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 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.

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.

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.

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.”

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. . .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.

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.

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?

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).

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

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?

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.

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.

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.

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.

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?

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."

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.