I too am very troubled by remarks from deputy assistant secretary of defense of detainee affairs Cully Stimson that seem to urge private businesses to pressure law firms to stop defending Guantanamo detainees:
I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.Listen to the radio interview yourself, starting at 3:00 into the file. It seems to me quite clear from the interview that the Secretary isn't merely predicting such an action by the law firms, but also saying that such an action would be good. A few thoughts:
(1) Just to avoid misunderstanding, I am not claiming that it is illegal for businesses to pressure their lawyers to stop taking certain other cases, or to boycott lawyers who do take such cases. Businesses, like other clients, are entitled to choose the lawyers they want. Nor am I claiming that it is unconstitutional for government officials to urge businesses to do this, so long as the urging stops short of threat of governmental retaliation (whether through legal punishment or through withdrawal of government contracts). I think Mr. Stimson's urging is improper, not that it's unconstitutional.
(2) I also do not want to claim that it's categorically improper for clients to avoid lawyers who are embarked on legal campaigns of which the client disapproves. In particular, I do think that clients may rightly turn away from lawyers and law firms whose motivations the client finds to be repugnant. If a lawyer or law firm's genuine goal is to try to help jihadists (or racists or Communists or whoever else) avoid legal liability in all circumstances, simply because they back jihadists/racists/Communists, a client may reasonably conclude that he does not want to have doings with that organization.
I think this tracks our common sensibilities in social life as well. I may be sad that a public defender gets a factually guilty rapist released, but he's doing his job, it's an important job, and he's supposed to his job as well as possible; I won't cut off social or business connections with him. But if I learned that a public defender defends rapists because he thinks rape is good, I would have a very different view.
(3) But it seems extremely unlikely that those lawyers who represent Guantanamo detainees do so because they support jihad against America. Rather, I take it that they are doing this chiefly because they think that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren't really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believe that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides.
Now one might thing that, despite the lawyers' good intentions, their actions will yield bad results. One might, for instance, think that the Court was wrong in holding that courts should consider detainees' habeas claims, and that getting more lawyers involved in the process will hurt national security. That's fine. But surely this is an area on which reasonable, decent, thoughtful Americans can differ.
Again, let's return to the analogy of political belief and expression, in social and professional life. As I said, I'd have no qualms with people's refusing to invite Communists, Nazis, Klansmen, and the like to dinner, or even refusing to do business with them. (I would act the same myself.) But if someone refuses to do business with someone because he disagrees with his stand on global warming, social security reform, the war in Iraq, affirmative action, and the like, that person is being intolerant. He's undermining social norms that are vital to a working democracy — norms that maintain connections across political aisles, that allow people to disagree without rancor or hatred, that eventually allow compromise, and that help make possible unity in the face of common threats. And, if his goal is to try to change others' speech, he's improperly trying to do this through financial and social threats rather than through persuasion. The lines here are not crisp, and since we're talking about propriety rather than law, they neither can be crisp nor need to be crisp.
Likewise when we shift back from a lawyer's political expression to the lawyer's legal representation. In extreme cases, where the lawyer's goal is really to have the jihadists win, or to have rapists rape with impunity, I too wouldn't do business with the lawyer. But when lawyers defend Guantanamo detainees out of the motives I describe above, it seems to me that they are well within the zone of that which should be tolerated, without social or professional retaliation, even if we think that on balance the lawyers' actions end up being harmful. To do otherwise would likewise undermine important social norms of encouraging lawyers to provide the legal system with services that the legal system sees as necessary for its most effective operation.
(4) So far I've spoken just of what businesses should do; now to the government official's statements. The detainees' lawyers are, in court, the government's adversaries. But the premise of our legal system is that you can be the adversary and not the enemy, and that in fact your representation can help the legal system run by the very same government that you are opposing.
It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.
(5) Finally, quite aside from the argument that businesses should pressure law firms to stop representing detainees, isn't there something troubling with the motivation that Stimson is urging? He's not even saying that corporate CEOs should pressure firms because the CEOs are patriots, or because they hate terrorists, or because they want to prevent future terrorist attacks. It's because the terrorists hit their bottom line.
Is he really appealing not to the CEOs' patriotism, or anger over mass murder, but to their anger that terrorists cost business money? To look at the flip side, should construction and security contractors who made money (perfectly honorably, I should stress) as a result of the terrorist attacks start giving more business to law firms who are representing detainees, on the theory that "those firms are representing the very terrorists who [benefited] their bottom line back in 2001"? Yes, CEOs should surely look out for the bottom line; that's their job. But this strikes me as a context in which the concerns about past impacts on the bottom line should be the least relevant.
Disclosure: I am affiliated on a part-part-part-time basis with Mayer, Brown, Rowe & Maw, one of the firms correctly named by Stimson as representing some of the detainees. I am not personally involved in those cases.
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2) Is the gov't going to put financial pressure on companies to do this? I can see three possibilities:
(a) no (but then why will anyone listen to them? It hasn't exactly been a secret which firms are involved in this; their names are on the court papers and they're often quoted in the news)
(b) yes, they will threaten companies that work with these firms with loss of gov't contracts, etc. (this strikes me as potentially illegal, risky &probably unlikely)
(c) yes, but it's just sort of a subtle wink and nod thing: if you have enough DoD contracts to make it a substantial part of your business, you should make DoD happy, and here's how.
It's heresy on a legal blog, I know, but I don't think law is the answer to every question; and I do not agree that the Islamic assault on civilization is a 'crime' that can be 'dealt with' by 'going to court.'
Just sayin'.
I think there are intermediate reasons to defend such people with intermediate degrees of wrongness.
To get back to the rapist example, suppose that you defend accused rapists because you think that letting rapists go free will make the government's rape prevention programs look bad, leading to the government being replaced by a better one that has better anti-rape programs. (Defending terrorists to make US policy in the Middle East look bad.)
Or suppose you defend accused rapists because it turns out that rapists scare the ax-murderer suspects away and you think the benefit from less ax-murdering outweighs the harm from more rape. (Defending terrorists because they fight Israel.)
Clearly, neither of these is anywhere near as bad as wanting to defend rapists because you like rape. On the other hand, both of them seem a little questionable.
Me neither, but I do think that the issue of whether people being held in prison have actually done something wrong can be resolved by going to court.
Do you ask public defenders to apologize when their clients re-offend? If a doctor treats a known murderer, should that doctor apologizes if the murderer kills again?
Some lawyers may defend detainees because they believe that the detainee they are defending is innocent. Others may believe they are guilty as all hell, BUT feel that they should get due process anyway.
When a lawyer makes a motion to exclude an improperly extracted confession from a factually guilty rapist, he is almost certainly not doing so because he thinks rape is good. Rather, it's that he thinks a system which allows improper extraction of confessions is the greater of two evils (the other evil being a factually guilty rapist not being punished). Thus he is willing to try to squash this greater evil, even when doing so might bring about the lesser evil. Now, one may or may not agree with this balance, but one surely has to concede that it's at least reasonable to think this way.
In the same manner, even if it were someone who were clearly guilty, perhaps a detainee lawyer feels that the erosion of due process is the greater evil here. Unless you find that a completely preposterous and unreasonable position to take, there is no apology necessary, even if the subsequently released detainee turns around and attacks America again.
They're getting paid to do it. Certain countries (KSA) pay very well for people to do their dirty work (Jimmy Carter, $5M).
I realize this probably would do badly in front of jury or a law professor, CEO's really care a lot more about Kirk Kerkorian.
A harder case is to believe that after the asbestos and silicosis scandals, lawyers should be protected as a class from market forces. Lawyers have already established that their integrity is available to market forces, regardless of the impact on the nation. Or perhaps you would care to discuss the patriotism of Enron's lawyers who actively abetted energy trading fraud coverups, regardless of the hundreds of thousands of Americans they put out of work.
If the law firm has integrity and believe in the case, they will suffer the financial loss. If they do not have the courage of their convictions, why should we protect their income stream by muzzling the national security leadership?
It's as least as likely as the other way around...
The most compelling reason to defend the United States is to preserve my life and the lives of my family. I preume we all might subscribe to a variation on that.
The Maslon, Edelman law firm in Minneapolis, which is moderately-liberal over all, and is full of competent, well-rated lawyers with happy clients, experienced such reprisals from the bar and liberal corporate counsels after it allowed a few of its lawyers to bring a factually-supported challenge to the University of Michigan's affirmative action policies.
The Supreme Court struck down one of those two policies by a 6-to-3 vote (Gratz v. Bollinger (2003)), while narrowly upholding the other by a 5-to-4 vote (Grutter v. Bollinger (2003)).
The Maslon law firm has been punished ever since for providing legal representation in that case. It has been excluded from law firm recruiting consortia, and punished by liberal corporate counsels, for the stated reason that it allowed some of its attorneys to work on the University of Michigan cases (even though it has also provided pro bono representation to minorities in many cases).
The position in the Michigan cases that the Maslon law firm took was partially successful, perfectly respectable, and perfectly consistent with American values.
Indeed, the voters of Michigan overwhelmingly voted to ban affirmative action in a November 2006 referendum, in large part to prevent the University of Michigan from continuing to practice race-based affirmative action.
Moderate voters overwhelmingly voted to ban affirmative action, even as they reelected a Democratic governor and Senator at the same time.
Yet the Maslon law firm is being punished for bringing two well-grounded lawsuits, one of them successful in the Supreme Court, even though its position is obviously in accord with the sentiments of mainstream voters and many judges as well.
I don't see any evidence that any lawyer representing a terrorist has suffered any analogous reprisals.
Indeed, representing a terrorist is a trendy thing to do among lawyers, about two-thirds of whom voted against Bush in 2000 and 2004, and many of whom regard opposing the administration's policies (however foolish or wise those policies may be) as a badge of honor, even if involves defending terrorists.
(MPEX is the other :-) )
Thanks for at least getting to the heart of the matter. It seems that there's a certain percentage of the population who believe that we are at war with Islam. I have no stats handy, but let's say there're 1 billion Muslims in the world. If they were indeed engaging on an assault on "civilization," believe me we'd all know. And the world would look a lot different than it does now.
It seems that the Administration is doing its job well: planting the seeds in the population's mind that we're at a never-ending war on Islam to justify all the atrocities that are unbecoming of us. I mean, I saw an interview with a fucking NEOCON (I believe it was Fukiyama, formerly of PNAC) who stated that they needed a new enemy now that the commies were finished. Get it? They NEED a new enemy?
For those of you who believe this nonsense, please explain why those leading this "noble war" are so in love with the Saudis. I mean, they're Islamic, and thus, must be our enemies as well.
I dare say they, and their lawfirms, will survive this brutal "pressure" that a mid level totally unknown DOD official is inflicting on them.
Bravo! You are precisely on the money.
And I would like to add one additional point. The motivations of these law firms (I am willing to bet) is much more likely related to the partisan political beliefs (Dem vs Rep) of their owners than any of the more idealistic reasons cited by Prof. Volokh. The fact of the matter is that there are many people in this country who are willing to do just about anything provided it might harm and diminish the reputation of the Bush administration. That includes efforts to tie them in knots about their detention of combatants who have chosen to make war against the United States.
Prof. Volokh-- the people who are detained in Guantanamo are warriors who have attempted to kill your neighbors sons and daughters. (Well, probably not your neighbors, but my neighbors.) Can you not see why that might become a more emotional subject than social security reform? Is it not possible that Cully Stimson sees these detainees as enemy combatants, and killers of American servicemen? Afterall, the detainees are the people who were willing to take up arms in support of the people who committed 9-11.
Some people insist that all these detainees are innocent bystanders, but I can't for the life of me understand why they are so convinced. Except perhaps because these same people simply despise the Bush Administration, the military, and all their works? Thus... if "Bush's military" says that they detained these men on the field of battle (!), then that must be a lie and a deception? And I am suppose to politely ignore this insanity, and continue to do business with them... for what reason again?
They (Neocons and some others) like to say the war is against Islam, but it's really against people who have what they want but don't do what we want them to do. Even though there's plenty of terrorists coming out of Saudi Arabia, we're not going to touch them.
Name me one American who believes all the Guantanamo detainees are innocent. One name will do.
They're getting paid to do it. Certain countries (KSA) pay very well for people to do their dirty work (Jimmy Carter, $5M).
It used to be that the Soviet Union was the perennial bogeyman which pulled all the strings of society. Then it was Israel. It's nice to see the tin-foil being distributed a little more widely these days.
Yes, all the major law firms in America have been bought off by al-Qaeda. You should really start a website so the truth gets out.
Well, perhaps it's not a lie. It's certainly a deception.
The administration defines "the field of battle" to include literally the entirely world. When they say detainees were captured on the field of battle they mean they were captured on the earth. There are--this is absolutely undisputed and has been known for years--6 prisoners in Guantanamo who were arrested in Sarajevo after the Bosnian Supreme Court acquitted them. There are also two British residents, Jamil El Banna and Bisher Al Rawi, who were captured in the Gambia. There was at one point someone captured at the US-Mexico border--though his CSRT found him to be innocent and released him. We also know that the administration considers Jose Padilla's jail cell in New York (where he was being detained as a material witness) to be part of the "battlefield." A majority of Guantanamo detainees were picked up in Pakistan, not by US forces, and in many cases it was far from the border. Then there's the 6 I mentioned in the other thread who were captured in a Taliban prison.
This information is out there. The reason I am writing these long posts so quickly is that I know it off the top of my head but it's all readily available if you care to look. You are making assertions about the prisoners--and what their representation says about of their lawyers--not only without any evidence for them but that "the government says so", but which have been, in many many many cases, affirmatively proven to be false. When that happens again, people simply ignore it, and go on repeating the same lies.
On the basis of discredited government propaganda you are saying that people should be locked up for the rest of their lives without a fair hearing.
Jeez. Could Prof. Volokh BE any more naive?
They're doing it for ideological reasons. Anything to oppose Bush. Period. End of story.
The TRUTH is not the same as the LAW which is not the same as JUSTICE.
The truth about a given terrorist may be that he blows shit up for political reasons. Justice may be that he gets blown up himself as an example to other terrorists. But if he hasn't actually broken a law, we can't legally punish him.
Lawyers exist to push back when we try to punish someone, to ensure that our laws accurately represent what we see as truth and justice (and the American way). When a lawyer can take a known terrorist and demonstrate that we can't legally punish him, something is very very wrong with our laws, so we need to find out what happened and fix it.
If they look the other way whenever we can't afford for the system to fail, we don't find those failures. That makes our entire American justice system into a kangaroo court. Not only should these lawyers defend the detainees, they should FIGHT LIKE HELL with every ounce of strength they can muster. And while I may not like the end result, I will still respect them for doing what is in the end a very dirty and thankless job.
Sort of like our troops, except with better paychecks.
Can you cite me to one instance where "Bush's Military" or a high-ranking member thereof affirmed that all the Gitmo detainees were apprehended on the field of battle? If you can find one, does the context indicate that they determined the entire world is a "field of battle" in the "war against terrorism?" The fact is that bounties were being paid to Northern Alliance members for bringing in Al Qaeda members. And if a NA member brought in a person, they were taken into custody. How does that translate to American service members taking people on the field of battle? If you wanted to summarily execute every Gitmo prisoner who any American service member actually saw on or captured on the field of battle, I would have no problem with it. But we still need to have the discussion to do with the 599 or more that are still left.
Eugene Volokh,
The only problem is see with your post is that I believe you misunderstand the objection of the Bush Administration. They don't only object to people who support jihad. They also object to those who suggest there might be factual error, legal or constitutional violations, or an erosion of due process. In short, the Bush administration recognizes why these attorneys are doing what they are doing, and is punishing them for their actual actions and reasons in my opinion.
They're doing it for ideological reasons. Anything to oppose Bush. Period. End of story.
The irony of this post made me laugh out loud.
Hi, Kettle? This is Pot. You're black!
All people who support Bush hate freedom.
All people who defend detainees want another 9/11.
All people who question our strategy in Iraq hate the military.
All people who think we need to continue onward in Iraq support killing babies.
And if it were President Gore who had done the exact same things as President Bush, suddenly all the detainees wouldn't have any lawyers.
Yes, yes, your political enemies' motives are suspect because they act out of derangement and paranoia, while your motives (and Bush's) are entirely selfless, rational, logical.
Prof. Volokh-- the people who are detained in Guantanamo are warriors who have attempted to kill your neighbors sons and daughters. (Well, probably not your neighbors, but my neighbors.)
Really, you have evidence to back up this claim? Perhaps there should be some kind of forum where this evidence can be presented, maybe with an impartial observer who can "judge" the fairness of the proceedings? Where do we find such a place, and how come Bush doesn't want to use it?
That’s probably true and I would go even further and say that the majority of the people who have expressed “outrage” over the treatment of detainees are simply using this as yet another political football. Much the same way most antiwar protesters don’t really care about peace, they’re just on the other side. Be that as it may though, Stimson’s comments seemed rather clumsy, amateurish and unlikely to have any effect (does anyone really think that major corporate clients are going to be rushing to drop their blue chip law firms because of who their attorneys are representing pro bono?) other than providing fodder for the fever swamp.
All people who defend detainees want another 9/11.
All people who question our strategy in Iraq hate the military.
All people who think we need to continue onward in Iraq support killing babies.
And if it were President Gore who had done the exact same things as President Bush, suddenly all the detainees wouldn't have any lawyers.
Let's see. Straw, straw, straw, straw, and straw. Nice argument!
Yes, this is a real problem. One cause for this problem is when the President orders that a terrorist mastermind - say, the guy who planned 9/11 - be tortured into confessing, so that the evidence is inadmissible in any court or tribunal worthy of the name.
So, of course, we should blame the courts and tribunals for having minimal standards, rather than blame the President.
Conversely, maybe Bush doesn't really care about war, he's just on the other side--hey, wait...
BobNSF: Odd. I've always thought that a firm's willingness to fight for even the most odious client was a selling point.
Our willingness to treat even the most odious captives humanely and not hold them indefinitely without charge used to be our selling points, too. But hey, 9/11 changed everything!
It's interesting the sort of things that apparently don't offend the VC comment policy, and indeed, don't even result in much of a raised eyebrow these days.
You can get banned for telling someone to kiss your ass, but accuse thousands upon thousands of your countrymen of treason and it's just another day at the office.
Oh really? Then why has the US Govt. released over 700 of them?
It's appalling. It's an abuse of power no different than when the government uses tax dollars to try and influence elections (like they have in the case medical marjuana bills). It completely gets backwards the whole point of a representative government.
"Some people insist that all these detainees are innocent bystanders, but I can't for the life of me understand why they are so convinced."
Well, not all, but so far, the majority of them have been released without punishment, trial, or explanation, often sent to their home countries where they are released as free men. So it seems like the US Government, at least, seems to think that heck of a lot of them were innocent bystanders, though of course it can't say so for fear of lawsuits.
Second, I think someone on this thread needs to speak up about the realities of pro bono work. I was at a firm that is handling one of these cases so I have some specific knowledge of how at least one firm came to this place but more generally I know how pro bono works at these white shoe firms.
Many, if not most, pro bono projects are the brain child of one or two lawyers in a firm. Something like representing the detainiess would require sign off from the partnership management but the whole idea can often start with an idealistic, junior associate.
The management/owners of the firm may not share the politics or ideals of the lawyers within the firm who are representing the detainees but I think even very conservative firms would be loathe to shut the pro bono porject down for many different reasons (some of which are mentioned by EV). I think the predicted corporate backlash is very unlikley and I suspect the major firms know this. On the upside for them, it's great experience for the lawyers who are handling it, it is a good recruiting tool for incoming lawyers (who are either likely to lean to the left and support the representation or are enticed by the idea of doing some exciting legal work). The firms also get their names mentioned in the papers. No such thing as bad publicity.
As another example, I worked on a pro bono matter on behalf of a fairly radical organization who was suing the city of New York. about 95% of the partners int he firm probably had no idea that this representation was taking place. There was a team of about 5 or 6 lawyers working on the matter and I don't think a single one of us was politically sympathetic with our client. None of us felt, however, that they didn't deserve competent legal advice.
Yeah. I mean, Covington &Burling? Pot-smoking hippies, they.
Eugene
Well, whatever--it doesn't make sense to me but I know how annoying it is to moderate comments even at a far smaller site.
Also, I've been thinking about Prof. Volokh's post, and am puzzled by this statement. Is he really saying that he finds most boycotts intolerant? "Refus[ing] to do business with someone" is a boycott, no? If a group (say the NAACP) boycotts a company because it refuses to implement a particular affirmative action plan, Prof. Volokh finds that boycott intolerant? Hmmm...
5 years of the Gitmo torture chambers!
* 5 years of detaining innocent students who went to Pakistan for Microsoft classes but somehow found themselves in Afghanistan
* 5 years of detaining innocent Germans because the Germans won't take them
* 5 years of releasing innocent Russian detainees so that they can attack Russian oil pipelines or try to take over entire Russian cities
* 5 years of re-arresting 5 of 7 innocent Russian detainees
* 5 years of being an innocent detainee with Al Zarqawi connections
* 5 years of packing on an average of 20 pounds
* 5 years of not wanting to go home
However...! I cannot bring myself to conclude that the military, the CIA, the White House, etc. have all decided to run around randomly throwing Iraqis and Afghanistanis into jail for the Hell of it. Given the grief they have received about Guantanamo, can't we at least give them credit for a modicum of good faith? That is: they think they are doing what is necessary? Afterall, somebody is shooting at our troops, even if (by some monumental bad luck) we can't catch a single one of them (because, by definition, Guantanamo is full of innocent bystanders).
I take the less brain-twisting, reality-inverting approach. To wit, most (not all) of the detainees are there for a very good reason. How do I know? Because I trust the military to not waste its time on pointless exercises. I like those detainees to stay there for a long, long time, so that they never kill any more Americans. I dislike people who try to hamstring the military in Guantanamo simply because they dislike Bush. Bush did not build Guantanamo. In every war we have fought, we have had prisons for enemy combatants. So what? There are bigger issues at play here than domestic politics. Perhaps that was Cully Stimson's message, eh?
It must be true. Rush, Sean, and (M)ann told him so!
Right: they are in prison, therefore they MUST be guilty. Therefore we should keep them in prison for the rest of their lives without a hearing. Makes sense to me!
Arkan al Karim, one of the people taken to Guantanamo from a Taliban prison where they'd been held since early 2000, got this exact same question at his ARB: "If all of the allegations are false, why are you here at Guantanamo?"
I don't know that all of them are innocent but I know that some of them are. And fortunately, we can treat them as individuals, and separate the innocent from the guilty. This is why we have habeas corpus. This is why we have hearings. This is why we have a right to counsel.
Your position seems to be that unless I can prove NO ONE there is guilty, that everyone there--even those whose lawyers can prove they are not guilty--should "stay there for a long long time".
Five years without charge actually sounds pretty long to me.
Your suggestion that the debate over the innocence or guilt of individual Guantanamo detainees is taking place in some kind of fact-free zone is simply wrong. There is substantial evidence that many of the detainees are innocent. Check out Katherine's comments above. Moreover, its clear that the Bush administration, on several hundred occasions, has concluded that there was no justification for continuing to hold particular detainees. These former detainees have almost never been charged with any crimes upon their return to their native countries. Do you recall the Uigur detainees who became a minor cause celebre? The military held Combat Status Reviews and determined that there was no justification for continuing to hold them and that they were, in fact, innocent. However, because the government could not find any country to accept them they remained in detention at Guantanamo Bay for years.
I think the difference is we are dealing with people that don’t really believe that we’re at war. Part of that may be that because this war is different then most in that we’re fighting largely unlawful combatants (many of whom are unofficially State-supported) in a lot of covert missions across dozens of nations rather than massive mobilizations of armies on a visible battlefield. One poster remarked that the Bush administration considers the whole world to be the “battlefield” as if that were an exaggeration on their part rather than a realization that when you’re dealing with an enemy that is global in nature and deliberately targets civilian populations, then yes the entire world is the “battlefield.”
It is false to say they have not had a hearing. They have.
Moreover, the fact that some detainees were releases provides no evidence that it was improper to hold them in the first place. They are released when we can determine that they pose no further threat to American troops. That is NOT the same thing as a finding that they posed no threat to American troops when they were initially detained.
They did the CSRTs, which were basically show trials:
--no lawyer
--no right to call witnesses who were not fellow GTMO prisoners
--requests to have fellow prisoners testify denied if deemed unduly "burdensome"
--theoretically could cross examine gov't witnesses, but gov't never called a single witness
--no right to see any of the evidence against you except a list of vague charges that "detainee associated with al Qaeda"
--tribunal assumed gov't evidence was true unless you could disprove it
--did I mention no lawyer and no right to see the evidence against you?
--nearly impossible to gather documentary evidence while detained in Guantanamo
--presumption that gov't evidence is accurate applies to any degree of hearsay
--presumption that gov't evidence is accurate applies to evidence obtained under torture
--tribunal was NOT required to prove gov'ts exculpatory evidence was "truthful and accurate"
--definition of "enemy combatant" so broad that included people who the Taliban conscripted at gunpoint, held under guard, and forced to peel potatoes for them.
--in at least one case, interrogators complained that the tribunal was misrepresenting their evidence and the prisoner most likely innocent
--if you somehow convinced your tribunal of your innocence despite this, the gov't could call a do-over.
That’s not exactly true:
In other words these “innocent” Uighur militants were captured while fighting alongside the Taliban and al-Qaeda. We held reviews and determined that their objectives in allying themselves with a terrorist group which attacked the United States was actually to attack China. The reason why they’re still in Gitmo is because (a) China is helping us against Al-Qaeda (a common enemy and the ally of these “innocent” militants) and (b) the only country which is willing to let them into their country is China which we don’t want to turn them over to because (c) it would be seen as our support for China’s crackdown on peaceful support for greater liberalization of religious liberty (a cause the United States does support). Which leaves us in the position of using Gitmo to detain militants who allied themselves with an enemy of the United States but not to attack the United States.
I wouldn't ban people for offending the Language Police, but how is it NOT a "personal insult" to suggest that someone is on the same side as terrorist thugs (an accusation which is made pretty much daily here)?
Can you give me an example of how a terrorist who is dangerous when captured could somehow cease to be captured?
One of the reasons we feel it so important to determine the guilt or innocence of the people at Gitmo is that, barring same, we can be quite confident that they will never be released. If they were fanatical Japanese soldiers captured during WWII, we could be reasonably confident that someday we will sign a peace treaty with the Japanese government and these soldiers will stop wanting to kill us. But we will never sign a peace treaty with al-Qaeda (I assume?) and thus it will never be safe to release the actual terrorists we have in captivity, unless someone can explain to me how they might be rehabilitated.
So it's important to sort out the real terrorists from those who are not, because otherwise we'll be holding some number of innocent people forever. If you think we can wait to sort out the innocent ones until the war is over, just tell me what event you think will mark the end of the war.
(a) We assure ourselves that the person no longer believes that violent jihad is proper.
(b) We release him to a country that agrees to keep an eye on him and not let him travel abroad. (This has happened with some of the detainees.)
This is either a non sequitur or a rather remarkable statement, given that the comment under discussion claimed that most anti-war protestors are "on the other side."
If I say "most conservatives are racists," isn't that an attack on the conservative commentors in the discussion? Shouldn't any moderated comments policy bar such comments? You hardly create a comfortable atmosphere for discussion when you freely allow comments that would provoke a punch in the teeth from most reasonable listeners, and merely bar the punch in the teeth as a response.
What would people think if, over dinner, you casually equated liberals to traitors, or conservatives to racists? That's not a hard question.
How does this happen? Do we talk him out of it?
We signed a treaty with Japan after Japan unconditionally surrendered. I assume that if al Qaeda unconditionally surrenders, we would do the same. It's too bad for the detainees that it doesn't appear that al Qaeda desires to unconditionally surrender, but I don't see why that fact should cause us to release persons who we believe are intent on killing Americans.
I believe that study to the same degree I believe tobacco studies sponsored by cigarette companies.
Sure.
I think Thorley is mischaracterizing what the CSRTs found. If the CSRTs believed these prisoners had actually taken up against arms fought along side al Qaeda in Afghanistan (even if it was only against the N. Alliance rather than the US) they never would have been found innocent. As I said, the CSRT used an incredibly broad definition of enemy combatant, so that forcibly conscripted assistant cooks and humanitarian aid workers who never knowingly supported terrorism qualified....If you would like to learn more about those cases I would recommend actually reading the CSRT transcripts which are available from this link.
I fail to see it as any different than calling people Nazis.
This is addresses in the main post as reason (a) why a lawyer may choose to defend somebody in this situation, but I would like to see it more clearly recognised. I am absolutely in favour of preventing terrorists from striking anywhere (and certainly not "again" for ones the world can prove have already commited such acts). However, in the large sweeping up of bodies that were hauled off to Guantanamo, it is not beyond the realms of possiblity that some non-terrorists were rounded up. Or that their captors stooped to unacceptable levels in their pursuit of capture/detainment/conviction.
I would much rather here the deputy assistance secretary (exactly how far down the chain is this guy?) said something like "I applaud the fact that American lawyers are taking time to be involved in the process. Although these detainees have not yet been convicted of anything and are presumed innocent, we, the government, believe we have sufficient evidence to convict them in a fair and open manner and look forward to demonstrating that in a forum where there will be no doubt that both sides had equally able advocates". His opinion on the result isn't any different, his respect for the people and the system he has chosen to work with is less hidden by his prejudice.
You posted a link to a piece written by two leftist attorneys representing two of the detainees who are trying to persuade people to agree with their case. It should be noted that they classify as “innocent” the same Uigher militants who allied themselves with Al-Qaeda and the Taliban merely because while they allied themselves with the people who attacked our country on 9/11, they did so because they wanted to attack another country.
Except I never said any terrorists should be released. I said we should determine who is a terrorist and who is not, precisely because there will never be a time when we can release the actual terrorists.
You seem determined to indulge the legal fiction that maybe someday, al-Qaeda could conceivably surrender and none of the terrorists would ever menace us again (or maybe we could just talk individual terrorists into changing their minds!) and thus we can pretend the detention is not indefinite, which it clearly is.
The fact that they are not terrorists against us is an interesting point, but does not obviate that they are terrorists.
If we mistakenly captured some ETA terrorists, would it be proper to release them in France?
I believe that you are advocating that we prosecute the war the way we prosecute a criminal. Why? When has the United States (or any other nation, for that matter) behaved this way? Did captured German soldiers at the Battle of the Bulge have access to all the Due Process protections you cite? Why not? Does al Queda get this vast array of special protections just because they refuse to wear a uniform? What does that bode for the future of warfare?
Could it just be that it is literally impossible to fight a war the way you describe? Troops on a battlefield cannot be expected to gather evidence along the way, then be called on to testify at all these "real" hearings that you envision! You advocate a Gordian's Knot of procedures and rules that will only bind our soldiers. The other side will solve that little problem Alexander's way.
War exists in a legal universe that is distinct from peacetime. I'm sure the detention of enemy combatants is covered in the Military Code of Justice.
And I said that's exactly what we are already doing.
To the extent that it is an insult, it is at least slightly depersonalized, and in any event a necessary part of the substantive argument, which is why it doesn't fall in the category of "unnecessary vulgarities or personal insults." I misspoke in some measure when I suggested that this falls in the category of viewpoints that "add value to the discussion when aired." I think it's unfounded enough that it doesn't add value. But what I meant, and still mean, is that it adds value to have it possible for a wide range of viewpoints to be aired here.
On the other hand, it's easy to express pretty much any viewpoint without saying "kiss my ass." That's an unnecessary vulgarity, and I don't want it here.
Lie much? Nowhere in the study are the Uighers classified as "innocent." Indeed, if my pdf reader can be trusted, the word "innocent" does not even appear in the study.
It's also amusing that you believe contributing money to a Democrat makes one a "leftist," but that's a side issue.
But these are not enemies captured by our troops on the battlefield. As we covered above, "battlefield" in this context is nothing but a euphemism for the entire earth. Nor were they even captured by our troops - the Seton Hall study concluded, based upon our government's own documents, that 86% of the 517 detainees at Guantanamo Bay at that time had been turned over to us by Pakistan or the Northern Alliance.
Do you truly think it's appropriate to hold someone without charges for the rest of their natural life, because someone from Pakistan or the Northern Alliance once said they were terrorists, at a time when we were offering large bounties to anyone who turned over a terrorist to us?
I've had it with the mini-Addington's here. There is nothing but presumption of guilt and circular logic.
"We can't hold hearings to determine if they're enemy combatants because they're enemy combatants." "How do you know they were enemy combatants?" "They were captured on the battlefield." "No they weren't, unless you define "battlefield" as synonymous with 'earth.'" "The administration wouldn't hold them if they weren't guilty." "We know for a fact that they have." "Some of them are guilty." "Some of them definitely aren't. Why don't we hold a hearing?" "We can't hold hearings to determine if they're enemy combatants because we're at war and they're enemy combatants. They were captured on the battlefield...."
We can't hold hearings to see if they're terrorists! They're terrorists! The lawyers who support them must love terrorists! There's no other explanation!
Nothing but presumption of guilt and circular logic. Well, as of the other day, it's worked for five years. Why should it stop now?
Actually, I'm quite serious. If the enemy refuses to wear a uniform, and when detained lies to us about his involvement (yes...it happens), what exactly are our soldiers supposed to do? What would you advocate your newly drafted son or daughter do? Keep letting these folks go? You see, this is not in the least theoretical. It is happening everyday to real US soldiers. Some of you have strong opinions about the "wrongness" of what is being done now. So, how should it change? It's all too easy to be a critic.
I was actually conflating my response to another post in which a poster had claimed that the Uigher militants who allied themselves with Al-Qaeda were “innocent.” You are correct insofar that the “report” classifies the Uigher militants who allied themselves with Al-Qaeda as “not enemy combatants.” Which is true in the sense that even though they have allied themselves with the people who attacked the United States, it may have been an alliance of convenience to attack another nation who wasn’t technically part of the “coalition.”
I was actually conflating my response to another post in which a poster had claimed that the Uigher militants who allied themselves with Al-Qaeda were “innocent.” You are correct insofar that the “report” classifies the Uigher militants who allied themselves with Al-Qaeda as “not enemy combatants.” Which is true in the sense that even though they have allied themselves with the people who attacked the United States, it may have been an alliance of convenience to attack another nation who wasn’t technically part of the “coalition.”
I'm sorry to inform you but you also are guilty of the same circularity, just in reverse. You are convinced that the current procedures and protections are inadequate, and let's face it, you are not in the least "open-minded" about that opinion. They have a hearing, and you decide it's not a "real" hearing.
I just fail to understand why people find it so unusual and troubling that US soldiers would be detaining armed men in the immediate area of a battle! (And no, the "Battlefield: Earth!" trope is not convincing.) Once again, someone is shooting and blowing up our troops. Who are they? Where are they? Are you insisting that our troops are incapable of finding any of them? I mean it is just a bizarre suggestion.
So, all it takes to completely flummox the mighty US military is for the enemy to not wear a uniform, and to lie about their activities whenever they are caught. Wow... who knew. Tojo must be spinning in his grave (in Hell, that is).
This whole topic reminds me of the Red Coats, marching in lines, orderly, playing by "the rules" as they are gunned down by our founding fathers.
You had better tell the Bush administration that, because they have released over 700 detainees.
Do they know that they are releasing warrier who have attempted to kill you sons and daughters?
As I stated once before. I am fine with whatever you want to do with all those Guantanamo detainees that our soldiers captured on the battlefield. Summarily execute them, keep them detained forever. What I'm just a tad bit suspicious of is the connection to the Taliban when we offer large rewards to people who bring us Taliban members, and then we hold the reward collectors to no burden of proof whatsoever. Add in the tribal warfare that had gone on a long time, and this is about the equivalent of going into a gang-ridden inner city, and saying we'll give you $5,000 for every gang member you bring us. You're going to get some gang members who are turned in by members of opposing gangs. You're going to get some folks who refused to join a gang, and the gang figures this is a way to make a quick buck, and demonstrate that not joining is bad. Plus you're going to get a bunch of people who just happened to be unlucky enough to make an enemy of somebody unscrupulous enough to collect off of them.
The study doesn't draw any independent conclusion that the Uighers were not enemy combatants, it merely cites the U.S. government's conclusion to that effect.
Which means that your response to the study has been reduced to (1) the two authors made at least one contribution apiece to Democratic candidates, and (2) the study accurately recites the conclusion of the U.S. government that the Uighers were not enemy combatants. Not exactly what I would call a devastating critique.
You seem remarkably unwilling to deal with the fact that 86% of the Guantanamo detainees, according to the U.S. government's own records as reviewed in the Seton Hall study, were detained not by "US soldiers" but by Pakistan or the Northern Alliance, and were turned over to us in exchange for bounties.
If you're going to keep entertaining this fantasy that each and every one of the detainees was seized by the US military in the process of planting a roadside bomb, then we're not going to have much to talk about. One of the purposes of holding fair hearings is to disabuse people like you of such fictional notions.
For the sake of argument (and God knows how much I love that!), I will accept that the Guantanamo detainees have the histories you suggest (ie. 86% handed to us). You are suggesting that this makes their detention suspicious. To this I have only one rebuttal-- why would the US military make itself party to this, if there was good reason to believe that it was frivolous? Are they just stupid? George Bush kind of boneheads? Sadists? Who have to go half a world away to satisfy that urge to degrade?
Or, is it just possible that they have reason to participate in this that have something real to do with national security? Obviously if these people are innocent, who would want to detain them? But I can't really shake the notion that our military is not knowingly in the business of settling other people's petty squabbles. And I can't shake the belief that the people in our military are not idiots.
Bingo!
One of these days everybody will wake up and realize that has always been the case.
This whole topic reminds me of the Red Coats, marching in lines, orderly, playing by "the rules" as they are gunned down by our founding fathers.
(Sigh.) The inflexibility of the Redcoats is so pre-1763 or so. By the time of the Revolution, the British Army was quite capable of stealth, deception, and improvisation on the battlefield. (Not that it ultimately helped them, of course.)
You'd better find a different analogy. Right now you're stuck with one where the perceived Great Power, far from being hamstrung by slavish adherence to convention, is actually capable of bending the "rules" when it sees fit... and still loses the war.
I give up.
Diary Entry of John Adams Concerning His Involvement in the Boston Massacre Trials
March 5, 1773
Prosecutors who want no opposition are generally incompetent, dishonest, or both. I don't know Stimson, so I can't say which of those descriptions applies to him, but one of them almost certainly does.
And that's the kind of lawyer that Bush choses, which doesn't speak well of Bush's integrity.
(Sorry to take the "last word" from John Adams.)
On the other hand if one simply recognizes that the DoD, CIA, etc. are government bureaucracies like any other -- perhaps more necessary bureaucracies than some, but bureaucracies nonetheless -- than all of the things that lead other government agencies to err should be placed on the table. So, institutional incentives, tunnel vision, information problems, scarce resources, etc. are all explanations for why a) there are likely some innocent folks in Guantanamo, b) the government is not releasing all innocents with alacrity and dispatch, c) due process is a lower concern than other priorities, and so on, even though these agencies are largely headed by intelligent, upstanding folks.
One does not have to be antagonistic to the Bush Administration or unsymapthetic to the GWOT to realize the latter assumption leads to a far more accurate picture of the real world, including the behavior of defense agencies. Good intentions hardly ensure good results.
JHA
1) an FBI background check security clearance
2) strict compliance with a court order prohibiting misuse of classified information.
If the lawyers prove to be untrustworthy terrorist conspirators their clearances will be revoked and they will the ability to represent their clients; if they violate the protective order they will the lose the ability to represent their clients.
However as a practical matter, how does one imagine giving these detainees a "fair" hearing? Do they have a presumption of innoncence? 5th ammedment rights? Do you allow hearsay testimony? Direct cross examination? Chain of custody challenges? Do enemies have Miranda rights?
Perhaps this seems like reductio ad absurdum, but once you expose the civilian courts to the matter, I don't see anyway to stop it. Certainly any deviation from our civilian principles will be (and has been) portrayed as evidence of further injustice.
Alternatively, if you're prepared to relax the process, aren't you fundamentally trusting in the good faith of the US Armed Forces? If you're willing to trust them, why aren't the current hearings sufficient?
And if you don't trust the US Armed Forces and therefore aren't willing to relax the process, then you want civilian rules of justice to be applied on the battlefield. I have a couple of questions:
1) Do you believe a war can be won under such self-imposed restrictions? Can you point to any historical examples to justify that belief?
2) What do you believe will be the effect on the military's willingness to take prisoners in future operations? If you make the reasonable inference that these changes will increase the likelihood of people being killed instead of captured and you also believe that innocent people are routinely being caught up in US Military operations, why do you believe these changes will decrease the net injustice resulting from prosecution of the war?