On Monday, Benjamin Wittes and Jack Goldsmith had an op-ed in the Washington Post arguing that the Obama Administration should not replicate the Bush Administration's executive unilateralism in national security policy.
Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.I think this is correct. Had the Bush Administration sought Congressional approval of their policies earlier, Congress would have given the Administration most everything it asked for, and the Supreme Court would have been less likely to repudiate their policies.This seductive logic, however, failed disastrously for Bush — and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.
The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.
One area where the Administration appears likely to take the unilateral route is with regard to detention. The Post and others reported last weekend that the Administration was considering a new Executive Order justifying indefinite detention. If the Administration believes such detention is necessary, it should seek legislation from Congress. Along these lines, Wittes and Colleen Peppard have proposed model legislation on preventative detention. Their aim: not "to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language." Whether or not this specific legislative proposal strikes the proper balance between liberty and security, the overall undertaking — seeking legislative approval of controversial counter-terror measures — is the proper course.
The courts just decided that none of that applied anymore. Then when Congress passed the Military commissions act, basically restoring the status quo. Then the Courts decided they didn't like that either, and re-interpreted the constitution. They upgraded the Constitution from the Supreme Law of the United States to the Supreme Law of the Universe. If US astronauts detain an alien on Mars, they have to read it its rights.
Guantanamo, authority to detain illegal combatants, military commissions, those policies were all made after reviewing the law as it existed then and were tailored to conform to previous SC rulings.
How do you figure?
Congress twice gave the President everything he wanted in the Detainee Treatment Act and then the Military Commission Act. The Supremes twice repudiated Congress and rewrote the Constitution to grant themselves unprecedented power to set rules for captured enemy POWs
In Hamdan v. Rumsfeld, the Supremes ignored the plain intent of the Detainee Treatment Act. When Congress tried to set the Court straight with the Military Commission Act, the Supremes again blew off Congress in Boumediene v. Bush and rewrote the Constitution to extend civilian habeas corpus review of foreign enemy POWs for the first time in Anglo American history.
Blaming Bush for the extra constitutional acts of our judiciary is a dog that will not hunt.
It was only bad when W. did it.
it was the blogs and other non-mainstream media that pointed out that W was violating established rights of habeus corpus and due process.
these same sources continue to decry obama's pursuit of the same policies.
unlimited detention on the say so of the president is repugnant to american values and continues to be so whether conducted by bush or obama.
Had SCOTUS made the same bizarre terrible Habeus decision during WWII, every German and Japanese soldier taken prisoner would have had the right to sue in Federal court to be released.
note that prior to bush's highjacking of 9/11 and his orwellian war on terror, all suspected terrorists were tried in federal court pursuant to criminal law.
using all caps does not help your argument.
And you can stop pretending that the Supreme Court didn't dramatically twist existing law when it held so!
It was only bad when W. did it."
Laws don't hurt people, people do. It's all in how you use them.
Yeah, Ex Parte Merryman was so unclear on the subject:
Let's at least state the issue properly. The point at issue was not whether "enemy combatants" have habeas rights, the point at issue was whether accused enemy combatants have the opportunity to show that they are not enemy combatants.
RFG, I am similarly uncomfortable. I am only superficially familiar with the subject as well*, but I wish there were more appeals by the concerned to a continuum of habeas rights that these "enemy combatants" could possess rather than the, at least to my eyes, the appalling equivocation between the rights of non-citizens and citizens.
* - knowledgeable enough to assert my prior holding, though.
Lakhdar Boumediene was neither a US citizen ( a naturalized citizen of Bosnia and Herzegovina ), nor 'arrested' on US soil. In fact, he was not 'arrested' at all, which is a police action. He was captured in battle abroad, by our military.
Thus, your question is irrelevant to the case. NEVER ( until perhaps now ) has it been held that the guarantees afforded by the Constitution to American citizens on US soil apply to 'everyone anywhere no matter or what they are doing' ( like trying to kill us in a war ). Most especially those held OUTSIDE of the US ( such as in Gitmo, a part of Cuba ).
Again - had this incredibly stupid decision been rendered during WWII, every German and Japanese soldier captured would have had the 'right' to petition in Federal Court, with US-paid lawyers, for release.
I thought that Congress pretty much gave GWB everything he asked for when he belatedly went down the street looking for legislative support for his policies. The USSC twice hammered Congress with somewhat (for lack of a better description) controversial rulings, which seemed to exponentially expand existing rights for detainees, including those captured on foreign battlefields and never moved onto U S soil.
Is the suggestion that the Supremes would have been less expansive in their rulings had GWB gone to Congress sooner? That would imply that the rulings were not so much about the law as they were about a smack-down of sorts.
Does President Obama have any better chance of sustaining (the constitutionality of) similar policies by seeking a Congressional fig leave first? Presuming the issue is the underlying constitutionality of the actions, I don't get that at all. Congress has no more inherent authority than the executive when it comes to habeas, Miranda, indefinite detention, military tribunals, etc. Or do they?
BTW, I would suspect that Obama's Justice Department will be as large (or larger) a hurdle to many proposed anti-terror policies as the courts may be.
Seems Douglas Kmiec suffers from the practice of credentials inflation.
Non-citizens have had habeas rights since the beginning of our Republic. See U.S. v. Villato, 2 US 370 (1797).
Certain provisions of the Constitution can be read as either protecting individual rights or as limiting the power of the government. The placement of the habeas clause in Art. I, Sec. 9 along with such restrictions on Congressional power as the prohibition on bills of attainder and ex post facto laws suggests (though it hardly proves) that the Framers thought of habeas as a restriction on government power. In that sense, the citizenship of the detainee wouldn't matter.
It does in one sense: Congress can suspend the writ when the Constitutional conditions are met.
I'm sorry to see the Douglas Kmiec going to Malta post has closed its comments.
Seems Douglas Kmiec suffers from the practice of credentials inflation."
Another scalp for Ed Whelan, self-appointed heretic hunter. Perhaps Kmiec will recant under the waterboard. The comments on that thread were both brutal and silly. Do you think that McCain was the candidate of traditional marriage?
No, he was captured in Bosnia, approximately 2500 miles away from the battlefield in Afghanistan. It is rank intellectual dishonesty to claim him as a battlefield prisoner.
Thanks for bringing the Villato
case to my attention, it was an interesting read. Also interesting because it skips a lot of the surplusage that makes so much 18th century writing difficult to read.
Also interesting that plol has it where lots of other reporters are only caught much later.
Considering that Guantanamo Bay is under the perpetual control of the United States, with no control by the government of Cuba either today or at any point in the future, only the most hairsplitting lawyer could consider it anything but a territory of the United States.
Well, probably the Cubans wouldn't touch that one: but it'd be interesting if they did.
No, it is merely an error on my part. "Never attribute to evil intent that which may be explained by mere stupidity" :-)
And my point remains. He was a non-ctizen, subject of a military action on foreign soil and held on foreign soil.
I posit that this is very different than, for instance, 'arrest', which is an action taken by a civil law enforcement agency.
And again - no one wants to answer this ( do you ? ) - had this misguided decision been in effect during WWII, every German or Japanese soldier taken prisoner would have had 'the full civil rights of any US citizen on US soil', such as habeas, free counsel, reasonable bail, probable cause, etc etc.
Boumediene is a de facto MASSIVE judicial expansion of both Federal law ( suggesting that the Constituion is 'planetary law' in scope, applying to all parties everywhere ), and the Geneva Conventions ( ignoring the definitions therein of applicable parties ).
As someone pointed out, Padilla is a very different set of circumstances.
And we all know lawyers would NEVER split hairs, eh ? :-)
No one wants to answer that because no one has ever suggested such a silly argument. No one would contend that uniformed enemy soldiers have habeas rights. The question is whether the US Government can simply say "this individual, whom we captured far from any battlefield, is one of the enemy, according to evidence that we're not going to show to any court anywhere, and thus we can keep him imprisoned."
Pause for a moment to consider the incentive structure you're establishing. You're actively encouraging combatants to be war criminals by granting war criminals (non-uniformed combatants) more rights than legal combatants. Is that really the incentives you want?
I don't think anyone is denying that taking un-uniformed jihadists prisoner runs the risk of detaining some unjustly, or that the Bush (and apparently Obama) policies are necessarily optimal, only that they've been historically legal and furthermore granting prisoners taken in a Congressionally authorized military conflict a constitutional right to challenge their detention is a horrible precedent.
The power to make rules concerning captures resides in Congress. Bush (and Obama) acted well within established precedent, and Bush (belatedly) received Congressional approval for his policy. And it was still struck down.
Given the nature of the enemy, the due process allowed by the judiciary very well might be better as a matter of policy, but that should be a policy decision and not a constitutional right.
I don't believe this is accurate. POWs get a lot of protection. They can't be interrogated, for one thing, and the standards for their treatment are pretty high.
But assume you're right. In that case the Bush Administration could have just declared them all POWs. So could Obama. That neither has done so pretty strongly suggests you're comparison is wrong.
The Constitution grants our elected branches the power to set rules for wartime captures, while treaty and customary laws of war grant our military the authority to determine the status of such captures.
Article III nowhere grants the judiciary the power to set rules for wartime captures and the British habeas common law incorporated into the Suspension Clause expressly held that foreign POWs held by the Crown in England do not enjoy any rights of Englishmen including habeas corpus review.
You are arguing that lawful uniformed combatants should remain under this law, but unlawful enemy combatants committing the war crimes of disguising themselves as civilians and then refusing to identify themselves as combatants after capture should enjoy additional rights reserved for the People upon which they war.
Why precisely should we be rewarding war crimes?
The question is why should we punish true non-combatants. The espoused policy of both the Bush and Obama admin uses the excuse that the enemy commits war crimes to hold people who may or may not be such war criminals.
The argument boils down more or less to "Is this a situation where it is better to hold too many people or too few?" In the US normal civilian policy is to capture too few, but normal war procedure is to capture too many.
By not declaring that our captures and even arrests are POW the Bush admin tried to get the best parts of both civilian and war power detention (from the point of view of a detaining authority desiring expansive interpretations). If they had chosen one or the other we would not now be having this discussion.
At the time the Bush Administration made their determination, the prisoners didn't have habeas rights and could be interrogated. You can't infer anything about the rationale behind their initial determination based on the Supreme Court decisions that followed (and that the Administration argued against).
As Soronel Haetir wrote, "By not declaring that our captures and even arrests are POW the Bush admin tried to get the best parts of both civilian and war power detention (from the point of view of a detaining authority desiring expansive interpretations). If they had chosen one or the other we would not now be having this discussion."
Reasonable people disagree with the decision, but it doesn't strike me as an inherently ridiculous position by a CinC attempting to win a war. It appears that the Obama Administration seems to be largely following the same blueprint.
There is an interesting discussion to be had as to what would be the best determination of these prisoners given their newly granted constitutional rights. Are we better off forgoing intelligence but detaining indefinitely or have a (more) limited ability to interrogate but grant prisoners a day in court?
However, as a practical matter I guess that we have more "liberal" rules of engagement that result in fewer prisoners being taken in the first place.
This is a joke, right?
They were given the opportunity.
First, the executive set up military commissions. Then, Congress passed legislation approving modified military commissions.
The courts did not have to get involved.
You appear to miss the very fundamental difference of this modern war. it is not limtied to easiliy defined geographic 'battlefields', with uniformed forces aligned against each other. The enemy ( jihadists and terrorists ) ahve chosen to define it differently - asymetrically ( because they can not win a direct force-on-force conflict ), where the battlefield is commerical airplanes, market places, etc, using weapons such as IED's, suicicide vests, the beheading of hostages, etc.
The 'battlefield' is 'wherever they are', plain and simple.
MarkField - "But assume you're right. In that case the Bush Administration could have just declared them all POWs. So could Obama. That neither has done so pretty strongly suggests you're comparison is wrong."
Read the GC's definiton of POW. It is quiet specific. And the fighters of AQ, Taliban, jihadists, etc do not fit within it.
The Bush (and now Obama??) syllogism has long been: (1) battlefield detainees are subject to indefinite detention, (2) in the War on Terror the battlefield is everywhere, therefore (3) detainees are subject to indefinite detention regardless of the circumstances of capture. You can probably see why courts have found something slippery in this reasoning, when it bumps up against habeas rights.
OK, PeteP. On your definition of battlefield, is there any place and class of person who can not be detained indefinitely (and incommunicado as well)? If Obama decreed that the terrorists were insinuating he was not American-born to demoralize us, could he round up and imprison all the Birther clowns? On his own say-so?
There are key points of distinction between POWs and criminals.
POWs are held in remedial detention to prevent them from rejoining the enemy to kill or support the killing of our citizenry during war.
Criminals have already committed their crimes and are imprisoned to punish those crimes.
A nation can afford to set a high bar for punitive imprisonment and allow the guilty to escape because their crimes have already been committed.
No sane nation can erect a similarly high wall for remedial detention of POWs because lives are the cost of getting this determination wrong.
OJ did not kill anyone after escaping justice for the murders he committed.
Dozens (11% of the total) of the al Qaeda and Taliban the military released in their status hearings have returned to terrorism and mass killing.
The law of war has never limited the capture of enemy POWs to combatants on a battlefield. The United States has interned thousands of enemy civilians for the durations of both world wars. One only has to be a member of al Qaeda or its allies or a supporter of those groups to be lawfully detained for the duration of the conflict.
Even pre-conviction plenty of people are held pending trial based only upon probable cause and an ill-defined belief that the person is a flight hazard. If you believe news stories many jurisdictions even hold people in order to coerce pleas rather than out of any objective standard of flight risk.
With the combination of indefinite detention, any sort of coerersive interrogation (anything beyond "Would you like to answer some questions?", the repeated tribunals when the answer came back wrong (IE, that the person was not actually a threat) I can fully see why the courts failed to defer. The political branches tried to set up something that either on its face or in practice turned out to be unreasonable.
Looking back on history I would say that the greatest war-time failing of the courts has been a willingness to defer to legislative and executive policies. Korematsu being just one flagerant example.
The Bush policy was, as SCOTUS realized, literally unprecedented. Some lack of precedent is caused by the less-defined nature of terrorist groups. Some, however, was caused by a claimed expansion of executive powers that conflict with Merryman and a lot else.
I tend to think Obama is sticking with these policies because there aren't any good alternatives. There were in the beginning but now not so much.
Even a conversion to POW would be problematic due to prior conditions.
I wasn't making an argument about the Bush Administration's initial decision. I was pointing out that there's nothing stopping either him or Obama from declaring the detainees POWs at any time they come to believe that the courts have given them more rights than POWs would have.
It seems pretty clear, btw, that the detainees did have habeas rights from the beginning. The only Justice who really took the Administration's side in Rasul and Hamdi was Thomas (Scalia and Rehnquist were in a slightly different place).
The Bush Administration originally took the position that they were not entitled to the opportunity at all. After the Court rejected this argument, the Administration and Congress tried to get away with an "opportunity" which the Court (rightly, IMO) viewed as not meaningful.
You are correct, of course.
No, I think that Obama has simply reneged on his previous commitments.
Sure, but it's also different than a combatant captured on or near the location of an actual battle (henceforth, "battlefield").
There's no authority stating there has to be only 2 categories of detainees.
Of course not. Any combatant (either in uniform away from combat or caught in or around the location of an actual battle) doesn't even want those rights because he is protected by POW status, which is a much better shake than GTMO.
This is rank absurdity of the highest order.
Let's suppose we accept that absurd formulation, then the only response is that all battlefield captures must be accorded Habeas rights because they could be civilians from anywhere at any place arrested for any reason whatsoever. They could be my neighbors and, as much as I hate their yapping dog, I feel like they should be afforded Habeas if arrested by the government.
When defining a class of people and deciding what rights they should have, I'm going to decide based on the most worthy subset of that class, not the least. It therefore behooves you to define you classes narrowly (as opposed to making no definition at all, in which case the class is "everyone").
Korematsu involved the detention of American citizens with constitutional rights based only upon a shared ethnicity with an enemy. Hamdan and Boumediene involved foreign POWs who were members or supporters of a wartime enemy. Article III grants the judiciary authority over the former and not the latter.
Andrew J. Lazarus (mail):
No, the conditions of WWI and WWII internment were generally worse. The vast majority of internees during both world wars were ex pats and merchant marine. They were sent to camps in rural Georgia and the like to live in wooden shacks. Unlike at Gitmo, the military did not provide religiously approved food, recreation and the like.
The Bush policy was, as SCOTUS realized, literally unprecedented.
Read some history.
The United States has warred with irregular non-state groups since the birth of the Republic and applied substantially the same POW rules. See the Barbary Wars, Civil War guerillas, Indian Wars, Philippines Moro War, Nicaragua, Honduras, etc. Throughout the two centuries of these conflicts, the elected branches set the rules for captures and the military made status determinations. The courts never ever even thought of extending habeas corpus review to POWs.
Boumediene was one of the worst judicial arrogations of constitutional power from the elected branches in American history.
Prisoners of war have the right to be released when hostilities are over. The mere possibility that an individual might seek out other opportunities to take up arms against us isn't enough to justify indefinite detention. Yes, active combat operations in a country might last a person's natural life, but one cannot hold a POW if the operations cease earlier.
Prisoners of war have certain rights which can only be taken away by a competent tribunal, and the right to be released after the conflict ceases is one of them. Indefinite preventative detention for the sole purpose of preventing an individual to returning to terrorist ways or possibly founding new terrorist organizations is not something I want to see.
What was unprecedented about the Bush Administration was the unwillingness to provide substantive prisoner of war protections to captured non-state armed parties. In the Barbary Wars, for example, captured pirates were deemed prisoners of war because they were considered to be legitimate privateers by the other side.
The evidence that Boumedienne actually every supported (let alone engaged in) war against the US is somewhere between questionable and scant.
If he had been convicted in a Court Martial or other competent tribunal, I would consider that definitive.
I have very little problem with using military tribunals to try individuals captured in active military theaters and accused of terrorist activity because I think American juries are more likely to convict innocent individuals. He has more of a problem with this. However, I have a huge problem with unilateral and indefinite detention on the mere grounds that an individual is a national security risk. He has very little problem with this. Funny how we disagree....
and Tule Lake--where conditions nowhere approached those of the Greenbriar Resort.
Indeed. One could imagine a situation in which the original commissions were more than a fig-leaf and this whole unpleasantness (and degradation of the CinC's powers) could have been avoided.
Remember, the Court didn't say you had to give them Habeas per se, it said that the MCAs were not an acceptable Habeas substitute.
Indeed, the behavior of the JAG Corps has been a solitary consolation that the military retains some semblance of normalcy.
What exactly is wrong with the courts martial anyway? They already exist and are well-suited to trying these men. Isn't that precisely why there exist courts martial in the first place?
Nonsense. "A Pentagon review of conditions at the Guantanamo Bay military prison has concluded that the treatment of detainees meets the requirements of the Geneva Conventions"
POW status gets you Gitmo. Illegal combatant gets you Gitmo + your day in court. In what way is POW status better?
No one (paying attention) should ever wear a uniform or segregate themselves from civilians if warring against the US. There is only upside to being illegal and sowing doubt as to your status. As pointed out, no one is arguing that uniformed combatants have habeas rights. And don't tell me the same Court that's granted habeas rights and to detainees is going to uphold a military commission that returns a death penalty verdict for fighting out of uniform.
I don't dispute that there's a slippery slope with the Bush Administration's approach. But in an effort to avoid that, we've slipped down the other side - we've made it better to be an illegal combatant than a legal one. That strikes me as worse than Bush's approach (although to be fair, not worse than where the other slippery slope led).
I agree. The formulation should be, "The battlefield is wherever our combat forces and theirs meet, as authorized by congressional acts of war. However, it does not exist wherever our current police stations and courts are open."
I think the way it works is that you are a POW until a court determines otherwise....
And POW status is better because you MUST be released once the specific armed conflict is over. An illegal combattant could be tried on other crimes and imprisoned beyond this term.
(1) POW status guarantees your release at the cessation of hostilities.
(2) POW status forbids any interrogation ("coercive", "enhanced" or otherwise).
(3) POW's may not be transferred to the control of another government.
If done by a Court Martial in accordance with the UCMJ, I don't see why not.
Isn't that why we have a uniform code of military justice, to be applied uniformly in all cases in which military justice might be dispensed? What the hell is the point of all these one-off "commissions" and "tribunals" when perfectly functional courts martial exist?
Non-POW status gives you a shot at being released before cessation. And I expect all prisoners not explicitly convicted of war crimes to be released at cessation of hostilities irrespective of status.
+1 for illegal combatants
(2) POW status forbids any interrogation ("coercive", "enhanced" or otherwise).
Not true. It only forbids punishment for non-cooperation. And IMO this is the sole reason why the detainees didn't initially receive POW status. But that distinction appear to be no longer operative.
+1 for illegal combatants
(3) POW's may not be transferred to the control of another government.
I'll give you this one, I'll even give it a full point. +1 for POW.
Still looks like a net positive to be an illegal combatant.
Which substantive POW protections would those be? The GCs extend additional privileges to POWs from nations or groups who observe the laws of war. Al Qeada and its allies do not.
In reality, the Congress and President Bush provided al Qaeda and its allies with more due process at status hearings than any time in previous history and far more than is required by the GCs.
The fact Gitmo meets GC standards in 2009 under Obama says very little about Gitmo meeting GC standards in 2003 under Cheney and Bush.
You know, unpleasant as conditions were at Tule Lake, the truth is, they were probably better than Gitmo. Within the camp the internees had considerable freedom. Is there a Gitmo inmate newspaper?
That's entirely the point -- POWs know they aren't going to hang.
And I bet that camp newspaper at Tule Lake just made things peachy for American citizens locked up for no reason other than prejudice and paranoia.
Which was pretty much the rule of Ex Parte Milligan.
They also know they won't get a hearing in an Article III court that could order there immediate release. That's a tradeoff I'd take in a heartbeat, particularly if I were a combatant - risking my life was a given going in.
Can you really conceive of a case where we'd seek and get the death penalty against a foot soldier? The tradeoff isn't even close.
You seem to be mixing and matching a few points here so let me try to clarify a few things....
POW provisions are older than the GC's. In the Barbary Wars, for example, we treated captured pirates as prisoners of war even though the GC's were not signed yet.
There are fundamental protections to POW's. POW's (or any detainee for that matter) may not be tortured and must be treated with dignity at all times. POW's, though, unlike other detainees, may not be compelled to provide more information than that required for identification, and they may not be held beyond active military operations in a conflict.
There is a second issue as well, and this is that the "war on terror" cannot be compared to previous conflicts because, well, the definition of victory does not exist. Consequently detention through the course of a war which can only be managed and never won is a far different thing even from detention through long historical wars (the hundred years war, for example). There are solutions to this problem which I will discuss below though I am sure they will make nobody happy.
IMO, a close reading of Boumedeinne shows that the court felt that they had the right to grant habeas petitions, if this was practical and productive, and that this power lay in the discretion of the court. In doing so, and in expanding this power it suggests to me that the court was uncomfortable with the direction the administration was taking with regard to habeas. After all, the same administration argued that habeas proceedings did not apply to Padilla. This then suggests that the court, while not required to hear habeas petitions on behalf of prisoners of war or other enemy combatants, is empowered to do so if circumstances warrant it.
IMO, though, the court should argue that "war" means "active combat operations by the United States" and that it is geographically defined. There is thus no simple "war on terror" and is instead a series of smaller wars, each of which has its own prisoners of war. This means, among other things, that as American troops cease combat operations in Iraq, that prisoners of war must be released, and the same holds true in Afghanistan. Furthermore, prisoners of war MUST have some bearing on specific combat operations. Thus it was right to hear habeas petitions on the part of Boumedienne on the above grounds, and it was right to hear petitions on the part of Hamdi on citizenship grounds. (I would also add residency grounds as well, to protect resident aliens.)
However, I think that the courts should NOT extend habeas petitions to other captured individuals who were captured in ongoing military operations in specific regions. The court should just require that these separate operations are defined such that when one area calms down, POW's from that area must be released. That seems fair to me.
Thank you for the mention of plol. I wasn't familiar with that before (I always used findlaw or justia).
Actually, prior to the GCs and the torture treaty, there were no such protections. Even after the GCs, there is no requirement to treat unprivileged POWs with any measure of "dignity."
Privileged POWs under the GC may not be subject to coercion. All other common law POWs may be subject to all interrogation short of torture.
One does not hold POWs until a war is won, but rather until the war ceases. Once al Qaeda ceases warring, its POWs will be set free unless the US can try them for war crimes.
Whether the Boumediene Five were uncomfortable with the rules for captures enacted by the Congress and President pursuant to their Article I and II powers should be irrelevant to judicial review and is not grounds for rewriting the Constitution. Article III does not grant the judiciary any powers whatsoever over war policy and rules for captures and the Bill of Rights or the People do not extend to foreign enemies warring on the People.
I agree with this. But rather than figuring out how to normalizing the treatment of war prisoners, I'd much rather leave war powers intact but have the debate about how and when to retract AUMF and rescind the executive's war authority.
The current path is going to both harm the abiility to successfully wage war AND normal civil liberties (see the way that anti-terrorism laws get repurposed in normal criminal investigations)
"Prisoners of war have the right to be released when hostilities are over. The mere possibility that an individual might seek out other opportunities to take up arms against us isn't enough to justify indefinite detention."
WAKE UP !!!! The 'possibility that they may take up arms against us' is PRECISELY the reason they are held !!!
"Yes, active combat operations in a country might last a person's natural life, but one cannot hold a POW if the operations cease earlier."
And if the conflict lasts for decades, then that is the duration of it !
"Prisoners of war have certain rights" - YEs ! Now go read the GC and see who is or not a 'POW' under it's protections !! Hint - the definition is not 'anyone being detained' !!!
"What was unprecedented about the Bush Administration was the unwillingness to provide substantive prisoner of war protections to captured non-state armed parties."
Nonsense ! The GC is QUITE CLEAR as to who is afforded it's protections, and who is not !
"In the Barbary Wars, for example, captured pirates were deemed prisoners of war because they were considered to be legitimate privateers by the other side."
You are truly desparate, to even attempt to reference that as any indication of modern jurisprudense or international law or policy !
Oren - "What was unprecedented about the Bush Administration was the unwillingness to provide substantive prisoner of war protections to captured non-state armed parties.
Indeed."
READ THE GC ! My friend, READ IT ! Learn what a POW is or is not, under that Treaty !
einhverfr -
"I agree. The formulation should be, "The battlefield is wherever our combat forces and theirs meet, as authorized by congressional acts of war. However, it does not exist wherever our current police stations and courts are open.""
More crap ! 'The battlefield' is 'Wherever they attack us, or plot and plan and organize to attack us' !! Get this through your head - the old rules of 'two armies lining up across the meadow' do not apppy ! The old macho concept of 'fair fight' does not apply to people that exploded suicide vests at the vegetable stand !
Oren -
"(1) POW status guarantees your release at the cessation of hostilities.
(2) POW status forbids any interrogation ("coercive", "enhanced" or otherwise).
(3) POW's may not be transferred to the control of another government."
Yes ! Now go read the thing ( GC ) and find out who is or is not a POW !!! You obviously do not understand it !
Markfield - "Which was pretty much the rule of Ex Parte Milligan."
Wrong. As much as Milligan is a great font of eternal wisdom, you have mis=interpreted him :-)
No, but I can conceive of many situations in which we held convicts-of-war long after the cessation of hostilities. Actually, I don't need to conceive of them, they actually exist (see http://en.wikipedia.org/wiki/Karl_Donitz)
Being a POW essentially means the forgiveness of your acts (chief among them, murder) at the end of the war. That's a hell of a bargain.
I've long agreed that the AQ detainees are (for the most part) not POWs. That means, however, that they are entitled to a fair hearing before an impartial arbiter as to whether or not they are, in fact, enemy combatants.
(1) In most cases in which the detainee was captured in the temporal and spatial vicinity of an actual battle ("battlefield capture"), the outcome is pretty easily determined — they are combatants because they took part in combat.
(2) In cases where the detainee was a civilian captured thousands of miles away from the war in a country that is at peace ("civilian arrest"), the government must provide at least some objective indica that he is, in fact, an enemy combatant.
(3) The Court in Boumedeinne found that the procedure for doing (2) that was set up was insufficient, a conclusion that is manifestly correctly under any notion of western justice. Thus, they ordered Habeas not as an absolute right, but as a remedy for an executive that dispensed with even the most basic notions of procedure (for instance, by not abiding by the results of their own CSRT after numerous findings that a detainee was not an EC).
(4) It follows that if Congress set up a system that is a sufficient substitute for Habeas, Boumedienne would not operate. For instance, as I've suggested, enemy combatants could be tried for violations of the laws of war in courts martial under the UCMJ.
I think the Court has been quite clear that the fact that you think circumstances change do not give rise to official US withdrawal from our obligations. If you'd like us to withdraw from (inter alia) the Geneva Conventions and whatnot, you can advocate that act. Until that happens, the old rules most certainly do apply.
Again, if you insist (contra to any reasonably use of the English language that I'm familiar with) on defining the battlefield as including everything and therefore everyone, I will have to insist on providing battlefield captures with the rights that I believe should fall on the most worthy in that class. That is, if the battlefield could include my town and my neighbor, then battlefield captures should include the rights that I believe my neighbor should enjoy.
The fact that you might want to give battlefield captures fewer rights might therefore means that you should endeavor to define that class as narrowly as possible.
Detaining in the first place is an act of grace not constitutionally necessary. We don't have to contract with other nations to do so if we don't want to.
The idea that detention represents some sort of universal human value represents a distinctly pre-Roe concept. Respect for some abstract general, traditional-values concept of human human life gets a relatively low priority in the constitutional value scheme: Roe v. Wade establishes that our courts are committed to striking down legislation which places too high a value on traditional-values based universalisms and too little priority on protecting American's interests, including their freedom of choice when it comes to conducting safe and effective termination procedures.
The terminiation procedures involved in executing a war are not different in any relevant way from those involved in executing an abortion. Opponents of choice in matters of war have simply asserted that the enemy are persons and seem to expect to be believed because they say so, but such assertions don't stand up to even the slightest constitutional scrutiny. Roe v. Wade establishes a test for how to tell whether something's a person or not, and enemy combatants don't even come close to passing the test. Roe requires deferring to the judgment of relevant professionals, and military professionals regard termination procedures as being appropriate procedures in war, just as doctors regard termination procedures as being appropriate procedures in medicine. The history shows the legality of such procedures. In addition, the Roe court outlines a set of specific constitutional provisions containing the word "person" and noted that none of them had ever been thought to apply to a fetus; but any serious examination of the identical provisions shows they don't apply to alien enemy combatants either (they don't count in a census, aren't included in apportionment of congressional districts, etc. etc. etc.)
This whole idea that alien enemy combatants are persons seem to come from the same sort of traditional-values type religious beliefs that liberals have been telling us for thirty six years inimical to our nation's secular values and integrity: if government were permitted to impose the idea that human beings ought to have some sort of rights just because they're human, this would cripple Americian's ability to make choices about their lives essential to achieving their goals and advancing themselves, and would inhibit their ability to achieve the place in the world that they deserve. But precisely the same thing is true here as well. If their argument is valid, liberals ought to willing to abide by it and to stop trying to impose religiously-based values on our secular republic. It's no excuse that this time those religious values happens to be ones they like rather than ones they don't like. The Religion Clauses prohibit establishing agreeable as well as disagreeable religions.
Obviously alien enemy combatants are "viable", no-one's denying that government could provide for protections for them. But the idea that it should think itself as having some sort of obligation to is simply out of sync with 36 years of understanding of the relative rights of Americans v. non-persons.
Roe's claim that human beings who have traditionally been thought of as not protected from termination applies here with full force. The fundamental notion behind the whole detention-rights business is that human beings subject to termination nonetheless retain some rights. But Roe explicitly rejected this notion. One either is a person or isn't, those who have no persons have no rights, and a key test to determining whether one is a person or not is (a) whether it's historically been legal to terminate one on demand, and (b) whether various constitutional clauses mentioning the word "person" have historically applied to one.
Since alien enemy combatants come out as obvious non-persons on any serious or honest attempt to apply the Roe test to them (and moreover were so held in prior cases, such as Johnson v. Eisentrager, whose outcomes were fully consistent with Roe), we seem to be dealing with nothing more than a bunch of anti-choice Roe rejectionists, people who don't like the idea of a country where people have autonomy and choice and whose thinking is designed to prevent our country from being what the Constitution requires it to be. Freedom of choice in war is obviously as important to our autonomy as freedom of choice in other matters: denying freedom of choice in this matter prevents us from using these safe, effective, and proven procedures by which countries secure their rightful place in the world in the same way that denying freedom of choice prevents individuals from using procedures proven to help them secure their rightful place in individual life.
The idea that we should care about who we trample on to get our place has relevance only when the tramplees are persons. When they're not, our constitution fully secures our fundamental right to trample, and concern for the well-being of tramplees is out of step with our Nation's core constitutional values, at least as our Supreme Court has revealed them to us.
You then run into problems of a different sort. Yemen might be okay with random rocket attacks. Bosnia most likely wouldn't look on such an act so kindly, especially against someone who the Bosnian courts had already decided did not merit holding or extraditing.
the right of habeas corpus has been enshrined as the very foundation of any system government based on the rule of law. the principal is simple. the government may not arbitrarily detain individuals indefinitely without a proper showing before a neutral decision maker. the mere word of the king or president is insufficient.
all of chicken little arguments boil down to the fact that we cannot afford to give individuals the right to contest their detention based on the fact that they in fact have not been properly detained.
this is without a doubt repugnant to the principles held by our founding fathers and enshrined in our constitution and legal jurisprudence since our inception as a government.
we can argue till the cows come home as to whether or not we have been faithful to this principle over the course of our history, but, what cannot be denied is our professed fealty to the principle of rule of law.
those who advocate security over freedom deserve and get neither.
this lesson, unfortunately, has been lost on those who now wish to emulate our "enemies"
it is short sighted.
it is cowardly.
it is antithetical to the professed values of our founding fathers.
it is antithetical to our professed form of government.
ben franklin, when asked the result of the constitution convention, is said to have replied, we've got a republic if we can keep it.
goldsmith, yoo, bybee, hadley, cheney, bush and now obama, want to throw away one of our most cherished principles of law for the sake of expediency.
it is in the nature of democracies that they fight with one hand tied behind their back. however, they prevail not despite this, but because of it.
the long struggle to obtain a government of law, not men, is now under attack by small minded men, fearful of "others" and without the courage of their professed convictions.
the proper question is not can we do it, but should we?
for anyone who loves america and what it stands for the answer should be a resounding No!
Complete and utter ahistorical nonsense. Our founders made the executive Commander in Chief, the legislature the power to regulate captures and gave precisely zero wartime oversight to the judiciary. I believe that the complete lack of judicial input into warmaking was not an oversight.
Pretty harsh words. I don't believe that anyone is advocating incarceration with absolutely no showing of cause. Rather, the devil's in the details as to what is a "a proper showing before a neutral decision maker."
What would you suggest the proper handling of a suspected terrorist, the details regarding whose actions comes from sources that cannot be revealed? For instance, a wiretap discloses a conversation that person X plans to do something, or even has done something already. The wiretap continues to provide intelligence, so premature disclosure would be counterproductive, yet continued freedom of terrorist X simultaneously represents a separate and discrete threat. Suspect X is not within the United States, he is not a U S citizen, and arguably, is at war with the U S. How do we reconcile removing X as a threat while maintaining the value of the wiretap? Does X have those rights normally consistent with criminal defendants, including discovery? Hopefully not.
There is a huge grey area that traditional criminal law and traditional rules of warfare fail to address. During WWII, German spies and saboteurs in both the U S and in U S military controlled-Europe were given fairly brief courts martial and executed. I believe that at least in the U S, the hearings were secret, or at a minimum, not open to the public for reporting or scrutiny. I'm not sure such would fly in today's world, or that we should even try. However, there must be some alternative to a Bill of Rights and a criminal trial extended to every person accused of being a non-uniformed enemy combatant.
We hear lots of talk about what cannot and should not be done. My question is what then do we do? How about an affirmative suggestion we can consider?
I believe this actually was the Bush Administration position before Rasul and Hamdi.
The "arising under" clause seems pretty broad to me.
Doe v. Bolton strongly suggests otherwise. It specifically struck down any attempts to subject abortion decisions to any sort of second-guessing. It held it's unconstitutional to subject a doctor in the field to second-guessing, whether he uses forceps or not. The court was concerned second-guessers would be guided by unconstitutional religion-based "sacred values" that would interfere with secular authority to conduct secular procedures.
What's the difference between capture in a battlefield and the use of forcepts in an abortion? Why does temporarily holding convert a non-person with no rights into a person with rights?
All the legal theory developed here can and will be used in a future challenge to Roe v. Wade.
"I don't believe that anyone is advocating incarceration with absolutely no showing of cause."
I don't remember when the Bush administration began publicly talking about hearings of one sort or another re: the detentions. You may be correct that their original position was "no hearings, no review," but I'm referring to post-2006 (if memory does serve) including the present administration's public musings about what to do. Regarding not the history, but more the "what now?" I don't think anyone at this point in time is advocating a process of detention without some type of review, at least that anyone would admit.
I was asking (someone else) for some positive suggestions that might fit the unique circumstances we find ourselves in, rather than rhetoric (not from you) that made the issue much more black and white, more clearly defined, than I think that it is. It's all well and good to claim we have to stand up for what made America great, or some such, but that doesn't help much when you're down in the trenches. We need a policy that offers some protection from arbitrary detention, while protecting sources and methods.
So, let's move past GWB. He's not really relevant to this discussion anymore. What do we do now?
We could start by splitting captures into two groups, current detainees and future detainees.
We have far more choices regarding the latter because they have not yet been handled incorrectly. They could be declared POW for all I care and held on a very thin showing before a tribunal. But then their intel value is extremely limited. Or perhaps try and make a very quick case by case determination if we want to prosecute a particular detainee. Of course if that process ends in aquital then I see no choice but to release such a person.
As for current detainees, they now have a vested right to more full review. I see this being similar to the way prisoners have a vested interest in the most favorable parole terms that were available to them during their incarceration. I believe that the poor choices in handling this group originally has now given them much more leeway to challenge their detention.
I agree completely, although I would grant that the poor choices to a large degree were forced upon authorities who were trying to make up the rules as they went along, since there was very little reasonable precedent. I'm sure there was a "grab 'em and worry about it later" attitude, which has not served us well. But no doubt this statement is accurate.
"...held on a very thin showing before a tribunal..."
That's the rub. What will the rules of evidence be? What burden to be met? What rights accrue to the accused? Who actually sits in judgement?
I'm not sure there is a good answer, only a choice of several poor ones. I vote for the poor decisions that might grant a little more security by keeping bad guys locked up under circumstances would not not suffice to, say, incarcerate your average DUI. A poor choice, but I think eventually inescapable. It didn't seem to take the new President's people long to adopt a tougher line than perhaps expected.
Combined with a policy of only voluntary interrogation I do see that as the ideal outcome at this point.
Of course, the whole 'asymetrical warfare' thing was suddenly brought to the front, and it falls in the crack between 'the old rules of how wars were waged' and 'civilian criminal procedure'. The terrorists can not be modeled after 'an army' in the traditional sense ( state sponsor, uniforms, military organization, behaving themselves according to 'The Rules Of War', etc. Nor can they be modelled after 'organized crime'.
What 'rights' do you accord people who routinely behead captives on video for world publication ? Who devise suicide vests and suicide vehicles, and explode them in the most populous settings, civilian or military, they can manage ? Who routinely stage their ordnance in civilian settings such as schools and hospitals ? Who take over residential areas, permeate them with fighters, and forbid the residents ( men, women, and children alike ) from leaving, as 'human shields' ?
What is 'a fair way' to deal with these animals ?
The GC specifically defines 'who is covered', and these people are not, so the GC does not apply. They are not US citizens, not on US soil, so civilian law can not apply.
The only answer is that a new body of law must be devised, and the solution we have come up with is based on the UCMJ and military tribunals. The pwoer to do so is allotted to the Legislative and Executive branches, and the Judicial should be loathe, at the very least, to interfere ( if at all ).
"Combined with a policy of only voluntary interrogation I do see that as the ideal outcome at this point."
Insanity. What would you like to do, Mirandize them ? Give them lawyers before questioning ? Perhaps allow bail ? IOW, treat them under Federal civilian law ? Would you tell KSM or OBL et al 'You don't have to talk with us if you don't want to' ? And make sure they're nice and comfy and well rested and 'feeling good' psychologically before trying to find out about their organizations and plans ?
Yes, removing such as KSM from active operations is about the best I think law should allow.
I come to this belief out of a fear of winning in a manner that leaves us with something not worth having.
Yes, removing such as KSM from active operations is about the best I think law should allow.
I come to this belief out of a fear of winning in a manner that leaves us with something not worth having."
What if slapping him the face a few times, scaring him with barking dogs, maybe parading nekid women on front of him, playing loud music he doesn't like, leaving the lights on, etc, would cause him to divulge something, ANYTHING, that, in combination with other intel ( for confirmation and development ) led us to uncover a suitcase nuke / dirty bomb AQ bought from Russia or NK, and is smuggling into LA ?
Does that 'devalue us as Americans' ? Does that 'debase us' ?
What if we don't tell him which way Mecca is, or serve him a nice rasher of bacon for breakfast, or pork chops with mint jelly for dinner, and in his angered reaction we discover a pointer that leads us to the next USS Cole or Beirut barracks bombing ?
Have we 'tortured' him ? Are we then 'inhumane' ? Have we committed 'war crimes'
Where does it end ? Why don't we have military commissions based on Shari'a law ? After all, isn't that 'his religious belief', and therefore 'his right' ???
Exactly. This is the end state you've advocated: Illegal combatants now receive all of the privileges of legal combatants, plus legal rights unheard of (habeas hearings in Article III courts) for legal combatants. How does this not incentivize people to violate the laws of war?
This is what you and your fellow travelers have been long arguing for. Be man enough to own all the consequences of your position, not just the positive ones.
Yes, but only for the duration of hostilities. That is the point I was trying to make.
You have to define "war" and who the combatants are. If we cannot make such a definition, what is to prevent enemies of the state from being rounded up as enemy combatants because of political positions, etc?
I personally think that a simple argument would be that we have two wars here, and these have prisoners of war in each, and that folks nabbed by the executive anywhere else outside these regions are entitled to some sort of habeas hearing:
1) Afghanistan/Pakistan, and against Al Qaeda proper and the Taliban.
2) Iraq, and against a large number of insurgent organizations including Al Qaeda in Iraq.
I don't think that there is sufficient evidence that folks like Boumedienne, etc. were sufficiently connected either spacially or in a command structure to operations in those wars to justify preventative detention, and I think the courts were within their just authority to review these cases.
In short, the mere possibility that an individual will take up or organize taking up arms against the US in other conflicts is no justification for indefinite detention. It is sufficient to prevent a return to the same conflict, narrowly defined, but not absent such a narrow definition.
For example, holding Taliban POW's until Afghanistan operations have concluded is OK. Holding them indefinitely because they might go to elsewhere in the Middle East and join other international terrorist organizations other than Al Qaeda is not OK.
The dogs, women lights, and music are fine. The slapping and food are not (as is cold, fwiw).
And yes, I would consign myself to death before using these methods as tools of state action.
I don't disagree with the risk of an executive with wartime authority (Espionage and Sedition Acts), which is why I'd like to see a serious discussion about when it's appropriate to rescind that authority. As a practical matter, if we're unwilling to hold prisoners without charge, conduct international surveillance without warrants, perform non-consensual interrogation, etc, than we lack the national will to wage war. Given that, there's no justification in remaining in a state of war.
If we are going to remain at war, then we shouldn't try to make it "fair" or "just". To try to do so misses the point entirely. And the reason we went to war with Al Qaeda was because trying to be just and fair (i.e., counter-terrorism policy pre-9/11) was broadly perceived to be insufficient. If we're going to go back to that standard, then we should do so as a considered policy instead of establishing a series of precedents that neuter the executive's ability to wage future wars.
But if you're determined to be more just while remaining at war, I'm going to resist any policies that either create incentives for our enemies to wage war illegally or that encourage our side to minimize the number of prisoners they take (because they have no intelligence value or they're likely to be released) on the grounds that such policies increase net injustice.
None of which is to say that I think that what we've done to date is optimal. I could see giving an Article III hearings to accused illegal combatants, but 1) it should be a matter of policy - not a constitutional right and 2) if found to be an illegal combatant the consequence should be worse than simply being thrown back into a Geneva-complaint detention center for the duration of hostilities.
Since the main goal is to seperate out illegal combatants and true non-combatants here, I would have no problem with executing those who took up arms in violation of the laws of war.
Not going to happen though.
I will add, however, that I do have some problems classifying members of the Taliban. People who form a de facto government that we don't recognize as legitimate, who we choose to invade.
At some point I can see such an exercise leading back to troublee. Perhaps it's just another example of what I said on the DoI thread, that at the IR level if you can get away with it, it's all good.
In theory, I'd have no problem with that either. But, leaving aside that it's not going to happen, I'm wary of creating an incentive for the enemy to fight to the death. That's why I left the consequences for being an illegal combatant unspecified.
The incentives created are tricky. My biggest gripe in these threads are those who treat the issue as if it were a no-brainer - as if the previous (or current) administration were being gratuitously cruel. The policies established certainly have downsides, but they're not inherently unreasonable.
That's why I'd rather let the executive (largely) wage war as they see fit, and instead have the debate over when war is no longer the appropriate tool against Al Qaeda. I think war is no longer appropriate, and hasn't been (in hindsight) since about 2005.
In keeping with Soronel Haetir, I agree that the Taliban fighters aren't inherently illegal. I don't think Taliban fighters should be detained beyond Afghanistan operations. But I also don't think everyone fighting in Afghanistan is necessarily Taliban. If an Arab is captured fighting in Afghanistan, I think it's reasonable to detain them beyond the duration of fighting in Afghanistan iff we remain at war with Al Qaeda after the operation in Afghanistan
Yet another layer of determination to be made...
Honest question: Were Nazi POWs released after V-E day, or did they have to wait for V-J day?
I'd have to re-research, but I think we didn't repatriate most German POWs, at least those held in the USA, until 1946. There wasn't a functioning country to send them back to, and food shortages all over Europe.
Having said that. and back to the OP, is there an advantage - or a necessity - for the President to seek Congressional fiat for hearings, detention, etc., given that, to me at least, Congress as a deliberative body resembles nothing so much as the Peanut Gallery from Howdy Doody. Should he seek some cover by going to Congress, even he maintains an authority to act unilaterally if he so desired? Does going to Congress ultimately weaken the Presidency in ways we have not yet anticipated? Will the courts - actually the Court with the big "C" - be any more receptive if Congress has signed off on whatever plans actually materialize?
Offhand, I'd say No, no, yes and no. But of course, that's a WAG.
I have little interest in defending the Bush Administration (although I note that the Obama Administration hasn't felt the need to unconditionally release any of the Gitmo detainees...). I am far more interested in preserving the ability of the US to effectively wage war.
IMO, the Obama Administration has (in less than 6 months) far more abused its authority (how exactly is the president justified in firing the CEO of publicly traded company?) than the Bush Administraiion did, but as long as Congress has authorized military force against Al Qaeda, I think the military (under control of the president - Bush or Obama) can legally take and hold prisoners subject to a uniform process. But that process is defined at the Congress's discretion.
I could accept the initial SC decision - Congress (useless as it is) hadn't spoken. But once the Congress gave (an admittedly rubber-stamp) approval, the Court's role was done. The Constitution simply doesn't give the judiciary a role. The founder's were writing in the shadow of the Revolutionary war and were precise in their writings. I am unconvinced that the Constitution intended a judicial role in waging war.
So, given that you agree that we shouldn't create incentives for illegal combatants and that we now have a Democratic president, would you agree that we are establishing undesirable legal precedents?
----
My recollection is also that prisoners weren't repatriated until 1946. I was more asking more about the decision-making process. Was releasing Nazi prisoners after V-E day even considered, or was it a given that the war remained ongoing until V-J day?
Aside from that whole Army Field Manual and UCMJ, sure. On the other hand, the inability of US troops to effectively gather intelligence will certainly result in more dead US soldiers.
Absolutely, so long as the abortion doctor is an agent of the Federal or State governments. Habeas actions do not apply to those held by non-government actors (AFAIK, CMIIW).
These are all specified (in depth) by this handy guide.
I think there are substantial restrictions on the actual procedure there. Let me knock out a few obvious ones:
(1) Commissions may not try the same detainee over and over until it gets the results they want (this did happen -- one detainee was ruled non-combatant 5 or 6 times before a CSRT got the correct result).
(2) Detainees have the right to know the charges against them and to see the evidence against them (redacted as minimally as possible consistent with operational security).
(3) Detainees have the right to present evidence of their non-combatant status.
I second the point about Obama abusing authority. However, on the process, surely you aren't saying that Obama could arrest, say, Sarah Palin and hold her indefinitely arguing simply that Palin was, according to his intelligence, an Al Qaeda operative, right? Certainly the Democratic Party couldn't pass a process by which all GOP politicians are presumed to be terrorists, any more than Ohio could outlaw hate speech at KKK ralleys.
Surely, you aren't saying we can round up all Arab-Americans and put them in internment camps because of the mere possibility they might be at war with us, right?
Surely, you don't think the CIA could go grab, say, Robert Mugabe, and imprison him on trumped up charges that he is an AQ operative, right?
I think it IS within the jurisdiction of the court to review abuses of detention. I do think that the court may be erring slightly on the side of review.
I think that POW status should be granted, until a competent tribunal rules otherwise, for each detainee captured in active theatres of operations, and that those captured OUTSIDE active theaters of operations should be charged or released. I further think that the active theatres of operations cannot include places where our standard law enforcement and criminal justice institutions are active and functioning. That seems to me to be fair, and not impact our ability to traditional wars using traditional war powers.
"(2) Detainees have the right to know the charges against them and to see the evidence against them (redacted as minimally as possible consistent with operational security). "
What would you do in a situation wherein all of the key evidence was of such nature that it couldn't be revealed without jeopardizing national security, such as ongoing intelligence operations, sources and methods of intelligence gathering, etc? Suppose the government's position was that the evidence could not be revealed for a period into possibly years? Could the judges only - not the defendant/detainee/POW/whatever nor his counsel - see and rule on the evidence? Or would the government be in the forced stance of failure to allow confrontation would be fatal to the prosecution?
This is the single area I see as a giant stumbling block. Classified operations and data that cannot be revealed will be the basis for some detentions. What then?
I think all the other issues can be resolved without either side suffering a figurative carpet bombing of their stated minimums.
If you're asking if I would support any of those things then of course the answer is no. If you're asking if I think those things are constitutional? Well, there's established precedent for all of your hypotheticals (Congress passing a law that allows wartime political opposition to be arrested - Espionage and Sedition Acts; upheld by SC in Debs v. US. Detaining citizens based on shared ethnicity with enemy - Japanese internment; upheld by SC in Korematsu v. US; Government using dubious linkage to enemy to justify overthrowing disfavored foreign ruler - entire Cold War).
Again, acknowledging these precedents is not the same as supporting them. But I think when the Congress votes to go to war, what they really are doing is exempting "the enemy" from normal constitutional requirements of due process. It doesn't mean that the enemy is not granted any due process, but the degree of process becomes a political question and not matter of fundamental constitutional rights.
And in specific regard to Al Qaeda, the fact is that we overwhelming chose to go to war with them over acts that Al Qaeda committed in "places where our standard law enforcement and criminal justice institutions are active and functioning". I'm sympathetic to the distinction you're drawing, but I'm unconvinced that Congress did not intend their declaration of war to apply to the event that triggered the declaration at war.
If we were debating what the policy should be, I think we'd find ourselves in substantial agreement. It's if we're debating about what policies the constitution requires that we differ.
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