We Have No "Enemy Combatants":
The New York Times reports that the Obama Administration will no longer refer to those detained in Guantanamo as "enemy combatants."
We Have No "Enemy Combatants":
The New York Times reports that the Obama Administration will no longer refer to those detained in Guantanamo as "enemy combatants." |
In fact, something like Gitmo would have been necessary, even if Bush had not been president. But, if Bush had not been president, there would have been far fewer critics.
Now, having painted themselves into a corner, the critics are finding that, as feckless as the O administration is, even O has figured out that....something like Gitmo is necessary, not an egregious exercise in sadism for theocratic cowboy dimwits which could be easily dispensed with.
You'd think they'd have figured that out.
Or did they really think O was going to send the Gitmo Goons home with a substantial reparations check?
Interesting point. You think O and his buds thought of that?
IOW, was it an oversight, or do they have plans....cue the ominous chords.
Waiting for the excuses. The strained smiles.
Fun.
As Cold Fury says, at least we can watch the clowns who voted for this guy suffering along with the rest of us who didn't.
But they have to pretend, and we don't.
Fun, fun, fun.
Not discernibly.
Scott Horton notes another bit of "meet the new boss":
The Obama Justice Department has adopted the arguments and positions of the Bush team, however. It continues, even in the face of Boumediene, to argue that the detainees have no due process rights; it also argues extensively that Donald Rumsfeld has complete immunity from claims that he was the engineer of torture and mistreatment of the prisoners.
I have given up on hoping to see Rumsfeld indicted, but Horton's wrapup reminds us how cynical an attitude that is:
Robert H. Jackson, America’s greatest attorney general, called the use of immunity notions to block accountability for the mistreatment of prisoners in wartime an uncivilized practice and committed that it could not stand. He went one step beyond this. America, he committed in his most famous oration, would “press this chalice to its own lips”--namely would agree to hold its own officials accountable by the same standards and rules it advocated at the end of World War II. The Obama Justice Department is working hard to make Attorney General Jackson into a liar. It is also destroying the credibility of President Obama’s commitment to abide by international law.
Immunity claims can be a problem.
However, when political feuds are taken to the courts for no other reason than to bankrupt by means of legal fees the person with whom Anderson disagrees, immunity becomes less of a bad choice.
One need not be guilty of anything to have one's life ruined if determined enemies can figure out ways to bring you in front of Congress and into the courts.
Which, of course, is the exact point here.
If the enemies of the Bush admin were honest, what a hoot, immunity would be unnecessary, since only those who are likely guilty of something which is illegal would be at risk and immunity would obviously be wrong.
But that, as is obvious, is not the point.
Why are people like Horton "working hard to make Attorney General Jackson into a liar"?!?!?!
Dropping the usage of of the term "enemy combatant" - which suggests an enemy who has some connection to combat operations against the United States - for the far broader definition of any Tom, Dick or Osama who "substantially supports" al Qeada or the Taliban arguably expands the power to detain beyond that exercised by Mr. Bush.
For example, under this definition, the President should be able to detain as POWs the members of the Al Haramain Islamic Foundation in Oregon for financing al Qaeda even if they had no personal involvement in or any knowledge of al Qaeda combat operations.
Interesting.
This stuff about the phrasing of the designation seems like a sideshow to me, something that the press can easily understand. From a legal standpoint, the shift in position about sole executive power strikes me as the headline to this story, not the language game.
It appears Team Obama finessed this by claiming concurrent power from the Laws of War, which of course grant the military and presumably its CiC the power to detain POWs, with or without a formal declaration of war.
There -- fixed the entire problem.
Okay, that was funny.
But a question: are people who advocated for the Bush policy upset that Bush was criticized for something Obama only changes optically, and yet Obama is still widely assumed to be a more moral CiC?
If so, is that displeasure mitigated by the fact that, as CiC, he still seems to give a great deal of weight to Bush-era policy, perhaps adopting it as his own?
My main question is, would you be more upset by his potential hypocracy and by the undue adulation he receives, or more upset by his failure to continue what you feel is a sensible policy?
I suppose I'm just trying to get a sense for whether keeping an accurate political scorecard is more or less important than embracing good policy. Because I was never a big fan of scorecardism in the Bush years (push against the surge, which is good, because the war itself was bad and we must say that some more!) and don't like it any more today.
What I wonder is, when writing about this stuff, what shorthand noun phrase are we now supposed to employ when we used to say something like held as "enemy combatants" in Guantanamo? What do we put between the quotes?
The Bush administration used to throw that breast-beating assertion into its briefs, but since Hamdi the courts have basically treated it as superfluous. The AUMF has been well established as sufficient authority to detain military captives in this conflict.
What remains contested is the precise scope of the definition -- who, where, what for? That is the hard part.
Very true. It's much better to just say that they are on "double secret probation."
Dear Nick:
Glad you enjoyed it. What I was actually thinking about was all the Clinton Administration West Wing re-treads who are now in the Obama White House, back in the West Wing, who are doing (again) what they did then. Not talking about things was a typical strategy.
You remember the slaughter in former Yugoslavia because various reporters -- especially European reporters -- kept talking about it, forcing Pres. Clinton to talk in platitudes, but do nothing. However, then CNN started showing blood and bodies, and Clinton was forced to do something (actually, as little as possible -- the Bush 43 policies stabilized things enough for the US and NATO to withdraw, leaving a fairly small EU commanded force in place). The same was true with Kosovo (although we're still there, because there the different groups really still want to kill each other, and would do so if US and NATO forces were withdrawn, and since Russia will intervene on the side of the Serbs if that happens. Accordingly, we have to stay rather than leave and come back, possibly to be welcomed by Russians shooting at anything that moves, including US and NATO Soldiers. Staying and trying to do as little as possible, and preventing others from doing much, appears to be the best strategy. The status quo isn't great, but change could be a lot worse).
You also know about Rwanda -- because after the fact several movies were made about the genocide there. Less well understood, because it wasn't talked about, was that the Clinton Administration actively did everything in its power to avoid talking about it when that was occurring, and has taken great pains to suppress information that indicates that the US could have led an effective intervention that likely would have prevented the murders of 800,000+ people. This was accomplished, in part, by personal attacks on and attempts to discredit anyone who talked about this failure of US policy and the lack of will power under the Clinton Administration. Still, it was easy to avoid talking about Rwanda when it was occurring since it is in the middle of Africa (and so lacks good hotels and restaurants anywhere near there, and any Westerner going there has to have realistic concerns about catching some very nasty diseases, so there weren't a lot of reporters interested in going there), and, "they" don't really look like "us", so the networks could conclude that there wouldn't be much audience interest. (You have to admit, Bono's "Miss Sarajevo" being played while a beauty contest was held -- complete with swim suit competition -- got publicity for the conflict in Bosnia, and there was nothing similar as to Rwanda. Even in war, a little cheesecake can go a long way).
However, you probably don't know about the conflict in Georgia and other Trans-Causcian nations that occurred at about the same time. Probably there were not as many people killed as in Rwanda, but there were many more killed than in former-Yugoslavia, and much more wide-spread ethnic cleansing. This was another place that the Clinton Administration didn't want to talk about, and effectively diverted attention from. If there wasn't a lot of oil flowing through the place today, I doubt anyone would want to talk about it now.
Today, the Obama Administration appears following the same type of strategy. Do you really give a damn whether Rush Limbaugh wants Obama Administration economic policies to fail? Wouldn't you rather hear an explanation of how the Stimulus Bill will, in fact, stimulate the economy, and why an average of 8% increases in spending for most federal agencies was funded by the second half of the FY '09 Appropriation Bill that was just enacted? And, besides changing the term by which detainees are called, wouldn't you like an explanation on why the Obama Administration believes it has the legal authority to continue detaining people in Gitmo -- and in Baghram -- and under what circumstances it will detain or continue to detail?
I don't know about hypocracy. But, with the double speak, it is impossible to have a meaningful public debate, since you don't have an explanation from the Obama Administration as to its policies or the legal, political, economic, diplomatic, etc., reasons therefore.
And, while I have no personal problem with keeping the Gitmo detainees locked up, since I think it is a good idea to keep people locked up who support killing Americans merely because they are Americans -- that's not much of a legal rationale for the power of a US President to lock up people.
If we knew beyond a reasonable doubt that Prisoner X was a supporter of al-Qaeda, we could prosecute and imprison him.
So either we have some dumbass reason for not wanting to do that, or we have some other level of suspicion.
What we need here, quite frankly, is law. We need Congress to set forth what is the evidentiary standard for the executive to lock up foreigners FOR MAYBE THE REST OF THEIR LIVES on something less than proof beyond a reasonable doubt.
Then we could have some public debate about what that standard should be, etc.
I think it's damn putrid to imprison people for years, maybe decades at the rate we're going, without charging them, without demonstrating anything to an impartial tribunal ... just executive say-so and maybe some double hearsay presented to some military officers answering to the power that wants to lock the people up.
Maybe Congress will get around to this. Obama evidently doesn't care much. Are we going to see the GOP retake the White House in 2012 after Hillbama fends off (?) a challenge from the non-DINO "wing" of the Democratic Party?
Please. I hope you suckers who voted for Obama are starting to see that your great hope is nothing more than a dope.
That level of proof would already seem to be provided for in the Geneva Conventions, no? Where we seem to have run into trouble is not actually holding people without trials, but that we made serious information extraction efforts. Afaict the GC evidentiary threshold is pretty low, but coupled with that are severe restrictions on what can be done with the prisoner.
At least in regard to interrogations we likely didn't live up to that, and I have absolutely no idea how that situation can be made right for those already handled so. Perhaps the status quo where no ongoing violation is occuring is the best that can be expected. I suspect that the current gitmo situation is significantly different regarding confinement conditions because everyone being held has been wrung dry. And that is why the latest reports are that gitmo is a substantially compliant facility, I would be much more interested in what those reports would have looked like in the 2003-2005 timeframe.
Since Hamdi itself straighforwardly adopts the "enemy combatant" nomenclature, contriving to abandon it here does seem like a transparent stunt.
Maybe so, but that's what happens to combatants. The last Germans that the Soviets released were let out in about 1955. Those were the last we know of. It's not clear how long the North Koreans held Soldiers. And, those are post WWII examples involving combat between nations.
However, I think the chances of there being a public discussion are close to zero. The people working in the West Wing of the White House have a pretty good record of ensuring that the President they work for doesn't have to talk about potentially embarassing subjects. If Gitmo detainees are put on "trial" or given any sort of public forum, they'll make Milsovic look tongue-tied. If they are released, at least some will return being fighters, and those who say that this Administration is weak on terrorism will have a field day. There's no up side to any course of action for the Administration, so inaction and inertia are likely better (at least the President can say "I didn't do anything.") Accordingly, I think that "double secret probation" is as good a status as any, and the Obama Administration will simply stop talking about them. I was going to suggest "Night and Fog," but that's a little sinister sounding.
Orwell was correct about that if something doesn't have a name, it's very hard to talk about it. If you don't like my suggestion, then how about "Detainees formerly known as enemy combatants" and make up a symbol that isn't associated with any sound to use when referring to them? It worked pretty well for "The Artist Formerly Known as and Known Again as Prince."
Soooo. If we renamed Guantanamo Bay to something else then Obama could claim that Guantanamo Bay no longer exists then right!?
I vote renaming it: 'Happy cheery bay with ponies and unicorns'.
*shrug* it'll be harder for people to claim torture right?
"Detainees in 'Happy cheery bay with ponies and unicorns' are being tortured!"
Well that's not the "Change I'm looking for" but it is the "Change" I've been expecting.
More important, this is the brief of one side in a court case. The other side will file its brief (eg those prisoners before Reggie Walton file a consolidated brief on the 20th) and the district judge decides. Look for Judge Walton to decide Mar 23-25, Bates maybe a few days later. (I doubt that the judges will organize an en banc argument of the issue at the district court level . . .)
But a question: are people who advocated for the Bush policy upset that Bush was criticized for something Obama only changes optically, and yet Obama is still widely assumed to be a more moral CiC?
If so, is that displeasure mitigated by the fact that, as CiC, he still seems to give a great deal of weight to Bush-era policy, perhaps adopting it as his own?
Yes,
and yes.
the other fact that the media goes along with obama's act without much scrutiny is also galling.
Looks like it. And, to those who would charge President Bush with war crimes, the far broader definition expands the power to detain Mr. Bush himself.
My inside sources tell me it's currently a toss-up between that and "Happy Fun Bay."
(Remember: do not taunt Happy Fun Bay.)
And no ketchup -- just vegetables.
"well, we took fire from this house see, and we went in, found this guy standing next to an empty RPK machine gun"
"you never actually saw him fire it?"
"Well, no, but there was no one else there"
"Did you ask him if there was anyone else there?"
"Well, no, we didn't have an interpreter"
"Did you test his hands for gunpowder residue like they do on CSI?"
"Whoda whatsit now?"
You can see where this is going. When "enemy combatants" are captured, the primary goal of the unit is to secure the area, complete the mission, protect their men and the prisoner. Evidence collection is not and cannot be part of the job for the joes on the ground. So the result is a lot of people in jail with no solid evidence against them. This is what is known as Prisoners of War. If their country wants them back, they can open negotiations with the US government, and pending the end of hostilities, we'll get around to it.
I would have no problem if we had actually treated these folks as POWs from the very beginning, but all evidence is to the contrary. They may be treated as such now, but that is a different issue.
Whether the enemies we now face really fit the roles envisioned by the treaties we have entered into is also a different matter. As are the large number of turnovers rather than classic surrender/capture.
Holding people in non-punitive confinement is a significantly different kettle of fish from even mild interrogation. You don't need very much evidence at all to warrent basic holding away from the battle, but if you actually want to try people as criminals you need a lot more. Given the nebulous nature of the conflict and the fact that there really isn't any opposing authority we can come to terms with permanent non-punitive confinement seems like an easy equiliberium to reach.
As has been said before, treating these guys like POWs was kind of dicey, there being no POW status to which they could aspire for various reasons mostly found in the GC and the Law of Land Warfare.
If they were anything, they really were brigands, bandits, terrorists, francs-tireur, criminals. But, as lem'mboo says, without the evidence. So they had to be POWs by default, there not being another category. But the left didn't want them confined until the end of hostilities, or at all, for that matter, and so they couldn't be POWs. Had to be criminals. However, on account of they were POWs, they had to be treated as such, except the weren't because there wasn't any army to come from so they weren't POWs. But since they were suspected to be criminals, they had to have a trial or something. Since there was no evidence, the trials could be expected to find them not guilty and so they could be released. Which was the point.
It has all been very confusing.
We're in new territory. This is a new kind of opponent. I mean the left. The non-state-actor terrorists are new, too, and their coordination has raised a number of conundra.
Personally, I think confinement until the end of the war is the answer. If their buddies back home want them back, they can stop the war. Otherwise....big hole with old C-rats tossed in from time to time.
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