each detainee: he could be (i) transferred to a different facility, (ii) released and sent home, (iii) released and sent to a third country, or (iv) just "released", which has to mean released in the United States.
1.22.2009 1:47pm
My Middle Name Is Ralph:
Why does 4(c)(5) suggest Gitmo detainees would likely be transferred to Bagram? I'm not following the logic of this assertion.
1.22.2009 1:48pm
JP_ (mail):
I think Federal Dog notes the most interesting part of the Order. How is being "transferred to a third country" (i.e., not the U.S. and not the detainee's home country) not going to be "extraordinary rendition?"
1.22.2009 1:51pm
commontheme (mail):

Personally, I think a tragic "accident" during their transfer (with the "lucky" aircrew being the only survivors) would be the optimal outcome.

That criminal thinking is so January 19, 2009.
1.22.2009 1:53pm
Bob from Ohio (mail):
ginsocal: he he

Long my ideal solution.

Use a ship though.

For some reason the water tight doors couldn't be opened...


collectively demonized


Crap, you saw right through it. We are demonizing Khalid S Muhammed (sic) et al. Nobody there did anything to us, we just demonize them.
1.22.2009 2:01pm
Bruce Hayden (mail) (www):
I'm assuming that Prof. Posner believes "other U.S. detention facitil[ies]" cannot be inside the U.S. proper
Part of the original theory seemed to be that if the detainees were not in the U.S. itself, then they wouldn't be entitled to all the rights that we provide prisoners here, including that of trial - which is problematic in many cases given the evidenciary problems with trying people caught on the battlefield halfway around the world.
I think Federal Dog notes the most interesting part of the Order. How is being "transferred to a third country" (i.e., not the U.S. and not the detainee's home country) not going to be "extraordinary rendition
It isn't, and keep in mind that most of those who could be sent back to their home country have been already. This leaves either sending them back to countries with questionable human rights records, or to the country in which they were caught (typically Afghanistan), neither that acceptable an answer.

It sounds good to hear that we are going to shut down Gitmo, but the reality is that the detainees there have been reviewed and reviewed, and those who are safe to us and have a safe place to go, have probably already been shipped out. That leaves those who are: 1) too dangerous to release; 2) have some value to us (mostly I would guess related to 9/11, since any intelligence value is likely gone due to the time involved, or 3) there is nowhere to send them that is safe.
1.22.2009 2:09pm
Bruce Hayden (mail) (www):
Rereading my last post, I note that the number of negatives concerning extraordinary rendition may be confusing. In that post, I was essentially agreeing that extraordinary rendition is precisely what we are talking about with transferring detainees to third countries.
1.22.2009 2:12pm
Richard Aubrey (mail):
Bruce.
Wrt those too dangerous to release. This is a big country. If one of those clowns is released and harms an American, it has a vanishingly small chance of being one of those who called for his release. And the injured parties can always be called little Eichmanns. Pigs. Rednecks. Win-win for the proponents of release. No downside.
1.22.2009 2:15pm
Michael B (mail):
Not a good sign. To the contrary, it further suggests a lack of well grounded analytical ability and political backbone. Essentially, a poorly thought out sop thrown to the far Left and to others affected with BDS and similar malformed motives.

And this: "as soon as practicable, and no later than one year from the date of this order" is reminiscent of Obama's January 31, 2007 legislative foray that would have, had it been successful, subverted the Iraqi effort at a low ebb, immediately prior to the point where Gen. Petraeus's "surge" strategy was initiated, gained a foothold, and quickly became a winning strategy. The specific wording in that January, 2007 legislation (S.433, Iraq War De-Escalation Act of 2007) being referred to follows:

(1) DEADLINE FOR COMMENCEMENT OF REDEPLOYMENT - Except as otherwise provided in this section, the phased redeployment of the Armed Forces of the United States from Iraq shall commence not later than May 1, 2007.

(2) SCOPE AND MANNER OF REDEPLOYMENT - The redeployment of the Armed Forces under this section shall be substantial, shall occur in a gradual manner, and shall be executed at a pace to achieve the goal of the complete redeployment of all United States combat brigades from Iraq by March 31, 2008, consistent with the expectation of the Iraq Study Group, if all the matters set forth in subsection (b)(1)(B) are not met by such date, subject to the exceptions for retention of forces for force protection, counter-terrorism operations, training of Iraqi forces, and other purposes as contemplated by subsection (g).

In sum, yet another indicator suggesting a legislator's, a lawyer's and a triangulating politician's mind, within an executive's charge. Yet all of it intoned with the same, excessively self-assurred manner he perfected during his campaign and his political career in general.
1.22.2009 2:31pm
egn (mail):
This thread is unpleasant and beneath the Conspiracy.

Do people really need to prove their conservative bona fides by suggesting -- jokingly-but-not-really-nudge-nudge -- that the US stage an "accident" involving its terror detainees? That those who care a little about due process and prisoner treatment want to see people in "real America" killed and call them "little Eichmanns"? It's just tiresome. Take it to Redstate or LGF.
1.22.2009 2:37pm
My Middle Name Is Ralph:

Then why is "released" being offered as an alternative to them being "transferred to a third country" or "returned to their home country," both of which also involve them being "released"?


I think "released" means set free. "Transferred" definitely means still in custody; if you read the rest of the order that is clear. Thus, "released" could mean released in a third country. It doesn't necessarily exclude release in the USA, however.
1.22.2009 2:41pm
RHJ:
I've never been sure why people have been so adamant about shutting down Gitmo. It's simply a detention facility and if Obama want's to change the prisoners'conditions then he can do so. But why demand closing a base whenever a restructuring would work just as well.
1.22.2009 2:47pm
My Middle Name Is Ralph:

I think Federal Dog notes the most interesting part of the Order. How is being "transferred to a third country" (i.e., not the U.S. and not the detainee's home country) not going to be "extraordinary rendition?"


Perhpas the detainee is has been convicted of a crime or is suspected of a crime in a third country. Wouldn't that be extradition/ordinary rendition?
1.22.2009 2:48pm
Davebo (mail):
Ah yes, Libertarians...
1.22.2009 2:54pm
My Middle Name Is Ralph:

I've never been sure why people have been so adamant about shutting down Gitmo. It's simply a detention facility and if Obama want's to change the prisoners'conditions then he can do so. But why demand closing a base whenever a restructuring would work just as well.


Gitmo is a symbol. Closing it down sends a message to the rest of the world that "we [will] restore the standards of due process and the core Constitutional values that have made this country great even in the midst of war, even in dealing with terrorism."
1.22.2009 2:57pm
Elliot123 (mail):
Obama is president. He and his team have had two years to figure this out. Why is Guantanamo still open? Why is Obama shackling innocent civilians in inhuman squalor? Everyday he operates this horror he tramples the Constitution, trashes the Geneva Convention, and diminishes the respect the rest of the world has for the US. Make no mistake. Obama is doing it.
1.22.2009 2:57pm
John Moore (www):
I think it is probably benign. There are other places to put them (albeit few as secure as GITMO).


However, regarding holding them in a facility in the US:
What is the basis for the conclusion that any of the detainees are so dangerous? Are they worse than the Supermax guys? Do they have access to weapons? Do they have superpowers? Aren't they ordinary persons (albeit collectively demonized for various reasons


No, many are not ordinary persons. They are trained fanatics.

But more important, they have armed, ruthless allies outside of the prison. Al Qaeda had no prayer of getting to them at GITMO. Put them in a prison in the US, and Al Qaeda might try something - like kidnapping the families of guards, using explosives to force a breach, etc.

Not likely, but still an issue. GITMO was a brilliant location. Too bad all the pin-heads ruined it with their silly moralizing.
1.22.2009 2:59pm
wohjr (mail):
@ John-

You're watching too much 24 man....
1.22.2009 3:14pm
Awesome-O:
Why is Obama shackling innocent civilians in inhuman squalor? Everyday he operates this horror he tramples the Constitution, trashes the Geneva Convention, and diminishes the respect the rest of the world has for the US. Make no mistake. Obama is doing it.

If Obama wanted to start treating the prisoners in Guantanamo Bay like prisoners to whom the Geneva Conventions applied, he could start doing it immediately. Instead we're getting a year-long wind-down of Gitmo, to be followed by some other arrangement for the detention of terrorists that, had Bush done it, would have resulted in cries for impeachment.

If Guantanamo Bay is a war crime, then Obama is a war criminal.
1.22.2009 3:26pm
Anderson (mail):
Right. That's what Obama is all about: this is all a ruse because his real plan is to confine everyone at Bagram.

This thread is unpleasant and beneath the Conspiracy.

Unfortunately, the past few years indicate the contrary. Pond scum who endorse murder in cold blood are perfectly welcome here.
1.22.2009 3:31pm
Matthew K:
Wow, I never thought I'd see so much support for lawless executions on a libertarian blog. Where did we leave those things...what are they called....principles? Yeah, that's the word.
1.22.2009 3:33pm
Davebo (mail):
Not just a Libertarian blog Matthew K. A legal Libertarian blog.
1.22.2009 3:40pm
Brian Mac:

Pond scum who endorse murder in cold blood are perfectly welcome here.

Awww, thanks! *Hugs*
1.22.2009 3:43pm
My Middle Name Is Ralph:

If Obama wanted to start treating the prisoners in Guantanamo Bay like prisoners to whom the Geneva Conventions applied, he could start doing it immediately. Instead we're getting a year-long wind-down of Gitmo, to be followed by some other arrangement for the detention of terrorists that, had Bush done it, would have resulted in cries for impeachment.


Check the news and try to calm the hysteria. Obama's issued an executive order regarding the treatment of detainees that adresses your "concern."
1.22.2009 3:44pm
gray (mail):
Why not transfer them to the USA, charge them with a crime if there is any possibility of a conviction and then send them to Supermax upon conviction?

Or would that be too legal and above the board?
1.22.2009 3:51pm
Richard Aubrey (mail):
egn.
You haven't been keeping up.
But,just for grins, let's suppose you support releasing these guys where they can harm Americans. They are released where they can harm Americans. They harm Americans.
Your response?
Keep in mind you'll have to distance yourself from it. One way is to minimize the importance. Like, rednecks, dim-bulb prison guards and their inbred families.
Apologies? Don't think we'd hear it.
1.22.2009 3:53pm
Awesome-O:
Not just a Libertarian blog Matthew K. A legal Libertarian blog.

Not just a legal Libertarian blog. A legal Libertarian blog run in part by guys who draw their salaries from government universities.
1.22.2009 4:13pm
Franklyn (mail):
Why don't we just drop the "extraordinary" and simply call it rendition? It is really not that unusual anymore.
1.22.2009 4:20pm
Davebo (mail):
Awesome,

And how is that fact relevant?

And in fairness, it's the commenters, not the blog owners who just can't seem to get it.
1.22.2009 4:22pm
Anderson (mail):
But,just for grins, let's suppose you support releasing these guys where they can harm Americans.

So on that example, we should just shoot everyone who's ever released because the charges against him have been dismissed, or because he was acquitted ... because he might hurt somebody in future?

That's just stupid. Also ruthless, evil, and despicable; but first and foremost, just stupid.

Leaving aside, of course, that many Gitmo prisoners may be people who were innocent before, but are by-God bound and determined to kill them some Americans now. We have to keep them locked up because locking them up turned them against us?
1.22.2009 4:25pm
Awesome-O:
And how is that fact relevant?

If you're looking for Libertarian Ideological Purity (LIP) - which you apparently are - it's best to get it from folks who aren't on the dole, don't you think?
1.22.2009 4:28pm
wfjag:

Obama's issued an executive order regarding the treatment of detainees that adresses your "concern."

Aside from providing another round of fawning press reports, this order will change what at GITMO? The ICRC has had representatives there all along, who have had 24/7 access to the detainees and were allowed to investigate all complaints. No evidence of mistreatment of detainees by US personnel at GITMO has been revealed (and, "No" I don't consider press releases by attorneys for detainees to be "evidence"). One of the truly laughable aspects of the complaints about the "treatment" of the GITMO detainees is that the most common problem that has been found is weight gain -- in some cases to obesity -- due to being fed right food in whatever portions the detainees want to eat.

Since the federal courts have already held that the detainees have the right to challenge their detention in federal court, and since the Exec Order grants Common Article 3 rights, it will be easy to conclude that the detainees have the right to challenge in federal court the place and conditions of their detention. Art. 22, GC III (1949) prohibits keeping PWs in prisons (unless they are convicted of a crime). And, generally PWs are required to be kept in the same type of facilities as the detaining power keeps its own Soldiers. Since the early 1980s, the "barracks" for US Army Soldiers has been based on college dorms (part of trying to attract college-age kids to enlist).

Although a lot of the current detainees are highly trained and dangerous, they have not been convicted of any crime. As others have noted, transferring them involuntarily to another country sounds like rendition.

Unless the detainees' attorneys are complete fools (and to date they've shown themselves to be smart, aggressive litigators who follows a sophisticated legal and PR strategy to advance their clients' interests), they will be able to block any attempt to either transfer detainees to any other country or hold them in a prison, and likely will force bringing the detainee to the US to be held under conditions that will make maintaining security very difficult.

But, a campaign promise is a campaign promise, right?
1.22.2009 4:30pm
commontheme (mail):
Anderson, you have to remember that Aubrey is probably the type of person who watches 24 or reads breathless bodice busters about glorious warriors
1.22.2009 4:31pm
PlugInMonster:
And thus all the checklist of liberal wet dreams is proceeding along nicely.

Next:

* socialize the remaining 50% of private health care
* decimate the military
* throw Israel to the wolves
* institute 100% inheritance tax
* raise income tax rates to 1950 level
* start up a new "Great Society"
* declare "war on terror" to be over and apologize to the world
1.22.2009 4:45pm
Al Maviva:
1) Transferring the prisoners to the countries where they came from is probably a violation of the Convention Against Torture, as enacted at 18 USC 2340. You can't ship people to a place where you reasonably believe they will be tortured, and that would include Saudi, Yemen, Egypt, Jordan, Syria, Pakistan, Iraq or Afghanistan. You can get "assurances" that they won't be tortured from those governments but as the human rights groups point out, those are mere fig leaves.

2) Bringing the prisoners to the U.S. - yep, you can do that, but as the D.D.C. determined several weeks ago, you can't hold people indefinitely without charges, per Zadyvyas. So you will still be in a release/repatriate/or try them situation. The grants of asylum when this starts ocurring will not doubt trigger outrage on the paranoid right, but fortunately we'll be able to defuse that by just ridiculing conservatives.

3) This leaves the option of the U.S. criminal courts. I have to assume that we'll be giving full protection of the laws to people held on U.S. soil. So any evidence used against the detainees will have to meet 4th Amendment muster. Unless the nature of military service has changed considerably in the years since I served, troops don't generally serve warrants in combat, do not rely on a probable cause standard, or offer Miranda warnings. You could choose to prostitute the court system to get at foreign terrorists seized on foreign lands by dropping ordinary evidentiary requirements and rights protections, but I'm not sure how comfortable I am with that. Similarly, how comfortable are people with the idea that our courts can exercise universal jurisdiction over a foreign people, just because they happen to belong to a group antagonistic to the United States? I believe the domestic courts option is either a canard, or a further movement toward turning the U.S. Court system into an imperialistic victor's justice system - which it has been for quite a while on social policy questions, but not on foreign policy or military questions. There is also the matter that the Geneva Conventions prohibit ordinary criminal trials of enemy prisoners of war, which protection the Supreme Court appeared to extend in Hamdan. You can try them for war crimes, but is merely being a terrorist and killing Americans or host nation citizens a war crime? I don't think so, and believe that no matter what Obama does, he's going to find himself the defendant in some more lawfare cases.

Of course the other solution is we could just pretend that the Gitmo detainees are a bunch of innocent shepherds torn away from their loved ones by teh horrid Bush Regime. Ultimately, I think that's the path I'll take because it doesn't require any hard choices, and when they return to kill again - as some of them do - I can just shrug my shoulders and say "it's better that 650 guilty men go free than a single innocent man be held." Platitudes don't have many calories, but they sure do nourish a man's inflated self-image, if you chew on enough of them... Plus if it all goes bad I can just blame Bush. It worked for the last 8 years, no reason it can't work for the next 8.
1.22.2009 4:50pm
Ken Arromdee:
A legal Libertarian blog run in part by guys who draw their salaries from government universities.

Please, not this again. Libertarians think that the benefits of government funding of something are outweighed by the harm done, not that there are no benefits at all. Deciding not to get a job at a government university would be foregoing the benefit without foregoing the harm (since there's no option not to pay taxes, and there's no option to create the non-government jobs that would exist if the government jobs weren't taking their place).

By your reasoning, if I steal your money (which you were going to use for food) buy some inferior food, and give the inferior food to you, you would be a hypocrite if you ate it rather than starve.
1.22.2009 4:52pm
Anderson (mail):
No evidence of mistreatment of detainees by US personnel at GITMO has been revealed

You mean, besides Susan Crawford's admission that Qahtani was tortured at Gitmo?

Yes, leaving statements like that aside, there is no evidence.
1.22.2009 4:56pm
Anderson (mail):
Deciding not to get a job at a government university would be foregoing the benefit without foregoing the harm (since there's no option not to pay taxes, and there's no option to create the non-government jobs that would exist if the government jobs weren't taking their place).

I believe you've just proved the libertarian case for accepting welfare payments, too.
1.22.2009 4:58pm
Roscoe B. Means (mail):
"Why not transfer them to the USA, charge them with a crime if there is any possibility of a conviction and then send them to Supermax upon conviction?

Or would that be too legal and above the board?"


No, it would just be impossible, no matter how guilty they may be. The courts changed the rules after reasonable chances to gather evidence had passed into history. And we've never trained our soldiers to be detectives. If anyone had ever suggested that such a process would be appropriate as little as a decade ago, they'd have been considered imbecilic. Which is still my opinion.

Not to mention that it would violate core principles of the Geneva Conventions. Detention without trial is exactly what those agreements require.
1.22.2009 4:58pm
Dave N (mail):
Leaving aside, of course, that many Gitmo prisoners may be people who were innocent before, but are by-God bound and determined to kill them some Americans now. We have to keep them locked up because locking them up turned them against us?
And what is your evidence for this assertion?
1.22.2009 4:59pm
Richard Aubrey (mail):
Actually, Anderson et al, we dumped cable a year ago. I have no idea what's going on with American Idol, Dancing with the Stars, Jerry Springer, or 24. You have the advantage of me.
I was going to write a Harlequin. Sent away for the outline, but I never got around to it. I don't read them.

I apparently touched the trigeminal nerve

I merely asked what would be the response of the supporter of releasing these guys where they could harm Americans if they harmed Americans. I made no policy prescription, shooting or otherwise. But I apparently got to your real vulnerability. You wouldn't really care.
1.22.2009 4:59pm
Richard Aubrey (mail):
What is it with this thing?

Anyway, your hysterical ascription to me of horrid wishes to shoot just about everybody means you see the problem but have no answer. Nor want one, obviously. So you have to outhowl someone who points it out.
That gets old.
1.22.2009 5:02pm
My Middle Name Is Ralph:

No evidence of mistreatment of detainees by US personnel at GITMO has been revealed (and, "No" I don't consider press releases by attorneys for detainees to be "evidence").


The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial disagrees with you.
1.22.2009 5:07pm
Anderson (mail):
Leaving aside, of course, that many Gitmo prisoners may be people who were innocent before, but are by-God bound and determined to kill them some Americans now.

DaveN, I said "may." Whether any of the prisoners fit that description is something that we don't know, and can't know without some investigation -- and ultimately, without releasing them and seeing what happens.

My point is to rebut the nonsense touted by R. Aubrey, who seems to think he has some kind of valid argument based on the notion that freed prisoners might harm Americans (sic).

-- And then, I see, hides behind "what? I didn't suggest anything, I just asked a question." Because none of us has ever read anything by R. Aubrey before at the VC, after all.
1.22.2009 5:08pm
http://volokh.com/?exclude=davidb:

The Supreme Court torpedoed the "outside the United States" theory.

They reached that decision because they were victims of BDS, no doubt.
1.22.2009 5:16pm
My Middle Name Is Ralph:

No, it would just be impossible, no matter how guilty they may be. The courts changed the rules after reasonable chances to gather evidence had passed into history. And we've never trained our soldiers to be detectives


How do you know someone was guilty of something if you have no evidence of it?

Also, at what point in our history did we ever convict people of war crimes without evidence? That's not how I remember Nuremberg (at least the movie).
1.22.2009 5:25pm
Roscoe B. Means (mail):
"You mean, besides Susan Crawford's admission that Qahtani was tortured at Gitmo?

Yes, leaving statements like that aside, there is no evidence."


If that's what you take to constitute "evidence," then so be it. But an article in Harpers is not evidence. If you've read that passage in context, all Crawford was "admitting" was that she went "over the edge" and used the word "torture" to describe what she knows was NOT torture. She says she did so because of her sympathy for a prisoner with a medical condition. But the editors at Harpers either can't read or don't care to.
1.22.2009 5:38pm
PC:
Also, at what point in our history did we ever convict people of war crimes without evidence?

9/11 changed everything.
1.22.2009 5:48pm
Elliot123 (mail):
"Check the news and try to calm the hysteria. Obama's issued an executive order regarding the treatment of detainees that adresses your 'concern.'"

How about the concern that Obama insists on keeping innocent civilians locked up in steel cages in a concentration camp? How does any executive order justify that? Each day this hypocrite plays with innocent lives in his private gulag, the international community loses more and more respect for the US.
1.22.2009 5:49pm
Dennymack (mail):
Much respect to the legal profession, but one of the problems we are having in creating a solution is that we are looking for a legal solution that fits precedent without creating bad precedent. Some situations have no good legal solution. This is one.
The problem does not stem from Gitmo, it comes from the manner in which our enemy chose to fight us. By eschewing all of the things that would make them fit into our system, such as uniforms, command structure, national government (giving us some agency with which we could conclude a peace) they have made our customs in regard to enemy soldiers unworkable. It is not our disregard for law that leads to a decision to hold them forever, it is the nature of their cause. They are not soldiers of a defeated army, they are warriors in an ongoing Jihad that explicitly mocks the idea of parole. Do not expect any legal remedy for this, it will not come.
So do we keep them forever? I guess so. The military trials seemed like the best(but not good) way to determine if these guys are actually a threat, but it seems that doesn't satisfy our critics. Civilian trials by our rules seem to be elaborate release ceremonies, as none of these guys were mirandized before questioning.
Setting aside the law for the moment, is there a good way to determine if these guys are a threat?
I would like to hear from some law gurus on this, though:
What would be worse for our system, setting alleged terrorists outside our system, or bending our system until we can fit them in?
Dennymack

ps- This is not an endorsement of any proposal, I am searching for someone else's bright idea for a resolution.
1.22.2009 5:55pm
My Middle Name Is Ralph:

How about the concern that Obama insists on keeping innocent civilians locked up in steel cages in a concentration camp?


You can't clean up the mess Bush made in one day. Although Obama made a great start.


Each day this hypocrite plays with innocent lives in his private gulag, the international community loses more and more respect for the US.


Did you see a poll of the international community regarding the Obama administration or did you just pull this statement out of your a@@?
1.22.2009 5:58pm
Joseph Slater (mail):
Michael B. suggests Obama's reversal of Bush policies shows a "lack of political backbone."

How so? He said he would do this during his campaign; it's not obviously the most popular of his campaign promises (indeed, it opens him up to all of his "soft on terrorists" stuff you see in this thread); and now he's doing it. A lack of backbone would be doing what some conservative pundits inaccurately predicted (cough, Krauthammer, cough): that Obama would wind up adopting Bush's policies in the "war on terror" after all.

Especially given that Bush and his dwindling band of supporters have been trying to make an overriding virtue out of doing what you believe/what you say even if others think it's a bad idea, how is this a lack of backbone?
1.22.2009 6:05pm
PC:
How about the concern that Obama insists on keeping innocent civilians locked up in steel cages in a concentration camp? How does any executive order justify that? Each day this hypocrite plays with innocent lives in his private gulag, the international community loses more and more respect for the US.

I see what you did there.

When you walk into someone's house and spray it with diarrhea, some people might think you are being disingenuous when you turn around and start screaming about how much the place stinks.
1.22.2009 6:10pm
PC:
Speaking of things Obama hasn't done yet, I wonder if President Hussein Obama has told the NSA to stop spying on journalists and congresscritters?
1.22.2009 6:13pm
Richard Aubrey (mail):
Some prisoners released from Gitmo have harmed Americans, or gotten killed in the effort.
Difference is it was Over There, not closer to home.
1.22.2009 6:28pm
wfjag:
Perhaps true Ralph, but even Judge Crawford's conclusion contains major qualifications. This is very evident from different reports of her interview.

You link to the WaPo Jan. 16, 2009 report, which states:

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.


The Reuters arfticle, reported in the International Herald Tribune (NYT) Jan. 14, 2009, article captioned U.S. official says Guantanamo detainee was tortured, states:

Crawford told the Post the techniques used in Qahtani's case were authorized but applied in an overly aggressive and too persistent manner.

"This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, Crawford said.

That's an interesting change in the emphasis and supports different conclusions. Further, even assuming that your intrepretation of her remarks is correct, that's something of an interesting "legal" standard. All of the techniques were authorized and apparently legal, but, because we have an "egg shell terrorist" it's now "torture". (and as Roscoe points out, Judge Crawford never said it was "torture" -- that's a journalistic (editoralizing) conclusion).

Still, the more important issue is what do we do with the detinees? While I disagree with the SCOTUS's holdings, they are the SCOTUS and a 5-4 decision is just as binding as a 9-0 decision till it's overruled. I believe it's a fair conclusion that the SCOTUS has come close to equating PWs with criminals for the purposes of habeas corpus rights and proceedings (except, of course, the detainees have never been convicted of a crime). It was recently reported that some 61 of the detainees previously released (who were thought to be safe to release) are now known to have returned to fighting with terrorist groups. Most of the ones still detained are considered even more dangerous than those previously released. If they are given PW rights (which I believe this order does) and they have full h.c. rights, then basic due process analysis requires looking to an independent source of law to define their rights. GC III (1949) for PWs is the logical source to look at. Art. 22, CG III prohibits putting PWs in prisons unless they are convicted of crimes. Being a combatant is not (by itself) a crime, nor are combat activities as a combatant (so, although they may have killed and are also clearly willing to do so again, that's not a crime -- but, their detentions will be judged under h.c. standards and procedures designed to review the continued detention of people convicted of crimes using evidence admissible under the FRE or similar state laws). Under GC III PWs are to be kept in conditions equivalent to those that the detaining power keeps its own depot troops. To attract college age kids to volunteer to enlist, since the early 1980s, "barracks" in the US have resembled college dorms. The "barracks" being built today for junior enlisted Soldiers are 2 private bedrooms connected with a common area. Bring the detainees to the US and their attorneys can insist that these are the conditions in which they be kept. And, I also believe that they will be able to successfully challenge any attempt to involuntarily transfer detainees to another country. Meanwhile, intell gathered on which the decision has been made to continue to detain won't meet the standards for admission as evidence under the FRE.

So, what do you propose? Closing GITMO means being willing to be responsible for the consequences that flow from that decision.

(Personally, I believe that this order will be a huge "Charlie Foxtrot" -- radio call signs for C.F., the "C" standing for "Cluster" and I believe you're smart enough to figure out what the "F" stands for. Except that I believe this could easily lead to US citizens and citizens of our allies being killed or wounded in future attacks by detainees who I believe the federal courts will order released, I'd find such a massive Charlie Foxtrot to be amusing. But, I don't find much amusing when violent death the the easily foreseeable result of political correctness based decisions).

Maybe you have reached other conclusions on the probable outcome. If so, let's see your analysis and conclusions.
1.22.2009 6:32pm
MarkField (mail):

Some prisoners released from Gitmo have harmed Americans, or gotten killed in the effort.


That's terrible. What traitor let them go?
1.22.2009 6:34pm
Richard Aubrey (mail):
MarkField.
Come on, Mark. You don't really think that's terrible. It's how it's supposed to work.
It's also a lesson on not listening to liberals and about the prudent thing to do with the clowns remaining.
1.22.2009 6:44pm
commontheme (mail):
Mr. Aubrey - this isn't an episode of 24.

The grown ups are in charge now.
1.22.2009 6:48pm
John Moore (www):
@Dennymack

Well said. I suppose we should expect, on a legal blog, for legalisms to triumph over common sense. When all you have is a hammer, you use it for the wrong purposes.

commontheme

The grown ups are in charge now.


Uh huh. Obama may be a grown-up. Too many of the BDS people on this board are not - if "grown-up" means having a reasonable understanding of reality.
1.22.2009 7:08pm
Sarcastro (www):
Everyone knows only terrorists are in Gitmo, and that all terrorists should be killed, if not tortured.

Also, I'm going to blame Obama for not accomplishing everything I can imagine now.

I figure, if I complain a lot now, no one will listen to my legitimate complaints later!
1.22.2009 7:27pm
Richard Aubrey (mail):
Common.
Sorry. My culture is lacking. Never saw the show.
And O sure impresses me as a grown up.
Tuesday was a historic day. First time a president was inaugurated who was younger than me.
I hope that "grown ups are in charge" thing isn't too uncomfortable, 'way up there.
1.22.2009 7:41pm
Thomas_Holsinger:
We could also house the Gitmo prisoners in the United States Supreme Court building, though making them listen to oral arguments might violate 18 USC 2340.
1.22.2009 8:08pm
ginsocal (mail):
One of you, uh, Lefties, here needs to clarify: In what universe do any of these people qualify for Constitutional protection?

I agree with the poster who said this is just a sop to the unhinged left. Sometimr or sooner O! will realize that we can't just shut the place down. He may have realized it already.
1.22.2009 8:11pm
PC:
Some prisoners released from Gitmo have harmed Americans, or gotten killed in the effort.

Cite? I found this, but the Pentagon doesn't offer any evidence that any of the people that have been released have harmed or killed Americans. Maybe this guy is harming someone's ego, but I don't think that's what you mean. There's also a table over at Wikipedia, but none of the people listed seem to have killed any Americans.
1.22.2009 8:12pm
RPT (mail):
"Bob from Ohio:

collectively demonized [RPT]

Crap, you saw right through it. We are demonizing Khalid S Muhammed (sic) et al. Nobody there did anything to us, we just demonize them."

Wow. 244 KSM's. Who knew? Or, is it that because there is one KSM, you can "collectively demonize" the rest of them as his equivalent.
1.22.2009 8:15pm
PC:
Wow. 244 KSM's. Who knew?

We only put the worst of the worst in Guantanamo. How do we know they are the worst of the worst? Because they are in Guantanamo. If they weren't the worst of the worst they wouldn't be in there.

I found some more ex-Guantanamo detainees that are killing and harming Americans.

He joined a larger group of would-be migrants and they set off through the neighbouring post-Soviet republics of Kazakhstan, Kyrgyzstan and Tajikistan, winding up in the winter of 2001 in the Afghan city of Jalalabad.

Within days of their arrival, Jalalabad was under attack. US fighter pilots had the Taleban stronghold in their sights as they bombed the hardline Islamist government out of office.

The men left for Pakistan and in the badlands along the Afghan-Pakistan border, they were picked up by a nomadic tribe that gave them food and shelter.

But word had spread that the Americans were offering large sums of money for al-Qaeda suspects. The tribesmen tipped off the authorities and traded their Uighur guests for the bounty.


See, worst of the worst.
1.22.2009 8:28pm
Matthew K:
PC

Cite? I found this, but the Pentagon doesn't offer any evidence that any of the people that have been released have harmed or killed Americans. Maybe this guy is harming someone's ego, but I don't think that's what you mean. There's also a table over at Wikipedia, but none of the people listed seem to have killed any Americans.

Don't confuse the issue with facts. Also, don't feed the trolls :-P
1.22.2009 8:30pm
Anderson (mail):
In what universe do any of these people qualify for Constitutional protection?

The Fifth Amendment universe:

... nor shall any person ... be deprived of life, liberty, or property, without due process of law.

Not "any citizen." Not "any American." Any "person."

Welcome to one of the most hallowed ideals of Western civilization and one of the greatest achievements of the Framers.

(Hm. Does torture compel a person to be a witness against himself? Hadn't thought of it like that, but it seems arguable.)

If you've read that passage in context, all Crawford was "admitting" was that she went "over the edge" and used the word "torture" to describe what she knows was NOT torture. She says she did so because of her sympathy for a prisoner with a medical condition.

Roscoe, you lie like a rug.

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution."

... Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

One's medical condition would be directly relevant to "severe physical or mental pain or suffering," last I checked.
1.22.2009 8:34pm
RPT (mail):
Actually, isn't the R/Con problem that the Obama executive order will provide for an individual case by case review of the facts re each detainee? Facts? Evidence? No "collective guilt"? As Jim Haynes famously said: "We can't have any acquittals!!!!"
1.22.2009 9:09pm
Dissenting Justice (mail) (www):
Yes - As a liberal, I can tell you that many other liberals will just go for the "title" of the article: Obama closes GITMO. They won't dig more deeply. Of course, Democrats do not hold a monopoly on this type of laxed attention and party loyalty. But some liberals are not afraid of exposing liberal hypocrisy. Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)
1.22.2009 9:16pm
grasmere10 (mail):
Anderson:
The Washington Post clearly quotes Crawford restating her conclusion that the cumulative effect of legal actions constitutes, somehow, "torture." It is her opinion - sincerely held - but it is rather a daring piece of reasoning, and may be wrong. It is not a different judgment than the one Roscoe cites - it is a restatement of the same fallible and - I think - fallacious belief.
Also - would not your reading of how "person" is to be defined in the fifth amendment render the treatment the Geneva Convention proscribes for qualifying compatants - in other words, POW status - completely unconstitutional?
1.22.2009 9:46pm
Thomas_Holsinger:
Anderson believes every sentient creature in the universe has, against the U.S. government, all the rights granted to American citizens, because the U.S. Consitution has universal application. Pun intended.
1.22.2009 9:50pm
Ricardo (mail):
To get to Posner's original point, it's just not clear at this point whether the U.S. is considering sending any of these guys to Bagram. If they were, of course, it would be extremely silly, but it looks for now as if it is investigating the feasibility of all other options.

Someone said they were uncomfortable with U.S. courts claiming universal jurisdiction over acts that occur outside the U.S. This has a long history, though. The Constitution allows Congress to outlaw "piracy on the High Seas" which, by definition, takes place outside the jurisdiction of the U.S. and does not need to be committed by U.S. citizens. I think the law banning the slave trade in the early 19th century did the same. The Alien Tort Claims Act dates back to 1789 and gives foreigners access to the courts in order to file lawsuits to acts "committed in violation of the law of nations or a treaty of the United States."

And there are many more recent examples. There has never been a problem in the past pursuing criminal or civil complaints against foreigners for acts committed outside the U.S. so there is no reason to think the challenges are insurmountable.

On the other hand, for some people the best evidence we have for their guilt was obtained through torture so it's not clear we can ever try them. These are the tough cases and is part of the reason I'm against completely closing down Guantanamo.
1.22.2009 9:58pm
Anderson (mail):
Anderson believes every sentient creature in the universe has, against the U.S. government, all the rights granted to American citizens, because the U.S. Consitution has universal application.

It certainly has application regarding persons in the power of the U.S. Government, held on soil it controls. At least, I would think the plain text places the burden on others to rebut it.

The Washington Post clearly quotes Crawford restating her conclusion that the cumulative effect of legal actions constitutes, somehow, "torture."

Authorized actions, not legal actions, tho I suspect she thinks they're legal. However, that is not astonishing. If denying a prisoner sleep one night isn't torture, then you would conclude that denying him sleep 50 nights in a row isn't torture? Really? Come now, sir.

The Torture Act prohibits "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." As some of Padilla's keepers were injudicious enough to admit, that is precisely what they aimed to achieve in his regard, and Qahtani's treatment seems to have followed a similar principle.

I would not want to be in the dock explaining to a jury how the entries in Qahtani's log were not "calculated" in that manner. Not at all. Would you?

As for Geneva and POW's, the Fifth Amendment guarantees due process of law. Treatment of POW's in accordance with treaty would seem to qualify.
1.22.2009 10:13pm
Richard Aubrey (mail):
No truth serum, either?
Damn.
And all this from folks whose response to "Menchaca and Tucker" is "Who? Oh. Why should I care?"
1.22.2009 10:21pm
Anderson (mail):
And all this from folks whose response to "Menchaca and Tucker" is "Who? Oh. Why should I care?"

What folks are those, exactly? Got any examples? One will do. ONE example of someone indifferent to the torture and death of our troops.

Let me know when you come up with that.

My own reaction is on record, thanks to Google. Note the comment downthread from Private Tucker's cousin:

For these things to be done to him are completely un-imaginable to me.
BUT hatred gets us no where and to the person who asked about murderous Americans; YES I feel the same way about them!!
I speak for myself and my husband when i say hatred gets us NOWHERE!!!!
We love Tommy but I know that there are other families out there who know we all feel and my heart aches for them also!!


God bless them all.
1.22.2009 10:43pm
MarkField (mail):

Everyone knows only terrorists are in Gitmo, and that all terrorists should be killed, if not tortured.


In that order?


In what universe do any of these people qualify for Constitutional protection?


They don't necessarily "qualify" for Constitutional protection, but they do qualify for basic human rights. Some of those are included in the Constitution as restrictions on the power of government, such as the due process clause Anderson cited. But the detainees are given basic due process because that's a human right, and because our government is committed to those, not because they "qualfied" for anything (except to the extent of being persons).


Does torture compel a person to be a witness against himself?


Yes. Leonard Levy makes this historical argument in his book The Origins of the Fifth Amendment.
1.22.2009 10:53pm
MCM (mail):
Anderson believes every sentient creature in the universe has, against the U.S. government, all the rights granted to American citizens, because the U.S. Consitution has universal application. Pun intended.


Or perhaps the US government is not enabled to deprive any sentient creature of life, liberty, or property without due process of law?

I admit, if you read it backwards you might get stuck on the moronic objection that the US Constitution has universal application.
1.22.2009 11:07pm
Richard Aubrey (mail):
Anderson.
I believe the KIA's folks have inhuman patience. God bless them.
My point isn't their reactions. My point is the double standard. As it usually is.
1.22.2009 11:12pm
Thomas_Holsinger:
From tomorrow's New York Times:

Freed by U.S., Ex-Gitmo Saudi Becomes a Qaeda Chief
"By ROBERT F. WORTH

BEIRUT, Lebanon — The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.

The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.

His status was announced in an Internet statement by the militant group and was confirmed by an American counterintelligence official.

“They’re one and the same guy,” said the official, who insisted on anonymity because he was discussing an intelligence analysis. “He returned to Saudi Arabia in 2007, but his movements to Yemen remain unclear.”

The development came as Republican legislators criticized the plan to close the Guantánamo Bay, Cuba, detention camp in the absence of any measures for dealing with current detainees. But it also helps explain why the new administration wants to move cautiously, taking time to work out a plan to cope with the complications.

Almost half the camp’s remaining detainees are Yemenis, and efforts to repatriate them depend in part on the creation of a Yemeni rehabilitation program — partly financed by the United States — similar to the Saudi one. Saudi Arabia has claimed that no graduate of its program has returned to terrorism.

“The lesson here is, whoever receives former Guantánamo detainees needs to keep a close eye on them,” the American official said.

Although the Pentagon has said that dozens of released Guantánamo detainees have “returned to the fight,” its claim is difficult to document, and has been met with skepticism. In any case, few of the former detainees, if any, are thought to have become leaders of a major terrorist organization like Al Qaeda in Yemen, a mostly homegrown group that experts say has been reinforced by foreign fighters.

Long considered a haven for jihadists, Yemen, a desperately poor country in the southern corner of the Arabian Peninsula, has witnessed a rising number of attacks over the past year. American officials say they suspect that Mr. Shihri may have been involved in the car bombings outside the American Embassy in Sana last September that killed 16 people, including six attackers.

In the Internet statement, Al Qaeda in Yemen identified its new deputy leader as Abu Sayyaf al-Shihri, saying he returned from Guantánamo to his native Saudi Arabia and then traveled to Yemen “more than 10 months ago.” That corresponds roughly to the return of Mr. Shihri, a Saudi who was released from Guantánamo in November 2007. Abu Sayyaf is a nom de guerre, commonly used by jihadists in place of their real name or first name.

A Saudi security official, speaking on the condition of anonymity, said Mr. Shihri had disappeared from his home in Saudi Arabia last year after finishing the rehabilitation program.

A Yemeni journalist who interviewed Al Qaeda’s leaders in Yemen last year, Abdulela Shaya, confirmed Thursday that the deputy leader was indeed Mr. Shihri, the former Guantánamo detainee. Mr. Shaya, in a phone interview, said Mr. Shihri had described to him his journey from Cuba to Yemen and supplied his Guantánamo detention number, 372. That is the correct number, Pentagon documents show.

“It seems certain from all the sources we have that this is the same individual who was released from Guantánamo in 2007,” said Gregory Johnsen, a terrorism analyst and the editor of a forthcoming book, “Islam and Insurgency in Yemen.”

Mr. Shihri, 35, trained in urban warfare tactics at a camp north of Kabul, Afghanistan, according to documents released by the Pentagon as part of his Guantánamo dossier. Two weeks after the terrorist attacks of Sept. 11, 2001, he traveled to Afghanistan via Bahrain and Pakistan, and he later told American investigators that his intention was to do relief work, the documents say. He was wounded in an airstrike and spent a month and a half recovering in a hospital in Pakistan.

The documents state that Mr. Shihri met with a group of “extremists” in Iran and helped them get into Afghanistan. They also say he was accused of trying to arrange the assassination of a writer, in accordance with a fatwa, or religious order, issued by an extremist cleric.

However, under a heading describing reasons for Mr. Shihri’s possible release from Guantánamo, the documents say he claimed that he traveled to Iran “to purchase carpets for his store” in Saudi Arabia. They also say that he denied knowledge of any terrorists or terrorist activities, and that he “related that if released, he would like to return to Riyadh, Saudi Arabia, wherein he would reunite with his family.”

“The detainee stated he would attempt to work at his family’s furniture store if it is still in business,” the documents say.

The Yemeni branch of Al Qaeda has carried out a number of terrorist attacks over the past year, culminating in the assault on the American Embassy in Sana on Sept. 16. In that assault, the attackers disguised themselves as Yemeni policemen and detonated two car bombs. The group has also begun releasing sophisticated Internet material, in what appears to be a bid to gain more recruits.

Yemen began cooperating with the United States on counterterrorism activities in late 2001. But the partnership has been a troubled one, with American officials accusing Yemen of paroling dangerous terrorists, including some who were wanted in the United States. Some high-level terrorism suspects have also mysteriously escaped from Yemeni jails. The disagreements and security lapses have complicated efforts to repatriate the 100 or so Yemenis remaining in Guantánamo.

Despite some notable Yemeni successes in fighting terrorist groups, Al Qaeda in Yemen appears to be gaining strength.

“They are bringing Saudi fighters in, and they want to start to use Yemen as a base for attacks throughout region, including Saudi Arabia and the Horn of Africa,” said Mr. Johnsen, an expert on Al Qaeda in Yemen."
1.22.2009 11:28pm
John Moore (www):
nadder nadder nadder

All the legalisms substituting for contextually relevant thinking.
1.22.2009 11:29pm
Anderson (mail):
Re: Mr. Holsinger's post, see this (via Ambinder) from "Bruce Riedel, a top Al Qaeda observer and Obama adviser, in Der Spiegel; he's asked about which group of prisoners will be the most difficult to release":

The Yemenis. They are the largest group among the remaining detainees. According to the US military, which is holding them, there are now 248 prisoners: 27 of them are al-Qaida leadership cadre; 99 are lower level al-Qaida operatives. A big chunk of those are Yemenis. They cannot go back to Yemen because Yemen can't be trusted to keep dangerous prisoners from rejoining the global jihad.


Seems he got that right!
1.22.2009 11:38pm
Elliot123 (mail):
"You can't clean up the mess Bush made in one day. Although Obama made a great start."

Why not? Obama is holding inocent civilians, and claims he can't let them go? Is this a surprise to him? He just walked into the Whitehouse and was shocked to learn about Guantanamo?

He had plenty of time to plan for this. Note he wants immediate congressional action on his stimulus packages, but wants to let inncent civilians languish in squalor as he plays politics with their lives, trashes the constitution, and destroys what little respect the international community has for the US.

By what right does Obama imprison and torture these innocents?
1.23.2009 12:21am
DiversityHire:
Pure pointlessness. If President Obama has to "close Guantanamo" to fulfill some goofy campaign promise, then go ahead and "close" it while simultaneously opening a new "reality-based" detention facility at the same location... These guys need some place to stay, right? If this is so important for some nutty extremists, he could even name it after President George W. Bush, although I think "Margaritaville" has a nice ring to it.
1.23.2009 1:12am
PC:
Shorter Elliot123: Why does it smell so bad in here? Why is there feces all over the walls? I want this place clean five minutes ago!

By what right does Obama imprison and torture these innocents?

President Hussein Obama ordered the CIA to stop torturing and mistreating prisoners. It looks like someone showed up with some buckets and bleach to take care of that stench you helped leave.
1.23.2009 2:11am
Keal Natyal:
Good thing erstwhile counsel for detainees Neal Katyal is at OSG then. I think he once said that Guantanamo was sui generis, and that he would not be seeking to expand the position he argued for in Boumediene to other places . . . like Bagram. Difficult to see how such a position improves the situation of the detainees though. If GITMO is a "constitutional black hole," moving to Bagram simply recreates GITMO Mk II, except possibly less safe.

Does anyone know how moving them to Bagram squares with GCIII, Art. 19 ("Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger") and Art. 23 ("No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone")? Or will DOJ continue to class them as something other than GC POWs, meaning those provisions don't apply?
1.23.2009 3:35am
Keal Natyal:
Would it be churlish to say: "You've made your bed, now sleep in it."

The sad thing is that any other solution but Bagram will entail the United States assuming the risk of releasing possible terrorists back into the wild. The federal courts are not equipped to try them, and in many cases the evidence is simply insufficient for a conviction. That's the tragedy of Boumediene, surely ranked as one of the worst decisions ever authored by Kennedy.
1.23.2009 3:47am
Richard Aubrey (mail):
As one commenter mentioned, Gitmo was a symbol. It was made a symbol because one was needed. Any other place would have done as well. As long as Bush was president.
Close Gitmo, put the boys someplace else under some other agency, the Machine starts up. Doesn't even have to be true, the complaints don't. See Jenin massacre, still used as a symbol of Israeli brutality on the reasonable presumption that the truth has not yet gotten its pants on.
For PR purposes, whatever happens to these guys is meaningless. O is president and, by definition, can do no wrong.
Otherwise his blank-eyed supporters will have to start their crow menu earlier than expected.
1.23.2009 8:01am
Richard Aubrey (mail):
Thomas.
The question is whether the libs who want to close Gitmo think of this as a feature or a bug.
I'm guessing feature.
1.23.2009 8:12am
AntonK (mail):
Poor Anderson, dumb as a doorknob

Obama spy choice won't call waterboarding torture


Of course he won't.
1.23.2009 8:43am
Sarcastro (www):
Props to Richard Aubrey for pointing out how liberals love Al Queda!
1.23.2009 8:46am
CharleyCarp:
Anderson, that guy isn't Yemeni.
1.23.2009 8:59am
CharleyCarp:
And in response to the original post, it wouldn't be surprising if some Afghan gtmo prisoners end up in Pul-e-charki, but I doubt the US government could get Afghan permission to move more than a very few nationals of other countries there.

Some among the 60+ prisoners cleared for release are going to end up in the US. One hopes they'll be protected from the likes of most of the people who comment here.
1.23.2009 9:05am
CharleyCarp:
Oh, and I see that Mr. Gates has opined on the closure orders:
President Barack Obama's decision to close the U.S. detention center at Guantanamo Bay, Cuba, has made a positive impression in the world community, and that will assist America in its fight against global terrorism, the Defense Department's top official said here today. Closing Guantanamo "creates additional opportunities for us in terms of partnering with other countries and other countries' eagerness to work with us in dealing with violent extremists," Defense Secretary Robert M.
Gates said during a Pentagon news conference.

Traitor or fool, o unhinged ones?
1.23.2009 9:10am
Anderson (mail):
Anderson, that guy isn't Yemeni.

Right, he's Saudi. I was just noting that Yemen does seem to have a bit of a problem controlling such things.

... Naturally, the recidivism argument (if that's even the word) would require a control, say, the comparable rate for felony prisoners released in the U.S.
1.23.2009 9:39am
Federal Dog:
"Closing Guantanamo "creates additional opportunities for us in terms of partnering with other countries and other countries' eagerness to work with us in dealing with violent extremists," Defense Secretary Robert M.
Gates said during a Pentagon news conference."


This is obviously not true: Other countries were always, already free to work with us to deal with violent extremists.
1.23.2009 9:53am
Just an Observer:
Obama's DOJ is being offered a chance by a federal judge for an early do-over in the definition of enemy combatant. (h/t Lyle Denniston at SCOTUSblog)

That could affect the baseline question of which detainees the government claims to be detainable.

The executive orders yesterday contemplated studying such issues for 180 days. U.S. District Judge John D. Bates would like an answer by Feb. 9.

Meanwhile, DOJ has asked for an extension to reconsider its position in the Al-Marri case.
1.23.2009 10:11am
Richard Aubrey (mail):
Sarc.
Libs don't love al Q. They just think anybody who opposes us is right. Because we're not. You can think this of, say, al Q without necessarily loving them.

Yeah, the key is to release terrs into the US and hope nobody bothers them, that some agency protects them from certain commenters on this board and their ilk.
Good point.
1.23.2009 10:14am
Sarcastro (www):
I stand corrected, Richard Aubrey. Liberals don't love terrorists, they just want them to succeed. They're like super-late term abortion doctors! Culture of deaath!!

*whew* anyone got a cigarette?

Anyhow, they want all the Gitmo terrorists released into America.

Because everyone in Gitmo is a terrorist. And liberals want them all to be released.

Culture of death!
1.23.2009 10:18am
Elliot123 (mail):
"President Hussein Obama ordered the CIA to stop torturing and mistreating prisoners. It looks like someone showed up with some buckets and bleach to take care of that stench you helped leave."

Does that justify his imprisonment of innocent civilians? It's OK to lock them in cages as long as you tell the CIA to use the Army manual unless the AG says they don't have to?

By what right does Obama keep innocent civilians locked in cages?
1.23.2009 10:28am
Bob from Ohio (mail):

Traitor or fool


How about just "Wrong" on this issue?
1.23.2009 10:35am
Bob from Ohio (mail):
How do the liberals hear feel about our practice of using Predator drones to kill supected unadudicated "enemy combatants" in Pakistan (and elsewhere?
1.23.2009 10:37am
MarkField (mail):

Anyhow, they want all the Gitmo terrorists released into America.


Well, Texas anyway.
1.23.2009 10:53am
jukeboxgrad (mail):
bob:

Nobody there did anything to us, we just demonize them.


I guess you don't know how right you are. Most of the Gitmo detainees "have never been accused of committing a hostile act against the United States" (link, pdf).

==================
anderson:

If denying a prisoner sleep one night isn't torture, then you would conclude that denying him sleep 50 nights in a row isn't torture?


Good point. By the way, the Bush State Dept described sleep deprivation as a form of torture. But what they meant, of course, is that it's only torture when other folks do it.

==================
elliot:

By what right does Obama keep innocent civilians locked in cages?


In a recent thread here, you repeated the same asinine question at least a dozen times. Hopefully your work in this thread will not fall short of your usual high standard.
1.23.2009 10:54am
Just an Observer:
And, speaking of Bagram, Judge Bates would like to hear from DOJ on that issue, too. (h/t Lyle Denniston at SCOTUSblog)
1.23.2009 10:57am
jukeboxgrad (mail):
bob:

How do the liberals hear feel about our practice of using Predator drones to kill supected unadudicated "enemy combatants" in Pakistan (and elsewhere?


Attacking a military target in the field is a fundamentally different issue than the treatment of captives, morally and legally. Among other things, the former is in a position to escape or fight back. The latter is not.

Maybe you should ask "how do the liberals hear feel about" people who ask silly questions.
1.23.2009 10:57am
Anderson (mail):
Well, Texas anyway.

I hear there's a good-sized ranch in Crawford.

What better way for Bush to spend his golden years than in supervising the orange-suited detainees as they clear brush and build fences?
1.23.2009 11:07am
Awesome-O:
By what right does Obama keep innocent civilians locked in cages?

I don't doubt for a second that Obama's supporters are opposed to jailing the innocent on principle. It just happens to be one of those principles that yields upon contact with another principle: Bush Bad, Obama Good.

Similarly, the left has always had an anti-torture principle, but one that is applied selectively based on who is doing the torturing:

-Pinochet, Bush: Crime against humanity!
-Castro: Did you know that Cubans enjoy free medical care and a 100% literacy rate?

Be prepared for a Time Magazine cover story on "When Torture is Moral" should Obama ever decide that it's necessary.
1.23.2009 11:10am
Sarcastro (www):
Elliot123 makes a good point (though he hates terrorists so much, I think he may be pulling our leg a bit).

Unless President Obama usurps the rule of law right now, he's just as bad as Bush!
1.23.2009 11:23am
jukeboxgrad (mail):
What better way for Bush to spend his golden years than in supervising the orange-suited detainees as they clear brush and build fences?


Here's a "better way:" Bush taking his proper place among "the orange-suited detainees." After a fair trial, of course.
1.23.2009 11:27am
wfjag:

Liberals don't love terrorists, they just want them to succeed.

That's right Sarcastro, just like the way conservatives feel about Obama. They don't love him, they just want him to succeed. You understand, don't you?
1.23.2009 11:39am
Richard Aubrey (mail):
traitor or fool.

How about knows who signs his paycheck?

So let's see. There is a possibility that these guys could be released into the US. Nothing so far forbids it.
If so, what then?
Some of their buddies, released earlier, have been killed or captured in Afghanistan, thus sparking my point that some may still want to harm us and may find a suburban shopping mall just dandy. Remember the junior jihadi at the Trolley Square mall had no training. That there was an armed man available was an accident, and in contradiction to the mall's rules.
So, my question is what the fans of release will say then?
Presuming we can get them to respond at all.
Is there an iron-clad guarantee, signed by O (snork), that they won't be released in the US? Any other circumstance offering the same--or better--certainty?
1.23.2009 11:41am
Richard Aubrey (mail):
Anderson. Ref Menchaca &Tucker Read your response. Another opportunity to blame Christianity for something. Not surprised you found it. You're pretty ingenious.
Point is, these guys are still at it.
1.23.2009 11:44am
Anderson (mail):
Here's a "better way:" Bush taking his proper place among "the orange-suited detainees."

Well, he does enjoy clearing brush. But I would make him a trustee (trusty?). For one thing, he wouldn't be safe unarmed.

Read your response. Another opportunity to blame Christianity for something.

Absolutely no fear that anyone will click a link and discover how dishonest you are. Just when I think I can't be surprised any further on this thread, you surprise me.
1.23.2009 11:47am
jukeboxgrad (mail):
wfjag:

That's right Sarcastro, just like the way conservatives feel about Obama. They don't love him, they just want him to succeed.


I trust that you are making a sincere statement about yourself, but you are obviously not in a position to make a statement about all conservatives. No one is, but I know of someone in a better position than you. And he said this:

I Hope Obama Fails
1.23.2009 11:55am
Awesome-O:
I trust that you are making a sincere statement about yourself, but you are obviously not in a position to make a statement about all conservatives. No one is, but I know of someone in a better position than you. And he said this: I Hope Obama Fails

That's some first-rate Dowdification right there. Bravo.

Now if you'll just provide a link to that YouTube video showing the kids praying before the cardboard cutout of Bush, your post will be complete.
1.23.2009 11:59am
Anderson (mail):
that YouTube video showing the kids praying before the cardboard cutout of Bush

They were asking why the cardboard cutout couldn't have been president rather than Bush himself. Why not, O Merciful God? Whyyyyyyyyyyy?
1.23.2009 12:05pm
Elliot123 (mail):
"In a recent thread here, you repeated the same asinine question at least a dozen times. Hopefully your work in this thread will not fall short of your usual high standard."

I sure hope not. The best questions are the ones people avoid.

So, by what right does Obama lock innocent civilians in steel cages?
1.23.2009 12:07pm
Sarcastro (www):
I think I finally get Elliot123's point. Obama cannot immediately act as his ideals might dictate, and this should somehow enrage liberals.

And, as if that were not hilarious enough, he is using repetition, the secret key to humor!

Awesome!
1.23.2009 12:17pm
Just an Observer:
So, by what right does Obama lock innocent civilians in steel cages?

That is fundamentally the question posed in the various habeas corpus actions now underway. See, for example, Hamlily v. Obama.
1.23.2009 12:18pm
jukeboxgrad (mail):
awesome:

That's some first-rate Dowdification right there.


Yes, please continue to explain how what Rush meant is something other than what he actually said. You folks have lots of practice. After all, for years you've been defending statements like these:

- we found the weapons of mass destruction
- he wouldn't let them in
- a wiretap requires a court order

===============
elliot:

The best questions are the ones people avoid.


Then you must think that I ask lots of good questions, since you repeatedly avoid answering my questions (example).
1.23.2009 12:20pm
PC:
Remember the junior jihadi at the Trolley Square mall had no training.

I thought one of the great achievements of President Bush was the lack of of terrorist attacks since 9/11? I'm so confused...
1.23.2009 12:39pm
Awesome-O:
Yes, please continue to explain how what Rush meant is something other than what he actually said.

Simple: for example, to the extent that Obama attempts to cut taxes, Rush hopes he succeeds. To the extent that Obama attempts to put Larry Tribe on the Supreme Court, Rush hopes he fails.

Did you hope that Bush succeeded at getting Alito confirmed or repealing the estate tax?

Can I please have the praying-Bush-cutout video now please?
1.23.2009 1:10pm
Elliot123 (mail):
"I think I finally get Elliot123's point. Obama cannot immediately act as his ideals might dictate, and this should somehow enrage liberals."

The right to lock innocents in steel cages is hardly a function of the jailer's ideals. It is a questions of basic human rights and whether the jailer will follow the US Constitution.
1.23.2009 1:17pm
Awesome-O:
Obama cannot immediately act as his ideals might dictate, and this should somehow enrage liberals.

Right. Because it would be impossible to immediately fly the detainees to military bases in the United States and hold them under conditions meeting the requirements of the Geneva Conventions and the US Constitution. That's going to take up to a year.

The fact is that Obama has, is, and will continue to hold prisoners at Gitmo in violation of the Geneva Conventions and whatever other laws the left believes applicable, for up to a year. If mere imprisonment at Gitmo - not torture, not restricted access to counsel - is a war crime (as the left assures us it is), then Obama is currently committing a war crime that he could easily rectify. Get them out of there. Put them up in the Miami Four Seasons with an armed guard at the door if you have to. But for God's sake, Obama, stop committing war crimes.
1.23.2009 1:18pm
Thomas_Holsinger:
Richard Aubrey,

I believe a statute was enacted during Bush's first term which forbids the release of captured terrorists into the United States. My recollection is that this is part of the argument in the case where a federal district judge ordered that the Uighur (Chinese Muslim) terrorists captured in Afghanistan be released in the U.S.
1.23.2009 1:21pm
Sarcastro (www):
[Elliot123 your straw man just ain't funny no more.

Even under Bush, no liberals said all detainees are innocent and should be released immediately. What they demanded were trials. And guess what Obama is giving them?

Awesome-O
, that goes for you too. It's imprisonment without trial that makes liberals all ticked off, not merely imprisonment.

Well, that and the torture.]
1.23.2009 1:32pm
Thomas_Holsinger:
This whole discussion is pretty immaterial. What is material is that the Democrats and the Obama Administration now own the war on terror. Anything which goes wrong will be blamed on them. This applies in particular when we suffer further terrorist attacks at home. Regardless of how that happens, the public will believe it did because the Democrats and Obama administration didn’t try hard enough to protect us. IMO they will probably be right, but that doesn’t matter.

What does matter is that the Democrats and Obama administration have to be perfectly successful in protecting us at home, and that is doubtful. If there are a lot of casualties, the Democrats will lose their Congressional majorities and the White House, and probably not regain either for a very long time.

It is very true that “All politics is local.” What that means here is whether we are hit at home again. If we are, the war on terror will be local and the Democrats will lose right there. That is what happened in 2002 and 2004. If we get lucky, the war on terror will remain foreign, not local.

What the Obama administration does only matters if it produces results, i.e., protects us at home. If it fails, nothing else matters.
1.23.2009 1:35pm
Sarcastro (www):

Democrats and the Obama Administration now own the war on terror. Anything which goes wrong will be blamed on them.


Like if there's another 9-11 right now, I figgure it's cause Obama closed Gitmo, and showed those terrorists he was weak!

I mean, 9-11 and the Iraq debacle was the end of Bush's political career, so how could Obama escape?
1.23.2009 1:40pm
Elliot123 (mail):
"Even under Bush, no liberals said all detainees are innocent and should be released immediately. What they demanded were trials. And guess what Obama is giving them?"

What's he giving them? He says he'll think about it for a year while they stay locked up. All of them. By what right does Obama do this?
1.23.2009 1:41pm
Sarcastro (www):
[yes, Elliot123, that's exactly what he's doing. He plans to just sit there and laugh as they languish.

You don't think it takes time to set up proper trial procedures? Hell, even a trial in civil court would take some time to set up.

By what right did the South stay segregated the day after Brown?]
1.23.2009 1:51pm
Thomas_Holsinger:
Sarcastro,

You wish.

The Democrats and Obama have well deserved reputations for weakness on national defense. Republicans and the Bush administration had no such reputation, so the public gave them some slack. The Democrats and Obama administration get no slack and will have to be perfect.
1.23.2009 1:52pm
Sarcastro (www):
Thomas_Holsinger, you definitely have your thumb on the pulse of America! Americans sure don't seem ready to give Obama any slack at all.

I can hear them now: "Obama's been in office for a full day! He should have prevented the attack in that time!"

Waiting till terrorists strike sure sounds better than actually trying to make the GOP a desirable party.
1.23.2009 2:06pm
Elliot123 (mail):
"You don't think it takes time to set up proper trial procedures? Hell, even a trial in civil court would take some time to set up."

Does that mean Obama is invoking his bureaupathic right of delay to keep innocents locked in cages? All of them?
1.23.2009 2:18pm
Sarcastro (www):
[Elliot123 I'll keep playing, if only to see how much further you are willing to take this.

So you do not accept the right of necessity to evaluate and set up procedures to figure out who is innocent. I'd prefer an argument, but okay then; what do you suggest Obama do to avoid this whole cage hullabaloo?]
1.23.2009 2:26pm
Richard Aubrey (mail):
Thomas.
I figured there had to be some reason the SCOTUS worthies didn't offer a spare bedroom apiece until the Uighurs could get on their feet. Would have, otherwise, I'm sure.

However, as you will note from this board, these guys aren't terrs. Some haven't been accused. Some have been but the evidence is either tainted or secret, so they can't be terrorists.

Gitmo is so incredibly alienating that, not only did one of its grads go on to al Q, he was apparently taking staff officer courses from Phoenix U and got himself the number 2 slot right off. Didn't even have to start at the entry level. Who says this isn't a nation of opportunity?
1.23.2009 2:35pm
PC:
What is material is that the Democrats and the Obama Administration now own the war on terror. Anything which goes wrong will be blamed on them.

Indeed. The public cut Bush no slack after he was in charge during the largest terrorist attack in US history. When the FBI failed to find the perpetrator of the anthrax attacks, I remember the public calling for blood. When the jihadi DC snipers went on their killing spree the public was ready to impeach Bush. When the "junior jihadi" was shooting up the Trolley Square shopping mall it was the last nail in the coffin.

We could also look at all of the terrorist attacks on our troops overseas and our allies. Obviously Bush did a great job with counter-terrorism, except when he didn't.
1.23.2009 2:44pm
PC:
Gitmo is so incredibly alienating that, not only did one of its grads go on to al Q, he was apparently taking staff officer courses from Phoenix U and got himself the number 2 slot right off.

I think this is by far my favorite emerging argument. Because the Bush administration released someone from GITMO that became a top leader of al Qaeda, the Democrats are wrong.

Not, "why the hell did the Bush administration release a dangerous person?" Not, "why did the Bush administration hold innocent people for so long?" It's a hacktastic thing to watch.
1.23.2009 2:49pm
Xanthippas (mail) (www):

The Democrats and Obama have well deserved reputations for weakness on national defense. Republicans and the Bush administration had no such reputation, so the public gave them some slack.


I think you were not paying attention in 2006 and 2008. The slack ran out. Now the Dems will get slack because no one can believe they could possibly be as incompetent as Bush and his proxies in Congress.
1.23.2009 2:49pm
ginsocal (mail):
Anderson, could be any more obtuse? The Constitution applies to American citizens only. Not every person on the planet. What a twit.
1.23.2009 2:51pm
Sarcastro (www):
ginsocal is totally right. That's why illegal aliens don't get to speak, and why we search them all the time!
1.23.2009 2:57pm
Anderson (mail):
The Constitution applies to American citizens only.

Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886):

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; and the equal protection of the laws is a pledge of the protection of equal laws.

No, I don't think I could be any more obtuse. But thanks for asking.

(The interesting question of course is then whether Gitmo is "within the territorial jurisdiction"; but the applicaton of the 5th and 14th amendments to noncitizens is quite clear. N.b. that Yick Wo involved a state law, hence the Court applied the 14th, not the 5th Amendment; but the relevant language is the same.)
1.23.2009 3:20pm
Anderson (mail):
So, by what right does Obama drink the blood of innocent Christian children?
1.23.2009 3:21pm
Richard Aubrey (mail):
PC.
You don't need that emerging argument to show the dems are wrong. They're wrong. No embellishment needed. Just pick an issue. The dems are wrong. Doesn't mean the reps are right, although that's the way to bet.
However, it does indicate that either what's-his-breath was not only an innocent radicalized by his incarceration but one who picked up, by some kind of osmosis, the skills necessary to end up near the top of an incredibly complex and ever-changing enterprise. All on our dime, too.
Or he was a terr.
He was let go for whatever reason. No idea, speculations would be fruitless. But if he was a terr, then the hold/release criteria are flawed and can't tell the difference, or the hold/release criteria are accurate but so generous that he gets out. If the latter case, then it means the rest of the boys have got to be worse than he.
So, which is it? Do the jailers not have a clue about who's what? Or do they have a clue but it includes letting the (relatively) less dangerous go? If the latter, it means the relatively more dangerous are the ones left.
I wouldn't say letting those guys go is necessarily wrong. If I were a dem.
1.23.2009 3:24pm
Sarcastro (www):
Richard Aubrey goes all postmodern! How can we truly know guilt? Is there an objective reality? Until we really get to the bottom of phenomenology, we should never let anyone out of Gitmo ever again.

Really, EVERYONE could be a terrorist. We need to put everyone in jail to be completely safe.

Also, the tribunals are totally consistently applied, so everyone else in Gitmo is worse than what's-his-breath.
1.23.2009 3:39pm
Elliot123 (mail):
"So you do not accept the right of necessity to evaluate and set up procedures to figure out who is innocent."

Obama had two years to set this up. It was no surprise on Tuesday. We have a very well established justice system. Innocents languish in Obama's cages while he fiddles with task forces. The jailor's inefficiency, incompetence, indecision, and political opportunism never trump basic human rights and the US Constitution. By what right does Obama keep innocents confined in his cages?
1.23.2009 3:47pm
Thomas_Holsinger:
Xanthippas,

The Republicans ran out of luck in 2006 and 2008 because Bush 43 is living proof of Alexander Hamilton's comment that "energy in the executive" is critical. Bush 43 was arguably the least energetic President since Calvin Cooledge.

Plus he protected America at home, so the war on terror wasn't a local issue anymore.

You definitely have a point here:
"Now the Dems will get slack because no one can believe they could possibly be as incompetent as Bush and his proxies in Congress."

but that applies only to the economy. There's a lot of ruin in a country. We'll know in a few years whether Obama is a Carter or a Clinton on that.

If we're hit hard at home again, though, nothing else Obama does will save the Democrats or him.
1.23.2009 3:50pm
PC:
You don't need that emerging argument to show the dems are wrong. They're wrong. No embellishment needed. Just pick an issue. The dems are wrong. Doesn't mean the reps are right, although that's the way to bet.

Sure, just look at all of the kvetching from the civil libertarians since Obama has taken office: stopping torture; closing black sites; nullifying all legal opinions on interrogations since 9/11/2001; requiring a higher standard to use executive privilege to classify documents; making FOIA requests easier to fulfill; freezing top White House salaries; and generally trying to create a more open government.

When will this national nightmare ever end?

So, which is it? Do the jailers not have a clue about who's what? Or do they have a clue but it includes letting the (relatively) less dangerous go? If the latter, it means the relatively more dangerous are the ones left.

It goes back to the stinky walls. The Bush administration cocked up the process so badly who knows what series of events let the dangerous people go:

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.


To borrow a phrase from the real estate watchers, whocouldanode? Now the grown ups have come home and they have to sort through the mess that was left all over the house. That will take some time.
1.23.2009 3:52pm
Thomas_Holsinger:
Richard Aubrey,

Anderson's interpretation of the 14th Amendment is correct. It does apply to non-citizens. He and I disagree about its extra-territorial application.
1.23.2009 3:53pm
Sarcastro (www):
[Thomas_Holsinger though I have no doubt you are familiar with the case, it seems to me that a bold assertion of not extra-territorial application of the Constitution is overstated after Johnson v. Eisentrager.]
1.23.2009 4:00pm
Sarcastro (www):

Obama had two years to set this up.

One President at a time! What, you want Obama to be all presumptuous now?
1.23.2009 4:02pm
Awesome-O:
It's imprisonment without trial that makes liberals all ticked off, not merely imprisonment.

The left was complaining about Gitmo long before it was clear that anyone would be held indefinitely without trial, and they continue to have complaints about Gitmo other than those about interrogations and lack of trials.

The mere act of holding these folks at Gitmo, for any length of time, was a source of complaint.
1.23.2009 4:14pm
Richard Aubrey (mail):
PC. So the Bushies messed up the Gitmo situation so badly that they are even letting bad guys go. Which is strange, since there are no bad guys at Gitmo. What a conundrum.
So should we be letting more guys go when we don't know if they're bad guys?
Presuming there is such a thing as a bad guy if he's trying to kill Americans, I mean.

Thomas, not sure I was talking about the Fourteenth. Might have looked like it when I was fantasizing about the SCOTUS folks putting up the Uighurs in the spare bedroom. Just until they got the welfare checks going.

Sarcastro. Sometimes I don't know if you're wrong on purpose because of your schtick, or if you just don't get it. In this case, I favor the latter. In fact, the lefties are continually crying that we don't know if these guys are guilty. No trial. Secret hearings. Tainted evidence.
So, if we don't know, what do we do? Let them all out and hope? Keep them all in, just in case? Try to figure it out and hope we got it right? In courses one and three, what will the lefties say if one of the footloose and fancy-free bozos goes all jihadi by, say, organizing a Beslan in Mayberry? Nothing. I know. The kids' fault. Their parents were little Eichmanns.
1.23.2009 4:20pm
Bob from Ohio (mail):

Among other things, the former is in a position to escape or fight back. The latter is not.


Fight back against a Hellfire missile? He He

The speed of those missiles and the height they are shot from make fighting back highly unlikely. The targets don't see or hear them until "boom".

Thanks for dodging the question though.
1.23.2009 4:21pm
PC:
PC. So the Bushies messed up the Gitmo situation so badly that they are even letting bad guys go. Which is strange, since there are no bad guys at Gitmo. What a conundrum.

Only bad guys are in Gitmo. How do we know? Because if they weren't bad they wouldn't be in Gitmo! My logic is unassailable!

So should we be letting more guys go when we don't know if they're bad guys?

We should have been trying to determine if they were bad or not over the last 7 years. Well, we should have been competently trying to determine that. Instead we had people like John "crush the testicles of a child" Yoo writing legal opinions that you can drive a truck through.
1.23.2009 4:44pm
Elliot123 (mail):
"One President at a time! What, you want Obama to be all presumptuous now?"

Obama knew as well as anyone that Guantanamo had to be handled. There was extensive public discussion for years. He told us of it in his campaign. I note he didn't have any problem developing and discussing a stimulus package prior to Tuesday. Now he relies on a task force to trash the constitution, violate Geneva, and keep his cages full.
1.23.2009 4:45pm
Thomas_Holsinger:
Sarcastro,

I diagree with your opinion of Eisentrager. OTOH, Rasul v. Bush made it clear where the Supreme Court was headed, and IMO the Court will hold that the 14th Amendment applies to non-citizens held by the Executive anywhere save where a foreign government exercises at least de jure jurisdiction. Also, IMO, the Supreme Court will eventually require that a foreign government exercise de facto as well as de jure jurisdiction, which will make a difference for failed states like Somalia. But, and on this one I am confident, this unfortunate trend in Supreme Court decisions will be reversed when we suffer another major foreign terrorist attack at home, and that is just a question of when.

IMO the major question then will be whether boiling or baking is preferable as a method of interrogating terrorists. I.e., the Obama administration's reversion to the criminal law model for dealing with captured terrorists will be abandoned in favor of the Gestapo/NKVD model. Which won't save the Democrats from electoral disaster.
1.23.2009 4:50pm
Anderson (mail):
Anderson's interpretation of the 14th Amendment is correct. It does apply to non-citizens. He and I disagree about its extra-territorial application.

Fair enough, and everything I know about the subject I learned from the internet ... so I can't pretend to be an authority here.

But Rasul's discussion of the habeas statute seems relevant:

Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). By the express terms of its agreements with Cuba, the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. 1903 Lease Agreement, Art. III; 1934 Treaty, Art. III. Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Tr. of Oral Arg. 27. Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.

Sounds good to me!
1.23.2009 4:53pm
Thomas_Holsinger:
Those here who deny the obvious are encouraged to keep on denying it so as to remove any remaining doubt concerning the weight to be given to their opinions.

The last thing President Obama wants is a terrorist attack on his watch.
"... Whatever President Bush's shortcomings, his antiterror policies were indisputably successful, inasmuch as there has been no major terror attack on U.S. soil since he instituted them.

When Obama and other Democrats were in the opposition, it was easy to complain about insensitivity to civil liberties, or to engage in cant about how Bush's policies actually made us less safe. Now that Obama is president, his most important responsibility is to defend the country. If terrorists successfully strike on his watch, headlines like "Bush's 'War' on Terror Comes to Sudden End" (an "analysis" from today's Washington Post) will come back to haunt Obama, who will be seen as having failed where his predecessor succeeded.

Should this happen, it is possible Obama will end up getting a bum rap. After all, Shihri was released during Bush's presidency, as were the three score or so other Guantanamo detainees who, according to the Pentagon, have returned to the battlefield. But if Bush's policies were too lenient, more-lenient policies from Obama are a step in the wrong direction.

We aren't saying anything that isn't obvious, and no doubt it is obvious to Obama as well, which is why his executive orders provide for time to study the issues and room for alternative policies. Once the new president has put his mark on antiterror policy, there is nothing he will be able to do to escape blame if there is another successful terrorist attack. Whatever his rhetoric about "moral leadership" and civil liberties, preventing another attack must, and surely will, be his top priority."
1.23.2009 5:36pm
Anderson (mail):
Whatever President Bush's shortcomings, his antiterror policies were indisputably successful, inasmuch as there has been no major terror attack on U.S. soil since he instituted them

My dad worked for the federal government his whole career, and he liked to describe a favorite federal pastime as Elephant Prevention.

An agency requests $$$ for an Elephant Prevention Program, which line item naturally increases year after year.

If the necessity of the program is ever questioned, the agency gestures broadly and exclaims, "But it works! You don't see any elephants here, do you?"

9/11 was in some respects a one-off, a brilliant exploitation of an obvious gap we were too lazy to correct. There are doubtless other plans to attack the U.S., but without knowing more, we can't tell if Bush has been just lucky, whether he's only done what any other person would've done after 9/11, or whether he's been a miserable failure.

If the next attack is nuclear, for instance, I doubt his antiproliferation efforts will be regarded kindly.

But the point remains: Torture is a STUPID way to gather intel. There are better methods. We should be using them.
1.23.2009 5:43pm
Federal Dog:
"What they demanded were trials. And guess what Obama is giving them?"


He has ordered all trials suspended for at least four months. So they are being held and deprived of trials too.
1.23.2009 5:53pm
Michael B (mail):
"Michael B. suggests Obama's reversal of Bush policies shows a "lack of political backbone."

"How so? He said he would do this during his campaign; it's not obviously the most popular of his campaign promises (indeed, it opens him up to all of his "soft on terrorists" stuff you see in this thread); and now he's doing it. A lack of backbone would be doing what some conservative pundits inaccurately predicted (cough, Krauthammer, cough): that Obama would wind up adopting Bush's policies in the "war on terror" after all." Joseph Slater

1) Obama has reversed nothing to this point, he has done nothing other than sign an executive order that states he will do something. This, despite the fact his team has had many, many months since indicating he would do something, on the campaign trail and in conformance with the ravings/demands of EU types and the Left in the U.S.

2) If he would have first studied the problems that attend Guantanamo or that are variously perceived to attend Guantanamo, whether previously or now that he's in office - and then executed and executive order to fulfill the directives and plans that would result from such a study - that would make sense, because that's how executives who are willing to face the realities need to act, if they are to act more responsibly.

3) Hence, again, he has done nothing in any substantive sense whatsoever to this point, other than throw a sop to the exciteable Left.

4) When he actually does something, beyond sign an otherwise inconsequential order, that's when those specific actions can be reviewed. Until then, we can merely take note of what he has yet to do in any more substantive sense - and argue about his putative high moral standing. Harrumph, harrumph.

The exeutive order was not needed to study the situation. He is the Commander in Chief of the military. He is the chief executive.
1.23.2009 6:13pm
Thomas_Holsinger:
Michael B.,

This is immaterial. We either will or won't be attacked again at home while Obama is President. If we aren't, his re-election will depend on how well the economy is doing.

If we are attacked at home while Obama is President, he'll be a bum and the GOP will take over regardless of how well the economy is doing. Public perception is everything, and that is alterable here only by events.

Whether what Obama does or doesn't do has any effect on whether we're attacked at home won't matter. Only success or failure will. He has to be perfect, and I don't think we'll be that lucky.
1.23.2009 6:34pm
Michael B (mail):
Thomas, well, yes, true enough. But it's also a bit abstracted. This is of course January, 2009, not 2012 or 2016.

I also agree, or at least suspect, that we may well not be that lucky. But with the MSM at the ready to favorably spin everything he does or fails to do, in addition to the wider "personality cult" phenonmenon, I'm less sure about the outcome. Success or failure as measured against reality - vs. success or failure as measured against the political/MSM alliance's spin - are two different things, occasionally they are very different things. And that's why it's worth attempting to correct some misperceptions.
1.23.2009 7:19pm
John Moore (www):
jukeboxgrad

This is really rich, considering the source:


bob:


How do the liberals hear feel about our practice of using Predator drones to kill supected unadudicated[sic\ "enemy combatants" in Pakistan (and elsewhere?


Attacking a military target in the field is a fundamentally different issue than the treatment of captives, morally and legally. Among other things, the former is in a position to escape or fight back. The latter is not.


Are we at war with Pakistan? How does Obama justify firing weapons at civilian structures in a country with which we are not at war? How do the targets either escape or fight back when the attacker is invisible (due to altitude) and too fast to avoid (missile moves really quickly)?

Jukebox, you just showed why "box" is in your nick.
1.23.2009 7:26pm
Thomas_Holsinger:
Michael B.,

You have just explained why Bush 43 was such a bust. He didn't try to affect perception at all, left the field to the other side, and by his complete failure to even try effectively obstructed action by his own side in such matters.

Because Bush 43 had no energy.

This is why I supported Mayor Giuliani last year. He's not merely a fighter, but shares Theodore Roosevelt's joy in political combat. Bush 43 avoided political combat whenever possible. Rudy sought it out. That's how to win.

This is also why the Democrats hate, fear and loathe Governor Palin so much. She's the same as Guiliani in this regard, and both are highly successful in major public office. Governor Jindal has been successful too, but I don't know whether he's a fighter the way Guiliani is.
1.23.2009 7:44pm
Elliot123 (mail):
"If the necessity of the program is ever questioned, the agency gestures broadly and exclaims, "But it works! You don't see any elephants here, do you?"

Had the elephants recently trampled 3,000 people to death?
1.23.2009 8:32pm
Richard Aubrey (mail):
123
That is kind of a hoot, isn't it.
Leftie insist that looking for commies is like a witch hunt. Thing is, there were no witches.
Here, we had the elephants stomping all over the living room and somebody's making fun of trying to see it doesn't happen again.
There really are elephants.
1.23.2009 11:49pm
jukeboxgrad (mail):
awesome:

to the extent that Obama attempts to cut taxes, Rush hopes he succeeds


It's nice that you think that Rush hopes that. Trouble is, Rush didn't say that. He said this:

I Hope Obama Fails … I disagree fervently with the people on our side of the aisle who have caved and who say, "Well, I hope he succeeds.  We've got to give him a chance."  Why?  They didn't give Bush a chance in 2000. …  I know what his [Obama] politics are.  I know what his plans are, as he has stated them.  I don't want them to succeed. … I hope he fails. … I would be honored if the Drive-By Media headlined me all day long: "Limbaugh: I Hope Obama Fails."  Somebody's gotta say it. … I hope he fails."


Can you show me the place in the transcript where Rush says "to the extent that Obama attempts to cut taxes, Rush hopes he succeeds?" I can't find it. All I see is Rush saying, over and over again, "I hope he fails."

It would nice to see you deal with what Rush actually said, rather than your fantasy of what you think he meant.

Did you hope that Bush succeeded at getting Alito confirmed or repealing the estate tax


I hoped that Bush succeeded at certain things, and not at others. But I certainly never said "I hope he fails." And I certainly never said that before he was even inaugurated.

This would be really helpful: find some leading liberal who said, in 2001, before Dubya was even inaugurated, "I hope he fails."

The left was complaining about Gitmo long before it was clear that anyone would be held indefinitely without trial … The mere act of holding these folks at Gitmo, for any length of time, was a source of complaint.


Got any proof?

=================
bob:

Fight back against a Hellfire missile? He He


Fighting back can take the form of attacking an American target somewhere else. Not something a captive can do.

Thanks for dodging the question though.


I didn't dodge the question. I just demonstrated that it was irrelevant in a discussion about the treatment of captives. Nice job trying to change the subject, though.

=================
moore:

How does Obama justify firing weapons at civilian structures in a country with which we are not at war?


Sometimes enemy combatants hide in "civilian structures," and sometimes those civilian structures happen to be located "in a country with which we are not at war." That doesn't mean the enemy combatants stop being enemy combatants, and that doesn't mean we have to stop shooting at them.

How do the targets either escape or fight back when the attacker is invisible (due to altitude) and too fast to avoid (missile moves really quickly)?


If the missile hits the target, you're correct that the target is not going to fight back. But the missile doesn't always hit the target, and then the target has a chance to fight back, via actions directed at some kind of American target.

You already know all this. You also know that the issue of firing at someone in the field is fundamentally separate from the issue of treatment of captives. You're making a transparent attempt to change the subject.

=================
holsinger:

This is also why the Democrats hate, fear and loathe Governor Palin so much.


Please run Palin again. Please. I beg you. In fact, Palin/Wurzelbacher would be the perfect ticket.
1.23.2009 11:55pm
John Moore (www):
I love it when my arguments are used by the other side :-)

Sometimes enemy combatants hide in "civilian structures," and sometimes those civilian structures happen to be located "in a country with which we are not at war." That doesn't mean the enemy combatants stop being enemy combatants, and that doesn't mean we have to stop shooting at them.

and
You already know all this. You also know that the issue of firing at someone in the field is fundamentally separate from the issue of treatment of captives. You're making a transparent attempt to change the subject.

Actually, someone else changed it. I'm just along for the ride.

I could make a strong argument that firing at possible civilians in a country we are not at war with, without any sort of judicial process and not in immediate self defense, is a war crime.

But I won't.
1.24.2009 12:10am
John Moore (www):
I forgot... Ben could probably even get some folks to file charges over it.
1.24.2009 12:11am
jukeboxgrad (mail):
moore:

Actually, someone else changed it. I'm just along for the ride.


Actually, someone else changed it and you're trying really hard to help them keep it changed.

I could make a strong argument that firing at possible civilians …


So could I, depending on the circumstances. For example, Pakistan is not, say, Canada. So the specifics matter.

By the way, the silly implication of your argument is that I'm a hypocrite for not complaining about Obama firing missiles into Pakistan. Trouble is, I didn't complain when Dubya did it, either. So if you're looking for inconsistency, you'll actually have to find it, rather than simply make it up.

You're part of the reality-free crowd that forms judgments based on your fantasy of what people mean, rather than what they've actually said.
1.24.2009 12:24am
Thomas_Holsinger:
jukeboxograd,

You are a fool as you have proved over and over again. I used to be a California Democrat and hated Governor Reagan. I was very political and recognized that Reagan was an exceptionally capable politician and campaigner.

But I was also a classic Scoop Jackson Democrat, and felt so uncomfortable with the way the Democratic Party had changed that I switched my registration to independent in 1984 when Senator John Glenn endorsed the "Nuclear Freeze". I just couldn't remain a Democrat. I then switched to the GOP based on Jean Kirkpatrick's example.

And it was ex-Democrat Ronald Reagan who really convinced me. I didn't buy everything he said. But he had a core philosophy of government and convinced me he was right.

I recognize political ability. Governor Palin has it in spades. That she is villified by Democrats and the MSM means nothing. So was Ronald Reagan, and he served two terms as Governor of California and as President.

IMO Governor Palin will be elected President some day, and you will never understand why. Because fools don't learn.
1.24.2009 12:45pm
Michael B (mail):
Thomas Holsinger,

I would not say "bust" at all (see here and here), though in substantial part, in spirit, I agree that Bush II should have been more Reaganesque in at least attempting to speak more directly and convincingly to the American public instead of allowing the MSM and some others to spin the issues. Otoh, Bush II had a hugely more difficult task and set of problems with Afghanistan and Iraq at the nascent stages of the war against Salafism, Jihadism and Islamicist militancy in general; Reagan had the Soviets at a latter and more problematic stage in their own arc. Some comparisons are warranted, but only to a limited extent.
1.24.2009 2:02pm
Thomas_Holsinger:
Michael,

Bush 43 did not think that building public support for his policies was part of his job as President. His conception of PR, outside of an election cycle, was to neutralize complaints against him by his own side.
1.24.2009 2:20pm
Thomas_Holsinger:
Michael B,

Also Bush 43 was a complete failure as a party leader. He didn't even try.

Obama by contrast has shown thorough understanding of his need to lead the Democrats. His web site and perpetuation of his campaign machinery is proof. I've seem MSM criticism of this which is completely uninformed. They think his objective is to pressure Congress. It isn't.

Obama intends to lead, and educate, public opinion. He is demonstrating considerable foresight and insight here.

IMO his one weakeness in this area is a substitution of ideology for political philsophy, and that is a systemic Democratic problem. They'd be wise to fund their own version of GOP think tanks like the American Enterprise Insttute, and wait for those to produce results in 10-20 years.
1.24.2009 3:49pm
jukeboxgrad (mail):
holsinger:

I recognize political ability. Governor Palin has it in spades.


If you mean "political ability" in the sense of 'willingness to tell lots of brazen lies' (example), then I have to agree.

As I said, please please please run her again.

You are a fool … fools don't learn


When you have a moment to spare from the name-calling, I hope you'll pay a visit here and explain why you disappeared when I caught you making shit up.
1.24.2009 4:11pm
Michael B (mail):
Thomas,

Again, I agree in general terms. But it would take something like a thirty thousand word piece to detail the critical nuances of that general agreement and the critical areas where I disagree.

For example, while Pres. Obama is perfectly comfortable with Saul Alinsky's praxis adapted to our own contemporary political, governmental, media driven and cyber realities at the federal/national level, Pres. Bush was not at all given to that form of ideological/political praxis. The latter was much more given to traditional, forthright forms of moral suasion and coalition building - which will always be a step or more behind the curve (of "public opinion") in our essentially post-modern and Alinskian era. That social/political terrain is highly problematic and likewise is exceptionally difficult to navigate; it very often reflects a type of asymmetric warfare at the social/political level, wherein class-based, "tribal," psychological, etc. forms of discontent are brewed, then further manipulated for purposes of social/political power and ends. At the bottom of much of this is not so much an inadequate political leader as an inadequately rooted political base, at least so at the margins, though very likely at the base as well.

That merely serves as a brief and admittedly inadequate attempt to summarize a highly problematic set of factors that anyone short of a Reaganesque political force will not be able to confront and successfully deal with, but suffice to say your own summary is likewise inadequate, despite agreement in more general terms.
1.25.2009 2:50pm

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