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The Terrorists' Court:
Jack Goldsmith and Neal Katyal have a very interesting op-ed today proposing a new system for detaining terrorist suspects. Seems pretty sensible to me. Your thoughts?
Ignatius (www):
Call it The United States District Court for the District of Terror
7.11.2007 2:04pm
Anderson (mail) (www):
Anything's better than what we've got now, but I'm a little worried about the selection of the judges -- they're going to have a heckuva lot of discretion, and if they're stacked to be rubber-stamps for executive power, that would be bad. I would almost rather have them drawn at random from existing circuit-court judges.
7.11.2007 2:06pm
ReaderY:
I don't believe our Constitution sanctions a mixed system. I believe there are only too routes -- civilian courts with all their trappings and difficulties, or military tribunals with all of theirs. An in-between solution may be preferable, but I don't believe it legal.

I believe it's possible to ratchet a military tribunal "up". One could take a military tribunal and make it into something like the panel described, so long as its membership remains duly appointed and sworn military folks who abide by military rules (perhaps as amended for purposes of this type of tribunal), etc.

But I don't believe it's possible to take a civilian court and ratchet it down.

Further, n individual is either an enemy soldier, an enemy civilian, or a non-enemy. I don't believe a preventative detention category can be made up to suit, it has to be rooted in one of the existing categories.
7.11.2007 2:11pm
srg:
Anderson,

While I respect you, whoever you are, and am always interested in what you have to say, you would have a much better chance of convincing centrists like me of your ideas if you would express yourself with more care and moderation ("Anything's better than what we've got now"? -- give me a break).
7.11.2007 2:14pm
The Good Democrat (mail) (www):
It would handle classified evidence in a sensible way.


Sensible way? And just what is this "sensible way" that it would handle classified evidence? They don't mention. It seems to me their ideas are mere window dressing to the current way. Their way simply puts the detention unit under Congressional control. I honestly don't see how that improves justice.
7.11.2007 2:30pm
Steve H (mail):
I think you'd need two levels of court review. First, the civilian courts would have to make the determination that the person can legally be subject to the alternative system.

Second, the civilian courts would have to be able to review the determination that the person is a terrorist/danger/whatever and therefore should continue to be incarcerated.
7.11.2007 2:38pm
Tom Cross (www):
How is indefinite detention without evidence of wrongdoing substantially different from indefinite detention without trial? A bunch of lawyers stood around and agreed that it was OK for the government to detain me because a cop had a hunch that I might be a bad guy? Thats not really different than a bunch of cops making the same decision for the same reason, frankly.
7.11.2007 2:54pm
bittern (mail):
I agree with Good Democrat who I think is suggesting that fancy words like "sensible" "elite" and "specially trained" are a bit of a red flag that the proposal is a bit sketchy yet. Not that I have any expertise. I'm concerned about the court having its "own" defense lawyers. Does this work? I do generally like the Goldsmith/Katyal proposal, but Steve H's suggestion seems an improvement. ReaderY, whose interpretation of what provision of the Constitution prevents this set-up?
7.11.2007 2:54pm
Al Maviva (mail) (www):
There's no chance it will work. The first thing that will happen is the dream team now defending the Gitmo detainees - several hundred attorneys - will turn its attention to overthrowing whatever regime Congress has established, beating Habeas Corpus proceedings into whatever form necessary to serve as a vehicle for substantive challenges to the detention, or whatever else it takes to free the poor, poor, poor people the evil Bush federal government is picking on. Plus it will be just as bad a nightmare in terms of world opinion. What's the difference between military tribunals and special courts with powers that echo the military tribunals? Effectively, nothing. Two words, people: Long Kesh.

I'm inclined to think that unlawful combatants captured on the battlefield probably ought to be subjected to traditional and customary treatment per the law of land warfare - something else that the same groups will not tolerate. Yet in spite of favoring that much harsher (albeit unambiguously legal) treatment for captured AQ, I don't like the idea of "preventive detention," and strongly suspect that it is actually incompatible with the Constitution.
7.11.2007 3:01pm
bittern (mail):
But I don't agree with Good Democrat or Tom Cross in their suggestion that bringing in another branch of government makes no difference. It makes a big difference. Balance of powers and all.

srg,
Most of the time you gotta pick between the plain-speakers and the hucksters. While maybe the former could dress up their points more prettily, it's still really YOUR job to find the truth/best policy/etc.
7.11.2007 3:01pm
rbj:
The terrorists are not driven by the usual criminal motive of money (except for the true sociopaths), releasing them after a 5 year stint in the big house most likely would not be a big deterrent (especially if they are committed to being a suicide bomber). Nor should they be given the full protection that soldiers in uniform get. A third way is necessary for a transnational organization that uses violent acts of terror against civilians to effect political changes. Usually, uniformed soldiers who follow a regular command structure will lay down their arms once there's an armistice/cease-fire/peace treaty signed. With a group like al-Qaeda, there really isn't a way to get that paper signed. Even if Osama did surrender, would other AQ cells go along?

I don't know if the proposal is workable, but at least it is moving in the right direction.
7.11.2007 3:13pm
Justin (mail):
Three problems.

1) A clear lack of detail as to major substantive disputes, instead just asserting "bipartisanship"

2) The use of the word "terrorist" here simply distorts: The idea does not distinguish itself between "terrorists" such as McVeigh, the 1993 WTC bombers, and the Afghanistan battlefield capture. There is a huge difference in how we should treat them - the first two seem to relate to "criminal justice" with heightened concerns (and perhaps unrelated foreign policy consequences), and the third is more military in nature.

3) There is no explanation as to this court's jurisdiction and its limits. How do we know a particular defendant is correctly placed in this court?
7.11.2007 3:14pm
Benjamin Davis (mail):
"A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure."

What a sad day! I am amazed! Preventive detention advocates!

Have things gone this far in this country that people are really mulling seriously the merits of a preventive detention regime? Is the hysteria this crazy?

Could I ask all of you to take a quick look through the various cases that the federal courts have dismissed on state secret, federal officer immunity, political question etc doctrines where people held in detention have complained of "HORRENDOUS" treatment and the courts have shown absolutely no interest in exploring those claims.

Given the Congressional track record what nonsense. Might I suggest that this is a further iteration from the Presidential Military Order, through the CSRT's and MCA's, now into a third mutation to keep moving the ball on what we are doing. It is like an intoxication.
7.11.2007 3:20pm
Anderson (mail) (www):
srg, thanks for the kind words, but I do think that "anything's better than what we've got now" is idiomatically uncontroversial.

Shooting everyone at Gitmo would be worse, but if I'm taken to mean "anything within the realm of sanity," then how am I wrong? How much progress have we made with our Addingtonian parody of due process in SIX YEARS?

I'm sympathetic to Reader Y's concerns, very much so, but I see that Scott Horton is open to the Goldsmith-Katyal proposal, so I think it's worth considering; Horton is not one to shrug off human-rights concerns:

Of course, the English-speaking world has had some very unpleasant experiences with national security courts. The Founding Fathers were still acquainted with them and hated the memory. The trick here is to draw on that and more modern experience to assure that any new institution gives a high priority to justice alongside of state security. The Katyal-Goldsmith column builds sensibly towards a new first step.
7.11.2007 3:24pm
Anderson (mail) (www):
Could I ask all of you to take a quick look through the various cases that the federal courts have dismissed on state secret, federal officer immunity, political question etc doctrines where people held in detention have complained of "HORRENDOUS" treatment and the courts have shown absolutely no interest in exploring those claims.

Well, that would be a sine qua non of any realization of the proposal: the special court would have to be cleared to consider classified evidence, and judicial checks on executive abuses would have to be built-in. Otherwise, what Mr. Davis fears would be exactly what happened.

Please remember, folks, this is an OP-ED, not a draft bill. I would like to see a bipartisan group work out a proposal -- something that would satisfy a Goldsmith and a Katyal, a Comey and a Lederman.
7.11.2007 3:29pm
Just Dropping By (mail):
ReaderY, whose interpretation of what provision of the Constitution prevents this set-up?

I'm not ReaderY, but I would venture to say SCOTUS's interpretations over the last couple centuries would. The idea that Congress and the White House can get together and by statute create a parallel criminal court system whose express purpose is to get convictions against people that would not be possible under normal judicial proceedings with full constitutional protections would appear to be pretty inconsistent with any traditional understanding of the purpose of the Constitution and Bill of Rights -- i.e., to prevent the elected branches from running roughshod over defendants' rights. (Note also that nowhere do Goldsmith and Katyal say this system would be limited to non-citizens or to people arrested overseas.)
7.11.2007 3:35pm
Ken Hughes:
But hasn't the lesson of Guantanamo and its military commissions been that this sort of ad hoc approach to justice is, at best, unnecessary, and at worst, doomed to failure?

We dealt with spies during the Cold War --certainly these cases had national security implications-- without resorting to creating new court systems, didn't we? How would we have tried Robert Hanssen had he not pleaded guilty?

Or is my understanding of history flawed?
7.11.2007 3:37pm
JB:
Let's look at this from a practical perspective. A few Afghan fighters show up at a U.S. base near Kabul with a captive. They say "He's Al Qaeda, we caught him." He denies it. He's brought into the base and interrogated. Like a good terrorist (or like an innocent) he denies everything. The U.S. soldiers pass him on to one of these courts.

A battalion of Marines is raiding a neighborhood in Al-Anbar province. They come under fire and return fire, then advance as the enemy fire slackens. Someone runs away from them, they fire, he ducks, they run him down and subdue him, and find he was armed. At the conclusion of the mission they bring him to base. He claims he was running away from the firefight, and was armed for his own safety (but had no desire to challenge either insurgents or Marines). The Marines know nothing except he was near where they were shooting at and ran from them. They pass him on to one of these courts.

The court does what, exactly? How can some lawyers far from the battlefield ascertain the truth about either of these guys? There's zero reliable evidence. Either or both might be hardened al-Qaeda members, or extremely unlucky schmucks, and there's no way to even get more evidence.
7.11.2007 3:39pm
c.f.w. (mail):
The procedures used for sexually violent predators in CA might be a useful model - there are due process and trial rights, handled by the judiciary. There can be indefinite detention, I gather, if the right proof is developed and presented, with counsel on both sides, etc. SVP becomes TVP - terroristically violent predator. Preventative detention for the mentally ill (arguably including those bent on suicide in a car bomb) is precedented. With adequate rights to habeas corpus and rights to revisit the TVP finding periodically, I am not sure the TVP approach would be that awful.
7.11.2007 3:41pm
Just an Observer:
I am interested in reasonable ideas, and impressed that Goldsmith and Katyal would collaborate on such a proposal.

At least many of the devils would be in the details, which are omitted from the op-ed. Precisely how, for example, would such a court "handle classified evidence in a sensible way?" And how would coerced interrogations and interrogators be treated?

One worry that comes to my mind immediately is the definition of scope and who gets to decide it, especially with respect to citizens, and even more especially within this country.

We citizens do, after all, start off with due process rights under the Constitution. When the government, making the first move, can seize one of us and declare us an enemy of the state as a fait accompli, and remove us from the ordinary criminal court system by default just by charging "terrorism," I wonder what the limits and safeguards are, and how the lines get drawn.

(These are some of the same worries I have about generalizing the Hamdi precedent to domestic spheres.)

Having stated that concern, I confess to a general interest in the Goldsmith-Katyal proposal.

There is merit in having Congress deal with such issues, which would entail reopening at least some of the matters that were rammed through by the waning 109th Congress in the form of the MCA. The 110th Congress would never enact that statute as-is, but cannot muster a majority to amend it. I fear that it would take a political miracle for the current Congress and Bush administration to reach a common ground. Perhaps the best thing to hope for is to make these issues visible in the political campaign already in progress, with legislation to follow in the 111th.

BTW, I wonder why this proposal is limited to preventive detention, and avoids the matter of trial by military commission. As I understand it, the plan would substitute the new courts in place of the CSRTs at Guantanamo, and the civilian-court review such as al-Marri got, with respect to preventive detention. But if the special court is to be created, why not also make it the venue for trials instead of military commissions?
7.11.2007 3:42pm
Justin (mail):
" The court does what, exactly?"

http://www.answers.com/topic/fire-ordeal
7.11.2007 3:44pm
Orielbean (mail):
I thought the point of Geneva was to address the difference between a soldier in uniform aka prisoner of war and a soldier hiding amongst civilians aka enemy combatant or terrorist as we call them today... What am I missing here?

Why is there a need for a new kangaroo-type court and less accountability? I'm with Ken - we've dealt with fifth-columnists and spies and all sorts of nasty scum without signing everything away, in the face of a nation far more powerful and malignant than what we face today.

If we worked harder on improving our FBI policework and CIA intelligence vs creating new Homeland extra-layer-of-red-tape agencies, then the problem is still quite approachable within our current framework. We did very little to clean up the act or budget of the existing structure, but quickly moved to create more big government mess.

We didn't need extra wiretaps or less FISA oversight to catch the 9-11 scum; we needed less red tape cluttering up the flow of the information we already had.
7.11.2007 3:48pm
Tom Cross (www):
Bittern: You're right, separation of powers would provide some checks against politically or personally motivated detentions. That is an improvement for non-citizen enemy combatants.

However, executive detention without trial isn't merely a problem because of the need for separation of powers. Its also a problem because there is no standard of evidence involved. In this case it seems there still wouldn't be a standard of evidence involved. The admitted conspiracy theories of government officials would be a basis for detention.

This framework is not strictly a system of military detention intended just for people detained on the battlefield in Afghanistan, but also for citizens pulled of the street in the U.S.. From the perspective of a citizen this would be a regression in terms of protection against unreasonable detention.
7.11.2007 3:49pm
Anderson (mail) (www):
I fear that it would take a political miracle for the current Congress and Bush administration to reach a common ground.

Yah, without a Democratic president in 2009, this is just so much pony-wishing.

And I fully agree with those who reject any such court's jurisdiction over U.S. citizens; I would in fact have Congress overrule Hamdi to that extent. A U.S. citizen carrying arms against his own country, be it in Los Angeles or Tora Bora, should be charged with treason in U.S. district court. Period. If the feds don't wish to do that, then tough for the feds.
7.11.2007 3:55pm
srg:
Anderson,

A couple hundred prisoners at Guantanamo have already been released (at least a few of whom went to battle against us in Afghanistan again), and there are many more we are tryhing to release but haven't been able to because no country wants them. So I don't think what we have is quite the worst possible within the realm of sanity.

Are you conceding that what we have is within the realm of sanity?
7.11.2007 4:01pm
bittern (mail):
Thanks for the replies, Just Dropping By and Tom Cross. I take it the rulings of this court wouldn't be appealable in any normal fashion? I suppose I haven't figured this out well enough! But thanks!
7.11.2007 4:05pm
ATRGeek:
I've proposed something like this before myself, so obviously I am generally supportive. I agree the details are crucial, but part of the idea is to have the details determined openly by Congress and then reviewed openly in the courts.

By the way, the Supreme Court has already sanctioned civil detention schemes of various kinds, so there is no general constitutional problem. But for it not to run afoul of the constitutional protections afforded to criminal cases, the detention scheme cannot be punitive. That is part of why periodic rehearings would be crucial, because you could not just sentence someone to a certain term of detention as punishment for their prior acts.
7.11.2007 4:05pm
Gaius Marius:
If a terrorist suspect is captured on U.S. soil, then existing civil courts should be utilized. With respect to terrorist suspects on non-U.S. soil, we should take no prisoners and just execute them on the spot with a single gunshot to the back of the head (no interrogation, no questions). I am dead serious. The Jihadists have declared war on the United States and until this country starts prosecuting this war with deadly intent, the Jihadists will continue to view the United States as a paper tiger.
7.11.2007 4:05pm
Gaius Marius:
As for the existing prisoners in Guantanamo, I think they are all due for a nice little plane ride over the Atlantic Ocean at about 15,000 feet altitude, which will unfortunately have to be ditched by the pilots (who had the foresight to wear parachutes) due to "engine trouble."
7.11.2007 4:08pm
srg:
Gaius Marius,

Don't you even want to interrogate them first?

In all seriousness, this is a dumb idea because it would lose us all our allies in the fight against jihadists.
7.11.2007 4:09pm
Gaius Marius:
What allies?
7.11.2007 4:10pm
Anderson (mail) (www):
srg: Gracious. Yes, we could have kept EVERYONE we ever caught rotting for 6 years, instead of only hundreds of 'em.

Okay, I withdraw "anything's better than what we have now," while continuing to assert that what we have now is really, really lousy, for the reasons aforesaid.

Are we now in agreement?

Gaius Marius, thanks for visiting the future, and now your later career is easier to understand. Please go back into your time machine now, or we may have to shoot you in the back of the head, since you're a Roman citizen and not a U.S. citizen.

bittern: I take it the rulings of this court wouldn't be appealable in any normal fashion?

Me, I was imagining something like the FISA courts, with the theoretical potential for petition to SCOTUS. An unreviewable court should be unacceptable, for obvious reasons.
7.11.2007 4:12pm
Gaius Marius:
Fine. If we have to placate "allies," then interrogate terrorist suspects captured on non-U.S. soil before they are executed with a single gunshot to the back of the head.
7.11.2007 4:12pm
ATRGeek:
Oh, and I realize that people are nervous about applying this system to citizens. But the point of doing so is to make sure that our citizens are willing to support this system on the hypothesis that they might well find themselves subject to it.
7.11.2007 4:15pm
Anderson (mail) (www):
But the point of doing so is to make sure that our citizens are willing to support this system on the hypothesis that they might well find themselves subject to it.

Interesting, but I would settle for making Congress subject to it.
7.11.2007 4:16pm
chris c:
Citizens should not be subject to any such court; as Anderson says (and I believe Stevens and Scalia did in hamdi or whatever case it was), with the few exceptions noted in the Constitution citizens must be tried in regular courts.

Beyond that, I agree that we need some system to deal with people who pose a greater threat than run of the mill criminals, and do not merit the respect warranted lawful combatants under the GC. The difference between AQ and spies like R Hansen is that the former may pose a much more immediate and lethal threat.

any system would have to be workable enough, btw, that the people on our side actually facing AQ don't decide that the easiest way is just to shoot the SOB once you're done with him, or to give him to someone who will.
7.11.2007 4:18pm
Just an Observer:
Anderson: Yah, without a Democratic president in 2009, this is just so much pony-wishing.

Well, AFAIK Jack Goldsmith is a Republican, but is not running for president.

Of the leading GOP candidates, declared or undeclared, I have a hard time envisioning anyone not running as champion of the party of Guantanamo, "enhanced" interrogation, etc. That is, assuming that McCain's chances continue to deteriorate.

I wish it were not so, but the Republican "base" seems to reward evermore hardline positions on "war on terror" issues. I'm not sure that is a winning strategy for them -- recall that such lines were drawn in the sand in the 2006 campaign over the MCA and warrantless-surveillance votes, and not a single Democratic incumbent lost -- but that's what the base wants.
7.11.2007 4:22pm
Anderson (mail) (www):
It just occurred to me, from Prof. Kerr's post title, that the ideal would be for the accused terrorist to have to appear before Judge Wapner.

Perhaps he could be coaxed out of retirement?
7.11.2007 4:23pm
Steve2:
"With respect to terrorist suspects on non-U.S. soil, we should take no prisoners and just execute them on the spot with a single gunshot to the back of the head (no interrogation, no questions). I am dead serious. The Jihadists have declared war on the United States and until this country starts prosecuting this war with deadly intent, the Jihadists will continue to view the United States as a paper tiger."

So, the solution to someone attacking you... is to murder someone else?
7.11.2007 4:23pm
Anderson (mail) (www):
Of the leading GOP candidates, declared or undeclared, I have a hard time envisioning anyone not running as champion of the party of Guantanamo, "enhanced" interrogation, etc. That is, assuming that McCain's chances continue to deteriorate.

Right, that's what I meant. And I'm not so sanguine about McCain's good will.
7.11.2007 4:24pm
Gaius Marius:
Steve2, what do you think war is, if not murder? I hate to point out the obvious to you but war is murder. The question is whether or not you are going to allow the Jihadists to "murder" you and our fellow citizens, or whether we are going to "murder" the Jihadists before they do the same to us. General Tecumseh Sherman defined war best when he said, "War is Hell."

Instead of providing room and board at taxpayer expense to Jihadist prisoners who would "murder" any American citizen for no better reason than to go to paradise and have at it with 72 virgins, we should be terminating them without remorse -- at least until the last Jihadist waives the proverbial white flag.
7.11.2007 4:48pm
Ken Hughes:

The difference between AQ and spies like R Hansen is that the former may pose a much more immediate and lethal threat.


I'm not sure I can agree that AQ is a more lethal threat than the USSR was.
7.11.2007 4:49pm
Steve2:
Gaius, you specified shooting suspected terrorists, not confirmed, actual terrorists or would-be terrorists. "Kill them all and let God sort them out" most assuredly is murder.
7.11.2007 4:53pm
ATRGeek:
Just a suggestion, but this is actually a relatively fresh topic as these things go, so perhaps it would be wise not to let trolls like Gaius dominate the conversation.

chris c,

As I understand the proposal, these would in fact be Article III courts, albeit of limited jurisdiction. They wouldn't be criminal courts, but as the authors and I have noted, the Supreme Court has already confirmed the constitutionality of various civil detention schemes. So, I don't see the constitutional barrier to having citizens subject to the jurisdiction of these courts.

Incidentally, our usual way of keeping our people from doing things like summarily executing detainees is to prosecute them for murder.
7.11.2007 5:12pm
srg:
Anderson,

I'd be curious to know if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on.
7.11.2007 5:16pm
Anderson (mail) (www):
if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on

srg, that is the problem: six years on, I don't know, and neither does anyone else.

ATR, I operate on the assumption that any blog poster or commenter who uses the name of a Roman general or historian can be safely ignored, or gently mocked. Hasn't failed me yet.
7.11.2007 5:20pm
Orielbean (mail):
To Steve:

Just as there are the hardliners who strap on bombs and pray for Allah, you will get trollers like Gaius who advocate the same type of treatment on the other side of the situation.

Neither group is interested in an actual solution, just some cataclysm where the opposition is eradicated, usually in a particularly painful manner. That is why talking to a Bin Laden or a Hannity will get you little more than a headache.

People look for excuses to make violence on other people every single day. While it is good practice to keep an eye on each and your ammo box open when either group starts looking your way, your efforts are better spent in the task of dicussion with people interested in fixing the problem.

To Gaius :

General Sherman's scorched earth consumed crops and railroads, buildings and infrastructure. He did not wantonly murder civilians or prisoners.

General Sherman used that quote "War is Hell" to a graduating class at Michigan Military Academy to tell the boys that fighting is not a glorious thing. He didn't say it to his enemies as he shot them.

Indeed, he promised the people of Atlanta that he would share his last cracker with them when the Union was restored, but until that time came they had to evacuate the city. He didn't promise them a push out of an airplane or a bullet like some Viet Cong thug. For shame that you would warp that statement to make your point.
7.11.2007 5:25pm
Mark Field (mail):

if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on


Anderson already responded, but I'll add that it appears that roughly 50% of those incarcerated there at some point in time have been released or been found to have been wrongly accused. This seems to me to give a (not very encouraging) answer to your question.
7.11.2007 5:36pm
Benjamin Davis (mail):
Here is an earlier version of the national security court idea that Bernard Hibbitts over at JURIST past to me.
short description


Best,
Ben
7.11.2007 6:01pm
chris c:
Ken, I didn't mean to imply I thought AQ was a greater threat to us than the USSR was - I don't. But I do think AQ presents diff challenges, ones that cannot be deterred in the ways a state actor like the USSR could be. Also, the USSR gen proved willing to play by certain rules - again, AQ doesn't.

ATR Geek, people get shot (or handed off for such treatment) all the time in war zones and other areas off the grid without murder charges being brought. my point was only that if people in the field don't trust the system, they will work around it.
7.11.2007 6:03pm
Anderson (mail) (www):
Thanks, Mr. Davis, for the link -- alternately obnoxious &interesting. My favorite part was the statement that Eisentrager is no longer good law, in practice -- that seems not to have been as widely accepted a view as perhaps it should be ....
7.11.2007 6:11pm
ATRGeek:
chris c,

You used the passive voice (people "get shot"), so I am not sure who you are claiming does this "all the time" without being charged. If it is American military personnel, I'd like to know your evidence. Indeed, the closest incident I know of to what you are describing is the Thar-Thar Canal incident (where American soldiers shot and killed three zip-tied detainees), and the four soldiers in question were charged with premeditated murder (the two which did the actual shooting pled guilty and got 18 years).

Of course, I obviously don't know how much of this has gone on without being discovered. But I do expect that American military personnel will usually follow their orders for the treatment of detainees, and be punished harshly if they decide on their own initiative to murder them instead.
7.11.2007 6:57pm
chris c:
ATR Geek, I don't have any inside knowledge, and like you believe people who mistreat POWs and detainees should be punished if circs warrant.

but a lot happens before people are captured or detained. (I recall a J Keegan book I read once noting that the moment of surrender in battle is an especially perilous one, because the surrendering soldier must hope his foe recognizes his attempt to surrender as a good faith act, and responds in good faith. Often this does not occur.)

and if we put in place a bureaucratic system that troops and agents come to view as being more of a hindrance to their efforts than help, they will seek to avoid the system (consider police efforts to squeeze various warrantless searches into this or that exception to the warrant requirement).
7.11.2007 7:38pm
Richard Aubrey (mail):
Chris C. It amazes me that, with all the military experience our military has had, we still read of an enemy waving a white flag or otherwise signaling surrender, our guys standing up to gather them, and being shot or shot at.
I've heard of it in WW II and every war since, including the current unpleasantness(es).
It doesn't have to happen often before surrendering is an impossibility.
If we combine that with some kind of catch-and-release program obvious to the grunts, we may no longer have anything to discuss.
It is a frequent calumny to refer to those who support the WOT but are not currently serving as "chickenhawks". What would be the title for people who sought to make themselves feel better by taking such actions as would increase the likelihood of death for grunts by virtue of legalisms? "Chickenlawyers"? If you think a particular combination of laws regarding our enemies is just dandy, maybe you ought to take the same increased risks your hot idea imposes on the troops.
7.11.2007 9:42pm
Gaius Marius:
Steve2, Orielbean, and others: Your fantasy of being able to conduct antiseptic wars where there is sufficient time and means to distinguish between the "bad guys" and "innocent civilians" is ludicrous. Innocent civilians will always die in wars regardless of technological advances. By your standards, President Truman would have been precluded from authorizing use of the A-Bombs against Hiroshima and Nagasaki. By your standards, the Allies would have been precluded from bombing Germany in WW2. "War must be hell"..."lest we should grow fond of it." (General Robert E. Lee).

During the 1980s, several western hostages were seized in Lebanon. In typical fashion, the West sought a diplomatic solution to freeing the western hostages without great success. Subsequently, the terrorists were emboldened enough to seize a KGB agent in Lebanon. The KGB's response was brutal, yet necessary. The KGB identified family members of the terrorists and seized them. Shortly thereafter, the terrorists began receiving body parts of their family members from the KGB. Not surprisingly, the KGB hostage was released and no Soviet agent was seized thereafter while Western hostages continued to be seized.

In the foregoing episode, the innocent victims included family members of terrorists. However, while distasteful to folks like Steve2, Orielbean, and others, I believe the KGB's response was appropriate under the circumstances. In this current war against the Jihadists, which by the way the Jihadists started when they flew airliners into the Twin Towers, anyone seized on the field of battle with a weapon should be terminated. Take no prisoners and show no mercy because we shall not receive mercy from the Jihadists.

The attitude that wars can somehow be conducted nobly and without loss of innocent life is only going to lead to more quagmires in the future. Either be prepared to fight a bloody, brutal war, which will result in the loss of innocent civilians, or don't fight at all and sit at your computer blogging away about legal niceties that are only appropriate for a courtroom while Jihadists fly airplanes into our skyscrapers.
7.11.2007 9:45pm
Gaius Marius:
BTW, according to a May 3 article on released prisoners from Gitmo, some of them have rejoined the Jihadists and turned up on the battlefield -- again. So much for showing mercy to these prisoners.
7.11.2007 10:20pm
Anderson (mail) (www):
Either be prepared to fight a bloody, brutal war, which will result in the loss of innocent civilians, or don't fight at all

Solitudinem fecerunt, pacem appelunt.

(G. Marius hasn't been out of the time machine long enough to catch on to the fact that some people actually think that deliberately aiming our bombs at tens of thousands of civilians was indeed a bad thing, though I'm sure he would disapprove of them if he knew about them.)
7.11.2007 10:41pm
Bruce Hayden (mail) (www):
if you have any idea what percentage of prsioners in Guantanamo should not be there at all, and, if so, what you base your opinion on
Anderson already responded, but I'll add that it appears that roughly 50% of those incarcerated there at some point in time have been released or been found to have been wrongly accused. This seems to me to give a (not very encouraging) answer to your question.
To assume that it means that there are more who shouldn't be at Gitmo assumes significantly more than the evidence would support. Rather, the evidence there proves merely what it says, that a certain number of Gitmo detainees have been released for any number of reasons, including that any information that they may have is now stale, that they are now deemed not to be of danger to us, etc.

Also, early on, a number of Gitmo detainees were released and showed up again on the battlefield in Afganistan, to be again recaptured or this time killed. This "catch and release" was deemed to be dangerous for our troops, and so the criteria for releasing detainees was raised a bit to prevent this.

What must be kept in mind is that the military has fairly strong incentives not to ship those captured to Gitmo. It costs a lot to ship them half way around the world, and then to maintain them there. And, in some cases, once at Gitmo, we are stuck with them, apparently indefinately, since no other countries with acceptable human rights records are willing to take them. Also, it has become a public relations detriment to the U.S. military and the Administration. So, the idea that a lot of the detainees are there because of being sold out by other tribes for the money, etc. ignores all this, plus the fact that after four or five years of this, our military has become fairly adept at interrogating prisoners and determining their intelligence and threat level.

Yes, I am sure that the self-appointed attorneys for some, if not many, of the detainees claim that their clients are innocent and shouldn't be there. But that could be said by the attorneys for most of the prisoners in our prisons here. We don't believe that for most of the prisoners in our prisons, and the military at Gitmo both has more reasons not to retain detainees that shouldn't be there, and typically has more actual information on the detainees than their attorneys do.

Finally, keep in mind that if Gitmo were to be shut down, the detainees there would have to go somewhere. Excluding those there only because there is no other place to send them, the remaining detainees are not going to be released, nor are they going to be brought to the U.S. They will be sent somewhere, because the military is not going to be willing to find the hard core jihadists again shooting at them in Afganistan. My guess is that most without intelligenc value would end up in Afgan custody, where their life expectancy may be a little shorter, and their style of living likely much harsher. After all, it is really the Afgan people whom most of the detainees transgressed against in the first place, and that is where most of them were captured.
7.11.2007 10:45pm
Bruce Hayden (mail) (www):
I think that the proposed solution is well meant, but possibly a little too much and a bit naive. Part of the naivity is the seeming suggestion that criminal prosecution is possible in the case of most of the detainees. It is not really a problem of innocence, but rather of proof. Not only is there the classified information problem that they try to address, but it would also rarely be possible to get all the witnesses against a detainee present in one place at one time. U.S. troops may be anywhere in the world by the time of a hearing, or may not even be in the military or may not even be alive by then. And the locals are likely even more problematic. That is why evidence that would not be acceptable in U.S. criminal trials is routinely admitted in the detainee hearings - such as written statements.

I think that the better solution would be to double check the tribunals by some more independent party, such as an IG. What we really need is not a new system, but rather better verification that the system that is now in place is working properly and that there aren't that many who fall between the cracks and get stuck as detainees when they shouldn't be. I am thinking of a military IG system with an independent chain of command, and providing reports to both the Administration and a very limited number of members of Congress in a highly classified manner. There aren't enough detainees that the reports couldn't list each of them, addressing why they each were still being detained.
7.11.2007 11:07pm
Anderson (mail) (www):
Mr. Hayden, the recent spate of nope-nothing-wrong-here self-reports by the Pentagon, in the wake of Abu Ghraib, makes it legitimate to wonder whether your own suggestion has a touch of naivete about it. I think the judicial branch *has* to be involved.
7.11.2007 11:42pm