Patterico's Pontifications

12/6/2007

My Take On The GITMO Arguments Yesterday

[Posted By WLS]

In trying to read the tea leaves from yesterday’s argument, there are several subtle points that are critical to understanding yesterday’s hearing on the latest GITMO cases, and where the Court is likely headed.

First, it must be understood that these particular cases were first rejected by the Court before it later reversed course and decided to accept them for this term. In the first instance it takes only 4 votes among the justices to accept a case. But Justices understand that if they vote to take a case with the intention of reversing the lower court, its generally a meaningless effort and waste of time if there isn’t a likely 5th vote to be found. The Justices not voting to review a case are generally satisfied with the lower court decision. So, when the Court first rejected these cases, it meant that in the view of the 4 Justices who have opposed the Administration in the prior GITMO cases, there wasn’t a likely 5th vote to reverse the DC Cir. which had dismissed the detainees’ cases after Congress stripped the lower courts of jurisdiction to entertain the claims.

But the Court reversed itself later and decided to hear the cases after all. Such a decision to reverse its earlier denial would require not 4 Justices, but it would take 5 Justices. So, the general consensus is that for some reason Justice Kennedy reconsidered his earlier decision to deny a hearing, and let it be known to the 4 Justices who have opposed the Administration that he would vote to hear the cases. That presented 5 votes to reconsider the prior denial, and hope for the 4 liberals that Kennedy might vote with them.

But, as with most things involving Kennedy, it’s not that simple.

The second point of interest that must be understood is “what” cases were before the Court, and “what” was not before the Court.

I believe the two cases that were heard yesterday were allowed to go forward in the District Court in DC following the Supreme Court’s decisions in Rasul and Hamdan, holding that civilian district courts had jurisdiction under statutory habeas corpus, and that GITMO was, for purposes of such jurisdiction, the “sovereign” territory of the US — or its functional equivalent. This allowed an end-run around the post-WWII Eisenstrager decision, which held that constitutional habeas corpus didn’t apply to unlawful combatants captured and held in the US.

It’s important to consider Kennedy’s position in Hamdan, decided in June 2006. This is the case where CJ Roberts took no part because he had authored the DC Cir. opinion while on the lower court. The outcome of Hamdan was 5-3 against the Gov’t, with Kennedy joining parts of Justice Stevens’s opinion for the Court. But the parts that Kennedy declined to join seem to be overlooked by most commentators, and point up where the battle lines were drawn yesterday.

In Pt. V of Hamdan, which Kennedy did not join, Justice Stevens made a direct assault on the legitimacy of using any “Law of War” Commissions like those at GITMO with respect to terrorism detainees, and the legal legitimacy of the charges before a “Law of War” Commissions for which they are being detained. If Stevens’s view had 5 votes, it would effectively end all detainee trials at GITMO as an illegitimate use of Military Commissions. Stevens identifies 3 historical contexts in which such Commissions have been used, and states unequivocally that GITMO fits none of those contexts. He was joined in this part of the opinion by the other 3 liberals — Breyer, Souter, and Ginsburg. So, it’s clear to see what their ultimate goal is here — jurisdiction by civilian courts over all proceedings involving the detainees with full Bill of Rights protections, and an end to all military commission proceedings.

Kennedy also declined to join Pt. VI-D-iv of Stevens’s opinion, in which the Court held that a detainee must be allowed to be personally present at the Commission hearing and hear the evidence against him. Pt. VI of the opinion dealt with the broader question of whether the Commission procedures adopted by the Administration violated the Geneva Conventions, but subdivision D-iv dealt specifically with the right to be present — and presumably to challenge the evidence offered.

Kennedy’s concurring opinion focused on his view that the Commissions were not authorized under the UCMJ, and absent separate authorization from Congress, the Administration lacked authority to set them up under Art. II of the Constitution. But, he trapped himself with his penchant for resorting to high-minded rhetoric, writing at the outset of his concurrence:

This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.

So, the landscape is that Kennedy should have been satisfied by the Congressional authorization of the military commissions in GITMO, which are subject to limited judicial review in the Court of Appeals. The lack of Congressional authorization was the defect that most troubled Kennedy in Hamdan. But along with this Congressional authorization of the proceedings came the jurisdiction stripping provision as to statutory habeas, which was made expressly applicable to all matters pending on the date of the 2006 statute.

So, why did Kennedy reverse course and join the 4 liberals in the vote to hear yesterday’s cases? My guess is that Breyer prevailed upon him over the issue of delay — the fact that the Administration took over 5 years before it went to Congress to seek authorization, and that it did so only after being told to do so by the Court.

Now, pursuant to Congressional authorization, the detainees have gone/will go through Commission proceedings at GITMO, with limited judicial review in the DC Circuit. But, given the pace at which those processes are moving forward, it may be years before any such reviews in the DC Circuit are concluded — all the while the detainees remain at GITMO.

Basically, Kennedy was “guilted” into voting for review of these case in order to more quickly address issues that now SUPPOSEDLY ripe for review following the Congressional authorization that came in the wake of Hamdan — with the liberals in search of a fifth vote to end all military commissions while the four of them remain on the Court. They might get Kennedy, they might not — or they might get him to go part way as he did in Hamdan. But, if these cases weren’t granted a hearing, it might be years before another case worked its way through the DC Circuit.

In the cases argued yesterday the DC Circuit had ruled in favor of the government on appeal, finding the district courts lacked jurisdiction based on Congress’s express statement to that effect in the DTA of 2006. So far as I can tell, because the Circuit Court was reviewing only the underlying district court rulings, questions surrounding the Congressionally authorized commissions procedures, as well as the limits on judicial review, were not before the DC Circuit, and were not part of its ruling.

But these are the questions that the 4 liberals really want to address, and they don’t want to wait for a case to percolate up, first from GITMO to the DC Circuit and then to the SC. Any such cases would make their way to the Supreme Court only after slogging through the commission process at GITMO, and then through what might turn out to be extraordinarily lengthy proceedings in the DC Circuit under the Detainee Treatment Act of 2006 — since many procedures on how to handle such direct appeals are yet to be decided.

So, Breyer and the other liberals prevail upon Kennedy to vote to hear these cases.

But one commentator noted that Kennedy looked very uncomfortable when some comments were made that pointed to his earlier opinions in Rasul and Hamdan. Why would he be?

Look at the first line of questioning asked by the Chief — who did not participate in Hamdan, and whose lower court decision was reversed by the Stevens-led majority in the SC. He asked Waxman about what the Court should make of the judgment of the political branches — the Legislature and the Executive — that GITMO was not the sovereign territory of the US. This was a knife aimed straight at Kennedy’s concurrence in Hamdan. How could Kennedy square his words in Hamdan, if he were now to join with the 4 liberals in holding that the exercise of judgment by the Legislative and Executive Branches (that GITMO is not sovereign territory of the US) should be ignored by the Court? If it is not sovereign territory, then it is beyond the reach of constitutional habeas. And, it was another exercise of the collective judgment of the Legis and Exec. that district courts should be stripped of jurisdiction under statutory habeas. How could he justify holding to the contrary now, given his earlier words?

But Solicitor General Clement knew he had another card to play with Kennedy — the fact that the procedures now used in the Commissions and the nature of judicial review in the DC Circuit were also the product of express Congressional authorization. So, Clement argued that even if the jurisdiction stripping provision were somehow suspect in the eyes of the Court, the fault that Kennedy identified in Hamdan — lack of Congressional authorization — was cured by the DTA of 2006, and there were no factual findings before the Court that the GITMO procedures and the judicial review afforded in the DC Circuit were inadequate as substitutes for constitutional habeas.

Kennedy had refused the opportunity to go along with the 4 liberals in Hamdan to declare military commissions unconstitutional. Clement now pointed out that his separate objection to how they had been formed had been met by Congress and the Administration, and there was presently no challenge before the Court to the adequacy of those procedures because that was not the basis upon which the lower court ruled.

If Kennedy is going to be consistent, he’s got to side with the conservatives and hold that any challenge to the Congressionally authorized procedures is going to have to come to the Court framed as such a challenge — beginning in the Commission, going on review to the DC Circuit, and then to the Supreme Court. These were not such cases and he knows it.

I expect that he will take refuge behind some form of explanation that says the political branches can be held accountable for their actions in setting up the commissions and their procedures by the electorate — and he would be correct in that.

But with the Admin. and Congress having done exactly what he faulted them for not doing in 2006, I don’t think that he will now line up with the 4 liberals and say what they did is still not enough.

I think he wishes he had left well enough alone and not changed his vote to hear these cases. We may see a dismissal of cert as improvidently granted, with direction that the defendants begin their challenges anew with the GITMO proceedings under the 2006 DTA.

— WLS

44 Responses to “My Take On The GITMO Arguments Yesterday”

  1. Thanks for the post. I would love to see a follow up that deals with the complaints that the commissions are stacked against the detainee.

    I find this a difficult, and murky, issue and would love to hear more.

    Thanks.

    Dr T (340565)

  2. Kennedy may have reacted to orders to keep the names of witnesses secret in military commission cases, which hampers the detainees’ ability to build an adequate defense. Such may have been the operating assumption all along, but the Justice is perhaps more apprehensive that the perception around the world that the United States is not willing to give detainees a fair shake is on *his* head.

    steve (0e23c8)

  3. Good post WLS.

    daleyrocks (906622)

  4. These are the words that Kennedy will be force to stand behind or eat — and his legacy will turn on what he does:

    “”Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.”

    Roberts line of reasoning is calling Kennedy’s cards. He got what he asked for. Explain why it isn’t enough.

    He may not like everything Congress and the Admin. came up with, but he never said he had to like it all for it withstand scrutiny. But he can’t say it wasn’t the “result of a deliberative and reflective process engaging both of the political branches.”

    He must ask himself, “Who am I? A Supreme Court Justice, or one of 5 members of an extraconstitutional Super-Legislature?”

    WLS (dfa1f1)

  5. He must ask himself, “Who am I? A Supreme Court Justice, or one of 5 members of an extraconstitutional Super-Legislature?”

    I’m afraid to answer that.

    DRJ (a6fcd2)

  6. And I agree this is a good post.

    DRJ (a6fcd2)

  7. Excellant work, WLS, and lets hope that whatever happens, Kennedy does not write the opinion and give us another incoherent one.

    SPQR (26be8b)

  8. Maybe a case law collection on Bulgarian court rulings will fall on Justice Breyer’s head, open to a decision denying habeas rights to a group of Senegalese POWs, and he’ll cite it in voting against the detainees.

    More seriously, as a side bar, it will be interesting to see if foreign rulings/law is cited.

    SteveMG (5ba363)

  9. SPQR – Better to wish for pink elephants.

    JD (2c9284)

  10. More seriously, as a side bar, it will be interesting to see if foreign rulings/law is cited.

    Maybe the detainees could apply to the Cuban courts, if GTMO is not subject to U.S. law.

    steve (0e23c8)

  11. But, but, but, it doesn’t say anything about what would happen if Americans were captured and detained overseas. Why not? Heh.

    daleyrocks (906622)

  12. WLS: great analysis. A minor point: throughout your post you refer to the “DTA of 2006.” The Detainee Treatment Act, however, was passed in 2005; it’s the Military Commissions Act that was passed in 2006 in response to Hamdan.

    I can see, just barely, Kennedy voting to affirm here based on the adequate substitute ground, i.e. that even if the Gitmo detainees have constitutional habeas rights that the MCA’s provisions for review in the D.C. Circuit are an adequate substitute. But I will be very surprised if the Court DIG’s this case now. It is already extraordinary enough that it took the case after initially denying cert. To deny cert, then grant it, then dismiss the case would be practically unprecedented and would, I think, be quite a blow to the Court’s institutional prestige. Kennedy, after all, cares very much about the Court’s public perception (see the plurality decision in Planned Parenthood v. Casey)

    NYC 3L (8f734b)

  13. steve – The only interest I would have in that would be that it would further prove how far we have moved away from our founding documents.

    To me, the most incredibly ironic part of this whole issue is that for the vast majority of the 305 at Gitmo, they could have been given a double tap at the time of capture, and we would never be having this conversation to begin with. That we did not speaks volumes of the level of humanity we actually bring to the table.

    JD (2c9284)

  14. I will be very surprised if the Court DIG’s this case now.

    Non-lawyer here … What is DIG’s ?

    JD (2c9284)

  15. JD: DIG means “dismissed as improvidently granted.” I.e., it can decide that it no longer wants to hear the case, even though oral arguments have been held and briefs submitted; the effect would be a win for the government, because the lower court ruling would be left intact. WLS suggested in the last line of his post that the Supremes might decide to do this; I think it’s highly unlikely.

    NYC 3L (8f734b)

  16. The analysis of the cert situation looks good to me, with one exception. Kennedy’s problem is that he doesn’t want to sign off on the travesty of justice that we have at Gitmo.

    Since when do we get to detain people we didn’t even capture on the battlefield in this way? Does President Ahmanidejad have powers like this over American businessmen and tourists his security forces capture or that are turned over by police in countries friendly to Iran? President Chavez?

    American “exceptionalism” in this degraded form mean that centuries of experience with the structure necessary for justice (e.g., ability to rebut evidence) doesn’t apply to us because we’re really really good, and besides, they’re really really bad and might kill people.

    Andrew J. Lazarus (eb98c0)

  17. NYC3L – Thank you. I try to just sit back and read, and learn, in these kinds of threads. I love these kinds of issues, and am always fascinated to see the variety of well-educated and well thought out opinions around here.

    JD (2c9284)

  18. Except when the idiots (#16) show up.

    JD (2c9284)

  19. JD: no problem. This stuff really can be fascinating. I’m also particularly interested in this debate because I’m taking a final exam on Monday, and the professor has made clear that the fact pattern for one of the essay questions will be based heavily on this case! So, for me, this is a rare case where messing around on a blog could actually have some academic benefit.

    NYC 3L (8f734b)

  20. To me, the most incredibly ironic part of this whole issue is that for the vast majority of the 305 at Gitmo, they could have been given a double tap at the time of capture, and we would never be having this conversation to begin with. That we did not speaks volumes of the level of humanity we actually bring to the table.

    Heh. But can’t we not call it a “double tap?” I seem to remember an Army buddy saying that they had to say “controlled pair.”

    Joe M. (edb8e8)

  21. AJL:

    Does President Ahmanidejad have powers like this over American businessmen and tourists his security forces capture …

    Iranians were willing to take custody of American diplomats during peacetime for an indeterminate length of time, e.g. at least 444 days, and many of the diplomats believe Ahmadinejad was one of the captors. By contrast, America’s detainees were captured during wartime in combat or equivalent circumstances.

    DRJ (a6fcd2)

  22. AJL – There seems to be an unstated assumption on your part that there is an element of enjoyment by the U.S. military and intelligence establishment in detaining innocent people. I find belief in such an attitude hard to understand. The U.S. is going through a process of investigating the detainees and releasing or tranferring those that have been determined not to be terrorists or a danger to the U.S. How else to explain the decline in prisoner population from its high to its current level. If your complaint is that process is not occurring fast enough, that may be legitimate. If your concern is over alleged terrorists detained in countries other than Iraq or Afghanistan, it may or may not be legitimate based on the individual. If your complaint is that the detainees need access to the U.S. court system to secure there release, as has been shown many times, there are no precedent for this procedure, and these cases will determine whether to allow them and to what degree.

    daleyrocks (906622)

  23. NYC3L – Given that, you would be well served to ignore Andrew J. Lazarus.

    DRJ – Why limit it to civilian examples? Imanutjob had no problem taking British sailors captive.

    JD (2c9284)

  24. DRJ, there are few things that are a greater waste of time than correcting AJL’s many misrepresentations / omissions of historical fact.

    SPQR (26be8b)

  25. America’s detainees were captured during wartime in combat or equivalent circumstances.

    No matter how many times you repeat this, it is still false. How is a Bosnian prison an equivalent circumstance to capture in combat?

    At the time, I thought the Iranian takeover of the American Embassy was an unbelievable outrage. But 9/11 changed everything. Now I understand that treaties aren’t worth the paper they’re printed on, if you have national security in your heart.

    Andrew J. Lazarus (eb98c0)

  26. AJL,

    Are you saying 9/11 made you more sympathetic to Ahmadinejad, Iran, etc.?

    DRJ (a6fcd2)

  27. Regarding which case(s) the Court heard yesterday, if this Law School website is accurate then one of the cases was the Al Odah litigation.

    DRJ (a6fcd2)

  28. the fact that the Administration took over 5 years before it went to Congress to seek authorization

    .

    Congress isn’t blameless either. It knew it had a role, and that from early on. See, e.g. …

    .

    H.R.3468 – Foreign Terrorist Military Tribunal Authorization Act of 2001 [Harman, Lofgren]: To authorize the President to convene military tribunals for the trial outside the United States of persons other than United States citizens and lawful resident aliens who are apprehended in connection with the September 11, 2001, terrorist attacks against the United States.
    .
    H.R.3564 – Terrorism Tribunal Act of 2001 [Barr]: To authorize the limited use of military tribunals absent a war declared by Congress in cases arising out of acts of international terrorism committed in the United States.
    .
    H.R.4035 – Military Tribunal Authorization Act of 2002 [Conyers]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    H.R.5071 – Military Tribunals Act of 2002 [Schiff]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    INTRODUCTION OF MILITARY TRIBUNALS ACT OF 2002 [Schiff]: (House of Representatives – July 09, 2002
    .
    S.1937 – Military Commission Procedures Act of 2002 [Specter, Durbin]: To set forth certain requirements for trials and sentencing by military commissions, and for other purposes.
    .
    S.1941 – Military Tribunal Authorization Act of 2002 [Leahy]: A bill to authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    H.R.1290 – Military Tribunals Act of 2003 [Schiff, Brown, Frank, McGovern]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States.
    .
    H.R.5222 – Military Commissions Act of 2004 [Sanchez]: To amend chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism.
    .
    H.R.3044 – Military Commissions Act of 2005 [Sanchez]: To amend chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism.
    .
    H.R.6054 – Military Commissions Act of 2006 [Hunter]: To amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.
    .
    S.3861 – Bringing Terrorists to Justice Act of 2006 [Frist, McConnell, Inhofe]: To facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes.
    .
    S.3886 – Terrorist Tracking, Identification, and Prosecution Act of 2006 [Frist, McConnell]: To authorize military commissions to bring terrorists to justice, to strengthen and modernize terrorist surveillance capabilities, and for other purposes.
    .
    S.3901 – Military Commissions Act of 2006 [Warner]: To authorize trial by military commission for violations of the law of war, and for other purposes.
    .
    S.3929 – Military Commissions Act of 2006 [McConnell, Frist]: To authorize military commissions to bring terrorists to justice, to strengthen and modernize terrorist surveillance capabilities, and for other purposes.
    .
    S.3930 – Military Commissions Act of 2006 [McConnell, Frist, Warner]: To authorize military commissions to bring terrorists to justice, to strengthen and modernize terrorist surveillance capabilities, and for other purposes.
    .
    S.Amdt.5036 – Military Commissions Act of 2006 [Frist]: An amendment to the bill H.R. 6061, to establish operational control over the international land and maritime borders of the United States.
    .
    H.R.6166 – Military Commissions Act of 2006 [Hunter, Sensenbrenner]: To amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.

    cboldt (3d73dd)

  29. the fact that the Administration took over 5 years before it went to Congress to seek authorization

    .

    Just a curiosity to me, I one time looked at the “evolution” of Military Commissions Acts as proposed by Congress.
    .
    H.R.3468 – Foreign Terrorist Military Tribunal Authorization Act of 2001 [Harman, Lofgren]: To authorize the President to convene military tribunals for the trial outside the United States of persons other than United States citizens and lawful resident aliens who are apprehended in connection with the September 11, 2001, terrorist attacks against the United States.
    .
    H.R.3564 – Terrorism Tribunal Act of 2001 [Barr]: To authorize the limited use of military tribunals absent a war declared by Congress in cases arising out of acts of international terrorism committed in the United States.
    .
    H.R.4035 – Military Tribunal Authorization Act of 2002 [Conyers]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    H.R.5071 – Military Tribunals Act of 2002 [Schiff]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    S.1937 – Military Commission Procedures Act of 2002 [Specter, Durbin]: To set forth certain requirements for trials and sentencing by military commissions, and for other purposes.
    .
    S.1941 – Military Tribunal Authorization Act of 2002 [Leahy]: A bill to authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States, and for other purposes.
    .
    H.R.1290 – Military Tribunals Act of 2003 [Schiff, Brown, Frank, McGovern]: To authorize the President to establish military tribunals to try the terrorists responsible for the September 11, 2001 attacks against the United States.
    .
    H.R.5222 – Military Commissions Act of 2004 [Sanchez]: To amend chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism.
    .
    H.R.3044 – Military Commissions Act of 2005 [Sanchez]: To amend chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism.
    .
    H.R.6054 – Military Commissions Act of 2006 [Hunter]: To amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.

    .

    There were 7 other Military Commission bills introduced in 2006. The one that passed was, for practical purposes, drafted by the administration.

    .

    Congress could have, but didn’t, assert itself by passing a bill long before SCOTUS stepped in. There is some debate on the floor of Congress that indicates awareness that a “go it alone” practice by the Pentagon ran the risk of being found unconstitutional. This from July 9, 2002:

    Article I, section 8 of the Constitution provides that it is the Congress that has the power to constitute tribunals inferior to the Supreme Court to define and punish offenses against the law of nations.
    .
    Up until now, there has been no congressional authorization for military tribunals. The formation of these tribunals, thus far, has been performed solely by executive order of the President with clarifying regulations promulgated by the Secretary of Defense. …
    .
    Through this bill, we can remove any legal cloud that would overhang these prosecutions. For one thing the Supreme Court has made abundantly clear is that the power of the executive when it acts in concert with the Congress is at its greatest ebb. But there is another reason, an even more compelling reason, for Congress to act, and that is the separation of powers.
    .
    No single branch should have the authority on its own to establish jurisdiction for a tribunal, to determine the charges, to determine indeed what defendants should be brought before that tribunal, to determine process, and to serve as judge, jury and potential executioner. As a former prosecutor, I would not have wanted such unbridled authority, nor do I believe it is appropriate here.

    cboldt (3d73dd)

  30. Sorry about the double tap there. The first one was delayed going in (I assume becuase of the large number of links, it looks like SPAM). So I pulled out the links and sent the same thing, adding the excerpt from Schiff’s July 2002 speech on the floor of the House.

    cboldt (3d73dd)

  31. AJL, like several people, seems to be under the impression that military detention of hostiles is a legal proceeding. It is not. Hostiles are detained to prevent them from committing further hostile actions. And that all there is to it. When the hostilities are over, the reason for detaining them ends, and they are released.

    Unless there is evidence that they committed war crimes, in which case legal proceedings can then begin.

    War is not law enforcement. If you can’t wrap your mind around that fact, then your mind is too narrow.

    LarryD (feb78b)

  32. Why is it that those who wish terrorist to be treated as legitimate POWs.

    Oops, I forgot when have legitimate POWs ever had access to US courts? Where in the world do they have access to the civilian courts?

    No doubt in an attempt to justify an unprecedented grab for unconstitutional expansion of power we can count on Ginsberg, Souter and the other thugs to quote the precedents that exist in Tehran, North Korea and Fiji as a basis for their decision.

    I wonder what Blackstone would say about this comedy.

    Thomas Jackson (bf83e0)

  33. As a liberal who has not read the oral argument and am not certain of the precise legal issues, I will nontheless weigh in. When does the war or military action pursuant to which these detainees are held end? Are they doomed to linger as enemy combatants or prisoners of war until all hostilities in Afghanistan are over? Did we hold all prisoners in Germany and Japan until our MILITARY OCCUPATION of those countries was terminated? We drove into Kabul about six years ago and then set up a government there. We will be there militarily in some capacity for ten or twenty more years. As to those actually guilty, it seems less tragic, but circumstances have already shown that SOME AT GITMO ARE INNOCENT AND ARE ROTTING IN THAT HELL.

    Moreover, some of these people were not even detained in Afghanistan. Rather they are simply suspected in the greater war against terror. That war is not in twilight. Those suckers will never get their day in court (a real court rather than the military rubber stamp) if the Supremes don’t tweak this situation a little. In other words, the amorphous war against terror is permanent, so their detention will be permanent.

    Believe me, there is a fear in the Bush Administration that the innocent have been so mistreated that they will NOW become terrorists because they are righteously pissed off.

    Robert Conley (c949f7)

  34. Robert Conley — the detainees are stuck with the war they joined. When their fellow jihadists call off the jihad, then we might consider the question of at what point are hostilities terminated.

    They signed up to take down the West and establish a Islamic caliphate. So long as their compatriots pursue that goal, they can sit out that effort in GITMO.

    Its like being benched in a very long football game.

    WLS (dfa1f1)

  35. DRJ 26: It’s the USA’s behavior after 9/11 that tones down my anger over the Iran Embassy takeover. I didn’t realize before how a faction could use the power of transgressing international norms (whether it’s extraterritoriality of embassy property or the International Convention Against Torture) as a marker for its defense of “national security”, “the revolution”, or some other ideal. I’m sure the Iranians had what seemed to them to be perfectly good reasons to take over the embassy. They claimed it was a hotbed of anti-revolution monarchist spies, and they were probably right—but as I saw it then, this claim was irrelevant. I still see it as irrelevant. I also see the “but Al Qaeda is really bad” claim as irrelevant to the travesty of international justice we have created at Gitmo.

    In the case of the Bush Administration, we seem to be fighting Al Qaeda more by trying to prove W’s mojo than frustrating actual plots. You would almost think that (like the embassy takeover), domestic politics was the real consideration!

    Larry #30: The issue is not the battlefield detention of hostiles. Yes, we can do that, although even many of those detainees are probably deprived of Geneva Convention rights that they should have as POWs. (A uniform, for example, is not a requirement for a local resident who takes up arms against an invader.) You wish to expand the circumstances of battlefield hostilities to any place in the world (e.g., a Bosnian prison). No go. Our interaction with many of the detainees is not “war”, and until you wrap your mind around that, you will be trapped in a dangerous and unlawful fantasy world.

    Andrew J. Lazarus (7d46f9)

  36. Crazy Andy do you ever bother to read the documents you so clearly butcher? Have you ever read the Geneva Convention or understand it?

    Such breathtaking mendacity shouldn’t be attributed simply to ignorance. Article IV clearly states what happens to illegal combatants and no one in his right mind has denied these are illegal in all senses of the world.

    Clearly the blog master has a resposnibility to seperate whose who are entitled to their own opinion from those who believe they are entitled to their own facts.

    Separting the opinated from the derranged is clearly a different matter.

    Res ipsa Loquitur.

    Thomas Jackson (bf83e0)

  37. no one in his right mind has denied these are illegal in all senses of the world.

    Patterico himself wrote

    For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States.

    Who has his own facts? Who is deranged? What combat did these petitioners engage in, and in what way was their conduct unlawful under the GC? You misrepresent the facts, and you misrepresent what advocates of the rule of law are calling for.

    Andrew J. Lazarus (7d46f9)

  38. Conspiracy to engage in unlawful combatant activities — conspiring as part of AQ or an AQ affiliated group to blow up the US Embassy in Sarajevo (I think).

    WLS (dfa1f1)

  39. I think that’s right, WLS, and my understanding of American law is that an attack on a US embassy is considered an act of war against the US.

    In addition, here’s an interesting Congressional Research Service report on the Bush Administration’s November 2001 Order to detain and try enemy combatants before military tribunals.

    DRJ (a6fcd2)

  40. WLS, it was the Reichstag, I think.

    For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States.

    Emphasis added.

    Do Presidents Ahmadinejad and Chavez have the right to “identify” people planning to blow up Iranian and Venezuelan embassies and hold them without trial, production of evidence, or possibility of defense?

    Andrew J. Lazarus (7d46f9)

  41. On this other hand, this BBC report doesn’t say anything about Sarajevo.

    DRJ (a6fcd2)

  42. Here it is:

    The Boumediene detainees include six Bosnian-Algerian natives who were arrested by local Bosnian police in late 2001 on suspicion of plotting to attack the U.S. embassy in Sarajevo. See Brief for Boumediene Petitioners at 1-2. After a three-month international investigation, the detainees were released [from Bosnian custody] for lack of evidence. Id. at 2. Immediately upon release, however, the United States military transported them to Guantanamo. Id.The Boumediene detainees are joined by the Al Odah detainees, who include four Kuwati citizens and twelve Yemeni citizens, as well as the three El- Banna detainees, some of whom were taken into custody in Afghanistan and Pakistan. Most of the detainees have been under United States custody for more than five years.

    DRJ (a6fcd2)

  43. AJL — what is the source of the quote you keep putting in bold letters?

    Read the briefs. They are being held based on the charge of conspiracy to commit an act of war as unlawful combatants. Justice Stevens’ challenged the legitimacy of such a charge in Hamdan, but Kennedy refused to join that part of the opinion, so that part of Stevens’ brief did not command a majority of the Court.

    “Waging” war and “conspiring” to commit an act of war are not synonymous.

    Part of the military commission proceedings is a finding by the military commission that there is a preponderance of evidence to support the charge upon which the detainee is held.

    Whose to say if the Bosnian authorities were priivy to the same information as are the US military commissioners.

    This is the process the elected branches of gov’t had devised and implemented.

    If Chavez and Alostmadog were given similar authority by their national legislative bodies, and they exercised such authority, they’d have a sovereign right to do so.

    They’d also have to be prepared to pay the international consequences for doing so.

    We are.

    Unless the Dems take over.

    In which case, we probably still will be.

    WLS (dfa1f1)

  44. Crazy Andy would have us believe that the 300 plus setainees at Gitmo are all innoc3ents not seized in Iraq or Afghanistan and as innocent as the driven snow.

    Yes Crazy I think its clear who is deranged and mad. If you have evidence to support your views then present it. Till then your braying remains uninformed such as your assertion that we are not following the Geneva Convention and that illegal combatants are protected under an agreement the US has signed.

    You truly need your lithium, such ignorance and mendacity is beyond hope unless you are Chrissy or VOR.

    Thomas Jackson (bf83e0)


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