A Reason for Pessimism about John Roberts

A couple of weeks ago Michelle Malkin aptly noted that

There is one fundamental issue that matters more than any other in choosing the next Supreme Court justice--a wartime Supreme Court justice. More than abortion. More than affirmative action. More than the Ten Commandments in courtrooms.

That's exactly why Judge Roberts' ruling last week in the Hamdan v. Rumsfeld case should be troubling to civil libertarians and folks generally concerned with executive branch abuses of power under the guise of national security.

Back in 2004, the Supreme Court decided the Hamdi v. Rumsfeld case (the similar names are coincidental) in a way that raised as many questions as it answered. As Robert Burt of the Yale Law School put it to me in an interview last week, in Hamdi the court hedged its bets, on the one hand rejecting the government's claim of inherent, unreviewable authority to detain prisoners, but also failing to determine just what an adequately impartial review of a detainee's status would consist of. Specifically, the court did not declare that detainees were entitled to review in an Article III (civilian) court, an omission that has at least for now legitimized the executive branch's preferred venue for review--military tribunals.

Salim Ahmed Hamdan, the petitioner in the case that Roberts ruled on, is the former bodyguard to Osama bin Laden and therefore probably very, very guilty. However, as the Hamdi ruling re-emphasized, he is entitled to a day in court. But when there are no established criteria of impartial review and no guarantees of appeal to an Article III judge, his day in court will look like this:

Hamdan has no right to be present at his trial. Unsworn statements, rather than live testimony, can be presented as evidence against him. The presumption of innocence can be taken away from him at any time; so can his right not to testify to avoid self-incrimination. If Hamdan is convicted, he can be sentenced to death.

Roberts approved of that sort of trial on the grounds, in the words of the opinion written by his co-panelist A. Raymond Randolph, that Congress' enabling of the executive branch to use "all necessary and appropriate force" after September 11 was in effect an authorization of review by military tribunals.

Full story on Roberts and Hamdan at Slate. Back in January, Harvey Silverglate unpacked the Supreme Court's rulings on prisoner detention.

Comments

[RandyAyn]

Of course Malkin meant the opposite; she wants guys like Roberts on the Court, sycophantic yes men to rubber stamp King George's consolidation of Executive power. Pathetic.

[Captain Awesome]

Can you really hate people for wanting an all powerfull figurehead? They get what they want.

[Jennifer]

So the guy has no problem with folks being sentenced to death without a trial. But you're forgetting the IMPORTANT libertarian issue: will he raise our taxes?

[Arnish]

If abortion is murder, then shouldn't abortion be the fundamental issue? I mean, doesn't abortion take a lot more innocent lives than terrorism? Or are the sheer numbers not significant here (assuming I'm correct that there are more abortions than terrorism-related killings)?

[Eric the .5b]

But you're forgetting the IMPORTANT libertarian issue: will he raise our taxes?

If a judge thought he could raise taxes, that would certainly be another bad sign.

[Adam]

Reading the full text of the Hamdan decision (link through Slate), it appears that the applicability of that decision to American citizens as "enemy combatants" is dependent on either 1) (more likely) the decision of the court in the case of Padilla or 2) (less likely) the protection of the American citizenry by Congress explicitly denying the feds the right to hold Americans on American soil as "enemy combatants." (I suppose Congress could mandate access to courts for Americans captured on foreign soil as well, but I don't find that necessary - but now that I think about that case in which the CIA kidnapped that guy off the streets of Italy, perhaps I should reconsider).

[RandyAyn]

Arnish
Masturbation should be the real issue. Every time some adolescent boy spills his seed, billions of potential lives are lost. Don't these pre-fetuses deserve protection from being yanked (!) out of their protective pods and splattered into some wad of Kleenex or grimy catcher's mitt (Apologies to Roth's Portnoy)?

[Dynamist]

By the line I've been arguing the passed weeks, Hamdan is not a citizen and therefore only gets whatever rights USA is obliged to offer through participation in international treaties. Giving Hamdan a day in court is charity, not duty.

Hamdi, being a citizen, should have been given a fair and speedy trial. Prosecute for treason, or whatever other violations he might have appeared to commit. I don't like the lengthy detention, but the achieved resolution, where Hamdi renounced citizenship and went back to Jihidistan, seems pretty good.

And, Jennifer, all of this had no bearing on taxation, but it does represent more state spending. It would be cheaper to just shoot 'em. Fortunately, I think, I value life more than money in the general case. If you're gonna have a government, you've got to pay for its (formerly) limited functions.

[Hakluyt]

When will be creating our own star chamber?

[The Hitler of Car Clutter]

Dynamist-
My comment was a joke on the many posters who think that low taxes is the single most important human right. I think some folks here would be willing to bring back internment camps and legal segregation, if it meant an extra fifty bucks in their pockets each week.

[Daniel Koffler]

Just a quick thought about that alien/citizen distinction: the 14th Amendment talks about protections for "persons," not "citizens," which is probably a deliberate move considering that the amendment elsewhere refers to "citizens" specifically. Abiding by constitutional norms isn't charity.

[Jennifer]

Whoops. Forgot to change my name from a joke post on another thread. Embarrassing.

[Dynamist]

Heloise Hitler: I did read your comment as a joke. I was trying to chuckle back that I'm not as heartless as my arguments sound. But, if you can save me fifty bucks, I'll hear your proposal...

[Hakluyt]

Dynamist,

By the line I've been arguing the passed weeks, Hamdan is not a citizen and therefore only gets whatever rights USA is obliged to offer through participation in international treaties. Giving Hamdan a day in court is charity, not duty.

Get a clue. By treaty he is guaranteed a day in a competent tribunal. Read the Geneva Conventions; Hamdan is a "protected person" until such a tribunal states otherwise. The current body that is to make the decision over Hamdan does meet the requirements as to what such a tribunal should look like, etc. The Bush administration merely wants to ignore the treaty, that's all.

[Hakluyt]

Dynamist,

BTW, its not the first time the Bush administration has tried to skirt what is required of them; indeed, that was the whole point of putting people in GITMO of course - making sure that the piercing light of the courts didn't look into their dirty affairs there.

[Dynamist]

Daniel: That distinction appears in other places, too. Like the 5th, where all persons are protected except in times of war. Congress gave the Executive war footing in both Afghanistan and Iraq. Thus, I don't see this, yet, as an Executive overreach. The USA government as a whole (and the citizens/people) are all share responsibility for what is happening.

[gaius marius]

as i said on the other thread, roberts is a constructionist -- and if the majority (or rather, the president as their representative) says this is good, then it is essentially good for a constructionist. any number of civil rights can be put by the board if it is good for the majority.

[Dynamist]

Hakluyt: No uniform, no GC protection. The GC reads like the EU Constitution, with so much detail that it loses practical meaning. It wouldn't hurt my feelings if USA withdrew from the GC, since our current and likely enemies are not signatories anyway.

Is the UN or International Court of Justice attempting to prosecute USA over alleged GC violations?

[R C Dean]

By treaty he is guaranteed a day in a competent tribunal. Read the Geneva Conventions; Hamdan is a "protected person" until such a tribunal states otherwise.

This is not correct; the Conventions to which the US is a party apply only in cases of warfare between nations, and give protections only to the lawful soldiers of those nations.

To extend the protections of the Conventions indiscriminately removes any incentive to abide by the Conventions. One of the reasons why our enemies act so barbarously towards us is they know their is no upside to acting any better - we will treat them pretty much the same regardless of whether they behead civilian prisoners with dull knives.

[Adam]

Daniel:

Just a quick thought about that alien/citizen distinction: the 14th Amendment talks about protections for "persons," not "citizens," which is probably a deliberate move considering that the amendment elsewhere refers to "citizens" specifically. Abiding by constitutional norms isn't charity.

For better or for worse, the 14th Amendment distinction doesn't matter in light of Article I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

That wasn't discussed in the case (from what I can tell), but a military tribunal sounds charitable to the defendants when those two provisions are read together.

[Hakluyt]

Dynamist,

Wrong!

Wrong!

Wrong!

Sorry, you have to be found by a tribunal as not a "protected person." The Conventions are VERY CLEAR on this subject. Bush simply can't by fiat make a decision on the matter; its not within his powers.

Go read them right now (especially the Third Convention of 1929 and its 1949 amendments) and alleviate yourself of your ignorance. Look at Art. V specifically, which states that any dispute over status must be adjudicated by a proper tribunal and until the dispute is over the individual must be treated as if they are a lawful combatant.

[Hakluyt]

R.C. Dean,

You are wrong now as you were when you claimed Switzerland is part of the E.U.

Art. II of the Third Convention specifically states that contracting parties shall remain bound to the convention even against non-signatories.

[Dynamist]

Hakluyt: If I imagine you pounding the table while repeating that I'm wrong, it's even more convincing.

Let's say I ignore RC's argument, and accept your position. Why do I care if USA violates the GC? It seems irrelevant to post-modern warfare.

[Hakluyt]

Dynamist,

There is no such thing as post-modern warfare. That's a myth cooked up by those in D.C. for propaganda purposes, etc. that people eat because they are in large part of the historical nature of warfare.

If you don't care about the tyrannical acts of Bush, there is nothing I can say to change your position on the matter. You are basically a lost cause in other words.

[Daniel]

As a service to all you can actually read the opinion here...

http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf

For once it would be nice if people actually read the opinion and explained why it's wrong, rather than "fascist," "Nazi," "crushing of dissent," "Ashcroft."

[Hakluyt]

Dynamist,

And if the Bush administration no longer wants to be bound by the treaty it should have the honesty (not a trait Bushies are prone to I'll admit) to own up to that fact. It wants to both ignore the GC's provisions while acting as if it is abiding by them.

[gaius marius]

regarding protected persons:

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

as i understand it, hamdan is protected by the convention as a protected person.

[Hakluyt]

Daniel,

I read it a few days ago.

Its not Roberts' opinion; he merely signed onto it. Therefore it may not fully express his thoughts, etc.

And no one has used the words that you've so mockingly put before us.

[Jimbeaux]

"Sorry, you have to be found by a tribunal as not a 'protected person.'"

Geez, calm down. That's precisely the purpose (well one of the purposes) of the military tribunals to which he is subjected. So it isn't simply "fiat." It seems that vindicates his "rights" under the Convention(assuming he has any).

[Morat]

"It's not his opinion, he merely signed it"? Jesus, what a fucking copout. That's worse than "I didn't inhale".

Perhaps we should send the man a rubber stamp bearing the words "My signature on judicial opinions shall in no way be construed as agreement with those judicial decisions, as I habitually sign any damn thing put in front of me".

[Morat]

Geez, calm down. That's precisely the purpose (well one of the purposes) of the military tribunals to which he is subjected. So it isn't simply "fiat." It seems that vindicates his "rights" under the Convention(assuming he has any).
No. THAT tribunal does not meet the specified standards of the tribunal spelled out in the GC.

In short, to determine your status requires a specific type of tribunal working under specific rules -- the Gitmo ones don't meet those requirements, ergo they cannot determine -- as per the GC -- your status.

[Brian Courts]

I think some folks here would be willing to bring back internment camps and legal segregation, if it meant an extra fifty bucks in their pockets each week. - The Hitler of Car Clutter aka Jennifer

Don't be ridiculous, frauline. I am deeply offended by that remark! I would never accept internment camps and segregation for a an extra 50 bucks a week. That is a shameful suggestion!

I mean, come on, internment camps would have to provide at least 100 dollars of tax breaks before I'd even consider it and there is simply no way I settle for anything less than $200 to bring back segregation.

[R C Dean]

You are wrong now as you were when you claimed Switzerland is part of the E.U.

I don't recall ever making such a claim. You must confusing me with someone else.

gaius kindly posted some of the relevant language. Lets parse, shall we?

It states that In each case, such persons shall nevertheless be treated with humanity .... What is meant by "such persons"? Someone referred to in the previous two paragraphs as a person who is "an individual protected person" detained as a spy or saboteur in occupied territory, or someone detained in the territory of a party to the conflict who is suspected of or engaged in hostilities.

The prerequisite is that you be a person who is "protected." Not every person is protected by the Conventions, otherwise this provision would read "every person", not "an individual protected person." And who are the protected persons? Lots of folks, and in fact Judge Robertson ruled that Hamdan was a protected person, although perhaps not a prisoner of war.

http://news.findlaw.com/hdocs/docs/tribunals/hamdanrums110804opn.pdf

Having read his opinion, I tend to agree with him, and with gaius, on this point, although I still maintain that Hamdan is not entitled to full GC protection as a prisoner of war.

Art. II of the Third Convention specifically states that contracting parties shall remain bound to the convention even against non-signatories.

I never argued otherwise. While some GC protections are available to non-soldiers, I am arguing that we shouldn't extend full GC protections to combatants who do not meet the terms of the GC. This is applying the GC as written, not refusing to apply it when one party is a non-signatory.

[Jennifer]

Brian-
The Hitler comment made perfect sense in the context of the Dutch Dirt thread. But here, it loses a bit in translation.

[Hakluyt]

R.C. Dean,

How, pray reveal, could Switzerland be part of the E.U.'s tax harmonization if it isn't part of the E.U.?
http://www.reason.com/hitandrun/2004/06/eurosclerosis.shtml

gaius marius didn't post the relevant language concerning Art. II of the Third Convention.

This is applying the GC as written, not refusing to apply it when one party is a non-signatory.

Actually, you are ignoring it as it is specifically written. Hamdan remains a "protected person" until a tribunal states otherwise. The language is very clear and completely contradicts your assertion.

[Hakluyt]

R.C. Dean,

BTW, whether he is a POW or not was never a matter at issue. What is at issue was Dynamist's assertion about the GC not pertaining to Hamden at all, and that anything that we do is a mere gift. That is clearly not the case.

You then jumped in claimed that Dynamist was right, when he clearly wasn't.

[gaius marius]

shouldn't extend full GC protections to combatants who do not meet the terms of the GC

i think the difficult part there, mr dean, is in determining who is and isn't a POW, combatant or a protected person -- and how. the term "competent tribunal" is here essential, and is not the same thing as "gitmo star chamber" or "executive fiat", as has been discussed above. an american court of law would be a "competent tribunal".

as noted at hrw:

Article 5 requires the establishment of a competent tribunal only "[s]hould any doubt arise" as to whether a detainee meets the requirements for POW status contained in Article 4. The argument has been made that the detainees clearly do not meet one or more of the four requirements for POW status contained in Article 4(A)(2) - that they have a responsible command, carry their arms openly, wear uniforms with distinct insignia, or conduct their operations in accordance with the laws and customs of war. However, under the terms of Article 4(A)(2), these four requirements apply only to militia operating independently of a government's regular armed forces - for example, to those members of al-Qaeda who were operating independently of the Taliban's armed forces. But under Article 4(A)(1) these four requirements do not apply to "members of the armed forces of a Party to the conflict as well as members of militia ? forming part of such armed forces." That is, this four-part test would not apply to members of the Taliban's armed forces, since the Taliban, as the de facto government of Afghanistan, was a Party to the Geneva Convention. The four-part test would also not apply to militia that were integrated into the Taliban's armed forces, such as, perhaps, the Taliban's "55th Brigade," which we understand to have been composed of foreign troops fighting as part of the Taliban.

Administration officials have repeatedly described the Guantanamo detainees as including both Taliban and al-Qaeda members. A competent tribunal is thus needed to determine whether the detainees are members of the Taliban's armed forces (or an integrated militia), in which case they would be entitled to POW status automatically, or members only of al-Qaeda, in which case they probably would not be entitled to POW status because of their likely failure to meet the above-described four-part test. Until a tribunal makes that determination, Article 5 requires all detainees to be treated as POWs.

[Brian Courts]

Jennifer,

Oh I wasn't offended by the Hitler part, but by the cheapness part - I mean 50 bucks doesn't go very far these days 🙂 I thought THCC was kinda funny and figured it was just some kind of inside thing that was over my head.

[Hakluyt]

R.C. Dean,

Here's the run down:

Dyanmist wrote: Hakluyt: No uniform, no GC protection.

This is clearly not the case according to Art. V.

You wrote: This is not correct; the Conventions to which the US is a party apply only in cases of warfare between nations, and give protections only to the lawful soldiers of those nations.

Wrong, the Conventions apply even to non-state parties including militias, military bodies that belong to governments not recognized by the opposing belligerant state and inhabitants of an area that take up arms against an invader (see Art. IV of the Third Convention).

[Jennifer]

inhabitants of an area that take up arms against an invader

I'd say that covers most if not all of our prisoners.

[Hakluyt]

gaius marius,

More to the point, a spontaneous combination of armed individuals who come together to protect their country so long as they carry their arms openly fall within the GC's provisions.

[Hakluyt]

Individuals like R.C. Dean who come from the Rush Limbaugh school of Geneva Convention studies ignorantly believe that the G.C. only applies to the uniformed military of a state, but that is not the case. In the case of WWII, for example, it would also apply to say the maquis or civilians who took up arms against an invader.

[Hakluyt]

Jennifer,

Well, they have to be taking up arms before the area is occupied; and there efforts have to be decided upon not long before the invasion. The GC essentially covers folks who are rapidly preparing for an invasion that is quickly coming but don't have time to make uniforms, etc.

[Hakluyt]

gaius marius,

You forget, a POW is anyone the Bush administration says is a POW; like R.C. Dean implies, we should just trust our great and benevolant father Bush. 🙂

[Jason Ligon]

Don't know if anyone has seen this, but TC at Marginal Revolution provides a nice Wikipedia link on the chap in question.

[gaius marius]

More to the point, a spontaneous combination of armed individuals who come together to protect their country so long as they carry their arms openly fall within the GC's provisions.

agreed, gg -- and i further agree with you that, if the administration wants to reject the gc as it did abm and other obligations of the united states in a fit of lawless rousseauian totalitarian zeal, it should at least have the arrogance that befits that amoral, hubristic position and flaunt it openly in contempt of congress, the courts and the international community, the compacts with whom it so obviously views with disdain.

[Jennifer]

Hakluyt-
So if you don't get fighting-mad until AFTER the invasion, you're screwed?

Even if that's the case, I don't see how you can prove when somebody started making such preparations.

[Brett]

agreed, gg...

Is that where I recognized the tone from???

[Hakluyt]

Jennifer,

Well, Art. III of the Third Convention deals with "internal conflicts," so that situation might fall under that provision. We didn't discuss all the parameters of how that provisions works in my class though.

[patrick]

I do wonder about people who advocate that fanatic Islamic terrorists should be given free access to our courts and legal system. Are you saying that they should be given the freedom to communicate freely with the outside world while awaiting trial or after incarceration? Should the facility they are kept in be the same as your more typical felon?s accommodation? Would you like to be the guy put in the slam for selling a little pot who has to bunk with Yaser Hamdi? That would be great, No? Do you think the guards should be specially trained to deal with these people, or do you think that any prison guard should have to deal with them? ( If I remember correctly one of the terrorists who is in prison for the first World Trade Center Attack attacked a prison guard put his eye out with a pen or some other shiv. I guess that?s not too much to ask, right?) Should we be able to interrogate these terrorists with some coercive techniques not allowed to be used on your typical felon? Should the terrorist be given a jury trial? Would you like to be on that jury? Or do you think that it may be a little unreasonable to ask our citizens, or even judges and prosecutors for that matter, to sign their own fatwa for death for putting these people away?
When I answer these questions I come up with: They should be kept in isolation, away from civilian felons, in a place where interrogations are allowed, with specially trained guards, in a special facility, and put there by a professional panel of preferably military justices.

Sounds a lot like Guantonimo to me. But, I guess I?m in a fit of lawless Rousseauian totalitarian zeal with the arrogance that befits that amoral, hubristic position.

[Herman]

Brett-
It seems France's Premerie Avocat de la Marine in Georgia is barely trying to keep the Hakluyt mask on.

I'm still not sure if he, gaius marius and Mona are different aspects of the same person. It's very triune.

[Brian Courts]

Is that where I recognized the tone from???

Brett,

Yes, of course. I mean who else pull off something like Go read them right now (especially the Third Convention of 1929 and its 1949 amendments) and alleviate yourself of your ignorance. 🙂 Perhaps reading Calvin was an inspiration, Hakluyt?

[Hakluyt]

Herman,

I am who I am. And I not Mona, gaius marius, or anyone else but, well, me.

Brian Courts,

Calvin (despite being a despotic fuck) is a hoot.

[thoreau]

I've always said that I'm willing to concede, for the sake of argument, that there is no written law, treaty, or Constitutional provision to bar any of what's being done with detaining people sans trial. So I?ll say, for the sake of argument that the court rulings were proper. (Yes, Hakluyt, I know, you can prove otherwise, but I?m trying to grant the other side as many points as possible before I tear into those that remain.)

Given that there's no controlling legal authority to stop this, I still think it's a dangerous thing for the executive branch to do.

My concern isn't for the well-being of real terrorists. Rather, my concern is that this power is not subject to the normal checks and balances and hence is much riper for abuse than most powers. And given that even perfectly legit powers have been abused, can anybody say with a straight face that this extreme power, with no real checks or balances from the other branches, won't also be abused?

To me, this is a libertarian litmus test. If you support giving the executive the authority to do whatever it wants to people that it labels a terrorist, and do so without any meaningful review from the judiciary and without any real legal guidelines from the legislature, then please explain how you can claim to care about individual liberty.

Normally I'm not big on purity tests and litmus tests, but we all draw our lines somewhere. Having a justice system that's better than you'd find in a Communist country or Islamic theocracy is non-negotiable for me.

[Lit Man]

I believe some of our special forces soldiers don't wear uniforms. Does that mean that they are not covered by the Geneva Convention? What about a pilot that gets shot down over enemy territory and takes off his uniform so he is not as easy to identify?

[Dynamist]

I'll play the selective reading game--
Where in occupied territory an individual protected person is detained as a...saboteur, ...such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

Now, tell me why saboteur is not the appropriate label.

Lit Man: No uniform means spy. Particularly if Hakky is correct that the nature of warfare has not changed in the last 50, 100, 1000 years. The pilot may retain some identifying objects (dog tag) which can be perceived as a uniform.

thoreau: I would welcome your perspective on the idea that Congress gave the Executive war authority for whatever it wants to do with persons taken from Iraqistan. Congress could revoke that authority. Congress could even deny funding for such "nation-building" activities. It seems incomplete to just blame Bush.

Generally, I must add that our team is strictly bound by the UCMJ, whether or not we observe the GC. I get more upset when we break our own rules than when we break rules of international convenience.

[Hakluyt]

thoreau,

Well, I think people tend to forget that our rules to exist to protect not only innocents who have been mistakenly indentified as "unlawful combatants," but against a executive branch which has become tyrannical. Its kind of funny that we held open, etc. trials for Nazi war criminals, but somehow we can't muster the ability to do the same for people accused of far less heinous acts years after they have been captured and when they likely have no intelligence value left.

Dynamist,

On national security measures (despite its far more expansive powers in the area) Congress can be easily cowed due to the nature of the modern Presidency. I'd personally like to see some constitutional checks created to curb the expansion of executive power.

[Hakluyt]

Lit Man,

Depends on the sort of forces involved. In the case of a NOC, if they are discovered then they are generally toast as they lack diplomatic cover. For a team of special forces its not generally a problem as they tend to have some sort of identifying clothing, etc. on.

Pilots shot down over enemy are taught specific escape and evasion procedures that do not compromise their status if they do become POWs. I don't want to really tell you what they are. Their ultimate hope is to be picked up of course before that happens. Note that in GWI we had shitty rescue procedures in place and that's why we left guys out in the desert for hours and hours instead of the one and a half hour average recovery time in Viet Nam.

[Dynamist]

In researching Roberts and trying to find a way to agree with Hakluyt, I came across USA's 1942 ex parte Quirin:
...an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Roberts seems consistent with tradition (or precedent), and I can't yet agree with Hakluyt.

It's reasonable to expect an open tribunal when an enemy has made unconditional surrender and ceased all hostile action. Ordered trials are accomplished under peaceful conditions. We ain't there yet.

[Hakluyt]

Dynamist,

I'm very familiar with the Quirin decision and it should be contrasted with Ex parte Milligan.

Also, note that, despite what Bush states on the matter, the court in Quirin based its decision on the authority granted to the President during wartime, whereas Bush claims that he needs no such authority. Bush claims war powers far in expanse to what is granted him in the Constitution. Further, the SCOTUS implicitly found by granting cert in Quirin that the right of habeas corpus remains in cases such as this (where the combatant is a non-citizen as most of the individuals in that case were); this is evident in light of the fact that FDR argued that the Court had no jurisdiction in that case.

[M. Simon]

Hakluyt,

Hamadan is a member of no military organization whose controlling authority either is a signatory to the Geneva Conventions or a respecter of the Conventions.

He ain't covered by Geneva. Not in a recognizable uniform. Not part of a chain of command.

He can be kept in jail until the war is over. According to his buddies (if they can be believed) it will be when Hell freezes over.

[RandyAyn]

"when Hell freezes over." I guess that's when our liberty will be restored as well. Thanks for the timetable, M. Simon.

[RandyAyn]

I agree with thoreau that anyone who sanctions this cannot rightly call themselves a libertarian.

In my mind this is the moral and practical issue of our age.

Moral in the sense that we are deciding a central character issue: "Do I live by the rules I espouse?"

Practical in a much more immediate and potentially dangerous sense: "Can we accept the consequences of consolidation of power in one branch of government that will ultimately result in tyranny and the dissolution of our natural rights?"

Our failure to answer either of those two questions I fear will doom us all.

[M. Simon]

Hak,

The Nazis were tried after the war was over.

The current detainees should get similar treatment. After all some who were released resumed "jihad".

[Dynamist]

RandyAyn: Walking the talk is really hard when the vagaries of life arise. The best I can hope for, until I achieve godhood, is to walk sufficiently close to the talk most of the time, and adjust the talk as I learn more of the complexities of living.

And, I'm still not convinced that GWB's Executive is as tyrannical as many of the rest of y'all seem to think. USA survived FDR, at least up to today, and it doesn't seem like Bush is foisting the same magnificent platter of domestic coercion on us. I'm not saying Bush is increasing liberty overall, but he isn't the worst we've seen. Lincoln even might have done more harm at home.

Maybe it is a slippery slope, and Bush is in charge as we approach an inflection point. He's just doing his part to prove Albert Jay Nock's hypothesis.

[M. Simon]

Randy Ann,

Yes we must live by the rules of war as we are signatories of the Geneva conventions.

As far as I can see the rulings are consistient with those conventions.

If the 'jihadis" want to be treated like members of a regular army they should join one or create one. And adhere to the Conventions if they are not signatories. i.e. attacking civilians as a mode of warfare with no military target in sight is a war crime.

So yes. We ought to treat them like the war criminals they are. Once the war is over they will need to be tried.

And I'm a libertarian. Like it or not.

[thoreau]

I would welcome your perspective on the idea that Congress gave the Executive war authority for whatever it wants to do with persons taken from Iraqistan. Congress could revoke that authority. Congress could even deny funding for such "nation-building" activities. It seems incomplete to just blame Bush.

Dynamist-

Reasonable point. I should have also cast some blame on the legislative branch as well as the executive. It would be one thing if Congress had spelled out specific circumstances in which alleged terrorists won't be subject to judicial processes. To my knowledge, they didn't really do that. They passed a resolution saying he should (paraphrasing) "take all necessary action against the people responsible for 9/11" and they passed a resolution that (paraphrasing) "authorized the use of force in Iraq".

If my recollection of those resolutions are correct then you can draw one of two conclusions about the treatment of detainees:
1) Congress didn't really authorize the executive branch to do whatever it wants with the people it captures and alleges to be involved in terrorism.

2) Congress did in fact give a blank check, which was grossly irresponsible. We've all seen how well public officials behave when they have blank checks.

So, basically, I remain opposed to any situation in which accused terrorists are held indefinitely without resort to an open, adversarial procedure in a court that is independent of the executive branch.

And if you want to say that they're only being held until the war is over, well, when will the war be over? There needs to be some definite endpoint. In a formally declared war you hold them until Berlin is seized, or Hanoi falls, or the Brits surrender and their armies depart from our shores, or whatever. But the war on terror apparently may never end. Now, it's hard to muster much sympathy for an actual terrorist who spends the rest of his life in prison without trial as a result. But what about the falsely accused?

Yes, I know, the vast majority are probably bad guys. But the whole idea of an independent judiciary is to catch the executive branch's mistakes, however rare they might be, and make sure that the innocent go free. I don't want innocent people held forever without recourse to an independent, fair trial.

Basically, what I see here is the executive branch slipping off its leash. To me that is a libertarian litmus test. I want a justice system that's better than what you'd get in an Islamic theocracy or Communist dictatorship. There needs to be some controlling legal authority, to steal a phrase from a former government employee.

[Dynamist]

thoreau: Thank you for the considered response. My reading of what Congress offered was indeed an irresponsible blank check. It is up to them (and to us to convince them) to stop payment and reissue a more limited grant of power. One of the limits I would like is, as you describe, a definite endpoint. I would also like a better definition of the enemy. "War Against Terror" is hopelessly broad. I might consider "Jihadists and Supporters" or "Al-Qaeda and Related Conspirators", which are both still pretty vague, but I think move us in a useful direction. When we know the enemy, we can establish an endpoint. If (when) other groups seize upon the jihadist techniques, let the Executive come back to Congress for another limited authorization.

Within such a process, the Executive can still pursue the current war mostly as it wants. The endpoints might make it easier for more people (Europeans and PRC) to cooperate in the intelligence and law enforcement components that will keep a lid on other non-jihadi terror campaigns.

And the innocent in our camps have something tangible to look forward to.

Thanks again for helping me advance my thinking.

[Mr. Nice Guy]

Well, I certainly shouldn't quit my day job to be a pundit. I vented a lot yesterday about Roberts just being a sacrificial lamb, but it's looking like this is the real deal. As long as nothing comes up with him and small animals, Roberts should get in.

Maybe Bush got his non-white-guy ultra-conservative ready for when Rehnquist finally geezes out, which will probably be next month sometime.

[thoreau]

Dynamist-

I think it's an open question as to whether this administration would accept the revocation of the blank check. If I recall correctly, in some of the enemy combatant cases the government's lawyers have argued that the powers in question are inherent in the executive power.

And I recall that prior to the invasion of Iraq some of the Congressional Republicans argued that a declaration of war is unnecessary because the power to make war is inherent in the executive power, and the provision of the Constitution saying Congress declares war is "anachronistic." Now, keep in mind, they weren't arguing (as some on this forum have argued) that a new declaration was unnecessary because the Congressional resolutions from Gulf War I were still applicable, or anything like that. They were simply saying that the President can do whatever he wants.

Which is not a surprising attitude: If the Congress can do whatever it wants in the name of interstate commerce, why not let the President do whatever he wants as Commander in Chief?

Such is yet one more reason why I want the executive branch put on a leash. Yes, the third branch of government can get carried away as well, but the whole idea of checks and balances is that their separate ambitions for power should drive them to fight each other.

So I stand by my argument that there should be trials in Article III courts for the people in question. The only exceptions I would make would be:

1) Enemy soldiers in time of declared war, who are going to be released as soon as the war reaches its defined endpoint. (And even then there should be a process available to those who want to argue that they weren't enemy soldiers, but simply found in the wrong place at the wrong time.)

2) Under extreme circumstances, when the number of prisoners is vast and/or the courts cannot function (e.g. war on our soil), people might need to be held indefinitely but only until the courts can re-open and catch up with the backlog.

Now, how to define the endpoint? I think the end of Jihadism is the wrong criterion, because there will always be violent religious fanatics. The defeat of Al Qaeda may be a valid criterion, but the implication of holding people until the war is over is that once the war is over they'll be released. I'd rather put alleged Al Qaeda operatives on trial quickly and then, if convicted, lock them up for a long, long time.

[RandyAyn]

Dynamist,
The philosophy you espouse is called Moral Relativism. It is odious and vile, leading its proponents to believe that essential, defining principles of a person or government can be redefined at will, as needed, for the sake of convenience or 'security'.

Listen to what you're saying:

"Walking the talk is really hard when the vagaries of life arise." Many things in life are hard; that's no excuse for abandoning your principles. The "vagaries of life" is the catchall excuse for anyone not sufficiently principled to live by the rules they espouse.

When you talk about wanting to "walk sufficiently close to the talk" what you're really saying is that you don't want to adhere to your principles. In effect, you never believed in them in the first place, or you wouldn't have abandoned them when it became convenient to do so. "Sufficiently close" is a dim rationalization which basically translates into: "The ends justify the means." Once you embark on that path and become unmoored, the only guide for your actions is whatever you wish to accomplish.

I do agree with you and thoreau that Congress should share equally in the blame for our failure to maintain the checks and balances that have served us so well, but I find your cavalier attitude towards Bush's consolidation of Executive power unsettling.

[gaius marius]

USA survived FDR, at least up to today

has it, mr dynamist? i would suggest that it is the ongoing deterioration of the rule of law in this society that allows the current administration to

have argued that the powers in question are inherent in the executive power

as mr thoreau so precisely notes.

i think we all can agree that congress and the court are complicit in this slow-motion disaster for the republic, but that does not make it anything less of an executive phenomena. fdr began the process of neutering the court vis-a-vis the executive in 1937, and the wave of majoritarian "constructionism" will probably complete the dissolution of marbury v madison before its done. and, as the senate so keenly highlighted in its recent filibuster fiasco, the will of the executive isn't far from overriding the legislative entirely -- the house is a complete joke, imo, an simple extension of the vice-president's office.

in short, i think the allegiance of the political classes now is not to the people or the institution but to the party and, increasingly, the hero which it serves. the federal model is ever more closely approximating the urban/civic model, only on a far larger scale. that does not bode well for republicanism.

[Hakluyt]

M. Simon,

I've already detailed why he is covered. If you refuse to ignorantly ignore the provisions of the GC, that is not my problem. I suggest that if you think that you are right that you actually come up with provisions of the GC that contradict the evidence I have brought to bear here. In other words, read the thing (specifically the Third Convention's provisions).

No, actually Nazis were tried throughout the war many of them in the United States after we started accepting Nazi POWs in 1942. The Nuremburg trials were merely a special subset of trials for extra-nasty Nazis. Did you know that something like 1 million German POWs were housed in the U.S. during WWII?

thoreau,

The President claims war powers independent of anything the Congress might grant him. If you read the briefs in the Hamdi and Padilla cases from last summer you will see that they claim that whether the Congress authorizes such detentions or not they are within their constitutionally granted powers to commit these acts. Which is, to be frank, utter hogwash.

And I recall that prior to the invasion of Iraq some of the Congressional Republicans argued that a declaration of war is unnecessary because the power to make war is inherent in the executive power, and the provision of the Constitution saying Congress declares war is "anachronistic."

Well, the Congress need not declare war in order for the U.S. to be committed to military conflict; for example, its pretty clear that Congress need not grant the President the power to repel an attack. Further, declaring war was anachronistic in the 18th century and declaring war is not the length and breadth of the Congress' military conflict powers; indeed, its a very small portion of its powers.

1) Enemy soldiers in time of declared war, who are going to be released as soon as the war reaches its defined endpoint.

Merely housing POWs within wartime is within the GC's rules. Its actual punishment that is problematic.

[Hakluyt]

Dynamist,

A realistic end-point is two to three generations from now; lengthened by our actions in Iraq of course. We Americans have been spoiled by short wars (though this isn't really a war per se).

[Jeff]

Guys, guys-- all this talk of "treaties" and the "Constitution" is really beside the point. Don't you know that when this country was founded, that none of the men in wigs could have imagined an existential threat to the country (like being at war with the world's most powerful nation, just to pick a threat at random)? The idea that one of our cities would be attacked, let alone our capital, obviously never occured to these guys, and the fact that the Constitution was not suspended when Washington was burned to the ground a few years after the document was signed was probably just an oversight. Congress and the President were fleeing for their lives and so did not have time for parliamentary technicalities.
In short, had the Founding Fathers and Framers understood the incredible threats that we face today, they would have never bothered with all that "Bill of Rights" and "separation of powers" bullshit.

[RandyAyn]

Jeff,
Excellent! Right up there with A Modest Proposal.

I love it.

[Dynamist]

thoreau: I'm not opposed, actually I favor putting the Exec on a leash. I don't fault Execs for trying to extend (or overreach) as much as others, because the role of that branch is to Execute, to get the job done as they see it needs doing, and as they sell it to Congress and the people. It is kind of inevitable that Execs tug on their end, and the other two branches, both and equally, must stand fast against the tension. (In my fantasy world, the Exec is tugging in the direction of the 9th and 10th rather than war powers, but in my fantasy world Angelina Jolie would be sane and sitting on my lap right now)

gaius: You seem to echo Nock's hypothesis, too. At the least, we can go out screaming rather than cowing.

Hakluyt: I agree the endpoints are far away, but you work toward the goals you have, not the goals you wish you had. 😉

RandyAyn: I see how you read me as Relativist. It would take hours and days to explain it, but what I wrote comes in large part from a very rigorous and iconoclastic Catholic priest. My intent is the measure of the morality of my choices. I may be misguided or just plain wrong when I choose, but I am choosing according to a quite fixed set of standards. Often I may have to choose the lesser evil, which by being evil is not aligned with my guiding principles. Rather than guilt myself into powerlessness, I choose to accept the responsibility for the outcome of what I thought was the least evil, and proceed into the next difficult choice. If only I could grant myself the irresponsible liberty of Relativism, then whatever it took to get Angelina Jolie onto my lap would be O.K.

[Hakluyt]

Dynamist,

No, you don't create - via foolish acts - goals which are insurmountable. 🙁

[Crash]

Hakluyt,

Eugene Volokh utterly demolishes your claims that the Geneva Convention applies to Al Qaeda terrorists in Guantanamo.

http://volokh.powerblogs.com/admin/trackbackdrum.pl?post=1088792683

[Jason Ligon]

Crash,

Dead link?

[gaius marius]

Eugene Volokh

isn't he the one who about came on his keyboard at the prospect of bloodily torturing and murdering outside of any legal parameters?

he's a sadistic, perverted, lawless hero-cultist. hardly one fit to abide by law, much less examine how it applies to something he doesn't like. i'd choose another reference, for credibility's sake.

[RandyAyn]

gaius,
To be fair, Volokh eventually reconsidered, based on a barrage of counterarguments, the last of which it seems finally brought him to his senses:

[Eugene Volokh, March 19, 2005 at 2:23am] 18 Trackbacks / Possibly More Trackbacks
Mark Kleiman's Extremely Sensible Post Has Persuaded Me

that much as some monsters -- recall that we began with a man who raped and murdered 20 children, and progressed to include Eichmann and various other Nazis -- deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it.

What I found most persuasive about Mark's argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.

And this would be true even when the punishments are sought only for the most heinous of murderers. It's not just that you couldn't find 12 people to convict; it's that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark's post). Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.

In any event, I much appreciate Mark's instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he's right, and I was wrong.