Designation Hitters

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The Los Angeles Times notes that two former officials of John Ashcroft's Justice Department, Viet Dinh and Michael Chertoff, recently have expressed misgivings about the Bush administration's handling of "enemy combatants."

Dinh, now a Georgetown law professor, headed the Justice Department's Office of Legal Policy until May and was the main architect of the USA PATRIOT Act. He says President Bush's assertion of authority to indefinitely imprison "enemy combatants" without giving them an opportunity to challenge the designation is "unsustainable." He told the Times:

The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to….But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated.

Chertoff, former head of the Justice Department's criminal division and now a judge on the U.S. Court of Appeals for the 3rd Circuit, had this to say in a speech last month at the University of North Carolina's law school:

Two years into the war on terror, it is time to move beyond case-by-case development….We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available.

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  1. Something along the lines of our early release program for German prisoners of war.

  2. Chernoff and Dinh are undoubtedly right that we need a policy and so forth for handling essentially stateless terrorists. That much damn near anyone could tell you.

    The hard part is coming up with a policy that makes sense as applied to an enemy that is essentially unprecedented in either US or international law. Attempts to treat terrorists and their sympathizers as if they were soldiers or ordinary criminals are terribly misguided, and will lead to major problems.

    We need a new way to handle these people (short of pitching their corpses into the sea). I tend to err on the side of protecting US security, not protecting their rights or dignity, myself.

  3. R.C. Dean-

    We don’t need any protections for terrorists. What we need are protections for people whom the government accuses of being terrorists. Unless you believe that the people who gave us Amtrak are infallible…

  4. Ditto Thoreau.

    🙂

    Not that I agree with everthing you write, but you hit my problem with Gitmo and the Executive Branch citing “national security,” and thumbing their nose at the judiciary.

  5. We don’t need any protections for terrorists. What we need are protections for people whom the government accuses of being terrorists.

    Agreed, thoreau. Dang, I hate it when I get caught assuming my conclusion.

    Just keep in mind that some significant subset of those accused of being terrorists are, in fact, terrorists, and that any system for managing this issue will have to reflect that fact. For that reason, the criminal justice model will not serve without significant modification, because allowing terrorists to use the machinery of the classic “rights of the accused” will pose security risks that are, to my mind, unacceptable and unwarranted.

  6. R.C.-

    I agree that caution is needed. But I can take your post, insert a few changes, and have an equally important caveat:

    Just keep in mind that some significant subset of those accusing people of being terrorists are, in fact, untrustworthy government officials, and that any system for managing this issue will have to reflect that fact. For that reason, the war model will not serve without significant modification, because allowing politicians to use the machinery of the classic “national security justification” will pose risks to liberty that are, to my mind, unacceptable and unwarranted.

  7. Viet Dinh will be the lecturer at our law review dunwody lecture next semester. Post some questions and I’ll pose the best of them to him.

  8. Goes to show how everything the gummint gets into should have had an exit strategy first.
    Come to think of it, as we “count the ways,” is there ANYTHING in U.S. history that had an exit strategy first?
    …Tar babies as far as the eye can see.

  9. Let’s go with the Geneva Convention, then. Execute any combatants not in uniform at the time of capture, intern all uniformed captives until the end of the war, granting them only visits of the Red Crescent and packages from home.

    War is not a crime, it is war. Anyone who does not know the difference should shut up until they learn.

  10. It seems the idea of “enemy combatant” rests upon the suspect being a subset of a defined enemy nation. Aren’t suspected terrorists also members of some other category(s), too? That might help define their acceptable treatment. US citizens get citizen protection, while foreign citizens get treatment influenced by whether or not the US has a declared war against their country’s government.

    If a suspect is not of an enemy nation, wouldn’t that person be an ordinary criminal suspect, accorded some already-established handling? It seems like the idea of “terrorist” has a special status which is not called for.

    Plotting and crashing aircraft into buildings is already a crime, but not an act of war. It might be better to keep war as something that governments declare on each other, and let all the other bad behaviour remain just crime. As applied, a terrorist is somebody who commits a “hate crime” with the US as the hated group, and that motivation triggers a different handling. IMO, the motivation should be irrelevant; let the acts alone determine the response.

  11. Gene 6-Pack said exactly what I was planning to type, but he said it better.

    The Bush administration is getting grief for detaining the guys who shot at uniformed U.S. soldiers and planned or executed attacks on unarmed U.S. civilians.

    And yet, if the Bush administration followed the rule of international law — every one of those detainees could be executed.

    I guess Bush is a bad-guy for going it alone and not following the “international community” like a good little sheep.

  12. The executive is most certainly NOT entitled to “deference.” Either his powers are defined and limited by the Constitution, in which case the SC should enforce those limits, or we have a king. Of course, for those who cue in “Also Sprach Zarathustra” and come in their pants every time they read Curtiss-Wright or Quirin, I guess a king is a *good* thing.

  13. Gotta follow-up on Ian’s comment here: the toughest cases (and thus the most challenging) are those of people like Jose Padilla, who in fact appears to have DONE nothing (intentions aside). Yet he is held without counsel, charge, or habeas corpus–not to mention the PRESUMPTION OF INNOCENCE–for an extended time. Thus, an American citizen has been deprived of his rights by order of the president.

    Guilt is a separate issue. The government can and should try criminals of all sorts. But to hold someone indefinitely, without trial, is simply unacceptable.

    The fact that there is no structure or standards means that any American could be deprived of those same rights at the whim of the president. Somehow we have ended up with a king who holds the power of life and liberty over his subjects instead of a chief executive.

  14. Kevin, the argument that the executive is owed deference in particular areas is a conclusion that the constitution gives him power. It isn’t the case that we have a ‘king’ if the executive can hold those like Padilla. The executive has always had tremendous power in our country to wage war, including war against US citizens. I’m not just thinking of Lincoln–think earlier than that, to the very beginning of our nation. From the beginning it was thought that the executive could order the armed forces to quell rebellion, even though that rebellion might be thought of as criminal, and even though quelling the rebellion meant killing people without giving them any procedural protections whatsoever.

  15. But to hold someone indefinitely, without trial, is simply unacceptable.

    Not true. This is exactly what is done with prisoners of war under the Geneva Convention.

  16. Least Worst Option?: Amend the legislation that created the National Security Court to permit criminal trials, with all the protections of regular trials, except with background checks and secret transcripts.

  17. Jose Padilla is a true concern. I don?t see why there hasn?t been a hue and cry for his rights. But I?ve been going back and forth on the idea that we should treat foreigners differently than citizens. It seems convenient but I keep coming back to a silly little phrase: …that *all* men are created equal, that they are endowed by their Creator with certain *unalienable* rights.

    Someone said he was more concerned with protecting security than rights. Without rights there is no security.

  18. Actually, Will. Bush is getting grief for detaining people who did *not* shoot at American soldiers and civilians. Either that, or he’s getting grief for not being able to tell them apart. Basically, for imprisoning people with little or no evidence – punishing the innocent and failing to punish the guilty adequately.

  19. R.C. Dean: the Geneva Convention certainly does not permit indefinite detention: it permits detention under conditions equal to those of one’s own forces until the cessation of hostilities. The problem is that the present “War on Terror” is not a war in the conventional sense, there is no way to know when it is over.

    More to the point: Jose Padilla was arrested in the United States and is an American citizen. He was not on a battlefield.

    And the fact that Jose Padilla is a citizien (albeit not a very nice one) means that he has constitutionally-guaranteed rights–rights he has been deprived of by the order of the president. This is a seriously disturbing course of events.

    If the government has a case, they should try him. If there is no case against him, he must be released.

  20. I don’t think the fact that this war is an unconventional war has much to do with our knowledge of how it will turn out. We could well have last all of the previous wars we fought–just as we could well lose this one. The idea that we have always known how any particular war would end and when (presumably with and upon our enemy’s surrender) seems a little presumptuous.

  21. R.C. Dean: the Geneva Convention certainly does not permit indefinite detention: it permits detention under conditions equal to those of one’s own forces until the cessation of hostilities.

    “Indefinite” doesn’t necessarily mean “forever.” During a war, the cessation of hostilities will not occur until an unknown point of time in the future. Thus, during a war, POWs are being held indefinitely, because there is no date certain, known in advance, on which they will be released.

    The problem is that the present “War on Terror” is not a war in the conventional sense, there is no way to know when it is over.

    That is true. Yet another way in which the current situation is brand new, and doesn’t fit historical patterns very well.

    Another instance of “indefinite” detention has to do with the criminally insane. They are held until they are deemed to be cured, rather than for any set period of time.

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