pageok
pageok
pageok
Defending Guantanamo Detainees:

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.

Katherine (mail):
1) A number of prisoners are actually represented by Federal Public Defenders. I wonder if there's going to be comparable pressure on them? I would assume that Federal P.D.s are pretty well insulated, but they are federal employees.

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.
1.12.2007 3:18pm
Harry Eagar (mail):
Well, OK, but in the name of social cohesion, can we ask the lawyers who manage to help spring these guys to at least apologize for (I guess) misjudging the character of their clients when the clients end up renewing their attacks on us, as they seem to do?

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'.
1.12.2007 3:25pm
Ken Arromdee:
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.

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.
1.12.2007 3:29pm
Steve:
I do not agree that the Islamic assault on civilization is a 'crime' that can be 'dealt with' by 'going to court.'

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.
1.12.2007 3:31pm
Arvin (mail) (www):
Well, OK, but in the name of social cohesion, can we ask the lawyers who manage to help spring these guys to at least apologize for (I guess) misjudging the character of their clients when the clients end up renewing their attacks on us, as they seem to do?

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.
1.12.2007 3:42pm
pmorem (mail):
Jonathan Adler's thread below included a list of the firms involved, retrieved through google in a matter of minutes. I offer that there's something else involved, and a motivation you left out:

They're getting paid to do it. Certain countries (KSA) pay very well for people to do their dirty work (Jimmy Carter, $5M).
1.12.2007 3:42pm
Patrick S Lasswell (mail) (www):
Regrettably in the current climate of civics education and patriotism, the most compelling argument in favor of defending the United States is that it is the most profitable nation on earth. While CEO's cannot run a multinational corporation with impunity from his Board of Directors and shareholders on patriotic grounds, they can support the United States on the basis of profitability. In the era of activist shareholders, profit is patriotism in the corporate world.

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?
1.12.2007 3:44pm
ed in texas (mail):
Lost in all of this is the distinct possibility that a corporate client might actually prefer to hire legal help based on their pro-bono activities.
It's as least as likely as the other way around...
1.12.2007 3:49pm
Elliot123 (mail):
Patrick,

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.
1.12.2007 3:51pm
Hans Bader (mail):
It's ironic how we're supposed to not hold the fact that the lawyers are defending terrorists against them, even though defending conservative or even moderate causes gets law firms ostracized and blacklisted by bar associations and legal consortiums.

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.
1.12.2007 3:51pm
CaDan (mail):
This post is one of the reasons Prof. Volokh is Da Man!

(MPEX is the other :-) )
1.12.2007 4:02pm
PersonFromPorlock:
I have to wonder: should articles of impeachment be brought against Mr. Bush, how would the White House regard Speaker Pelosi's suggesting that companies not do business with any law firm representing him?
1.12.2007 4:04pm
Adeez (mail):
"I do not agree that the Islamic assault on civilization is a 'crime' that can be 'dealt with' by 'going to court.'"

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.
1.12.2007 4:15pm
Bob from Ohio (mail):
As I said in Adler's thread, these lawyers have and are making a political statement. So, political pushback is to be expected.

I dare say they, and their lawfirms, will survive this brutal "pressure" that a mid level totally unknown DOD official is inflicting on them.
1.12.2007 4:16pm
Henri LeCompte (mail):
Hans Bader:
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?
1.12.2007 4:29pm
Yinka Double Dare:
Gee Adeez, didn't you get the memo? The Saudis have an Overarching Interest Lurking beneath the surface and their king is generally friendly to us. Saddam had the same Overarching Interest Lurking beneath his country, as does Iran, but their rulers were/are dickheads to us.

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.
1.12.2007 4:30pm
Steve:
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.

Name me one American who believes all the Guantanamo detainees are innocent. One name will do.
1.12.2007 4:36pm
pedro (mail):
One thing that strikes me as incredibly and alarmingly silly is the extent to which Communists get demonized in the United States in as uniform a fashion as Nazis or racists are. Having grown up in contact with some people with misguided but rather earnest and idealistic sympathies for the goals of communism in Latin America, I imagine I am simply well equipped to dismiss some broad brush generalizations as uninformed. There are and have been many individuals deserving of the ideological epithet of "Communists" who are nonetheless at heart profoundly moral and who do not endorse violent means of transforming societies, just like there are libertarians who have on occasion advocated the "judicious" use of torture, and political pundits that take pride in their love for Democracy and Republic who nonetheless preach the wisdom of transforming the Middle East by means of invading countries.
1.12.2007 4:38pm
Steve:
I offer that there's something else involved, and a motivation you left out:

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.
1.12.2007 4:40pm
Katherine (mail):
"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?"

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.
1.12.2007 4:44pm
Katherine (mail):
(some of them are guilty of course--but some of them are manifestly not, and this is what we have hearings for. I couldn't guess at the percentages fall into each category, because the gov't keeps all of its evidence secret.)
1.12.2007 4:46pm
A.S.:
(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.

Jeez. Could Prof. Volokh BE any more naive?

They're doing it for ideological reasons. Anything to oppose Bush. Period. End of story.
1.12.2007 4:48pm
Caliban Darklock (www):
There's a certain concept in the legal field which is critical to its operation.

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.
1.12.2007 4:51pm
Hattio (mail):
Henri LeCompte,
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.
1.12.2007 4:56pm
Steve:
Jeez. Could Prof. Volokh BE any more naive?

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.
1.12.2007 4:58pm
Arvin (mail) (www):
Jeez. Could Prof. Volokh BE any more naive?

They're doing it for ideological reasons. Anything to oppose Bush. Period. End of story.

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.
1.12.2007 4:59pm
Ship Erect (mail) (www):
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.

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?
1.12.2007 5:01pm
Thorley Winston (mail) (www):
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.


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.
1.12.2007 5:03pm
A.S.:
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.


Let's see. Straw, straw, straw, straw, and straw. Nice argument!
1.12.2007 5:03pm
BobNSF (mail):
Odd. I've always thought that a firm's willingness to fight for even the most odious client was a selling point. (This may not apply to some firms and organizations which exist solely to promote a particular political goal.)
1.12.2007 5:13pm
Anderson (mail) (www):
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.

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.
1.12.2007 5:16pm
Ship Erect (mail) (www):
Thorley Winston: Much the same way most antiwar protesters don’t really care about peace, they’re just on the other side

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!
1.12.2007 5:20pm
Steve:
Much the same way most antiwar protesters don’t really care about peace, they’re just on the other side.

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.
1.12.2007 5:22pm
r78:

the people who are detained in Guantanamo are warriors who have attempted to kill your neighbors sons and daughters.

Oh really? Then why has the US Govt. released over 700 of them?
1.12.2007 5:30pm
plunge (mail):
"It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role."

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.
1.12.2007 5:32pm
jallgor (mail):
First, I would be very surprised if any of the truly big-name, quality firms are getting paid for this work. It is much more likely that they are all doing this work pro bono.
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.
1.12.2007 5:34pm
Anderson (mail) (www):
I think even very conservative firms would be loathe to shut the pro bono porject down for many different reasons

Yeah. I mean, Covington &Burling? Pot-smoking hippies, they.
1.12.2007 5:41pm
Eugene Volokh (www):
Steve: There are lots of viewpoints that I very much dislike (and factual claims that I disagree with), but that I think add value to the discussion when aired. But I'd like to see all opinions on this blog, whether good or bad, sound or foolish, expressed without unnecessary vulgarities or personal insults. That's why it's easier to get banned from this blog for form than for ideological content.

Eugene
1.12.2007 5:45pm
Birdman2 (mail):
Hans Bader correctly notices the essential equivalence of the Stimson comments and the tactics used by critics of the Maslon firm (with the caveat that at least most of those who would punish the Maslon folks are in the private sector rather than the Government). However, it's unclear to me where he wants to go with that equivalence. I would think the point is that NEITHER the Maslon critics nor Stimson is acting properly -- not that given the one, the other is OK.
1.12.2007 5:50pm
Katherine (mail):
Isn't "on the other side" a personal insult? Or can you just collectivize everything, put it in the third person, and put yourself in the clear?

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.
1.12.2007 5:58pm
A.S.:
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.

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...
1.12.2007 6:00pm
AntonK (mail):
Another grave milestone was reached this week...
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
1.12.2007 6:07pm
Henri LeCompte (mail):
Look. It is entirely true that I do not know for a fact that all of the detainees at Guantanamo are genuine enemy combatants. Just like folks on the other side don't know they are not. There is a massive absence of facts upon which to build any conclusions. In this sense, Guantanamo is more like a political Rorschach test than anything else. People see what they want to see.

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?
1.12.2007 6:09pm
Adeez (mail):
"the people who are detained in Guantanamo are warriors who have attempted to kill your neighbors sons and daughters."

It must be true. Rush, Sean, and (M)ann told him so!
1.12.2007 6:11pm
Elliot123 (mail):
I've often wondered if states respecting the rule of law can only be established by acting outside the rule of law. Is it possible we have to act contrary to the principles we wish to protect in order to provide an environment in which they are respected? Might we have to act very differently on and outside our borders than within them? Would you rather have Ramsey Clark on that border or a 19-year-old US Marine?
1.12.2007 6:25pm
Katherine (mail):
"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."

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.
1.12.2007 6:32pm
Anon. Lib.:
Henry,
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.
1.12.2007 6:36pm
Thorley Winston (mail) (www):
Bush did not build Guantanamo. In every war we have fought, we have had prisons for enemy combatants. So what?


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.”
1.12.2007 6:37pm
A.S.:
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.

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.
1.12.2007 6:40pm
Katherine (mail):
Sorry, I misspoke. I should have said without a real hearing.

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.
1.12.2007 6:50pm
Thorley Winston (mail) (www):
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.


That’s not exactly true:

Although Washington monitored the actions of the militant Uighur groups prior to the attacks on the World Trade Center and the Pentagon on September 11, 2001, they were not seen as a threat to U.S. objectives in the region. This changed after Uighur militants were captured and killed during the invasion of Afghanistan while fighting alongside the Taliban and al-Qaeda. There are reportedly two dozen Uighur militants being held at Guantanamo Bay who were captured during fighting in Afghanistan.

While Washington's long-term goals for Xinjiang were little altered by the new "war on terrorism," it became difficult to reconcile support for Uighur freedoms and the desire to eliminate any group that aligned itself with al-Qaeda. Although many in Washington were skeptical that any Uighur groups would attack outside of the Xinjiang region, they also hoped to exploit any ties that might exist between these groups and al-Qaeda. This put Washington in the uncomfortable position of cooperating with China on Xinjiang affairs or ignoring possible opportunities to weaken the operational capabilities of Osama bin Laden's organization.


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.
1.12.2007 6:55pm
Katherine (mail):
If the whole world is a "battlefield," then saying that someone was captured on the "battlefield" conveys no information at all--except maybe that they were captured on earth rather than on a space ship. Since it conveys no information, it's not much justification for someone's imprisonment. So when people tell me "they were captured on the battlefield!" I like to give them the benefit of the doubt and assume that they don't know this--the alternative is that they're deliberately trying to deceive people.
1.12.2007 6:59pm
Mark Field (mail):

There are lots of viewpoints that I very much dislike (and factual claims that I disagree with), but that I think add value to the discussion when aired. But I'd like to see all opinions on this blog, whether good or bad, sound or foolish, expressed without unnecessary vulgarities or personal insults. That's why it's easier to get banned from this blog for form than for ideological content.


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)?
1.12.2007 7:04pm
Steve:
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.

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.
1.12.2007 7:05pm
A.S.:
Can you give me an example of how a terrorist who is dangerous when captured could somehow cease to be [after being?]captured?

(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.)
1.12.2007 7:11pm
Steve:
Steve: There are lots of viewpoints that I very much dislike (and factual claims that I disagree with), but that I think add value to the discussion when aired.

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.
1.12.2007 7:12pm
Steve:
We assure ourselves that the person no longer believes that violent jihad is proper.

How does this happen? Do we talk him out of it?
1.12.2007 7:13pm
Mark Field (mail):
In a probably futile attempt to introduce some facts into this discussion, here's a link to the Seton Hall study of the Guantanamo detainees. Before people go throwing around assertions about battlefield captures, hearings, guilt, or anything else, they ought to read this study and at least have a factual basis for the claim.
1.12.2007 7:13pm
A.S.:
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.

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.
1.12.2007 7:14pm
A.S.:
In a probably futile attempt to introduce some facts into this discussion, here's a link to the Seton Hall study of the Guantanamo detainees.

I believe that study to the same degree I believe tobacco studies sponsored by cigarette companies.
1.12.2007 7:15pm
A.S.:
How does this happen? Do we talk him out of it?

Sure.
1.12.2007 7:16pm
Katherine (mail):
Actually, the Uighurs cleared by the CSRTs were sent to Albania, which miraculously agreed to take them the weekend before the DC Circuit held oral arguments on their case. There are a dozen others who were found to be enemy combatants, although there seem to be no factual difference at all between their cases--they were turned in by the same bounty hunters &gave substantially identical testimony during their CSRTs.

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.
1.12.2007 7:17pm
Katherine (mail):
By the way--however futile it is trying to get people to look at the evidence about this--do I come off as insincere, inspired only by my irrational hatred of the President or my love of terrorists?
1.12.2007 7:20pm
A.S.:
What would people think if, over dinner, you casually equated liberals to traitors, or conservatives to racists? That's not a hard question.

I fail to see it as any different than calling people Nazis.
1.12.2007 7:21pm
Malcolm Tredinnick (mail) (www):
It's difficult to say this without sounding high-brow, but during my trips to the USA and reading commentaries published by its journalists and participating citizens, it is very clear how much people like the fact that the US was founded and is run on certain principles. This includes "innocent until proven guilty" (along with "we take this truth to be self-evident. That all men are created equal", which has clearly gone out of fashion as a guiding light in policy making). So I am more disturbed by the assumption in the quote Professor Volokh had at the start of the article: the speaker is assuming all the detainees are guilty, despite the almost complete lack of trials, convictions or even reasonable transparency of process. The irresponsibility and abuse of position inherent in that statement is fairly offensive, despite being official policy.

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.
1.12.2007 7:25pm
Thorley Winston (mail) (www):
In a probably futile attempt to introduce some facts into this discussion, here's a link to the Seton Hall study of the Guantanamo detainees.


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.
1.12.2007 7:29pm
Steve:
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.

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.
1.12.2007 7:31pm
A.S.:
I don't find the Uigars very sympathetic. The are terrorists. They were in Afghanistan learning how to fight.

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?
1.12.2007 7:32pm
Katherine (mail):
Malcolm--Stimson doesn't say that because they do not, in fact, ever intend to charge a majority of them. Maybe 75-80. Stimson has previously stated that the rest, though never tried, "could be held for the duration of their lives" as enemy combatants.
1.12.2007 7:33pm
Henri LeCompte (mail):
Katherine:
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.
1.12.2007 7:33pm
A.S.:
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.

And I said that's exactly what we are already doing.
1.12.2007 7:34pm
Eugene Volokh (www):
Katherine, Mark Field: Suggesting that most people who are anti-war are on the other side strikes me as wrong and potentially insulting (though the "most" may mitigate the insult but not the error). But if that's the viewpoint that one is trying to express, it's hard to express it without saying that.

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.
1.12.2007 7:39pm
Steve:
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.

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.
1.12.2007 7:39pm
Steve:
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!

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?
1.12.2007 7:46pm
Katherine (mail):
There is actually a method for screening people on the battlefields that the military used to use. Article 5 hearings, they're called--the technical purpose is to screen illegal belligerents from POWs but in previous wars we also used them to separate civilians from combatants. But we didn't hold them:

Just a few months after the Guantánamo detention centers were established, members of the Administration began receiving reports that questioned whether all the prisoners there were really, as Secretary of Defense Donald Rumsfeld had labelled them, “the worst of the worst.” Guter said that the Pentagon had originally planned to screen the suspects individually on the battlefields in Afghanistan; such “Article 5 hearings” are a provision of the Geneva Conventions. But the White House cancelled the hearings, which had been standard protocol during the previous fifty years, including in the first Gulf War. In a January 25, 2002, legal memorandum, Administration lawyers dismissed the Geneva Conventions as “obsolete,” “quaint,” and irrelevant to the war on terror. The memo was signed by Gonzales, but the Administration lawyer said he believed that “Addington and Flanigan were behind it.” The memo argued that all Taliban and Al Qaeda detainees were illegal enemy combatants, which eliminated “any argument regarding the need for case-by-case determination of P.O.W. status.” Critics claim that the lack of a careful screening process led some innocent detainees to be imprisoned. “Article 5 hearings would have cost them nothing,” the Administration lawyer, who was involved in the process, said. “They just wanted to make a point on executive power—that the President can designate them all enemy combatants if he wants to.”

Guter, the Navy JAG, said that, before long, he and other military experts began to wonder whether the reason they weren’t getting much useful intelligence from Guantánamo was that, as he puts it, “it wasn’t there.” Guter, who was in the Pentagon on September 11th, said, “I don’t have a sympathetic bone in my body for the terrorists. But I just wanted to make sure we were getting the right people—the real terrorists. And I wanted to make sure we were doing it in a way consistent with our values.”

While the JAGs’ questions about the treatment of detainees went largely unheeded, he said, the C.I.A. was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantánamo to find out why more intelligence wasn’t being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didn’t belong there. He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantánamo and would be indefinitely. “This is a violation of basic notions of American fairness,” Gordon and Bellinger argued. “Isn’t that what we’re about as a country?” Addington’s response, sources familiar with the meetings said, was “These are ‘enemy combatants.’ Please use that term. They’ve all been through a screening process. We don’t have anything to talk about.”


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?
1.12.2007 7:48pm
Henri LeCompte (mail):
I'm curious-- for those of you who think Guantanamo is some sort of abomination, what do you propose we do with people we catch on the field of battle? What do you propose we do with men whom we detain in the immediate area of the battlefield and whom we suspect to be giving aid and support to the enemy? Secretly videotape them, then use the tapes to put them on trial? Let them go, and hire a private investigator to follow them and find out what they're really up to?

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.
1.12.2007 7:53pm
Thorley Winston (mail) (www):
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.


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.”
1.12.2007 7:54pm
Thorley Winston (mail) (www):
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.


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.”
1.12.2007 7:54pm
Henri LeCompte (mail):
Katherine:
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.
1.12.2007 8:26pm
r78:
Hey LeCompte -

the people who are detained in Guantanamo are warriors who have attempted to kill your neighbors sons and daughters.

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?
1.12.2007 8:33pm
Hattio (mail):
Henri LeCompte,
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.
1.12.2007 9:03pm
Steve:
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.”

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.
1.12.2007 9:04pm
Steve:
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!

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.
1.12.2007 9:09pm
godfodder (mail):
Steve:
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.
1.12.2007 11:36pm
Harry Eagar (mail):
Adeez sez: '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.'

Bingo!

One of these days everybody will wake up and realize that has always been the case.
1.12.2007 11:37pm
SlimAndSlam:
Henri Lecompte:

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.
1.13.2007 12:00am
Steve:
Obviously if these people are innocent, who would want to detain them?

I give up.
1.13.2007 12:25am
Katherine (mail):
Yes, I am close minded in the sense of impossible to convince. The thing is, my conclusion that CSRTs are not real hearings, and that there are innocent people there, and that most of the prisoners were not captured on a battlefield, and all the rest are based on readings tens of thousands of pages of CSRT transcripts, ARB transcripts, court documents, news stories, books etc. and remembering them. It is based, in short, on evidence. Your opposite conclusions are based on a presumption of guilt that no amount of evidence to the contrary will budge. You don't actually seem to know any specific relevant facts--just: people shot at our troops in Afghanistan, and now there are a bunch of prisoners in Guantanamo who we say are terrorists and enemy combatants. From this, you conclude that they must be guilty and they deserve no hearing. I can give you contrary evidence till I'm blue in the face; it will have no effect.
1.13.2007 12:35am
r78:
Katherine - what's your blog?
1.13.2007 1:17am
Katherine (mail) (www):
URL is linked to this post. I don't really post there any more (though many good writers do). Lots of stuff in the archives though.
1.13.2007 1:25am
steve (mail):
Maybe we should give John Adams the last word:


I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, a sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.

Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read...It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour....

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.


Diary Entry of John Adams Concerning His Involvement in the Boston Massacre Trials
March 5, 1773
1.13.2007 6:36am
Public_Defender (mail):
Good prosecutors have the confidence to face quality opposition.

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.)
1.13.2007 7:20am
Justin (mail):
I'm not sure that deserves a serious answer, godfather, but you have to at least consider the possibility that the administration doesn't care about the error rate of their torture-interrogation system so long as the rate isn't 100%.
1.13.2007 9:15am
Jonathan H. Adler (mail) (www):
I find it interesting how many people make the assumption that the only potential explanation for the detention of innocents in Guantanamo, or the deprivation of due process in prosecuting detainees, would be delibertate malfeasance. Once this assumption is made, if one generally believes the DoD, CIA, etc. are acting in good faith in an effort to protect the country, then one is forced to assume that everything at Gitmo is as it should be.

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
1.13.2007 10:00am
Bob from Tenn (mail):
How about Lynn Stewart? And the National Lawyers Guild?
1.13.2007 10:40am
Katherine (mail):
In response to the invocations of Lynne Stewart--to visit GTMO and speak to your client requires:

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.
1.13.2007 12:34pm
SG:
It's almost a certainty that innocent people have been captured and detained. (I'm less certain that there are innocent people at Gitmo as they're are hearings before transferring prisoners to Gitmo. But I wouldn't be terribly surprised if there were innocents there, either.). But that would hardly be the first, or worst, injustice in the history of warfare.

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?
1.13.2007 2:02pm
SG:
And even if you don't beleieve the current struggle is (or should be) a war, please recognize that it is being prosecuted as a war and you're establishing a precedent that will demand to be applied to future wars. Perhaps even a war that you would support.
1.13.2007 2:15pm
Peter Wimsey:
Henri LeCompte

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.


[rant]
This is another demonstration of what I believe is the single biggest failing of the US educational system. The colonies did not fight the revolutionary war by hiding behind trees and sniping at units in lines. In fact, the colonies kept losing battles until they learned how to line up and fight like a regular army - that's why there are various statues of General von Steuben scattered about the US, since he taught the troops how to fight this way. And in the civil war, troops were still fighting in lines (somewhat less tight lines, though). Given the military technology available, this was the best way to fight. [/rant]

Sorry, but I just hate this piece of misinformation, which I suspect keeps getting passed along because it's so easy for fourth graders to understand.
1.13.2007 2:27pm
Elliot Reed:
SG - I don't have an elaborate theory about this. But let's remember that the President's position was initially that (a) no "enemy combatants" deserved any kind of hearing and (b) he had sole, unreviewable discretion as to the determination of who is an enemy combatant.

The President's position, had it been accepted, would have been a license for the President to lock up anyone on the basis of nothing more than his say-so. Absolutely nothing would have prevented the President, had he been so inclined, from determining that every politician who opposes him is an "enemy combatant" and ordering them locked up. The current President doesn't seem to have been so inclined, but I'm not ready to trust every future President with such power.

Later modifications of this position have all amounted to the President attempting to give those he has accused the absolute minimum amount of process legally/constitutionally/politically feasible. Some of the rules of the CSRT's, particularly the rule allowing the admission of confessions obtained under torture, are more than sufficient to establish the CSRT's as little more than kangaroo courts. And "little more than" is charitable. In other words, the President and the right do not seem to be engaged in a good-faith effort to determine what level of process is reasonable, but in an effort to give the President the maximum amount of power possible. There is no reason for me or my allies on the left to engage such people as though they are acting in good faith.
1.13.2007 3:27pm
JimG:
The trouble with this discussion is that there are indeed many axes being ground. How about a narrow focus on the original issue that apparently motivated Cully Stimson? Why is it that nobody seems to focus on how far and widely no few of the detainees' lawyers have gone beyond legal representation. Does a lawyer's duty to do some pro bono work obligate his paying clients to support that work? If so, doesn't the paying client have any say in the extra-legal aspects of representing pro bono clients? Is it ethical to abet or even foment suicides by detainees, presumably because that will increase public pressure on the US government? Is it ethical to give public interviews in Middle East countries, voicing criticisms that incite local anger and violent demonstrations against innocent tourists, businesses or US officials and their families? Is it ethical to abet the activities of terrorist organizations by smuggling correspondence to/from detainees? There's enough public record now for the legal profession itself to look at the lawyers' actions inside the detainee camps and abroad -- How about it?
1.13.2007 3:39pm
Anderson (mail) (www):
I find it interesting how many people make the assumption that the only potential explanation for the detention of innocents in Guantanamo, or the deprivation of due process in prosecuting detainees, would be deliberate malfeasance.

Not in 2002, say. But at some point, as they say, the cover-up becomes the crime. I don't believe we deliberately grabbed people for the hell of it; I do believe that we have deliberately lied to or misled the public to cover up our initial shoddiness and fearmongering.

Once Rummy said that all the detainees were the worst of the worst, that became the official line, and correcting errors threatened the Pentagon's &the White House's prestige.

Factor that typical gov't attitude with this administration's pathological "us v. them" attitude, and deliberate malfeasance (or, at the most generous, gross negligence, i.e. a wanton disregard for the facts that might as well be deliberate) becomes plausible.
1.13.2007 7:28pm
Mark Field (mail):

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?


As I said above, I think it's important that everyone agree on the facts; that's why I linked above to the Seton Hall study.

SG, only 5% of the Gitmo detainees were captured by US forces. Most of them (86%) were turned over to us by Pakistanis and Northern Alliance forces in return for rewards. I think these basic facts moot most of the questions you've asked.

As for the hearing necessary, that depends on the circumstances. If US troops capture the prisoner and say he was shooting at them, that's enough for me (though even then I'd give the prisoner some opportunity to show there was a mistake). I don't see how this imposes much burden -- it's the same question the CO would ask anyway. Conversely, I'd demand a good deal more evidence if the Pakistanis turned someone over to me, especially if they demanded a reward.
1.13.2007 7:44pm
SG:
Part of the problem here is the inability (or unwillingness) to distinguish between peacetime and war. The detainees don't have to be guilty of anything other than a belief on the part of the military that they would pose a threat if released.

This is hardly a unique interpretation of wartime authority. Ask any of the Japanese-Americans that FDR interned or the Copperheads that Lincoln had arrested. (Note: this doesn't make it good policy. Again, ask any Japanese-Americans that FDR interned). If you have a problem with this, the correct response is not to neuter the executive's war making powers, but to try to get the AUMF revoked.
1.13.2007 11:39pm
Mark Field (mail):

Ask any of the Japanese-Americans that FDR interned or the Copperheads that Lincoln had arrested. (Note: this doesn't make it good policy. Again, ask any Japanese-Americans that FDR interned).


I can't imagine how you think these examples help your case. I think of them as mistakes we'd like NOT to repeat.
1.14.2007 12:06am
SG:
I'm not arguing that's the current situation is good from a policy standpoint, only that it's a legitimate application of wartime authority.

You and others are not arguing that this is bad policy, you'e arguing that the law should be changed such that prisoners have access to counsel and the right to appeal their detntions in civilian court. That's a sea change in how prisoners of war are handled. And because it's being done through the courts and not through the political process, it will have precedential value in the next war.

I mean, come on. Democrats control both houses of Congress. Pass a bill granting prisoners captured pursuant to the AUMF to whatever amount of process you deem sufficient. Even if it's vetoed, you've changed the political backdrop against which these prisoners are being held.

But to assert that, contrary to all history, law and reason, that prisoners of war are entitled access to civiilian courts is a very different argument. And a very bad one, not just for this war, but for any future wars.
1.14.2007 10:08am
Public_Defender (mail):
But to assert that, contrary to all history, law and reason, that prisoners of war are entitled access to civiilian courts is a very different argument. And a very bad one, not just for this war, but for any future wars.

There is a big difference between arguing about what the law should be, and arguing about whether someone should have access to pro bono counsel to assert whatever rights they may have.

Permitting the detainees to have access to lawyers to argue their case doesn't mean that the detainees will win anything. It just means they have a shot at getting whatever the law entitles them to (which may be nothing).

We lawyers are actually very weak. We can't storm the gates at Gitmo. We can't break down the doors of the Pentagon. All we can do is file papers making arguments. And those arguments are only as strong as the facts and the law make them. Why are Bush and Stimson afraid of the facts and the law?
1.14.2007 11:36am
Harry Eagar (mail):
Some of the men in custody were imprisoned because they are suspected and/or accused of crimes -- Khalid, for example. They get lawyers.

The rest are not in custody because they are suspected/accused of crimes but because they were collected on the battlefield. They don't get lawyers, or shouldn't. No American -- and there have been lots of them in the same situation -- ever got a lawyer.

SG has got it.
1.14.2007 12:41pm
r78:
Adler wrote:

On the other hand if one simply recognizes that the DoD, CIA, etc. are government bureaucracies like any other ..

That is true but I would submit that is all the more reason to put some sort of adversarial fact finding process in motion to promptly sort out those who should be released.

You could use the bureaucracy argument, for example, to defend Mike Nifong if he decided to lock up the entire Duke Lacrosse team for several months while all of the "evidence" was sorted out.

Of course, citizens in criminal proceedings enjoy a number of legal protections that the detainees lack, of course. But that is why the criminal law procedure moves along with swiftness compared to what is happening in Gitmo.

No, I am no saying that all the detainees should be charged or release within 30 days or something. But the absence of virtually any external check on the power of those imprisoning people in Guantanamo is a virtual guarantee that the process will drag on for years as it has done.
1.14.2007 1:26pm
SG:
Public_Defender:

The law is quite clear. The US has taken prisoners in war throughout its history and never have the prisoners had recourse to civlian courts to challenge the military's determination of their status. The actions currently happening are not simply an exercise of the prioner's rights, they are a modern invention of new priosoner rights.

In fact, there's a reasonable argument that giving prisoners a civilian hearing where they can challenge the military's determination of their status as an enemy combatant is a de facto trial for the crime of being a combatant, something forbidden by Geneva (as being a combatant is not a crime).

My point is not that the current situation is just , my point is that war legalizes injustice (the reason I pointed to the obvious injustice of FDR's internment of Japanese-Americans). Does anyone think that the Islamists that were slaughtered wholesale from 15,000 feet in Somalia last week received any due process? Of course not. But it was legal. No crime was committed. Soldiers are not serving warrants. Prisoners are not (necessarily) criminals.

This blurring of the line between war and peace is a dangerous practice. The danger is limited to harming the nation's ability to prosecute a war, either. I would hate to see wartime notions of due process become acceptable in peacetime.

BTW, for all those who complain (?) that the people haven't been asked to sacrifice for the war, this is a prime example of where we are asked. We have to, for the duration of the war, scarifice the application of some of our concepts of justice. War unfortunately renders them inapplicable. And is there anyone here who wouldn't agree that that is a true and meaningful sacrifice?
1.14.2007 1:34pm
SG:
The danger is not limited to harming the nation's ability to prosecute a war, either.
1.14.2007 1:53pm
Mark Field (mail):

My point is not that the current situation is just , my point is that war legalizes injustice (the reason I pointed to the obvious injustice of FDR's internment of Japanese-Americans). Does anyone think that the Islamists that were slaughtered wholesale from 15,000 feet in Somalia last week received any due process? Of course not. But it was legal. No crime was committed. Soldiers are not serving warrants. Prisoners are not (necessarily) criminals.


I think a good deal of the disconnect here is that those of us in favor of counsel recognize that most of the detainees were NOT "battlefield captures" by US forces. Nobody is really arguing about those.

What we have at Gitmo is instead a group of people who came there by various, inconclusive routes. There's a serious question whether they should be held at all, as evidenced by the fact that the Administration has regularly released prisoners from there after holding them for very long periods of time.

As for the Japanese internment, I guess I don't see the analogy. Whatever the ruling in Korematsu, I seriously doubt it would be the same today. That internment is not evidence of Administrative power, it's evidence of power it lacks. Note that when there were situations in WWII analogous to our's today -- e.g., the Nazi saboteurs in Quirin -- they DID obtain legal counsel and also a trial.


We have to, for the duration of the war, scarifice the application of some of our concepts of justice.


This "war" is like the "war on crime". It doesn't stop. It never stops. Your demand is that we give up rights forever.


And is there anyone here who wouldn't agree that that is a true and meaningful sacrifice?


Sacrifice is only meaningful if it contributes in some way to the goal. The Bush Administration attack on civil liberties not only fails to advance the goal, it undermines it. Our goal is to demonstrate the superiority of a free society. We can't do that, we'll never do that, by giving up freedom.

Our ancestors sacrificed for these rights -- they fought and died for them. We honor that sacrifice by dedicating ourselves to preserving them.
1.14.2007 3:14pm
Byomtov (mail):
We have to, for the duration of the war, scarifice the application of some of our concepts of justice. War unfortunately renders them inapplicable. And is there anyone here who wouldn't agree that that is a true and meaningful sacrifice?

How is taking away someone else's rights a meaningful sacrifice?

"Gee, SG, we need to lock you up for a while. Can't tell you why, or how long it will be, and there won't be any hearings or any of that nonsense. I know it's a big sacrifice we're making, but I assure you it's worth it."
1.14.2007 3:44pm
SG:
This "war" is like the "war on crime". It doesn't stop. It never stops. Your demand is that we give up rights forever.


No Mark, it doesn't. This war was explicitly authorized by the AUMF. It can be halted by rescinding that authorization. If you don't feel that the most appropriate response to the current threat is war and/or are not prepared to make the scarifices that the war entails, than argue for the recision of the AUMF.

But the fact is that the duly elected commander-in-chief is exercising his legal authority as granted by the Constitution and affirmed by the Congress in a manner perfectly consistent with all historical precedent.

Again, the prisoners are not being held on susipicion of a crime. They are being held because the military has determined them to pose a continuing threat and hostilities have not been declared over. How can the judiciary meaningfully review this miltiary determination? What other miltiary decisions should be subject to civilian judicial review?

It doesn't matter how the prisoners were initially detained. It doesn't even matter if the military's determination is correct. They are not being accused of a crime, and aside from war crimes it would be illegal to do so. To invite the judiciary to begin second-guessing military decisions is to walk a ruinous path.

Do you realize that you're arguing for a dramatic change in how war is waged and prisoners are held; for the warmaking powers of the executive to be checked by the judiciary? You (and others) are making this arguement with little to no concern expressed for how this effects the country's ability to wage this or any future wars. You don't feel this is a war. That's a fine, respectable position. Argue that. But your current position (to wit: we're in a declared war but there needs to be judicial review of the commander-in-chief's decisions) is a really, really bad idea. There's a lot of historical precedent for investing the war-making authority in a single (and democratically elected) office. Don't break that system just because you don't like the current president. He'll be gone in 2 years anyway.
1.14.2007 3:47pm
Harry Eagar (mail):
'It never stops.'

Not so far. It could stop in the next 10 minutes if the Muslims decided to stop it. Or are you in the embrace of some fantasy that the United States is making war on Islam?
1.14.2007 5:19pm
Mark Field (mail):

But the fact is that the duly elected commander-in-chief is exercising his legal authority as granted by the Constitution and affirmed by the Congress in a manner perfectly consistent with all historical precedent.


The nature of the CinC power is precisely what we're debating. Your statement here begs the question.

Your claim about "historical precedent" is hard to evaluate because it's too vague. What specific aspects of Bush's actions are consistent with historical precedent? Paying civilians a bounty for prisoners of war? Holding foreigners indefinitely without even a determination that they are combatants? Refusing to treat captures as POWs, while at the same time claiming that they can be treated as enemy soldiers?

I assure you, none of these is supported by historical precedent.


This war was explicitly authorized by the AUMF. It can be halted by rescinding that authorization.


I was referring to the effort to control terrorism. That's a technique, not an enemy. That effort has no defined ending.


Again, the prisoners are not being held on susipicion of a crime. They are being held because the military has determined them to pose a continuing threat and hostilities have not been declared over.


Nobody has suggested charging them with a crime. The ONLY issue is this: are these men actual enemy combatants? If they are, as I said above, they can be held. I have no problem with that (I do have problems with their treatment).

The problem is that the military has not really made any such determination as you suggest. It is precisely because this "war" is different that more effort needs to be made to ascertain status. Terrorists do disguise themselves within the civilian population. There was no ambiguity about a captured German soldier; there is now. We need some oversight to decide the issue because holding civilians is entirely inconsistent with the goal of winning them over.


Do you realize that you're arguing for a dramatic change in how war is waged and prisoners are held; for the warmaking powers of the executive to be checked by the judiciary?


I have no idea what you mean by this. The judiciary has ALWAYS been involved in questions of combat status. There are British cases from 1740 or so granting habeas corpus to claimed "Spanish prisoners" to decide their status. George Washington didn't just shoot Major Andre, he gave him a trial. Same with the Nazi saboteurs in Quirin and, for that matter, the defendants at Nuremburg. Admiralty courts judged prize cases from day one of our nation's history. What's ahistorical is the claim that this is purely an executive function.


There's a lot of historical precedent for investing the war-making authority in a single (and democratically elected) office.


Except that the Constitution does no such thing. It expressly grants Congress, for example, the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water". These prisoners are "captures". Their treatment is up to Congress, not the Executive. And to assure that their treatment complies with Congressional rules, the courts need to supervise the Executive actions. That's how the system works.
1.14.2007 7:20pm
Public_Defender (mail):
The law is quite clear. . . .

Then neither you nor Stimson should have any fear of good lawyers making arguments to the contrary.
1.14.2007 8:27pm
neurodoc:
Bob from Tenn: How about Lynn Stewart? And the National Lawyers Guild?

How about them what? That if they do not openly "support jihad against America," they make clear their sympathies for those who do? Yes. (We ought not overlook Ramsey Clarke's loathsomeness.) What a pity that Ms. Stewart will be going off to jail for such a short time. She deserves to be there a much longer time, notwithstanding what the judge saw as reasons to punish her less harshly.
1.14.2007 11:08pm
Public_Defender (mail):
In cases involving sensitive national security information, the government has the right to insist on security clearences before granting access to that information. Lynn Stewart couldn't get one. I suspect that many of the lawyers in these big firms could.
1.15.2007 4:13am
SG:
Public_Defender:

Then neither you nor Stimson should have any fear of good lawyers making arguments to the contrary.


And by the same token, if you're innocent you should have nothing to fear from warrantless searches.

Nope, it still sounds foolish.

Mark Field:

Let me start with where we (probably) agree:

* If the prisoners were being held as punishment for a crime, they would have a right to counsel and access to the courts.
* The enemy's tactics present some new challenges in defining appropriate treatment.
* It's quite possible that there are cases of people being held unjustly.
* The current situation may not be ideal from a policy perspective.
* The Congress has the authority to define the treatment and rights of the prisoners.
* The "War on Terror" is a particularly stupid phrase.

However, these prisoners are not being held because they've committed a crime. Quirin/Major Andre are decidedly not analogous. Can you point to any case is US History where an individual POW received access to counsel and the courts to challenge the military's determination of their status?

Congress has spoken about the detainee rights, and in the Detainee Treatment Act they moved to explicitly deny detainees in military custody access to courts for habeas relief or any other action. Of course, that didn't stop the judiciary from inserting itself anyways.

It really sounds like you believe there should be an independent hearing where the military presents its evidence (under what evidentiary rules?) and the judge (or jury?) makes a determination (under what standard?) if the person is a combatant. If they are determined to be a combatant, they can continue to be held, otherwise they must be released.

Leaving aside all the open questions about the process, that sounds a lot like a trial for the crime of being a combatant. That's a big no-no. Being a combatant isn't a crime. Again, they're not being held as punishment for a crime, they're being held because in the military's judgement to release them would pose a risk. Furthermore, given that the military has released (700?) prisoners, it's clear that the determination is not pro forma.

The military's judgement of risk is analogous to choosing bombing targets or setting rules of engagment. That is, they have to conform to certain minimal standards (war crimes) but aside from that, in wartime the military has complete authority. I'm unaware of any historical precedent for these sorts of wartime military judgements being subject to judicial review.

If we do go down this road, where does it stop? Can soldiers sue over rules of engagement? They'd certainly have standing. Which other tactical and strategic decisions would you have subject to second guessing by a judge (or jury) after the fact? Do you honestly believe that will be beneficial to the nation's security?

Like I said before, if you want these prisoners to have additional review of their status, it's well within Congressional authority to grant that to them. What they don't have is a constituional right to that review. If that review is granted by the courts, it seems like it will have to be granted on constitutional grounds because current law denies them that right.

---
BTW, my (perhaps incorrect) rememberance of American history was that initially the American Revolution was generally unsuccessful as the Continental Congress ran it by comittee. It wasn't until they deferred to a single person (George Washington) that there started to be success. This recent experience loomed large in the mind when drafting the Constitution and was the basis behind making the executive be CinC.

War powers were recognized as too important to be left solely to one person, which is why Congress must declare war and can set rules, but within those broad parameters authority was granted to a single person. Surely the disposition of an individual prisoner lies well within the purview of the authority of the CinC. If that's not, then nothing is.
1.15.2007 11:53am
Mark Field (mail):

Let me start with where we (probably) agree:

* If the prisoners were being held as punishment for a crime, they would have a right to counsel and access to the courts.
* The enemy's tactics present some new challenges in defining appropriate treatment.
* It's quite possible that there are cases of people being held unjustly.
* The current situation may not be ideal from a policy perspective.
* The Congress has the authority to define the treatment and rights of the prisoners.
* The "War on Terror" is a particularly stupid phrase.


Agreed.


However, these prisoners are not being held because they've committed a crime. Quirin/Major Andre are decidedly not analogous.


I agree that the prisoners here are not being held as criminals, but neither had the saboteurs in Quirin committed any crime. Even Major Andre had not committed any "crime" in the usual sense.


Can you point to any case is US History where an individual POW received access to counsel and the courts to challenge the military's determination of their status?


Well, first of all, these detainees are not accorded POW status. If the Administration wants to give them that status, then we can avoid this dispute.

Second, yes, as I said above, there are British cases from The War of the Austrian Succession in which such challenges were made. If I get a chance, I'll find the cite.


It really sounds like you believe there should be an independent hearing where the military presents its evidence (under what evidentiary rules?) and the judge (or jury?) makes a determination (under what standard?) if the person is a combatant. If they are determined to be a combatant, they can continue to be held, otherwise they must be released.


Not necessarily a judicial hearing, but some form of neutral tribunal, yes. The exact details of this can be negotiated. As I said above, statements by US troops that they captured the prisoner would satisfy my standards. I would, however, demand more if the captors were Pakistani tribal leaders who received a reward.


Leaving aside all the open questions about the process, that sounds a lot like a trial for the crime of being a combatant.


Not at all. The combatant/non-com distinction is fundamental and the military makes it on an ad hoc basis every day. That's the only distinction to be made at this time, and, as a practical matter, it mostly involves people we did NOT capture.


The military's judgement of risk is analogous to choosing bombing targets or setting rules of engagment. That is, they have to conform to certain minimal standards (war crimes) but aside from that, in wartime the military has complete authority. I'm unaware of any historical precedent for these sorts of wartime military judgements being subject to judicial review.


Except for Nuremburg and the Japanese? Or the laws of war (e.g., Haditha)? Those kind of judgments get made all the time.

Look, let's keep this simple and not veer off into hypotheticals that aren't at issue. I'm not arguing for second-guessing military judgment in all cases. I'm arguing that in this particular case -- a case in which most of the detainees were NOT captured by US troops, but instead were turned over by unreliable sources, and where there is evidence that numerous mistakes have been made in the past -- there is a need for some basic right to a hearing.

Frankly, I don't understand the resistance here. The law already requires a CSRT hearing. All I want is some assurance that this process is something more than a kangaroo court. The Administration has agreed to surrender its virtue, it's just haggling over the price.


Like I said before, if you want these prisoners to have additional review of their status, it's well within Congressional authority to grant that to them. What they don't have is a constituional right to that review. If that review is granted by the courts, it seems like it will have to be granted on constitutional grounds because current law denies them that right.


Depends on the nature of the hearing. Every person has a right to fundamental due process. That's a flexible standard which depends on the circumstances, but it's a Constitutional requirement (the 5th A applies to "persons").


BTW, my (perhaps incorrect) rememberance of American history was that initially the American Revolution was generally unsuccessful as the Continental Congress ran it by comittee. It wasn't until they deferred to a single person (George Washington) that there started to be success.


No, what happened was that they originally tried to supervise Washington and the war through the entire Congress. That did not work, so they created a much smaller committee charged with that responsibility. That committee continued to supervise the war effort for the duration.


Surely the disposition of an individual prisoner lies well within the purview of the authority of the CinC. If that's not, then nothing is.


This is an odd Constitutional argument to make. If the CinC has any such power, it must be inferred from the CinC grant. However, Congress has express power to "make rules concerning captures on land". The most reasonable interpretation is that the dealing with captures is excluded from the CinC power and that the President has no authority except as granted by Congress.
1.15.2007 2:34pm
SG:
I'm arguing that in this particular case -- a case in which most of the detainees were NOT captured by US troops, but instead were turned over by unreliable sources, and where there is evidence that numerous mistakes have been made in the past -- there is a need for some basic right to a hearing.


As a matter of policy, I think that's a quite reasonable position in this particular case, and one that (absent details) I would generally support.

But given that Congress has already explicitly stated that these prisoners are not to have access to the courts, if they are to get a hearing it's because the court has overruled an act of Congress (execrcising one of its enumerated powers, no less). You don't see that as a radical shift in the balance of power between the branches of government? Do you think that such an judicial action would be limited to this one particular case? Don't you see at least the potential for great harm arising from such a precedent?
1.15.2007 3:16pm
Mark Field (mail):

But given that Congress has already explicitly stated that these prisoners are not to have access to the courts, if they are to get a hearing it's because the court has overruled an act of Congress (execrcising one of its enumerated powers, no less).


Courts do this all the time; that's what the Bill of Rights is for. Courts even restrict expressly delegated Congressional powers -- including the broadest ones -- for reasons other than a violation of the BoR (e.g., Morrison).


You don't see that as a radical shift in the balance of power between the branches of government?


As my response above indicates, no. Remember that the 5th Amendment restricts Congress from depriving any person of due process.

Now, that doesn't mean the full panoply of due process rights we citizens have as criminal defendants. "Due process" is a flexible phrase which has to be applied in context. What it does require is some minimal "fair hearing". As I said, the exact terms of that are negotiable, though it's generally the judiciary which sets those terms.


Do you think that such an judicial action would be limited to this one particular case?


Perhaps not. In truth, I don't expect that of Bush v. Gore, notwithstanding the express language to that effect. But I also (good conservative that I am in some cases) agree with Edmund Burke: "It is, besides, a very great mistake to imagine that mankind follow up practically any speculative principle, either of government or of freedom, as far as it will go in argument and logical illation."


Don't you see at least the potential for great harm arising from such a precedent?


See above. More important, it seems fundamentally wrong to ignore present injustice out of a hypothetical concern for future misuse. That's a formula for paralysis.
1.15.2007 4:29pm
SG:
It seems fundamentally wrong to ignore present injustice out of a hypothetical concern for future misuse. That's a formula for paralysis.


No, it's a straightforward balancing of concerns that society does each and every day on a thousand issues. Through the AUMF, Congress has legitimated a different balance than peacetime would require. It's well established that "in Cases of Rebellion or Invasion the public Safety may require" a restriction of the rights of individuals.

Furthermore, moral culpability for any injustice lies solely with those who chose to fight in a way that renders them indistinguishable from innocents. They have caused this whole problem in the first place.
1.15.2007 7:18pm
Public_Defender (mail):
And by the same token, if you're innocent you should have nothing to fear from warrantless searches.

That's just stupid. It might be true if you changed it to say:


If you're innocent, you should have nothing to fear from a lawyer arguing that the government didn't need a warrant to search you."


When I argue search and seizure violations, I don't get mad at prosecutors for making arguments that support the warrantless searches of my clients. That's their job.

Of course, the Left should also think about this when it criticizes law schools for hiring ex-Bush administration lawyers.

One basic rule of litigation is that you don't get to pick your opposing counsel. Stimson doesn't seem to get that.
1.15.2007 7:25pm
Mark Field (mail):

Through the AUMF, Congress has legitimated a different balance than peacetime would require.


I don't think Hamdan left much to the AUMF argument.


It's well established that "in Cases of Rebellion or Invasion the public Safety may require" a restriction of the rights of individuals.


Sure, but (a) the writ of habeas corpus hasn't been generally suspended (the pseudo-suspension in the torture bill has yet to face court challenge); (b) there is no invasion currently taking place; (c) the public safety is not currently endangered by any invasion (see, e.g., Ex Parte Milligan; (d) the prisoners at Guantanamo are not members of any invasion, and (e) even if they were, it's that fact which would have to be established.


Furthermore, moral culpability for any injustice lies solely with those who chose to fight in a way that renders them indistinguishable from innocents. They have caused this whole problem in the first place.


I absolutely agree, but the consequence of this view cuts in my favor, not yours: the whole question at issue is "are these particular prisoners among those 'who chose to fight in a way that renders them indistinguishable from innocents'"? Until you can answer that question -- and without a fair hearing that's impossible -- you can't decide how to treat them.
1.15.2007 9:19pm
SG:
Public_Defender:

I don't fear lawyers arguing against me (I wouldn't be posting here if I did), I fear a court making a bad ruling. More generally, I fear the misuse of a legitimate governmental power that endgangers my safety and liberty.

Now does the analogy make sense?

Mark Field:

Sure, but (a) the writ of habeas corpus hasn't been generally suspended (the pseudo-suspension in the torture bill has yet to face court challenge); (b) there is no invasion currently taking place; (c) the public safety is not currently endangered by any invasion (see, e.g., Ex Parte Milligan; (d) the prisoners at Guantanamo are not members of any invasion, and (e) even if they were, it's that fact which would have to be established.


There were 3000 of your fellow citizens who were killed on US soil who the AUMF is explicitly targeted against (no invasion? no threat to public safety? Did you miss that whole 9/11 thing?). The current detainees have been captured in an legally authorized war that was a direct response to that invasion (unless your position is that Afghanistan has nothing to do with 9/11). Since the parties held responsible for 9/11 and named in the AUMF continue to publically threaten US safety, the threat is still current. Congress has explicitly defined the process due to those captured in the course of exercising AUMF authority in the Detainee Treatment Act. There is due process being granted; the CSRT process is well-defined.

The fact is you don't like the amount of due process being given. You wish it to be greater. But rather than make the argument in the sphere where it belongs ("The Congress shall have the Power to [...] make Rules concerning Captures on Land and Water"), you want it to go to the judiciary.

But the judiciary is (or should be) bound by precedent, set in peacetime. You don't have to go 6 degrees removed to start running into practical problems with trying to apply peacetime due proces notions to a war situation.

Do detainees have a right to remain silent? Can detainee statements be used against them if they haven't been apprised of their right? Are soldiers required to mirandize prisoners? Or how about right to counsel? When does a detainee acquire that right? Do lawyers need to be present on every forward base for this purpose? There are all sorts of obvious 4th, 5th, 6th, and 8th ammendment challenges that these detainees would raise, supported by lots of precedent. But trying to apply peacetime notions of due process is surely ludicrous (no?). War is not police work, and should never be confused with such.

For example: I can't imagine a logically consistent opinion resolving the issue that holds a) US citizens have Miranda rights, b) detainees don't and c) isn't making Rules concerning Captures on Land and Water. Either the court further restricts our rights (bad), grants unwarranted rights to wartime enemies (bad), or oversteps their authority (bad). You're asking the court to perform a role it's not intended for, that's begging for bad results. And even if the courts did manage to strike the right balance, the best you can say is the ends justified the means. In which case, explain to me again why warrantless surveillance, the SWIFT program and torture aren't acceptable?

I fear we're talking past one another. I feel I understand your position, and I've made mine about as clear as I can make it. You have a legitimate concern about the fairness of the process, but not every bad outcome is unconsitutional or even illegal. Your concerns need to be addressed in the political arena, where they can go so far and no farther. The judicairy is a blunt instrument, it shouldn't be called upon to split these hairs.

But thanks for your time and the invective-free discussion.
1.16.2007 5:45pm