An American Gulag

In another thread Doug mentioned Gulag States. Yesterday arguments were heard in the Supreme Court concerning the inmates at Guantanamo Bay and the conditions given for holding them incommunicado and indefinitely without being charged with a crime. These people are in legal limbo. The rights we take for granted as Americans, speedy trial, Habeus Corpus, right to face one's accusers, right to access to evidence against one, right to counsel all have been denied the prisoners there. Most of them have been cleared to return to Afghanistan, but aren't being sent home. Why not?

Are these rights because the founders believed they were things that accrued to human beings because of our humanity, or are they rights that we have because we are Americans and it's our Constitution and they don't apply to those poor beknighted souls who are not so fortunate?

Is Gitmo an outpost of an American Gulag? Are we a gulag state?

> "Is Gitmo an outpost of an American Gulag? Are we a gulag state?"

Technically, no. The gulags were created to discipline and punish the domestic opposition.

Unfortunately many of those we have released back to Afghanistan wound up right back on the battlefield.

I wonder, though, if that would provide an incentive to soldiers to merely kill them instead of taking them prisoner. Not that the soldiers would place the captives on their knees and remove the tops of Afghanis' heads. Rather, they would ensure that a battle was a "hard fought one" in which there were very few survivors on the combatant's side.

>4 codyed: "Unfortunately many of those we have released back to Afghanistan wound up right back on the battlefield." -codyed

Do you have statistics to back that up?

"I wonder, though, if that would provide an incentive to soldiers to merely kill them instead of taking them prisoner." -codyed

There is no reason to believe that our soldiers would prefer to kill potential combatants who can be detained peacefully if they knew that detained suspects would be subject to the rule of law.

Soldiers will defend themselves, and, if they have reason to believe that their lives are in immediate danger, they will most certainly err on the side of caution (caution, in this case, would mean the immediate elimination of the threat in question). This very real impulse can in no way be equated with a desire to ensure that a battle was, in your terms, "a 'hard fought one.'"

Do you really believe that our troops are so amoral?

Yes, the United States is just like Stalin's Russia.

We are morally equivalent. This is what liberals were reduced to believing, after having believed that Stalin's Russia was morally superior. But many of them still like the groovier Gulag states like Cuba and Vietnam. Thank God that examples of decent societies, with wonderful free healthcare, universal literacy, no nasty multi-national corporations, an official policy of anti-racism, and really good gun control, exist to inspire us. And the only example of a gulag on the island of Cuba that liberals care about is Guantanamo.

>6 Doug1943: "And the only example of a gulag on the island of Cuba that liberals care about is Guantanamo." -Doug

That may, in fact, be true. As for myself, well, I'm fairly sure that I would be sharing a cell with some of the other Cuban Social Democrats, and, as a result, I do, in all actuality, care about the status of Castro's prisoners.

Of course, you and I both know the best thing that America could do to help these prisoners would be to end the embargo...

Actual statistics of the number of Afghanis detained and released only to be found on the battlefield again might be hard to come by. But there are a number news articles from the past few years detailing just that. I'll look them up on Lexis Nexis later when my grilled cheese sandwich and soda finish digesting (oy).

You strike me as the kind of person that is well read in the social sciences, so you should be aware that one can internalize various incentives without actually having to consciously think about them. So when a soldier is aware that a detained combatant will provide little information once detained (because of the rights afforded by him from the US government), then he or she may have little incentive to be cautious when shooting down range.

Our soldiers are human beings, thus subject to human nature. Donning a uniform and taking an oath doesn't strip one of that fundamental fact.

>8 codyed:

There is little doubt that "one can internalize various incentives without actually having to consciously think about them," but the "incentive" that you speak of is so absurdly abstract from the life of your average American soldier* and so utterly irrational** that I really must ask whether you've had any prolonged contact with a citizen who has served (either in this war or in any previous engagements).

You are correct to state that "our soldiers are human beings, thus subject to human nature." That is precisely why no sane soldier will consciously or unconsciously decide to kill at will as a result of legal redefinition of the rights of an enemy combatant.

*No sane John Doe is going to consciously or unconsciously decide that, since prisoners are no longer going to be detained indefinitely, it is now legitimate, rational and perhaps even necessary to kill enemy combatants who can be peacefully detained.
**Even without indefinite imprisonment, detained combatants are a prize in that they can almost always provide at least a few pieces of intelligence

Come on, Doug. It was a simple question and you have conflated it into your usual "Liberals love the Soviet Union" mishmash.

I think you are desperate not to have to recognize the US can hold people indefinitely without charges, benefit of counsel etc, just like Castro, the crowd in Burma, and North Korea.

If as codyed said the innocent detainees will go straight to the battlefield if we turn them loose, whose fault is that? Maybe, just maybe, and I know this will be very hard to believe, these people will be pissed at America for taking six years out of their lives for being in the wrong place at the wrong time, or for having the wrong connections.

Many of the people left in Gitmo are there not because they were combatants, but because some het-man turned them in to the US to settle a grudge. One of the screw-ups of trying to work in a culture we did not understand.

Aside from the fact it's the "good guys" doing it, what makes Gitmo different?

BGP: I have family that are veterans. I go to a school that is but a few miles from a large Airforce base (Elmendorf) and an Army base (Ft. Richardson), so my school always has a healthy supply of vets. I also keep in touch with a number of veterans online.

Imagine this: A man walks into a store to buy oranges. He notices the price of oranges has risen from the last time he bought them. So, given the rise in price, he is probably going to buy fewer oranges. What he probably isn't thinking about is the fact that there was a cold snap in Florida which completely destroyed thousands of oranges. That cold snap pushed the supply curve to the left, resulting in an increase in price and a decrease in quantity.

That all looks great on a graph, but our hypothetical shopper probably isn't contemplating that. He can be unaware of the reasons for the increase in price but still adjust his behavior regardless.

A soldier, likewise, could be entirely unaware of the boring minutia of how the rights of an enemy combatant have changed. If there is less reason to be cautious with one's enemy, the soldier may expend a few more rounds than he would otherwise. Better safe than sorry.

It has nothing to do with morality.

Geneg asks if rights we take for granted as Americans are just for Americans.

As a newcomer to this country, paying taxes but technically a nonresident under my (very) low level diplomatic visa, 50% of my pay coming from the US State Dept., working for a "quasi-governmental" agency that reported to State Dept (and Foreign Affairs Canada), married to an American, I was astonished at the number of slights afforded non Americans, e.g.,
-local university charged me non-resident rates--though I pay state and federal taxes
-Social Security, which I had to pay, would be fully taxed if I received it outside the country,
- reduced inheritance protection,
- my American husband (because he was married to a non-American) could not offer our internationally adopted children US citizenship,
etc.
(A number of these have changed through legislation and reciprocal treaties.)

Anyway, given my early experience of constantly finding lesser benefits--even lesser benefits extending to an American associated with me--I would not be surprised to learn that constitutional rights ARE intended only for Americans.

>10 geneg: Let's assume that, despite our differences, we can muster the historical honesty (and imagination) to try another word than "gulag".

In many ways I'm not in the same political ballpark as Doug1943--and I've spent plenty of energy these last couple of years criticizing current US policies about torture and habeus corpus--but Doug1943 has a general point that is unassailable, I think.

What makes Gitmo different? Well, SCALE. A bit of empiricism, please!

Sure, Gitmo is thoroughly misguided and a betrayal of America's better side. Our institutions have been shamed. We're going to be answering for this for a long time to come. (The Bush coterie is like the Buchanans in Gatsby--they run roughshod and others will have to clean up their mess after them...)

But as bad as this is--and it IS bad, damn awful!--it's not on the scale of mass murder, of slave labor and liquidation of millions. Using the word "gulag" invites a respect for its victims. OK, we get excited in the grips of our current arguments. But "gulag" is a word that invites sobriety.

I have no respect for Bush & Co. But for the sake of precision, for decent historical description--after which we'll argue about what it entails--some smart egg is going to have to coin a word or phrase to describe this American debacle. It won't be "gulag". I've been working on this question, and have some possibilities, but don't think I quite have the handle. Any suggestions, folks?

All the stuff about Bush is 50% true, and 50% his utter ineptitude about PR. If Bill Clinton had carried out the exact same policies, the attitude of the world would be quite different.

BGP: You would definitely be in a cell in Cuba. And I agree completely about ending the embargo. I would go further. If I were President, I would recognize Cuba, and I would subsidize trips by Americans to Cuba. And I would offer to subsidize return trips by Cubans to America. All the while I would be spouting all the do-gooder and fellow-traveller stuff about peaceful coexistence, getting to know each other, cultural exchanges, blah blah blah. I would suggest to every American property-developer that the American government stands ready to guarantee their investment, if they can find a Cuban bureaucrat who can get permission to start a joint-venture for a resort hotel.

I would also let it be known that, in the event of a change of regime in Cuba, which is entirely a question for the Cuban people themselves, that no American citizen (i.e. all the Cuban exiles) would receive any encouragement -- the opposite in fact -- for pursuing claims about lost property in Cuba. It's over. A Revolution happened. Not for the first time in history. We did the same to our Tories who supported the Crown. The English Tories did the same to their Royalists who supported the Crown. Their Crown did the same to their Catholics who supported the Pope. Life is tough.

I would also let it be known, quietly, that if the Cuban Communists stepped down peacefully, they would receive generous pensions and retirement homes in Hollywood, where the liberal starlets would be happy finally to find men in uniform that they can sleep with, with a clear conscience. Plus they could earn large fees delivering graduation speeches denouncing American imperialism to students on American campuses.

I reckon we would restore democracy in Cuba in two years.

Yesterday arguments were heard in the Supreme Court concerning the inmates at Guantanamo Bay and the conditions given for holding them incommunicado and indefinitely without being charged with a crime. These people are in legal limbo. The rights we take for granted as Americans, speedy trial, Habeus Corpus, right to face one's accusers, right to access to evidence against one, right to counsel all have been denied the prisoners there. .... Are we a gulag state?

The definition of GULAG is:

1. the system of forced-labor camps in the Soviet Union. (no)

2. a Soviet forced-labor camp. (no)

3. any prison or detention camp, esp. for political prisoners. (yes)

Considering that we fit the third definition, yes, we are now a gulag state. Furthermore, we've known this for years, as this article from the end of 2005 shows.

If having prisons or detention camps makes the US a gulag state, then all states without exception are gulag states. If the "esp. for political prisoners" is an essential part of the definition, as common sense says it should be, then is the implication that the people being held at Guantanamo are political prisoners?

> is the implication that the people being held at Guantanamo are political prisoners?

yes, at least some of them are political prisoners

>11 codyed: "A soldier, likewise, could be entirely unaware of the boring minutia of how the rights of an enemy combatant have changed. If there is less reason to be cautious with one's enemy, the soldier may expend a few more rounds than he would otherwise. Better safe than sorry." -codyed

I just don't buy into that theory, as there is--and will always be, in a time of war--a major incentive for troops to bring in suspects peacefully (for interogation). As I have stated earlier, soldiers will always err on the side of personal safety (as they should), but, in less contentious situations, I see little reason to believe that subconscious knowledge of the rights of a detainee will outweigh or override: a) the conscious or subconscious knowledge that the guys at HQ are much more interested in actionable intelligence than they are high kill ratios; b) the existence of ethical and moral standards which prevent sane individuals from killing indiscriminately in a non-hostile or controlled situation.

>14 Doug1943: It's a shame that you're not in charge of our Cuban relations policy (albeit, I think the pensions and retirement homes in Hollywood may be a tough sell)

"Are these rights because the founders believed they were things that accrued to human beings because of our humanity, or are they rights that we have because we are Americans and it's our Constitution and they don't apply to those poor beknighted souls who are not so fortunate?"

Niether. It's not the latter because the 9th amendment clearly states that the Constitution provides merely an "enumeration" of rights and that the Constitution should not be interpreted as the single restrictive source of what counts as a right. Rather, rights come from people. Not because "rights" naturally emmanate from them or anything, but because individualist societies function better when its individuals are treated as having certain rights.

>>15 NativeRoses:
Yes, I can agree that if we stick to definition #3, we could use the word gulag. But I also think that there are many reasons that we shouldn't stick to #3. Because instead of adding nuance--which is a good thing, an enrichening thing, we gotta love dictionaries--it risks obscuring meaning, and even the historical record. Because it levels. In this case, it can impede distinctions. And distinctions are crucial.

And yes, I'm aware of the so-called "black sites". (Even wrote a book about one.) Dana Priest, the WP writer in your link, did a lot to bring the question to public attention in 2005. And even earlier, in 2004 in another context, General Kern testified before the Senate that the US was hiding prisoners. Pres. Bush himself finally got around to admitting as much in the summer of 2007, after years of gutless obfuscation.

Bad, yes. But gulag? I don't see how the word takes us forward.

A book? Title? Or perhaps you prefer anonymity, as many authors do.

This is an important discussion to have, and we must not get sidetracked because of hastily-chosen phrases which, on consideration, confuse more than they enlighten. Krolik is right. We must not morph our lagers, or allow them to over lap in to each other, as who should know better than he?

With respect to Guantanamo (as opposed to the "black" prisons): who are the "political prisoners" there? To me, the term "political prisoner" implies that someone was imprisoned not because he was commiting a crime as we would understand it, but purely for his political beliefs. For example, Tim McVeigh was not a political prisoner, even though he had strong political beliefs.

Are there any such people in Guantanamo?

We should not be naive, of course. Sometimes a person can be a "political prisoner" in the dry technical sense, but not in reality.

Every armed insurrectionary movement whose leaders have the least bit of sense will also take care to establish a "legal" wing, staffed by people who are careful not to have, or to be caught having, direct involvement in violence.

This parallel organization is useful for dozens of purposes -- it gives those who do not want to risk their own lives in direct combat, a place to make a contribution; it allows easier communication with the world press; it gives the enemy something with whom to negotiate without losing too much face; it provides a useful conduit for money and intelligence.

These people are technically, of course, innocent of direct involvement in violence. But this may make little difference to the authorities and to those who are subject to the violence, which at least partly explains, if it does not justify, the prevalance of counter-terror and assassinations of "innocents" in countries undergoing insurgencies. (I recall when a prominent IRA lawyer was murdered by loyalists in Belfast. The press described him as a "civil rights lawyer" which was a lie: he was a lawyer for the IRA, of which he was a member in every sense except perhaps some formal enrollment.)

Of course, the counter-terrorists are then not usually bothered to make distinctions between actual "legal" enablers of the underground terrorists, who take their orders from the terrorist central command, on the one hand; and harmless sympathyzers who would not themselves commit, or even directly aid in committing, terrorist acts.

Thus the tragedies in Latin America from the 1960s through the early 1990s, when more or less any Leftist became fair game for the ultra-right and rogue, or maybe just off-duty, security forces. A small band of Maoists who succeeded in blowing up a police barracks could condemn hundreds of democratic Socialists to death.

Could the "political prisoners" in Guantanamo fall into the category of enablers? Technically "innocent" but actually key parts of the terrorist machinery?

So far as I'm concerned, if I find someone in my back yard planting a bomb, I am justified in killing them. I am also justified in killing the person who supplied them with the bomb, if they knew its purpose; and in killing anyone else who materially aided them, or incited them, knowing what they were doing.

This isn't a legal question, but a pre-legal, moral issue. Once the moral issue is decided, what you actually do is just a tactical question.

If someone is agitating for the establishment of an Islamic state, but does not condone terrorist means of achieving it, they should be left alone.

Of course there will be grey areas which the terrorists will try to exploit. And I don't expect "peaceful Islamists" to react exactly like I do to terrorist activity which is carried out by people with the same aim as them.

Anyway --- who are these "political prisoners" in Guantanamo?

There is another category of prisoner in Guantanamo who should genuinely be objects of our concern: innocent people, who were simply denounced by malicious rivals. In a proper legal system this would be dealt with as a matter of course. In the kind of war which we are fighting, we are necessarily denied recourse to formal legal systems. So we must put in place the equivalent. If we have not done this, or have not done it effectively, this must be rectified.

And then ... what else?

Yes, this must be rectified. But currently the tone from Washington is far from encouraging.

Since you ask (here comes the plug), the name of my book is The Contractor.

> I'm aware of the so-called "black sites". ... Dana Priest, the WP writer in your link, did a lot to bring the question to public attention in 2005. And even earlier, in 2004 in another context, General Kern testified before the Senate that the US was hiding prisoners. Pres. Bush himself finally got around to admitting as much in the summer of 2007, after years of gutless obfuscation.

> With respect to Guantanamo (as opposed to the "black" prisons): who are the "political prisoners" there? To me, the term "political prisoner" implies that someone was imprisoned not because he was commiting a crime as we would understand it, but purely for his political beliefs.

In Inside the Wire : a military intelligence soldier's eyewitness account of life at Guantanamo, Erik Saar, a Guantanamo interrogator believed detainees who told him they were picked up because a bounty was paid by the Northern Alliance for each non-Afghani living in Afghanistan. He continued that while he believed there were some 'bad actors' present, he also believed there were a large number of detainees present who had nothing to do with terrorism. He based his belief on their personal stories and the fact that some of them were never interrogated.

This occurs at sites that do have some scrutiny. i'm sure things are 10 if not 100x worse at secret sites without any oversight.

I agree that this must happen -- it has been admitted officially I think -- and it is something we have to try like hell to avoid.

But I wouldn't use the phrase "political prisoners" for people who have simply been unjustly accused. When this sort of thing happens in the US, and it does, we don't call the wrongly-accused and wrongly-convicted "political prisoners," even though there is, sometimes, a sense in which the term would not be entirely misplaced. (I am thinking of situations where the case involves something above and beyond mistaken identity or frameup, but where the accused is from a minority group, or is accused of something that is agitating the public, or a section of it: certain rape cases, some alleged child abuse cases, or where the accused is accused of a simple crime, but is in fact sentenced with his unpopular political views in mind. The Guantanamo example might be someone who was not a terrorist or part of their above-ground apparatus, but was very anti-American. I don't know if anyone at Guantanamo falls into this category, though.)

> where the accused is from a minority group

non-Afghani living in Afghanistan

bush et al., have created a legal mess by creating the legal category of 'enemy combatant', which they construe against conventional categories such as prisoner of war or criminal, defined by international legal precedents or the US legal system. the initial move to try these 'prisoners' in military tribunals, which apply a different set of 'rights' than would international courts or criminal/civil courts, is controversial but not unprecedented (Bush's legal team often refers to Lincoln's military tribunals during the Civil War). one justification for this strategy is that normal (i.e., criminal/civil) courts can't hear these cases, but the presupposition for this move should be that the american judicial system has been significantly interrupted (as was the case during the civil war). hence, the recurrence of cases before the Supreme Court to adjudicate what rights and what access to normal courts (and criminal procedure) these 'enemy combatants' should have under US law.

the way these individuals are acquired and the way 'evidence' is produced against them leads to a well warranted doubt about the legitimacy of the entire process. the bush administration has decided it doesn't need to worry about the appearance of legal shenanigans on its part. having said that, rather than referring to this as a gulag, i think clinton rossiter's concept of a "constitutional dictatorship" applies to some of the moves made by the bush administration.

from Clinton Rossiter, Constitutional Dictatorship:
"The principle of constitutional dictatorship finds its rationale in these three fundamental facts: first, the complex system of government of the democratic, constitutional state is essentially designed to function under normal, peaceful conditions, and is often unequal to the exigencies of a great national crisis (...).

"Therefore, in a time of crisis a democratic, constitutional government must be temporarily altered to whatever degree is necessary to overcome the peril and restore normal conditions. This alteration invariably involves government of a stronger character; that is, the government will have more power and the people fewer rights (...).

"Finally, this strong government, which in some instances might become an outright dictatorship, can have no other purpose than the preservation of the independence of the state, the maintenance of the existing constitutional order, and the defense of the political and social liberties of the people. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship (...). And the narrow duty to be pursued by this strong government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. The government assumes no power and abridges no right unless plainly indispensable to that end; it extends no further in time than the attainment of that end; and it makes no alteration in the political, social and economic structure of the nation which cannot be eradicated with the restoration of normal times."

Rossiter defines three conditions for the emergence of a constitutional dictatorship: war, rebellion, and economic depression. His three cases of constitutional dictatorship in the USA (this book was published just after WWII) are the civil war, the New Deal, and WWII.

Interesting (especially to me, as I took Government 101 from Rossiter).

Let us stipulate that the current situation does not warrent 'constitutional dictatorship'.

In that case, how would you handle a young Pakistani man found hiding after a firefight in Afghanistan, cradling an AK-47, who claims he was just visiting relatives in the area? The Pushtoons (I think) straddle the border, which they do not recognize, so it could be true. And the local male population probably approach the National Rifle Association in terms of their passionate love of guns and the extent to which their identity is bound up with their possession. So what do we do with him? (I suspect some of the military people here are restraining themselves from offering a suggestion.)

First, let me answer one of my own questions, rights proceed from the barrel of a gun. Is this how things should be? No. Is this how things are in the real world? Yes.

Second, BushCo established the special "Justice(?) System" for the express purpose of violating the Constitutional safeguards in our justice system. The desire was to not have to send anyone home, no matter how they came to Gitmo. Roosevelt used special secret tribunals to try, convict and execute spies and other "special" prisoners during WWII, so this is nothing new. The difference here is we are holding people who haven't done anything.

Third maybe instead of Gulag we could use Amgoo, or Gitgoo. This is like a gooey mess that will be very hard to clean up.

Maybe we should call it Unconstitutional.

Or if you the the ExtraConstitutional Gulag.

Geneg: The desire was to not have to send anyone home, no matter how they came to Gitmo.

Geneg's statement doesn't hold up to the truth of the situation. We have released a great many people from Gitmo. at least 18 of those that we have released have been recaptured and returned to Gitmo.

How do you respond to this? I am a soldier and the father of a soldier who is currently on the field of battle. I know how I respond.

>30 MAJGross: "I know how I respond." -MAJ

Would you like to elaborate?

>30 MAJGross: I'm glad for people like you and your son to defend this country. I myself am an Army brat.

All that said, I'm wondering why it is that you think the fact that there are bad people "out there" on the field of battle where your son is fighting justifies the holding of other people at Gitmo for years upon years without any recourse to judge, jury, or even counsel? It's a non sequitur.

Even accounting for human error in difficult circumstances, the belated release of hundreds of detainees from Gitço is a level of sloppiness that for which it´s hard to find an excuse.

And the so-called "black sites" are another problem altogether, tactics of a police state.

The precedent under Roosevelt (and Lincoln, for that matter) is often cited by those who justify current policy. Here come the lawyers, by the busful. I don´t pretend to be a legal scholar. But I can still muster a couple of questions, one theoretical, one practical:

1. How applicable are those precedents in the 21st century, particularly in regard to individuals taken from non US territory to a US territory where supposedly the constitution doesn´t entirely apply? (Not the case in the precedents...)

2. How many people have actually been tried and rendered a verdict? Unless I´m mistaken, there´s only been one, an Australian after a plea bargain. The rest are just cooling their heels indefinitely.

Our leaders give us plenty of lofty talk, but so much of this is careerism, trying to cover their errors. Nobody likes to be caught out as a bungler. So the temptation becomes very great to become a dishonest bungler.

. . . individuals taken from non US territory to a US territory where supposedly the constitution doesn´t entirely apply?

Under the terms of lease, Guantanamo is not United States sovereign territory.

bush et al., have created a legal mess by creating the legal category of 'enemy combatant', which they construe against conventional categories such as prisoner of war or criminal

This is just wrong. The category of "enemy combatants" has been extant in American jurisprudence since Ex parte Quirin (1942) ("By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, and also between those who are lawful and unlawful combatants.") (citing the 1907 Hague Regulations on Land Warfare).

The existence of the category of "unlawful combatants" is also conventionally accepted and uncontroversial at international law, notwithstanding attempts to "doubt" the existence of such a category. See Christopher Greenwood in _International Law_, "The Law of War", (2003) ("A central feature of the laws of armed conflict ever since the eighteenth century has been the distinction between combatants and civilians. . . . civilians who take a direct part in hostilities - and who thereby become unlawful combatants - are largely unprotected by the laws of armed conflict.").

The rights we take for granted as Americans, speedy trial, Habeus Corpus . . . are they rights that we have because we are Americans and it's our Constitution and they don't apply to those poor beknighted souls who are not so fortunate?

In short, yes.

Constitutional habeas under the Suspension Clause has never been construed to apply to alien enemy combatants in a foreign territory. See Johnson v. Eisentrager (such detainees are not "entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. . . . Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.").

This principle is stated more generally in Curtiss-Wright: "Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens."

Thus, the Court has held that Fourth Amendment protections do not extend to foreign nationals in a foreign territory. See Verdugo-Urquidez (citing Eisentrager): "Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions."

To find a constitutional right to habeas for the petitioners, the Court will either have to overturn settled precedent in Eisentrager and its progeny, or distinguish Eisentrager as somehow being factually different and thus inapplicable to the Guantanamo detainees.

re 34 Thanks for the correction. This added precision, which I appreciate, to my thinking helps my argument: that Gitmo is more about avoiding accountability than asserting "American values".

re 28 & 29 So far "Amgoo" sounds pretty good, but maybe doesn't quite capture the gravity of the situation. Other coinages?

As I stated before, we already have 18 examples of individuals released who were later found on the field of battle. Everyone overstates the problem. We are talking about a few hundred people we have not yet determined their status. This is not a gulag. The chance is incredibly high that they are all dangerous terrorists and I would think the benefit of the doubt could be given to Americans by Americans given the danger posed by these few individuals. That is too hard for some to do. It would mean siding with your own country while Bush is president.

And I respond by giving the benefit of the doubt to people I trust. Not to likely terrorists. we are not violating any laws.

> We are talking about a few hundred people we have not yet determined their status. This is not a gulag.

In your view then, does the definition of gulag depend not only on the presence of people locked in stasis, atrophy, and suicidal despair for political reasons but also the number of such people? If 200 is ok, is 300? 3,000?

Okay, let's say we release all those poor innocent political prisoners at Guantanamo, who are only being held to satisfy the sadistic tendencies of the monsters in control of America, and fly them back to their home countries.

The next time we find someone with bomb-making material in Afghanistan, what should we do with him?

Oh, that's easy: shoot him, or arrest him.

And for those we have captured: then show them what "the rule of law" means.

The thing people miss about Gitmo: habeus corpus is an absolute. Either a society is under the rule of law, or it's a dictatorship. Right now, we are on the brink.

If the person sitting in the Oval Office can declare somebody to be an "illegal combatant" - or an "enemy of the state" - and have them spirited away to captivity, then we are not a society of law.

Doug1943: we release all those poor innocent political prisoners at Guantanamo, who are only being held to satisfy the sadistic tendencies of the monsters in control of America, and fly them back to their home countries.

An item on BBC news tonight said that some (about 3 or 4) were going to be flown home soon. But for some reason they are claiming UK as their "home country". I've no doubt the men in red dressing gowns — the justiciary — will give them a warm welcome here.

And as for your final question about what to do with bomb-makers, I would say the answer is to do it quietly before the lawyers/solicitors/judges/ get a chance to make a bomb out of it

Didn't BGP and myself get into an argument about this very subject?

That is, if you change the incentives, the value of a combatant's life either moves up or down.

Bob: Should this have applied, retrospectively, to non-uniformed Japanese soldiers in the Second World War?

I disagree with your (very undialectical -- you obviously are no Marxist) argument that a society is either a democracy or a dictatorship. The American South, until very recently, was a society where the rule of law was very weak, and the democracy was confined to whites only. But it was not a dictatorship. There are many societies which are in transition from being non-democratic in various ways, to being modern and civilized states, but which still fall short in one respect or another.

The US today is FAR more democratic and rule-of-law respecting than it was a hundred years ago. And yet it has never been a dictatorship, except perhaps when it was necessary to crush the South and rule it for a period of time.

this is a lengthy (apologies) reply to #35 on the issue of 'enemy combatants"

of course, whether Ex Parte Quirin is applicable (or should be applicable) in current circumstances is questionable. Quirin (which can be read in full online at findlaw.com if you register) is interesting in several ways

1. Language

the term "enemy combatants" is used once in the decision. "unlawful combatants" is used three times, "unlawful belligerents" is used six times; the phrase "unlawful belligerency" is used twice. The Bush government’s use of “enemy” rather than “unlawful” is curious. Does the word “enemy” convey something different than “unlawful”?

2. Legal Subjects: The “petitioners” in Ex Parte Quirin were captured ON US soil.

here are the “facts” of the case

"All the petitioners were born in Germany; all have lived in the United States. All returned to Germany between 1933 and 1941. All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship (...) After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.

The remaining four petitioners at the same French port boarded another German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They immediately buried their caps and the other articles mentioned and proceeded in civilian dress to Jacksonville, Florida, and thence to various points in the United States. All were taken into custody in New York or Chicago by agents of the Federal Bureau of Investigation. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They also had been paid by the German Government during their course of training at the sabotage school and had received substantial sums in 317 U.S. 1, 22 United States currency, which were in their possession when arrested. The currency had been handed to them by an officer of the German High Command, who had instructed them to wear their German uniforms while landing in the United States.

The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942,2 appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation,3 the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, 317 U.S. 1, 23 and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

This is what the Roosevelt government contended:

"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 317 U.S. 1, 25 (…) 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."

I emphasize these “facts” because they indicate these individuals had “entered our territory”; that Roosevelt’s Proclamation defines those subject to military commissions as being people who “during time of war enter or attempt to enter the United States…”

The "petitioners" in Quirin contended they should not be tried by military commission but rather in normal courts of law.

This is what the Roosevelt government contended:

"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 317 U.S. 1, 25 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."

If Quirin is supposed to be a relevant precedent, then it must be acknowledged that these individuals were "enemy aliens or have entered our territory as enemy belligerents." if this is the basis for the Bush administration’s claims about "enemy combatants", then individuals being held presently who don't fit the description of the individuals in Quirin are probably not being held in a way that pertains to the petitioners in Quirin. they neither entered our territory nor can they be called "enemy aliens".

thus, what matters is whether the “detainees” at Gitmo should be included in this class of “enemy combatants” as described in Quirin. but what are the criteria in Quirin? How did Court interpret US law to distinguish between an "unlawful combatant" and a "lawful combatant" (the latter is subject to rules of prisoners of war)?

"Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who though combatants do not wear 'fixed and distinctive emblems'."

so for want of a uniform of a nation state, individuals can be held in violation of the "law of war." But there is more:

“By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law12 that we think it must be regarded as 317 U.S. 1, 36 a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.”

The language used here is plain: “those who during the time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts…have the status of unlawful combatants punishable as such by military commission.” How many of the detainees at Gitmo meet this criterion?

However, there are deeper problems (one of which has to do with deciding whether we are in a “time of war”) in the case of the detainees at Gitmo and at other secret prisons.

3. Who is the “Decider”?; what are the criteria that place individuals in the class of "enemy combatant" and who makes this determination?

President Bush's Military Order of November 13, 2001 provides an answer (note it is a “Military Order”). In this order pertaining to the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism", Bush claims the capacity to define (note the use of "I"):

Sec. 2. Definition and Policy.

(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant

times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit,

acts of international terrorism, or acts in preparation therefor,

that have caused, threaten to cause, or have as their aim to

cause, injury to or adverse effects on the United States, its

citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in

subparagraphs (i) or (ii) of subsection 2(a)(1) of this order;

(2) it is in the interest of the United States that such individual
be subject to this order.”

Whereas the petitioners in Quirin HAD committed acts that are easily understood as "hostile," Bush, as Commander in Chief (this is a Military Order), claims the power to detain individuals if there are "reasons to believe" they might be involved in actions that could be construed as hostile.

One other thing to note about Quirin, which pertains to this aspect of Bush's military order. According to this order: "(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

What is the justification for this? Quirin supplies no support in this area.

4. Is Ex Parte Quirin actually a legitimate precedent for the use of military tribunals rather than civil courts (and writs of habeas corpus, the right to review evidence and to face one’s accusers, etc.) in the present situation?

Aspects of the logic of Ex Parte Quirin that the Bush government has extended to the detainees at Gitmo were undermined shortly after WWII. In DUNCAN v. KAHANAMOKU, 327 U.S. 304 (1946), a case (decided in favor of the petitioner) that invalided the trial of the petitioners (two civilians, Duncan and White) in military courts in Hawaii, the court offered the following reasoning as part of its decision:

“Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.
“Military tribunals have no such standing. For as this Court has said before: '... the military should always 327 U.S. 304, 323 be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.' Dow v. Johnson, 100 U.S. 158 , 169.”

In a concurring opinion by Justice Murphy, there is this elaboration and reference to Quirin:

“Such considerations led this Court in Ex parte Milligan, 4 Wall. 2, to lay down the rule that the military lacks 327 U.S. 304, 326 any constitutional power in war or in peace to substitute its tribunals for civil courts that are open and operating in the proper and unobstructed exercise of their jurisdiction. Only when a foreign invasion or civil war actually closes the courts and renders it impossible for them to administer criminal justice can martial law validly be invoked to suspend their functions. Even the suspension of power under those conditions is of a most temporary character. 'As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.' Id., 4 Wall. at page 127.”

Murphy argues that because the civil courts in Hawaii were open and operation, they should not have been substituted for by military courts: “There can be no question but that when petitioners White and Duncan were subjected to military trials on August 25, 1942, and March 2, 1944, respectively, the territ rial courts of Hawaii were perfectly capable of exercising their normal criminal jurisdiction had the military allowed them to do so.”

Murphy goes on to address Ex Parte Milligan, a case decided in 1866 involving a similar petition (an individual contesting his trial in a military tribunal set up by Lincoln during the civil war):
“The so-called 'open court' rule of the Milligan case, to be sure, has been the subject of severe criticism, especially by military commentators. That criticism is repeated by the Government in these cases. It is said that the fact that courts are open is but one of many factors relevant to determining the necessity and hence the con- 327 U.S. 304, 329 stitutionality of military trials of civilians. The argument is made that however adequate the 'open court' rule may have been in 1628 or 1864 it is distinctly unsuited to modern warfare conditions where all of the territories of a warring nation may be in combat zones or imminently threatened with long-range attack even while civil courts are operating. Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction.
The argument thus advanced is as untenable today as it was when cast in the language of the Plantagenets, the Tudors and the Stuarts. It is a rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war. It seeks to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights. It deserves repudiation.”

What I’d emphasize here is this sentence: “It is rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war.”

It can be argued that both Milligan and Duncan undermine the logic behind the Bush’s Military Order of November 13, 2001, that military rather than civil courts are the proper venue for the cases of the detainees even when civil courts are functioning normally.

5. Permanent State of Emergency and Constitutional Dictatorship

The larger framing issue is whether the USA is in a state of war or a state of emergency at present. Bush’s Military Order of November 13, 2001 declares “In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).” Bush justifies the rest of the order pertaining to the detention of individuals on this basis: “Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.”

This view should be treated critically. First, is the problem of international terrorism best described as an act of war or is it a matter of international crime? What conditions meet the criterion for a state of emergency and does such a state of emergency still exist with regard to international terrorism? I can understand that in the immediate aftermath of 9/11, such a state of emergency did exist, just as a state of emergency existed in New Orleans in the wake of the Katrina hurricane. There is no longer a state of emergency in New Orleans. Is there still a state of emergency 6 years after 9/11?

My own view is that terrorism should be treated as a criminal act. The problem of defining it as a state of war is that then the executive branch can declare a state of emergency. This is problematic because it is an endless state of emergency: this ‘war on terrorism’ cannot be won (terror is a tactic), or at least people who promote the idea of a ‘war on terrorism’ do not envision an end date for the war. For reasons that extend beyond the detainees at Gitmo (other limitations on liberties and rights that have arisen post 9/11, as enumerated by the first poster in this thread), I think this open-ended definition of the situation contradicts one of Rossiter’s (important) standards for a “constitutional” dictatorship: a return to normal constitutional functions must be the goal of a constitutional dictatorship. As I see it, no ‘return’ is envisioned. Hence, the mantra that “9/11 changed everything.” Did it? Should it? I think not.

>38 MAJGross: benefit of the doubt? My point is, I want to trust American institutions and rule of law more than this adminstration does.

This administration is second-guessing the constitution, claiming, in a variety of ways, that they're doing it for our own good. So we shouldn't complain when they do an end run around the rule of law.

I don't buy that.

Also, although some parties are probably sincere in their motives (the dirty hands theory, etc., as being necessary to win), others are clearly being opportunistic and protecting their careers. Nowhere is it written in the constitution that some hack deserves protection from embarrassment for incompetence.

As for "habeus corpus", I maintain that it is an exaggeration to speak of "gulag" or "totalitarian" etc.; again, out of respect of the victims of those systems, we need to defend precision and nuance.

BUT that is no excuse for American backsliding. Our mentalities and maybe our courts are showing the rot. We don't want to end up with some sort of 21st century Dred Scott ruling, according to which there are certain categories of individuals who are deemed as possessing no rights--do we?

The current administration would like to create a formal group of sub-citizens known as "guest workers". Several European countries tried this, but after several generations it hasn't worked out so well. It has postponed or eliminated assimilation of these people. Some of the news reports I read of the riots in France a year or so ago suggested one of the major causes was the frustration of the second and third generation French born children of guest workers who carry the same status as their parents and grand-parents to find ever decreasing jobs and opportunities with no hope of moving into the ranks of full French citizens.

Creating multi-levels of permanent residency such as the guest worker program calls for is a bad idea.

The thing people miss about Gitmo: habeus corpus is an absolute. Either a society is under the rule of law, or it's a dictatorship. Right now, we are on the brink.

Nonsense. Habeas is not "absolute." That's the point of the Suspension Clause, Eisentrager, and various statutory bars to habeas review. It wouldn't be called the Suspension Clause if it weren't suspendable. And Eisentrager places clear limits on the scope of habeas review.

If the person sitting in the Oval Office can declare somebody to be an "illegal combatant" - or an "enemy of the state" - and have them spirited away to captivity, then we are not a society of law.

Nonsense on stilts. Habeas doesn't hinge on lawful, let alone unlawful, combatant status. At common law, even lawful combatants who are prisoners of war do not have access to habeas review and thus may be detained for the duration of hostilities. See the Case of Three Spanish Sailors (1779) (petitioners were "alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus."). See, further, Blackstone's Commentaries ("alien-enemies have no rights, no privileges, unless by the king’s special favour, during the time of war."); Wilcox v. Henry (1782) ("An alien enemy has no right of action whatever during the war . . . at the end of the war, all the rights and credits, which the subjects of either power had against the other, are revived; for, during the war, they are not extinguished, but merely suspended."); Madison to the Virginia Ratifying Convention ("an alien enemy cannot bring suit at all.").

The idea that unlawful combatants have a greater right to the writ than lawful combatants has no basis in law or logic, and inverts the hierarchy of protections afforded to legitimate combatants under the laws of war.

If you think that thousands of POWs in World War II had access to the federal courts to sue for habeas relief, you're quite mistaken.

Theoria,

1. I did not say that Quirin was controlling authority in the detainee cases.

2. I mentioned Quirin to refute your claim that "enemy combatant" is a newly-created category invented by the current administration. This is false. As Quirin shows, the term has been part of US jurisprudence since 1942, and therefore, long pre-dates the Bush administration.

3. Other than that, Quirin is irrelevant.

4. Even if Quirin were tangentially relevant, it would support the government's claim that habeas is not extended to non-citizens outside of United States sovereign territory. Quirin ruled that enemy aliens within the territorial united States were not entitled to habeas review. If alien enemies within the territorial United States have no access to habeas, what more enemy aliens outside of the territorial jurisdiction of the United States? They have even less recourse to habeas review.

5. Given that none of the parties to the conflict in Afghanistan wear uniforms save for Coalition forces, it goes without saying that virtually all the detainees have no difficulty meeting the definition of "unlawful belligerent" in Quirin. In any event, the AUMF authorizes the Executive to make that determination ("the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons".) (emphasis added). As Hamdi makes clear, it is 'universally agreed' that the use of force involves the capture and detention of entities thus determined by the Executive. The AUMF - and Congressional mandate - is clear on who gets to make that determination.

6. Duncan v. Kahanamoku is likewise irrelevant. The case concerned only United States citizens and civilians brought up on criminal charges within the territorial United States. It did not involve the detention of foreign nationals abroad (i.e., outside of the territorial United States). Verdugo-Urquidez and Eisentrager affirm this distinction. Kahanamoku says nothing about the scope of habeas review for non-citizens in a foreign territory.

7. Whether a right to habeas review extends to aliens detained by the United States outside its sovereign territory is decided not on the basis of Quirin, but Eisentrager. See message 36.

8. The "it's not a war" argument is a tired one. And the "terror is a tactic" argument is cliched as to be unserious. Not least because it is a war against specific terrorists (see the AUMF), and not literally a war against terrorism (qua method). That a war may be waged against non-state actors is not seriously in question. See Montoya v. U.S (the fact that "marauders" are "engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch a military force for their subjugation, is sufficient to constitute a state of war"). The contention that the "war against terrorism" is not a war does not survive scrutiny.

9. All wars are 'open-ended'. The notion that wars have a pre-defined end-date is . . . naive. By that logic, prisoners of war held for the duration of the second world war should be granted access to the Federal courts, granted habeas review, and released because in 1942, no end to the war was in sight. I don't think it's a good argument.

10. Finally, an enemy combatant is simply a combatant hostile to one of the parties to a conflict. Such a combatant may be lawful (uniformed soldier) or unlawful (civilian taking up arms). There's nothing 'curious' about the terminology. These are long-established categories under international law. (I think I already answered your concerns in my original post.)

#48 - Well, actually, I was thinking more of the Padilla case, which is pretty alarming.

Under ordinary circumstances, he would have been arrested, charged with various federal crimes, brought to a trial before a jury, and, if found guilty, convicted and sentenced. The way Padilla was handled - at least for the first three or four years - was a little less conventional.

If the government can declare one American citizen on American soil to be an enemy combatant, just what will be left to stop them from 'disappearing' any other citizen? (Dissidents, journalists, opposition politicians, etc.?)

It seems the administration was too eager to dispense with the rule of law - habeas corpus, due process, trial by jury, right to counsel, all that good stuff - and never really explained just why the American rule of law was inadequate to the circumstances.

(And I was under the understanding that it's Congress that has the power to suspend habeas.)

in reply to >47 geneg:, the rioters here in France were/are indeed largely the descendants of guest workers, but they don't keep their parents' status. They are overwhelmingly French citizens. Which sadly shows how deeply the problem runs.

in reply to >48 enthymeme: & >49 enthymeme:: in addition to this detailed apologia for these methods, could you address the seemingly enormous margin of error at Gitmo, of the captured who have been subsequently released? For some of these people, shouldn't the US at least have the honesty to say Oops?

Everyone at Guantanamo who is found to be have been the subject of a malicious denunciation should get the option of American citizenship, and, whether they take that up or not, the promise of a hundred thousand dollars in cash, after three years of silence (not about their incarceration, but about the cash, otherwise half the Middle East will turn themselves in).

Well, since you bring up the subject of reparations, there are also the cases of war prisoners who were murdered by Americans while in custody at other places. This was reported fairly widely back in 2005 but there's not much talk about it anymore.

The ACLU (oh oh, I can hear what's coming, but I'll repeat it anyway) claimed 21 cases of homicide, based on their analysis of Department of Defense records.

For all the publicity about the Abu Ghraib debacle, and the trials of a few of the actors, it remains a fact that there has been little discussion (much less a trial) regarding the homicide of Manadel Al-Jamadi. When I say "homicide", it is not being "polemical", it is not my personal interpretation of events: that's the word used by the Department of Defense, which is hardly anybody's idea of a bunch of hippies...

Seems to be a self-imposed amnesia going on in many circles.

In the context of serious war against our enemies, we should strive to maintain the highest standards. If anyone was murdered in our custody, the murderers should be tried. (I am not talking about battlefield decisions made in the heat of combat, but about cold-blooded actions taken against people who are under our control.) And this goes double if the victim was a serving member of his country's military, which was one of the cases I heard about.

We dropped thousands of tons of bombs on German cities, killing men women and children indiscriminately. But we insisted that our captured military be treated according to the Geneva Convention, as we treated German prisoners of war. And rightly so.

could you address the seemingly enormous margin of error at Gitmo, of the captured who have been subsequently released?

You don't know the margin of error. Of 759 detainees, 38 were found not to have been enemy combatants by combatant status review tribunals. That's 5%. Hardly "enormous" in the fog of war. Since the estimated wrongful conviction rate of jury trials in the United States is about 8-10%, that's about par for the course.

Moreover, detainees are released for a variety of reasons, not all to do with their purported innocence. There have been instances of released detainees (who were deemed to no longer pose a threat) returning to the battlefield in Afghanistan. So for every person wrongly detained, there's a person wrongly released. The shit flies both ways, in other words. The detaining authorities haven't shown remorse for the release of detainees who otherwise should not have been released either.

Correction: "review" in my point 4 on Quirin should read "relief".

Well, actually, I was thinking more of the Padilla case, which is pretty alarming.

But Padilla was never in Gitmo. So your comment about "the point most people miss about Gitmo" itself misses the point.

More to the point, Padilla was not denied access to the writ. His habeas petition was heard by no less than two federal courts of appeals. That a presumed citizen in the United States is entitled to habeas was never a point of contention. See Hamdi.

I was under the understanding that it's Congress that has the power to suspend habeas.

That's what I said. That's why your claim that habeas is "absolute" is nonsense.

>>55 enthymeme:

A few considerations about numbers, because your presentation raises some questions.

You restrict your measures to 38 cases validated by the combatant status review tribunals. The hundreds of other released prisoners you do not include in your 5%, though you blow some dissembling smoke about the entire group by pointing to particular cases found on the battlefield.

These cases are important, indeed--I don't doubt that--but how representative are they of the entire group? Any data? Or are people omitted, which skews your percentage? Is this the fog of war, or the fog of propaganda by comfortable people?

What about the 50+ (some sources say around 70) detainees who have been cleared for release but are STILL imprisoned, waiting to ship out, waiting for a place that will take them? Doesn't their status rend your description of margin of error fallacious?

Lastly, in additon to my reservations about your playing so polemically with figures, I also question the authority of the combatant status review tribunals. I'm reluctant to make these kangaroo court conditions represent the U.S., because I want to believe the U.S. upholds higher standards.

With more honesty, it can.

Krolik,

Please familiarize yourself with the release process before making half-cocked arguments.

I wasn't the one who claimed "enormous" margins of error. You did. So if you think that the CSRT determinations are inaccurate, either put up alternative numbers to justify your claim, or accept that you simply don't know one way or another. I have no interest in your fact-free inquiry that, so far as I can tell, only involves lots of hand-waving.

If there's any dissembling, it would be your claim to have some special insight into whether detainees are truly innocent or not. Are you privy to intel that the rest of us aren't? Seeing as you provide no factual basis for your own determinations, you're probably as clueless as the rest of us, and no more cognizant of whether or not a particular detainee is a hostile combatant. Thus, you do not actually know the "margin of error".

As I mentioned before, most of the detainees were released not because they were deemed to be "innocent" by the CSRTs (i.e., not actually enemy combatants seized in the field) but because they were deemed to be 'low-threat' by a separate board of administrative review. Others were released to the custody of their countries of origin to face terror-related charges, and yet others were released to monitoring and rehabilitation programs in their home countries. Only a small number (the 38) were released because they weren't combatants and were wrongly detained to begin with.

In other words, even detainees who were determined by the CSRTs to have taken up arms against the United States (and thus properly detained) were released. And for reasons other than an error in their designation as enemy combatants.

Release, therefore, does not mean they were "innocent" to begin with.

Your argument seems to be: they were released, therefore they must have been innocent. This is wrong (see above).

Unless you can provide alternative numbers to justify your claim of an "enormous" margin of error, you're merely . . . dissembling. See the Brookings Institution, _Detention Retention_ ("But the broader debate over Guantanamo has suffered greatly from overbroad claims of erroneous detentions there. . . . there is also an element of romantic fantasy in the belief that large numbers of Guantanamo detainees are there by mistake.").

As a matter of law, this is an unprecedented standard of review for combatants detained incident to war. Polish and Russian civilians captured with the Germans and mistakenly detained as POWs in the second world war most assuredly did not have their status pored over by specially constituted tribunals, and were held without trial by the detaining military authorities for the duration of the conflict. See Amicus Brief for the United States in Boumediene v. Bush ("Many claimed to be civilians mistakenly swept up with the capture of German troops; others were part of German forced-labor battalions who were pressed into the service of the enemy. . . . Yet no-one at the time doubted that it was within the power of our military forces to meet them as enemies in the field and hold them without trial upon capture. Citizens of friendly nations presumed to be enemy combatants during World War II were no more entitled to the writ of habeas corpus than were the German soldiers with whom they were held, and no court of law has ever suggested otherwise.").

Indeed, to suggest otherwise (as you do - intimating non-existent "higher standards") would be to misapprehend both historical fact and law.

the NY Times is reporting that a trial of 7 people (the "Liberty City Seven") charged with being part of a terrorist plot to blow up the Sears Tower has ended in the acquittal of one man and a mistrial for the rest.

it's funny what happens when people are actually given a trial in civil courts.

Here's a paradox for civil libertarians:

Do you want your secret police to be intimately-knowledgable about all dissident movements or potential enemies of the state?

If they are not, then they cannot tell the harmless people from the dangerous people. There is a long history of cops infiltrating radical groups, and completely misunderstanding what they hear there. They have only a primitive political understanding in the first place, and when they overhear radicals (political or religious) in conversation, they hear what they expect to hear, usually a very crude caricature of what their targets really believe. Their superiors obviously cannot educate them on what to expect because the superiors themselves are ignorant of it.

But that's no bad thing. Under normal circumstances, we don't want a state which is intimately informed about the beliefs of its citizens.

But the downside is that we get things like this prosecution, which evidently brought people to court who were Islamists of some sort or other, but not active jihadis.

Enthymeme,

It's obvious we disagree, but it would be more constructive for us both if we could be more clear about what we disagree about.

In your last post, you say that I "claim to have some special insight into whether detainees are truly innocent or not." Let me reassure you that I claim no such thing.

In fact, you'll see that I never use that word. Even though you subsequently put "innocent" in quotes--are you attributing it to me? Or are you arguing with a straw man? I agree that you're raising an important issue. But it wasn't the one I was talking about. That wasn't my point.

I do understand the distinction you're making. Doug addresses the general problem, or paradox, in his subsequent post.

If I wasn't clear, sorry, and I'll try again: I found the 5% figure you gave unserious because of the choice of sample. I maintain that the other people who had also been released should have been included in the calcuation. I wasn't claiming that I had privileged intel. Nor that they were innocent. But I was claiming that the uncharged, untried released prisoners represented an error in US incarceration policies.

To me, this is a pertinent fact. I don't think I'm operating in a fact-free zone. And I repeat, the number of prisoners cleared for release and still waiting can plausibly--though evidently you don't agree--be included in the statistical sample.

I readily acknowledge that the journalistic sources I've seen are inconsistent (somewhere between 50 and 70)? If you have better data, I welcome it. I take numbers seriously. Let's have more demonstrations of the data; everybody stands to benefit from that.

It's pretty clear, though, that we also have different views about the exercise of incarceration, its purposes and justifications. Probably we need (on both sides) to clarify our assumptions.

Isn't the real problem with Gitmo, torture, cluster bombs in civilian areas (and our enemies tend to fight us from no other), etc -- this:

(1) We want to be the Good Guys, both in our own estimation, and objectively (relative to our enemies). And we want to be seen as the Good Guys.

but ...

(2) We also want to be the Victorious Guys. Adhering strictly to Good Guy Rules when our enemies are utterly without conscience and totally ruthless, may work against Goal Number (1).

So we get pulled between the two.

I believe most thoughtful people, and certainly any conservative with a proper innoculation against the steady accretion of power in the state, especially the national state, has been made uneasy by a whole range of post 9/11 developments, both in our tactics against the enemy, and in various powers claimed for the national government.

On the other hand, we are not suicidal. And if we know history, we know that there has never been an absolutely Good and Pure side in a war. "Lesser of two evils" is an overstatement in many cases, but it captures the idea.

I asked what we are to do with someone found on the battlefield in Afghanistan with a weapon. "Shoot him or arrest him" and if the latter show him what the rule of law is, was the answer. But I wonder if this response was really thought through.

In a war, the rank and file of the enemy should be entitled to both more, and less, consideration than citizens of a democratic state who are accused of a crime.

Less, because it is war: policemen are not really supposed to shoot fleeing suspects in the back, but soldiers have a duty to destroy the enemy, even if it means shooting them in the back.

More, because the ranks of armies are not made up of criminals, but of ordinary people, who are just doing, or being forced to do, their "duty". A Japanese airman who dropped a bomb killing a thousand Americans, if captured, would not have been tried for murder. In fact, at the end of hostilities, he would have been released.

And our problem today is that our enemies have all the determination and discipline of soldiers, but none of the usual attributes of soldiers adhering to the military of a state.

So to return to the young man captured with a rifle in Afghanistan, in the vicinity of a just-attacked military base. What crime has he committed? By whose law? Who will try him? What witnesses can be called, in Afghanistan? The uncertain outcome of any sort of "trial" that can be conceived makes it much more likely that he will receive the other option, unless we can offer our own soldiers there the chance to capture him and hold him until circumstances in Afghanistan have changed enough to render him harmless.

Now such a policy is necessarily open to abuse, error.

But it is my impression that most of the people making a big fuss about Guantanamo are either actively, subjectively hoping to injure us, or are at best indifferent to that possibility. Their interest is not in freeing innocents, but in hindering the guilty, and they see us as the the guilty.

Doug -even putting aside the Higher Questions of the ethics and morality of adhering to the 'good guy rules' - there's also the point that torture of prisoners is, if nothing else, tactically and strategically misguided.

When American troops invaded Germany in 1944-45, German soldiers were willing to surrender to our forces. Heck, German forces would fight their way west to have a chance to surrender to Americans, rather that surrender to the tender mercies of the Red Army.

Why? Well, partially because in 1918 American forces established a reputation for fairness, justice, legality, all those good things. Without this precedent, Germans would be have been more likely to fight to the death. Huumane treatment of prisoners makes sense militarily.

Today, we find ourselves fighting a ground war in the Middle East.

Does anyone suppose that this is certain to be the very last time that we are to be so engaged? Taking a long view, it's in our interest to convince our enemies that Americans treat their captives humanely.

Sure, there's no reasoning with suicide bombers. But we need to keep in mind which American behaviors are likely to inspire "death before dishonor" reactions among our enemies.

As you know: I hear this argument very often either in classes I give or receive on Law of Land Combat and Geneva Convention. The only problem is that the people we are fighting now and in the next couple decades will never abide by standards of conduct. The answer usually boils down to "what are they going to do, cut off our heads twice?"

Bob: I happen to agree with you here, while acknowledging the truth of MajGross's observation. Your point applies not to the die-hard jihadis, but to the hundreds of millions of Muslims -- and others -- who are torn between entering the modern world of liberal democracy, on the one hand, and asserting their national or racial or religious honor on the other, by waging war against that world.

And I believe General Petreus understands this perfectly.

But there are many who are raising their voices over this issue because they hope it will weaken our struggle.

"But there are many who are raising their voices over this issue because they hope it will weaken our struggle."

Sure, this is true. But to follow up on Bob 64, there are others who raise their voices on this issue because they think that changing some of these policies and tactics will strengthen our struggle.

Let me reassure you that I claim no such thing.

Dude, if you claim no such thing, then how can you know that there is an "enormous" margin of error? To determine that, you have to first of all know the "correct" answer as to whether a detainee is an enemy combatant. Only then can you say that he was erroneously detained (because you had knowledge to the contrary that he is not, in fact, an enemy combatant).

Since you now claim not to have such knowledge, how then can you claim that they were, in fact, erroneously detained? You simply don't know if they were erroneously detained, by your own admission. Without baseline figures contradicting the CSRT determinations, you have no basis for making the claim that there is an "enormous" margin of error. Your claim, accordingly, is baseless.

The only figures we have to go on are the CSRT figures. And on those figures, the error rate is 5% - well within the error rate of jury trials.

I found the 5% figure you gave unserious because of the choice of sample. I maintain that the other people who had also been released should have been included in the calcuation.

And I find this bit of innumeracy unserious. They were included. The CSRTs determined that they were enemy combatants and thus properly detained. Re-read message 59, paragraphs 5-8.

But I was claiming that the uncharged, untried released prisoners represented an error in US incarceration policies.

Good grief. Then you are claiming that they're "innocent" and (contrary to the CSRT determinations) not actually enemy combatants. Try making up your mind? Or perhaps not, seeing as your statements seem to rest on ambiguous vacillation.

The Allied powers including the United States released thousands of "uncharged, untried" prisoners in the aftermath of World War II. "Uncharged, untried" does not mean "not enemy combatants and thus erroneously detained." That has never been the case under the laws of war. Since it cannot be an error of law, it can only be an error of fact: but an error of fact is precisely what you disclaim. Which leaves you making nebulous charges of "error" with no basis in either fact or law.

it's funny what happens when people are actually given a trial in civil courts.

Funnier still that you cite a case refuting your previous bloviations about military tribunals.

Still, what does this say about the efficacy of your proposed 'police action'?

Evidently, you win some (Padilla), you lose some (Liberty Seven single acquittal), and you make a hash of others (Liberty Seven mistrials). Note, however, that these are domestic cases involving US citizens taking place, in any event, within the territorial United States: a different animal.

If, as you suggest, access to criminal proceedings were afforded to alien enemy combatants seized on a foreign battlefield and detained outside the United States, how effectively do you think a war will be prosecuted when you open the floodgates to wartime litigation by enemy aliens held abroad?

It would mean affording detainees a right to discovery, the right to examine the evidence arrayed against them, which would entail access to military intelligence, access to classified information, and the recall of soldiers from the theatre of conflict in order to testify in a civilian court against combatants who challenge their status.

Apart from the logistical difficulties involved, such a process would jeopardize - if not compromise - intelligence sources cultivated by the United States. See CIA v. Sims ("If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place.").

It would also create the perverse incentive to kill, rather than capture, enemy combatants to avoid the onerous burden of litigating the status of every combatant detained. See Tenet v. Doe ("Forcing the Government to litigate these claims would also make it vulnerable to ‘graymail,’ i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations."). Not only would the war be fought one-handed in the event - so would the litigation process if the Government is unwilling to compromise its intelligence sources for operational reasons.

Such a scheme could only hamper the war effort, forcing soldiers to act forensically in the battlefield while detracting from their main mission - combat. In a conventional war, an undue focus on evidence collection can only degrade the warfighting ability of the military. In an unconventional war, the kill-incentive frustrates and defeats the policy objective of every well-fought counterinsurgency - not killing more than you have to. In neither case is the criminal process an apposite tool with which to wage war.

In short, such proceedings would be foolishly imprudent, as the Court held in Eisentrager ("It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."), contrary to precedent both legal and historical, and rather daft as a matter of policy.

re post 68:

I suppose this is as good an illustration as any of our various differences. When I wrote
"But I was claiming that the uncharged, untried released prisoners represented an error in US incarceration policies"

you replied

"Good grief. Then you are claiming that they're "innocent" and (contrary to the CSRT determinations) not actually enemy combatants. Try making up your mind? Or perhaps not, seeing as your statements seem to rest on ambiguous vacillation."

No, I repeat and will repeat till it rains crocodiles that I am not claiming some blanket innocence here. To my reasoning, there are some other possibilities.

Here are some other possibilities: Not Sure? Unknown? Unable to Determine? Ambiguous, in the fog of war?

The burden of proof is in the hands of those who incarcerate. I believe that it is not unreasonable if, after X years (1? 2? 3? 4?--hey, this, too, is negotiable), no such convincing demonstration is made, then it could be called an error.

You disagree with me. OK. There are also general questions about the desirability and strategic interest in having a facility like Gitmo that we surely disagree on. I wonder, though, if in addition to disagreement, there is a desire to attribute certain sentiments or political positions to me, in order to make your case easier.

Of course this is speculation on my part; I cannot claim certainty. For this--and for our incarceration policy--I recall the well-known line from Mr. Rumseld, that there are known knowns, known unknowns, and unknown unknowns.

The media gave him a hard time for that, but I think he had a good point. It implies the necessity for a certain modesty when deciding how to act, and what to assume about others. Too bad he didn't practice what he preached.

fyi there's a new book out that examines some of the questions raised in this thread.

Jordan Paust, Beyond the Law: The Bush Administration's Unlawful Responses in the 'War' on Terror

In the latest -- or my latest -- Nation magazine, there is a letter from a prisoner in an American prison. He signs himself as an inmate in "the American Gulag".

In the letter, he tells about how he uses his Nation magazines, which he gets via a subscription, to win over the guards and other prison staff to liberalism.

Upon reading this, I decided that the Gulag appelation for American prisons was quite apt.

Because that is just what happened in the Soviet Gulags: prisoners subscribed to Menshevik, Kadet, and Czarist newspapers and journals -- and of course The Bulletin of the Left Opposition -- and used this material to agitate among the prison staff, winning many of them away from Stalinism in the process.

Stalin was reported to be quite concerned about this, but the Soviet courts had ruled that prisoners had a right to receive such material, so there was nothing he could do about it.

You see? Gulag there, Gulag here. No difference.

the following is from the ny times online:

From the Director of the Federal Bureau of Investigation (Hoover) to the President's Special Consultant (Sidney Souers, former Director of Central Intelligence)

Washington, July 7, 1950

My Dear Admiral:

For some months representatives of the FBI and of the Department of Justice have been formulating a plan of action for an emergency situation wherein it would be necessary to apprehend and detain persons who are potentially dangerous to the internal security of the country. I thought you would be interested in a brief outline of the plan.

Action to Be Taken By the Department of Justice

The plan envisions four types of emergency situations: (1) attack upon the United States; (2) threatened invasion; (3) attack upon United States troops in legally occupied territory; and (4) rebellion.

The plan contains a prepared document which should be referred to the President immediately upon the existence of one of the emergency situations for the President's signature. Briefly, this proclamation recites the existence of the emergency situation and that in order to immediately protect the country against treason, espionage and sabotage the Attorney General is instructed to apprehend all individuals potentially dangerous to the internal security.

In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus for apprehensions made pursuant to it. The plan also contains a prepared joint resolution to be passed by Congress and an Executive Order for the President which too will validate the previous Presidential proclamation.

The next step in the plan is a prepared order from the Attorney General to the Director of the FBI to apprehend dangerous individuals, conduct necessary searches and seize contraband as defined in the plan. Together with the order to the Director of the FBI the Attorney General will forward a master warrant attached to a list of names of individuals which names have previously been furnished from time to time to the Attorney General by the FBI as being individuals who are potentially dangerous to the internal security.

It should be pointed out that the plan does not distinguish between aliens and citizens and both are included in its purview. If for some reason the full plan is not put into operation it has so been drawn that the section applicable only to alien enemies may be put into effect.

Action to Be Taken By the FBI

For a long period of time the FBI has been accumulating the names, identities and activities of individuals found to be potentially dangerous to the internal security through investigation. These names have been compiled in an index which index has been kept up to date. The names in this index are the ones that have been furnished to the Department of Justice and will be attached to the master warrant referred to above. This master warrant will, therefore, serve as legal authority for the FBI to cause the apprehension and detention of the individuals maintained in this index.

The index now contains approximately twelve thousand individuals, of which approximately ninety-seven per cent are citizens of the United States. Immediately upon receipt of instructions and the master warrant from the Attorney General the various FBI Field Divisions will be instructed by expeditious means to cause the apprehension of the individuals within their various territories. Each FBI Field Division maintains an index of the individuals within its territory, which index is so arranged that it may be used for ready apprehension purposes. Upon apprehension the individuals will be delivered to the nearest jail for temporary detention and action by the Attorney General.

Detention and Subsequent Procedures

The permanent detention of these individuals will take place in regularly established Federal detention facilities. These facilities have been confidentially surveyed and the facilities have been found to be adequate in all areas except in the territory covered by the FBI's New York, Los Angeles and San Francisco Offices. In these three areas arrangements have been perfected with the National Military Establishment for the temporary and permanent detention in Military facilities of the individuals apprehended.

The plan calls for a statement of charges to be served on each detainee and a hearing be afforded the individual within a specified period. The Hearing Board will consist of three members to be appointed by the Attorney General composed of one Judge of the United States or State Court and two citizens. The hearing procedure will give the detainee an opportunity to know why he is being detained and permit him to introduce material in the nature of evidence in his own behalf. The hearing procedure will not be bound by the rules of evidence.

The Hearing Board may make one of three recommendations, that is; that the individual be detained, paroled or released. This action by the Board is subject to review by the Attorney General and the Attorney General's decision on the matter will be final except for appeal to the President.

The details of this plan as set forth in this communication have also been furnished on this date to Mr. James S. Lay, Jr., Executive Secretary, National Security Council.

With expressions of my highest esteem and best regards,
Sincerely yours,
J. Edgar Hoover

Theoria: What is your point?

Are you saying that, in the event of an attack upon the United States, that the government should not detain potential Fifth Columnists? That is, even in a shooting war, someone who is pledged to support an invading army should be allowed to roam free, unless convicted of an actual crime? That is, civil liberties in wartime should never be restricted?

So, for example, had there been an active, fanatical, disciplined Nazi organization in the US during WWII, explicitly loyal to Nazi Germany, that they should been able to carry on, until caught in an actual crime?

Or, are you saying, that, whatever the theory, that in practice there have never been Fifth Columnists in the United States ... people whose loyalty was to another state with which we were, or could have been, at war?

Or something else?

The would be the same Jordan Paust who filed an amicus brief in Hamdan, in support of an al Qaeda member who was a driver and bodyguard for Osama bin Laden?

Convenient, but hardly a disinterested party. (The slightly hysterical title should have tipped you off.)

I think I'll take his strident advocacy cum grano salis . . .

Here are some other possibilities: Not Sure? Unknown?

This undermines your claim of large-scale systemic error. By definition, the possibilities ("unknown") tell you nothing about the margin of error. Since you don't know what the CSRTs know, what you don't know is surely not enough to contradict the CSRTs' conclusions.

Why do you persist in making overbroad claims for which you adduce no evidence?

The burden of proof is in the hands of those who incarcerate.

And more than met by the preponderance of the evidence standard used by the tribunals. In Hamdi, the Court articulated a less stringent 'rebuttable presumption' standard for citizen detainees. See the plurality opinion in Hamdi ("Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.").

Such a standard, according to the plurality, "could be met by an appropriately authorized and properly constituted military tribunal." Further, "military regulations already provide for such process in related instances". Citing Army Regulation 190-8 as an adequate guide on which to model the tribunal process, the Court recognized that such a process would be sufficient for detainees who were American citizens.

Clearly, if the tribunal process as described in Hamdi is adequate for American citizens, it is a fortiori adequate for non-citizen detainees held outside the United States.

If . . . no such convincing demonstration is made, then it could be called an error.

You don't know that "no such convincing demonstration has been made," and you have elsewhere characterized your own statements as "speculative". Stop tilting at windmills.

For clarity, could you please specify how many incarcerated people have been given a specific charge and found guilty?

This might be an indicator of a convincing demonstration of guilt.

Then compare this number to the number of those incarcerated.

The result might be an indicator of how systemic the success or failure is.

I am not tilting at windmills. I think Americans and the freedom in general will be better served by more transparency on this subject.

Your question doesn't even make sense. Under the laws of war, detention does not require a "specific charge" or verdicts of "guilty" or "not guilty". Let me repeat that so that we're absolutely clear: You do not have to be charged with a crime to be detained under the laws of war.*

Wartime administrative detention is not punitive. It is not a criminal trial. It does not involve criminal charges or verdicts. Enemy combatancy simpliciter is not a crime, but you can be detained for it.

Accordingly, there are only two determinations: whether a detainee is an enemy combatant or not.

Of 759 detainees, all but 38 were determined to be enemy combatants and properly detained. The 38 who were found not to be enemy combatants were released. The 'comparison' you're trying to do has already been done in message 55.

* Under the Geneva Conventions, the Detaining Power may subject both enemy combatants and civilians to internment without trial. See Art. 21 of GCIII ("The Detaining Power may subject prisoners of war to internment.") and Art. 42 of GCIV ("The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.").

At international law, great deference is accorded to the Detaining Power's determination as to when it is "absolutely necessary" to detain an enemy alien. See the ICTY case Prosecutor v. Dario Kordic ("it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State.").

The right to detain is even more explicit under domestic law. In Brown v. United States, Chief Justice Marshall held that with respect to ". . . the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found is conceded."

I think Americans and the freedom in general will be better served by more transparency on this subject.

There is already unprecedented transparency. Thousands of pages of unclassified DOD material, transcripts and hearing records have been released. This is as transparent as it gets while balancing the competing demands of military secrecy. You do understand that there is an inherent tension between secrecy and transparency, don't you? If not, see message 69.

Yes, my question does make sense. I am referring to the Military Commissions act of 2006. (People can debate its merits, or problems: ample material there for another thread!) Its provisions involve (as you no doubt know) specific charges and a determination, or not, of guilt. For instance, David Hicks was charged and found guilty of giving material support to terrorism. Other people have been charged with murder and conspiracy. How many? Ten? Fifteen?

And the others?

(Among the figures you cite, do you include the transfers announced by Bush of prisoners from secret black sites? And what about the suicides? Where do they figure?)

The root of our argument surely goes back to a general difference about this administration's pursuit of a policy to create this facility and the legal apparatus to justify it.

Our argument is not purely legal, either (as you suggest when you say that the only determination is whether a combatant is unlawful or not). For some observers, it is also a moral question, with grave political implications. Both the moral and political implications do not so easily bend to rhetorical bullying and legalistic sophistries.

At the end of the day we hope we're on the same side. Is this current arrangement right? Is it helping our interests? Could we envisage another way of handling these prisoners? In some respects I can understand how hard it is for this administration (particularly in an election year) to go back on a pre-existing and controversial policy, fearing how it will reflect on themselves and how it will be used (and manipulated) by their rivals. On the other hand, I think the issue is greater than somebody's career. Many of us dissenting with your view, enthymeme, aren't being paid to. We're not retarded, either. We're actually in good faith.

As for your claim that there is unprecedented transparency, clearly we differ there, too. I guess we have different versions of history. And many of those "thousands of pages of unclassified DOD material" exist only because of the persistent efforts of people challenging this administration's obfuscations.

"I am referring to the Military Commissions act of 2006. Its provisions involve (as you no doubt know) specific charges and a determination, or not, of guilt."

Can't you read? I've just said that "you do not have to be charged with a crime to be detained under the laws of war."

The Military Commissions Act provides for trial by military commission for violations of the laws of war. In other words, for war crimes. It does NOT provide - nor does it require - trial (viz., "specific charges and a determination . . . of guilt") for someone detained on the mere basis of being an enemy combatant, which by itself isn't a war crime.

Please do not attempt to conflate the two in order to obfuscate your previous error-prone ululations on the subject.

Let me repeat that so that we're absolutely clear - and pay attention this time: No criminal charges are required to incarcerate someone for being an enemy combatant.

The charges you refer to in the MCA pertain to charging someone for war crimes. Enemy combatancy simpliciter is not a war crime, therefore you cannot be charged for being an enemy combatant. Nonetheless, the laws of war allow the Detaining Power to incarcerate someone for being an enemy combatant. Dig?

"Our argument is not purely legal, either"

Actually, it is. Your moral posturing is of no interest to me.

"And many of those 'thousands of pages of unclassified DOD material' exist only because of the persistent efforts of people challenging this administration's obfuscations."

Don't flatter yourself. The declassified documents were obtained by the Associated Press via standard FOIA requests - in the same way all other non-public records held by Executive Branch agencies are routinely accessed.

I wouldn't romanticize what is really a mundane information request.

Yes, I can read. I can understand what you say. Usually. But that does not mean that I always agree to the conditions on discourse that you impose, which I believe sometimes fall short of taking adequate account of the situation.

I understand the distinction between an enemy combatant and a war criminal. I "dig", as you say. Oh, I'm paying attention to you. Feel good? Oooh.

But I allow myself (imagine that!) to make a distinction between how serious this administration's handling of the former category has been (ill-conceived and by the seat of the pants, methinks), and the latter category (very serious business indeed). I am not conflating; I am making what is to me a serious distinction.

If you find this moral posturing of no interest, that's your affair. Your hectoring will not keep me from uluating.

I understand the distinction between an enemy combatant and a war criminal.

Not really. You assumed that under domestic and international law a trial was required for the detention of enemy combatants - anything less being an "error" in incarceration policy. When told that this was not the case, you cited the MCA as providing for trial and "specific charges" for detainees, as if there were indeed such a requirement.

There is no such requirement.

The MCA provisions refer to trial by military commission for violations of the laws of war, whereas the CSRT process that determines combatant status (and provides the basis for incarceration) neither requires nor involves a trial, and is a separate process altogether.

Given your erroneous arguments to the contrary, you can hardly blame me for supplying the prophylactic.

You spend considerable time arguing with what you say I think, rather than with what I say.

Have I really mentioned international law in my posts? (Don't think so, though I do go on a bit about the constitution.) In an earlier testy exchange, you attributed assumptions of prisoner "innocence" to me, which were unfounded. My recent allusion to the MCA was not brought about by your telling me about incarceration policy, either. Sorry.

But indeed you're right that I should've qualified my remark about the MCA, if it led you to believe I was claiming it was about combatant status, and not war crimes. That was not my point. I do take the war crimes aspect very seriously, whereas I think the way many others have been detained is less serious, manifestly not about war crimes, and is an error, morally and politically, even if current legal maneuvering makes it possible.

And you spend considerable time ad hocly modifying/obfuscating what you say to conceal your appalling mistakes.

"You spend considerable time arguing with what you say I think, rather than with what I say."

Yes, an utterly predictable and dishonest response, which is why I collated the relevant quotes before I wrote my last post, in anticipation of just such a reply from you. In response to the legal question of incarceration error (where you questioned the 5% error rate - please do not now claim that you were merely asserting some sort of unquantifiable moral error), here's what you said:

"I was claiming that the uncharged, untried released prisoners represented an error in US incarceration policies."

To determine that rate of error, you asked that we

"specify how many incarcerated people have been given a specific charge and found guilty? . . . Then compare this number to the number of those incarcerated."

Thus, you were quite clearly assuming that a trial is a requirement for the incarceration process - anything less (i.e., detention without trial) being an "error" in incarceration policy.

Do not now falsely pretend otherwise, as you do when you ad hocly (but unavailingly) claim that your reference to the MCA was not about incarceration policy.

To the interested and honest reader following this exchange, the question was whether it was true that "uncharged, untried released prisoners represented an error in US incarceration policies" as Krolik said. Notice, not just that Krolik made an incidental comment about the MCA to that effect, and someone pedantically corrected him. No. We were already quite explicitly dealing with the question of whether the incarceration process had such a trial requirement.

Thus, it was in this context, and in reply to: "you do not have to be charged with a crime to be detained under the laws of war." (msg 78)

. . . that Krolik claims: "I am referring to the Military Commissions act of 2006. Its provisions involve (as you no doubt know) specific charges and a determination, or not, of guilt." (msg 80)

Krolik thus hilariously claims that the MCA supports the trial requirement in direct response to my previous point that there is no such requirement!

So the following statement by Krolik:

"My recent allusion to the MCA was not brought about by your telling me about incarceration policy, either."

is brazenly false. It is also dishonest, and misleading. Dishonest, because Krolik does not admit that his piece of evidence on the supposed trial requirement for enemy combatancy has been refuted: what he claimed to be statutory evidence supporting the requirement of a trial was no such thing - even a look at the statute itself could have helped him!

Misleading, because when talking about the MCA, one has in mind trial by military commissions, not combatant status review tribunals.

It is a shame and a pity that Krolik cannot bring himself to admit an elementary mistake. So now we're engaged in this ridiculous pas de deux where I have to comment in quite unnecessary detail about 'who said what and where' in order to put a stop to his ever-multiplying evasions.

Lesson for me: to argue with someone who is unwilling to admit mistakes by changing the import of his claims and his meanings is not worth the while. I never quite learn this one lesson.

Next:

"Have I really mentioned international law in my posts?"

Then you understand nothing, as I've long suspected.

This is a discussion about the laws of war and wartime detention. Of course international law is assumed when you talk about "errors" in the detention process. (This is why the CSRT process is modeled after Army Reg. 190-8, which is in turn based on the GCIII requirement for Article 5 tribunals.)

So hard to grasp?

And yet another of Krolik's brazen falsehoods:

In an earlier testy exchange, you attributed assumptions of prisoner "innocence" to me, which were unfounded.

Recall Krolik's earlier claim that:

uncharged, untried released prisoners represented an error in US incarceration policies.

This claim can only be true if

1. you assumed that these prisoners were (contrary to CSRT determinations) not actually enemy combatants.

or

2. there is a trial requirement for the incarceration process.

Since Krolik NOW claims not to be assuming (2) after his ill-fated appeal to the MCA ("that was not my point" he says), he is left with asserting (1). But (1) is precisely what he claims not to have assumed in the first place! In other words, Krolik contradicts himself when he claims that he has held neither of these assumptions that are intrinsic to his claim of "error" in the legal process.

So, this is another brazen attempt by Krolik to create more confusion, but fortunately there is a record.

Am I the only one who is sympathetic to Enthymeme's arguments, but uneasy at the flat attributions of dishonesty made against his opponents?

I have debated with dishonest opponents, including one or two in LibraryThing. Their character broadcasts itself. They are usually people who are so convinced of their own righteousness that they are indifferent to matters of mere fact, when making a case.

But I have not detected the vibrations of dishonesty here -- perhaps genuine confusion, perhaps unwarrented leaps of assertion and logic, perhaps venturing into territory where Enthymeme is an expert without being able to match his knowledge... but I would rather reserve the phrase "dishonest" for much graver sins.

The quality of mercy, for the sort transgressions I have mentioned, is not strained. And if all were treated according to their deserts, who should 'scape whipping?

</b>wtf close tag

</b>Acme Bold-be-Gone. :)

If it were genuine puzzlement, I wouldn't have been able to anticipate his preferred mode of evasion before hand. But I did; which indicates (to me) an evasive pattern to his replies. For example, he claims that his citation to the Military Commissions Act wasn't made in response to my point on the incarceration process. Yet the record patently shows otherwise:

enth (msg 78, on the incarceration process): "you do not have to be charged with a crime to be detained under the laws of war."
kro (msg 80, in response to 78): "I am referring to the Military Commissions act of 2006. Its provisions involve . . . specific charges and a determination, or not, of guilt."

Notice how the MCA is being cited to contradict my remarks on the incarceration process? The problem is that . . . the MCA's provisions on "specific charges and a determination . . . of guilt" don't pertain to the incarceration process. They pertain to trials by military commission - a different process altogether. Krolik confuses the two.

Yet, instead of admitting that he got it wrong - or worse, that he didn't actually read the text he cited - Krolik chooses instead to make the ludicrous claim that he wasn't actually responding to my remarks. His evasion to admitting error was to recast his citation of the MCA as an irrelevant aside. Evidently, he responds without regard to whatever it is he is responding to.

I don't think it's unfair to characterize such a response as "dishonest."

Well, maybe I am just sympathetic to someone who gets confused by all the particular initials and citations, and so on.

And it may not be "unfair" .. but is it wise?

Once you have called someone "dishonest", you are never ever going to convince them that they are wrong. They cannot back down.

Whereas, if we grant someone the possibility that they have been over-hasty in their consultation of the documents, or do not have enough grasp of real legal scholarship background to properly interpret them, we leave open the possibility that they will change their mind, or maybe meet you half way.

In any case, in none of his other posts does Krolik show any of the signs of the dishonest debater. He seems like a sensible liberal in fact, just the kind of person we need to be talking to.

So I think it perhaps is justified to conclude that he may have been a bit slipshod here -- to be honest, I have not felt able to follow the detailed argument so I cannot even say that for sure -- but not that he is "dishonest". That's a term that tends to end debate, which would be a shame.

>>>Enthymeme, I’ve sat down and (belatedly) reread this thread in entirety and yes, there are times where I agree I screwed up. More about that in a minute. I also still feel strongly and hold firm to certain points (patient souls can retrace the thread), which I still believe you misrepresent or give short shrift in your description.

As for ascribing motives to my statements (e.g., about the MCA, when you say that you could anticipate my response, which therefore makes the reasons you anticipated it, true), I find this an impressionistic method, and in curious contrast with the attention to detail that you display elsewhere. The sun came up this morning. Was it because you crowed?

Like many people I first heard about the MCA in media coverage when it was being debated. This predates this thread.

Still, even if my motives are not as craven as you say, that is no excuse for muddled argumentation on my part. In my eagerness to defend principles I hold dear and, frankly, in my irritation at your tone, I lost my cool and took my eye off the ball.

You are indeed rigorous and consistent according to the legal criteria you put forward, notably, in your argument that the CSRT determinations are the only arbiter of possible error and resultant sampling for use in statistics.

Upon rereading, I see I have excessively mixed legal arguments (e.g., “burden of proof”) with appeals to other criteria (political and moral), and, indeed, I got sloppy in separating these various strands. For instance, in the sentence that you return to, that “uncharged, untried released prisoners represented an error in US incarceration policies,” I do indeed mix apples and oranges. Even if I put less faith than you do in CSRT determinations as the only arbiter of sample, or as the underpinning for sound policy, this sentence of mine covers too much ground too fast, as you rightly point out. I did not think through some basic legal distinctions and adequately express them in my retort. This was intellectually lazy, and I compounded the error by getting over-excited and distracted from this problem in my eagerness to contest other statements of yours which I disagree with.

I was wrong for this, and for this I apologize.

>>>Doug, I have no intention of ending a debate.

Krolik: We're dealing with life and death issues here -- life and death of our civilization -- so sometimes those of us who think the liberal side doesn't appreciate what is at stake, get a little testy.

But we are much harsher on ourselves. (One of the most unpleasant insults I have received on this Board came via private communication from a fellow anti-liberal.) Or see here.

Sometimes it makes us tricky to deal with. But we're good to have on your side in a fight.

"The Law, Sir, is an ass".

To be a lawyer and a legislator is the definition of conflict of interest.

It is impossible to dice the irrational (human life) into small chunks of rationality (law) without loosing the things that give it sensibility. There is a limit to how far you can parse legal issues before you lose sight of the law's purpose. We see this all the time. Legal arguments don't always yield justice.

"civilizations" have come and gone, and human history has continued. there's no need for hysteria.

Unless it is my ox you are planning on goring.

The Marxist view, which is probably, unconsciously, the view of most educated people, is that civilizations proceed one from another, and get better and better, since their underlying foundation, the human ability to understand the material world and shape it to our ends by growing the forces of prduction, is a monotonic function, never decreasing.

Before 1914, it seemed, just empirically, that the growth and spread of civilization, and the growing "civilized" quality of it, was more or less automatic.

The catastrophe of the First World War, which called up from the ruins of civilzations first communism, and then fascism, put an end to that facile optimism. (In particular, it caused the secular intelligentsia of the West to become fundamental skeptics about their own civilization.)

We have seen these threats off, and it only took two generations and a couple of hundred million lives to do so. But can we be complacent? Are there other threats out there?

Of course, a world-wide nuclear holocaust which cauterized the material foundations of civilization, or a runaway weaponized mutant anthrax or the equivalent, culling the species by 99%, might throw civilization back a long way. Numerous science-fiction novels have been written on this theme.

Could our future be some sort of alternative to liberal democracy, which still worked well enough, in the sense of providing our daily bread, to prevent a serious struggle against it? Something like Russia or China appear to have today, on a permanent basis? Or, China and Russia and an Islamized Europe, with America Alone? And for how long?

I personally think the Good Guys are going to win in the end. This is either because of my early Marxist training, or, more likely, the effect of all the Hollywood Cowboys-and-Indians films I saw as a child, where you could be sure that, just as the savage Indians were about to massacre the peaceful settlers, the bugles of the cavalry would be heard, heralding a happy ending.

>99 Doug1943: Doug

...you could be sure that, just as the savage Indians were about to massacre the peaceful settlers, the bugles of the cavalry would be heard, heralding a happy ending.

But that is exactly the problem. Americans are absolutely the best at short-term heroic efforts against desperate odds. Nobody else can touch it. Problem is, it seems that most of us have the attention span of a fruit fly. As soon as we "win", we happily walk away, leaving...what?

A broken country where the Mujahedeen we trained and armed eventually morph into Taliban?

A country rich in resources (and nasty weapons), freed after decades of oppressive rule, left to fend for themselves in the face of gangster capitalism?

Unfortunately, some cultures have longer timelines.

>>99Doug

I was with you till the last two paragraphs (while wanting to insert environmental issues along with your allusions to the still ongoing nuclear threat and anthraxesque horrors).

I would like to believe that the "Good Guys" (name your team...there's hardly a consensus out there about the line-up) are going to win. But we are small and other forces are big. (I can at least muster enough optimism to say "we"... roughly.)

Despite your current alignment, are you maybe experiencing a Marxist hangover? Ineluctable progress, and all that.

Despite my current alignment, I have a strong Calvinist hangover, which is less optimistic (to put it mildly) about the drift of human affairs.

Oregon: You are absolutely right. I think that there are obvious biological reasons that we don't take the long view naturally. It's something you have to work at. Another problem is that the disparity between the US, and its democratic allies, means that they don't easily reach agreements: we are so big we think we can do it without them. They resent us because we are so big. After the USSR collapsed, the democratic nations of the world should have reached a consensus on trying to bring Russia into the fold. I don't think the terrible developments there were inevitable. The same with Afghanistan, although the problems were very different there.

Krolik: There is much of Marxism -- its historical materialism -- that I think is perfectly valid. I believe The Communist Manifesto is a brilliant anticipation of globalization, for example.

(And you would be surprised how many conservative s of the pointy-head variety began life as Marxists of one flavor or another: I think the majority of National Review's founding editorial board were ex-Reds. (Cue "just jumped from one freedom-hating extreme to another" observation here.) )

I thought about adding the environmental problems we are facing, and those we don't know about yet, but decided it would look like I was sucking up to the liberals. But I agree with you.

We'll win in the long run I think, because most people would rather go shopping than go to a rally in the Sportspalast. And democracy/capitalism lets them do that.

But pessimism is warranted too, to make us keep our powder dry. I like Romaine Rolland's prescription: Pessimism of the Intellect, Optimism of the Will. Nice trick if you can do it. And we can do it -- it's how we handle the question of our own demise, after all.

Doug,

"Once you have called someone "dishonest", you are never ever going to convince them that they are wrong. They cannot back down."

I disagree. For example, I remain open to persuasion on the merits of factual, legal, or genuinely insightful policy arguments . . . despite being told, earlier in this exchange, that I was "dissembling".

krolik, thanks for reviewing the thread in its entirety. I should clarify that I was not merely being curtly dismissive about your moral posture just because I could. Rather, I don’t think moral suasion will convince anyone here who isn’t already convinced. If my values are incommensurable with yours, no appeal to morality is going to get very far unless I jettison my views for yours, which isn’t going to happen.

Besides, most appeals to morality boil down to an implicit assertion of moral superiority. I don’t think that’s applicable here.

Update: The Court has decided in Boumediene. The administration lost 5-4. On the question of whether constitutional habeas extends to Guantanamo, Justice Kennedy answered "yes" for the majority.

The outcome is a major blow for the administration's and Congress's joint-detainee policy.

In 36, I wrote:

To find a constitutional right to habeas for the petitioners, the Court will either have to overturn settled precedent in Eisentrager and its progeny, or distinguish Eisentrager as somehow being factually different and thus inapplicable to the Guantanamo detainees.

The Court has taken the latter route. Needless to say, I found Kennedy's argument profoundly unpersuasive. Justice Scalia's withering dissent makes most of the points made in this thread - with Eisentrager especially resonant. The Chief Justice's dissent was unusually intemperate, accusing Kennedy of "activist" lawmaking; but he makes several points not made in this thread and it is well worth reading.

Slip opinion available here.

Thanks for the link.

A tremendous victory for freedom, that court decision. I would hardly call it the actions of an activist judiciary to say that habeus corpus is a constitutional right. It is more a statement that the law is the law. But Scalia doesn't care about that, he cares about the authority of the state. His dissent was basically a statement that the state should have the right to lock people up if they might become combatants. See the thorough and quite effective demolition of one of Scalia's arguments by Dahlia Lithwick here: http://www.slate.com/id/2193468/

It's about time this happened. There are still plenty of people in Guantanamo who aren't guilty of anything, and who can't be tried because there is no evidence against them and a trial would make the US look bad. The long periods of inhumane confinement have caused serious health problems and mental illness in some. With this verdict, at last some of them will get to go home before another year has passed.

>105 enthymeme: enthymeme

Thanks for the link. It will take a while to wade through all that, but I am sure it will be worthwhile. It is very difficult to get any sense of the actual opinions based on a few sound bites.

You might find the mud-like clarity of Kennedy's opinion perplexing (even if you agree with the result). Not to worry: it is a typical Anthony M. Kennedy opinion - baroque as to obscure deficiencies in reasoning. The concurrence and dissents are models of clarity by comparison.

jmcgarve,

Your comments are premature, and as usual, mistaken. There will be no immediate "freedom" for the detainees. All the decision does is resituate the ongoing litigation process from the D.C. Circuit (which until now has had exclusive jurisdiction under the DTA) to the lower district courts for further fact-finding.

Nor was it the Court's decision "to say that habeus corpus is a constitutional right." That wasn't at all the question being decided. The question decided was whether habeas corpus applied to noncitizens detained abroad, beyond U.S. sovereign territory.

The key precedent in Johnson v. Eisentrager suggests that the answer is "no."

Boumediene departs from that precedent by inventing a new category of "de facto" sovereignty that is nowhere mentioned in Eisentrager.

"But Scalia doesn't care about that, he cares about the authority of the state."

This is a simplistic caricature of Scalia, and it is incorrect. In Hamdi v. Rumsfeld, which held that "there is no bar to this Nation's holding one of its own citizens as an enemy combatant," Scalia's dissent against the plurality went the furthest in protecting Hamdi's habeas rights, on account of him being a United States citizen.

Further, not two weeks ago, Justice Scalia once again applied the rule of lenity when he ruled in favour of a criminal defendant in the money-laundering case United States v. Santos. The assertion that he only "cares about the authority of the state" is therefore quite unwarranted. I suggest you not read into others your own tendency towards ideological absolutism.

"His dissent was basically a statement that the state should have the right to lock people up if they might become combatants."

That's not what the dissent says.

"Dahlia Lithwick"

Dahlia likes being colourful more than she likes being accurate, a consequence of dumbing down for her readers. Scalia, for example, doesn't say anything to suggest that "those . . . deemed innocent at Guantanamo are actually guilty in (his) mind." Cases of detainees returning to the battlefield merely illustrate the danger and difficulty of determining if they still present a threat, so much so that even the military in its expertise gets it wrong. The point, which is purely dicta, is that federal courts are ill-equipped to handle such determinations given their removal from the circumstances of capture, and are as a consequence more likely to make mistakes. Dahlia addresses only this inessential aspect of the dissent, and does not purport to make a fuller analysis, which you mischaracterize as "thorough."

"It's about time this happened. There are still plenty of people in Guantanamo who aren't guilty of anything, and who can't be tried because there is no evidence against them and a trial would make the US look bad."

Trite assertions like this have no basis in fact. The United States has released more people from Guantanamo than are now resident there, which suggests that the administrative review boards are not averse to releasing people given a good reason. What the Court has done is to short-circuit that process agreed upon by Congress and the President, thereby imposing itself in war and foreign affairs - areas in which it has the least expertise to determine policy.

By intruding in an area traditionally reserved to the political branches, the Boumediene Court has, contra Eisentrager, "devised an effective fettering of (the) field commander" by calling him to account for policy, diverting him "from the military offensive abroad to the legal defensive at home."

In denying the writ to German prisoners in 1950, the Eisentrager Court warned that "such trials would hamper the war effort, and bring aid and comfort to the enemy," and that "the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States."

Justice Jackson was prescient, for he had foreseen the advent of 'lawfare.' What he could not foresee was that portent and precedent would today go unheeded.

"But Scalia doesn't care about that, he cares about the authority of the state."

This is completely contradictory to Scalia’s position as found in his dissent and that of Robert’s (each signed by the other). Scalia specifically refers and objects to “inflated notion of judicial supremacy”, while Roberts warns that the public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

The fact is, Guantanamo is an American Concentration Camp, and a moral scourge on this nation.

"We are holding you. We have evidence against you. We cannot tell you what the charges are, we cannot tell you what the evidence is, we have no release date for you, and you cannot face your accuser. "

There have been brilliant legal arguments made in this thread. Bully, Bully. Its seems that the law, like war, is just politics by other means.

Hardly.

A place where detainees gain weight while biding their time is neither unduly harsh nor a "moral scourge" whatever you may think. Such hyperbole cheapens the truly arduous experiences of actual concentration camp survivors, much like how the casual wielding of the term 'Nazis' in describing the modern state of Israel debases the survivors of Auschwitz.

Gee, I think I need to book my next vacation there! With nothing to do for weeks on end, I am sure I will find weight gain and moral superiority.

So, gaining weight is prove of just treatment? I do expect better of you than this! Starvation is not the only form of deprivation.

I never mentioned Nazis, although the notion of concentration camp certain makes that understandable--but then the title of the thread does contain the word gulag. The word "detainee" is just too Politically Correct to really mean anything significant. Prisoners of War? Well that raises other issues I guess.

Ahhh. They are our foreign guests.

Is adequate nutrition the only requirement for humane imprisonment?

41 suicide attempts might suggest that people are not crazy about the accommodations there. Of course, when three people did commit suicide, it was called a politically motivated action.

Is adequate nutrition the only requirement for humane imprisonment?

It is an indicator that conditions are not unduly harsh, which is after all the defining aspect of a "concentration camp." Obviously, that Guantanamo is not a concentration camp does not make it a particularly pleasant place either; but nobody claimed it was pleasant - only that it wasn't a concentration camp.

Not difficult to grasp really. Babble about "vacations" is likewise beside the point. You wouldn't vacation in a prison, are prisons ipso facto moral scourges?

I don't think so.

Clearly your notion of "unduly harsh" is more theoretical than reality based. And you are right. Vacations usually have more surfboarding than water boarding.

One simple question; How long are they to remain "detainees"?

I stipulated weight-gain as an indicator, which is surely "reality based."

How long are they to remain "detainees"?

Under Hamdi, for the duration of the relevant conflict.

That sounds more than a bit like the cardiologist who came in to see a patient here, and pronounced them in perfect health, not notcing that the area in the legs where the veins were harvested was severly infected.

"Weight gain is fine. There is nothing wrong with these prisoners."

I see patients who are in great "agony" because they are sick, and do not know why. They know there is something terribly wrong with them, but they have no idea what it is. When they get their diagnosis, they are almost always better off, even if it is a terminal diagnosis. At least NOW they know what is coming. More than once I have been called to a pt's bedside, because the docs could not figure what was wrong and the pt needed my help. When the get the diagnosis, I am no longer needed.

I read the account of an American taken captive and put in prison right after 9/11. He was a muslim from Detroit, and suspected of enemy activities. He was able to hold up until they started to tell him that they could hold him indefinitely. THAT was when he became suicidal.

That we can rational discuss holding people, with no formal charges, and who have no rights, except the most basic of human rights, as if this were normal, says how far we come.

I don't know what the technical definition of a concentration camp is but if you're comparing the treatment of prisoners in Gitmo to ordinary prisoners in the US, one big difference is that the ordinary prisoners know when they are getting out.

And they're not in Cuba, and their families and attorney's can visit, and outside groups can examine their health.

1. I don't see the point of your rambling story.

2. Prisons have their share of suicidal inmates. Prisons are ipso facto a moral scourge?

3. There has historically never been a requirement for "formal charges" in order for a person to be detained under the laws of war. Enemy combatancy is not a crime. Nevertheless, you may be detained for the duration of a conflict for simply being a combatant. This is nothing new. The suggestion that it is, is ahistorical.

See messages 48, 59, and 78.

See especially 48, quoting Madison to the Virginia Ratifying Convention, stating that "an alien enemy cannot bring suit at all."

I have no interest in repeating myself, and you are repeating arguments long discredited.

I think that's the point. Wars are between nation-states and end when one nation-state has destroyed the ability of the other to govern its territories or when the other gov't surrenders. We won the war against the Taliban gov't of Afghanistan long ago and any war prisoners should have been released at that time. But the "war" on terrorism isn't a war and it will probably last for generations so holding prisoners of that "war" until it is over is fundamentally inhumane.

So, to bring this thread back to the original topic, I don't believe that any court cases from WW2 could be used as precedent for any Gitmo cases.

In 110 enthymeme said, ". . . administrative review boards are not averse to releasing people given a good reason."

I would think they would need a good reason to keep people, not let them go.

Does not having evidence of a crime, or that a person is indeed not a combatant, qualify as good reasons to consider letting people go. I know enthymeme values law above morality, but holding anyone without reason (because some good guys got swept up in the net with the bad guys is not a good reason), without charge, and without allowing them to explain themselves is unconstitutional not because Americans have this right, but because it is a human value that you don't hold people against their will for no reason. THAT is a crime: it's known in the English speaking world as "Kidnapping".

Now enthymeme, I'm sure you can trot out a dozen precedents that show that when government does it, it's not kidnapping, but it is, and to many Americans who see civil rights as universals given by God to each and every human being it is and always will be kidnapping. Just like this "war" on terrorism didn't become a "war" because the President said it is.

I know war, enthymeme, and this is not war. Iraq is war, Afghanistan is war, the war on terror is like the war on drugs. Not a "war", will only limit our freedom, will place us all more or less at risk, both from the terrorists, and from our own ignorance, arrogance, and hubris, and will continue to be incredibly expensive, serve to segregate portions of the populace, and give the President "War Powers" that the founders never envisioned and are nothing short of tyrannical in scope. Where is the danger to my freedom? Al-Qaeda? Iran? A phony-war president? I go with the latter, if he reads the Consititution as allowing him to be a tin-horned dictator, creating a phony war so he can use "War Powers" to dispense with the freedom's guarateed to us all, he has done far more damage to America than Al-Qaeda.

Spew forth the laws that allow all this crap to happen. Once again, law is the servant of morality, not the author. Law that does not stem from a basic, human morality is not law, it is tyranny. No matter whose law it is.

We just come from different places. If the elected authority said it and others agreed to it and gave it the force of "Law", then you will follow it without question. On the other hand, the law is the servant of a just society, law does not define justice, it enables justice. After all, the Nazi's had their laws, just as we do.

That you don't see the point IS the point.

Which means you are probably right. This conversation cannot go anywhere.

1. Combat operations are still ongoing in Afghanistan.

2. The Congressional authorization of military force is not limited in scope to the Taliban.

3. On the contrary, the AUMF (2001) provides in relevant part that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

So, both jjwilson61 and geneg are fundamentally mistaken on the question of whether a war is ongoing. See 49, point 8.

You are also wrong about the caselaw, since neither petitioners nor the majority opinion in Boumediene make the argument you make on why Eisentrager is "not precedent" for the detainee cases. Quite the contrary: the Supreme Court has recognized in Hamdi that a war was ongoing, and that the detention of enemy combatants is "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use."

The Fourth Circuit confirms this understanding, when it addressed in Padilla v. Hanft the question of "whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war."

There is therefore no question that ongoing hostilities constitute a war as authorized by Congress. All this has been addressed - repeatedly - before. I'm rapidly losing interest in refuting old canards.

See, I told ya so!

That you don't see the point IS the point.

Actually, it isn't. Jejune platitudes like this only serve to obscure whatever point it is you think you were trying to make, but failed making. Again, I have little interest in repeating arguments that have been addressed upthread. Most of what you say is not novel, and is unlikely to be.

Does not having evidence of a crime, or that a person is indeed not a combatant, qualify as good reasons to consider letting people go.

No.

You confuse "evidence" with "evidence admissible in an Article III court." The detaining authorities almost certainly have the former (such as hearsay, which the Court in Hamdi determined was admissible in tribunal proceedings), but might not always have the latter. Even if they do have evidence that would stand up in court, the problem of graymail or the compromise of intelligence sources - once the enemy is able to confront the evidence - places severe constraints on what is admissible.

You understate such concerns without qualm; but it isn't your life on the line. You also underestimate the logistical burden of forcing soldiers and civilians from a foreign theatre of war to testify in every instance of capture. There were upwards of a million detainees in the second world war. Such numbers are an impossible burden on the federal courts and the military; which is why trials to determine the combatant status of captured enemy aliens have never been done - nor even countenanced.

In short: get real.

That you don't see the point IS the point.

Actually, it isn't. Jejune platitudes like this only serve to obscure whatever point it is you think you were trying to make, but failed making.


Once again, you are proof of the point.

Seriously, if this is Justice, Lunar is right to advocate the end of the State. That we can hold people, without charging them of anything, on US turf, in US custody, until ....what, we get Afghanistan back under our control.... seriously undermines our moral authority in the world.

But then, maybe all the lawyer jokes have more than a bit of truth in them. Since I know a lot of lawyers, I am as hestitant to go there as I am to join forces with Lunar. But this thread seems to be making that point over and over again. Morality is not the issue; legal minutae is.

I am sure that within the huge body of information we call the The Law, there is enough to either discredit or confirm the existence of the state of at Guantanamo. The fact that the Supreme Court of the United States is split on this shows, I believe, that either The Law is a joke, or the court is rife with political, and not legal thinking, that the law can be twisted to serve the ends you want it to serve, or that five of the people chosen to be the top jurist of the country are just plain dead wrong.

These are all problems that BushCo, if they had any intelligence between them, would have foreseen and dealt with long ago. Oops, I forgot. they are all Daddy-Staters and would have done just what they did because, after arranging the "Law" to allow them to do what they (as exemplars of Nietzche's Ubermensch) wanted, they did it. Those people should all be treated, no doubt, as heroes because of the way they stepped up and took over when BIG EVENTS called on them.

Of course it's easy when you create your own big events.

Arranging the law to allow you to do something does not make it right. And if you can't distinguish between "legal" and "right" then God preserve us from the likes of such as you.

I do not confuse one kind of legal evidence from another. either the government has something, the even the slimmest of reasons, or it doesn't and when it doesn't, there is no evidence of any type.

Why do soldiers in battle in foreigh theaters have to be dragged into an essentially moral question. Our troops do what they are told because the UCMJ tells them they must, and they believe in their code of conduct. It's the leaders, right here, Stateside, who are lawfully telling them to engage in an immoral war. Want me to trot out some Vatican pronouncements on the nature of this war?

I'm going to drop out of this now. It's obvious that you and I have a fundamental agreement that colors all of our arguments and renders both of us totally blind to the source of each others arguments. Yours is from a hard and fast adherence to the rules. I just want the rules to make sense.

BTW, I'm sure you thought my comment about kidnapping was so obviously beneath comment that you glossed over it, but I think it points out exactly each of our blindspots. You believe the law gives the government the right to arrest and hold anyone without reason for as long as the government wishes. It's all tied up in war powers, this act and that act (I'm sure you can show me exactly in Patriot II or wherever it is that says this). I believe taking someone against their will, for no reason (and don't trot out this lives will be lost if we charge you or show you the evidence, BS), without charges, and without an opportunity to explain themselves is kidnapping, I don't care who does it.

You want your government to do everything in its power to keep you safe. If that means suspension of a few universal human rights, so what, just make sure you have the law behind you. Because laws are made by our elected authority, that makes the government's actions legal. That's all you care about, that the duly appointed authority says it's okay to detain people without regard to the basic, fundamental freedoms for which this country fought a war (oh, I forgot, we're not talking about Americans, we're talking about Afghans and Iraqi's and Arabs).

I on the other hand don't accept authority willy-nilly because it says I must. My wife has a bumper-sticker on her car that is a quote of Benj. Franklin. It says something to the effect that, "It is the duty of every American to question authority" (bless my wife's little heart). I want authority to make sense before I yield my freedom to it. Oh, I'll bet if I pinned you down and asked you if you ever questioned authority you would tell me "Yes". But I have yet to see you question one thing that has a legal justification. That's not questioning authority, that's suborning it (oops, a legal term. Hope I got it right).

Anyway, you and I are like Lunar and I, we cannot see past our own blindspots with regard to each other's arguments and this blindspot is so fundamental to the way we each think, that no amount of persuasion in the world will make us see.

I must say that your off handed dismissal of that which you do not understand, speaks of the arrogance that usually seems to go along with your POV, and is rather enlightening. I know that sentence did not make sense to you, and I don't blame you for not understanding it, my heart goes out to you as you struggle with the land of gray. I realize how terrible it is for those of us who actually have to think through things in order to form a position, to come to grips with the ease with which you manage your own life by just waiting for authority to speak.

Apparently Guantanamo bay must be vacationer's paradise or else it is a "moral scourge of the nation."

If this is the moral argument you're making, you're being morally fatuous, as are those who suggest that "lack of family visits" (!) rise to the level of the unduly harsh. In your inverted moral universe, suspected terrorists and assorted threats dedicated to the obliteration of the United States deserve more consideration than your average citizen-prisoner in cell block D.

Naturally, I disagree.

Given that up to a million enemy aliens were held without charge in World War II until the end of the conflict, the suggestion that there is anything inherently wrong with wartime executive detention is more of a function of your ignorance than anything else. The laws of war explicitly allow for wartime executive detention without charge. See ante, at 78:

Under the Geneva Conventions, the Detaining Power may subject both enemy combatants and civilians to internment without trial. See Art. 21 of GCIII ("The Detaining Power may subject prisoners of war to internment.") and Art. 42 of GCIV ("The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.").

At international law, great deference is accorded to the Detaining Power's determination as to when it is "absolutely necessary" to detain an enemy alien. See the ICTY case Prosecutor v. Dario Kordic ("it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State.").

Of course, if you'd bothered to read the thread, you would have realized that your questions have been anticipated and answered. And I wouldn't have to repeat myself for your edification.

Your moral posturing is also quite bizarre. As should be clear by now, I reject your moral priorities, which are more often than not based on an inadequate understanding of law and the realities of war. You argue in morally abstract terms but hardly ever anchor your argument in policy terms to something concrete, nor do you consider why the exigencies of war necessitate practical compromise between Article III process and the actual dictates of warfighting. Until you do, it's hard to see why I should take your uninformed moral insights seriously.

I reject your moral priorities, which are more often than not based on an inadequate understanding of law

Just to emphasize our differences.

The law is always moral?

geneg,

From the length of your screeds, which are generally incoherent, I don't think you've thought through your position very well; even though you flatter yourself that you have. Just because I disagree with you doesn't mean I'm "blind" to the merits of your arguments either - I simply think you're wrong on the merits. Is that allowed?

Admittedly, I tend to ignore comments you've made that are in the 'not even wrong' category - and there a lot of those. Rambling about the UCMJ and abstruse if keenly-felt moral sentiments being salient examples. It's usually not worth the effort and tedium.

wow. Moral sentiments are beyong wrong...a true sophist.

Recently I attended a reading of the new book Kafka Comes to America by Steven T Wax, one of the public defenders doing pro bono work with the detainees at Guantanamo. He spoke powerfully of the circumstances under which these men were captured, the conditions under which they are held, and the proposed procedures for the military tribunals. Wax became interested when a local Portland lawyer, Brandon Mayfield, was falsely charged with participation in the Madrid train bombings in 2004.

At the time the US invaded Afghanistan, rewards were offered to anyone who would turn in members of Al-Qaeda. These rewards were worth a fortune in a country as poor as Afghanistan, and also represented a convenient opportunity to dispose of tribal rivals. Wax stated that approximtely 5% of those who have been detained at Guantanamo were actually captured by the US military.

Despite what the courts may say, this isn't a war for the reasons I mentioned. If you want to argue that it is I would appreciate it if you would summarize some arguments instead of pointing me to court cases. I suspect though that I would disagree with the reasoning.

Things are pretty bad in Guantanamo. In addition to the suicides, there are many reports of mental deterioration and mental illness, as well as inadequate medical treatment. The government used sensory deprivation and extensive periods of isolation to break down Padilla. I suspect that some of the same techniques are still present at Guantanamo. In particular, social contact between prisoners is very limited, and the detainees are not given any idea what is happening to them or why. It is true that the Guantanamo military authorities have released quite a few people, but the process has been absurdly slow. An Al Jazeera journalist was released after about 5 years -- and it was never clear why he was held in the first place. Two boys aged 13 and 14 were held for 18 months or so. Soldiers from the Northern Alliance had caught them on their way to a wedding, and turned them in for bounty. Those soldiers got paid, which was all they cared about. The boys were well treated and not interrogated in Guantanamo -- but why were they held at all? I have no confidence in the Guantanamo commanders to set a reasonable standard for who should be kept and who should not be kept. That is why court oversight is required -- not because the courts can better identify who belongs in internment and who doesn't, but because they can require the military authorities to make that determination in a timely way, and to justify any such determination based on real evidence.

Part of the problem is in the Bush administration invention of the "unlawful combatant" category. Where did that come from? What does it mean? How can a system claim to be a government of laws when there is no check on those who designate "unlawful combatants". There are perfectly adequate categories in law: enemy soldiers, who are to be kept in conformance with the Geneva convention; criminal suspects who should be tried promptly; criminals who have been tried and convicted, and those who are in none of these categories. Of course, some may be both enemy soldiers as well as criminal suspects or convicted criminals. "Unlawful combatants" is an invented category to get around the laws, and it should be scrapped entirely.

I will further justify my statement: "But Scalia doesn't care about that, he cares about the authority of the state." That is certainly an opinion, but I think I can document it pretty well. Here is the text of a speech by Scalia:

http://www.firstthings.com/article.php3?id_article=2022

I quote in particular these sections. Scalia, quotes the apostle Paul:

For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil.

He goes on to say: "The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law-even if it does not compel him to act unjustly-need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible."

This from a fellow that claims to be a strict constructionist! The constitution was written without any reference to the will of God. This was a radical departure from other documents of the time, and it was definitely intentional, and here Scalia declares that he will undo this separation, as "effectively as possible." Moreover, if the authority of the state comes from God, what does it mean to try to limit that authority or to resist it? It is statements such as this that make me characterize Scalia as one who cares only for the authority of the state. Here is a review of the speech that I think is also worth reading: http://www.commondreams.org/views02/0708-03.htm

It is fair to cite Scalia's dissent in Hamdi v. Rumsfeld as a counterexample. Scalia does strongly support habeus corpus for American citizens in that dissent. It is clear however, from other cases, such as Boumedienne, that he believes this right does not extend to non citizens held by the US government.

We have other pearls from Scalia, such as this one where he opines that if the supposed intent of torture is to interrogate, and not to punish, the eighth amendment provides no protection against it: http://thinkprogress.org/2008/04/28/scalia-60-minutes/

"Wax stated that approximtely 5% of those who have been detained at Guantanamo were actually captured by the US military."

This is misleading.

If that were grounds for release, Khalid Sheikh Mohammed would go free, since he was not in fact captured by the U.S. military. Statistics that counsel for detainees rely on are based on declassified summaries provided to detainees during their CSRT hearings - summaries stripped of the intelligence rationale for detaining them because of the sensitivity of the information, and because of the need to protect the intelligence collecting apparatus from compromise.

Litigating these cases in civilian courts forces the military to choose between releasing classified intelligence to the very enemies it shouldn't be releasing military secrets to, or abandoning the cases altogether in order to protect the intelligence value of its sources.

Again, these concerns are not new. See broadly, 69:

It would mean affording detainees a right to discovery, the right to examine the evidence arrayed against them, which would entail access to military intelligence, access to classified information, and the recall of soldiers from the theatre of conflict in order to testify in a civilian court against combatants who challenge their status.

Apart from the logistical difficulties involved, such a process would jeopardize - if not compromise - intelligence sources cultivated by the United States. See CIA v. Sims ("If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place.").

It would also create the perverse incentive to kill, rather than capture, enemy combatants to avoid the onerous burden of litigating the status of every combatant detained. See Tenet v. Doe ("Forcing the Government to litigate these claims would also make it vulnerable to 'graymail,' i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations."). Not only would the war be fought one-handed in the event - so would the litigation process if the Government is unwilling to compromise its intelligence sources for operational reasons.

In any event, the notion that the majority of Guantanamo detainees are 'innocent' is an insupportable assertion. See the Brookings Institution, "Detention Retention" ("But the broader debate over Guantanamo has suffered greatly from overbroad claims of erroneous detentions there. . . . there is also an element of romantic fantasy in the belief that large numbers of Guantanamo detainees are there by mistake.").

The truth is not quite so dire, and certainly not so dire as to necessitate an erosion of the Court's prior precedents on wartime internment.

"this isn't a war for the reasons I mentioned."

Those reasons are demonstrably unsound. If war can be had only "between nation-states," then civil wars aren't wars, which is an absurd consequence of your argument.

"Despite what the courts may say"

Then the reasons you cite have no relevance to determining the legality of combatant incarceration incident to war, which is a purely legal question answered by the Prize Cases ("But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign States.").

"Things are pretty bad in Guantanamo."

So bad that detainees gain 20 lbs of excess fat on average. This predilection for exaggerating conditions does your case no favours.

"I have no confidence in the Guantanamo commanders to set a reasonable standard for who should be kept and who should not be kept."

That is not your call to make, since it is the military that is risking its soldiers in the field, it has the institutional expertise and prerogative to make that determination, on the preponderance of the evidence, on whether combatants are properly detained. The courts are the least qualified to make that determination, given their remoteness from the circumstances of capture and relative incompetence in military affairs.

Judicial oversight of wartime enemy captures is historically unprecedented because of practical reasons, which the Court today elides. Were such oversight in place during World War II, federal courts would have been obliged to process several hundred thousand habeas petitions from enemy aliens interned in the United States - an absurdity that would have been a burden too onerous to shoulder.

Part of the problem is in the Bush administration invention of the 'unlawful combatant' category. Where did that come from? What does it mean?

I seem to recall addressing this before. Oh wait. I did. Above, at 35:

The category of "enemy combatants" has been extant in American jurisprudence since Ex parte Quirin (1942) ("By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, and also between those who are lawful and unlawful combatants.") (citing the 1907 Hague Regulations on Land Warfare).

The fiction that this is a recent invention has long since been refuted. Stop reciting from the same hymn-sheet of discredited talking points.

"I quote in particular these sections. Scalia, quotes the apostle Paul . . ."

And yet the quotes you cite have nothing to do with his judicial philosophy or how he decides cases. Scalia plainly writes:

Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court.

In other words, these are his views on morality, and he doesn't let his personal moral scruples get in the way of deciding cases according to the law, which may at times conflict with his personal morality. Your caricature, accordingly, is unwarranted.

". . . he opines that if the supposed intent of torture is to interrogate, and not to punish, the eighth amendment provides no protection against it."

Precedent suggests that he is correct, since the Eighth Amendment does not apply until after conviction and sentencing, and only as part of the criminal process. The text of the Cruel and Unusual Punishment Clause is self-explanatory.

enthymeme, do you consider "at war" to be a preferable condition of the state?

#141 - By dingies! I knew it all along! Israel has been after the US to give them back Yaaretz Israel. Now we have it straight from the pen of Saul of Tarshish, one of the most important Jews in the world.

Israel is the puppetmaster to BushCo. And now, they've hornswoggled some members of the Supreme Court.

enthymeme,

You keep focusing on food and weight gain as proof no one is maltreated. Did you have an eating disorder?

But seriously, you said you didnt get my posts on psychological mistreatment. I supposed it would be a waste of time to repeat them, but suffice it to say that normal people do not handle imprisonment well, less well when they know they are innocent (so we are placing special burdens on those who are innocent here) and even less well when they do not know the terms of their imprisonment, and are kept from communications that would give them some kind of bearing on their release date.

I am assuming the US Army is at least as smart at the average psychiatric nurse, and that this type of treatment on their part is intentional. Does it really escape your notice that those who are innocent are undergoing a form of psychological torture? Are you truly unable to see that? Whether it is half, one quarter, or just one. (Kind of the inverse of the Abraham story...If we can find just one righteous man, will you destroy it, Lord?)

Also you said, Those reasons are demonstrably unsound. If war can be had only "between nation-states," then civil wars aren't wars, which is an absurd consequence of your argument.

Civil wars, generally are by two factions vying for the right to be the nation state. I am sure you are aware that in the American civil war, the confederacy did see itself as a sovereign nation state. Guerilla wars would not fall under the definition of war, but generally we call those insurrections, and they matters for the para-military police units. Even in insurrections you often have a power that at least claims to be a government in exile.

Quite a flurry here. This thread had been moribund for too long. A few thoughts:

1) Earlier, some of us were expressing dismay about Guantanamo, to which the reply was basically, Hey, it's consistent with the law and thus OK. Now, to a small degree, the tables have been turned. And now it's tempting to say, Hey, suck it up, you got a problem with the law? (Some media are doing that.) But that's not good enough. If this illustrates anything, it's the malleability of these matters. Who knows what the next installment will bring, legally speaking. But the moral questions (with which we irritate each other) won't go away. Even if we'd like them to.

2) Scalia is a constructionist--except when he's not. His speculation that this ruling will lead to deaths might be true. Others' speculation that Guantanamo is a recruiting symbol for anti-American fanatics who kill might be true. Neither arguments, however, rely on a strictly constructionist approach. They are guesses and projections by concerned people. Again, the moral dimension emerges, and purely legal reasoning retreats.

3) Even as our tempers flare, those of us encouraged by this ruling will be more morally credible if we avoid hyperbole. Talking of a "gulag" just won't cut it. For whatever it's worth, I tried to argue about that in post #13.

This is getting long; enough for now...

A little more fodder.

Boy, even our friends are leaving us in the dirt by negotiating with terrorists. Does this mean we are enemies of Israel and Egypt? I guess Israel just doesn't have the balls BushCo thought they did. How dare they trade their place in the war on terror for a little security! Traitors!

"do you consider 'at war' to be a preferable condition of the state?"

No, but my preferences don't factor into it.

"You keep focusing on food and weight gain as proof no one is maltreated."

That was not a claim I made.

"Does it really escape your notice that those who are innocent are undergoing a form of psychological torture?"

Hyperbole.

"Are you truly unable to see that?"

I see. Mistakenly convicted persons jailed for life without parole are undergoing "torture". Empty the prisons.

"Civil wars, generally are by two factions vying for the right to be the nation state."

And al Qaeda claims Andalusia as part of the Caliphate, now nascent in Afghanistan and Waziristan. This makes them a nation state? Under your definition, it does. You prove too much.

Playing fast and loose with the definition to save your theory from absurdity inadvertently proves my point. It's a war any way you slice it.

Nor would reverting to a doctrinaire definition (after loosening it) aid you at this point, since that would exclude wars between sovereign entities roughly synonymous - but not identical with - nation-states (such as empires or khanates).

Your argument unravels.

"the confederacy did see itself as a sovereign nation state."

So did the Taliban.

"Earlier, some of us were expressing dismay about Guantanamo, to which the reply was basically, Hey, it's consistent with the law and thus OK. Now, to a small degree, the tables have been turned."

There's a subtle but crucial difference: my criticism of Boumediene is based on its inconsistency with prior precedent and law; it's not made on the basis of freestanding moral or political intuition. I do believe that this administration should comply with the decision, and that it should work out how best to proceed with litigation within the bounds proscribed by the Court.

If the reverse extreme were true - say, if the President used his pardon powers to grant amnesty to those responsible for the September 11 attacks - I would equally defend Executive policy as constitutional; not spuriously argue that it was "unconstitutional" on covert moral grounds. Likewise, it would be possible for the Court acting contrary to precedent to hold such pardons justiciable and ultra vires, but then, as now, that decision would be eminently criticizable for being inconsistent with prior law.

"Scalia is a constructionist--except when he's not."

Scalia is not a "strict constructionist."

"His speculation that this ruling will lead to deaths might be true. . . . Neither arguments, however, rely on a strictly constructionist approach."

Justice Scalia clearly states that he would "devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court." The part that doesn't address why Boumediene is incorrectly decided on the merits is dicta, and he says as much: "Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today."

A description of the practical consequences of the holding is not a legal argument on the merits, nor is it dispositive, and Scalia doesn't suggest it is. To view it otherwise would be to misread the dissent.

Forty-one suicide attempts, as of 2007, trumps your weight gain.

Oh and saying "hyperbole" is not an argument, and in this case, just a dodge.

So you are saying that whatever the law and legal authorities say is the correct path to follow. It is impossible to imagine putting a stake in the ground and defending it against all comers. When the law changes, the stake moves. Whatever the law supports is the position one must take.

No wonder the idea of an immovable stake in the ground is anathema. Do you not have beliefs beyond what you are told you can believe through law?

Nothing you have said that I can see over the last year or so, has been said without validation and authority of law. It doesn't matter if the law is pro or con on the issue at hand. All that matters is that it is the law. Does this not sound like deep down inside you are missing an essential aspect of being human?

Everyone else here (besides Lunar) is discussing the justice of the law. This is a non issue to you. The law is the embodiment of justice (whatever that is). If this is not the case, I wish you would demonstrate to us that you are capable of independent thought, by taking a stand against the law on an issue, or if that's just too far out, how about your ideas on making the law more. . . legal. But give us a glimpse of enthymeme, not just the legal junkie. Certainly law has it's place, but law is a reflection of man's attempt to find justice in the world. To do that, the law must be approached from the standpoint of justice. Not justice being a reflection of the law.

Give us some idea of what you think, not what others tell you to think. Or do you not think, and cover this deficiency with an obsessive, but not introspective, knowledge of the law? This is not meant to be mean or cast asparger's at you, I'm just curious. I've never met anyone before so wedded to such a movable standard.

the burden is always on the torturers to defend their right to torture; thus it is interesting to see the lengths to which conservatives will go to defend gitmo and renditions. it is also interesting that the supreme court, with a conservative majority, has handed bush several setbacks.

1. No one is defending torture.

2. I don't see any conservatives here.

3. Or the Court isn't as conservative as you imagine.

"Nothing you have said that I can see over the last year or so, has been said without validation and authority of law."

Get your cataracts removed.

"I wish you would demonstrate to us that you are capable of independent thought, by taking a stand against the law on an issue"

I did. I said Boumediene was incorrectly decided.

And what is it with the cretinous self-flattery? You're not exhibiting "independent thought" - if you were you would actually say something novel. Not reflexively parroting the ambient tropes of the NPR-listening commentariat. If you ever have an original thought that diverges from the partyline, let me know.

Given the obvious deathwish of al Qaeda members prior to incarceration - many are prepared to martyr themselves as terrorists after all - suicide attempts don't actually prove anything.

If they're willing to kill themselves for propaganda value, they're willing to attempt to kill themselves for propaganda value.

"Oh and saying 'hyperbole' is not an argument, and in this case, just a dodge."

Except that it isn't. Under your theory, life without the possibility of parole would be "torture" and therefore cruel and unusual punishment under the Eighth Amendment. An absurd if predictable consequence of your fondness for hyperbolic terms.

Exaggeration devalues your credibility, as do cynical rhetorical attempts to shock the conscience.

#157 & 158:

On the fabrication that the Supreme court is dominated by conservatives, John Yoo, in yesterday’s WSJ, writes:

“Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.”

The entire commentary is worth reading:

http://online.wsj.com/article/SB121366596327979497.html?mod=googlenews_wsj

He would say that of course, he was cited with approval by Justice Scalia.

Yoo has distinguished himself as America's version of Carl Schmitt. He is beyond needing the approval of the whiny Scalia.

Well, I guess you said you didnt understand my story, now you are proving. I did NOT say "without possibility of parole." That is a figment of your fascination. Either you are not reading what I said, or you have some very selective lenses. But you are right. You obviously did not understand. (Which intrigues me, I must admit. As a professional watcher of people I keep wondering what it is that keeps you from seeing certain things.)

Anyway, my point was the lack of knowlege. If you had actually read my post, (or tried to understand it, instead of just lining up your arguments against me) you might have gotten to the part where I wrote, " When they get their diagnosis, they are almost always better off, even if it is a terminal diagnosis."

Life without parole is certain.

Imprisonment, with no charges, no release date, no contact with the outside world, is enough to drive people to suicide. I doubt you will grant this point, given the fact they are well fed, and given your inability to deal anything but the arcane legal wrangling of the situation. (Which, by the way, you ARE very good at.)

But I must admit, you do intrigue me. As the Rev. Will B. Dunn once said, "People are my business."

sigh...speaking of gulags. We have another soldier in ours. This one had no business in the Army. Even a basic psych eval should have ruled him out, but here he is, now a resident of our wonderful psych ward. At least he didnt kill anyone, or himself.

The last three guys we had were not able to get medical discharges, even with pretty severe personality disorders. Sigh.

This war is taking its toll in very, very many ways. I am really tired of seeing suicidal soldiers.

I find Arctic's posts 164 & 165 very useful input that might inform the conversation, if we could calm down a little. But Arctic, using the word "gulag" grates on me--I won't let that one slide.

Enthymeme and enevada, from my end it looks like you're punching at straw men. E.g., for Enthymeme "the ambient tropes of the NPR-listening commentariat"--well, sorry, I don't listen to NPR, nor do I have the good fortune of being a member of the "commentariat" (though I admit I might get a frisson from that position, like playing second base in the big leagues.) But never mind fantasies. Neither here nor there.

I'm talking as a Citizen, no more, no less.

And enevada, I'm not trying to make some larger argument that the court is "dominated by conservatives." That's another discussion, for another day. Or another thread. Or a larger agenda. Shall we stick to the point?

Actually, I think theoria (post 157) and Enthymeme (post 158) put their finger on the underlying question of this entire thread. Enthymeme asserts, "No one is defending torture."

Well: Are we? Or are we not?

Aside from the Supreme Court particulars--obviously a very big deal--this question is the elephant in the room.

For those of us who care to entertain it.

I don't get my ideas from NPR, they get theirs from me.

It seems to me much of John Yoo's work, as reported by various news outlets was to 1) scrub the law so that torture would not be illegal 2) after doing so make the argument for torture, and 3) write opinions that led to the authorization of torture.

Mine was purely a public service post - so many times I hear about "conservatives this" and "conservatives that" that I thought you might actually want to read it from the horse's mouth, from time to time.

Straw man - can we kill that phrase once and for all? It reeks of pedantry.

Second base? Gee whiz, why settle for second base? Short stop, third, or pitcher. I mean, if we are fantasizing.

For what it is worth the gulag I was refering to in post #165 was our hospital's psych ward.

re 168

Agree that pedantry is to be avoided, but I don't think "straw man" has outlived its usefulness.

Words are innocent in the general scheme. We who use them are the ones who must assume their applications.

As for second base--I see your point, but don't underestimate the keystone. Us Midwesterners know how to appreciate Rod Carew.

re 169

yes, Arctic, I see that now. Thanks.

re 167

agree, Geneg--the definitions of torture are constantly evolving and recently have been opportunistically recalibrated. That's why people are having so much trouble talking about it. And this trouble is partly by design, from those doing the recalibrating.

In #140 I say: "I have no confidence in the Guantanamo commanders to set a reasonable standard for who should be kept and who should not be kept."

Enthymeme replies in #144: "That is not your call to make, since it is the military that is risking its soldiers in the field, it has the institutional expertise and prerogative to make that determination, on the preponderance of the evidence, on whether combatants are properly detained. The courts are the least qualified to make that determination, given their remoteness from the circumstances of capture and relative incompetence in military affairs."

Here I think is a central point of my disagreement with Enthymeme. Military forces all over the world capture people they claim to be combatants, and hold them. Sometimes the internments are justified by the evidence, and sometimes not. Sometimes holding the combatants is a military necessity, and sometimes it isn't. Sometimes the imprisonment is humane by standards of international law, and sometimes it is not. Is this our call? Or do we leave it to the military and the executive branch, with no checks whatsoever? I claim it is the responsibility of every citizen in a democracy to make this call, and to seek to remedy the unjust internments when they occur. True, I am not a military officer in the field. But (a) military officers in the field do not set the standards at Guantanamo. They have been set by Rumsfeld, Cheney, Bush, Feith, Gonzales, and so on, men who are not commanders in Iraq, who have no experience of combat, and who can claim no special authority on that ground. And (b) if it were not these civilian authorities setting the standards, then no one could be held to account in any way, and abuses would be the rule, because they would be convenient. It is appropriate to involve the courts, because of the need for a relatively independent arbiter. That is why the right of habeus corpus exists in general. We may expect the courts to weigh the facts that the military authorities present. In some cases, these facts may constitute sufficient grounds for continuing internment, but given the slow process in releasing those who should never have been held, I expect that some will be released.

Some NYT reporting and speculation about methods and consequences:

http://www.iht.com/articles/2008/06/22/america/terror.php

Interesting things happen when 'enemy combatants' are given access to normal courts:

"After the first court review of the basis for holding a Guantánamo detainee, the federal appeals court in Washington has overturned the Pentagon’s decision and ordered that the man be released or given a new military hearing." http://www.nytimes.com/2008/06/24/washington/23cnd-gitmo.html?hp

This recent article in Salon covers who some of the "'Worst of the worst" in Gitmo really are, and how we treat them. (Hint: Two of the people were brought there when they were 15, and 20 were under the age of 18 when they hit the sands of American Cuba.)

from the website of Seton Hall Law:
Seton Hall Law’s Center for Policy and Research has issued a report revealing that Justice Scalia’s dissenting opinion in Boumediene v. Bush, which accords Guantánamo detainees the right to habeas corpus review in federal court, cites inaccurate information that was retracted by its original source, the Department of Defense (DoD).

On June 12, Supreme Court Justice Antonin Scalia’s dissenting opinion on the ruling stated that “at least 30 of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield.” The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. The “30” number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely.

Press release here.
Report here.

This from the Guardian, about Christopher Hitchens being waterboarded:

http://www.guardian.co.uk/world/2008/jul/02/humanrights.usa

A Johnathan Freedland review in current New York Review of Books offers an interesting description of Hitchens and other liberal hawks, and he raises the issue of Orwell Envy. Sorry, I can't give a link to it. Take a trip to your library, that nice place...

This story has a long tail and is not going away. The question of language and interpreters has often been ignored or under-reported. The following link might be of interest to some:

http://www.nytimes.com/2008/08/10/books/review/Rosen-t.html?ref=books

180> good post. And it is a good time to be reminded that Obama's first major public act meant to symbolize a change from the Bush years was a sham.

Obama was unable to close Guantanamo because it was politically impossible to place the prisoners in prisons within the United States. One might say that Obama "meant well" but spoke naively -- or expediently.

Now of course he's never heard of "Guantanamo" and couldn't find it on a map no sir!...