Patterico's Pontifications

7/1/2008

Federal Panel: Accusations Against Detainee Were Bare and Unverifiable

Filed under: General — Patterico @ 6:43 am

A federal appeals court has ruled that a detainee was held on secret evidence that proved to be not much evidence at all:

In the first case to review the government’s secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims. The unclassified parts of the decision were released on Monday.

With some derision for the Bush administration’s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

Jeez. Sounds like the “triple-sourcing” on a Chuck Philips story.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.”

“This comes perilously close to suggesting that whatever the government says must be treated as true,” said the panel of the Court of Appeals for the District of Columbia Circuit.

Not good.

The remedy: release, transfer to a new country, or a new hearing.

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

By the way, this ruling is a product of a three-judge panel that includes two judges appointed by Republicans. What’s more, it is not a consequence of the Boumediene decision:

The appellate panel reviewed Mr. Parhat’s case under a limited procedure Congress provided for challenging military hearings at Guantánamo. The case was argued before the Supreme Court’s decision on June 12 that detainees have a constitutional right to seek release in more expansive habeas corpus proceedings.

But if this sort of evidence is any indication of what courts will see in habeas hearings, those could be ugly. We could start getting “Through the Looking Glass” quotes.

In further detainee follies, we have our first charges in the USS Cole bombing. We’re seeking the death penalty. What possible defense could the detainee have? You guessed it: his claim is that his confession was tortured out of him.

As I have pointed out before, while torture could be necessary in the cartoonish “24″ situation to save lives, when applied as a general interrogation technique, it’s likely to result in confessions being ruled inadmissible. As I said:

when you’re doing your weighing and balancing, realize that you could be throwing any admissible evidence down the drain. If you’re saving millions, it’s probably worth it. If you’re not saving anyone, then you might consider that the risks outweigh the benefits.

Let’s hope that what remains in the USS Cole case, if the confession is tossed out, doesn’t end up getting compared to some Lewis Carroll story.

121 Comments

  1. Yet more reasons why we shouldn’t be incarcerating those terrorists found on the battlefields…

    The other alternative is perfectly legal, no muss, no fuss. Yet I don’t doubt that there would be those who would complain about that, too. Even more vociferously…

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 6:55 am

  2. Whaaaa?

    Am I at the right website?

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:15 am

  3. Legally, anyone caught baring arms against our troops and NOT wearing a uniform/not a member of a State military, is entitled to talk to – I believe – two captains and a major…

    And then they can be shot in the head.

    But apparently, wanting them to talk to us is bad…

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:17 am

  4. Levi – You have allowed someone else to usurp your place as the biggest moron on the blog the past five days. Something wrong kiddo?

    Fight for the honor!

    Comment by daleyrocks (1cc55d) — 7/1/2008 @ 7:22 am

  5. anyone caught baring arms against our troops

    So much for them getting to go to the beach… ;-)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:22 am

  6. Oh go put a sock in it… It’s early yet…

    :)

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:24 am

  7. Levi – You have allowed someone else to usurp your place as the biggest moron on the blog the past five days. Something wrong kiddo?

    Fight for the honor!

    This is the way of Republicans and their shiny things. I’m the old shiny thing, jharp is the new shiny thing.

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:27 am

  8. You’re two hours ahead of me…

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:28 am

  9. I’m the old shiny thing, jharp is the new shiny thing.

    C’mon, get with the times…

    It’s “Old and Busted” v. “New Hotness”.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:29 am

  10. The AUMF controls, more than the tribunals statutes or Hamdan/Hamzi/Boumediene. We are not at war with the whole world.

    Comment by nk (11c9c1) — 7/1/2008 @ 7:36 am

  11. Yet more reasons why we shouldn’t be incarcerating those terrorists found on the battlefields…

    The other alternative is perfectly legal, no muss, no fuss. Yet I don’t doubt that there would be those who would complain about that, too. Even more vociferously…

    This is perfect. When told that our government was holding someone with no evidence, your average Republican responds by flatly declaring we should have just killed whoever that person was in the first place.

    There really isn’t much to say to that.

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:38 am

  12. So you don’t support the Geneva Conventions, Levi?

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:39 am

  13. There really isn’t much to say to that.

    Given that it is the only legal alternatives being offered to our troops (cv Geneva Conventions regarding the identifying characteristics of a legal combatant), I agree. There is nothing more to say.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:43 am

  14. So you don’t support the Geneva Conventions, Levi?

    Maybe I should play Patterico’s little understanding game with more of you than just DRJ, for ten bucks a pop of course. I could live off the money I’d make, I’m sure.

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:44 am

  15. Only if Patterico gives me the same powers he gave DRJ…

    Agreed?

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:46 am

  16. Given that it is the only legal alternatives being offered to our troops (cv Geneva Conventions regarding the identifying characteristics of a legal combatant), I agree. There is nothing more to say.

    What an excuse. “They don’t have a team uniform and they don’t march in columns, therefore we’re allowed to do whatever we want, including and up to torturing them, torturing their kids, or simply just shooting them in the head.”

    The American Way has never looked like so much like Nazism.

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:48 am

  17. How many here have seen “The Great Escape”, and the various explanations being offered for the soldiers not actually being in “uniform”? (“I had to dye it from olive green to black because I got some grease on it, and the missing insignia were torn off and lost”, etc.)

    Do these “terrorists deserve civil rights” wonder why the POWs were arguing so hard? Simple. Because they knew that if they were caught out of uniform, they could be summarily executed as spies/saboteurs.

    Just like those who are caught out of uniform on the battlefields of today. If they are carrying a weapon and aren’t wearing a uniform, they are not in any position to claim their rights. The only thing they legally get to decide at that point is which temple gets the bullet.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:49 am

  18. “They don’t have a team uniform and they don’t march in columns, therefore we’re allowed to do whatever we want, including and up to torturing them, torturing their kids, or simply just shooting them in the head.”

    Have you ever read the Geneva Conventions, or just the anti-Bush talking points?

    Seriously.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:50 am

  19. The American Way has never looked like so much like Nazism.

    The mere fact that you can say that and NOT get rounded up and shot proves just how wrong you are…

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:50 am

  20. Only if Patterico gives me the same powers he gave DRJ…

    Agreed?

    You are no DRJ. I don’t have the crazy reverence for DRJ that so many others around here have for her, but even I know that you are no DRJ. I’d destroy you, especially with crap like:

    So you don’t support the Geneva Conventions, Levi?

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:52 am

  21. So, on the condition that Patterico allows me the same powers and authority he granted to DRJ, you agree?

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 7:53 am

  22. *tap, tap*

    Is this thing on?

    Levi: have you ever read the Geneva Conventions regarding the identification of combatants?

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 7:54 am

  23. Have you ever read the Geneva Conventions, or just the anti-Bush talking points?

    Seriously.

    What did I get wrong?

    You think there’s nothing wrong with summarily executing Middle Easterners that don’t subscribe to the West’s rules of war. That’s not what you’re saying?

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:54 am

  24. So, on the condition that Patterico allows me the same powers and authority he granted to DRJ, you agree?

    You’d get embarrassed and ban me right off the bat.

    That about right?

    Comment by Levi (74ca1f) — 7/1/2008 @ 7:57 am

  25. You think there’s nothing wrong with summarily executing Middle Easterners that don’t subscribe to the West’s rules of war.

    So then it should be ok for us to adopt their methods, yes? Blowing up whatever buildings we like, without a thought to anything but killing as many as possible?

    Does this hold for Iran as well? Can we just start randomly blowing up schools?

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 8:01 am

  26. You think there’s nothing wrong with summarily executing Middle Easterners that don’t subscribe to the Geneva Conventions.

    FTFY.

    And no, I don’t, especially when they could very easily qualify for the protections offered by the GC. But they instead choose to hide out in protected areas – areas they KNOW we will respect, so they cannot claim ignorance about what the rules are – and use civilians as shields.

    The rules are simple: follow them, and you get all the protections offered to honorable warriors. Violate them, and you deserve whatever you get for acting dishonorably.

    Have you ever actually read the GC? (Third time I’ve asked.)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 8:02 am

  27. You’d get embarrassed and ban me right off the bat.

    That about right?

    Not even close…

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 8:02 am

  28. FTFY.

    And no, I don’t, especially when they could very easily qualify for the protections offered by the GC. But they instead choose to hide out in protected areas – areas they KNOW we will respect, so they cannot claim ignorance about what the rules are – and use civilians as shields.

    The rules are simple: follow them, and you get all the protections offered to honorable warriors. Violate them, and you deserve whatever you get for acting dishonorably.

    Have you ever actually read the GC? (Third time I’ve asked.)

    Why would they give up their only advantage against the greatest military the world has ever known? The fact that they are un-identifiable is literally the only thing they have going for them. This is the way these people have been fighting for centuries. This isn’t their problem, it’s ours. This is why this war was such a bad idea in the first place.

    What do you expect, for them to wrap pink flags around their arms, so we can identify them, and are therefore able to offer them PoW status if they’re captured, because now they’re following the rules? These people were blowing up Arab women and children before we got there, do you think they give a damn about being granted PoW status? Do you think that’s on Osama’s list of priorities?

    Comment by Levi (74ca1f) — 7/1/2008 @ 8:10 am

  29. You might as well try to get them to fight without guns. Or maybe you could try screaming that suicide bombing is unfair.

    Comment by Levi (74ca1f) — 7/1/2008 @ 8:11 am

  30. “Legally, anyone caught baring arms against our troops and NOT wearing a uniform/not a member of a State military,”

    It’s sorta kinda the whole idea of bringing them in front of a judge to see if they were indeed “caught baring arms against our troops and not wearing a uniform”.

    Many of the detainees were sold to us on the neighbor or someone else’s word and you know we just can’t trust those muslims. They might lie just to get the money. Or they might lie to settle old scores.

    Comment by jharp (1e383d) — 7/1/2008 @ 8:11 am

  31. You think there’s nothing wrong with summarily executing Middle Easterners that don’t subscribe to the West’s rules of war. That’s not what you’re saying?

    Well, we could adopt their rules of war, Levi.

    Comment by nk (11c9c1) — 7/1/2008 @ 8:12 am

  32. Well, we could adopt their rules of war, Levi.

    Here’s an idea, why don’t we stop trying to fight wars with them in the first place?

    Comment by Levi (74ca1f) — 7/1/2008 @ 8:13 am

  33. Levi #28,

    ? What’s your point, there? They’re animals so we should let the ASPCA deal with them?

    Comment by nk (11c9c1) — 7/1/2008 @ 8:14 am

  34. The fact that they are un-identifiable is literally the only thing they have going for them.

    That’s fine. I actually don’t begrudge them using whatever means they have.

    But that benifit, that “thing they have going for them” has a price, and that price is summary execution on the battlefield as a spy/sabotour.

    They can’t gain the benefit without incurring the penalty.

    It’s sorta kinda the whole idea of bringing them in front of a judge to see if they were indeed “caught baring arms against our troops and not wearing a uniform”.

    It simplifies things when you do it right there, where you caught them next to the bomb-making stuff or the AK-47 that’s VERY recently been fired…

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 8:17 am

  35. If we’re going to be reinventing the wheel, I also oppose the Geneva Conventions. War, except in self-defense or in defense of an innocent third party, is a crime against humanity and should be punished in every possible way. I think the Nuremberg Principles are enough international law on the subject.

    Comment by nk (11c9c1) — 7/1/2008 @ 8:17 am

  36. Here’s an idea, why don’t we stop trying to fight wars with them in the first place?

    Sure thing. We’ll just them them slaughter the innocent – who’s only crime is to be of a different sect – and then when they get tired of that and start killing our people in the US, what would you suggest we do? hug them?

    Comment by Scott Jacobs (fa5e57) — 7/1/2008 @ 8:18 am

  37. Here is the relevant provision of the Geneva Convention:

    Article 4

    A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

    2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    (a) That of being commanded by a person responsible for his subordinates;

    (b) That of having a fixed distinctive sign recognizable at a distance;

    (c) That of carrying arms openly;

    (d) That of conducting their operations in accordance with the laws and customs of war.

    3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

    6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    The second clause of Art. 5 states:

    Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

    There is a question of whether someone would need to wear a uniform and a sign recognisable at a distance if a member of “the armed forces of a Party.”

    Comment by bridget (e8e4c8) — 7/1/2008 @ 8:22 am

  38. Here’s an idea, why don’t we stop trying to fight wars with them in the first place?

    We aren’t the ones who started this little fracas, you moron.

    What do you expect, for them to wrap pink flags around their arms, so we can identify them, and are therefore able to offer them PoW status if they’re captured, because now they’re following the rules?

    YES. Because that is what the Geneva Conventions require of any LAWFUL combatant.

    These people were blowing up Arab women and children before we got there, do you think they give a damn about being granted PoW status?

    Then they shouldn’t complain when they aren’t made into POWs, and in the only legal method remaining to our troops.

    You seem to be arguing that they don’t have to fight according to the Rules and Customs of War, yet still get all the benefits of same.

    As Scott points out, you don’t get the benefit without paying the price. Are you arguing that we should start adopting their methods of warfare?

    It’s sorta kinda the whole idea of bringing them in front of a judge to see if they were indeed “caught baring arms against our troops and not wearing a uniform”.

    That’s not something required by the GC. Whoever’s keeping the list, chalk up another one.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 8:22 am

  39. Well done, Bridget!

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 8:23 am

  40. If we’re going to be reinventing the wheel, I also oppose the Geneva Conventions. War, except in self-defense or in defense of an innocent third party, is a crime against humanity and should be punished in every possible way. I think the Nuremberg Principles are enough international law on the subject.

    I didn’t say we shouldn’t do anything to fight terrorism and stop oppression, I simply said that trying to fight a conventional war with these people, by plopping our hyper-advanced military in the middle of their society and culture and then demanding that they become just like us, is just about the most inefficient and ineffective way we could go about it. We will lose this way. We are losing this way. Because Bush is trying to fight a war, and this isn’t a war. There are no front lines. We’re not meeting them in open battle.

    Comment by Levi (74ca1f) — 7/1/2008 @ 8:28 am

  41. belonging to a Party to the conflict

    And to which ‘Party’ do all of these people belong to in this ‘Conflict?’

    Comment by Levi (74ca1f) — 7/1/2008 @ 8:31 am

  42. Using Levi’s standard, I do not need to even read these comments to know that Levi and harpy are spoojing all over the place as a result of this.

    Comment by JD (75f5c3) — 7/1/2008 @ 8:31 am

  43. Here’s the problem with the Geneva Conventions. They’re territory based. Not organization based. (Or maybe both territory and organization based.) If the country the combatants are fighting in is a signatory they are protected even though they or their organization are not signatories. Afhanistan is a signatory to the Geneva Conventions and everybody fighting there is subject to them but also entitled to their protections.

    Comment by nk (11c9c1) — 7/1/2008 @ 8:32 am

  44. …trying to fight a conventional war with these people, by plopping our hyper-advanced military in the middle of their society and culture and then demanding that they become just like us, is just about the most inefficient and ineffective way we could go about it.

    And that’s not what we’re doing.

    We are losing this way.

    No, we’re not. We’re not losing at all.

    Because Bush is trying to fight a war, and this isn’t a war. There are no front lines.

    Oh, but there are. They just move around a lot, but not nearly as much as they used to.

    We’re not meeting them in open battle.

    Of course we are. And we win those conflicts overwhelmingly. Here’s a skirmish that happened yesterday, and you’ll note that the story references another that happened on Monday. We won both.

    Comment by Pablo (99243e) — 7/1/2008 @ 8:48 am

  45. If the country the combatants are fighting in is a signatory they are protected even though they or their organization are not signatories.

    Not unless they obey the Conventions themselves.

    The Geneva Conventions doesn’t pay attention to areas, because they were irrelevant then as they are now. It isn’t where the fighting is occurring, it’s who’s doing it and under what kind of rules.

    Either combatants follow the GC (and gain the protections offered) or they don’t (and they don’t).

    To repeat (from Bridget’s post above):

    2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    (a) That of being commanded by a person responsible for his subordinates;

    (b) That of having a fixed distinctive sign recognizable at a distance;

    (c) That of carrying arms openly;

    (d) That of conducting their operations in accordance with the laws and customs of war.

    These are the minimum requirements to qualify as a lawful combatant: have a definite chain of command, wear a distinctive symbol or insignia, carry arms openly, and following the rules.

    The failure to do so causes the loss of any protections offered under the GC.

    And to which ‘Party’ do all of these people belong to in this ‘Conflict?’

    The “Party” that is fighting us. (Should they have added ‘… of the second part’ to clear things up for you?)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 8:51 am


  46. We are losing this way.

    Even Baracky does not believe this. Levi could not point to one battle, one skirmish, or one front that we have not won. We are losing only in Wrangler’s mind. Actually, the only way that we can lose is if we quit.

    Comment by JD (75f5c3) — 7/1/2008 @ 8:51 am

  47. Sigh.

    Comment by nk (11c9c1) — 7/1/2008 @ 9:02 am

  48. Like I said, nk, since the SCOTUS has clearly ignored the Geneva Conventions, they no longer apply to our troops confronting those who are carrying out combat operations without meeting any of the four (much less all four) requirements listed, and (as such), the only legal option left to them is to not bother capturing any prisoners at all.

    It’s perfectly legal, saves the trouble of wasting the SCOTUS’ valuable time (and our valuable resources), and ensures that the next guy thinking jihad against us will think twice.

    Hamden might not be an unlawful combatant according to those 5 Justices, but that means he is a spy – subject to summary execution by whoever happens to discover him.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 9:10 am

  49. Except that our soldiers will be the last ones to spit on our system of government and governmental institutions that they are putting down their lives to defend. Including the Supreme Court.

    Comment by nk (11c9c1) — 7/1/2008 @ 9:25 am

  50. Liberal judges never look at the evidence, they have their political opinion and that’s all that counts. The only real good thing to come from the rulings of the liberal courts is that there will be another terrorist attack on the U.S. and as many or more liberals than patriots will die. Liberals and democrat voters (welfare) tend to form their cults/tribes in the cities that will be the target of terrorists. The terrorists will avoid hitting the Congress and SCOTUS since they are the best friends and supporters the terrorists have.

    Comment by Scrapiron (d671ab) — 7/1/2008 @ 9:25 am

  51. Except that our soldiers will be the last ones to spit on our system of government and governmental institutions that they are putting down their lives to defend. Including the Supreme Court.

    But it was the SCOTUS that showed the way. There is no such thing as an unlawful combatant, and captured terrorists deserve Constitutional protections.

    So, no more prisoners. Problem solved!

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 9:27 am

  52. My bad.

    Comment by nk (11c9c1) — 7/1/2008 @ 9:32 am

  53. So they toss out the charges, because they don’t want to believe the connections of Farhat and Co. to the the East Turkestan Islamic Movement or the
    fact that they wouldn’t give up sources and methods. So we can’t sent him back to China, since
    we know they torture. Of course Al-Nashiri’s going to protest his treatment at the hands of
    “Deuce” Martinez; that’s part of the Birmingham AQ manual. So no actual objections, and the double talk that forced Abdullah Saleh al Ajmi on his way to Camp Inman; three years ago.

    Comment by narciso (c36902) — 7/1/2008 @ 9:35 am

  54. This will acheive the same result as in the UK. They will be released into the US population.

    Comment by davod (5bdbd3) — 7/1/2008 @ 9:44 am

  55. They will be released into the US population.

    Now there’s a thought experiment– which will survive longer when generally identified, an AQ supporter or a child rapist….

    Comment by Foxfier (15ac79) — 7/1/2008 @ 9:59 am

  56. The fact that they are un-identifiable is literally the only thing they have going for them.

    But it’s a violation of the Geneva Conventions, which removes all protections they afford a combatant, unless their party to the conflict punishes the violation. Given that the jihadis celebrate their violations, I’d say that places them outside the GCs by choice.

    The left has to decide whether to abide by the terms of the GCs or not. If they stick to their current tack, then I think we should just be honest and withdraw from the treaty entirely. God knows our abiding by it hasn’t done our troops any good when they get captured.

    Comment by Rob Crawford (6c262f) — 7/1/2008 @ 11:18 am

  57. Child rapist. The AQ supporter will be killed immediately, but someone will torture the child rapist before offing him.

    Comment by bridget (e8e4c8) — 7/1/2008 @ 11:18 am

  58. I wonder if levi is going to volunteer to conduct foot patrols and conduct interrogations if the standard he sets requires the average soldier to act more like a police officer than an individual at war.

    Comment by Maydayog (4400c6) — 7/1/2008 @ 11:33 am

  59. Why would they give up their only advantage against the greatest military the world has ever known? The fact that they are un-identifiable is literally the only thing they have going for them. This is the way these people have been fighting for centuries. This isn’t their problem, it’s ours. This is why this war was such a bad idea in the first place.

    Which war are you referring to?

    Comment by Gerald A (138c50) — 7/1/2008 @ 11:34 am

  60. Why would they give up their only advantage against the greatest military the world has ever known? The fact that they are un-identifiable is literally the only thing they have going for them. This is the way these people have been fighting for centuries. This isn’t their problem, it’s ours.

    You mean we’re supposed to accomodate a tactic based on the culture in that location? That’s a bizarre concept. Why is the “fact they are un-identifiable is literally the only thing they have going for them” our problem?

    Comment by Gerald A (138c50) — 7/1/2008 @ 11:40 am

  61. Why would they give up their only advantage against the greatest military the world has ever known? The fact that they are un-identifiable is literally the only thing they have going for them. This is the way these people have been fighting for centuries. This isn’t their problem, it’s ours.

    To the extent that you’re talking about anyone in AQ, I will point out that they could avoid bombing the WTC and the U.S.S. Cole, and then flying our planes into our buildings, if they don’t like fighting the big, bad U.S. Let sleeping dragons lie, and all.

    Comment by bridget (e8e4c8) — 7/1/2008 @ 11:51 am

  62. Not to forget that “the fact they are unidentifiable” specifically violates the muchly vaunted (so-called) international law (genuflect, genuflect, genuflect) that the “the illegal war” meme-spreaders claim to be so concerned about…

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 11:55 am

  63. If they are carrying a weapon and aren’t wearing a uniform, they are not in any position to claim their rights

    Well, I guess Afghan citizens have a right to bear arms, just as well as American ones. Does this mean that if they practice this right, they deserve to be killed for any reason at all?
    Besides, many of the prisoners were not taken on the battlefield, nor did they have weapons with them. Some of them just had names that sounded like someone’s else names.

    Comment by Nikolay (efad63) — 7/1/2008 @ 12:38 pm

  64. Well, I guess Afghan citizens have a right to bear arms, just as well as American ones.

    Show me the Afghani Bill of Rights, please.

    And you conflate “carrying a weapon” with “using that weapon to attempt to kill non-Muslims”. Why is that?

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 12:42 pm

  65. Show me the Afghani Bill of Rights, please.

    Well, I don’t think they have Bill of Rights, but they must have some kind of law concerning this.

    And you conflate “carrying a weapon” with “using that weapon to attempt to kill non-Muslims”. Why is that?

    It’s not me doing this, but you. You said that any person you don’t like carrying a weapon deserves death, that was a direct quote. “Caught on the battlefield” specification doesn’t make any difference, since there’s no battlefields in the situation of the guerrilla warfare.

    Comment by Nikolay (efad63) — 7/1/2008 @ 1:10 pm

  66. Actually, Nikolay, if civilians with no affiliation to an armed force take pot shots at soldiers, they move from the “civilian” category of protections in the GC to “unlawful combatant” category.

    It’s one thing to have a gun; it’s another thing to shoot at people with it.

    Comment by Rob Crawford (6c262f) — 7/1/2008 @ 1:17 pm

  67. “Caught on the battlefield” specification doesn’t make any difference, since there’s no battlefields in the situation of the guerrilla warfare.

    Yes, there are.

    And this is why the GCs call for forces to wear something that identifies them as combatants. The idea is that if all sides wear uniforms, when someone out of uniform is shooting, they might be mistaken or simply acting in self-defense. When one side actively avoids identifying themselves, they’re putting actual civilians at risk.

    The entire purpose of the GCs is to protect actual innocent parties — civilians, medical personnel. The requirements given for lawful combatants are intended to make it easier to identify civilians, and make it less likely they’ll come under accidental fire. Ignoring those restrictions in order to gain a tactical advantage over a side is known as “perfidy” and is a war crime.

    Basically, the Levi position is “well, if they feel they must commit war crimes, then who are we to judge?”

    Personally, I find that attitude disgusting.

    Comment by Rob Crawford (6c262f) — 7/1/2008 @ 1:24 pm

  68. You said that any person you don’t like carrying a weapon deserves death

    No I didn’t. I said that anyone caught bearing arms against the United States deserves death. They do. If they are simultaneously violating the Geneva Conventions, they don’t deserve to have valuable time wasted on capturing them, since dead men can’t be prisoners.

    The Geneva Conventions have very simple rules. Obey them, and you will be treated as an honorable warrior. Violate them, and be shot dead in the streets and left to rot like the dog you are.

    Your call.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 1:25 pm

  69. but they must have some kind of law concerning this.

    Then provide it. If you can.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 1:26 pm

  70. Here is a story of another detainee that may be worth considering as a counterpoint.

    Ex-Guantanamo detainee suicide bomber fought at Tora Bora
    By Bill Roggio (The Long War Journal)
    July 1, 2008

    On the morning of March 23, 2008, an Easter Sunday, a massive blast rocked the northern Iraqi city of Mosul. Eight kilometers away at Forward Operating Base Marez, the US Military Transition Team for the 6th Brigade, 2nd Iraqi Army Division, prepared for the worst…

    The US adviser team…, accompanied by this reporter, arrived at the scene of the attack within one hour of the bombing…

    An al Qaeda suicide bomber drove an armored dump truck with an estimated 10,000 pounds of explosives through the gate and detonated it directly in the middle of the compound…

    Thirteen Iraqi soldiers were killed and 43 wounded in the attack… The suicide attack was part of an al Qaeda offensive designed to break the will of the Iraqi security forces in Mosul in an attempt to main a foothold in the northern city. Dozens of such attacks against Iraqi Army and police bases and checkpoints have occurred in Mosul…

    The attack on Combat Outpost Inman was carried out by a notorious al Qaeda operative – a Kuwaiti who was captured at Tora Bora in Afghanistan, held in the US detention facility at Guantanamo Bay, Cuba, and released to the Kuwaiti government in 2005.

    [snip]

    Mr. Parhat’s experiences represent one extreme of the problems posed by “Enemy Combatants.” The post-release actions of Mr. Abdullah Salih al Ajmi, described above by Bill Roggio, are also worth reflection. The difficulties arise in trying to find a procedure that addresses both circumstances.

    Comment by AMac (c822c9) — 7/1/2008 @ 1:30 pm

  71. It’s always the same thing with the extreme Left these days – when the facts prove otherwise, lay on some nonsensical moral relativism. First we hear how they have no other recourse except to fight as unidentified combatants; then we must not kill them in battle anymore, since that’s somehow “unfair” to the terrorist’s bill or rights.

    Christ almighty, we don’t fight wars according the Marquis of Queensbury rules, although some devoutly wish we would. Just one problem – the other side fights according the Marquis De Sade rules.

    Comment by Dmac (ea35f7) — 7/1/2008 @ 1:34 pm

  72. Actually, Nikolay, if civilians with no affiliation to an armed force take pot shots at soldiers, they move from the “civilian” category of protections in the GC to “unlawful combatant” category.

    Well, the problem is, you forget to mention this nuance. And you’re right, civilians shooting at the soldiers don’t have any legal (say, GC) protection. Now, what percentage of Guantanamo etc. prisoners could be described as “taken with weapons that they used to shoot at the soldiers”? I’d guess, very low. I’d guess, close to zero.

    Which is one of the big problems when discussing these questions with conservatives: you tend to focus on hypothetical situations that have nothing to do with reality — such as “24h ticking clock bomb scenario”. Meanwhile, the real abuse that you’re willing to have on your conscience has nothing to do with these fictions.

    The other big problem is utter insensibility of people that could say “sleep deprivation/waterboarding is not torture”. Never in my childhood, doing my small insignificant part fighting Communism in Soviet Union, could I imagine that I’d live to see Americans giving justifications to those GULAG practices.

    Comment by Nikolay (efad63) — 7/1/2008 @ 1:42 pm

  73. Then provide it. If you can.

    Well, how is it relevant? The NRA’s argument, as far as I know, is not that Second Amendment is some Holy Mystical Writ given to the unique American nation, but that it guarantees basic human liberties. If you subscribe to Second Amendment’s arguments, as I suspect you do, why even question other people’s rights to bear arms in their own countries?
    As for exact quote, I’m not an expert on Afghanistan’s laws. Basically, I don’t believe that any country at the Afghanistan’s level of historical evolution would even consider the idea of prohibiting bearing of arms.

    Comment by Nikolay (efad63) — 7/1/2008 @ 2:06 pm

  74. Which is one of the big problems when discussing these questions with conservatives: you tend to focus on hypothetical situations that have nothing to do with reality — such as “24h ticking clock bomb scenario”.

    *gets the giggles*
    Wiretapping hysteria, anyone?
    Anthro Global Warming?
    Gov’t health care?
    The Second Amend. being upheld turning DC into a bloodbath/the wild west?

    I’m sure folks can think of other examples….

    Comment by Foxfier (15ac79) — 7/1/2008 @ 2:30 pm

  75. Drumwaster is making the common modern American error of confusing a Right with a privilege.

    Privileges are granted BY governments and extended to a nations citizens as a matter of LAW.

    Rights are POSSESSED by SOVEREIGN INDIVIDUALS and STATES by the very nature of their existence. They are SELF EVIDENT and they extend to everyone.

    That said…If someone uses his weapon to shoot at American soldiers, he or she has actively and willfully entered into a STATE OF WAR with the United States and must deal with the consequences which possibly include being shot by American soldiers. If the person chooses to follow the GCs then they are extended certain privileges that do not typically exist in a STATE OF WAR.

    I am thankful every day that I live in a country that was founded upon the principle of NATURAL RIGHTS and not a nation founded upon the principle of legally constructed rights granted by my fellow man.

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 2:53 pm

  76. “Meanwhile, the real abuse that you’re willing to have on your conscience has nothing to do with these fictions.”

    Please read the history of the Pacific war, and tell us how you would have dealt with armed forces that were indoctrinated into suicide squads that were designed to inflict as many enemy and civilian casualites as possible. These forces were also hidden within civilian populations, with the enemy combatants rarely identified – then also please tell us how you would advise a soldier to treat a supposed surrendering enemy soldier, since thousands of his fellow troops have been blown up previously, via a trigger bomb hidden within the enemy’s body cavities. All of these activities are similar to what our soldiers have faced in Iraq and Afghansistan.

    I’d recommend your list of reading to begin with “Flyboys,” and then continue on to “Goodbye, Darkness.” Until then, spare us your comparisons with live in the USSR – you cannot compare the two experiences in any relevant manner.

    Comment by Dmac (ea35f7) — 7/1/2008 @ 3:06 pm

  77. Drumwaster is making the common modern American error of confusing a Right with a privilege.

    No, I’m not, and in what way do you see this? (I also know what “responsibility” means.)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 3:12 pm

  78. Drumwaster #77. Stop being obtuse.

    ” Well, I guess Afghan citizens have a right to bear arms, just as well as American ones.

    Show me the Afghani Bill of Rights, please.”

    What part of “SHOW ME THE AFGHANI BILL OF RIGHTS” as a response to “AFGHAN CITIZENS HAVE A RIGHT TO BEAR ARMS” displays a NATURAL RIGHT understanding?

    Such a question, by its nature is both facetious and implies that you believe rights are granted by documents.

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 3:19 pm

  79. Such a question, by its nature is both facetious and implies that you believe rights are granted by documents.

    Not “granted”. “Protected”.

    You are also being willingly ignorant of the fact that there is a world of difference between having a gun for self-defense and firing said gun at American soldiers who are shooting back.

    One is perfectly fine and peachy-keen. The other merits instant death. The difference between the two I leave as an exercise for the student.

    (Meanwhile, the fact that many of these idjits fighting us the way they do violate the Geneva Conventions – and by extension, lose any chance at claiming the protections guaranteed by that document – remains up in the air.)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 3:25 pm

  80. Until then, spare us your comparisons with live in the USSR – you cannot compare the two experiences in any relevant manner.

    Really? Stalin was fighting internal dissent in a country that faced existential threat from Nazis, with elite eager to change sides. He turned agrarian country into industrial one in mere decades. He braved the greatest historical challenge in the history of Russia (compared to which the sacrifices of the American “greatest generation” are tiny). Somehow, I don’t think this justifies him.

    And no historical relativism can change the fact that sleep deprivation, as the rest of the GULAG practices, is primary a source of getting false information.

    As for Pacific war, I thought that USA managed to win it without adopting torture as its policy. Am I wrong?

    Comment by Nikolay (efad63) — 7/1/2008 @ 3:27 pm

  81. What part of

    “If someone uses his weapon to shoot at American soldiers, he or she has actively and willfully entered into a STATE OF WAR with the United States and must deal with the consequences which possibly include being shot by American soldiers. If the person chooses to follow the GCs then they are extended certain privileges that do not typically exist in a STATE OF WAR.”

    is “willingly ignorant of the fact that there is a world of difference between having a gun for self-defense and firing said gun at American soldiers who are shooting back.”?

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 3:31 pm

  82. You are quite wrong if you’re defining “torture” as in your earlier missives. Our troops tried to play it straight down the line regarding the rules of engagement – and once they got a load of the Imperial Japanese Army’s tactics over the first year of battle, the gloves were off. You have to know the history of that war (sadly, most Americans have no idea regarding the particulars of most engagements, since the European Theatre was the main focus of the press and our allies) in order to understand the evolution of tactics on the battlefield.

    As for your experience in the USSR; to make any moral equation with the KGB’s well – known tactics (i.e., cutting off genitalia, burning people alive, electrocution of genitalia, etc.) with what our armed/secret services do is pure sophistry.

    Comment by Dmac (ea35f7) — 7/1/2008 @ 3:35 pm

  83. #79

    To step back for a moment. If you didn’t get that I agree with you that American soldiers have every right to eliminate those that shoot at them on the field of battle, that is my failing.

    But your less than careful use of language with regard to rights is emblematic of a large amount of the conversation I see in the comments section here from time to time. You might notice that people often talk about how the Rights in the Constitution only apply to Americans. I take issue with that as the thing I love most about America is that it is founded on the principle of Natural Rights and not National Rights.

    I know that those who disagree with your position often attempt to assert that they are the true defenders of “human rights” and “human dignity,” so you may be eager to ignore any discussion based on Natural Rights. You might even be imagining that I sympathize with certain “progressive” commentators in the comments sections. That would be wrong. I firmly believe that we need to walk cautiously and that we should not allow unlawful combatants free reign to act against our troops. That said, we also need to make sure that our policies are Just and not merely expedient.

    I don’t think we have crossed the line into tyranny, just that we need to apply our first principles a little more.

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 3:41 pm

  84. Here’s what the KGB did to a US double agent:

    http://www.timesonline.co.uk/tol/comment/obituaries/article467679.ece

    The list of unspeakable atrocities were detailed more fully after the release of KGB files during Yeltsin’s term in office.

    Not to mention what Putin’s thugs did to so many of your countrymen, for the sole crime of speaking their mind freely (poisoning, anyone?). Please don’t make moral equivalencies between the two countries – Russia makes the US look like we’re playing footsie by comparison.

    Comment by Dmac (ea35f7) — 7/1/2008 @ 3:43 pm

  85. What part of [deleted for brevity] is “willingly ignorant of the fact that there is a world of difference between having a gun for self-defense and firing said gun at American soldiers who are shooting back.”?

    The part where you are trying to claim that I don’t know the difference between a right and a privilege.

    The Afghanis have the “right” to carry a gun without being hassled by American soldiers. (Or their own, for that matter, since self-defense is the most basic human right.)

    The moment that gun shifts from “self-defense” to “Allahu Ackbar”, the bearer loses any protections guaranteed by the non-existent Afghani Bill of Rights, just as I would if I used my revolver to try to rob a local bank branch.

    If I got shot by the security guard in the attempt, it wouldn’t be “murder” on his part. If our troops decide to no longer take prisoners because it’s easier to ask forgiveness (“I swear I didn’t see that white flag before calling in the Warthogs, sir”) than to fill out all the paperwork (only to have them walk away scot-free because some poor private forgot to tell them that they have the right to halal meals), then remember that it was the two “terrorists deserve Constitutional Rights” SCOTUS decisions that caused it.

    Unintended Consequences, dontchaknow…

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 3:48 pm

  86. As for your experience in the USSR; to make any moral equation with the KGB’s well – known tactics (i.e., cutting off genitalia, burning people alive, electrocution of genitalia, etc.) with what our armed/secret services do is pure sophistry.

    Well, the thing is, what you’re talking about definitely did happen sometimes, but was not a standard practice. When Solzhenitsyn writes about NKVD’s tortures, sleep deprivation is the number one he describes. When I talk to my older relatives that describe the things that happened to my other relatives in GULAG, they don’t talk about these things you mention. They talk about sleep deprivation, stress positions and freezing. When I tell them that USA doesn’t see these things as torture anymore, they refuse to believe me.

    Comment by Nikolay (efad63) — 7/1/2008 @ 3:52 pm

  87. You might notice that people often talk about how the Rights in the Constitution only apply to Americans. I take issue with that as the thing I love most about America is that it is founded on the principle of Natural Rights and not National Rights.

    But the Constitution is a contract between “We the People” and the Federal Government. Third parties (such as foreign hotheads trying to kill our citizens) don’t get to claim the protections under that contract any more than I would get to claim a portion of your paycheck (the result of a contract between you and your employer).

    Those foreign citizens living in other nations do not get to claim Fourth Amendment protections about having the US intelligence community listen in on their plans to bomb the embassy. They don’t get to claim protections of the Geneva Conventions when they not only do not meet the minimum necessary requirements, they actively violate the rules regarding the protection of civilians, both by using them as shields, and deliberately targeting them.

    Rights are universal, but protections against a given government is based entirely on your relationship to that government (citizen or hostile enemy) and the protections offered by that government to the people in your class. That means writing things out, and that means a document. Rights don’t mean shit if they are not defended, either.

    The US has been VERY (perhaps overly) generous in trying to extend those protections to everyone, but the moment they start treating someone trying to kill as many Americans as possible the same as they do the law-abiding citizen who loves this nation, then the barbarians are not only at the gate, the Courts have ordered the gates taken down and shaped into pretty trinkets for the invaders.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 3:59 pm

  88. #85

    I love how your [deleted for brevity] deletes where I talk about the consequences of shooting at American soldiers.

    This is then followed by “blah, blah, blah… Machiavelli quote.”

    When it comes to siding with Cicero or Machiavelli, I’ll take Cicero. Tyrannies ask for forgiveness rather than permission. Just democracies defend themselves and accept the consequences of their actions as Patterico discussed in his earlier posts regarding torture.

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 3:59 pm

  89. Here’s what the KGB did to a US double agent:

    What do you mean? He was burned alive “according to some rumors”? That’s a mighty argument! Or would you argue that it’s wrong to shoot spies that give up military secrets? I have no sympathy for KGB whatsoever, but this is pure nonsense.
    Just as a Litvinenko reference. He was a pal with Chechen terrorists and other very shady people, including the guy who picked up Putin for the president in the first place, who converted into Islam before his death. His dissent consisted mainly of publishing truther books which had slightly less credibility than American trutherism. Who killed him and for what reasons is still a mystery.
    There’s so many awful things happening in Russia right now, but Litvinenko is just another bad example.

    Comment by Nikolay (efad63) — 7/1/2008 @ 4:12 pm

  90. You mean we’re supposed to accomodate a tactic based on the culture in that location? That’s a bizarre concept.

    Who said anything about accommodating it? That’s simply what they’re going to do, whether we like it or not.

    Why is the “fact they are un-identifiable is literally the only thing they have going for them” our problem?

    Because we’re trying to solve this problem with a big, cumbersome military that is absolutely unprepared and ill-equipped to deal with that sort of tactic. A military cannot sniff out terrorists, guerrillas, insurgents, whatever you want to call them, that are indistinguishable from the local population we’re supposedly supposed to be liberating.

    Part of the problem is that conservatives simply believe that everything having to do with 9-11, Saddam, Iraq, the insurgency, Osama, Iran, etc., all of those things are basically interchangeable with ‘terrorism.’

    Comment by Levi (74ca1f) — 7/1/2008 @ 4:15 pm

  91. A military cannot sniff out terrorists, guerrillas, insurgents, whatever you want to call them, that are indistinguishable from the local population we’re supposedly supposed to be liberating.

    I think the politest way it can be said is: “This turns out to not correspond with reality.”

    IOW, the facts say otherwise.

    verything having to do with 9-11, Saddam, Iraq, the insurgency, Osama, Iran, etc., all of those things are basically interchangeable with ‘terrorism.’

    This is a mathematical error. All of the things you mentioned are subset members of the set labeled “terrorism”, not the other way around.

    All of those things DO have to do with terrorism, but terrorism is not limited to just those things.

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 4:31 pm

  92. #87

    While I found the profanity unnecessary, I think I can agree with 90% of what was written here. The Fourth Amendment, as the Second Amendment, mentions “the people,” and thus implies that the state will only defend those rights for citizens. The Fifth, and part of the First, are more broad in their language.

    Governments have natural rights as much as individuals do and thus have no obligation to extend the manner in which they enforce their rights to those in a state of war against them, especially things that might be classified as civil rather than natural rights. A well regulated militia is a kind of civil right, but the “right to bear arms” is a natural one. And habeas corpus is one of the fundamental natural rights (Hamilton discusses this at length in Fed. 84).

    Whether those who are at war with the US are entitled to the US setting aside its natural right to self defense isn’t what I was questioning. I don’t believe they are. I was only commenting on whether the Afghans had a right to bear arms, which I believe they do.

    I never asserted that they deserve the protections of the GCs. I don’t believe they do. I do believe that our tribunals in Guantanamo have been more muddy than I’d like them to be. When we are using the “word” of the Chinese government that an individual, who is opposed to the Chinese government, is a risk to US security and we aren’t allowing that claim to be challenged we are on a path I don’t want to follow.

    Comment by Christian Lindke (2c3270) — 7/1/2008 @ 4:55 pm

  93. And habeas corpus is one of the fundamental natural rights (Hamilton discusses this at length in Fed. 84).

    The point stands that those rights are only protected because the government in charge has agreed to operate under the written rules requiring them to do so. A document, in other words.

    The basic right is there, but does not exist unless there is some way to defend it. That requires a law and a government willing to obey that law.

    Just try claiming habeus rights in Communist China. They will laugh politely before asking which ear you want the bullet in. Their Miranda warning is “Scream all you want. We don’t mind.”

    (Maybe a little different since the Olympics were announced, but still…)

    Comment by Drumwaster (5ccf59) — 7/1/2008 @ 5:00 pm

  94. “Who killed him and for what reasons is still a mystery.”

    Yeah, some mystery – almost anyone who dares to criticize Putin is either jailed or killed. From the editor of the Russian edition of Forbes to ex – KGB agents, they all somehow end up dead shortly after they start to speak ill of fearless leader. Whomever could it be? I never said that he was a person of good character, but to just shrug your shoulders and say “who knows?” begs incredulity on your part.

    “…this is pure nonsense.”

    Long on rhetoric, short of substance. You offer no links to source material to buttress your arguments. Try a few searches next time, it really doesn’t take that much time if you try.

    Comment by Dmac (ea35f7) — 7/1/2008 @ 5:22 pm

  95. How many did Stalin, kill before the Nazi’s came; Nikolay. And this was in furtherance of
    industrializing Russia; that’s the spin you’re going to put on it. Of course the American and
    other allied companies were doing that long before
    Stalin came to power and reversed the NEP. Stalin purged the heart of his officer corps, because he
    fell for a Abwehr trick that used the intra-war
    training of German troops, as a pretext for a coup. His campaigns against the Ukrainians, Chechens, and a hundred other ethnicities probably did earn some support from the Nazis. The point of sleep deprivation, is very much like the argument about Waterboarding; because the Khmer Rouge did it (to civilians) and the Shinto
    militarists (did it to uniformed soldiers) some how that’s the same as what was done to KSM. Ridiculous, but it’s what passes for logic among the left, and some elements of the paleocon right.

    Comment by narciso (d671ab) — 7/1/2008 @ 7:09 pm

  96. Because we’re trying to solve this problem with a big, cumbersome military that is absolutely unprepared and ill-equipped to deal with that sort of tactic. A military cannot sniff out terrorists, guerrillas, insurgents, whatever you want to call them, that are indistinguishable from the local population we’re supposedly supposed to be liberating.

    They can if they engage the local population, which is what they do, and it works. See Travis Patriquin. Then see al-Anbar today. And give Capt. Patriquin a thought of thanks for giving his life for his country and for a whole lot of Iraqis that he thought were worth the effort.

    Comment by Pablo (99243e) — 7/1/2008 @ 7:20 pm

  97. Not a problem. This country will have the status of less than any third world country in a couple of years. Get used to bumming for pennies on the streets. Once the anti-american party got control of congress it was over. Remember the democrats main finance man Soros. he said he would use his billions to destroy the country. The democrat party stuck their head up his butt and said lead us on.
    Once the court system got involved in fighting the war it was lost also. No matter how the war turns out the democrats will pull another Vietnam and give Iraq to any enemy of America that wants it. Cowards and traitors one and all. The middle east may as well stop the oil flow to this country and let China have it, they may even pay for it. Add the fact that the democrats destroyed the economy and ran gas price over double in sixteen months. Them we’ll see how the American people respond to the most corrupt, inept congress leadership in history.
    I see a new start right after a civil war that kills a hundred million or so.

    Comment by Scrapiron (c36902) — 7/1/2008 @ 8:12 pm

  98. Quotes from the decision (emphasis added):

    “Parhat is an ethnic Uighur, who fled his home in the People’s Republic of China in opposition to the policies of the Chinese government. It is undisputed that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies. The Tribunal’s determination that Parhat is an enemy combatant is based [solely] on its finding that he is “affiliated” with a Uighur independence group, and the further finding that the group was “associated” with al Qaida and the Taliban.”

    “According to Parhat, he fled China in May 2001 because of ‘oppression and torture imposed
    on Uighur people by the Chinese Government.’This oppression,’ he said, ‘included harassment, forced
    abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.’ Parhat arrived at a Uighur camp in Afghanistan in June 2001.”

    “In mid-October 2001, U.S. aerial strikes destroyed the camp where Parhat had been living. Thereafter, according to his undisputed testimony, Parhat and seventeen other unarmed Uighurs fled the camp, eventually crossing into Pakistan. Local villagers took the Uighurs in, gave them food and shelter, and then — in approximately December 2001 — handed them over to Pakistani officials who turned them over to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he remains imprisoned.”

    “The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. Parhat contends, with support of his own, that the Chinese government is the source of several of the key statements.”

    “In 2003, a military officer of the Criminal Investigation Task Force, U.S. Department of Defense, who was charged with reviewing Parhat’s case, recommended the release of Parhat under a conditional release agreement.”

    ‘[In 2004 T]he Tribunal determined that Parhat was an enemy combatant. … Notwithstanding its determination that Parhat was an enemy combatant, the Tribunal stated that ‘this Detainee does present an attractive candidate for release.’ It ‘urge[d] favorable consideration for release . . . and also urged that he not be forcibly returned to the People’s Republic of China’ because he ‘will almost certainly be treated harshly if he is returned to Chinese custody.’ The Defense Department did not release him.”

    “To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion.”

    Comment by Peccator Dubius (0a6237) — 7/1/2008 @ 10:02 pm

  99. It is undisputed by whom; certainly not anyone familiar with the ETIM. That officer was the same who recommended the release of Abdallah Saleh al Ajmi, a fighter at Tora Bora who blew himself outside of Camp Inman, this spring, or the other 36 detainees who have been gunned down,recaptured or known to be running jihadist operations. Shall we take his word like that of the “Tipton 3″ which have been proven that they materially lied about their circumstances. Besides it begs a question, do we send him back Zinjiang province, to Pakistan; or a third country. What business is it of a court system that refuses to recognize valid precedents on American jurisprudence; in favor of non sensical rulings.

    Comment by narciso (d671ab) — 7/1/2008 @ 10:18 pm

  100. Patterico, I agree with some of the points your original post makes. I agree, for example, that this decision wasn’t driven by anti-Bush ideology, nor by the sort of imperial judicial arrogance that characterizes Justice Kennedy’s decision in Boumediene. And if I had been a judge on this panel, I probably would have concurred in the result, and in much of the opinion.

    I do, however, have a few quibbles.

    You, the press reporting on the decision, and the appellate court panel itself have all failed to point out to the American public that this was an appeal from a Combat Status Review Tribunal (“CSRT”) decision — not from a full and final trial on the merits under the Military Commissions Act. Thus, the procedure in the American civilian criminal justice system to which this underlying hearing and the decision reached in it are most analogous is a probable cause hearing for someone arrested without either an arrest warrant or grand jury indictment.

    At this stage, the government only needed to make a barebones showing that the defendant was a “foreign enemy combatant” whose continued detention, pending “cessation of hostilities,” can be justified on that basis. There was no requirement that the government show, or even attempt to show, that this defendant was guilty of any particular war crime.

    I think it’s important for the public to understand that procedural setting. On the one hand, the government’s failure to meet its burden of proof is all the more distressing, given how much lower that burden was in this hearing that it would be in a formal commission trial. On the other hand, that context explains why it’s not particularly relevant, for example, that this defendant was unarmed when he fled the Taliban-approved terrorists camp in Afghanistan to seek refuge in Pakistan.

    I think it’s also significant that this defendant is not typical of the Gitmo detainees. If he had been in an al Qaeda camp, then his own uncoerced admissions in his live testimony at the hearing — to the effect that he voluntarily participated in weapons training and standing guard for this camp — would unquestionably have not only justified, but compelled the conclusion that he was a proper detainee. Reasonable inferences from his own admissions establish that this guy was indeed in training to become a terrorist — he just claims that he eventually intended to act against the Chinese government instead of the American government. There was a plenty-adequate showing, in other words, that this guy is potentially dangerous. But the question boiled down to whether he was sufficiently connected to a group that’s sufficiently connected to the Taliban and al Qaeda so as to be within the group of world-wide terrorists whom Congress intended to authorize the president to detain.

    I don’t think your post or the news media makes that point at all.

    I ultimately agree that under the relevant statutes, the government failed to offer anything other than conclusory, hearsay evidence to establish those connections. But that’s not to say that the government can’t come up with such evidence in the rehearing. I know former prosecutor Andy McCarthy is of the view that they probably can — in other words, that there is more than just the government’s “say-so” that the group with which this defendant was affiliated was indeed working with, supporting, and supported by, the Taliban and al Qaeda. That the government dropped the ball at this preliminary hearing, in other words, doesn’t mean they can’t or won’t prevail on remand.

    Another quibble, but a significant one: For purposes of his appeal, this defendant did have counsel, and his counsel was indeed shown everything that was considered at the hearing. Likewise, his counsel got the unredacted version of the D.C. Circuit’s opinion. It is true that the defendant didn’t have counsel for the hearing itself (only a non-lawyer personal representative), but that was a deliberate choice of Congress when it set up the procedures. And once again, it’s important to recognize that this was a preliminary hearing. Even in our civilian criminal justice system, a defendant doesn’t have the same panoply of rights at a probable cause hearing that he may claim at his trial on the merits.

    Finally: I’m very troubled by something that neither you nor the press accounts have mentioned: The appellate panel apparently felt itself to be free to stand in the shoes of the original tribunal, and to review the evidence and the tribunal’s conclusions de novo, without any deference whatsoever to the tribunal’s primary function as preliminary fact-finder. That’s remarkably different from traditional appellate review in the civilian criminal justice system. The problem may be with the statute, which specifies that the tribunal is to base its decisions on a preponderance of the evidence standard, but doesn’t expressly create a more limited standard of appellate review (e.g., “clearly erroneous” or “abuse of discretion”). I don’t know if it mattered in this particular case because of the key and indisputable hole in the government’s chain of proof. But in other cases, these tribunals ought to be able to draw factual inferences based on, for example, the demeanor of the witnesses who testify. When these detainees take the stand, it’s important that the fact-finders be able to use their Mark One eyeballs and their common sense — and appellate courts working from a dry transcript months later ought not be substituting their own subjective judgments on such matters.

    Ultimately, I see this case as an emphatic statement by the D.C. Circuit to the government that it can’t expect to cut major corners, even with the relaxed rules in such preliminary hearings. Here, that meant that the government had to show that this guy was a particular kind of terrorist who was sufficiently connected to al Qaeda and/or the Taliban. But it would be a huge mistake to read this opinion as a rebuke of the Administration beyond the facts of this individual case, and indeed, this particular preliminary hearing.

    As the panel also repeatedly noted, however, the practical importance of this decision, and of the entire CSRT system and the appeals therefrom, may all be effectively mooted by Boumediene‘s grant of habeas corpus rights to these detainees. Justice Kennedy has pulled the pin on that particular hand grenade and lobbed it back to the lower courts, but we don’t yet know what its blast yield will be.

    Comment by Beldar (e91136) — 7/1/2008 @ 10:52 pm

  101. Yeah, some mystery – almost anyone who dares to criticize Putin is either jailed or killed. From the editor of the Russian edition of Forbes to ex – KGB agents, they all somehow end up dead shortly after they start to speak ill of fearless leader. Whomever could it be? I never said that he was a person of good character, but to just shrug your shoulders and say “who knows?” begs incredulity on your part.

    Yet more nonsense.
    1) Paul Klebnikov was not a Putin’s critic. In fact he wrote a book investigating career of Boris Berezovsky, the same guy that many sensible people suspect of organizing Litvinenko’s murder.
    2) 99.9% of people that dare criticize Putin are alive and well. There are countless things that you should be able to do that put you into hot water here — such as organizing viable opposition party etc. Or, say, investigating Chechen’s leader Kadyrov. But merely criticizing Putin doesn’t make you a target. In fact, there’s a number of magazines and papers, not to mention web sites, that criticize Putin non-stop that have no problems whatsoever. Your view of our situation is very simplistic and distant from reality. Not all the historical dead ends are remakes of 1984. In fact, one could argue that it would be better if thing were that simple as you describe. But the roots of the things that go wrong in Russia seem to be much deeper than just Putin’s cult of personality (which, BTW, has ended, now that he’s no longer a president, we don’t see him on TV at all; the new guy, Medvedev, is everywhere).

    How many did Stalin, kill before the Nazi’s came; Nikolay. And this was in furtherance of industrializing Russia; that’s the spin you’re going to put on it.

    That’s not a spin I make, that’s a rationalization that Stalin’s fans (which are numerous) do.

    The point of sleep deprivation, is very much like the argument about Waterboarding; because the Khmer Rouge did it (to civilians) and the Shinto militarists (did it to uniformed soldiers) some how that’s the same as what was done to KSM. Ridiculous, but it’s what passes for logic among the left, and some elements of the paleocon right

    Well, go on with this logic. I’ll just repeat: never when I was a kid could I imagine such things being said by an American. And the elder people, who had some real parts of their life taken by Communism, just refuse to believe me when I say that the things that Solzhenitsyn wrote so eloquently about are not seen as torture in USA now.
    And this KSM reference is yet more bullshit. Most of the people that were put through sleep deprivation were not terrorists.

    Comment by Nikolay (efad63) — 7/2/2008 @ 2:18 am

  102. I have not read all the comments, but doesn’t it strike anyone as strange that the DC Court is reviewing the status of this detainee. I thought the recent SCOTUS ruling was so that the detainees could have judcial review of their detentions.

    Comment by davod (5bdbd3) — 7/2/2008 @ 4:42 am

  103. Nikolay:

    “Most of the people that were put through sleep deprivation were not terrorists.’

    How do you know this?

    Comment by davod (5bdbd3) — 7/2/2008 @ 4:44 am

  104. And this KSM reference is yet more bullshit. Most of the people that were put through sleep deprivation were not terrorists.

    They are, in fact, medical students. Ever looked at an intern’s schedule?

    Comment by Rob Crawford (6c262f) — 7/2/2008 @ 5:01 am

  105. The gap between the DC Circuit’s ultimate conclusion, and the government’s conclusion, is pretty small.
    .
    BOTH agreed, and the government before the case was completed, that Parhat was to be released. The dickering is over whether or not the label “enemy combatant” is to be attached.
    .
    Beldar –I’m very troubled by something that neither you nor the press accounts have mentioned: The appellate panel apparently felt itself to be free to stand in the shoes of the original tribunal, and to review the evidence and the tribunal’s conclusions de novo, without any deference whatsoever to the tribunal’s primary function as preliminary fact-finder.
    .
    That’s where the rubber meets the road. See also, Bismullah, which I think you will opine as being on a likewise wrong path, wrongly decided, etc. in that the Court does not sufficiently defer to the conclusions of the CSRT.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 5:02 am

  106. How do you know this?

    He feels it…

    Comment by Scott Jacobs (d3a6ec) — 7/2/2008 @ 5:04 am

  107. It’s illogical to argue that a CSRT review should be deferential on account of the finding is “merely preliminary.” For most of the detainees, the CSRT finding is the only thing they will ever obtain – they aren’t to be charged and tried as a means of justifying detention.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 5:11 am

  108. Justice Kennedy has pulled the pin on that particular hand grenade and lobbed it back to the lower courts, but we don’t yet know what its blast yield will be.

    .

    The first window on that was Khadr’s appeal to be heard by the Article III courts.

    .

    Came back the answer, “You’re charged and being tried in the military trial system. Come back after that trial concludes.”

    Comment by cboldt (3d73dd) — 7/2/2008 @ 5:21 am

  109. cboldt: Appellate courts should always be deferential to the fact-finder(s) who were there at the hearing. Appellate courts are particularly ill suited to determine such incredibly important things as, for example, who’s lying, and who’s telling the truth. That’s fundamental, and not subject to serious contrary argument.

    As for how long the detention will last for those detainees who are determined to be enemy combatants, that’s up to Congress. It declared the start of hostilities (or rather, recognized that we’re in the midst of a war these terrorists declared against us long ago). It will be up to Congress to decide when “hostilities have ceased”; presumably that doesn’t have to be an all-or-nothing determination, though, and Congress could, if it chose, provide for the release of some detainees on some other basis even before then.

    I’m not trying to pretend that there aren’t conceptual and practical problems which flow from the fact that the Global War on Terror (or whatever one chooses to call it) is against non-state actors and that it’s unlikely to end with anything analogous to the surrender papers being signed on the deck of the USS Missouri.

    You shouldn’t pretend that just because there’s no present end in sight to the detention, there never can be one. There indeed can be, when Congress says so.

    And I, for one, prefer that my Representative in the House and my two Senators be in no particular rush to make that judgment.

    Comment by Beldar (e91136) — 7/2/2008 @ 5:30 am

  110. Appellate courts should always be deferential to the fact-finder(s) who were there at the hearing. Appellate courts are particularly ill suited to determine such incredibly important things as, for example, who’s lying, and who’s telling the truth. That’s fundamental, and not subject to serious contrary argument.

    .
    Certainly, as a matter of general principle, I agree.

    .

    Do you think the DC Circuit got this case wrong? IOW, is the evidence produced by the CSRT, to the DC Circuit, sufficient as a matter of law? Was the DC Circuit review of the Parhat evidence “over-reaching” as a matter of appellate practice?

    .

    And, regardless of how one answers that, I was suggesting one would have the same concern with the DC Circuit’s handling of the Bismullah case, where they ALSO have demanded to see the government’s evidence.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 5:56 am

  111. As for how long the detention will last for those detainees who are determined to be enemy combatants …
    .
    I don’t foresee Congress declaring that the US is no longer going to fight terrorism. I also don’t foresee Congress crafting personal law to cause the release of certain individual or classes of “non-POW” detainees.
    .
    And so, the case of each individual detainee will play out in a dance that involves the government and military, and to some extent (variable on a detainee-by-detainee basis), the courts.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 6:06 am

  112. Without digging for a precisely applicable citation, google “sufficiency of the evidence” for a peek into that aspect of appellate procedure.

    .

    Deferential? Yes. But a party is free to argue “insufficient evidence” as a basis for appeal. In Parhat’s case, it was a winning argument.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 6:24 am

  113. In Boumediene: The Solicitor General, on behalf of respondents George W. Bush, et al., respectfully opposes petitioners’ motions to expedite briefing and oral argument of these cases.
    .
    So, this is the government talking in that motion to SCOTUS

    Petitioners have asserted various objections to the procedures used by the CSRTs and to the sufficiency of the evidence supporting the CSRT determinations, but all of those objections could be presented to the D.C. Circuit in review under the DTA. The D.C. Circuit has already begun expedited consideration of petitions properly filed under the DTA. See, e.g., Parhat v. Gates, No. 06-1397 (D.C. Cir.), and Bismullah v. Gates, No. 06-1197 (D.C. Cir.) (Set for oral argument on May 15, 2007). Thus, petitioners are wrong when they assert that they lack an opportunity for meaningful judicial review of the basis for their detention.

    The government expects the DC Circuit to entertain challenges based on “sufficiency of the evidence,” as applied to CSRT determinations that form the basis for detention.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 6:40 am

  114. cboldt: What’s your point? I don’t need to Google “sufficiency of the evidence,” I spent a year clerking for a Fifth Circuit judge in which one of my main jobs was reviewing trial court records. I know the drill; I’ve done the drill; I’ve written the opinions; and I’m telling you that the panel opinion in this case skipped the drill almost entirely.

    Yes, even if the tribunal’s factual determinations had been reviewed under something like a “clearly erroneous” standard, I agree that in this particular case, on this particular record, and on the particular elements of proof identified by the panel, there was no competent evidence — nothing other than conclusory hearsay statements that didn’t even attempt to demonstrate a basis for their conclusions. So in this particular case, it may not have mattered.

    In another case — one where there’s conflicting evidence, and the tribunal is called upon to make credibility determinations — it may matter enormously.

    Comment by Beldar (e91136) — 7/2/2008 @ 6:59 am

  115. “How do you know this?”

    He doesn’t – this guy never offers anything of substance in backing up his many rants. A useless exercise, akin to arguing with a Myna bird – it just repeats back anything you say to it.

    I asked him to actually look up something for once in his life to support his screechings, but he doesn’t seem capable of doing this simple action – which either means he’s too lazy or doesn’t have anything in the first place.

    Comment by Dmac (ea35f7) — 7/2/2008 @ 7:10 am

  116. Dmac, why would he look up something he knows – and experianced first hand?

    You are aware the man is a lawyer, right?

    Comment by Scott Jacobs (fa5e57) — 7/2/2008 @ 7:18 am

  117. cboldt: What’s your point? I don’t need to Google “sufficiency of the evidence,”

    .

    I apologize for not clearly stating that “google ‘sufficiency of the evidence’” was aimed at any general readers who might be lingering. It wasn’t meant to be a suggestion directed to you, although I certainly understand why it would be taken that way. Likewise my cite to the SG’s brief in Boumediene – not meant for you, but rather as a point of leaving tracks for general education for those lacking the experience and skills that you possess.

    .

    It’s not an uncommon misapprehension of appellate practice, that appellate judges “look at the law, and NEVER look at the facts.” I thought general education in that regard might be helpful to others.

    .

    I agree that in this particular case, on this particular record, and on the particular elements of proof identified by the panel, there was no competent evidence — nothing other than conclusory hearsay statements that didn’t even attempt to demonstrate a basis for their conclusions. So in this particular case, it may not have mattered.

    .

    My point was in response to your earlier “I’m very troubled by something that neither you nor the press accounts have mentioned: The appellate panel apparently felt itself to be free to stand in the shoes of the original tribunal, and to review the evidence and the tribunal’s conclusions de novo, without any deference whatsoever to the tribunal’s primary function as preliminary fact-finder.”

    .

    I don’t see the DC Circuit as over-reaching its appellate power in either Parhat or Bismullah, i.e., as substituting its fact finding for the fact finding of the tribunal below; and it appeared to me that you thought the DC Circuit had over-reached.

    Comment by cboldt (3d73dd) — 7/2/2008 @ 7:18 am

  118. He doesn’t – this guy never offers anything of substance in backing up his many rants. A useless exercise, akin to arguing with a Myna bird – it just repeats back anything you say to it.

    This coming from a guy that gave me a link to an article saying “there’s this horrible rumor, but it’s probably untrue” as a proof of KGB’s deeds. From a guy that says patently delusional things like “all the Putin’s critics quickly end up dead”, citing Berezovsky’s mortal enemy as an evidence. I can give a long list of very visible Putin’s critics who are, nevertheless, not dead. Which doesn’t mean, of course, that I think that political murder is beyond him.

    …Given the fact that 1) sleep deprivation seems to be a prevalent practice, 2) the whole mechanism of rounding up people is prone to mistakes, it’s quite natural to suspect that most of the people who went through this procedure were not terrorists. The numbers seem to prove it.
    Of course, you have this “how can we ever know he’s not a terrorist, besides, here’s a guy we let go who’s fighting us now” argument (BTW, are you sure “he’s fighting us now” is a perfect argument? I mean, does the fact that somebody started fighting USA after years of being mistreated and forced hanging out with the terrorists prove that he was bad guy all along?)

    There’s no thing in the world that can’t be rationalized. It’s all the question of your own conscience and of how long the democratic country will bear being ruled by the people of your convictions.

    Comment by Nikolay (efad63) — 7/2/2008 @ 7:56 am

  119. Well, the problem is, you forget to mention this nuance. And you’re right, civilians shooting at the soldiers don’t have any legal (say, GC) protection. Now, what percentage of Guantanamo etc. prisoners could be described as “taken with weapons that they used to shoot at the soldiers”? I’d guess, very low. I’d guess, close to zero.

    You’d “guess”?

    I’d love to hear your basis for this guess. As someone who was actually in Guantanamo and had a chance to interact with some of these detainees on a random basis, I never received that impression.

    Comment by Maydayog (4400c6) — 7/2/2008 @ 10:49 am

  120. Once again, nothing offered of substance, nothing offered of source material, nothing cited for anything the commenter screams about. For these lapses in intellectual dishonesty and craptacular postings, I dub the commenter’s new name thereafter as “Crazy Ivan,” in honor of the reference from the film “The Hunt for the Red October.”

    Comment by Dmac (ea35f7) — 7/2/2008 @ 10:57 am

  121. “It’s all the question of your own conscience and of how long the democratic country will bear being ruled by the people of your convictions.”

    Crazy Ivan displays the unfortunate tendencies of recent immigrants from other countries who deign to lecture us on the proper morality of our actions. If Crazy Ivan would learn to read more and speak less, he just might become a well – informed citizen. At this point, he sounds a lot like Yakov Smirnov.

    Comment by Dmac (ea35f7) — 7/2/2008 @ 11:00 am

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