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Supreme Court Agrees to Take Guantanamo Bay Cases:
Wow — the Supreme Court has granted cert on the D.C. Circuit's Guantanamo Bay cases, Boumediene and Al Odah. What's remarkable about this isn't that the Supreme Court agreed to hear them, but how: the Court denied cert at first back in April, with several Justices writing opinions in the cert denial, and then granted a petition for rehearing. This is extremely unusual, and it is probably a pretty good sign that a reversal is likely. My take on some the legal issues can be found in my recent Senate testimony, available here. This is what I said about the D.C. Circuit's decision that will be reviewed:
[T]he reasoning in that decision is in obvious tension with the Supreme Court's language in Rasul. In Boumediene, the D.C. Circuit concluded that Guantanamo Bay is part of Cuba, not the United States, and that application of the habeas statute to persons detained at the base would not be consistent with the historical reach of the writ of habeas corpus. Judge Randolph rejected the relevance of Rasul in a short footnote. See id. at 992 n.10. Although the Supreme Court denied certiorari in Boumediene for procedural reasons, it seems highly likely that the Court will agree to resolve this issue in a future case. Given that Judge Randolph's approach in Boumediene is in obvious tension with the language found in the majority and concurring opinions in Rasul, it seems likely that a majority of the Supreme Court will view the case differently than did the D.C. Circuit in Boumediene.
  Here's my question: What are the chances that this grant will push the Bush Administration to shut down Gitmo?
Just an Observer:
FYI, Lyle Dennistion's coverage at SCOTUSblog is here: Court switches, will hear detainee cases
6.29.2007 1:22pm
p.d.:
Revenge of the liberals! You can take the social engineering from our school districts, but you CAN'T take our terrorists' rights to due process!
6.29.2007 1:37pm
nunzio:
These prisoners will be shipped to Afghanistan.
6.29.2007 1:39pm
PersonFromPorlock:
I wonder what would happen if a detainee's lawyer filed a motion in a Cuban court? I'm sure the US government would deny Cuban law applied, but could they make any argument besides harrumph!?
6.29.2007 1:40pm
Wahoowa:
Such a suit would be nothing more than publicity. If the Cuban gov't ever tried to enforce the results of such a case, they would face the wrath of the U.S. military.
6.29.2007 1:42pm
GEORGE LARSON (mail):
Wouldn't legal issues depend on the terms of the lease we have with Cuba? They might actually have some legal rights. I agree enforcing them would be difficult.
6.29.2007 1:52pm
Just an Observer:
Oops. I see now that Orin already linked to the SCOTUSblog story.

We may never know what caused the justices to change their mind. One new thing in the record before the court since the previous denial of cert was the somewhat dramatic declaration about the CSRT process from a former military officer involved. (I thought that filing, while fascinating in substance, was a bit of a hail Mary at the time.) Lyle observes this today:

The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."
6.29.2007 1:53pm
John425:
Gitmo Detainees to US mainland? Add another zillion dollars in legal fees that we taxpayers will have to cough up, add 20 years of litigation, add Saddam-like courtroom antics and leave us wide open to more humiliation.

We should wise up and never take any prisoners!
6.29.2007 2:14pm
TZiese:
Uh, John425. Decreeing that you'll "take no prisoners" is quite literally a war crime.
6.29.2007 2:20pm
Happyshooter:
IIRC, the base is in a state of seige since the cut off of water by Cuba. Both sides use opposing gun towers and minefields.

Would Cuban courts have authority in that circumstance? Can the US courts address detention decisions made by the base commander in that circumstance?
6.29.2007 2:25pm
Daniel Chapman (mail):
So is beheading them.
6.29.2007 2:25pm
TZiese:
Indeed. I wouldn't want the United States to behead folks either. I would think that avoiding war crimes would be obvious.
6.29.2007 2:33pm
SG:
The only true war crime is to lose. Ask Curtis LeMay.
6.29.2007 2:35pm
Thomas_Holsinger:
TZiese,

Tell that to the Confederate POW's hung in retaliation for the Fort Pillow massacre of captured Union black troops by Nathan Bedfort Forrest's troops. The execution of POW's in retaliation for war crimes by the enemy against your own forces has long historic precedent.

Given that our enemy in this war routinely tortures captured American troops before killing them, and ALWAYS kills them, we have complete justification for killing all captured enemies.

I know, I know, your vision of law applying to war also applies only to us.
6.29.2007 2:36pm
Happyshooter:
Uh, John425. Decreeing that you'll "take no prisoners" is quite literally a war crime.

Only if both warring parties are signatories to the conventions or adhere to them. AQ did/does neither.
6.29.2007 2:36pm
Bretzky (mail):

What are the chances that this grant will push the Bush Administration to shut down Gitmo?

Or, have recent rumors that the Bush Administration was planning on shutting down Gitmo had any effect on the Court's decision?

The Court may be attempting to get out ahead of this issue so it doesn't look bad when the inevitable horror stories start flowing out of Gitmo more openly than they have been. It still saddens me a bit that the average citizen neither knows nor cares about what our soldiers have been ordered to do in places like Gitmo by the Bush administration and the damage it has done to our standing in the world.
6.29.2007 2:40pm
r78:

Only if both warring parties are signatories to the conventions or adhere to them. AQ did/does neither.

And that is also why it wouldn't be a war crime for the army to start slaughtering schoolchildren and puppy dogs in, say, Utah. After all the children and puppies weren't signatories to any conventions. So, no war crime there.

Perhaps there might be some other form of redress, but, not clearly not a war crime.
6.29.2007 2:42pm
Allan:
A second question.

If the administration closes Gitmo, will the suit be moot?
6.29.2007 2:44pm
Colin (mail):
The execution of POW's in retaliation for war crimes by the enemy against your own forces has long historic precedent.

Raping noncombatants has a "long historic precedent," too. Our goal should be to be better than other nations.

I know, I know, your vision of law applying to war also applies only to us.

Our enemies won't be decent just because we demand it. We can only demand it of ourselves.
6.29.2007 2:45pm
dharma (mail):
I think Allan's question has a very good point to it. If closing Gitmo moots these suits, then - to answer the original question - yes, I think the Supreme Court's choosing to grant cert may force the Bush Administration's hand.

It would be a lot less embarrassing to the Administration then having civilian courts let the detainees go.
6.29.2007 2:53pm
Philistine (mail):
Thomas Holsinger:

Tell that to the Confederate POW's hung in retaliation for the Fort Pillow massacre of captured Union black troops by Nathan Bedfort Forrest's troops. The execution of POW's in retaliation for war crimes by the enemy against your own forces has long historic precedent


Do you have a link to any documented retaliation?

IIRC, while retaliation was discussed, it was rejected, though the Fort Pillow incident did lead to a closing down of prisoner exchanges.
6.29.2007 2:55pm
TZiese:
Only if both warring parties are signatories to the conventions or adhere to them. AQ did/does neither.Please demonstrate (or provide any evidence at all) that all the Guantanamo detainees are members of Al Qaeda.

I know, I know, your vision of law applying to war also applies only to us.Oh, knock it off. It applies to everyone. Al Qaeda beheading folks, attacking civilians, and torturing, besides being truly disgusting and abhorrent, are the epitome of war crimes.

And let me be perfectly clear. We're better than Al Qaeda. I thought that was the entire point of my argument.
6.29.2007 2:56pm
Andy L.:
There's been some talk that the Rice/Gates position is perhaps waxing as Cheney's position might be waning. I'm dubious of claims that Cheney's influence is in decline, a la "reports of my death have been greatly exaggerated." Still, if the president were inclined to close the detention facilities at Gitmo, seems that might moot these appeals, which would be desireable to the president. Then again, maybe it depends on where the detainees are transferred. If they are sent overseas to Afghanistan or some other place, will the government then argue that U.S. courts have no jurisdiction? Seems unlikely such an argument -- kind of an end-run around the courts -- would fly.
6.29.2007 2:59pm
ejo:
on one side, you have academics/media debating how best to ensure the rights of the enemy with actually winning being a secondary thought at best. on the other side, you have the enemy doing their best to see to it we are destroyed and that they win. in circumstances like that, who do you think the winner will be?
6.29.2007 3:01pm
ejo:
I will settle for better and winning than pristine/faultless and losing. We seem determined, however, to go down the latter path, though.
6.29.2007 3:04pm
Happyshooter:
Please demonstrate (or provide any evidence at all) that all the Guantanamo detainees are members of Al Qaeda.

That is why they get military status hearings. 1) Did you make war? 2) Are you an EPW under the conventions? A yes to 1 and a no to 2 gets you held at Gitmo as an unlawful combatant.

Because America is nice we also let folks go when they are not of any value.
6.29.2007 3:04pm
Steve:
Given that our enemy in this war routinely tortures captured American troops before killing them, and ALWAYS kills them, we have complete justification for killing all captured enemies.

Of course, what's at issue in the ongoing litigation is whether we will even attempt to determine who our "enemies" are.

If you accept that everyone at Guantanamo is our enemy, simply because people like Rumsfeld call them the "worst of the worst" in speeches, then yeah, I can understand why you wouldn't really care what happens to them.
6.29.2007 3:05pm
Colin (mail):
If they are sent overseas to Afghanistan or some other place, will the government then argue that U.S. courts have no jurisdiction? Seems unlikely such an argument -- kind of an end-run around the courts -- would fly.

I think that putting the prisoners on sovereign foreign soil might be enough to persuade the Court to leave the matter alone. But I suspect that, if the administration decides to close the base to moot the appeals, it won't take chances on a second round. In the president's shoes, I'd simply render the prisoners to a sovereign foreign state, such as Afghanistan, that's willing and able to hold them for a period of years while attempting (slowly) to sift the guilty from the innocent and repatriate the latter. I think that would achieve most of the administration's goals while cutting off the courts' jurisdiction.
6.29.2007 3:06pm
TZiese:
That is why they get military status hearings. 1) Did you make war? 2) Are you an EPW under the conventions? A yes to 1 and a no to 2 gets you held at Gitmo as an unlawful combatant.

I was arguing against the impression that some folks wanted us to round up and execute everyone we would have taken to Guantanamo.
6.29.2007 3:08pm
Happyshooter:
If you accept that everyone at Guantanamo is our enemy, simply because people like Rumsfeld call them the "worst of the worst" in speeches, then yeah, I can understand why you wouldn't really care what happens to them.

That's not what is going on. These people are captured by US Forces or our Allies in the field, processed, and an adminstrative decision is made that they are unlawful combatants.

They then are sent to Gitmo where they get a status hearing and a formal determination that they are unlawful combatants.

Bush and Rummie are not picking names from the Kabul phone book to be arrested and sent to Gitmo, these people are captured in the field and their status is reviewed at least twice.
6.29.2007 3:10pm
Thomas_Holsinger:
Philistine,

The Union high command decided against announcing a formal policy of retaliation for Fort Pillow. The best estimates I've seen were that about 50-100 Confederate POW's were hung in retaliation within about a month after the event, all of them by local commanders (brigade &under).

But the Union high command did publically state that evidence of any Confederate policy of murdering captured black troops would result in official Union retaliation. The Confederacy then proclaimed an "official" policy of enslaving captured black troops. In practice they tolereated a lot more murders, so Union colored regiments largely ceased taking Confederate prisoners.

Tziese,

I note that you've backed down from your contention that execution of prisoners is always criminal.

We're better than Al Qaeda. I thought that was the entire point of my argument.

Hard cases make bad law, and war is always hard.
6.29.2007 3:14pm
Colin (mail):
on one side, you have academics/media debating how best to ensure the rights of the enemy with actually winning being a secondary thought at best. on the other side, you have the enemy doing their best to see to it we are destroyed and that they win. in circumstances like that, who do you think the winner will be?

Us. Because "winning" entails not losing our character or tossing our morals to the wind the instant we're frightened of an enemy.

I will settle for better and winning than pristine/faultless and losing. We seem determined, however, to go down the latter path, though.

How do we "lose" to Al Qaeda? Are they going to storm our beaches and loot the Library of Congress? I consider "losing" to include "becoming too much like our enemy," and retaining our moral and ethical high ground to be a necessary part of "winning." From my perspective, then, you're openly advocating defeat, because people might get hurt in the course of winning the war. I realize that you have an entirely different perspective; I'm not trying to convert you, just pointing out that your temerity resonates very poorly with those of us who consider our nation's traditional high standards to be a necessary virtue.
6.29.2007 3:15pm
TZiese:
I note that you've backed down from your contention that execution of prisoners is always criminal.

I never made that contention. I contended (and still do contend) that "take no prisoners" is criminal, and that beheadings/torture/attacking civilians is criminal.
6.29.2007 3:17pm
Happyshooter:
I was arguing against the impression that some folks wanted us to round up and execute everyone we would have taken to Guantanamo.

We should. We are making a real mistake in not doing that. Post WWII American forces had a lot of problems in Germany with Iraq style roadside attacks. Wires across the road were very popular as were ambushes.

We (America) gave each German captured a short hearing in front of a commissioned officer to determine if they were unlawful combatants. If the answer was "yes" then they were executed in short order.

German attacks ended quickly and by 1952 the US Constabulary (occupation troops) were no longer needed at all.
6.29.2007 3:19pm
Steve:
These people are captured by US Forces or our Allies in the field, processed, and an adminstrative decision is made that they are unlawful combatants.

Do you sleep better at night believing that someone of unknown provenance handed over to us by the Northern Alliance was "captured by our allies in the field"? That still doesn't make it true. I can't even imagine what "field" you think you're referring to; maybe you're from the school that says the world is our battlefield.

They then are sent to Gitmo where they get a status hearing and a formal determination that they are unlawful combatants.

Right. Because cases like Hamdi forced those hearings to be held. And now that evidence like the Abraham affidavit is coming out to suggest that those hearings are little more than a joke, there's more litigation.

The fact that we routinely let people go after years of confinement suggests that we're hardly making a reasonable effort to ensure they're "enemies" when we first imprison them. And the fact that some of the released people have, in fact, been recaptured fighting against our forces suggests that we're not even doing a good job figuring out who to let go. We need a better process in all respects, and people who go around blithely declaring that everyone at Gitmo is surely an "enemy" are not helpful.
6.29.2007 3:22pm
Armen (mail) (www):
Why is anyone engaging in legitimate arguments with trolls who cite to a) civil war era conduct by the founder of the KKK and b) advocate mass executions? Your time would be better spent discussing AEDPA with an inmate serving 20 to life and an access to a law library.
6.29.2007 3:30pm
Philistine (mail):
Thomas Holsinger:


The Union high command decided against announcing a formal policy of retaliation for Fort Pillow. The best estimates I've seen were that about 50-100 Confederate POW's were hung in retaliation within about a month after the event, all of them by local commanders (brigade &under).


I know this is getting a bit far afield of the topic, but what is your source for this?
6.29.2007 3:33pm
Thomas_Holsinger:
TZiese,

It is perfectly appropriate, and entirely lawful, to have a policy that captured unlawful combatants will ALWAYS be executed unless they as individuals cooperate with us. They have some GC rights against mistreatment as prisoners, but not against a policy of always executing them.

This was true under the GC in World War Two, when we did execute unlawful combatants merely for such status, including after the war when rooting out the Nazi Werewolves. We almost always gave them at least a sketchy trial by a miiltary court, though, but that was due to the requirements of our own Articles of War rather than any GC protocols requiring such - the GC then permitted execution of unlawful combatants on capture, or without any form of process after interrogation. The British and French did that as a matter of policy, particularly with the Werewolves after the German surrender. Well, they didn't limit it to the Werewolves either - they were much rougher on the German civilian population than we were.

The United States did not sign any postwar GC protocols concerning treatment of unlawful combatants. The only legal limitation on our execution of unlawful combatants on capture lies in our own statutes, and AFAIK those statutes do not prohibit retaliatory executions.
6.29.2007 3:38pm
Andy L.:
In the president's shoes, I'd simply render the prisoners to a sovereign foreign state, such as Afghanistan, that's willing and able to hold them for a period of years while attempting (slowly) to sift the guilty from the innocent and repatriate the latter. I think that would achieve most of the administration's goals while cutting off the courts' jurisdiction.

If they acted quickly and without notice and tranferred the detainees to foreign soil and turned them over to another government, I suspect the U.S. court would be powerless to order the military to unwind such a move, even if it was an end-run around a case the courts.
6.29.2007 3:50pm
Colin (mail):
Thomas_Holsinger,

TZiese's original point was that "[d]ecreeing that you'll 'take no prisoners' is quite literally a war crime." That seems to be a substantively different point than you're addressing.
6.29.2007 3:50pm
Anderson (mail) (www):
I've been curious what would happen if the prisoners were in make-believe Afghan custody, but with the U.S. really controlling the facility &the terms of confinement.

Hope we don't get to find out. There are people who've been locked up with no due process for 5, going on 6 years now. It is time to end this farce and hold real hearings -- the kind that you or I would be entitled to -- at which the feds have to put up or shut up as to their basis for holding these people.

Let's get the real terrorists tried, convicted, and sentenced, and the chaff set free -- all in a court of the United States, as a BELATED example of how the world's greatest judiciary does things.
6.29.2007 3:53pm
TZiese:
Thomas_Holsinger: It is perfectly appropriate, and entirely lawful, to have a policy that captured unlawful combatants will ALWAYS be executed unless they as individuals cooperate with us. They have some GC rights against mistreatment as prisoners, but not against a policy of always executing them.

I'm not saying that's not true, but this is a different proposition from "take no prisoners."

It is criminal to kill combatants (unlawful or not) who are attempting to surrender. They may be found guilty of crimes against humanity or crimes against peace later on, at which time they can serve the appropriate sentence or be executed. "Take no prisoners" necessarily entails shooting anyone attempting to surrender. (Unless you take the absurd proposition that this particular version of "take no prisoners" entails simply bypassing enemies who are surrendering.)
6.29.2007 3:54pm
J. F. Thomas (mail):
I note that you've backed down from your contention that execution of prisoners is always criminal.

Summary execution most certainly is. And the types of Military tribunals set up after World War II (which is basically what the president opted for with the current system for detainees in the GWOT) were seen as fundamentally unfair by both the U.S. military and the international community as a whole. That was the impetus for the development of the UCMJ, which has much more rigorous standards of due process for all classes of detainees, regardless of their status. In fact, the uniformed military argued that the current UCMJ was perfectly adequate to deal with the detainees from Afghanistan but the Administration sought to return to the flawed and unfair system that existed before the UCMJ.
6.29.2007 3:56pm
Philistine (mail):
Thomas_Holsinger:


The United States did not sign any postwar GC protocols concerning treatment of unlawful combatants.



????

What would you call the 4th Geneva Convention--which forbids summary executions?
6.29.2007 3:58pm
J. F. Thomas (mail):
<i>It is perfectly appropriate, and entirely lawful, to have a policy that captured unlawful combatants will ALWAYS be executed unless they as individuals cooperate with us.</i>

That is absolutely false and most certainly a war crime. Are you people lawyers or just a bunch of fascist thugs?
6.29.2007 3:58pm
J. F. Thomas (mail):
The only legal limitation on our execution of unlawful combatants on capture lies in our own statutes

So you are saying we are allowed to violate our own laws? And even though you are wrong about Geneva, how about the International Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment where the Senate, in ratifying the treaty, specifically cited using the threat of summary execution to extract confessions as a form of torture?
6.29.2007 4:04pm
Just an Observer:
Here's my question: What are the chances that this grant will push the Bush Administration to shut down Gitmo?

I don't know, of course, because Cheney does not share his thoughts with us.

I do note that last week, when the stories leaked about lesser administration figures (such as the secretaries of state and defense) were considering proposals to close the island prison, CNN's Suzanne Malveaux reported that one possibility under consideration was for most of the Guantanamo detainees -- apparently those who would not be charged and tried by commissions -- to be sent to a new prison in Afghanistan. That would leave about 100 who would be transferred to the United States and eventually charged.

If that happened, the adminstration next would try the ploy that the MCA still strips habeas jurisdiction from these aliens. Which argument would almost certainly fail, but would burn more time.

(Meanwhile, there is an outside chance that Congress will act to close Guantanamo as an appropriations rider, which I suspect has more chance than the direct legislative efforts to undo the habeas-stripping provision of the MCA.)

The ultimate question would eventually be whether the military process used today and sanctioned by the DCA is a constitutionally adequate substitute for habeas. Even if the detainees get habeas review, that does not mean these non-resident aliens have due process rights. The actual process they might get could be very abbreviated. And if only the 100 baddest cases are in the United States to get such process, that any of them would actually get relief is a fantasy.

In any event, even though today's development may re-expedite things some for the detainees, the administration can probably run out the clock. One way or another, this will probably become the next president's problem.
6.29.2007 4:06pm
Benjamin Davis (mail):
Just because they will consider the case does not mean that the Supreme Court will do much. Maybe Kennedy has been wooed enough by Stevens to be willing to look at challenging the MCA now - especially with the affidavit asserting the process is a sham - rather than later. Exhaustion of remedies is not required when the remedy process is considered a sham process.

But given the narrowness of his reasoning in Hamdan and the deference to Congressional intent I suspect Kennedy will be perfectly willing to side with the 4 righties in an opinion that eviscerates Rasul.

So I want to encourage the righties gloat - and let's praise all those who think war crimes are cool. (this is sarcasm in case it does not come through).

Best,
Ben
6.29.2007 4:12pm
ejo:
well, we didn't remain pristine or faultless in past wars which were essential to the survival of the nation. WWII and the Civil War spring to mind. we even nuked folks in one of them, not to mention firebombing-I guess under the standard pointed out above, we should have lost since we lost our soul by sinking so low. we were frightened of our enemy then and rightfully so-we acted accordingly given their evil. how do we lose to radical islam-the same as any other nation in the past has lost any war. they kill more of us than we do of them and we give up. I would be happy if all we had to worry about was AQ-it would be delusional though.
6.29.2007 4:13pm
TZiese:
ejo, I most certainly do not want to "give up" against Al Qaeda. Indeed, I want to continue to prosecute the War on Terror intelligently. To lawfully intercept signals, to infiltrate the organization to get better intel, to attack strongholds, to disrupt plots, and to convince fence-sitters in the Muslim World to not turn against us. And indeed, to help us.

This is a far cry from carpetbombing cities, summary executions, and "take no prisoners."

Here's a hypothetical question. A car bomb plot was just disrupted in London. To kill the terrorists, we decide to carpetbomb the area of London where we suspect the terrorists are hiding. Would this make it more or less difficult for the US and its allies to win this war?

If it would be more difficult, why would carpetbombing areas of Baghdad or Tehran be any different?
6.29.2007 4:30pm
Shake-N-Bake:
they kill more of us than we do of them and we give up.

There's one problem with that -- usually you actually surrender to something or someone? How exactly would this work in the case of Muslim terrorist, forced conversion of everyone in the world to Islam?

You have to be kidding. We cannot possibly 'lose' this war under any normal definition of war, which is why this isn't a war. They're going to keep bombing things no matter what. There just can't be "victory" against a tactic. We arrest the ones we catch and try them and let them rot in jail or execute them, and if a nation harbors these clowns and lets them do their thing there, we crush said nation. That's about all we can do. But I can't see how we 'lose', given the only way the radical element of Islam will quit is if the entire world converts to Islam.

Essentially, this is just going to be a game of whack-a-mole until either these idiots get sick of bombing or the other Muslims get serious about weeding out the criminal element of their religion. Color me not optimistic.
6.29.2007 4:32pm
Bob from Ohio (mail):
It is far too late now for what should have been done to be done. The President is in a highly weak political state and there is a Democrat controlled Congress.

The correct course of conduct would have been to simply ignore the courts. The Constitution gives war making and national defense powers solely to the political branches, Congress and the President. No one should have appeared in the courts on behalf of the government and all orders/writs should have been tossed in the trash.

Once the courts got tired of having their authority flaunted, they would have stopped this interference.

Yes, I know that such a course would have been "illegal". The President, in my humble opinion, would have won the "constitutional crisis" though. Perhaps not, then someone else would be President. Better that than this farce.

As I said, far too late in the game now.
6.29.2007 4:32pm
Thomas_Holsinger:
Philistine,

You could try Google. I'm at the office and don't have access to my books at home. William McNeill's multi-volume history of the Civil War probably has it, with citations to sources.
6.29.2007 4:35pm
Anderson (mail) (www):
J.F. Thomas: Are you people lawyers or just a bunch of fascist thugs?

Bob from Ohio: The correct course of conduct would have been to simply ignore the courts. * * * Yes, I know that such a course would have been "illegal". The President, in my humble opinion, would have won the "constitutional crisis" though.

This has been an exercise in parataxis.
6.29.2007 4:36pm
Steve:
No one should have appeared in the courts on behalf of the government and all orders/writs should have been tossed in the trash.

We just don't see enough suggestions along these lines on the VC any more. More like this, please. It's awesome.
6.29.2007 4:39pm
Just an Observer:
Bob from Ohio: As I said, far too late in the game now.

Why give up now? Bush and Cheney still have 571 days to execute such a coup, they have the full-throated support of "patriots" such as you, and they have all the guns and bayonets.
6.29.2007 4:41pm
Happyshooter:
What would you call the 4th Geneva Convention--which forbids summary executions?

The Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is the "4th", only forbids summary execution if AQ "accepts and applies the provisions thereof."
6.29.2007 4:49pm
Happyshooter:
Additional argument: The Geneva Convention Relative to the Treatment of Prisoners of War clearly draws a line between lawful and unlawful combatants. Unlawful combatants can be shot out of hand.

The United States has never said it would be bound by the 1977 Protocol which would provide for a hearing first, much less signed the Protocol.
6.29.2007 4:55pm
TZiese:
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is the "4th", only forbids summary execution if AQ "accepts and applies the provisions thereof."

With respect, I think that's not right.

From the Fourth Geneva Convention:
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


"In the territory of one of the High-Contracting Parties" includes Cuba, Afghanistan, Iraq, and the United States. All are signatories.

Common Article 3 puts obligations on ALL contracting parties, including the US, with regards to all conflicts not between nations, including the war against Al Qaeda. Persons captured are "hors de combat," via detention, regardless of the legality or illegality of their combatant status. Their summary execution is flat illegal.
6.29.2007 5:00pm
Randy R. (mail):
It's amazing how quickly people actually agree with the Stalinism and Nazism and their tactics, and hold them up as virtues!

What next will you argue for, secret police to take away the liberal obstructionists?
6.29.2007 5:01pm
Bryan DB:
Even if the prisoners were shipped out, would this make the case truly moot? That seems like a classic case where the court could still review the legal issues. "Capable of repetition, yet evading review" is the phrase that comes to mind.

The military ships the prisoners to [somewhere else]. The court dismisses the case. The military brings the prisoners back. The court takes the case. The military ships the prisoners...

You get the idea.
6.29.2007 5:02pm
ejo:
at what point would you consider worldwide bombing and bloodshed a war? kind of like the barbs aimed at those pathetic national socialists at their beginning. at the point jihadists get nukes, would that change you mind? I do like the bloodthirstiness in the response though.
6.29.2007 5:14pm
Anderson (mail) (www):
What next will you argue for, secret police to take away the liberal obstructionists?

Now you know why I post under a pseudonym.
6.29.2007 5:23pm
TZiese:
ejo,

Let me get this straight. You "like the bloodthirstiness" of carpetbombing the capital and largest city of our greatest cultural and military ally, killing untold UTTERLY INNOCENT civilians, in the attempt to kill a few would-be terrorists who failed in their mission?!

I quite literally don't know how to respond.
6.29.2007 5:26pm
Happyshooter:
I disagree. As you noted, summary executions, even in the territory of a contracting party, are only outlawed for
"Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."

AQ members are not members of armed forces.

Further, "Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations."

Under your argument, Iraqi government forces would be covered, but not AQ nor Taliban forces. Under your argument, I am not sure of the status of Sadr forces. I think it would depend on their organization structure, uniform items, and orders from their leader as to following the Conventions.
6.29.2007 5:33pm
Anderson (mail) (www):
Once an AQ member is captured, he is "no longer taking an active part in the hostilities."

The WHOLE POINT of this language is NOT to create a "neither/nor" category of person who is unprotected under the Convention. The Nuremberg Trials gave lots of examples of classification as a tool of mass murder.

Any reading seeking to create such a category is automatically suspect.
6.29.2007 5:36pm
TZiese:
I'm not sure under what definition AQ members don't count as "armed forces." I've seen stock footage of AQ training videos, and they sure look "armed" to me.

But in any event, the operative phrase is "Persons taking no active part in the hostilities." This phrase is later clarified as including "members of armed forces who have laid down their arms and those placed hors de combat...."

Common Article 3 makes no sense if it states that only members of the opposing armed forces, and not ordinary civilians, must be treated humanely.
6.29.2007 5:41pm
Owen Hutchins (mail):

That's not what is going on. These people are captured by US Forces or our Allies in the field, processed, and an adminstrative decision is made that they are unlawful combatants.



Nope. The majority were "captured" by Afghan forces (usually warlords) and then sold to the US for bounty money. We have only the word of those getting lots of money for prisoners. Given the number that actually have been freed, "the worst of the worst" is a bad bit of hyperbole.
6.29.2007 5:47pm
Just an Observer:
Happyshooter,

The Supreme Court of the United States, in Hamdan v Rumsfeld, settled the question about which you continue to sputter: The detainees we are holding in Guantanamo are covered by Geneva Common Article 3. It was in all the better papers.

And just to introduce another fact into the discussion, which is at variance with the imaginary universe you describe, the CSRT tribunals have not found anyone to be "unlawful combatants," and are not authorized to do so. Rather, the CSRTs have found detainees to be "enemy combatants."
6.29.2007 5:47pm
Happyshooter:
Any reading seeking to create such a category is automatically suspect.

Let's see where we do agree. AQ members are not EPWs, otherwise they would have uniforms and barracks as good as American troops upon capture. Further their officers would have BOQ quality suites and be drawing US pay.

They are not contracting parties.

The 4th comtemplates contracting parties and only those "adhereing" being bound.

Thus, our point of disagreement is whether AQ members are "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause".

I cannot say that I think they are.

Can you explain more about your position in the 1/2 hour I have before I start my holiday weekend, or should we agree to disagree?
6.29.2007 5:47pm
PersonFromPorlock:
My real problem with the administration's stand on Gitmo is this: how can the government assert any powers whatever in a place where it claims the document which defines its powers doesn't run?
6.29.2007 5:54pm
TZiese:
Happyshooter,

Common Article 3 applies in conflicts not between two states, such as our present War on Terror. Or, indeed, during civil wars or rebellions entirely within one state.

You claim that Common Article 3 only protects contracting parties.

There are no nonstate contracting parties. To what sort of situation do you think Common Article 3 applies?
6.29.2007 5:56pm
Owen Hutchins (mail):

Post WWII American forces had a lot of problems in Germany with Iraq style roadside attacks. Wires across the road were very popular as were ambushes.



Myth. There was almost no "insurgency" in Germany whatsoever.
6.29.2007 5:58pm
TZiese:
Additionally, it's important to note that Afghanistan, Iraq, Cuba, and the US are all contracting parties. The current governments of Iraq, Afghanistan (Karzai's folks), Cuba, and the US are NOT treating US forces contrary to the Geneva Convention. There's no reciprocity argument to be had.
6.29.2007 5:58pm
ejo:
why, shake and bake intends to crush any nation that is shown to harbor terrorists or allow them to do their thing-sounds bloodthirsty to me. as to bombing London, I would like to know where I mentioned that-it was raised by another intellect here, although I couldn't quite understand the point of randomly bombing an ally. by the way, has anyone yet answered why we deserved to win in WWII when we debased ourselves by doing things such as firebombing civilian centers and nuking Japan? that must be a real stumper given that we didn't offer due process to the civilians of Hiroshima or Nagasaki.
6.29.2007 6:01pm
Fub:
Thomas_Holsinger wrote at 6.29.2007 3:35pm:
You could try Google. I'm at the office and don't have access to my books at home. William McNeill's multi-volume history of the Civil War probably has it, with citations to sources.
WikiPedia has an overview of the Ft. Pillow events, and indicates that the existing historical record has some unresolved ambiguities. There are no doubt far more detailed sources available even on the intarweb. But the article is informative.
6.29.2007 6:06pm
Anderson (mail) (www):
has anyone yet answered why we deserved to win in WWII when we debased ourselves by doing things such as firebombing civilian centers and nuking Japan?

Where did you find this "deserved to win" nonsense?
6.29.2007 6:10pm
Shake-N-Bake:
My wish is that we had done the job right in Afghanistan, thereby discouraging any other country in the future from harboring terrorists to the extent that they did there. And if there are other countries that are just letting terrorists train there and simply turning a blind eye, we ought to be permitted to do something about that. I don't support just bombing the crap out of cities, since that really won't accomplish much, but I certainly have no problem with us ousting the Taliban. It was pretty obvious they were more than happy to let the AQ people do whatever they wanted.

I'm rather liberal but I'm fully aware that the only way to minimize terrorism (which is the best we can realistically hope for) is to have all governments of the world actively helping us in the battle to accomplish that minimization (well, that and get our human intelligence forces back up to snuff, we probably need a lot more people in that area, ones who can infiltrate these criminal organizations). If someone doesn't want to cooperate, and in fact goes the other way and openly allows them to operate there, then I don't think action against those countries is completely off base. The main thing is to show said activity with real proof. We blew enough credibility with Iraq, it's probably best we don't make that mistake again.
6.29.2007 6:13pm
Garth:
closing gitmo won't moot the appeal. the appeal is for a ruling on their status regardless of where they are held.

South Carolina gulag vs. Cuban gulag. I don't think they'll notice much of a difference.
6.29.2007 6:19pm
luagha:
To continue what Bob from Ohio started, I believe it was President Andrew Jackson who said something like, "The Supreme Court has given us their decision, now let them enforce it."
6.29.2007 6:23pm
Thomas_Holsinger:
This one is too rich to pass up.

Terror Plot Involves Islamic Extremists; Police Have 'Crystal Clear' Picture of Suspect

"British police have a "crystal clear" picture of the man who drove the bomb-rigged silver Mercedes outside a London nightclub, and officials tell the Blotter on ABCNews.com he bears "a close resemblance" to a man arrested by police in connection with another bomb plot but released for lack of evidence.

Officials say the suspect had been taken into custody in connection with the case of al Qaeda operative Dhiren Barot (pictured), who was convicted of orchestrating a vehicle bomb plot involving targets in London, New York, Newark, N.J. and Washington, D.C. ..."


At some point enough people might realize that war is not peace, and that the rules of war should be applied to non-citizens instead of the laws of peace.

Or as, James Taranto noted, the laws of peace will be modified for citizens, to the loss of liberty and freedome for all, to deal with foreign terrorists.
6.29.2007 6:31pm
Anderson (mail) (www):
South Carolina gulag vs. Cuban gulag. I don't think they'll notice much of a difference.

Better music in Cuba.

Meanwhile, Mr. Holsinger is astonished that anyone thinks that criminals who try to blow people up should be dealt with by ... police?
6.29.2007 6:42pm
wm13:
I don't understand the people who say we "can't lose" this war. We could lose the same way we could have lost World War II: there was no thought on the part of either Germany or Japan of invading or occupying the United States. We would lose by: (i) agreeing to withdraw our armed forces from all Muslim countries; (ii) agreeing not to support any government unfriendly to the "revived caliphate" (e.g., no more aid to Israel); (iii) agreeing to support the nations of the "revived caliphate" in international affairs; (iv) agreeing to pay a tax on each imported barrel of oil to the "revived caliphate" etc. I'm not saying this is going to happen, but it isn't conceptally or physically impossible.
6.29.2007 6:48pm
Thomas_Holsinger:
wm13,

It depends on your definition of "lose". In terms of our enemies, no. There the only question is how many Arabs will survive the West's crushing of Islamic extremists. Lee Harris said on this point:

"This gives a sense of Greek tragedy, with its dialectic of hubris and nemesis, to what has been unfolding in the Islamic world. If they continue to use terror against the West, their very success will destroy them. If they succeed in terrorizing the West, they will discover that they have in fact only ended by brutalizing it. And if subjected to enough stress, the liberal system will be set aside and the Hobbesian world will return - and with its return, the Islamic world will be crushed. Whom the gods would destroy, they first make mad. And the only way to avoid this horrendous end is to bring the Islamic world back to sanity sooner rather than latter."

The only way we can "lose" this war is to give up our freedom for security. The fastest way to do that is to stop fighting the enemy abroad, retreat here, try only domestic security measures, and fail at those only to give up our freedom in the process.

And THEN we will destroy our enemies abroad, but by then we won't be Americans anymore.
6.29.2007 6:58pm
ejo:
you mean this ongoing worldwide carnage is not just an excuse for due process experimentation-those other guys might wish us harm and aren't just participating in an academic exercise.
6.29.2007 7:01pm
Colin (mail):
wm13, that's a very interesting post. Provisionally, I think it's quite insightful. I would argue that compromising our values and degrading our image among foreign states makes it more likely, not less, that the "loss" scenarios you propose will occur. For instance, I'm dubious that Gitmo actually enhances our ability to base troops overseas or support Israel. Taking unnecessary illegal or immoral actions, however, may force us to reallocate our military and political capital.

As an example, we may be a more credible, effective, and forceful ally of Israel is we cultivate a reputation of scrupulous adherence to applicable and valid domestic and international law and of dogged commitment to the rights of all persons, even our enemies. If, however, we allow ourselves to be typecast as enemies of all Islam, rather than as enemies of murderous zealots (and Guantanamo and Abu Ghraib make it too easy to mischaracterize us), then we lose the high ground that helps us justify our policies on the global stage. I seem to recall something along those lines being Al Qaeda's goal in attempting to spark a general war between the West and Islam.

That's all very abstract, of course, and worth exactly what you paid for it. You have, however, convinced me that a "loss" is possible in the same sense that a "loss" is possible in traditional wars. I believe that unlawful treatment of detainees takes us closer to those loss conditions, and that the worst possible loss would be to abandon our commitment to legal ideals out of fear.
6.29.2007 7:10pm
Kazinski:
Anderson,
I'm not sure about whether we "deserved to win", either, that is pretty subjective. But most Japanese and Germans are glad we did, they realize their lives are better for it.
6.29.2007 7:18pm
whackjobbbb:

And the fact that some of the released people have, in fact, been recaptured fighting against our forces suggests that we're not even doing a good job figuring out who to let go. We need a better process in all respects, and people who go around blithely declaring that everyone at Gitmo is surely an "enemy" are not helpful.


You're right, many we release return to the battlefield, as many as 10% of them are confirmed as such I understand. That would indicate many still at Gitmo are baaaaad folks, if they're the ones we're actually still holding, don't you think?

We executed plenty of folks in Germany, and in the Pacific War, too. The military justice was swift. You get a hearing. You get a judgement. Then you get a rope. That's why Bush has stalled this so long. If he'd put those guys in front of a panel of uniforms any time within the first year or so... when the uniforms were first being bloodied out in the field... there woulda been some execution sentences handed down, make no mistake... perhaps hundreds of 'em. Far less chance of that now... which was the whole intent. You can't let 'em go, and you can't put 'em in front of a panel, so you wait... and take the heat, which is what we've been doing.

As for those pining for Congress to shut down Club Gitmo, don't hold your breath. My Senator, Stabenow, cozied right up to Bush on that tribunal bill last year. Our good liberal senator wasn't gonna side with Osama in the middle of a reelection campaign, you understand. You BDSers can whine all you want about that, but I'll count all the demopublicratican votes, to determine where this all truly stands. I'm bettin' that Club Gitmo will remain a nice little sunny spot for Osama's crew to have their teeth fixed, glasses fitted, corrective surgeries performed, and weight gained from the politically correct diet.

Oh, and we ain't taking many prisoners now, if you notice. Wonder why? How's that whole Geneva/SC circlejerk working out, gang?
6.29.2007 7:26pm
BobH (mail):
Re post WWII German, Happyshooter said: "[B]y 1952 the US Constabulary (occupation troops) were no longer needed at all...."

Hey, I was an occupation troop (Besatzungstrupp) in Berlin between 1967 and 1970, and I have a U.S. Army of Occupation medal to prove it. I like to think that I was "needed," even though I and my fellow Besatzungstruppen didn't get to participate in the traditional occupation, uh, occupations (rape, pillage, plunder, etc.) Cold War is hell.
6.29.2007 7:31pm
Anderson (mail) (www):
Kazinski, thanks for ignoring the context, where Ejo was equating the *fact* of winning with "deserving" to win, as if there were some connection there.

Many who deserve to win, lose, &vice-versa.

Happily, we defeated the Nazis, so that Volokh commenters are free to emulate them in word if not in deed. See above, passim.
6.29.2007 7:52pm
CharleyCarp (mail):
Sorry to come so late to the thread. I guess I'm just out of the habit of reading VC.

A couple of thoughts:

1. A number of prisoners have district court orders requiring notice (usually 30 days) before they are removed from Guantanamo. I wouldn't expect DOD to disregard these, and so the midnight removal idea isn't likely. Releasing the Boumediene petitioners -- who were mostly arrested in Bosnia, by the way, not on some battlefield -- might moot the case, but the next group is right behind them in the queue.

2. Outsourcing detention isn't going to moot the cases. It'll just make it worse for the government, because it will be unable to control access to the prisoner.

3. Closing the prison is an obvious solution to the black hole problem, but doesn't get the government out of its bigger problem: that it tortured and abused a huge number of people who knew little or nothing about anything. They'll have a right to habeas if they're brought to the US, and some very ugly truths will come out.

4. Many of the prisoners were civilians, and many others were low level people. There's no real risk -- certainly not of 'losing the war on terror' that attaches to releasing Osama's driver, or a Taliban private, much less some sheep trader. Anyone who thinks there are no such people hasn't been looking at the CSRT and ARB records.

5. The high level people should be tried in Leavenworth, or the S.D.N.Y. So what if KSM gets to say his bit? Are we really afraid to put the guy on trial?
6.29.2007 7:52pm
tsotha:
Whether or not it's official policy, the troops will stop taking prisoners if they see to many recycled jihadis.
6.29.2007 7:52pm
tsotha:
Gah. That would be "too many".
6.29.2007 7:53pm
Bob from Ohio (mail):
It is not facism to suggest that the Constitution gives certain powers to the President and Congress and denies them to the Judiciary. Ever hear of the "political question" doctrine.

If the President defied the first (lower) federal court and he was not impeached and removed from office, then Congress would have ratified his actions.

Don't make a fetish about the judiciary or judicial review. Even the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes.
6.29.2007 7:54pm
Cornellian (mail):
It is not facism to suggest that the Constitution gives certain powers to the President and Congress and denies them to the Judiciary. Ever hear of the "political question" doctrine.

The "political question doctrine" appears nowhere in the Constitution.
6.29.2007 8:04pm
ATRGeek:
A couple years ago my wife and I walked into a donut shop. We were the only customers there and yet the two teenage girls behind the counter, who clearly saw us, just kept talking to each other. After some throat clearing on our part, one of them finally addressed with a curt "What do you want?" Afterwards I remarked to my wife that I suppoed this is the level of service one has to expect in the retail donut market when the unemployment rate is down to 4%.

Reading this thread, I am inclined to comment again that I suppose this is the level of support one has to expect for the Administration's lawless policies when their approval ratings are down to 30%.
6.29.2007 8:13pm
Just an Observer:
I just watched the discussion of this issue on "Fair and Balanced" Fox News Special Report, and am much stupider for the experience

First, David Rivkin was interviewed by Jim "Gee Whiz" Angle, breathlessly reinforcing his favorite and fallacious strawman: that if Guantanamo is closed, all the detainess will immediately be treated as civilian criminal defendants with full due process and almost certainly released. Fred "Barney Rubble" Barnes later concurred in this weighty legal judgment. Morton "Waterboarding is Cooler than Wedgies" Kondracke averred that he trusts John Roberts, Samuel Alito and Anthony Kennedy to find a middle ground.

FWIW, Charles Krauthammer opined, as if in response to Orin's question above, that Bush will close Guantanamo this summer to "preempt" the Supreme Court.
6.29.2007 8:15pm
Just a Nut (mail):
Professor Kerr's letter in support of the move ultimately taken by the Court is impressive. This move gives the pragmatists among us some hope that our better way of dealing with such situations will prevail in the end.

There are no illusions about the regressive seventh century enemy we face. This enemy expects and demands that non-muslims pay a tax and keep their hands off muslims. It also believes that it is authorized by no less than God to execute our troops. Indeed, our execution or maltreatment of its 'muslim' warriors makes it imperitive that ever more terror attacks be launched against us.

The way to deal with such a threat is to ignore its divine pretensions and judge it by our well established civilian standards for such dellusional actions. If need be, send them to prison for life. Some of them need to be in the prison mental health ward.

Treating them with special procedures is a mistake for they are but common criminals-- not all Muslims--just this group. Such treatment makes them feel specially effective warriors and celebrate as martyrs mentally disturbed or misguided delusional and destructive operatives.

And our friends in Saudi Arabia need to shape up and grow up into a responsible state instead of turning out such destructive forces. This should be the focus of our foreign policy.

Many here forget that the AQ approach to the West was also the approach we funded to push out the Soviets from Afghanistan. We just left the battlefield without unloading and holstering this weapon becauase 'state-building' was not our forte. At this time the Court has an opportunity to show that at least torturing prisoners is not our forte. Maybe nation building needs to be our forte and we should do the job right this time.
6.29.2007 8:18pm
Nick M:
Rivkin also had a wonderful quote on NPR:

"The biggest problem which has emerged in the last several months in this war...much more difficult than the counter-insurgency in Iraq...is an overly aggressive arrogant and imperialistic attitude of the judiciary, that becomes engaged in scrutinizing military decisions to a level unheard of in our political and constitutional history."
6.29.2007 8:22pm
TZiese:

We executed plenty of folks in Germany, and in the Pacific War, too. The military justice was swift. You get a hearing. You get a judgement. Then you get a rope. That's why Bush has stalled this so long. If he'd put those guys in front of a panel of uniforms any time within the first year or so... when the uniforms were first being bloodied out in the field... there woulda been some execution sentences handed down, make no mistake... perhaps hundreds of 'em. Far less chance of that now... which was the whole intent. You can't let 'em go, and you can't put 'em in front of a panel, so you wait... and take the heat, which is what we've been doing.


We won with a segregated military during WWII as well. We weren't saints back then. Nor are we saints now.

Yes, you can put suspected terrorists in front of a panel. Just as long as it's legal.

Also, I'm not sure I'd endorse a system where the due process is described as "You get a hearing. You get a judgement. Then you get a rope." That's not justice. That's a show trial. If you're arguing against Geneva, lobby Congress to withdraw from the treaty. If you don't like the UCMJ, lobby to change it. But until that dark day, I'll continue to insist that our nation continue to be a nation of laws, not of men.

On Senator Stabenow "side[ing] with Osama," with regards to shutting down Gitmo, do you also agree that the Defense Secretary, the Secretary of State, among others, have sided with Osama? After all, Gates and Rice also believe Gitmo should be closed. And if our two highest cabinet officials have truly turned traitorous, we're in much worse shape than I thought.

Also, I had to look up what "BDSers" meant. I assume you mean "Bush Derangement Syndrome." I'm not deranged. Nor do I hate President Bush. Indeed, recently, he's done pretty well. I thoroughly endorse the expansion of the PEPFAR anti-AIDS package. I endorse the aims of NCLB. In Texas, Governor Bush was great on education, including endorsing the "10%" system for college admissions. I like where his heart is with regards to immigration. I fully support the invasion of Afghanistan. Though I did not support the Iraq war initially, I believe the surge should be allowed its chance. I support General Patreus. I believed that Roberts and Alito should have been confirmed, though I disagree with some of their views. Most of all, President Bush seems to be a personally decent guy. In person, he's tolerant of gay and lesbian Americans (politically, it's slightly different.) Additionally, he's beyond reproach in terms of racial and gender tolerance, assembling a very diverse cabinet without personal congratulations or much fanfare.

Indeed, it would be perfectly legal if we were to simply detain all Al Qaeda members (and all suspected Al Qaeda members) for the duration of hostilities, as long as we treat them humanely.

No, I'm not deranged. I don't impugn your motives. Please don't question mine.
6.29.2007 8:27pm
Just an Observer:
Bob from Ohio: If the President defied the first (lower) federal court and he was not impeached and removed from office, then Congress would have ratified his actions.

Don't make a fetish about the judiciary or judicial review. Even the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes. Don't make a fetish about the judiciary or judicial review.


Call me old-fashioned, but I am amazed by the contempt for the rule of law embodied in such remarks, which ignore Marbury and a couple of centuries of precedent and history. Thankfully, no justice – regardless of ideology or philosophy – agrees with such drivel. Dick Cheney just might, and that is something worth worrying about for the next 19 months.
6.29.2007 8:43pm
whackjobbbb:
I wasn't speaking to your motives, and if you're asking for my motives, I think Bush has had more failures than I can count, and I am not quite so complimentary as you appear to be. But even though I don't go nuts as a result of those oppositions, BDS is alive and well in others, and scroll up if you want to see it exemplified. Stabenow voted alongside Bush, as did others of her chosen political sect. The BDSers continually want to disown responsibility for this, but they need to look in the mirror.

You have an opinion of what the UCMJ says, and perhaps it's correct, but others disagree with you on that. We know we whacked folks in WWII, and I'm not convinced that the military hasn't the authorization to do that now. That's why Bush kicked the can down the road, and I believe that was the tough but smart road.
6.29.2007 8:44pm
TZiese:
Fair enough. And I want to apologize if I came off as mean-spirited.
6.29.2007 8:45pm
Nathan Wagner:
The ultimate goal of closing Guantanamo is to bring the detainees to the US where it can be argued that they have a right to US civilian due process.

But one of the chief problems with giving the GWOT detainees the process due to US civilian citizens is that evidence acquired by certain means of intelligence (electronics, spies) cannot be made public without compromising those means of intelligence. In a conflict where the enemy operates almost entirely in the shadows and strikes without warning, intelligence is the most important countermeasure we possess. Civilian due process would force us either to show our hand in terms of intelligence, thereby severely compromising our ability to prevent terrorism, or to simply release the detainees.

I acknowledge that the detainees do presently face a process that is stacked against them, that has far fewer safeguards than we would consider acceptable in a traditional legal proceeding. But granting them civilian due process is, from a national security perspective, simply foolhardy.

If the choice is between imperiling the security of the United States with regard to terrorist attacks or denying detainees civilian due process, I'll go with national security every time.

(I have enough confidence in our armed forces, moreover, that I doubt the characterization of the detainees as poor innocent shepherds caught in the maw of an undiscriminating US war machine is at all accurate.)

Judge Posner(!) would seem to agree.
6.29.2007 9:22pm
Daniel950:

Call me old-fashioned, but I am amazed by the contempt for the rule of law embodied in such remarks, which ignore Marbury and a couple of centuries of precedent and history.


Contempt for the rule of law? This is what he said: "the Supreme Court is bound by the Constitution. Even the Supreme Court makes mistakes. Don't make a fetish about the judiciary or judicial review."

How is that contempt for the rule of law? Today's decisions depend on how Justice Kennedy is feeling.

I'm with Bob from Ohio on this one. The President will have to tell the Court to #**@ off if we're to win the war on terror. Let them whine. He won't be impeached, and the Court will finally learn some humility.

I don't expect this Court-worshipping blog to understand such sentiments. But then again, just because you dress up some unelected snobs in black robes doesn't mean you get to call every word that issues from their mouths the "Rule of Law," especially when their words are entirely arbitrary.
6.29.2007 9:23pm
Just an Observer:
It amazes me that people seem to think lately that the correct "conservative" position somehow endorses executive supremacy over the courts in matters of constitutional interpretation.

The following was written by CJ Rehnquist and joined by Justices O'Connor, Scalia, Kennedy and Thomas in United States v Morrison

Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature’s self-restraint. See, e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) (“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written”). It is thus a “ ‘permanent and indispensable feature of our constitutional system’ ” that “ ‘the federal judiciary is supreme in the exposition of the law of the Constitution. ’ ” Miller v. Johnson, 515 U.S. 900, 922—923 (1995) (quoting Cooper v. Aaron, 358 U.S. 1, 18 (1958)). No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon, 418 U.S. 683 (1974), “[I]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others… . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury … that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Id., at 703 (citation omitted).


Of course, John Roberts and Samuel Alito weren't around for that case in 2000. But anyone who thinks they would disavow the doctrine of judicial review and supremacy simply does not know them. This is the mainstream conservative position.

If George W. Bush defied a court order as suggested by commenters such as Bob in Ohio and Daniel950, the President would get a 9-0 smackdown without delay.
6.29.2007 9:33pm
Ryan Waxx (mail):
> Colin: How do we "lose" to Al Qaeda? Are they going to storm our beaches and loot the Library of Congress? I consider "losing" to include "becoming too much like our enemy,"

And by this definition, the folks in the WTC are all winners. Great critical thinking skills... I hope you're in law school, we can sure use a few hundred more of you to ensure a steady flow of corpses who will never again be in danger of becoming too much like the enemy.
6.29.2007 9:48pm
Anderson (mail) (www):
Thanx, CharleyCarp!
6.29.2007 9:53pm
TZiese:
And by this definition, the folks in the WTC are all winners. Great critical thinking skills... I hope you're in law school, we can sure use a few hundred more of you to ensure a steady flow of corpses who will never again be in danger of becoming too much like the enemy.

The folks who died on 9/11 certainly aren't losers in my book. But come on, now.
6.29.2007 10:31pm
JosephSlater (mail):
I just re-read this quote from Rifkin that NickM cites above:

"The biggest problem which has emerged in the last several months in this war...much more difficult than the counter-insurgency in Iraq...is an overly aggressive arrogant and imperialistic attitude of the judiciary, that becomes engaged in scrutinizing military decisions to a level unheard of in our political and constitutional history."

That's absolutely astonishing. The last three months have been the deadliest quarter for U.S. troops since the war began more than four years ago, Republicans are defecting from Bush's war plans, support for the war in U.S. opinion polls continues to sink, and the "judiciary" -- headed, we were certainly reminded this week, by a Supreme Court with a solidly conservative majority -- is a much bigger problem than the counter-insurgency in Iraq?
6.29.2007 10:56pm
DrGrishka (mail):
I really do not even understand why it matters that Gitmo is part of Cuba or part of the U.S. Under Ex Parte Quirin, these individuals cna be tried by a military commission even if they were in the US proper. Unless the Court is willing to overrule Quirin and also disregard their own invitation for the President to seek Congressional authorization for military commissions, I do not see how the DC Circuit erred.
6.29.2007 11:08pm
DS:
Folks, don't believe Happyshooter's nonsense about post war Germany and executions.

Here's a study from Berkely on post war justice in Germany.

The main point made right away is that the British favored summary execution but the United States convinced them to give the Nazi's trials. The majority of these trials did NOT result in the death penalty and in half the cases where it did, the sentence was commuted. In total, the US sentenced 450 Germans to death AFTER giving them a fair trial with representation.

In contrast, by some estimates, the Soviet Union summarily executed 45,000 Germans in occupied East Germany. Perhaps Happyshooter is confused. He can't tell the difference between United States history and commie history.
6.29.2007 11:11pm
DrGrishka (mail):
DS,

Yes, trials in front of military tribunals. Not in Article III courts.
6.29.2007 11:27pm
Gildas:

The Supreme Court of the United States, in Hamdan v Rumsfeld, settled the question about which you continue to sputter: The detainees we are holding in Guantanamo are covered by Geneva Common Article 3. It was in all the better papers.

I may be wrong, but I'm pretty sure that particular bit was in the part of the plurality opinion Kennedy did not join. Which, under Marks means it was not a holding of the court.
6.29.2007 11:33pm
DS:
DrGrishka,

Look at Happyshooter's post above. This is what he claimed we did in Germany.

"We (America) gave each German captured a short hearing in front of a commissioned officer to determine if they were unlawful combatants. If the answer was "yes" then they were executed in short order."


That's not even a military tribunal. In addition, everythign I've been able to find says we followed the letter of the Geneva Conventions in dealing with POWs.

In fact, in 2004, the Germans issued a formal thank you to us for how we treated their combatants.
6.29.2007 11:39pm
Just an Observer:
Daniel950: Contempt for the rule of law?

... The President will have to tell the Court to #**@ off if we're to win the war on terror. Let them whine. He won't be impeached, and the Court will finally learn some humility.


I couldn't ask for a better example of contempt.

Clusters of such comments often seem to pop up in legal blog threads when this administration faces a serious setback in the courts. I do wonder if White House operatives find it in Bush's political interest to make deniable threats. Or maybe these particular bombthrowers are Giuliani provocateurs, stirring his natural base.

Perhaps I am wrong, and such a crass anti-legal attitude just springs up in the population like weeds after a rain. But why would such persons spontaneously visit legal blogs in such cohorts?
6.29.2007 11:40pm
Mark Field (mail):

Under Ex Parte Quirin, these individuals cna be tried by a military commission even if they were in the US proper.


I don't think a single person here disagrees with this. The question is not the title of the court, it's whether they provide fundamental fairness.
6.29.2007 11:40pm
DrGrishka (mail):
Mark,

I actually think that unfortunatley there are plenty of people who disagree with that. In any event, under Quirin, neither "fairness" nor any other issues are appeallable to federal courts.
6.29.2007 11:46pm
JosephSlater (mail):
Must the Seattle school system tell the Supreme Court to "#**@ off" if we're ever to win the war against racism and its legacy? That would sure teach the court humility.
6.29.2007 11:55pm
CharleyCarp (mail):
DrGrishka, are you saying that the Supreme Court held in Quirin that it lacked jurisdiction to review the result of the military tribunals? You say that there are plenty of people who claim that unlawful enemy combatants cannot be tried before properly constituted military tribunals which apply ordinary procedural safeguards. Can you name 3?

A number of commenters above would do well, in my opinion, to refresh themselves on the US history recounted by the Court in Quirin.
6.30.2007 12:15am
Adam J:
Nathan Wagner says "one of the chief problems with giving the GWOT detainees the process due to US civilian citizens is that evidence acquired by certain means of intelligence .. cannot be made public without compromising those means of intelligence. ... Civilian due process would force us either to show our hand in terms of intelligence, thereby severely compromising our ability to prevent terrorism, or to simply release the detainees."

The administration has been playing this need for secrecy card (in a number of different ways) for a some time now, but is actually true? Nobody has yet to explain exactly why civilian courts aren't capable of developing methods to protect these sources of intelligence- can't the court just engage in some in-camera review and editing to protect this source? (surely I'm simplifying, but is it really completely unfeasible?)

Secrecy also insulates the administration from review by the other branches and the public and thus allow a number of injustices that probably wouldn't have occured if there were more transparency in the process in these cases. Is the alleged risk to intelligence really worth this?
6.30.2007 12:17am
Daniel950:

Must the Seattle school system tell the Supreme Court to "#**@ off" if we're ever to win the war against racism and its legacy?


Depends on who you ask. That's the thing about democracy. The people are sovereign, not the Court.

The Court is all about one thing, and one thing only: expanding its own power. Thus, we don't know what the rules are for Constitutional governance in this country until Justice Kennedy decides to make up his mind.

If that's not the rule of men, I don't know what is. The strange thing is that if you stick some elitist in a black robe and give him a job for life, people are dumb enough to call the frivolous whims issuing from his mouth the "rule of law."
6.30.2007 12:23am
CharleyCarp (mail):
(I have enough confidence in our armed forces, moreover, that I doubt the characterization of the detainees as poor innocent shepherds caught in the maw of an undiscriminating US war machine is at all accurate.)

Do you have the same confidence in Afghan bounty hunters? Pakistani police? Bosnian police? What if, say, the Bosnian authorities decide that they made a mistake, and there isn't sufficient evidence? What if their courts order the release of prisoners for lack of evidence? Do you trust that? What if the CIA picks up people at, say, the Macedonian border and flies them to prisons in Afghanistan, because they have names that are similar but not identical to people with names on a watch list?

What if our government agrees to characterize dissidents from a certain country as terrorists -- even though they've never done anything remotely like terrorism nor taken any position against the US -- in exchange for that country agreeing to abstain from a certain UN security council vote? Are you willing to trust Chinese diplomats?

What I don't get is why people are so afraid of these relative nobodies* that they're willing to ditch so much of what makes our system good in order to avoid facing the real possibility that a bureaucracy makes mistakes.

* Obviously, everyone is somebody to his/her family and friends. I mean in the context of a struggle against violent threats to US lives.
6.30.2007 12:34am
Just an Observer:
Me: The Supreme Court of the United States, in Hamdan v Rumsfeld, settled the question ... The detainees we are holding in Guantanamo are covered by Geneva Common Article 3…

Gildas: I may be wrong, but I'm pretty sure that particular bit was in the part of the plurality opinion Kennedy did not join. Which, under Marks means it was not a holding of the court.

The way I read it, that holding was found in Parts VI through VI–D–iii, which were included in the opinion of the Court. The last of those enumerated parts begins, "Common Article 3, then, is applicable here …"
6.30.2007 12:36am
unhyphenatedconservative (mail):
Daniel, it's simple. Long ago, the robed masters set themselves up as the Delphic oracles with the last word on Constitutional meaning. Amazingly enough, no subsequent Court has questioned that power. Thus, we must revel in the brilliance of whatever 5 of the 9 decide.
6.30.2007 12:37am
DS:
Dr Grishka,

I'm not sure that per Quirin is as clearly on Bush's side as you think. Consider the definition of "unlawful combatant in that opinion.

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.


So what makes someone an unlawful combatant is basically the way they fought, not identifying themselves as the enemy in violation of the Laws of War, not whether the cause they fought for was legal. The guy who pretends to be an Iraqi civilian and then attacks would qualify, but does the guy who participates and is captured in a stand-up fight?. It's not at all clear that Bush is making this distinction and I think that's the significance of the military lawyer's charges recently that the administration was providing no real process for determination of status.

The Court also refused to agree that the enemy combatants should be refused access to the court to determine the Constitionality of the tribunals themselves and notes the makeup and character of those tribunals as constituted in determining their constitutionality. So the Court could easily come to the conclusion that the military tribunals as constituted then were legal and todays are not because the same legal fairness that existed then is not in place now.

The Court also indicates that there are a class of offenses that are only triable by jury under the constitution and therefore military tribunals could not be applied in those cases -- even if they were unlawful enemy combatants.

We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury. It was upon such grounds that the Court denied the right to proceed by military tribunal in Ex parte Milligan. But as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury. . . .


The Court says that the Fifth and Sixth Amendments don't apply ONLY because the matter at hand is a violation of "the laws of war" rather than civil law. But if there is no process for finding whether there is in fact a law of war violation in question here or if the definition of violating the law of war has been so expanded as to become meaningless than could the Court rule that the tribunals don't have jurisdiction until they establish such procedures and those procedures come to such determination?
6.30.2007 12:39am
CharleyCarp (mail):
I don't mean to be a thread hog -- one more and I'll quit.

It's evident that Gildas has misremembered the Kennedy opinion in Hamdan -- there's certainly no doubt that he's agreeing that Common Art. 3 applies.
6.30.2007 12:44am
Walt Quist (mail):
This is the most ridiculous thing I have ever heard. These guys are not even a formal fighting unit. They are terrorists. So we are going to do something we would never do for combatants captured fighting on the battlefield against a normal army.
6.30.2007 12:46am
CharleyCarp (mail):
Walt Quist: are you talking about people arrested in Bosnia? If not, why not?
6.30.2007 1:26am
CaseyL (mail):
These guys are not even a formal fighting unit. They are terrorists.


Quite a few of them aren't, actually.

We know this as surely as we know Earth orbits the Sun, because quite a few "terrorists" have already been remanded to their homelands (including Australia and the UK) where the evidence - or, rather, lack of evidence - was reviewed, and the remanded prisoners set free.

There are prisoners at Gitmo who were turned over by bounty hunters looking to make some money.

There are prisoners at Gitmo who were captured at the ripe old age of 13. Child soldiers, in other words: possibly recruited by force, given no choice in the matter - and, in any case, not of sufficient legal, mental or moral age to be held culpable for their actions. The US is engaged in efforts to rescue child soldiers in Africa; is there some reason we should be imprisoning child soldiers who happen to be in Arab countries?

One reason for all this court action is because we don't know which prisoners of Gitmo et al. are terrorists. They aren't terrorists just because Bush says so, or because bloggers say so, or because you say so.

I don't understand why the Right insists on whipping itself into hysteria over the prisoners at Gitmo et al. It's not strong or resolute or serious or courageous. It's mindlessness to the point of primitivism.
6.30.2007 1:26am
Randy R. (mail):
IT isn't necessarily the Right that insists on whipping itself into hysteria. Rather, it's a mindset of revenge. Some bad people blew up our buildings, so someone must pay. Doesn't really matter if the people we decide pay are guilty or innocent. That's why they love all the torture stuff. It's all about revenge and hate -- some of these guys are bad, so let's just torture all of them just for fun. Doesn't matter if there is information from them, or if the info is wrong. The point of torture is torture. And the point of throwing all the Gitmo detainees into jail without a key is to just throw them into jail without a key.

You will notice not a single one of them has argued that it really would be bad to execute an innocent man, because in their view, ALL are guilty. If not in fact, then certainly by association. Call it, breathing while being muslim.

If terrorism still exists after all this, then it just means we need to torture MORE people, not less. It means we have to round up more for execution. And of course, terrorism WILL exist after all this, because the point isn't to really capture terrorists -- it's all about feeling good about something we don't understand.
6.30.2007 2:19am
Kazinski:
DS:
You seem to get half the equation not the other half. You're right that only illegal enemy combatants can be put on trial. But that doesn't mean everyone else just gets let go with an apology. Legal enemy combatants are held without a trial until hostilities cease. They may have a hearing to make sure that they actually are combatants, but they haven't done anything wrong so there is no need to put them on trial. But there is no need to release them either.
6.30.2007 3:59am
Thomas_Holsinger:
DS,

My uncle Virgil was a 1st Army MP captain during the Battle of the Bulge, and in that capacity was instructed on the procedure to follow in the event his company captured any of Skorzeny's commandoes (the ones who infiltrated our lines wearing American uniforms).

The rules were:

1) Tell higher command ASAP while interrogating the prisoners about the whereabouts of any more like them. He gathered that there would be no questions about the means of interrogation.

2) Hang onto the prisoners until receiving orders on how to dispose of them.

3) The disposal orders would be either to send the dudes someplace else, or try &shoot 'em. Either they'd be passed onto some other unit, or they'd be executed. The trial had a foreordained outcome. Questionable cases would always result in a transfer of the prisoner rather than a field court.

4) The field court for the trial had to have least three officers, none of whom could be witnesses, with the senior being the presiding officer. And they had to make a written record of the proceeding.

5) The prisoner would have the right to speak in his own defense.

6) The only question for the field court to resolve would be whether the prisoner was a German captured in an American uniform. If he was (and again, they would be - any doubt was to be resolved before the trial in favor of sending him to wherever higher HQ said to send him), the sentence would always be death. And execution would be within minutes of the sentence.

At least a dozen of Skorzeny's comamandoes captured in American uniforms were executed after such trials during the Battle of the Bulge.

This was perfectly proper under the American Articles of War effective at the time, and more due process than required by the Geneva Convention. Since then the Uniform Code of Military Justice has replaced the Articles of War, and requires that far more due process be afforded unlawful combatants.

Other countries have signed new GC protocols since 1945 mandating more proceess for unlawful combatants, but not us. The only GC protocols we've signed since 1945 have either not concerned unlawful combatants, or the U.S. govt. made exceptions at the signing which excluded such changes. The GC protocols effective on us concerning unlawful combatants are the same as they were in 1944.

But our own statutes on the subject are considerably different.
6.30.2007 4:06am
JosephSlater (mail):
Daniel950:

Well, if you're against judicial review in *all* cases, that's principled. It's not, however, a position the U.S. government has taken for the last two centuries plus and not one it's likely to take, even if the Court holds that Gitmo detainees have habeus rights.

I look forward to reading your posts objecting to judicial review when the court comes to a substantive conclusion with which you disagree.
6.30.2007 10:08am
JosephSlater (mail):
Oops: the last word in my post above should have been "agree," not "disagree." Coffee before posting!
6.30.2007 10:09am
Mark Field (mail):

Mark,

I actually think that unfortunatley there are plenty of people who disagree with that.


I gave it 12 hours just to let anyone on my side disagree. So far, no one has.
6.30.2007 12:09pm
DrGrishka (mail):
Mark,

Judges Motz and Gregory obviously disagree. They held in al-Marri that people fighting for al-Qaeda are "civilians" and not subject to military comissions, but only to civil trials.
6.30.2007 12:57pm
Randy R. (mail):
During and after WWII, we treated the German soldiers for the most part quite well, and we even gave them certain freedoms within limits. We allowed them to organize their own holding centers and so on.

The end result is that the Germans were very surprised at how we treated them, and when they went back to rebuild Germany, they carried with them the ideas of democracy and freedom. That allowed Germany to remain peaceful and prosperous during the Cold War period.

How we treat our prisoners not only says a lot about ourselves, but we teach the prisoners the type of society we would like them to live. If we ever want to win this war on terrorism, what better way to convince then to let them live the way we want them to?

And by treating them as we do now, we convince them that we are just like the thugs their leaders tell them we are.
6.30.2007 1:06pm
whackjobbbb:
Very naive, Randy. Not only did we violate the Geneva convention re the treatment of those captured WWII U-boat crewmen at Fort Hunt (as we established the other day), but we also engaged in BLATANT recruitment of German prisoners to a political indoctrination program while they were here, and that too was/is prohibited as I understand.

It was what we wanted to do, so we did it, just like we wanted to shoot Skorzeny's commandoes, on a wave.

Save the fantasies. We do what we want, same as always, and as we're doing now. It's part of our history, law and tradition to do so. You wanna change that... fine. But don't fantasize that this is suddenly some new thing here.
6.30.2007 1:35pm
whackjobbbb:
For crisakes, in the Pacific War... they didn't take prisoners... only in the rare case was this done. And they "re-killed" every corpse they came across, and many of them that weren't corpses yet. Geneva SCHMENEVA.

Open any history book. Or better yet, ask somebody who was there, or listen to them speak on the history channel. I'm stunned how little you lawyers know about history.
6.30.2007 1:45pm
Just an Observer:
DrGrishka: Judges Motz and Gregory obviously disagree. They held in al-Marri that people fighting for al-Qaeda are "civilians" and not subject to military comissions, but only to civil trials.

That decision was specifically limited to persons such as al-Marri (a legal resident alien) seized in the United States:

Hence, the case at hand involves -- and we limit our analysis to -- persons seized and detained within the United States who have constitutional rights under the Due Process Clause.

That situation does not apply to any of the Guantanamo detainees, but obviously would also apply to citizens seized at home.

BTW, the al-Marri holding is not about trial by military commissions, but detention in military custody without trial.
6.30.2007 1:56pm
Mark Field (mail):
Thanks (again), JaO.
6.30.2007 2:18pm
DrGrishka (mail):
JaO,

I disagree. They explicitly said that in order to be an unlawful combatant, one must be a combatant 1st. And then tehy proceeded to hold that no one who is not in an employ of a foreign government can be a "combatant." The distinguished Padilla and Hamdi on the basis that the other 2 were in cahoots with the Taliban (supposedly a govt) while al-Marri was only member of al-Qaeda and not Taliban, and therefore is a civilian. That was the predicate. His physical location and locus of capture were not the determinative factors.
6.30.2007 3:08pm
Truth Seeker:
One of the complaints about US tratment of prisoners is that they were forced to fellate and sodomize each other. But the same people who are screaming that this is "torture" and "war crimes" are the ones celebrating that married couples in Mssachusetts are now allowed to do the same.

How can activites worthy of marriage in Massachusetts be torture or a war crime? Yucky maybe, but hey it's just a lifestyle choice.
6.30.2007 4:03pm
JosephSlater (mail):
Truth Seeker:

I assume/hope that was just a lame troll, but in case not, you might want to review the concept of "consensual" in the context of "sex acts" before, say, you try any with anyone but yourself.
6.30.2007 4:17pm
unhyphenatedconservative (mail):
"How we treat our prisoners not only says a lot about ourselves, but we teach the prisoners the type of society we would like them to live. If we ever want to win this war on terrorism, what better way to convince then to let them live the way we want them to?"

Very naive. The folks we are fighting don't hate us because they don't know how we want them to live. Indeed, from the founding of the Muslim Brotherhood with Sayed Qutb to folks like Atta, Zawahiri and Bin Laden, they know exactly how the West wants them to live and are just repelled by it.

America has historically won its wars not by playing nicely and currying world opinion but blowing the hell out of the enemy until they had no choice but to understand they were defeated.
6.30.2007 4:33pm
Angus:
Except that the "War on Terror" is not a war in the conventional sense. You can't declare war on a tactic. What you can do is minimize the damage terrorism can do. It seems to me that that mission has two parts:

#1 Defeat known terrorist groups militarily, capturing and killing their members.
-and-
#2 Keep new terrorist recruits and converts to a minimum.

Torturing prisoners and holding innocents for years on end (both of which happen at Guantanamo), or blowing up entire apartment complexes in Iraq to get at a single bad guy, might accomplish #1, but are counterproductive to #2.
6.30.2007 5:32pm
Just an Observer:
DrGrishka,

You are free to "disagree" all you like. Feel free to hold your breath, too. I really do not care.

I quoted the language from the opinion that expressly limited its scope to "persons seized and detained within the United States who have constitutional rights under the Due Process Clause." That language is not a matter subject to your opinion.
6.30.2007 6:01pm
Smokey:
I would like to ask any of the numerous experts here why the 11th Amendment doesn't factor into this situation:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Thanx in advance for any enlightenment.
6.30.2007 7:08pm
Dave Johnson (mail):
I suppose if those responsible for the car bombs in London and the attack in Scotland are caught there will be those who will rave they were just misunderstood charity workers and not responsible for their actions, and anywho who says otherwise was obviously tortured. Hopefully if they are caught they will not be brought to the U.S. or we will have to apologize to them for some as yet undetermined reason, but not until after we beat ourselves up in our courts and the halls of Congress, which could give bin Laden a good laugh. I'm not sure that another 9/11 (heaven forbid) would shift the focus where it belongs. We have met the enemy and it is us.
6.30.2007 7:27pm
TZiese:
Dave Johnson,

People who carry out terrorist attacks are NOT "misunderstood charity workers" and are CLEARLY "responsible for their actions." They are the enemy.

Who on earth in this thread is saying otherwise?
6.30.2007 7:32pm
Informant (mail):
"I would like to ask any of the numerous experts here why the 11th Amendment doesn't factor into this situation"

Re-read the amendment. It eliminates Federal jurisdiction over a lawsuit against "one of the United States". This means in most situations *state* governments cannot be sued by private individuals in the Federal courts. It has no applicability to lawsuits against the government of the United States.
6.30.2007 8:06pm
Smokey:
Thanks, Informant. I suppose that was just an oversight by the writers.
6.30.2007 8:14pm
CharleyCarp (mail):
We have met the enemy and it is us.

Well, I certainly haven't run into as many people who hate us for our freedoms as are commenting here.

Or as many people who think the best way to deal with a new kind of war is to use the tactics that worked in the old kind. there's no way to defeat the enemy in this thing by simply killing enough people. There's no benefit to locking up a bunch of schmoes, shepherds and wannabes in circumstances that harm the reputation of the country. Secs Gates and Rice see the harm, and former Sec. Powell as well.

It ought to be clear to anyone who spends even a minute thinking about it that 350 prisoners at GTMO have different stories, different motivation, different mindsets. Some were captured on battlefields, but a great many were not. Some were in Afghanistan, others were in Gambia. The military system for dealing with these people was deeply flawed, first and foremost because civilians in Washington disregarded and overruled what the military (and its lawyers) wanted to do. In a real sense, these prisoners are pawns in Dick Cheney's broader constitutional game: their facts and status doesn't matter as much as the principle that the Executive isn't accountable for how it is treating these particular human beings.

I've said since Boumediene was decided in the Circuit that I think there are 5 votes for the proposition that the Gitmo base is within the geographical ambit of the Suspension Clause -- I'm far from alone in this, as we see from Prof. Kerr's testimony. I haven't seen any reason in the ensuing discussion to rethink that position.

This leaves us with Prof. Kerr's question: would the government prefer to ride its error into the ground, and take a loss in 2008, or would it try to cut its losses, by closing the prison and moving the 50 people actually worth holding (if that many) to Leavenworth. If past is prologue, I'd think option (a) is more likely. They must have known that they were going to lose Hamdan; I was quite surprised when they didn't release him, given what a small fish he is, and how much time they would then buy before the next case made it all the way through the system. Instead, it appears that the politicos thought they could run against the Hamdan opinion (which indeed might have worked if the Dems had filibustered the MCA last fall). Closing the prison and relocating prisoners opens so many cans of worms. but on the other hand, Sec. Gates is (imho) much more reality focussed on such things, and might indeed prefer not to lose in the Supreme Court. So, I just can't guess whether the Administration is actually going to close the prison (rather than merely say that it's going to, while building new prison buildings, etc., as it did in 2006).
6.30.2007 8:23pm
Ricardo (mail):
Some people seem under the impression that Guantanamo Bay holds only people apprehended "on the battlefield" in Afghanistan or Iraq. This is false. The details of how many prisoners came into U.S. custody are secret but there have been reports that there is at least one who was captured in Bosnia while others were arrested or abducted in East Africa or Pakistan. The publicly released list of detainees shows a large number of Pakistani citizens held in addition to Russians, Chinese and many other nationalities.

Also note that sending these people back to where they came from is not an option in many cases: they are in Guantanamo largely because their own governments decided they should be someone else's problem.
6.30.2007 9:05pm
HGriffin:
CharleyCarp: I agree with you that Gitmo is within the geographical ambit of the Suspension Clause (and I don't think moving detainees from Gitmo to detention in the US will change their legal status). It is worth noting, however, that the scope of habeas for enemy aliens is strictly limited by the Eisentrager decision. Part 1(d) of Eistentrager says "A resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment.

If the AUMF resolutions constitute a declaration of war (as suggested by the 1st circuit's Doe v Bush decision) then Eistentrager would limit detainee's habeas rights to forcing a CSRB hearing, which the MCA of 2006 prohibits (violating Eisentrager) and appealing the results of a CSRB (which is authorized by the combined texts of the DTA of 2005 and MCA of 2006).
6.30.2007 11:16pm
Oren (mail):

Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy. (my emph)


The justices left unspecified the amount of scrutiny courts ought to apply when answering the second prong of the test. Given the current debate over the issue, it seems clear that more guidance is needed.
6.30.2007 11:51pm
Elliot123 (mail):
Steve: "...maybe you're from the school that says the world is our battlefield."

The world is our battlefield against Al Queda. They killed people in New York, Bali, London, Spain, Israel, Saudi Arabia, Bahrain, Yemen, Germany, Lebanon, Philipines, Italy, Egypt, Etheopia, Somalia, Nigeria, Pakistan, India, and Afghanistan. Do you dispute that? If so, why? Is there a battlefield in the fight against Al Queda? If so, what is it?
6.30.2007 11:56pm
DrGrishka (mail):
JaO,

Simply because that is what they said does not mean that their analysis is inapplicable to Gitmo detainees. Their holding included EVERYONE who was "merely" associating with al-Qaeda.


Hamdi and Padilla ground their holdings on this central teaching from Quirin, i.e., enemy combatant status rests on an individual’s affiliation during wartime with the "military arm of the enemy government."

***

the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non-international conflict, and ignores the fact that in such conflicts the "legal category" of enemy combatant does not exist.


I fail to see where exactly that logic or holding is limited to individuals captured or held in the US
7.1.2007 12:27am
ReaderY:
In Eisentrager, the Supreme Court held that the term "person" in the Bill of Rights, particularly the Due Process Clause of the, lacks "extraterritorial application." to non-citizens. In Roe v. Wade, the Supreme Court, using almost identical language, held that the same language in the same clause lacks "prenatal application." Both decisions used a very similar textual analysis of the use of the term "person" in the Bill of Rights to hold it did not apply in the respective situations.

In the years since we've heard much talk that the United States should respect the constitutional boundaries of the term "person" as used in the Bill of Rights and should never treat constitutional non-persons as persons. Doing so, it was said, represents nothing more than an imposition of religiously based morality on a modern secular society in violation of the First Amendment. The moral worldview involved, it is said, is simply an extension of a backwards medieval society and has no place in modern moral thought. It impedes people's fundamental right to autononmy - to make choices about how to live their own lives. Moreover, doctors and women can surely be trusted with a choice about how best to assure their own health and express their own autonomy.

All of these statements would seem to apply equally well to the extraterritorial as the prenatal. A negativistinc, anti-choice traditionalist moralism on military choice springs from the same medieval morality as on reproductive choice. Both reflect similar religious traditions which would seem to have equal relevance to a modern secular society. While people of faith may personally regard the pre-natal or the extra-territorial as persons for their own religious purposes, surely it would be equally inappropriate to impose that religious belief down society's throat in the one case as the other?

Why should non-military people be making military decisions? Aren't military people qualified to make military choices in much the same way doctors are qualified to make medical ones?

Doubtless the United States would have the legal right to make a treaty promising that its military will not perform abortions in signatory countries. But what would we think of people who demanded that such a treaty should not only be treated strictly but enforced even with respect to non-signatories.

For surely so far as the Constitution's concerned, there's no difference whatsoever between terminating an enemy combatant and an abortion, between an extraterritorial and a pre-natal termination. It may be true that we have archaic treaties on our hands reflecting a pre-Roe moral outlook that's simply out of touch with our modern understanding of American's freedom of choice, autonomy, and rights, particularly where termination of nonpersons is concerned. But surely we shouldn't let the moral-mongers among us, people with fundamentalist religious tendencies, exploit these archaic treaties in violation of the essentially secular nature of our society, or denigrate American's basic rights to choice.

Roe stands for the proposition that the rights of person trump any obligations to non-persons, that the very idea of thinking of non-persons as deserving of obligation is inimical to the fundamental fabric of American society.

Either we should enforce Roe or we should overrule it. Either the definition of "person" articulated by the Supreme Court is to be taken seriously, and non-persons are mere lumps of flesh and we have regard for them only because it pleases our traditional values to do so, or not.

One can't ask others to abide by the Supreme Courts' decisions on what a "person" is if one isn't willing to do so oneself. Either everyone should refrain from imposing their own traditional beliefs on the public whenever they differ from the definition of "person" articulated by the Supreme Court, or we should all accept the proposition that Roe explicitly rejected -- that the definition of "person" used in the Due Process Clause doesn't decide the question, that there other important, legitimate, even compelling concerns involved.
7.1.2007 12:33am
ReaderY:
It's worth noting the language of Kennedy's concurring opinion in Rasul v. Bush -


The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter.


This language mimics the language used in privacy cases.

It would seem as a practical matter that even if Alito ended up disagreeing with O'Conner, Kennedy bought the idea that Eisentrager controls, but that Guantanamo Bay is legally - at least for Fifth Amendment purposes - a territory of the United States by virtue of the terms of the 1903 treaty with Cuba. Accordingly, if the United States wants to avoid difficulties, all it has to do is move the detainees to a place that isn't legally U.S. territory -- perhaps some place in Iraq or Afghanistan.
7.1.2007 12:50am
Harvey Mosley (mail):
This may seem a bit out there, but I really am looking for an answer. If Bob Badguy and Frank Felon decide to rob the First Bank of Ourtown, and Bob waits in the car as the driver while Frank goes inside for the withdrawal and shoots and kills Sam Securityofficer on the wait out, isn't Bob guilty of felony murder?

Now, suppose that we give ALL of the unlawful enemy combatants civilian trials. Suppose we find a certain number of them guilty of murder. Wouldn't all who directly aided those found guilty also be guilty of felony murder?

Wouldn't that mean they could face life imprisonment or the death penalty?

Please forgive the long-windedness, but I really would like to know if this is correct.
7.1.2007 5:50am
Anderson (mail) (www):
CharleyCarp: They must have known that they were going to lose Hamdan

Jane Mayer's article on Addington doesn't seem to be online, but IIRC, there was genuine shock in those quarters when they lost Hamdan.

Also plenty of subordinates who could've said "I told you so!" had they dared. But the higher-ups had drunk the Kool-Aid.
7.1.2007 10:34am
Anderson (mail) (www):
Mr. Mosley, to the extent that a detainee could be tried under U.S. law, that is probably correct.

One of the problems is that this Administration has wanted to expand "directly aided" to ridiculous levels. See CharleyCarp's famous-or-should-be-famous blog post on the Little Old Lady in Switzerland.

Another is the insistence on military commissions -- apparently so that evidence obtained via abuse or torture can be introduced, with the abuse/torture itself hushed up.

So, for instance, we get detainees charged under counts of "conspiracy" that don't really exist at military law. See the plurality Hamdan opinion.
7.1.2007 10:43am
Just an Observer:
DrGrishka: Simply because that is what they said does not mean that their analysis is inapplicable to Gitmo detainees. Their holding included EVERYONE who was "merely" associating with al-Qaeda.

No. The holding included only what the court said it included, and the court expressly limited its scope to "persons seized and detained within the United States who have constitutional rights under the Due Process Clause."

If you choose to infer that similar logic might also be extended to others, such as Guantanamo detainees, then that is merely your own inferential argument. Since you are not the court, you cannot redefine the scope of the court's holding to include what the court expressly excluded. Calling your own inference a "holding" of the court is simply a lie.

(Perhaps, especially if the Fourth Circuit opinion is upheld, attorneys for the Guantanamo detainees will make the same inferential argument you offer, and the government then will argue the contrary. But either way, the courts would have to be persuaded before there is any holding on the question.)

In any event, your own analysis omits an important element in the chain of logic employed by the Fourth Circuit opinion -- that al-Marri, like Hamdi and other citizens, has in the first place Fifth Amendment Due Process rights, and that Hamdi v Rumsfeld defined a particular exception those rights that is described in part by reference to the laws of war.

Do you maintain that the Guantanamo detainees have such Due Process rights under the Constitution? If so, you should offer to file an amicus brief to that effect. No doubt they will appreciate your contribution.
7.1.2007 5:46pm
NIB (mail):
And, after you read all these comments, there are strong arguments that the Courts ought to ‘bug out’ on all matters military. The President under the Constitution should ‘decide’ military policy subject to the ‘situation’ AND the political will of the electorate. If it does not work out you replace the President by election or impeachment. The rest of this legal churning is just nonsense.

Just a non-legal opinion.
7.1.2007 9:08pm
Elliot123 (mail):
NIB,

Keep in mind that people like to do what they are trained to do, and will see a situation through the prism of that training. It's natural for lawyers to see things through a legal lens, just as it is natural for the military to see things through a soldier's lens.

The lawyers will see the law as the most mportant factor. The military will see the ground battle as the most iportant. The diplomats will see their discussions as most important. Pacifists will see their ideology as most important. And each will consider the loss of any their turf or influence as the most damaging thing that could happen.

We are lucky we have such a widespread and varied set of experts. Their opinions will clash, some will prevail in one area, some in another. But we will probably ba able to muddle through things because of all their various contribtions to the larger dialog, and we will then bemoan the tragedy of the other guy's folly.

None of them are really as important as they think they are. And muddling has been better than all the alternatives. The more the various groups, professions, and interests sound off, the better off we all are.
7.1.2007 9:30pm
Harvey Mosley (mail):
Anderson, thank you for the response.
7.2.2007 12:42am
ATRGeek:
I always find it fascinating when people equate the Administration's lawless policies on these issues with the military's preferred policies. The military was actually opposed to these lawless approaches, so Cheney et al systematically cut the military out of these deliberations to help force through their own lawless vision.

So, those urging deference to the Administration are not in fact urging deference to the considered views of the US military. Rather, they are basically urging deference to the views of a small handful of civilians, most notably Cheney.
7.2.2007 6:59am
DrGrishka (mail):
JaO,

That al-Marri has rights under the Constitution is pretty irrelevant to the question of whether or not he is a "combatant" as the answer to that question cannot be found in the Constitution.

The very basis for differentiating al-Marri from Padilla and Hamdi (who obviously also had as many constitutional rights as al-Marri being US citizens) was that al-Marri was not a "combatant" but "civilian," a status conferred on him not by the Constitution, but by operation of international law such as Geneva Conventions (according to the majority opinion).
7.2.2007 10:04am
Just an Observer:
DrGrishka: That al-Marri has rights under the Constitution is pretty irrelevant to the question of whether or not he is a "combatant" as the answer to that question cannot be found in the Constitution.

Once again, that is your opinion, but it is not the reasoning of the Fourth Circuit you purport to describe. To the contrary, the court's reasoning began with the proposition that al-Marri, as a legally resident alien with ties to the United States, has Fifth Amendment Due Process rights, but the court recognized an exception to those rights defined by Hamdi v Rumsfeld. The Fourth Circuit reasoned further that Hamdi's exception depended on what "enemy combatant" might mean under the law of war.

You can argue that the court got it wrong. But you cannot say that al-Marri's Due Process rights were irrelevant to the court's stated reasoning, because to do so would be to deliberately misstate what that reasoning was.

And, once again, the Fourth Circuit panel expressly limited its holding to "persons seized and detained within the United States who have constitutional rights under the Due Process Clause."

In doing so, the court completely avoided the situation of the Guantanamo detainees. They certainly were not seized or detained within the United States. As for Due Process rights, that is far from being accepted by any court. (That question is presented in the Al Odah case from the D.C. Circuit which the Supreme Court just agreed to review. But the Fourth Circuit opinion in al-Marri's case -- the opinion you are deriding here -- did not remotely touch such a question because it did not deal with Guantanamo detainees at all.)
7.2.2007 11:06am
jukeboxgrad (mail):
whack: "we [did] violate the Geneva convention re the treatment of those captured WWII U-boat crewmen at Fort Hunt (as we established the other day)"

I haven't been paying attention to this almost-dead thread, but I just noticed that comment.

Uh, no. What "we established the other day" was that you're "an exhibitionistic gasbag, billowing clouds of blather" (your words, describing yourself). When challenged to substantiate your bogus claim about Fort Hunt, you crawled back under your rock. See here.

We're still waiting for you to explain why you treated historyisahoot.com as a credible source. Especially when they didn't even claim what you claimed they claimed. Likewise for egypttoday.com. We're also waiting for you to explain why you told a brazen lie about the Taguba report. You're an endless source of pure fiction. Presumably you'll continue to entertain us by embarrassing yourself.

One more thing; something I didn't notice until just now. A detailed discussion regarding Fort Hunt (pdf) has been issued by the National Defense Intelligence College (a branch of the Pentagon), as part of a very interesting and important report regarding interrogation, called "Educing Information." This report establishes clearly that at Fort Hunt and elsewhere we effectively interrogated prisoners without coercion. More on the NDIC report here.

You're MO is a real treat: ignore what the Pentagon says, and instead pay attention to sources like historyisahoot.com. And then top it off by pretending that those sources say things that they don't even say. You're a hoot, alright.
7.2.2007 11:33am
DrGrishka (mail):
JaO,

You fail to explain what precisely the Constitution has to do with someone being or not being a combatant.

The Constitution was equally applicable to al-Marri and to Padilla. The question presented was not whether the Constitution protects al-Marri, but whether he is a combatant.

Of course it is true that the Fourth Circuit did not say anything about Gitmo, as the case was not before them. That is not the point, however. The question initially posed was "who would object to military commissions for Gitmo detainees?" The answer is Judges Motz and Gregory because their logic would lead them to conclude that Gitmo detainees are "civilians" unless they associated with the Taliban.
7.2.2007 12:51pm
TomCS:
Sorry for being so late in contributing here. But as a non-lawyer (a former diplomat, as it happens) I wonder if the true reason for this reversal of attitude by the Court is not discomfort with the DC court's conclusion, but with the logic.

For the final, on record, view of the US legal system to be that habeas corpus does not apply because Guantanamo is not part of the US must be wholly unacceptable to the administration. I suspect that State Department lawyers will have pointed out that this would be seriously damaging to any future argument over the meaning of the various lease agreements, should Cuba choose to challenge them in some international legal forum and seek recovery of the base.

If so, the Court majority may see its task as providing an alternative line of argument, and an authoritative statement (on the advice of State Department lawyers) as to the legal status of the US presence in Guantanamo. Might this have been enough to convince some pro-administration justices of the value of a review?
7.2.2007 1:06pm
Mark Field (mail):

The question initially posed was "who would object to military commissions for Gitmo detainees?" The answer is Judges Motz and Gregory because their logic would lead them to conclude that Gitmo detainees are "civilians" unless they associated with the Taliban.


Wait a minute. The original assertion was that under Quirin Gitmo detainees could be tried by military commission. I agreed with that, but my agreement was predicated on the assumption that the key facts of Quirin also apply here. Those facts were two: the individuals are admitted (or determined to be) enemy combatants; and they are accused of some crime for which a trial is appropriate. I don't see anything in the 4th Cir. opinion to dispute this.
7.2.2007 1:11pm
Just an Observer:
DrGrishka: You fail to explain what precisely the Constitution has to do with someone being or not being a combatant.

Actually, I did explain what the Fourth Circuit said about that in the context of the al-Marri case. I explained it several times. You just ignored it.

As I also said several replies ago, I agree that somebody someday in some case might make the inference you make and attempt to apply it more generally to the Guantanamo detainees. But Judges Motz and Gregory did not do so. In fact, they explicitly restricted their analysis in a way that seems to exclude Guantanamo detainees from its scope. They did what judges are supposed to do, which is to decide the case in front of them.

I actually agree that the narrow distinction the Fourth Circuit opinion makes between Al Qaeda and the Taliban, in the context of international law itself, is potentially significant. I'm not even completely persuaded that I agree with it, and do not claim enough expertise in the law of armed conflict to have a firm opinion about whether the court got it right. I am just trying to get you to stop misrepresenting what the Fourth Circuit opinion actually said.
7.2.2007 2:01pm
DrGrishka (mail):
Mark,

But under your logic, a CIVILIAN court would have to first determine that the defendants were "enemy combatants" and only then they could be tried by a military commission. That is not at all what Quirin court said. The Quirin court said that military commissions could try anyone ACCUSED (not already determined to be) of being an "enemy combatant."

JaO,

I never claimed that the Fourth Circuit said anything about Gitmo detainees. Of course they did not because that was not in front of them. My point was that under Judge Motz's and Judge Gregory's reasoning, a military comission for Gitmo detainees would be illegal.
7.2.2007 2:06pm
Mark Field (mail):

But under your logic, a CIVILIAN court would have to first determine that the defendants were "enemy combatants" and only then they could be tried by a military commission. That is not at all what Quirin court said. The Quirin court said that military commissions could try anyone ACCUSED (not already determined to be) of being an "enemy combatant."


I think you've misunderstood Quirin. The Court specifically said that the saboteurs in that case could challenge their status by habeas. They lost because, on the merits (indeed, by their own admission), the facts showed that they were properly considered "enemy combatants". Here's the relevant passage:

"Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. ...

The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission." Link.
7.2.2007 2:40pm
Just an Observer:
DrGrishka: I never claimed that the Fourth Circuit said anything about Gitmo detainees. Of course they did not because that was not in front of them. My point was that under Judge Motz's and Judge Gregory's reasoning, a military comission for Gitmo detainees would be illegal.

Actually, you made an even more sweeping and fallacious claim, "Their holding included EVERYONE who was "merely" associating with al-Qaeda."

Yes, the court distinguished between Al Qaeda and the Taliban, but only within the context of those general limits stated earlier in the opinion: "the case at hand involves -- and we limit our analysis to -- persons seized and detained within the United States who have constitutional rights under the Due Process Clause." Thus, the court deliberately made no statement whatsoever about aliens without Due Process rights seized and detained outside the country.

Even now, you continue to substitute your own inference generalizing the Taliban/Al Qaeda distinction -- which may turn out to be valid, who knows? -- and call it "Judge Motz's and Judge Gregory's reasoning." And it is just you, not the court, who further makes the stretch to some hypothetical case about trial by military commission (not just detention) being held to be "illegal" by some judge somewhere in some other case involving Guantanamo detainees.

But in fact, under the Fourth Circuit's reasoning, what made al-Marri's detention without trial "illegal" was the fact that his Fifth Amendment rights were violated in the first place by his detention without trial.
7.2.2007 3:57pm
DrGrishka (mail):
Mark,

The Gitmo detainees will have an opportunity to challenge their classification in front of CSRTs and military commissions. However, the Boumidiene plaintiffs argue that they cannot be tried in front of these commissions and argue for a right to challenge their detention in civilian courts via habeas. In seems to me that that position is foreclosed by Quirin. The detainees may retain a statutory (DTA and MCA) right to appeal to DC Circuit and then petition to SCOTUS for certiorari. That process would be consistent with Quirin. A process bypassing military commissions on the grounds that the Constitution forbids such trials would be inconsistent with Quirin in my view.

JaO,

You are once again missing the point, which is not that the Fourth Circuit ruled on Gitmo detainees, but that their sweeping language on who is and who is not a combatant (and thus subject to military commission hearings) is equally applicable to people in and out of the country. Under that reasoning an al Qaeda fighter cannot be subject to a military commission irrespective of whether he is held. Not because of the Constitutional prohibition, but because of the Geneva Conventions and their interpretation by the IRC. The mere fact that they disclaimed ruling on anything broader than the case before them (duh!) does not suggest that their reasoning is inapplicable to other situations. In fact, you have been unable to suggest any possible basis for concluding that an al Qaeda figher in Gitmo and an al Qaeda fighter in the Charleston Naval Brig are at all distinguishable in terms of their combatant/civilian desigantion (which simply does not turn on the applicability or lack thereof of our Constitution). And if there is no difference between the two in terms of their desigantion as a civilian or a combatant, then the conclusion is inescapable that al Qaeda fighters in Gitmo can no more be subject to military detention and justice than al Qaeda fighters in the United States.
7.2.2007 5:06pm
Mark Field (mail):

The Gitmo detainees will have an opportunity to challenge their classification in front of CSRTs and military commissions. However, the Boumidiene plaintiffs argue that they cannot be tried in front of these commissions and argue for a right to challenge their detention in civilian courts via habeas. In seems to me that that position is foreclosed by Quirin.


No, the passage I quoted from Quirin demonstrates that the Court specifically permitted a habeas challenge. The petitioners lost on the merits, not because the relief was foreclosed.

The essence of the argument in the cases now pending is that the CSRTs don't provide adequate review of the factual basis for the enemy combatant designation. If they did, then habeas might be unnecessary under the "alternative remedy" exception. It's because the "remedy" isn't truly adequate that the need for habeas continues.
7.2.2007 5:29pm
DrGrishka (mail):
Mark,

I disagree with the assertion that a) the "alternate remedy" is inadequate and b) that they are entitled to any remedy ata all. But that aside.

The difference is that in Boudiniene, the detainees are challenging not only adequacy of the commissions, but their very legality. Furthermore, they are challenging adequacy prior to any actual trials being held. It would seem to me that any such challenge to the procedure cannot be heard until the procedure is actually used so that the court is at least informed as to its adequacy (as it happened in Quirin).

Furthermore, and a bit more afield from our original discussion about Quirin, I think it is also well-established that the classifications of who is and who is not a comabatant and a POW are to be made by the military. During WWII, these determinations were made by field officers, and were not reviewed by our civilian courts even if the POWs were kept within the territorial borders of the U.S.
7.2.2007 5:54pm
Just an Observer:
DrGrishka: You are once again missing the point, which is not that the Fourth Circuit ruled on Gitmo detainees, but that their sweeping language on who is and who is not a combatant (and thus subject to military commission hearings) is equally applicable to people in and out of the country.

No. I fully understand the generalized inference you are making, and have acknowledged that in some hypothetical case interpreting international law it could be significant. I just object to your loosey-goosey characterization of your theory as a "holding" of the Fourth Circuit.

If one wants to generalize from the actual holding of the Fourth Circuit, it is more useful to generalize about hypothetical cases that actually fit within the scope of the court's opinion.

If citizens or legal aliens are seized in their homes and held by the military, which claims it has information that they are enemies of the state per se because they are suspected of links to Al Qaeda and may be guilty of credit-card fraud and may be planning to hack financial systems, I am glad that the court says these citizens or legal aliens still have Due Process rights. This, BTW, better fits the facts and the holding of the al-Marri case than the "al Qaeda fighter" you talk about.

Or in the future, if the political branches of government decide to use military force against Muslims, Jews, Mormons, anti-war militants, white separatists, black militants, vigilantes on the border, Branch Davidians, etc., I hope there is no precedent holding that those persons have no Due Process rights because they are classified per se as "enemy combatants" by the government.
7.2.2007 6:36pm
Mark Field (mail):

I disagree with the assertion that a) the "alternate remedy" is inadequate


Fair enough. So does the government. I guess we'll find out soon enough how the SCOTUS feels.


The difference is that in Boudiniene, the detainees are challenging not only adequacy of the commissions, but their very legality. Furthermore, they are challenging adequacy prior to any actual trials being held. It would seem to me that any such challenge to the procedure cannot be heard until the procedure is actually used so that the court is at least informed as to its adequacy (as it happened in Quirin).


The challenge to the military commissions in Quirin took place before the trial (and, in part, during it). Quirin did not reach the adequacy of any status finding by the government because it found that the petitioners' own pleadings admitted the necessary facts.

We've now carried this discussion over a couple of days. Still no one has come forward to disagree with my original statement. It may be that someone, somewhere, does, but any such idiosyncratic view certainly does not speak for the majority.
7.2.2007 8:40pm
Just an Observer:
In case anyone is still following this aging thread, this story in today's New York Times, Legislation Could Be Path to Closing Guantánamo, covers some new proposals for moving detainees in the United States.
7.3.2007 8:41pm
CharleyCarp (mail):
Sorry to come so late. DrG, you're mistaken about the claims in Boumediene. I believe that there's no claim in the case, or in Al Odah, about the legality of Commission trials. These are appeals from the district court's grant of a motion to dismiss habeas petitions (in Boumediene) and a different judge's denial as to different parties (Al Odah). I do not believe that any of the petitioners have been indicted -- I am certain that none have been indicted under the MCA.

The petitioners do not contend that they cannot be brought before a CSRT. Each of them has been brought before a CSRT. They contend that they are entitled to habeas relief, though, and that the CSRT they were given (in 2004 or 2005), because it did not provide sufficient procedural protections to amount to a fair adjudication, is not dispositive of their proper status. After the cases were commenced, Congress limited the petitioners to DTA review, and cut off habeas review. A central issue in the case is whether Congress in so doing violated the Suspension Clause. The Circuit said no, because the prison is beyond the reach of the Clause. Nearly anyone who's thought about this thinks that there are 5 votes to overturn this conclusion. The next question will be whether DTA review is an adequate substitute for habeas -- this is the question Justices Stevens and Kennedy were willing to let the Circuit test in pending DTA cases, and have apparently reconsidered.

Some habeas petitioners also have DTA actions pending; some filed last year, others in the wake of the now-vacated denial of cert in Boumediene. These will continue as Boumediene is briefed: the first panel decisions on the scope of the record and on discovery ought to be coming out before the summer is over.

Your contention, DrG, about the legality of Commissions, is at issue in Hamdan. I'm not sure where his petitions are now that the indictment against him has been dismissed for lack of jurisdiction (reconsideration was denied last week from the dismissal of the only other Commission indictment, and may have been in Hamdan's case as well). It seems to me that the government will have to convene a new CSRT -- following new rules (following any rules) this time -- in order to meet the jurisdictional predicate for Commission trial. it's a lot of trouble for someone who's not accused of doing much, and quite likely no longer any danger. maybe, though, if they can finally get a valid indictment, they can make a plea deal with him something like the deal they made with the Australian Hicks.
7.3.2007 8:50pm
whackjobbbb:
Hey jagoffbox,

As mentioned, the office of Naval Intelligence violated the Geneva conventions re the treatment of U-boat prisoners at Fort Hunt during WWII. They acknowledged this, even if you BDSers don't.

Oh, and I checked the "report" you linked, and it doesn't reference Fort Hunt. Nice try, but this is just more BDS.

We do what we do because it is in our history, tradition and law to do so, no matter how much you BDSers shriek about that history.
7.9.2007 8:45pm