Did the Supreme Court Make Things Worse for Future Enemy Combatants?

Damon W. Root | June 14, 2008

There's a lot worth thinking about in Justice Antonin Scalia's harsh Boumediene v. Bush dissent, but one passage jumped out right away. After noting that the Bush administration used the naval base at Guantanamo Bay precisely because it believed that enemy combatants would not enjoy habeas corpus and other constitutional rights while being held there, Justice Scalia suggests the following: "Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention." Here's the kicker: "Those facilities might well have been worse for the detainees themselves."

Given that "allies" such as Egypt and Syria regularly torture their prisoners, I'd certainly agree that things "might well have been worse" elsewhere. But isn't Justice Scalia contradicting President Bush, who famously declared that "torture is never acceptable, nor do we hand over people to countries that do torture." And maybe I'm reading too much into it, but Scalia's words sure sound like an implied threat. You liberals think Guantanamo is bad? Next time you won't even know where the prisoners are held.

Comments

|6.14.08 @ 8:18PM|#

Uh, why is Scalia even bothering to talk about that? Those considerations don't have any bearing on the existence or nonexistence of habeas corpus.

Apaulogist|6.14.08 @ 8:39PM|#

This is a double edged sword for the neocons.

If Guantanamo Bay is not to be considered U.S. soil for jurisdictional purposes, than neither is the military base in Panama where he was born. According to the U.S. Constitution, only "natural born" citizens are eligible to be President. Citizens born elsewhere (like California Governor Arnold Schwarzennegar) are ineligible.

The U.S. federal government derives it's legitimacy from the Constitution. It cannot flout the constitutional limits on it's authority without negating that legitimacy.

Pablo Escobar|6.14.08 @ 8:39PM|#

Uh, why is Scalia even bothering to talk about that?

Because Scalia is one of those judges who believes "national security" concerns means politics trumps the law and the Supreme Court must meekly accept semi-dictatorship so long as the President and a compliant Congress say it's OK.

By the way, Damon, the US already has several secret prisons and extraordinary renditions. So Guantanamo is just the tip of the iceberg.

Mike Laursen|6.14.08 @ 8:45PM|#

Hey, all he's saying is that we need to benchmark our rights against other countries. You know, to improve the efficiency of operations.

|6.14.08 @ 8:48PM|#

Who turned over the rock here on H&R and found you, Root?
Dig deeper and come out only every 17 years.
Funny how folks live up to their name.

|6.14.08 @ 8:52PM|#

We have always held prisoners of war and never had to deal with a case like this because Habeus Corpus is about much more than prisoners of the current war. What Bush was attempting with Guantanomo was to make an actual prison, not a military prison camp, for terrorists and to hold them as if they had a sentence from a judge.

|6.14.08 @ 9:15PM|#

We have always held prisoners of war and never had to deal with a case like this because Habeus Corpus is about much more than prisoners of the current war. What Bush was attempting with Guantanomo was to make an actual prison, not a military prison camp, for terrorists and to hold them as if they had a sentence from a judge.

"Never" is not accurate. E.g., ex parte Quirin, ex parte Merryman, and ex parte Milligan. The Supreme Court ruled against Lincoln in the two latter cases, but let FDR summarily execute Germans (and one American citizen) in Quirin. I also think that Johnson v. Eisentrager is relevant. The US obviously had quite a lot of jurisdiction over the prison in the American sector in postwar Germany. Justice Kennedy was trying to make a pretty absurd distinction between the two IMO. That doesn't mean that Johnson v. Eisentrager shouldn't have been overruled necessarily, just that efforts to find a distinction are strained.

Besides "making things worse for future prisoners," it could also encourage something else-- killing rather than taking prisoners. They might never get to be future prisoners in the first place.

|6.14.08 @ 9:27PM|#

"You liberals think Guantanamo is bad? Next time you won't even know where the prisoners are held."

ie, the status quo ante. Remember all those guys like KSM, who were brought to Guantanamo last year(?) from the dark sites all over the place?

By the way, how is KSM an 'Enemy Combatant'? Evil scumbag, yes, but AFAIK he was arrested at home in Pakistan, not in Afghanistan, let alone on any kind of 'battlefield'.

|6.14.08 @ 9:29PM|#

David E. Gallaher | June 14, 2008, 8:48pm | #

Who turned over the rock here on H&R and found you, Root?
Dig deeper and come out only every 17 years.
Funny how folks live up to their name.

What the hell was that all about? If you have an argument, make it....

|6.14.08 @ 9:34PM|#

Before throwing a fit, I advise reading Justice Roberts dissenting opinion (don't have time to dig it up just now, google is your friend). Even if you don't agree with his conclusion, he makes some points worth considering....

|6.14.08 @ 9:36PM|#

I'll be surprised if we ever take another prisoner.
I imagine everyone captured, not subject to the Geneva Convention, will be interrogated in the field and then either released or given a drumhead court martial and executed immediately.

|6.14.08 @ 9:40PM|#

Mr Thacker,

You do realize that a lot of the prisoners were not captured on the battlefield, right? The lion's share of them were simply handed over by supposedly US-friendly warlords with assurances that they were bad guys.

Paul Shorter|6.14.08 @ 9:40PM|#

When reading about GITMO I learn that most of the detainees have gained weight, have 12 hrs. of recreation each day, reading material, a prayer rug, and a Quoran and are not tortured. They didn't have it this good when they were living in a cave in Afganistian killing innocent people, coalition soldiers and dodging bullets.

|6.14.08 @ 9:47PM|#

Damon,

Scalia noting that detainees might be treated worse if handed over to our so-called "allies" is not the same thing as admitting that we turn over detainees to other countries knowing they will be tortured. when another country gives the US diplomatic assurances that a prisoner will not be tortured, we assume that to be the case, but any realistic person can also assume that we don't know anything with 100% certainty, especially when dealing with nefarious countries in the ME and their even more nefarious security services.

Say we capture someone fighting against us on the battlefield, and this person is, for example, an Egyptian national. While trying to figure out exactly who they are, what they are up to and what they may know, we could previously have kept them in Gitmo. Now, we may as well just send 'em back to Egypt - and let the Egyptians do what they will.

|6.14.08 @ 9:50PM|#

Pig Mannix,
An "enemy combatant" is a unicorn..
After Obama becomes Prez, there won't be such a fiction.

The Supremes are typical of Reasonoids constantly missing the forest for the trees.

|6.14.08 @ 9:59PM|#

"when another country gives the US diplomatic assurances that a prisoner will not be tortured, we assume that to be the case"

Oh, please. Grow the hell up.

Curious Hussein George|6.14.08 @ 10:09PM|#

Besides "making things worse for future prisoners," it could also encourage something else-- killing rather than taking prisoners. They might never get to be future prisoners in the first place.

Sounds good to me.We won't have to deny waterboarding them or flushing Korans down the toilet later.

|6.14.08 @ 10:30PM|#

The solution to flushing Korans down the toilet is simple, just print them on biodegradable paper.

Next problem, please.

Michael Volpe|6.14.08 @ 10:35PM|#

Terrorists having rights of common criminals is among many common misconceptions that liberals seem to mistake about the GWOT. Whenever I debate one, they always come up with the same faulty arguements. I finally had to put them all in one place. here is the piece...

http://theeprovocateur.blogspot.com/2008/06/liberal-misconceptions-lies-and.html

|6.14.08 @ 10:50PM|#

"Terrorists having rights of common criminals is among many common misconceptions that liberals seem to mistake about the GWOT"

I don't think anyone would care if they could prove that they're actually terrorists. Mostly, they haven't been.

|6.14.08 @ 10:50PM|#

Terrorists having rights of common criminals is among many common misconceptions that liberals seem to mistake about the GWOT.

Whereas among conservatives, the most common mistake is that the GWOT is an actual war.

|6.14.08 @ 10:56PM|#

"when another country gives the US diplomatic assurances that a prisoner will not be tortured, we assume that to be the case"

I have to echo Jon's call here. What the hell do we pay the CIA for, if we don't even know what our allies do with their prisoners?

Grow up, indeed...the United States isn't stupid in this arena.

|6.14.08 @ 11:18PM|#

If Guantanamo Bay is not to be considered U.S. soil for jurisdictional purposes, than neither is the military base in Panama where he was born.

AFAIK, this is not the argument being made. The argument is that the prisoners are enemy combatants and therefore not entitled to rights. it doesn't matter where they are held; it's an argument about the nature of the prisoners, not U.S. jurisdiction.

That's why the whole thing is so frightening: anyone can be declared an enemy combatant and held without any access to the traditional rights of a citizen.

David Gallaher - where did Mr. root say he was ENDORSING this viewpoint? If anything, he's busting Scalia out for making veiled threats or predicting the fallout.

|6.14.08 @ 11:22PM|#

Terrorists having rights of common criminals

Habeas Corpus is not the right of common criminals. It is the right of human beings. It is the right to ask of your captor "why are you holding me?" and to demand that his answer be more compelling that "raison d'etat."

|6.14.08 @ 11:23PM|#

that = than

[grumble, grumble]

|6.15.08 @ 12:28AM|#

The day is quickly coming when the notion of anyone being disappeared in America for whatever chose infraction against the state is fact of life.

|6.15.08 @ 12:36AM|#

"The day is quickly coming when the notion of anyone being disappeared in America for whatever chose infraction against the state is fact of life."

And some Republican will explain that this is what makes America great.

|6.15.08 @ 12:38AM|#

"The solution to flushing Korans down the toilet is simple, just print them on biodegradable paper."

We could also give the prisoners Bibles to wipe their asses with.

I'd be okay with that.

Jelperman|6.15.08 @ 12:43AM|#

First of all, handing prisoners over to a third party when one has reason to suspect that the third party will torture, kill or otherwise mistreat them is a war crime.

Second, there are two (and only two) legal categories for prisoners under US law:

1) If the person was caught on the battlefield or otherwise taken prisoner by military forces, that person is a prisoner of war, and can only be tried by a full court martial (one in which the prisoner has the same full legal rights as a member of the armed forces of the detaining power).

2) The person was caught somewhere other than a battlefield or military operation (arrested at an airport or bus station). In this case, the person must be tried by the regular courts or set free.

I realize torture enthusiasts like to throw around the term "enemy combatant" as though it's some kind of separate special category. The law recognizes no such thing. Either they are prisoners of war or they are criminal suspects. Either way, torturing them (or otherwise mistreating them) is a war crime, as is executing them after giving them a "trial" by the kangaroo courts like the ones at Guantanamo.

If the government cannot or WILL not treat them as POWs, or give them due process, then keeping them locked up is also a war crime.

|6.15.08 @ 12:50AM|#

"If the government cannot or WILL not treat them as POWs, or give them due process, then keeping them locked up is also a war crime."

One the subject of that meeting, I do not recall.

|6.15.08 @ 12:59AM|#

"2) The person was caught somewhere other than a battlefield or military operation (arrested at an airport or bus station). In this case, the person must be tried by the regular courts or set free."

Not exactly. Foreigners entering the country are in a bit of a legal limbo, which can last a loooooong time without charge or trial.

There was a story in the WaPo recently about an Italian guy who flew into the US to see his American girlfriend in Virginia. He wound up in a VA jail for two weeks, and then sent back to Italy, for no reason other than "you come here too often".

|6.15.08 @ 1:33AM|#

Its not clear what form this will take in practice, but it seems like the court is saying is that either habeus corpus, or some kind of adequate substitute, needs to be given to people held at Gitmo who claim that they are not captured enemy militants. The current review board (which has a much lower standard of evidence than regular courts for confirming that someone is an enemy combatant) is insufficient.

One issue (as others have mentioned) is that some people were captured under murky circumstances, by warlords of unclear crediblity. I'm not sure how they would investigate those captures, but I suppose one thing they could do to avoid future complications is have someone embedded with those militant groups that are cooperating with the coalition. That person could try to ensure that these warlords are not just grabbing innocent people and making stuff up (whether to steal the person's wealth, or eliminate a political rival, or whatever other reason).

It is my understanding that in most previous wars that the US fought, it was obvious whether a someone was an enemy combatant or not. In those wars, opposing militants were organized into units, had a clear chain of command, wore uniforms, etc.

Is there any precedent for cases of hostilities with loosely organized militant groups, that blend in with the population; where an alleged enemy militant is captured, but the person claims not to be one?

Mike Laursen|6.15.08 @ 1:40AM|#

Is there any precedent for cases of hostilities with loosely organized militant groups, that blend in with the population

Yes, I believe they were called, "minutemen".

|6.15.08 @ 1:45AM|#

Apaulogist:

"If Guantanamo Bay is not to be considered U.S. soil for jurisdictional purposes, than neither is the military base in Panama where he was born. According to the U.S. Constitution, only "natural born" citizens are eligible to be President. Citizens born elsewhere (like California Governor Arnold Schwarzennegar) are ineligible."

"Natural born" does not necessarily mean "native born." Most legal experts believe that American citizens born of US citizen parents temporarily living abroad are "natural born' citizens within the meaning of the Constitution. So even if the Canal Zone was truly "foreign territory" it would make no difference. The point is that McCain acquired his citzenship "naturally"--i.e., by virtue of his parents' status--rather than by naturalization.

|6.15.08 @ 1:56AM|#

Habeas Corpus is not the right of common criminals. It is the right of human beings.

But terrorists are NOT humans, they are filthy vermin whom we have not yet had the time or opportunity to exterminate.

I agree that this decision will most likely end up in more dead tangoes and fewer prisoners. Good.

Don't blame me, I voted for Keyser Soze.

|6.15.08 @ 1:56AM|#

Yes, I believe they were called, "minutemen".

So what did the British do when they had a captured person who they thought was a minuteman, but who claimed to just be some regular farmer?

And suppose the guy was not captured by British regulars, but by some group of Hessians who's credibility was uncertian? Did they have a way of investigating that stuff?

thoreau|6.15.08 @ 3:12AM|#

BG, just so I understand, are you suggesting that the Brits were the ones in the right 230 years ago?

230 years ago the Brits tried to impose a tax on our beverages (tea) and we showed them that insurgents can defeat a global empire. 2 years ago, the Brits warned that our beverages might be used as weapons against our Fatherland, and the TSA started confiscating water bottles. My, how times have changed.

|6.15.08 @ 3:14AM|#

The Bush Administration was too incompetent to catch real terrorists (bin Laden, anybody?), so it just rounded up a few thousand innocent people, accused them of terrorism, and tossed them into Gitmo.

Neocons know that if there are trials, the sham will be exposed and there goes the election.

Kolohe|6.15.08 @ 4:03AM|#

BG, just so I understand, are you suggesting that the Brits were the ones in the right 230 years ago?

Well, you can still be an American Patriot(TM) and admit that the long train of abuses and usurpations asserted by TJ and the boys may have been a bit overblown. Unless you think Canada is an irredeemable hellhole.

Plus what the British did with captured minutemen not only a fair question, but a pertinent one, because the opinion itself references British colonial policy, both pre and post 1776.

Geoff Nathan|6.15.08 @ 6:31AM|#

What conservatives don't seem to get is that habeas corpus doesn't protect 'human beings', it protects ME. And YOU. It requires the government to prove to everyone that the persons they arrest are actually bad. That's also the whole point behind courts, laws of evidence, etc. etc. It's not to protect bad guys, it's to make the government prove, in public, with everyone (including me) watching that they aren't just going after political enemies or rival suitors.
It's a national security measure to require 'national security' forces to be open and transparent. Otherwise the country isn't 'secure' against Bush (or Lincoln, or Roosevelt...) just locking up anybody they want.

|6.15.08 @ 8:08AM|#

Uh, why is Scalia even bothering to talk about that? Those considerations don't have any bearing on the existence or nonexistence of habeas corpus.

Because the court's jurisdictional status over Guantanamo is a key facet of this decision. BOUMEDIENE ET AL. v. BUSH is not simply a blanket decision about the court's authority regarding individuals seeking a writ of habeas corpus.

I also find it interesting that the majority opinion doesn't seem to address the central facet of one of Scalia's arguments, which is the non-citizen, captured outside of US territory, status of the detainees.

Wilkes&Freedom|6.15.08 @ 8:18AM|#

Mr. Shorter,

This is a site about freedom. As for me, my freedom counts most. There is NEVER any reason to take that from me. Give me a great meal in prison; I'll take freedom & starvation anyday.

|6.15.08 @ 8:28AM|#

Is there any precedent for cases of hostilities with loosely organized militant groups, that blend in with the population.,/i>

Summary execution is the traditional fate of anyone fighting out of uniform.

For the simple reason that fighting out of uniform places civilians at risk, and is to be discouraged by the strongest possible means.

Mad Max|6.15.08 @ 9:24AM|#

I think that the impact of the Supremes' decision can be overstated.

They said that the Guantanamo prisoners have the right to question the legality of their imprisonment by a suit in federal court. Also, the Supremes said that the procedures provided by Congress in the military tribunals law are not sufficient to protect this right.

Now here's where things get kind of amusing. The Supremes didn't say whether the prisoners were being held legally or not - only that they have the right to a judicial hearing on the question of legality. But the Supremes have earlier given an opinion on the rights of *US citizens* who are being held as alleged enemy combatants. Such citizens -the Court has said - have the right to a hearing, but not a full-blown criminal trial. It would be sufficient, sayeth the Court, for these citizens to have a hearing in a military tribunal with watered-down rules of evidence favoring the government. Scalia dissented from that ruling because it trampled on the constituional rights of citizens.

Unless we assume that the Supremes will hold that aliens have more rights than citizens, we can presume that a military hearing with watered-down rules of evidence would be enough for the Guantanamo detainees - if such a hearing found them to be enemy combatants, they could constitutionally be detained in Gitmo indefinitely.

Interestingly, Congress, in the very law the Court has struck down, has provided for military tribunals meeting these minimal requirements. This means that the prisoners, once given the legal right to challenge the legality of their detention, will probably get a ruling that their detention is legal. Even if the Court's ruling had gone the other way, the prisoners would still have had judicial review of the legality of their detention, courtesy of Congress.

Also, the Court only said that foreign prisoners in *Guantanamo* have the right to habeas corpus to challenge the legality of their detention. The Supremes were deliberately vague on the rights of foreigners held in other places outside the U.S.

There aren't that many practical differences between the regime struck down by the Court and the regime that the federal courts will probably set up in its place. In either case, the Gitmo prisoners will get a military hearing, followed by an appeal to the federal courts - an appeal they will lose if the military hearing meets the close-enough-for-government-work test set up by the Supremes in previous decisions.

I would hypothesize that the majority of the Supremes simply want the satisfaction of generating newspaper headlines reading "High Court Rebukes Bush," even if the practical impact is not as great as those on both sides seem to suggest.

yojoe|6.15.08 @ 9:32AM|#

What about the threat that it will be less likely that enemy soilder will be captured?

shecky|6.15.08 @ 10:13AM|#

This reminds me of a nutcase I saw defending slavery. After all, the descendants of slaves were more prosperous as a result of their ancestors' captivity than if they stayed back in the homeland.

Some Guy|6.15.08 @ 10:32AM|#

We could also give the prisoners Bibles to wipe their asses with.
I'd be okay with that.

Bible paper is way too thin and flat to be effective.

|6.15.08 @ 10:49AM|#

To sum up the neocons on this thread, the outcome of this case will be that American troops will cease to observe the laws of war, and will simply murder surrendering enemies.

Bullshit.

SIV|6.15.08 @ 11:25AM|#

joe,

Not murder, just rules of engagement.

|6.15.08 @ 11:28AM|#

Not murder, just rules of engagement.

Totally not the rules of engagement.

SIV|6.15.08 @ 11:45AM|#

There is no requirement under "the laws of war" for giving an enemy the opportunity to surrender.

You can shoot parachuting air crews, swimming sailors, guys that throw down their guns and run away. How are fighters in a cave, house, or bunker supposed to stand up and surrender if you don't stop shooting at them?

Nietzschean Uber-Daemon|6.15.08 @ 12:31PM|#

From the tenor of the title of the post, one gathers that the author is primarily concerned with the rights (and maybe even wants, needs and comforts) of future enemy combatants. I don't find this surprising, given the apparent takeover of this once reasonable organization (Reason) by the far-left libertarians. I do find it despicable, however. When the women and children are looking for protection, ask them whether they want a protector whose primary concern is for the welfare of those who mean them harm.

"Tango Down" would be my prescription for the US military, thus avoiding the problem of what to do with the prisoners.

Kolohe|6.15.08 @ 12:51PM|#

To sum up the neocons on this thread, the outcome of this case will be that American troops will cease to observe the laws of war, and will simply murder surrendering enemies.

Bullshit

I would not say it necessarily applies with this specific decision (because, as Max says above, it is far more limited than both sides claim), but I would not dismiss out of hand the possibility of perverse incentives arising around this issue.

Iraq is a study in perverse incentives.

thoreau|6.15.08 @ 1:14PM|#

I don't find this surprising, given the apparent takeover of this once reasonable organization (Reason) by the far-left libertarians.

DRINK!

|6.15.08 @ 1:43PM|#

Is Scalia contradicting Bush?

Maybe so, maybe not, but also irrelevant.

His point does not speak to whether we are, or are not torturing prisoners at GTMO. The point is, is that the majority holds unconstitutional, what was, by all accounts, a far more generous procedure for dealing with (real) non-citizen enemy combatants (as opposed to people picked up at O'Hare airport, cf. J. Padilla) than anything that has been given to similarly situated people in the past. The majority's apparent reason that this is not constitutional is that the government retains de jure sovereign authority over GTMO.

Justice Scalia certainly is correct that if this is the dispositive basis for the majority's decision (and that the Court doesn't shift the goal posts once again), any Chief Executive, whether its George Bush, John McCain or Barack Obama can (and I'll place you a bet that they will) either transfer these people to places like Bagram or repatriate them to their home countries where they will get far less in procedural safeguards than they would get at GTMO.

|6.15.08 @ 2:54PM|#

You do realize that a lot of the prisoners were not captured on the battlefield, right? The lion's share of them were simply handed over by supposedly US-friendly warlords with assurances that they were bad guys.

Yes. That case, unfortunately, doesn't make it easier. Does that mean that we should hand them back to the country that handed them to us? What if they won't take them? What if we suspect that they would torture or kill them? That accounts for a large number of the prisoners remaining-- we don't think that they're guilty, but the country that they're from doesn't want them (or else captured them and would likely torture them) and we don't want them either.

That's why the whole thing is so frightening: anyone can be declared an enemy combatant and held without any access to the traditional rights of a citizen.

Incorrect. The SCOTUS has ruled separately, and ruled again on the same day as this one in Munaf v. Geren that citizens, even held abroad in Afghanistan or Iraq, have habeas corpus rights. They do not, however, have the right to demand a habeas corpus petition from a US district court to be released in the US rather than in the foreign country, if they are captured and held in a foreign country. They can petition for release inside Iraq or Afghanistan, but cannot demand transport home. Munaf v. Geren was a unanimous opinion of the Court; citizens have habeas rights no matter where held.

|6.15.08 @ 2:57PM|#

In Munaf v. Geren, the petitioners petitioned for habeas demanding that the US not turn them over to the Iraqi government, which wished to prosecute them, but rather release them back in the US. This was denied. However, the Court unanimously agreed that they do have habeas rights.

|6.15.08 @ 2:59PM|#

BG, just so I understand, are you suggesting that the Brits were the ones in the right 230 years ago?

No, but they must have had some sort of procedure for dealing with captured prisoners (I don't think they just summarily executed everyone). And if you read above, Mike Larsen brought up minutemen in response to my question about "loosely organized militant groups, that blend in with the population; where an alleged enemy militant is captured, but the person claims not to be one".

230 years ago the Brits tried to impose a tax on our beverages (tea) and we showed them that insurgents can defeat a global empire. 2 years ago, the Brits warned that our beverages might be used as weapons against our Fatherland, and the TSA started confiscating water bottles. My, how times have changed.

Not quite sure what you're getting at, except the idea that Americans are not as willing to oppose government intrusion as they used to be. I'm opposed to the TSA's policy of confiscating water bottles before letting passengers board (I'm also opposed to a variety of similiarly unjust/idiotic TSA policies). I don't think I'm quite ready to overthrow the government by military rebellion over that though.

JB|6.15.08 @ 3:35PM|#

If you don't follow the rules as laid out in the Geneva convention, you do not get the protections as laid out in the Geneva convention. And these only apply to nation-state actors. Al Queda is not a signatory of the Geneva convention.

International law does not apply to most of these detainees. Various parts of US law may apply and that is the issue.

Michael Ejercito|6.15.08 @ 3:47PM|#

By the way, Damon, the US already has several secret prisons and extraordinary renditions.

I hope some of those renditions were to Israel; they know how to properly interrogate people.

Michael Ejercito|6.15.08 @ 3:51PM|#

To sum up the neocons on this thread, the outcome of this case will be that American troops will cease to observe the laws of war, and will simply murder surrendering enemies.

It is only murder if then enemies were not fighting American forces, or were fighting American forces while wearing distinctive insignia recognizable from a distance.

Michael Ejercito|6.15.08 @ 3:55PM|#

Is there any precedent for cases of hostilities with loosely organized militant groups, that blend in with the population; where an alleged enemy militant is captured, but the person claims not to be one?

The laws of war clearly specify that anyone caught fighting while dressed as a civilian or a friendly combatant can be summarily executed.

|6.15.08 @ 5:03PM|#

The laws of war clearly specify that anyone caught fighting while dressed as a civilian or a friendly combatant can be summarily executed.

You don't seem to be addressing the "...but the person claims not to be one" part. Remember we are talking about cases where the circumstances of the capture are murky.

And what is the exact part of the Laws of War that permits the type of summary executions you describe? (That seems like a deficientcy in the Laws of War to me.)

|6.15.08 @ 5:07PM|#

JB | June 15, 2008, 3:35pm | #

If you don't follow the rules as laid out in the Geneva convention, you do not get the protections as laid out in the Geneva convention. And these only apply to nation-state actors. Al Queda is not a signatory of the Geneva convention.

Yes, but the question at hand is about determining who is a member of al Qaeda, and the procedure for determining that.

Michael Ejercito,

It is only murder if then enemies were not fighting American forces, or were fighting American forces while wearing distinctive insignia recognizable from a distance. If we're talking about people on the battlefield, grabbed after being disarmed or wounded by the US troops they were shooting at, you may have a point. The traditional laws of war have authorized summary executions in such circumstances.

However, when we're talking about the people in Gitmo, captured either by Americans raiding houses based on tips, or by locals turning somebody in to get the bounty or get revenge on an old enemy or Lord knows what reason, the legal question changes. It is not longer simply a matter of determining, "Was this combatant fighting in a manner that violate the laws of war?" but instead, "Is this a combatant?" and only then "Was he violating the laws of war?"

The Geneva Conventions on the treatment of prisoners presume that the people captured are combatants on the other side, but whether that's true is precisely the determination whose process is being debated.

|6.15.08 @ 5:09PM|#

BG,

And what is the exact part of the Laws of War that permits the type of summary executions you describe? He's talking about, for example, spies and saboteurs caught operating behind enemy lines. Both the North and South executed considerable numbers of such people during the Civil War.

|6.15.08 @ 6:54PM|#

He's talking about, for example, spies and saboteurs caught operating behind enemy lines. Both the North and South executed considerable numbers of such people during the Civil War.


Did they have trials for spies before executing them? Or did they just go ahead and execute? Or was it perhaps military tribunals with watered down standards of evidence?

Muck|6.15.08 @ 7:09PM|#

"I also find it interesting that the majority opinion doesn't seem to address the central facet of one of Scalia's arguments, which is the non-citizen, captured outside of US territory, status of the detainees."

I don't think the Constitution is explicit on the question of whether its laws, executed by the U.S. government, apply only to U.S. citizens. The word citizen is not mentioned, though the 14th ammendment and the preamble hint at this. So, whether habeus corpus can be invoked or not is dependent on interpretation. If we follow the "penumbra of rights" theory, that jurists like Douglas advanced then it's clear that non-citizens have as much right to habeus corpus as citizens. Strict constuctionists would have a problem since it's not clearly stated in the Constitution that the rules only apply to citizens. Perhaps "Original Meaning" theorists believe that there's enough of a hint there to suggest that the rules only apply to citizens, but then isn't this judicial activism?

|6.15.08 @ 7:38PM|#

Scalia is no strict constructionist. He is a phony.

If one is truly an originalist, then one would approach this case by asking the following question:

Just where in the constitution is there a grant of authority to the executive branch to wage war without a congressional declaration?

Next, a strict originalist would ask, just where in the constitution is there a grant of authority to any branck of government to wage war on foreign soil?

The answer to both questions is, of course, no where.

Jelperman|6.15.08 @ 8:29PM|#

The laws of war clearly specify that anyone caught fighting while dressed as a civilian or a friendly combatant can be summarily executed.

US armed forces are governed by the UCMJ, which does NOT allow the summary killing of prisoners, period. Did you pick up an SS field manual by mistake?

Jelperman|6.15.08 @ 8:32PM|#

Not exactly. Foreigners entering the country are in a bit of a legal limbo, which can last a loooooong time without charge or trial.

There was a story in the WaPo recently about an Italian guy who flew into the US to see his American girlfriend in Virginia. He wound up in a VA jail for two weeks, and then sent back to Italy, for no reason other than "you come here too often".

He was locked up for two weeks, then deported -which is nothing like torturing people, then having them lynched by kangaroo courts. Apples and watermelons.

Michael Ejercito|6.15.08 @ 10:15PM|#

US armed forces are governed by the UCMJ, which does NOT allow the summary killing of prisoners, period. Did you pick up an SS field manual by mistake?

I cite this

Michael Ejercito|6.15.08 @ 10:16PM|#

article. as precedent.

|6.15.08 @ 10:22PM|#

Ejercito, you are of course aware that the US has commited war crimes in the past. I really can see why the US Army would be severely, severely pissed off during the Battle of the Bulge, but of course I cannot condone or excuse executing prisoners.

Mike Laursen|6.16.08 @ 1:57AM|#

So what did the British do when they had a captured person who they thought was a minuteman, but who claimed to just be some regular farmer?

I don't think the British bothered doing a whole lot of investigating. They just locked them up on a prison ship.

economist|6.16.08 @ 10:05AM|#

Anyone know about how the Heller case turned out? I haven't heard anything yet.

economist|6.16.08 @ 10:10AM|#

In practically every war constitutional rights have been crapped on. Censorship, drafts, price controls, property seizures,(suspension of) habeas corpus...the list goes on and on. The difference is that most other wars were limited in duration. The "War on Terror", by contrast, could theoretically go on forever. After all, there will always be terrorists. Too bad the attacks on our rights didn't end when Bush had the "Mission Accomplished" photo done.

federal agent circa 1918|6.16.08 @ 10:13AM|#

We have a warrant for the arrest of the poster known as "economist" under the Sedition Act. This is a temporary wartime measure necessary to make the world safe for democracy. If you think we are tyrannical, then you must hate democracy. You're probably also a German agent, or a communist, or an anarchist.

economist|6.16.08 @ 10:17AM|#

Uber-Daemon,
Prove that the people captured are terrorists, and then I'll have no problem taking them out back and shooting them. Until then, at least don't presume guilt. I consider myself a center or right-libertarian, and I oppose indefinite of people on unproven suspicions.

|6.16.08 @ 10:22AM|#

The Supreme Court decision is going to have a variety of really severe consequences in the mid to long term.

First, they have now made it impossible to hold non-POWs and protect the people holding the prisoners (our soldiers and intelligence officials) from the outside world.

Since these prisoners are now entitled to some kind of legal review before open courts the identities of our folks, their methods, etc. are now also on trial. This is a good reason not to even bother holding prisoners of any kind. For this reason alone the courts have now destroyed the ability of our intelligence apparatus to effectively interrograte people.

Second, saboteurs, spies, and terrorists are explicitly NOT allowed any protection under Geneva. Also under Geneva it specifies that these people are subject to immediate execution if caught engaging in hostilities. Historically, the US has not done this as we prefer to hold these personnel until we can determine what to do with them using military tribunals. Since we can no longer legally hold them and since their activities would probably not be convictable under a civilian court (due to evidenciary issues) this will change. We will probably begin executing these people in the mid term once the DoD figures out the ground rules for doing so.

Third, for those people we do decide to hold onto, we will probably turn them over to our "allies." This creates a whole new kind of problem as we cannot control the interrogation process. This not only opens the door to prisoner abuse due to rendition, but also severely limits our access to the intelligence these people might provide.

At the end of the day, this is a really bad decision that will have many negative long term effects on our ability to deal with terrorists and their activities both humanely and effectively.

economist|6.16.08 @ 10:22AM|#

shecky,
While I agree with you on the "nutcase" point, I generally point out a similar fact to people who argue slavery reparations. When they argue that African problems stem from imperialism, I point out that most of the continent's (present day) strife stems from tribal conflicts that preceded European control.

economist|6.16.08 @ 10:24AM|#

PeaceDog94,
What do you suggest, then?

|6.16.08 @ 11:24AM|#

What do you suggest, then?

On-site military tribunals would be my proposal. The hearings would be held quickly, classified evidence would be permitted but protected.

A finding that a person is, in fact, an illegal combatant would hold a death penalty, which could be delayed or communted pending prisoner cooperation.

T|6.16.08 @ 11:28AM|#

The hilarious thing is that the people who are now saying "execute the terrorists immediately" are the same ones who think we should be torturing them to extract the valuable information they supposedly have.

|6.16.08 @ 11:32AM|#

economist,

I suggest following this issue closely. All the societies that I have dealt with that effectively ended insurgent activities had to take a variety of "legal liberties" to deal with these kind of people.

Straight cirminal proceedings, as suggested by many, don't work as not only will terrorists use the legal procedure against the state in question as a propaganda platform, but they have no respect for the law anyway. Basically, it doesn't work. In every country where they have even tried this, the country in question ended up using some kind of secret, or masked courts, with LARGE amounts of governmental information witheld. The trials were also abbreviated. Hence the US orginally trying to use military tribunals.

Other countries simply hold these folks in perpetuity. Often, over a long period of time, you can figure out who is truly innocent and eventually let them go. This is basically what happened at Guantanamo over the last few years. The problem comes in with the guilty folks on whom we lack sufficient legal information for a tradional conviction. Basically, you know the guy is guilty and you know if you release him he will kill again. Our society is reluctant to execute these folks and we may have to change our policy on this.

What I see the court having done is removing any flexiiblity from the authorities to deal with what is by definition a problem that is both nebulous and requires discretion to handle well. This is a real problem.

As others have stated, over the long term this will harden, via limiting flexibility in rendering judgement, our response to these kinds of folks. I imagine alot of the summary executions that SS and operative level Nazis faced during the end of WWII could provide some clarity to this issue.

Mike Laursen|6.16.08 @ 11:38AM|#

At the end of the day, this is a really bad decision that will have many negative long term effects on our ability to deal with terrorists and their activities both humanely and effectively.

Peacedog94, would you agree that our tradition of respecting individual rights is among the most important aspects of this country that needs protecting?

bubba|6.16.08 @ 11:51AM|#

Current Gitmo policy is the result of negotiation between the President and Congress, as demanded by the Supreme Court.

SCOTUS didn't like the outcome, and invalidated it.

Next time it will be entirely under the Executive control, in a foreign country.

How is that progress?

|6.16.08 @ 12:01PM|#

If Guantanamo Bay is not to be considered U.S. soil for jurisdictional purposes, than neither is the military base in Panama where he was born. According to the U.S. Constitution, only "natural born" citizens are eligible to be President. Citizens born elsewhere (like California Governor Arnold Schwarzennegar) are ineligible.

If your parents are citizens then you are a natural born citizen no matter where you pop out of your mothers cooch.

|6.16.08 @ 12:26PM|#

Second, saboteurs, spies, and terrorists are explicitly NOT allowed any protection under Geneva. Also under Geneva it specifies that these people are subject to immediate execution if caught engaging in hostilities

THIS IS A LIE YOU IGNORANT CUNT!!!

Geneva doesn't mandate any penalty. It explicitly ALLOWS countries to treat them as humanely as they want.

|6.16.08 @ 1:10PM|#

Second, saboteurs, spies, and terrorists are explicitly NOT allowed any protection under Geneva. Also under Geneva it specifies that these people are subject to immediate execution if caught engaging in hostilities.

Somebody is full of shit. Read Article 5 of the Fourth Geneva Convention.

Mike Laursen|6.16.08 @ 2:31PM|#

Next time it will be entirely under the Executive control, in a foreign country.

Yeah, probably. If we remain passive about the creeping imperialism of our Executive branch.

|6.16.08 @ 4:39PM|#

"""Yes, but the question at hand is about determining who is a member of al Qaeda, and the procedure for determining that."""

Forget Joe, it falls on deaf ears. It's the same reason that gives Radley a lot to write about. Authority calling someone guilty is all most people in this country need to believe it's true. Be it US troops in Afghanistan, or cops at the end of a raid gone bad. Authority called them guilty, that's good enough for most.

"""Also under Geneva it specifies that these people are subject to immediate execution if caught engaging in hostilities"""


""""Straight cirminal proceedings, as suggested by many, don't work as not only will terrorists use the legal procedure against the state in question as a propaganda platform,"""

Didn't that arugment get defeated when the Magna Carta was being debated? But again, you are assuming they are terrorist, and that the one question you are afraid of being asked in front of a impartial panel. If you are so sure the government is right, why try to prevent them from being heard by a semi-respectable court such as an ole fasion military tribunal instead of a Bush manufactured kangeroo court?

|6.16.08 @ 4:54PM|#

Somebody is full of shit. Read Article 5 of the Fourth Geneva Convention.

People who are ignorant - or more commonly, selectively ignorant - about the Geneva Conventions like to believe that the protections it offers for legal combatants are the only language in the treaties.

|6.16.08 @ 9:35PM|#

I don't think the British bothered doing a whole lot of investigating. They just locked them up on a prison ship.

Well, I'm going to go out on a limb and guess that you don't want that to serve as precedent to guide US policy in the Afghanistan and Iraq conflicts, or in counter-terrorism operations elsewhere.

(I think I have the right thread this time.)

|6.17.08 @ 12:01AM|#

For all the Libs in orgasm over the wonderous writ of habeas corpus, and wondering why is Scalia even talking ...

maybe he has a point (more like many points).

In WWII, as Scalia points out, the US held hundreds of thousands of enemy combatants ON US SOIL and the writ of habeas corpus was never extended to them.

As I recall, it was adjudicated by the SCOTUS in the Quirin decision, which specifically denied habeas to enemy combatants ON US SOIL.

And, of course, there's the Eisentrager decision where the SCOTUS made crystal clear that enemy combatants held by the US in foreign locations where they had de facto sovereignty, the 'functional test' which the Boumediene decision rests, did not have habeas rights, which Justice Kennedy deliberately lied about, as pointed out by Scalia, to get around the precedent problem of Eisentrager.

Mike Laursen|6.17.08 @ 12:46AM|#

Well, I'm going to go out on a limb and guess that you don't want that to serve as precedent to guide US policy...

That is correct, sir. I'm one of these crazy, traitorous libertarians that gets all orgasmic over the writ of habeas corpus.

Jelperman|6.17.08 @ 2:58AM|#

The Supreme Court decision is going to have a variety of really severe consequences in the mid to long term.

Sure it will. Dubya and his thugs realize that unless the people they have tortured are "disappeared", the scumbags and perverts who had them tortured could find themselves in the dock.

First, they have now made it impossible to hold non-POWs

Unless a person is in fact a prisoner of war, then the state has no business locking them up without due process of law.

and protect the people holding the prisoners (our soldiers and intelligence officials) from the outside world.

If you can't do the time, don't do the war crime. I'm glad you admitted that the real reason these kennels, dungeons and kangaroo courts are at work is to hide the evidence of war crimes: the torture, rape and murder of prisoners.


Since these prisoners are now entitled to some kind of legal review before open courts the identities of our folks, their methods, etc. are now also on trial.

As well they should be.

This is a good reason not to even bother holding prisoners of any kind.

No, it's a good reason to not allow semen-crusted sadists to hold government office or other positions of responsibility. Committing one war crime (the murder of prisoners) in order to cover up another (murder, rape, torture) might work for a while for lone, crazed psychopaths like Jeffrey Dahmer or John Wayne Gacy. A government can't keep such secrets, which means the cowards could end up in the dock.

For this reason alone the courts have now destroyed the ability of our intelligence apparatus to effectively interrograte people.

Bullshit. The FBI doesn't torture anyone and they get confessions all the time, as well as evidence. The shrieking from torture enthusiasts reminds me of the plangent whining from the creeps on To Catch A Predator who realize they've been exposed and might face jail time.

Second, saboteurs, spies, and terrorists are explicitly NOT allowed any protection under Geneva.

Another lie. Until a person has been determined by a court martial or regular court to be an unlawful combatant, that person is to be treated as a POW. What's more, both the UCMJ and federal law prohibit summary killings, which are punishable by death.

Also under Geneva it specifies that these people are subject to immediate execution if caught engaging in hostilities.

Prove it.

Historically, the US has not done this as we prefer to hold these personnel until we can determine what to do with them using military tribunals. Since we can no longer legally hold them and since their activities would probably not be convictable under a civilian court (due to evidenciary issues) this will change. We will probably begin executing these people in the mid term once the DoD figures out the ground rules for doing so.

In that case, those who commit these atrocities can look forward to a long stay in Leavenworth or death row. Sooner or later one will rat out the others, and the government is the last place on earth you can keep a secret.

Third, for those people we do decide to hold onto, we will probably turn them over to our "allies."

Dubya's sadists have already done that. The result? Rumsfeld has to flee France and Germany to avoid being subpoenaed to testify about war crimes.

This creates a whole new kind of problem as we cannot control the interrogation process. This not only opens the door to prisoner abuse due to rendition, but also severely limits our access to the intelligence these people might provide.

Boo fucking hoo. The simplest solution: DON'T COMMIT WAR CRIMES, FUCKTARD!

At the end of the day, this is a really bad decision that will have many negative long term effects on our ability to deal with terrorists and their activities both humanely and effectively.

Actually, it has already made it MORE difficult for the terrorists in the White House and their sadistic fanwhores who get erections at the thought of torturing, raping and murdering people. These morons remind me of Major Tetley from The Ox-Bow Incident. They want to torture and kill so bad, they don't care if a person actually committed a crime. Correction: They prefer a system where innocent people are tortured and killed, since it gives them more of a sadistic thrill.

Final note: Dubya has always been a sadist and as governor in Texas, he used to yuk it up over one freak show execution after another. The only death row inmate who got clemency was serial killer Henry Lee Lucas -a clear example of professional courtesy.

For all the Libs in orgasm over the wonderous writ of habeas corpus, and wondering why is Scalia even talking ...

maybe he has a point (more like many points).

He has a point that fits a Klansman's hood perfectly.

In WWII, as Scalia points out, the US held hundreds of thousands of enemy combatants ON US SOIL and the writ of habeas corpus was never extended to them.

They were prisoners of war.

As I recall, it was adjudicated by the SCOTUS in the Quirin decision, which specifically denied habeas to enemy combatants ON US SOIL.

POWs aren't entitled to habeus corpus. However, since Dubya and his supporters had such a hankerin' to cornhole someone, they claimed that the people locked up the kennels and other dungeons across the globe aren't POWs and aren't criminal suspects. One problem: the law doesn't allow for that kind of thing. Either a person is a POW, a criminal defendant or they have to be set free.

|6.27.08 @ 8:06AM|#

Hamdi habeas, which is expanded habeas in comparison to Army Regulation habeas for lawful combatant POWs, was declared constitutional for these detainees by the SCOTUS in the 2004 Hamdi decision since it was sufficient for US Citizens and Congress created DTA(CSRT/CADC)/MCA to satisfy Hamdi habeas and actually expand beyond Hamdi habeas as shown by Roberts in Boumediene. But Kennedy does a habeas bait and switch and strikes down DTA/MCA based on Citizen habeas. Citizen Habeas is different since it ignores the constraint of ongoing war on the military. So Kennedy ignores the constraints of war and the burden on the military during an ongoing conflict and caters to the little princes of GITMO. Screw the US military, we SCOTUS libs are taking care of our GITMO little princes. These people are aliens not citizens and they have never been detained on US sovereign territory and they have all been determined by constitutional Hamdi habeas in a CSRT to be enemy combatants which in most cases would be of the unlawful variety of enemy combatant, the type of combatant not entitled to Army Regulation habeas, with appeal of the CSRT to the DC Court of Appeals open to them which they disdained for 2.5 years, thus causing their own delay. These people only had Hamdi habeas rights as they were aliens captured abroad in time of war. But Kennedy decides that's not good enough for his little princes and eliminates the US sovereign territory limitation on territorial reach of the US Constitution and gives the US Constitution global reach to enemy aliens on US military bases abroad. GITMO is not even US territory, but Kennedy stretches the Constitution over the ocean to reach foreign territory so he can give Citizen Habeas in time of war to his alien little princes. That's the Boumediene v Bush decision from the SCOTUS libs.