Patterico's Pontifications


GTMO Tribunals: Kafkaesque

Filed under: General — Patterico @ 11:52 pm

The following is my most decidedly non-legal, gut reaction to the proceedings happening at GTMO. There may be legal justifications for them; I can’t authoritatively speak to that.

But I do know that, based on what I’ve read, they just don’t seem fair.

Some of the main problems: Detainees lack access to the prosecution’s evidence. They lack the right to present their own evidence. There is a rebuttable presumption in favor of the Government’s evidence. Detainees lack the right to counsel, and what access they do have to counsel is severely restricted.

Understand where I’m coming from. I’m a professional in the criminal justice system. If we ever held proceedings that denied the procedural protections that are lacking in the CSRT hearings, everyone would agree that those proceedings would be deemed completely unfair.

Now, look. I understand that the folks at GTMO are not in the same posture as an American citizen charged with a crime. And granted full habeas rights to prisoners of war would present huge potential difficulties, as Justice Scalia repeatedly pointed out during the argument.

But the people at Gitmo are not all people who were picked up on the battlefield, fighting against the U.S.

For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States. According to their brief, they were arrested in Bosnia under pressure from the U.S. Government, which contended that they had conspired to attack the U.S. Embassy in Sarajevo. After an international investigation (conducted with the aid of the U.S. Embassy) failed to substantiate the charges, a tribunal established under the Dayton Peace Agreement ordered them released. They were on the verge of being released when they were snatched by Bosnian police (again acting under pressure from the U.S.) and transferred to U.S. military personnel, who took them to Guantanamo in January 2002.

They’ve been held there ever since — for almost six years.

I don’t know what evidence the U.S. has against them. But neither do they:

Most of the evidence the government presented to the CSRT panel was classified and, therefore, concealed from Petitioners under CSRT regulations. Pet. App. 39a, 82a. The following colloquy from the CSRT hearing of Petitioner Ait Idir (charged with “associat[ing] with” an unnamed but “known al Qaeda operative” (CAJA 493)) is illustrative (Pet. App. 83a-84a):

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I’m sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

Detainee: Why? Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I’ll just tell you that I did not. I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

Is it any wonder that Seth Waxman described these tribunals yesterday as “Kafkaesque”? It puts one in mind of Josef K’s statement in “The Trial”:

This question of yours, Sir, about my being a house painter — or rather, not a question, you simply made a statement — is typical of the whole character of this trial that is being foisted on me. . . . I do not say that your procedure is contemptible, but I should like to present that epithet to you for your private consumption.

This parallel occurred to me on my own — which is not saying much; it’s pretty obvious — but after writing it I did a quick Google search, and was not surprised to learn that I was not the first person to make the connection between the above CSRT passage and “The Trial.”

What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

114 Responses to “GTMO Tribunals: Kafkaesque”

  1. You are right, Patterico, this procedure is not fair. But then, it is not intended to be fair; it is intended to keep terrorist from killing people.

    What is fair about war? What is fair about people being bombed in their houses or shot by bullets passing through walls? What is fair about them being robbed and raped in the lawless environment? What is fair about them having to abandon everything they have built over their lives in order to escape these things? What is fair about the young man going to do his duty and coming home without his legs or in a box?

    War isn’t supposed to be fair. It’s supposed to be brutal and effective. It would be great if we could kill and capture only the bad guys, but we just can’t. If these guys at gitmo are actually innocent, then they are just unfortunate casualties of war. I would sympathize with them if I believed that. But the odds are that they are murderous thugs who conspired to kill innocents. And in a war situation, you don’t take the chances on likely murderous thugs just because they might not be.

    Doc Rampage (ebfd7a)

  2. Its sort of like being a prisoner of war isn’t it?

    As professionals in the criminal justice system, we must resist the temptation to view everything through the prism of our experience. I work with current and former JAG Officers, and they certainly have a different view of the necessities with respect to military detainees.

    wls (6c5569)

  3. I didn’t read Doc’s comment before making my own, but he has it exactly correct.

    There are a lot of dead innocent people that are the product of war.

    The fact that there might be a few innocent people being detained at GITMO is another cost of war. But it has to be a cost we are willing to pay if we intend to win the war.

    wls (6c5569)

  4. As professionals in the criminal justice system, we must resist the temptation to view everything through the prism of our experience.

    I try to be forthright in the post about the fact that I am biased in that regard — even as I recognize that the criminal justice model is not fully translatable.

    But the basics? Like letting the guy put on his own evidence? Come on.

    Anyone who questions my position should read the brief linked in the post.

    Patterico (faeccf)

  5. There are a lot of dead innocent people that are the product of war.

    There are a lot of dead innocent people that are the product of crime.

    There are a lot of dead innocent people that are the product of crime by gangs.

    So why not use that logic to snatch up any suspected gang members and hold them for 6 years — not telling them why you think they’re gang members, or letting them present evidence that they’re not? Because, you know, gangs are dangerous.

    Patterico (faeccf)

  6. Again, I’m not equating this to the criminal law context in every respect. But I’m asking people not to be glib — and to explain why their principles wouldn’t equally justify the same treatment for, say, suspected gang members.

    (I’m cringing, seeing that inevitably someone will jump in and say it does.)

    Patterico (faeccf)

  7. “War isn’t supposed to be fair.”

    Ah, “Doc Rampage,” it might help if you read Patterco’s post where he notes: “For example the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States.”

    When a conservative lawyer like Patterico calls the procedures used by the Government “Kafquesque,” it’s a pretty good bet it’s blatently illegal.

    Redhand (c56853)

  8. There are probably many practical reasons why we can’t run a war according to criminal law rules but here are two I can think of: First, the military can’t operate effectively if we put lawyers in charge of how things work. Second, the rules would always be stacked against us if our enemies didn’t follow our rules. (We may not always be the strongest nation in every conflict. As they say in the Constitutional arena, the rules shouldn’t be a suicide pact.)

    Philosophically, however, I think there is only one reason that we can’t turn war into a criminal law matter. If we did, war would be clean and neat and fair, and it would be a legitimate and palatable answer to every problem. I don’t want that. Do you?

    DRJ (a6fcd2)

  9. Even if it’s not turned into a purely criminal law matter — which, please note, I do not advocate in this post — shouldn’t the basic deficiencies in the fairness of this procedure be corrected?

    Patterico (faeccf)

  10. Also, I hope nobody here gets the impression that I am insensitive to the dangers posed by the detainees at Guantanamo. I spent a long time working on the interview with Stashiu — and I haven’t forgotten any of it.

    Patterico (faeccf)

  11. I need to be convinced there are deficiencies because I’m not sure there are. First, the hearings you describe sound unfair but they are far more fair than typical wartime procedures that give detainees no opportunity to plead their cases. All of a sudden, we’re on a slippery slope because we granted any hearings.

    Second, I agree it would be hard to rebut testimony from an unnamed witness. So how did any detainees get released? My guess is they offered a convincing story of what their lives were like before their detention, and those stories generally rebutted an affiliation with al Qaeda.

    According to a statement at one of the links (I forget which one), the US has released 30 detainees who apparently returned to fight against the US or its allies after their release. The standards for review must be somewhat fair if that has happened.

    DRJ (a6fcd2)

  12. Well, I’m not very happy about that either.

    Maybe with a better procedure we could prevent more mistakes on both ends.

    Patterico (faeccf)

  13. I agree, and court cases like this are how our society develops better procedures. It’s a public and time-consuming way to do things but, overall, it works.

    DRJ (a6fcd2)

  14. I need to add that it’s not just court cases that bring about change. It’s also the public debate and the legislative and executive response.

    DRJ (a6fcd2)

  15. But it’s taken way too long (6 years) and we haven’t even corrected deficiencies so grave they literally sound like satire.

    Patterico (6ad546)

  16. But I’m asking people not to be glib — and to explain why their principles wouldn’t equally justify the same treatment for, say, suspected gang members.

    Well, maybe only a partial cringe.

    The key question here, IMHO, is this:Are the gang members citizens of the U.S?

    If the answer to that question is no, then we are under no realistic obligation to respect their persons. Don’t like that? don’t come here.

    U.S. citizenship is a special status. I realize that tranzi heads are exploding worldwide after reading that statement. Ask me if I care.

    SDN (95b3ba)

  17. SDN, do you think our rights are given to us by the government or that they are inherent to our being human?

    joe (c0e4f8)

  18. Hit post too soon.

    If our rights are natural, (endowed by our creator?) than citizenship doesn’t matter. A canadian is no less entitled to free speech or freedom to practice their religion than an American.

    The US government, obviously, isn’t obligated to protect the rights of a Canadian the same way that they are obligated to protect mine. But these people are in our custody, and under our control. There’s no extra cost to granting them basic procedural rights.

    We have the legal, and moral, ability build different systems for different situations. I agree with patterico that we can’t use the Criminal Justice Systems for battlefield captures. For instance. But there is a huge difference between that, and what we have at Gitmo. Somewhere in that huge difference is a better system that could work. (imho)

    joe (c0e4f8)

  19. According to a statement at one of the links (I forget which one), the US has released 30 detainees who apparently returned to fight against the US or its allies after their release. The standards for review must be somewhat fair if that has happened.

    This is a risk we take. One could compare this to our judicial system. There are plenty of criminals who return to a life of crime. Yet we don’t lock them up for life to prevent what they might do. If they return to fight against us it is much more likely they will be killed doing so. People coming back from Iraq refer to it as the flypaper theory. The terrorists have been losing roughly 1000 a month since we went to Iraq. That is almost one US casualty for every 12 terrorists.

    The key question here, IMHO, is this:Are the gang members citizens of the U.S?

    This didn’t prevent the internment of over one hundred thousand American citizens of Japanese descent in WW2. An action that the people in power who created the policy later denounced as having gone way too far. There are already some pundits who imply strongly we need to be prepared to do this again with American Muslims.

    We stop being a country with the very principles we boast of when we don’t address these types of issues head on and make the attempt to correct deficiencies. Gitmo and its processes were the best effort we came up with at the time, not the perfect solution and not an “evil” one either. To admit there are flaws is not unpatriotic or bad.

    The word terrorist is fast becoming the catch all label to suspend common sense and sometimes due process.

    voiceofreason (2fba49)

  20. According to a statement at one of the links (I forget which one), the US has released 30 detainees who apparently returned to fight against the US or its allies after their release. The standards for review must be somewhat fair if that has happened.

    All that shows is that they’re flawed — the release of detainees who have subsequently fought the US is consistent with the theory that being incarcerated by the US at Gitmo with a bunch of jihadis can turn somebody who wasn’t a danger into a jihadi.

    I’m not suggesting that I have an answer, or what the answer is, or even that there’s a solution less bad than what sure appears to be (to not coin phrase) a Kafkaesque situation at Gitmo; I am arguing that there’s no easy way to dismiss that what’s going on there in terms of fairness is pretty awful.

    Joel Rosenberg (677e59)

  21. they are just unfortunate casualties of war

    I could understand this argument as applied to people who were actually on or near a battlefield (though I wouldn’t necessarily agree with it); but the Boumediene case has nothing to do with war* — we simply accused these people of plotting a crime, had them arrested, and held them for six years without giving them a legitimate chance to defend themselves.

    *Note that the “War on Terror” is a metaphor, like the “War on Drugs” — you can’t legitimately use that term to justify treating the whole world as one big battlefield.

    kenB (1ad56f)

  22. We have not declared war on a country. We have declared war on a verb.

    David Ehrenstein (5f9866)

  23. There has to be a better way.


    Tongue in cheek here. But maybe the detention and proceedings should be held as state secret. “Do it in the dark,” as it were. No visible errors.

    cboldt (3d73dd)

  24. We have not declared war on a country. We have declared war on a verb.

    We have declared war on (now) stateless actors. Perhaps you’ve heard of them.

    Pablo (99243e)

  25. Boumediene does seem well beyond the pale. I’m having a bit of trouble understanding why the Bosnians didn’t just keep them if they thought them to be terrorists.

    Pablo (99243e)

  26. Based on the information here, Boumediene doesn’t seem to be a case for military detention. Hence your qualms are appropriate.

    The reason we don’t treat gang members like we do legal or illegal combatants is simple. They are not at war with us. They are criminals, and we treat them as such.

    LarryD (feb78b)

  27. I think our biggest difficulty is that we have yet to decide as a society how to treat terrorism. In war the lines are fairly clear, in criminal offenses likewise. POW’s are not tried, they are held, but without a clear aim to the conflict or any goal line to reach, the detainees fall into a gray zone. I think that we must find

    A) a solution to how to sift the rightfully detained from innocents and

    B) a policy of what to do with the terrorists.

    What is the US going to do with people we know are terrorists? Do we jail, execute expel, what? I think this suit is part of the process of deciding how to confront terrorism as a whole.

    Dr T (340565)

  28. To preface this, I haven’t read the Boumediene briefs, and the excerpts you’ve posted do seem beyond the pale a bit. However, in the criminal justice system today we have similar, though much less blatant, acts.

    In the Libby prosecution, how many times were things filed under seal by the prosecution? Probably dozens of times at least. How is that any different, except in degree? But yet, that’s deemed “fair” because the Judge reviews it, and is supposed to be impartial. Why don’t these officers presiding over these tribunals get the same benefit of the doubt?

    Skip (c69414)

  29. We have not declared war on a country. We have declared war on a verb.

    Being this deliberately obtuse is almost as bad as the way this conflict has been presented.


    Are we at risk of a slippery escalator? In other words, if we begin to treat the detainees in a manner consistent with the legal protections afforded defendants in the US system…where do those protections stop?

    We provide them the right to face their accusers. Well, why shouldn’t they have a right to view all evidence against them, classified or not?

    We provide them access to all evidence against them, classified or not. Well, why shouldn’t they have the right to challenge the legality of this evidence based upon chain of custody, etc.?

    The worst thing possible is to begin to treat their detainment as a condition equivalent to the legal status of an accused criminal in the United States. It opens up too many doors, and in the end it may be that each “right” will be fought for in the Supreme Court…piece by piece by piece…

    Of course the fault for this can be traced directly to the Administration. Not enough forethought went into the detainment of these individuals. I do not believe that the lack of forethought was devious in nature– it was just a result of the frenzied pace of the war.

    Maydayog (f81ab3)

  30. Dr T says it right,
    “Stateless actors” are more like an international crime cartel or a mafia. When La M murders a person in the US to try and scare a local community into shutting up about La M’s local drug operation isn’t that “terrorism” by definition?
    If we grabbed one of those guys he would get a trial (another post here) and would get to see the evidence against him. We need to allow the persons held in Guantanamo to question the evidence against them. Especially in light of the fact that we are fighting and indefinite “war on…” instead of a defined war.
    To the people who say “the innocent detainees are are casualties of war” I can see your perspective, you can’t save everyone, no system is perfect, ok… but if you were picked up and accused of being in the mexican mafia and sent to a federal pen for 35 years on the strength of the word of a CIA agent that had “strong evidence” against you that no-one was allowed to see coz it was classified. Would you be able to console yourself that at least you were helping win the “war on crime/drugs/the mafia”????

    EdWood (c2268a)

  31. I read this with a rising sense of disbelief, and then nausea.

    It is a perfect example of why so many in the public despise lawyers. This is insane. For a bunch of sheltered and insular lawyers to shoot off their mouth about war in a foreign country is breathtakingly arrogant. Who the hell do you think you are?

    They could have simply shot on sight in the war zone, all perfectly legal. And considering this kind of pure unadulterated crap, it seems like that’s what the military should have done.

    Without a$$hole JAG lawyers and people such as are posting on this thread, Bin Laden would be long dead, Afghanistan would be completely pacified, and the world would be a much safer place. And a lot more terrorists would be dead.

    Don’t worry, you won’t hear from me again. I have a low thereshold for bullsh*t.


    GaryS (299621)

  32. According to the Geneva Convention, unlawful combatants may be subjected to summary trials and executions. On the spot. Trial being an Officer thinks so.

    The fact that we instead try to milk them for info, and have ANY hearing to set them free shows that we exceed the requirements of the convention. And as the enemy makes no pretense of honoring the convention, then they have no right to anything. The GC is a carrot and stick. The stick is, abide by it, or things come down to the laws of nature. They don’t abide by it, then screw them.

    Mr.Obvious (d3fe32)

  33. I have read all the comments, which raise very real concerns and good arguments. Yet, when I come right down to it, I don’t like the following scenario:

    Q: Why are you holding this person?

    A: He’s a terrorist.

    Q: How do you know he’s a terrorist?

    A: We know. Trust us, we’re the government.

    This seems such a violation of the whole basis of English and American law since Magna Carta. I’m with Patterico, there must be a better way where there is some check and balance to some government bureaucrat labeling an individual a terrorist.

    JayHub (0a6237)

  34. I still think the difficulty people have with these procedings is reconciling the differences between our criminal justice system and a detentions during military conflicts. People are used to seeing grand jury indictments, trials and verdict, all conducted nicely under prescribed rules of evidence and procedure. Under internatiomal conventions and the laws of war people forget that there is no requirement for us to charge these individuals with any crime and that we are ftrr to hold them unril the cessation of hostilities or such other time as we determine. They see those rules as an injustice, but those are the internationally accepted standards of behavior. Our obligation is to correctly categorize the detainees, which we have been doing. Hence the reduction in the overall prisoner population at Guantanamo as we release detainees we deem to be innocent or not a danger to the U.S. The CSRT’s were formal procedures to establish the initial status of detainees approved by Congress and the Executive and do not preclude a later change in view.

    Lynne Stewart provided a good example of why information sharing and contact with the detainees needs to be limited. I see the primary quibble of those against the current system merely as speed. Many of those have proved themselves to be useful idiots in the past, willing to believe any tall tales about U.S. torture or innocence told by the prisoners.

    daleyrocks (906622)

  35. i do not say that your procedure is contemptible, but i should like to present that epithet to you for your private consumption.

    great line, could have used it a couple times when i was practicing 1980-1995, wonder what would have happened, well, actually have pretty good idea what would have happened, but it would have been worth it.

    i agree with patterico, who (at least this time) is articulating authentic conservative values, which are not the same thing as fascist values. it’s easy to rationalize “war isn’t supposed to be fair” but this doesn’t absolve you from the consequences of your actions if you claim to be a moral being. if this were not so, you could bring bootstrap justification to anything: hey, the terrorists we’re fighting are muslims. there’s a mosque down the street where muslims gather every friday, let’s go there on friday and kill every single one of them because, y’know, war isn’t supposed to be fair!

    wls’s comment in #3 that the possibility of imprisoning innocent people at gitmo is a cost that “we” will have to bear is either the product of a confused, feeble mind, or else outright evil. “we” aren’t bearing this cost, you stupid git, the cost is external to us, being borne by innocent prisoners.

    where do we go from here? i would like to see patterico apply his authentic conservative values to other aspects of bush administration policy: how do you feel about warrantless wiretapping when there’s no tangible ground for certainty that you and your family weren’t the ones being wiretapped?

    assistant devil's advocate (c18246)

  36. They could have simply shot on sight in the war zone, all perfectly legal. And considering this kind of pure unadulterated crap, it seems like that’s what the military should have done.

    Bosnia is a war zone? Do you have the slightest acquaintance with the facts behind these detentions?

    Another sick puke dreaming he’s 007 with Licence to Kill and not the panicked fool he truly is.

    Andrew J. Lazarus (7d46f9)

  37. Do we have armed troops walking the streets of Bosnia with the authority to defend themselves, or take part in raids on people’s property? If so, it is enough of a war zone to count.

    Regardless, I am fully comfortable, and the constitution doesn’t disallow:

    Taking non citizens in foreign countries where we have troops in war or “peacekeeping” roles and subjecting them to military justice.

    That is war. We saw with Stewart, and with the university that hired her to teach ETHICS, that any other approach is foolish. Largely because we have legions of treasonous sleazebag lawyers in this country, and many of them have been appointed judge. Until we clean up our legal system, we have no hope of surviving as a nation if we let these self-serving 5th columnists have their say in any case that they chose to interfere with.

    Mr.Obvious (d3fe32)

  38. The prisoners need to win their AUMF argument — that they are not the “enemy” Congress authorized to President to wage war against. If they do not, there is no justiciable question. The Court should not interfere any more than it should interfere in the Air Force’s designation of a bombing target. That the prisoners are prisoners at Guantanamo and not at wrong end of a Hellfire missile is irrelevant. If they are the enemy, the CSRTs are none of their or the courts’ business. It is an internal procedure, for the benefit of the military to allocate its resources, again, similar to assigning priority to what targets to bomb.

    If the prisoners win their AUMF argument, then they are entitled to Fifth Amendment Due Process. America is where her power is. The splitting of hairs about citizenship, subjectship, sovereignity, territoriality, authority, ad nauseam, is beneath our great country’s dignity. I am not all that familiar with federal remedies but I believe that even if Congress is found to have lawfully limited habeas corpus in this case, the courts can still grant injunctive relief to vindicate Fifth Amendment rights.

    nk (19e0fd)

  39. The rules for war are different than the rules for criminal procedure. They may be better or worse, but it’s a different game. The rules for Risk are different than the rules for Monopoly.

    The War on Terror is going to evolve its own set of rules, informed by both the Law of War and Criminal Procedure, but expecting or demanding that either of those are the correct rules is a certain way to lose.

    Googling “lawfare” will lead to a discussion about the use of the courts as a means of waging war. Whether or not you think this is a good idea or not, it’s being done, and both war and law are going to change as a consequence.

    “War is hell”, and this is just more of that. Doc Rampage is right, and that’s horrible — and he’s still right.

    htom (412a17)

  40. The procedures at Guantanamo are not fair but they are saving the lives of the detainees. If the terrorists are granted US civil rights or anything approaching them, the military will no longer have any incentive to capture them, They will be killed instead. It is a cleaner solution to the problem of illegal combatants, but is it one we wish to explore?

    If the government looses this case, there will be many more dead terrorists and probably many more dead Americans because of lost intelligence. Of course, lefties never worry about the consequences of their actions. So long as they can remain ideologically pure, what’s a few more 9-11’s? The prisoners at Gitmo have no rights, should have no rights and should give thanks every day that they are alive.

    Ken Hahn (7742d5)

  41. The difference between a citizen and non citizen is not a hair. If you think so, then you value soveriegnty too little.

    I think the citizen nabbed in the US (even though he was naturalized) should have been in the US system, because not doing so opens us up to being abused by a tyrant. But a non-citizen operating in a foreign country? There is no comparison between him and a homegrown citizen busted in Dearborn.

    Anyone who can take such issues out to their logical conclusion can see that it is IMPOSSIBLE to have a policy of giving suspected enemy combatants caught in foreign countries trials in US federal courts. If we had to do that, we would be better off just killing them in the field. Lawyers and liberals like you nk, want to weaken us to the point that we can no longer defend ourselves. It is treasonous, even if just treasonous stupidity.

    Although I wonder how much of this crap is just “legal ethics” namely lawyers all making sure that as many lawyers will get paid as possible.

    Mr.Obvious (d3fe32)

  42. Gee no right to a lawyer, no right to see evidence against them, being detained indefinitely, not being picked up on a battlefield, sort of like millions of other POWs in the wars of mankind.

    I wondering what nation does allow such individuals access to their criminal justice systems.

    As far as there being a better way there is. Try adhering to the Geneva Convention’s protocol’s regarding illegal combatants, based on centuries of experience and examination of the matter.

    I wonder what case can be made for the unprecedented expansion of the judiciary’s power. This was settled in 1950 case law by the Supreme Court when such claims were flatly rejected. Perhaps you ought to read today’s edition of the WSJ and rebute the points made there.

    I’m sure this would clarify matters.

    Thomas Jackson (bf83e0)

  43. Patterico, the difference between war and criminal law is that criminal law, unlike war, _is_ supposed to be fair. And part of the reason for that is that we don’t want our actions against criminals to escalate into a civil war. I would only support war-like solutions to criminal problems if the criminal problem became so severe as to constitute an uprising. That is, if it threatened the ability of the duly-constituted government to govern.

    I liked nk’s analogy, comparing it to what targets to bomb. Should terrorists be able to occupy an apartment building in Iraq and then bring suit in American courts to prevent the military from attacking the building on the grounds that there are civilians in it who may be harmed by the attack?

    The situation with detentions in similar. We detain people as an act of war, not to punish or prevent a crime. An act of war is uncivilized and we wouldn’t do it without severe provocation. But once we make the decision, we should go all out to win the war and put it behind us.

    Keep in mind that if the military has to tell the prisoner the evidence against him, that gives an advantage to the enemy. Knowing about the enemy is important in war, but knowing what the enemy knows is even more important.

    Doc Rampage (ebfd7a)

  44. Practical example:

    Ali Jihad Ali is caught in a bomb making factory in Bosnia or Kosovo by infantrymen who were “staking out” a known hideout.

    Ali winds up in District court in DC. His jury consists of people that both sides think they can best manipulate, result, a jury of morons.

    An ACLU lawyer, paid for by the Saudis or working pro-bono (the one time muslims like Jews is when it is a lawyer working for them) then gets the judge to exclude confessions, because the 18 year old infantryman didn’t read the men their miranda rights before tossing the flash-bang thru the door.

    He will get the bombs, manuals, electronics and maps excluded because there was no search warrant.
    Any evidence not disallowed for that reason will be excluded for “chain of evidence” reasons.

    While it may have taken a squad to make the bust, it would take an equal amount of investigators and lawyers to to get a 50% chance of conviction. This doubles the manpower cost on an already expensive war.

    Whether convicted or not, the defense lawyer, who also happens to double as an extortionist, err, trial lawyer, will sue, because poor Ali was racially profiled. The Army will have to pay for damages to the house, and lost wages.

    Lawyers will have guaranteed employment for life, while the non-lawyer taxpayer will be overtaxed, broke and completely demoralized.

    Mr.Obvious (d3fe32)

  45. Lawyers will have guaranteed employment for life, while the non-lawyer taxpayer will be overtaxed, broke and completely demoralized.

    Comment by Mr.Obvious — 12/7/2007 @ 10:54 am

    Want a little cheese with that whine?

    Voice of Reason (10af7e)

  46. I will follow my goatherder’s instinct and predict that there will be a 9-0 opinion either way. The Court will either find that these prisoners come under AUMF in which case they are only entitled to whatever remedy Congress has chosen to grant them, or that they do not in which case the Court will fashion a remedy for them. (Weaseling: The remedy may not be 9-0).

    nk (19e0fd)

  47. Concidering what I wrote in #44, your only comment is what you put in #45?

    That is what is called a “bitchy comment”. It serves no purpose except to tell us that you have no intelligent response.

    Or are you saying “tough shit America, us lawyers are going to continue screwing you like you are rental goats in Mecca”?

    Just save your answer for the meat of #44.

    Mr.Obvious (d3fe32)

  48. I agree with NK’s #38.

    DRJ (a6fcd2)

  49. Playing catch-up:

    Patterico No. 5: Crimes and gangs are not thought to be a threat to the security of the country, only an internal menace to the population. Its easy to say 9/11 is analogous to a criminal act — after all it involved murder and property destruction — but the motives of the perpetrators are aimed at the longevity of the state. They may not have the capacity to achieve their goals, but we would be foolish to simply suffer their efforts because we can. That was the approach of the Clinton Admin. Suffer the acts, pursue them as criminals, bring them to trial where possible. The result was that each action was emboldened by a previous action, and each became more audacious than the one before.

    In the criminal justice system, we will allow criminal conduct to continue when there is a substantial likelihood that ongoing law enforcement efforts focusing on surveilling that activity will, in the end, produce a more effective law enforcement response. Example — wiretaps where the agents are aware real time of continuing criminal activity but do not intervene where it would compromise the security of the wiretap operation because, on balance, continuing the wiretap will ultimately produce much greater benefits in terms of arrests and prosecutions of a broader criminal enterprise.

    But we shouldn’t be willing to do that on issues of national security — like allowing terrorists to go free to rejoin the jihad because allowing them access to classified evidence implicating them would be a net negative. Why should WE have to choose?

    They declared the war. They joined the war.

    Someone has to make that judgment. Why would a civilian judge — sworn to protect and defend the Constitution — be a more suitable decision-maker than a panel of military officers — also sworn to protect and defend the Constitution.

    That’s my biggest objection to the point of view your express — the working assumption that military officers’ judgments on these issues are immediately suspect because they wear a uniform.

    WLS (dfa1f1)

  50. Patterico…thanks for the great discussion…I do have a question…if we grant certain rights, such as the one you mention, seeing evidence against them, would this then open up the possibility that they should have all rights?

    I’m not opposed to reasonable fairness for them…I am opposed to granting them criminal trial under U.S. Laws…which would all but guarantee that some jury somewhere would find one not guilty just on nullification….

    reff (bff229)

  51. Patterico No. 15 — you’re factually incorrect.

    The administration created military commission tribunals with various procedures long before Congress passed and express authorization in response to Hamdan.

    I can’t speak specifically to what procedures were part of the Administration created tribunals — which they created pursuant to their assertion of Executive Authority under Art. II and the Authorization to Use Military Force.

    So, we’ve had tribunals for more than the 15 months since the MCA of 2006.

    Now, you may object to the procedures employed by the Administration, and you may object to the procedures produced by Congress in 2006, but I would have the same comment for you that I had for Kennedy — your objection should be directed to the elected branches that created them.

    The Bill of Rights do not apply — they are not universal. The commission proceedings should not be judged against notions of “due process” that you and I are accustomed to by virtue of our work.

    Even to the extent that they MIGHT, it returns to the age-old law school question — under the circumstances, “what process is due?”

    WLS (dfa1f1)

  52. assistant devils advocate No. 35.

    As for “we” — you’re a member of the United States citizenry (assuming you live in the US).

    To opt out of “we” — you need to move, or win an election to put officials in place that will reverse the current policy course.

    If President Hillary Clinton closes GITMO, dismantles the commission process, and repatriates all the detainees back to their home countries, she will be doing it as much on my behalf as yours, even though I’ll never vote for her.

    So, what the Bush Administration is doing at GITMO is on behalf of all citizens of this country. That’s the way a representative democracy functions. If the citizens of this country object in sufficient number, the policy would be changed.

    Until then, “we” includes “you” — whether you like it or not.

    Unless you move to Canada.

    Don’t forget to write.

    WLS (dfa1f1)

  53. “But the people at Gitmo are not all people who were picked up on the battlefield, fighting against the U.S.

    For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States. According to their brief, they were arrested in Bosnia under pressure from the U.S. Government, which contended that they had conspired to attack the U.S. Embassy in Sarajevo. After an international investigation (conducted with the aid of the U.S. Embassy) failed to substantiate the charges, a tribunal established under the Dayton Peace Agreement ordered them released. They were on the verge of being released when they were snatched by Bosnian police (again acting under pressure from the U.S.) and transferred to U.S. military personnel, who took them to Guantanamo in January 2002.

    They’ve been held there ever since — for almost six years.”

    Realize that some of these same people are not merely being held, but being tortured as well.

    Sebastian Holsclaw (f01cac)

  54. htom No 39 — if you’re interested in an interesting exposition on the consequences for the country of “lawfare” and the “judicialization of warfare”, read Jack Goldsmith’s book “The Terror Presidency.”

    WLS (dfa1f1)

  55. CSRT hearings or “Combatant Status Review Tribunals” are not criminal trials. They seem to be more like facing a parole board.

    “Under the Geneva Conventions, enemy combatants who have committed a belligerent act but whose detainee status is in question are entitled to have their status determined by a “competent tribunal.”[12] In accordance with that provision of the Geneva Conventions, prior to the September 11 attacks the U.S. military established Army Regulation 190-8, Section 1-6, setting forth procedures for the operation of tribunals to make such determinations—that is, whether a combatant may be held as a prisoner of war.[13] The U.S. Supreme Court recently cited Army Regulation 190-8 as an example of a procedure which would satisfy the due process requirements for determining the status of the Guantanamo Bay detainees.[14] In response, the Department of Defense established special tribunals modeled on Army Regulation 190-8—Combatant Status Review Tribunals (CSRTs)—to determine the status of detainees at Guantanamo Bay.”

    Mike (bf0f29)

  56. wls (#52) good job evading my point! i acknowledge that i am as much a part of “we” as you are, except for the one critical distinction that i didn’t vote for bush. i was commenting on your incredibly fatuous lie that “we” are bearing the costs of the gitmo prisoners. in actual fact, “we” are exacting these costs on the gitmo prisoners.

    i wasn’t there, but i’m sure someone tried this at nuremberg. i can imagine one of the defendants getting up and telling the court that “we” bore the cost of interning all the jews, “we” fed them, housed them and took care of them for the rest of their lives, so why are “we” being prosecuted for this?

    assistant devil's advocate (c18246)

  57. “we” are bearing the cost in terms of our international standing, and the physic cost of being revealed to have done something wrong in the aftermath. The “cost” is collective guilt that we feel over the idea of wrongfully detaining someone over an extended period of time.

    Its the its similar to the cost to the collective conscience of the country from the death of innocent non-combatants in a war zone.

    That is a “cost” we must be willing to bear. To make, and stand by, a hard decision even if there is a significant likelihood that our decision will have an unintended consequence for someone.

    Its the mirror image of the view in the criminal justice system that its better that 100 guilty men go free than 1 innocent man be imprisoned.

    When you’re talking about war and national security, its better that one innocent man be wrongfully detained, that the next KSM be unwittingly released because we’re not willing to reveal to him the nature of the evidence we have against him due to its sensitivity.

    WLS (dfa1f1)

  58. Its the its similar to the cost to the collective conscience of the country from the death of innocent non-combatants in a war zone.

    Except that it isn’t. The international community does not accept (in fact, rejects) non-battlefield detention of apparent civilians without recourse. There is an additional cost to us the the repudiation and degradation of international norms of conduct. We may come to understand this reckoning better when (not if) it is applied to us.

    Andrew J. Lazarus (7d46f9)

  59. #35 advocate – You’ve hit upon the crucial point. The morality of war.

    See, this is the entire point – the morality of war is to survive. That’s it. There is no other.

    Once I have been made to defend my very existence, there can be no intervening considerations. My job is to live. Now, if I am able to accomplish this goal AND limit the carnage on the other side, that would be a a nice thing. But being human, my friend, means that I am reduced to survival. If God intended otherwise, he would have hardwired us with information to the contrary. Instead, he chose to leave it to us to aspire to greater goods.

    We have all been reduced by the “stateless actors.” We didn’t ask for this. Our job is to eliminate them as quickly as possible. If we are to give them rights, we delay the end of the killing. For each day the war continues, more innocents pay a horrible price.

    Ed (ed25ca)

  60. Wow, comment 35 says it all.

    First, the existential threat.
    Then, using survival as justification for any behavior. (Does the other team get to play by these rules?)
    Then, the non sequitur we can’t give our enemies rights; it will make the war longer (how about our German WWII POWs? Did their rights extend the WWII?).

    And finally some crocodile tears for the innocents.

    No one can really explain why holding a bunch of semiliterate goatherds actually shortens the war (indeed, the war is intended to be perpetual), except to those who feel we must be led in war by the Omniscient, Omnipotent Presidentisíssimo.

    This isn’t logic. This is panic.

    Andrew J. Lazarus (7d46f9)

  61. Ach, for 35 above, read 59.

    Andrew J. Lazarus (7d46f9)

  62. Crazy Andy demonstrates what goes best with cheese and long winded leftwing whines.

    When treating a war as a criminal matter is your concept of war you have no idea of what is going on. If you believe war is regulated by eith morality or humanity you again demonstrate the mindset of the noncombatant who has never served and never does intend to serve.

    Kindly tell us what is the relevance of citing the opinion’s of foreign nations on our national security? Crazy Andy’s faith in the inerrancy of the sacred scriptures of world opinion will no doubt comfort the thouands of Americans who were the victims of these terrorists. And my heart does bleed that they do not have the same priviledges other Pows never enjoyed. One wonders how much whinning we’d hear if they were treated according to the rules of war?

    But then some people really are rooting for the wrong side and describing it as humanity. Such screeds are just another example of the ad hominem fallacy of trying to define something by a meaningless measure. Demonstrating the intellectual and moral bankruptcy of the cretin who brays “survival as justification” only serves to demonstrate that his IQ does not surpass a stalk of celery. In fact people who write such screed would have been the first to throw women and children out of a lifeboat onboard the Titantic.

    Really Crazy Andy, you don’t have to proof to us you have no testicles, rather take pride in the fact that Al Queda second in command Al Zawahiri states in your honor they will name all their favorite sheep after you.

    Thomas Jackson (bf83e0)

  63. Your heart bleeds for “goatherders” — though their status as such is hotly contested.

    Mine bleeds for the occupants of the US Embassies, the USS Cole, and the WTC.

    The goatherders may be separated from their worlds for a period of time, but they weren’t separated from their lives.

    WLS (dfa1f1)

  64. AJL – “The international community does not accept (in fact, rejects) non-battlefield detention of apparent civilians without recourse.”

    Can you point to detainees we have classified as innocent apparent civilians whom we are still holding, apart from those we cannot find another country to accept, or is this a figment of your imagination.

    daleyrocks (906622)

  65. Sebastian @ 53 – Katherine from OW when she was engaging in a dialogue about torture over here last month admitted she had no evidence to support allegations of torture at Guantanamo. Do you have different information?

    daleyrocks (906622)

  66. Unless we seize the goatherds, Al Qaeda wins.

    It’s almost funny that this panic-stricken, bring-on-the-torture, pissed-in-my-pants attitude is “patriotic” and seen by its believers as courageous.

    Statements like 63 are almost comical in their false dichotomy. Statement 64 is almost comical as an inversion of the burden of proof.

    Incidentally, Thomas, the military may not be big on humanity per se, but they are generally down with morality and the laws of war. Would you mind sending, say, Patterico evidence of your claim to be a veteran because, frankly, I’m somewhat skeptical.

    Andrew J. Lazarus (7d46f9)

  67. If you think ppl in the military are with you on battlefield morality, and if you think your first paragraph is a fair statement, then it is clear that you don’t have the slightest bit of comprehension of the mind of the GI. I would also suspect that “don’t ask don’t tell” may have something to do with it, if not just the normal liberal elitism.

    Mr Obvious (7a2278)

  68. AJL – You’re funny.

    “Statement 64 is almost comical as an inversion of the burden of proof.”

    You are the one making the allegation we are detaining “apparent” civilians, not the government. If the government felt it met it burden of proof at the CSRT, isn’t it up to you ro prove otherwise?

    What does the term “apparent” civilian mean anyhow?

    Was Zacharias Moussaoui an apparent civilian who had NOT WAGED WAR on the U.S. before he was detained?

    Was Sami Al-Arian an apparent civilian who had NOT WAGED WAR on the U.S. before he was indicted and pled guilty?

    daleyrocks (906622)

  69. Patterico…
    I understand your discomfort when looking at the Tribunals and/or GTMO from your background/experience in CIVILIAN jurisprudence.
    What you need to do IMHO is to set your mind as a UCMJ lawyer, and then examine the ins and outs of the Tribunal system. Military jurisprudence IS different. I would say it is a difference of empahasis.
    I would ask if we have any JAGs here who can comment on how the system at GTMO compares to that found on most any Post?
    I second those who have posted about the non-desirability of dragging Habeaus Corpus/Miranda/etc onto the battlefield. If that is done, it will only result in two undesirable consequences: Virtually no POW’s (which would result in a dearth of intell); and, probably, quite a few dead JAGs (as we saw in VietNam, frustrated soldiers find simple solutions to complex problems).
    If SCOTUS does extend the constitutional protections for criminals to battlefield detainees, I hope they understand the consequences that will be their responsibility. Plus, it could make the 100 Years War seem like a minor, neighborhood dispute.

    Another Drew (8018ee)

  70. Meanwhile, Osama Hamdan, the one who said he was just a driver for Osama Bin Laden for the cash; has admitted than Osama talked to him about the
    likely casualties from 9/11; and was arrested with
    Stinger missiles in the trunk of his car. Of course, if many had their way, that confession would have been suppressed and Hamdan would have been let free. Just like it has been revealed that brain scan indicated the “Tipton Three” memorialized in “Road to Gitmo” had taken up terrorist training, and were just bystanders, scooped up by the Northern Alliance.

    narciso (c36902)

  71. If the government felt it met it burden of proof at the CSRT, isn’t it up to you ro prove otherwise?

    The burden of proof at the CRST is on the detainee. What’s more, if he happens to win one, the government can just convene another.

    Mr Obvious, I don’t think you’re a vet, either. S&M battlefield fantasies and Level 70 WoW characters don’t qualify. Sorry.

    Another Drew: Have you noticed that the detainees are just asking for the right to be treated to a proper tribunal? Look at the “evidence” presented in the original post. Does that look like any fair trial you’ve heard of?

    Andrew J. Lazarus (eb98c0)

  72. Patterico,

    I come very late to this, but I have to respond.

    You conclude your clearly heartfelt post with the plea, “There must be a better way.” Perhaps there is. The great frustration of this debate is that the GWOT detainees do not fit well either into the criminal justice paradigm or into the traditional prisoner of war paradigm. One side of the debate wants ordinary criminal trials with full rights of discovery and standards of evidence that, if granted, would clearly come at the price of material injury to our national security interests. The other side wants to hold the prisoners, for all practical purposes, as long as the government deems it prudent, up to “the duration” – when there is a good deal less certainty than in conventional uniformed war that we are really holding enemy combatants, and “the duration” may be half a century.

    Since neither paradigm really works, why not throw them both out and create something entirely new that is not tied to the laws of war or to criminal justice? We can start afresh by looking at the interests involved.

    On the national security side, the interests are:
    (1) To gain intelligence – Counterterrorism is largely a war of intelligence.

    (2) To protect intelligence – We do not want the enemy to know what we know about him.

    (3) To keep terrorists out of the fight – This applies especially to masterminds, leaders, and those with special skills. There is less value (though not no value) in holding ordinary fanatics because, alas, they seem to be a dime a dozen.

    (4) To serve justice upon terrorists who have committed specific acts – When you have a known mass murderer, you want to keep him captive not for his future potential danger to the nation, but rather because depriving him of freedom is just.

    (5) To conduct operations that can meet such contingencies as may arise – US armed forces involved in counterterrorism operations cannot be made subject to such procedural restrictions as are fitting for the police without grave loss of capability.

    On the other side:

    (1) The detainee has a basic human rights interest in not being detained without reasonable cause.

    (2) The detainee and the public have an interest in seeing that a reasonable process has taken place – something that requires knowing the details of the accusations and evidence so that there is a meaningful chance of rebuttal.

    (3) America has a foreign-relations interest in demonstrating that the process is not unjust.

    Given all this, it would not be impossibly difficult to design a process that, while not involving the same protections and rules of evidence as civilian trials so as to safeguard the national security interests, would nevertheless feel more fundamentally fair to the detainee – were it not that the imperative to protect intelligence requires secrecy. In the transcript excerpt, it is the secrecy that makes for the unfairness. The detainee is accused of associating with an al Qaeda operative, but the government will not tell the detainee who the operative is because to do so would presumably compromise intelligence. (It hurts us to allow the operative to know that we know about him, and it hurts us to impel the operative to consider how we could have come to know that the detainee was involved with him.)

    What is striking about the national security interests in gathering and protecting intelligence, however, is that they decay with the passage of time. Intelligence is only “actionable” for so long. Targets eventually either become aware that we are on to them or else we take them out. Intelligence known by the detainee gets out of date. Intelligence used to capture the detainee becomes less needful of protection.

    What all of this means is that we need not have just one process. It would be possible to create a statutory regime where a detainee could be held for a short time without a review, that the initial reviews might be conducted with secret evidence, but that as time went on the evidentiary demands and requirements for a public process presenting that evidence would increase. This would essentially put the detainees on a timetable for release or public trial.

    Of course, a timetable such as this might not work well in certain cases. But in those cases it should be possible to afford a secret but truly independent review of the intelligence protection requirements by an expert judicial body similar to the FISA court. The requirement for such a showing to an independent body would be necessary to extend the timetable or make other alterations.

    I am going to stop here because it would take awhile to flesh all this out and this comment is already long enough (and your post is already way down on the page). But the important thing is this: we need not be trapped by into deciding between the civilian criminal trial paradigm and the prisoners of war paradigm. We face a new situation in counterterrorism, and we can create a new paradigm to fit that grapples with the actual interests at hand.

    Nathan Wagner (9f67a2)

  73. Interesting post, Nathan. However, you are mistaken in your assertion that the two sides are divided on whether we should use criminal law on one side or the laws of war on the other. It is more accurate to say that one side wants us to use either criminal law or the laws of war, while the other side doesn’t think that the terrorists are entitled to either form of protection since they do not satisfy the conditions of either form of law.

    I think a better precedent might be found in the way we treated pirates. They also were stateless armed forces. Pirates frequently sailed under false flags in order to hide their identity and they murdered and pillaged at will. Another possible precedent is the Indian wars. The Indians would hide on the reservations or in Mexico while the army was around, only to come out to murder settlers when the army left.

    The war on terror isn’t really unprecedented. The problem isn’t that we don’t know what to do, it is that five decades of concentrated culture-warping by communist agents and their ignorant tools has turned America into a nation of hand-wringing hyper-moralists, unwilling to do what is necessary to survive. And that’s the good side. There is also a very large percentage of Americans who hate America and want it to fail. This phase of culture won’t last because a society that will not defend itself cannot survive. The only question is whether the resulting society will be more like America of the 1940s or more like the Soviet Union of the 1940s.

    Doc Rampage (ebfd7a)

  74. One of the things that we have forgotten about this sort of fighting is that this is not Public War. This is not war between Nations, but Private and Predatory war forced on us by those who are placing themselves in the position of outlaws. Outlaws – literally outside the law. When attacked by such that are not Nations and who do not have the right to declare Public War, the Nation recognizes that it has been attacked in an uncivilized manner by those seeking to destroy the order between Nations.

    In an earlier era we would call such Private or predatory war by the name of Piracy and give it especial view to the high seas, but has only a little to do with ships, rum, and parrots and a lot to do with making war outside the realm of sovereign nations and upon sovereign nations to prey upon them. But that has never been the sole purview of Pirates and those that act like them on land were called outlaws, brigands, bandits. We do not think of this in our modern times, but ‘Bandit Army’ is a description of those waging this on land and has been since the earliest recorded history. Even into the mid-20th century that term was used and the USSR staged one of the first, ever airborne raids on a ‘Bandit Army’ back in 1929.

    The distinction between Public and Private war predates the US and was incorporated into the English common law, and by reading William Blackstone’s commentaries that can be found and seen. In the US Constitution Congress is specifically given to take up the Law of Nations (capitalized, just like the book Law of Nations by Vattel) and utilize it to write laws that were just so that the US would be a proper brother Nation.

    Of all the things we forget it is that Piracy had both civil and military sides for a *reason*. That reason was to allow those falsly accused to stand before civil admiralty trial and be heard. That said, those picked up on the military side doing that set of actions were given swift and sure justice, because they had placed themselves as a threat to all Nations and all law. When we see that bottle of spiced rum with Captain Morgan, we forget that he was accused of being a Pirate for a land raid on a Spanish facility after a treaty of peace had been signed. He came back to England and cleared his name by demonstrating that he had no way of knowing about that treaty and acted within his war bound guidelines. He was cleared of the charges and Knighted for his gallantry. Those pirates that were caught would also get swift justice by the admiralty courts, and admiralty law, itself, goes back to The Black Book of The Admiralty which was based on Roman Imperial trade law as adopted and modified by later European Nations. It was the first of the modern views of international law and it still holds for all the specifics of such law. That, too, sits in the Constitution via the Admiralty jurisdiction.

    Thus, from those things, Congress can make law, as it did for Piracy, to state clearly and simply that those committing acts of Private war are considered Predators or Pirates and due the fate of Pirates, which in our modern times is life in jail. On the warfare side, however, the Sovereign and Commander of the Armies and the Navies called President has special jurisdicition as those committing Private war when captured *at war* fall under the plain defense of all Nations to exist.

    This is not verbiage as one President has, indeed, defined those things we would call terrorist for the Armies of the Union in their Field Manual-100 of his era. That ws done in 1863 and violated no treaties or laws then, or now… the President was Lincoln. His article 82 that he authorized stayed in force for over 30 years, and clearly describes those activities that we call ‘terrorism’ and what to do with them on the battlefield or when caught making Private war by the forces of the Union.

    Congress, however, has made a *hash* of its work and will not write clear, and succinct law like the one sentence Piracy law based on the Law of Nations and written with that exact and specific reference. It is a model of brevity in federal law. Until such time as Congress can do *that* then those brought in suspected of making Private war get stuck with a President who cannot think as clearly as Lincoln could.

    The Law of Nations and Laws of War that are incorporated into that are different in scope and kind than federal law as it must address the functionings of Nations to their fellow Nations and that citizens have a responsibility to follow such things or be held accountable for their uncivilized activities. This stuff was hashed out by some of the finest minds to grace how Nations should work and what their responsiblities *are*, so much so that the founders of the US explicitly included those views in the US Constitution so that we would know how to act in future times. Little did they know that we would stop teaching such things and allow ourselves to get stuck in ‘moral quandries’ that look like something out of the 11th century instead of the 21st. If we get any more PC and wonder about the ‘rightness or wrongness’ of defending ourselves, then I am sure we can regress a bit further to welcome the barbarians in to take over because we, by then, will not know even how to govern ourselves and be so worried about morality that a slit throat is preferable to standing up to fight.

    If the military wanted these ones from the Balkans and they were handed over to them, then the UCMJ is guiding: their Nation knew what they were doing in handing them over. And if gang members are not citizens, then we might start thinking about what it means to have outlaws in the US who see themselves beholden to no law and wanting to flout all law to win their ways. And the Law of Nations has penalties for *that* too… if you could ever get Congress to read it and figure out their job.

    ajacksonian (87eccd)

  75. We’re talking about legal precedents; Robert’s opinion in Hamdan provides them (ex parte Merryman, Milligan, Quirin,Eisentrager, a little
    Valdez Urquidez & Alvarez Machain (the Camarena
    related cases) for variety. Kennedy basically incorporates the language of the amicus briefs which rely strongly on cases like Councilman which deal with courtmartial of US citizens (ie:
    enlisted naval personnel) and cases hinging on the statutory language of off putting articles.
    If this didn’t concern such serious issues one would laugh at this; it’s almost impossible to enforce this language. Stevens off course, was the one who lamented the death of Yamamoto, which he brought about in his role of navy codebreaker;
    so you can see where he’s going with this. He didn’t even use the rationale proffered in Stephenson epic on code breaking; Cryptonomican;
    about how Yamamoto’s intercept based on the deciphering of the code, risked the revelations of that code. No it just felt bad for him.

    narciso (c36902)

  76. The difficulty with allowing these detainees to challenge evidence in the manner that criminal defendants do is that such challenges would almost certainly expose the identities of informants and witnesses.

    There are lots of jihadis still at liberty, who can retaliate against any witness, informant, or cooperating government.

    Intimidation and retaliation make it very hard for the system to be fair.

    Jihadis are also plotting more terrorist acts. Challenges risk exposing the methods by which intelligence about jihadis is obtained, enabling other jihadis to evade detection.

    Hard cases make bad law.

    Rich Rostrom (7c21fc)

  77. Just a correction on one comment:

    SDN, do you think our rights are given to us by the government or that they are inherent to our being human?

    Rights are NOT given to us by government.

    Michael Demmons (cb386f)

  78. Ooops! Misunderstood the comment. Delete that last one!

    Michael Demmons (cb386f)

  79. If the answer to that question is no, then we are under no realistic obligation to respect their persons. Don’t like that? don’t come here.

    Let’s run with this. And let’s allow other countries to do the same. Next time you vacation in Europe or Cancun or Canada, allow those governments to arrest you…just because…ad infinitum. No reason necessary, other than you lack their citizenship. That’s a great idea.

    Punchy (21e4b3)

  80. Taking non citizens in foreign countries where we have troops in war or “peacekeeping” roles and subjecting them to military justice.

    That is war.

    Oh yeah? Show me Congress’ Declaration of War. Until then, all your “Constitutional” bullshit is moot.

    Punchy (21e4b3)

  81. GaryS, I read your comment with a rising sense of disbelief, then nausea. Shoot ’em all and let god sort ’em out is not an ethos I want from my government. I’m really shocked how many people are incapable of empathy. Can you really not imagine yourself in a situation where you are wrongly accused of a crime, and are not given a chance to defend yourself? I guess given the enthusiasm with which so many embrace torture I shouldn’t be surprised. Didn’t we used to think our principles were immutable, and didn’t we have faith that they would win out in the end because they were right?

    Gus (35d1b7)

  82. I am full to my eyebrows with legal arguments regarding the “G.W.O.T.” (in fact, my law school exams are this week (for which I should be studying, and not posting on this thread!) and at least two subjects I am studying touch on the Hamdan and Boumediene cases), but I’m a little sick of the legal arguments. Instead, I feel that the following quote sums up the current debate rather nicely:

    . . . the morality of war is to survive. That’s it. There is no other.

    This is the statement that we’re arguing about. To wit:
    1) Are we at “war”?
    2) Is our actual “survival” at stake?
    3) If so, are there any morals, ethics, or rules that should bind us while we wage this so-called existential fight?

    I shan’t comment on #1 and #2 (I have my opinion, of course, but that’s beside my point right now). The question is #3: are we, as Americans, bound by morality, ethics, and/or the rule of law in conducting warfare?

    The answer to this is obvious, in my mind. Americans have defined ourselves by trying to hold ourselves to a higher standard during wartime, whether it was our treatment of Hessian mercenaries during the Revolution or the Nuremberg trials after WWII.

    If your answer to #3 is “no,” congratulations. You are anti-American.

    (And if your answer to #2 is “yes,” you have cognitive issues.)

    S.G.E.W. (8b2dd1)

  83. I use to think it might be some sort of conspiracy but after six years I am convinced that it is probably divorce and working mothers that fermented the most cowardly generation in American history. I say this because most men raised in two parent households know the difference between hitting your little sister and hitting a guy who dope slaps the back of your head on the school bus.

    In the case of hitting your sister, there was consistent, no debate punishment inflicted by the father. In my case there were usually few if any words exchanged unless they were pleas for mercy. Fruitless pleas, because a golden rule had been broken; Never Hit A Girl and Never Hit Anyone Weaker Than Yourself. In doing so he brand of cowardice had to broken and there was only one way to be cleansed, through punishment. As a child I knew this, as a young adult I knew it and I know it now.

    In the case of defending myself, that was another situation all together. I was not only permitted to attack a bully, it was a requirement. It did not matter where it occurred. I was not expected to schedule a fight a high-noon in a neutral place, the issue was expected to be settle there and now. If it happened on the school bus and I was expelled from school then so be it. My father could be counted upon to tell the administration that I acted according to his wishes. It also did not matter if I won or lost the fight, only that I defended myself.

    As a result, growing up I hit my sister once and I was forced into fighting a bully once. To this day I have never lifted my hand to a woman or anyone weaker than myself. I have taught the same lessons to my three adult sons as well and to the best of my knowledge it has also become a part of them.

    So it makes sense that only fatherless children would find it appropriated to torture defenseless people regardless of their crime. Certainly it is inappropriate for a number of reasons. Torture is unconstitutional, it betrays the Geneva Conventions and it is certainly inhumane. When I think of the Americans who do this to people, I can only conclude that in some unfathomable way they do not recognize the degree of their cowardice. Not only should we grieve for the lives of those who have been tortured, but for the depth of corruption in the souls who torture.

    Mark William (4003fe)

  84. I am very disappointed, Mr. Patterico, that you have decided to side with the terrorists. Guantanamo is indeed Kafkaesque, but it is Kafkaesque in a good way.

    Jon Swift (c5d04f)

  85. Does the refusal to torture increase my chances of dying in a terrorist attack?

    Maybe. I’m willing to take that risk. I’ve taken bigger risks with my life before. We are all going to die one day anyways no matter what we do and there is a limit to how much I will sell my honor to be (or maybe just feel) a little more safe for a little longer – this issue has already far surpassed them.

    Who is more courageous, the man who accepts danger rather than violate his principles or sense of honor, or the man who jettisons both his principles and his honor for a chance to avoid danger?

    I think the answer is obvious. Frankly, I can’t see sentiments like Doc Rampage as anything other than an attempt to mask rank cowardice with a veneer of “toughness”. It doesn’t work though,and that why they will ultimately lose on this issue.

    libarbarian (de8f5b)

  86. Interesting Op-ed piece in the LA Times today by the former chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, when I resigned having concluded that full, fair and open trials were not possible under the current system.,0,2446661.story?coll=la-opinion-rightrail

    JayHub (0a6237)

  87. Should be quote: “I [resigned having] concluded that full, fair and open trials were not possible under the current system.”

    JayHub (0a6237)

  88. Are full, fair, and open trials the goal of these hearings?

    Interesting that Pelosi has known about this for 5 years, and never objected to it.

    JD (2c9284)

  89. Sadly, the detainee seems to have a better grasp of basic American values than does the “tribunal president.”

    Nancy Irving (2657bb)

  90. Sadly, no, Nancy. It is you that does not grasp the differences between the tribunals and criminal trials.

    JD (2c9284)

  91. JD #88 – From his piece, I think Mr. Davis, the former chief prosecutor for the Office of Military Commissions, would answer you:

    “In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality.

    …I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice.

    …Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it’s time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.”

    JayHub (0a6237)

  92. Jay Hub – You may, in fact, be right, but it is quite presumptive to attempt to speak for him. Since you trot out one former officer to give credibility to your opinion, do the countless others that hold opposing views to his even register with you, or does his voice trump all because he agrees with you?

    JD (2c9284)

  93. …Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him.

    This seems foolish to me. The way we live speaks for us and the way our enemies live speaks for them. We don’t kill homosexuals just because they are gay. They do. We let people speak freely, even if it is critical of our way of life. They don’t. We strive to treat people of all races, gender, religions, etc., equally. They don’t.

    The fact that we even try to fight a war humanely is to our credit and it should not be used as a club to bash us just for trying.

    DRJ (a6fcd2)

  94. Ummm, DRJ aren’t you just making the same arguement as the Senators?

    The fact that we even try to fight a war humanely is to our credit

    And when when we don’t act humanely would be to our discredit…

    JD: You reminded me of a link someone (turns out it was AJL) posted in the original Gitmo comment thread about other prosecutors also having problems

    Bob Loblaw (6d485c)

  95. No, Bob. I think it is admirable that we try to fight humanely but we should be judged by the laws and goals of our society. Our laws and goals are designed to limit loss of life and avoid harm to innocents. It trivializes our society to argue that when we struggle to find the right balance during wartime, it proves we are no better than our enemies.

    DRJ (a6fcd2)

  96. AJL #71…fair trial…
    Unlawful combattants are entitled to only one thing: Summary Execution. Anything less is mercy. War Criminals are entitled to a trial; but only after the ceasation of hostilities.
    Which leads to DRJ #93: We have to be careful that our compassion doesn’t kill us.

    Another Drew (8018ee)

  97. But they’re not saying ‘it makes us no better than they are.’ They’re saying that we are defined by our actions; as are you.

    How we feel this specific action defines us might be different, or perhaps how much weight to place on this specific action, but fundamentally your both making the same argument.


    Bob Loblaw (6d485c)

  98. JayHub – It seems Col. Davis was singing a much different tune back in June when he penned an op-ed for the NY Times singing the praises of the process. My guess is that he has some past conflicts with the General put above him in the chain of command that he referred to in his piece that prompted his decision.

    daleyrocks (906622)

  99. Bob,

    You and they are equating actions that aren’t equal. By that analysis, it is equally bad to waterboard our enemies as it is for our enemies to behead us. Does that make sense?

    DRJ (a6fcd2)

  100. DRJ – I think part of the conflict stems from a difference in the view of progressives and liberals of seriousness of various threats to the U.S. and what measures are necessary to protect the country. The ability to enjoy the freedoms and values we have was earned not without difficulty and many on the left have a convenient time forgetting that. The congenital weakness of the left on defense and foreign affairs bears this out.

    daleyrocks (906622)

  101. Well I wasn’t actually equating anything and I don’t think they are either; but I guess you are. Saying how we treat our enemy is about us, stands without regard to who our enemy is: past, present or future. I saw your argument of how we live vs. how they live as basically indistinct from that – the choices we make are what define us morally. I don’t want to mischaracterize your actual argument if I misunderstood it, so I’ll stop there.

    I’m not actually entirely clear in my own mind where I draw the line between where discomfort becomes torture. After reading the account given by the SEAL trainer some weeks back that everyone was buzzing about, I lean towards waterboarding falling into the catagory of actual torture. I do not condone torture no matter how despicable the enemy, because it is wrong. It may be effective, it may be efficient (and it may well not be), but I’m not convinced it’s required. So waterboarding = bad.

    Equally bad as beheading? I guess that depends on who is being beheaded. A soldier in wartime, an innocent civilian, the child of an adversary to extract information? Killing soldiers during war is an acceptable consequence of war. I can think of worse forms of execution – the electric chair is likely one. Killing = bad; killing innocents = worse.

    So they’re both bad. Equally bad? I’ll answer that with my own question. Which is more inhumane torture or summary execution?

    Bob Loblaw (6d485c)

  102. BTW my issues with Gitmo (beyond torture which isn’t strictly a Gitmo issue) is not with those verifiably collected as enemy combatants – i.e. collected on the battlefield shooting at our guys.

    My issue is that there is a ‘good faith’ attempt to distinguish between the innocents wrongly collected where the case is not as clear cut. Such as in case of these Bosnians or the poor German kid swept up off a bus in Pakistan and released 5 years later when everyone basically agreed he was innocent.

    Reading Davis’ Op-Ed, he touches upon what I am looking for from this Tribunal process. I however would not necessarily disallow classified evidence as long as it was overseen/reviewed by a truly impartial judge. More openness, transparency, and impartiality are clearly what’s required.

    Gitmo needs more western democracy and less banana republic.

    Bob Loblaw (6d485c)

  103. daleyrocks@#98: No need to guess why Col. Davis changed his tune, he straightforwardly states in his Op-Ed that he believes politics had taken over, and that he resigned within hours of being placed in the chain of command of Defense Department General Counsel William J. Haynes.

    I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

    Bob Loblaw (6d485c)

  104. Bob – Resigning within hours signals something else. Haynes hadn’t even had a chance to interfere in any trials “within hours” if Davis was trying to prove a point.

    daleyrocks (906622)

  105. It’s amazing how so many of the Hang ’em Highers here just intuitively know these people are guilty. One guy says, “the odds are…” Another says, “My guess is…” Those were only in the first 10 or 15. I stopped reading after that. So maybe we shouldn’t have any judicial system at all: we’l just ask these brilliant folks if the “think” somebody’s guilty, or if somebody “seems” or “looks” like a criminal. Wouldn’t that be great? No long, messy trials, no chance of guilty people going free, just quick & easy incarceration, or, if the “hunch” is strong enough, maybe an execution! What fun! No muss, no fuss!
    And it’s appalling how glib so many supposed humans are about other people’s suffering. “War is messy; get over it!” That’s what they’re saying. “Casualties of war happen. Too bad, so sad. The innocent bystanders who get hurt or wounded just need to get over themselves, stop whining, and understand that bad stuff happens in war. I mean, you know, war is brutal, isn’t it just soooooo cool? I guess maybe it’s kind of too bad if I really stop to think about it, but as long as it isn’t happening to me, why should I bother?”
    The saying is, “The love of money is the root of all evil.” But I think that’s far off the mark. The root of all evil is a lack of empathy.

    Mumphrey Bibblesnæð (37dc15)

  106. The extent of the threat is truly grave. No doubt Bin Laden is delighted with our progress. Even he must be surprised by how quickly we have betrayed our values. Not only has the he killed us he has caused us to collectively crap all over ourselves in fear.

    Mark William (4003fe)

  107. Mark William trots out the bedwetter fear BS. Mumphrey claims we are evil because we lack empathy. Is there someone on the left that can debate these kinds of topics without just resorting to name calling, and distorting our positions? Just one.

    JD (2c9284)

  108. Because I support our democracy do not accuse me of being a liberal JD. I have not supported any liberal in 38 years of voting. An honest observation is not political it is based upon a system of values.

    Mark William (4003fe)

  109. I call BS. “collectively crap all over ourselves in fear” is a progg talking point for months, if not years. Claims to support democracy more than their opponents is common as well.

    JD (2c9284)

  110. I don’t think all Al Qaeda sympathizers are lefties, JD. And I would never call you a liberal, Mark. The liberals I know do not believe women should be hanged because they were raped.

    nk (26f031)

  111. daleyrocks@#104: Now you are being completely disingenuous. If you read Col. Davis’ recent Op-Ed in the LA Times you know that the introduction of Haynes was the last in a series of political intrusions he could no longer countenance. He lays out his objections and the reasons for his resignation in a clear, straight-forward manner. What exactly are you trying to prove with your rhetorical gambit? Who are you attempting to convince? or misinform? If you haven’t read his reasons, how dare you presume to assign him motives as you do in your post @#98?

    Reread the NY Times Op-Ed Davis wrote in June 2007, that you cite in that post, and read (or reread) his current LA Times Op-Ed. I find no dissonance between the two on Davis’ part. In both he is an ardent supporter of the Military Commissions process as long as they are conducted fairly and impartially. When he felt that that fairness was compromised by politics, he resigned.

    That makes him a man of integrity in my book. The exact kind of person I want serving in the military and involved in these very serious and important tribunals. Indeed we could use a few like him in politics. To assign him motives, as you do, entirely without foundation does him (and for my own rheorical flourish – ultimately all of us) a disservice.

    Bob Loblaw (6d485c)

  112. The idea that ethical behaviour is relative to circumstances or the nature of your enemy might be convenient but it is still morally corrupt regardless of politics. That is why Republicans are hemorrhaging conservative supporters. Without ethics there are no limits to the extent of their corruption.

    Mark William (4003fe)

  113. The GOP’s main problem is pork, not morals.

    DRJ (09f144)

  114. Bob @ 111 – Davis was still in charge of the commissions when his new boss was assigned. Were any new directives issued in the hours after the new boss assumed his position altering the conduct of the commissions? If not, wasn’t Davis resigning over events which might or not occur in the future? You are obviously failing to see the point. If his job was not actually intergered with and he could not point to actual instances, his principled stand really rings hollow.

    daleyrocks (906622)

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