'A Process That Appears to Be Rigged'

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The New York Times reports that two Air Force lawyers assigned to prosecute prisoners at Guantanamo Bay privately expressed strong doubts about the fairness of the military commissions in which they were expected to participate. "You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and we only needed to worry about building a record for the review panel," Capt. John Carr (since promoted to major) wrote in a March 2004 e-mail message to the chief prosecutor, Col. Frederick Borch. Carr said the handling of the tribunals "may constitute dereliction of duty, false official statements or other criminal conduct," adding that "the evidence does not indicate that our military and civilian leaders have been accurately informed of the state of our preparation, the true culpability of the accused or the sustainability of our efforts." Carr said his office was preparing to "prosecute fairly low-level accused in a process that appears to be rigged." Around the same time, Maj. Robert Preston sent an e-mail message to another senior officer in the prosecutors' office in which he warned that the trials represented "a severe threat to the reputation of the military justice system and even a fraud on the American people."

In an e-mail reply to Carr and Preston, Borch (who has since retired) called their charges "monstrous lies" and affirmed, "I am convinced to the depth of my soul that all of us on the prosecution team are truly dedicated to the mission of the office of military commissions, and that no one on the team has anything but the highest ethical principles." Brig. Gen. Thomas Hemingway, speaking on behalf of the Pentagon, told the Times there was nothing to Carr and Preston's complaints, which he attributed to "miscommunication, misunderstanding and personality conflicts."

As the Times notes, however, the prosecutors' criticism jibes with what military defense attorneys and outside groups such as the American Bar Association have been saying: that the military commissions, which lack many of the procedural safeguards of both civilian trials and courts-martial, are meant only to create the illusion of a "full and fair" process–a goal they are not accomplishing very well.

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  1. Jacob Sullum,

    As prosecutors they have a duty to the accused as well as the “state.” Its not surprising that they’re having problems fulfilling both roles given the kangaroo court nature of these tribunals.

  2. Surprise, surprise, surprise! PFC Gomer Pyle, USMC

  3. Fletcher: You told me those men would be treated decently.
    Senator Lane: They were. They were decently fed and then they were decently shot.

  4. THe need for the public to know what is going on in these trials, outweighs the dubious gov’t interest in keeping them secret. Hopefully Hill will show us how its done right, transparently.

  5. This opposition to things like trials and evidence make me wonder if the military brass doesn’t KNOW that a lot of its prisoners shouldn’t be there, but they would rather ramrod an innocent than admit they were wrong.

    Now let’s see who accuses Carr and Preston of being Bush-bashers who simply hate America.

  6. Um, lessee, they’re a buncha liberals who hate the military! No, that won’t work. They’re a buncha Muslim extremists! No, no, they’re a buncha Christian center-right types. Homosexuals? No…

    I got it! We know these Bush bashers can’t be trusted, because they’re…lawyers! Everyone hates lawyers, right? Karl, have the boys start digging up their cases from private practice.

  7. Jennifer,

    Why are you committed to self-loathing and despising the country gave you your freedom? 🙂

  8. If they hadn’t done anything wrong, they wouldn’t be in prison now would they.

  9. Hakluyt–

    Because I seriously fear they’ll take it away soon.

  10. Jennifer,

    “Take it away. Take it away. Take it away now.”

  11. Oh, they will, Hakluyt. They will.

    I’m disapponted but not surprised that certain hawkish individuals haven’t come on to this thread to explain why Carr and Preston are misguided at best.

  12. I’m disapponted but not surprised that certain hawkish individuals haven’t come on to this thread to explain why Carr and Preston are misguided at best.

    Let me sum it up:

    These prisoners, while perhaps not completely guilty of being terrorists, are certainly guilty of something, and it’s probably really bad, or at least sort of bad, so they deserve to be punished anyway.

    Or…

    In a time of war, it is better to err on the side of a guilty assumption and rest assured that Allah will take care of his own in the afterlife.

  13. (sigh) Thanks, Keith, but somehow it just isn’t the same. . . .

  14. Because Jennifer, the hawks are running out of air.

    Bushes approvals in the toilet, reduced to recess appointments, senate leader breaking with him on a key issue, talk radio listenership down, guv’mint spendin’ way up…interest rates to follow. Rove under investigation.

    People are starting to see through the bullshit.

    America’s waking up with a right-wing hangover and on every front that the right wing has run on for 15 years they have achieved nothing. No smaller government. Dificits up. Lagging economy.

    Bush and co. are running out of steam and even the right wingers are starting to admit that Rumsfeld hasn’t gotten anything right since we took over Bagdhad.

    This is just the cherry on the sundae.

  15. They are all a bunch of terrorists. Kill them all. They deserve to suffer and die. Who cares if they get a fair trial, all that matters is that they get SEVERE PUNISHMENT. 1000s of their lives are not worth that of one American.

  16. I think that we should take the word of one Captain who is working on the case’s word as the word of God and let all of the people up for military tribunals and let them go. Clearly, because one person involved with the process doesn’t think that they are getting a fair shake they clearly are not and they are all innocent victims of the phony war on terror. Of course all of these innocent victims will need some help getting on their feet and we surely owe then at least free entry into the United States if they desire. I can think of no other way to make for all of the trouble we have caused of of these innocent people. I am quite sure the posters on this thread will be more than willing to let these folks move into their neighborhoods or better yet their homes until they can get back on their feet.

  17. The legal issues involving trials of non-U.S. citizens in wartime are interesting, to say the least. One book I recommend is Rehnquist’s All the Laws by One, which is a fascinating history of the subject, whether you agree with the author’s views or not. It was written well before 9/11, which is what makes it so fascinating. After you read it, you WON’T be saying, “well, Abraham Lincoln would never have allowed such a thing to happen”.

  18. When I typed it into Google news, I noticed that the Chinese papers are having a field day with this. Why is our own government trying so hard to lose the moral high ground and give scumbag nations like CHINA legitimate reasons to look down on us?

    John McCain and a few others are trying to push legislation that will require the US to not torture people in custody anymore. Some neocon scumball said that the prisoners didn’t deserve humane treatment because they’re just terrorists; McCain responded by saying “It’s not about who they are. It’s about who WE are.”

    Amen, Senator.

  19. Jennifer,

    You are tops on the list. E-mail me, I know some people down at GUTMO and I am sure they can set you to sponsor one of these wonderful guys who have been unfairly railroaded by our evil military industrial complex.

  20. Clearly,

    Having the moral high ground under such wonderful and effective Presidents like Jimmy Carter kept the United States safe from terror, espcially our embassies in countries like Iran. As far as the Chinese having a field day with this, I guess they now feel free to oppress the Fulon Gong, invade and ethnically clense Tibet, propup North Korea, and threaten Japan and Taiwan with nuclear destruction. God knows they have felt very inhibited about doing those sorts of things in the past. I guess our military tribunals are really going to give them the green light now.

  21. John–

    First of all, I’m curious as to why you posted under my name, and secondly, why are you so opposed to giving these men trials?

  22. Well Said, Jennifer.

    Ya’ know…the right is always ready to toss out “The Framers of the Constitution” and some such.

    They like to wax on about “what the founders meant” and “what the founders intended” Blahbady Balh Blah.

    I point out that the Declaration Of Independence says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    I’ve always felt that the notion of non-Americans not being allowed the benefits of American standards of justice was flawed and more than a little unprincipled.

  23. Third question for John: what do YOU think is Carr and Preston’s motivation here?

  24. John,

    Cut the hyperbole and the “liberals are bleeding heart pussies” crap.

    You know damn well no one is sugesting any of that garbage.

    But justice is justice. Many of those people are alleged to have been sold to the U.S. for rewards on very spotty evidence.

    Living by principle means dying by those princples even when it’s inconvenient.

  25. I am opposed to giving the full benifit of our legal system to these guys. I don’t have a problem the odd muderer getting loose because the government didn’t make its case. These people, however are a different story. First, if they haven’t committed any criminal act, how can we hold them under ordinary criminal law and if we dont’ hold them how does that not equal letting every terrorist have one free act of terror? True you can perhaps get them on attempt or conspiracy, but only if they have taken concrete steps. The mere advocating of violence is not good enough. Second, the ordinary rules of evidence applicable to a district court case make it very difficult to get evidence through. The rules of hearsay and document authentication make proving things very difficult in civilian court. That is fine in ordinary criminal matters, but do you really want to let an Al-Quada operative go because the government can’t produce the shop keeper from Malta to authenticate the receipts from where the operative purchased the bomb fuses? In ordinary civilian court you would. That is why you have to do something different and have looser rules. I am not saying no due process at all, but these cases don’t belong in district court, the belong in a military tribunal. Perhaps the system as it stands is unfairly stacked to the government even still. I don’t know, but I want more than the word of one Captain in the office to make that determination.

    BTW I am not sure how I posted in your name, it was some kind of glitch, I certainly didn’t mean to.

  26. You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and we only needed to worry about building a record for the review panel

    Yeah, when they decide ahead of time that nobody will be acquitted, I’d say the deck is just a little bit stacked.

  27. we only needed to worry about building a record for the review panel

    What exactly do you think that means? It means putting on record enough evidence that a reasonable person could conclude that the defendent was guilty. Jennifer you act like there is no evidence against these guys and they are just innocent Arabs arrested for driving while swarthy.

  28. I understand what your talking about John. Considering that witnesses involved could be dead or busy on the battlefield makes a standard civilian case pretty impossible. But we’re not talking about this being unethical because the burden of proof is set a little lower or anything along those line’s, we’re talking about the proof being pre-determined. These aren’t cases, this isn’t justice and I don’t like us being presented to the world as a sideshow.

  29. “Having the moral high ground under such wonderful and effective Presidents like Jimmy Carter kept the United States safe from terror, espcially our embassies in countries like Iran.”

    Jimmy Carter, Jimmy Carter – wasn’t he the guy who became president just about two years after our involvement in Vietnam ended? Maybe not the best example of a president who was able to work from the moral high ground.

  30. Jennifer you act like there is no evidence against these guys and they are just innocent Arabs arrested for driving while swarthy.

    In many cases that’s just what happened. We were in Afghanistan offering bounties for prisoners. So a lot of warlords picked up easy cash by handing over members of rival tribes and saying “Lookit here! A terrorist!”

    I’m not saying that they are ALL innocent, but some of them most likely are. And we need to determine who’s who.

    And I think “build a record for the review panel” means “cover our asses.”

  31. Fair enough, John.

    But to also be fair, the people in this e-mail – and there are 2, not 1 – are not the only ones having a problem here and the problems have been evident for quite some time.

    I agree, proving a case may be difficult, if not impossible. And I don’t pretend to have all of the answers.

    But one thing becomes apparent…we could be doing a lot more than were are to insure that we’re being fair rather than just sticking the lot in a hole and defending the practice as defending democracy and justice.

    At that point, we just look like hypocrites.

  32. I am opposed to giving the full benifit of our legal system to these guys.

    Are you opposed to giving the full benefit of our legal system to any innocents who might have accidentally been swept up in the system?

    If so, do you have some way of figuring out who’s an innocent in need of a trial, and who’s a guilty guy deserving of a kangaroo court?

    If you have an idea of how to do that, let me know. We could formalize the process, maybe put some educated people in charge of it, people with experience dealing with matters of guilt and innocence. If it works, we might even give this system the status of a co-equal third branch of government.

    What’s that? These guys are so obviously guilty that we don’t need trials? Well, if the evidence is so strong, what do you have to worry about?

  33. “Jennifer you act like there is no evidence against these guys and they are just innocent Arabs arrested for driving while swarthy.”

    The problem, John, is that a process desinged merely to “build a record for the review panel” won’t distinguish between actual terrorists, and those “driving while swarthy.”

  34. Thoreau,

    That is exactly what we did. I tried over 40 court-martials for the US Army as a prosecutor and another 20 as a defense attorney including 13 fully contested cases. I can tell you right now that military juries are better educated and more thoughtful and more likely to give the defendent the benifit of the doubt than a civilian jury. If I were wrongly accused of a crime I would absolutely take a military jury over a civilian one. I don’t believe for a moment that these tribunals would refuse to let one of these guys go if they really thought they were innocent. Military people are too professional for that. I was in Iraq and totally understand that lots of innocent people can get swept up by a billigerent party in a war zone. We have let numorous people out of GUTMO and out of detention facilities in Iraq and Afghanistan. Some of whom only to capture again committing terrorists acts. If anythign the standard seems to be too low. If this whole thing were stacked as you and Jennifer claim, why have we released so many people from detention?

  35. You guys really need to read “All the Laws but One”. These issues have come up repeatedly in our nation’s history. We really face a dilemma here. John’s points about not trying these people in US District Court are valid in my view, but the flipside is the public’s perception about whether the process was reasonably fair. Transparency of the proceedings would be very helpful to deal with that downside, but there are secrecy and security issues to worry about. So, what we have instead are leaks that may be more harmful than simply making the whole process transparent. Anyone who thinks they have all the answers to this one are kidding themselves.

  36. John,

    I don’t think the MILITARY LAWYERS WITH SIGNIFICANT EXPERIENCE WITH COURTS MARTIAL are complaining because these tribunals function like traditional military courts.

    I think they’re complaining because the tribunals DO NOT function like our respected courts martial.

  37. John-

    You do make some good points. Let me ask a few sincere (not rhetorical) questions:

    How are military juries chosen?

    Does the defense counsel get the opportunity to challenge prospective jurors?

    Will these guys be tried in front of the same juries that you tried cases in front of?T

    The prosecutors cited at the beginning of this thread seem to think that they’ll be trying cases in front of panels that were handpicked to achieve a predetermined outcome.

    Now, if this were coming from the defense attorneys it could be dismissed as lawyerly tactics. But it’s coming from the prosecutors. That seems odd to me. What about you?

  38. You are right, that is exactly why they are complaining. As I pointed out above, they can’t operate like a court-martial and be effective. I ask again, if the system is so stacked towards the government why has the US released prisoners from GUTMO only to find them back in Afganistan and Iraq committing terrorists acts? It seems to me that if it were really that stacked, no one would ever get out and certainly no one who was a terrorist.

  39. Military juries are chosen by the commander and sit for a set term like a grand jury. This is a serious knock on the system because many people claim that that means that the commander stacks the jury. I have found that not to be the case, but that is only my view others would differ.

    Defense counsel gets a preemptory challenge just like civilian court, conduct Voi Dire and can challenge anyone for cause. The Supreme Court decisions on jury makeup apply to the military.

    These guys are going to be tried in front a panel of officers, appointed by someoen, but not a jury in the sense of a court-martial

    Do the Air Force Lawyers in the piece have a point? Perhaps, I am not dismissing them out of hand. I would like to know more. Who is on the panels? I would like to let the panels work and be reviewed and see how the process actually works. Some of what they are complaining about happens in all courts. Every good prosecutor wants to get his cases in front of the hanging judges in the county or pick a jury that is likely to fry the accused. Defense attornies of course try the opposite. So in that sense, pickign guys who you think are going to be hangning judges is nothing new or outragous. Further, just because some COL in JAG thinks theses panels will lean to the prosecution doesn’t mean squat. People generally get real independent once they are faced with the responsibilty of being on a jury. If it turns out that there are innocent people down there getting railroaded, then for God sakes go down and fix it. What I do not think however is that we should inpinge on integrity of the tribunals before they have even heard a case based on a few e-mails from the prosecutors, who may or may not have an agenda of their own.

  40. I don’t know the answer to that question, John. As I understand it, though, most or all of those released were never put through a tribunal at all.

    What I do know is that three of the branches JAGs complained about the tribunals, and now two of thr prosecutors who actually work there have complained.

  41. It is not a crime to wage war against the United States, it is a war. Those who have trouble differentiating are beyond my help. If wood is on fire, throw water on it. If Magnesium is on fire, throw sand on it. Idiots who insist on throwing water on burning magnesium because “that is the right way to fight a fire” hurt only themselves. Idiots who try to fight a war like it is a crime hurt all of us.

  42. John: The problem is we have to rely on speculation to determine whether the process is fair, or even what the process is. Why haven’t we been told at least how the trials will be conducted and what evidentiary standards will be used, or have we and I just haven’t been paying attention? This isn’t rhetorical, if someone knows where the procedure is laid-out, let me know.

  43. “Thomas Hemingway, speaking on behalf of the Pentagon, told the Times there was nothing to Carr and Preston’s complaints, which he attributed to “miscommunication, misunderstanding and personality conflicts.”

    …and as we all know, the Pentagon has ways of dealing with miscommunication, misunderstanding(s), personality conflicts and a fear of dogs.

  44. “I am quite sure the posters on this thread will be more than willing to let these folks move into their neighborhoods or better yet their homes until they can get back on their feet.”

    To suggest that the choice is between giving these folks a trial of dubious truth-finding ability and letting them live in our neighborhoods is a bullshit alternative. I wouldn’t want Nicolae Ceaucescu living in my neighborhood (or my country), but I think the “trial” he was given before his execution was a joke, one that would have make old Andrei Vishinski proud, and one that I’m glad the U.S. government had nothing to do with.

  45. If I wasn’t your enemy before you held me incommunicado for three years I might become your enemy. That’s ignoring the constant interrogations, sensory deprivation, “stress positions” and other tactics that might cause me to really hate you.

    And let’s make the following distinction. People who kill soldiers are not terrorists. They might be violating international law (by not wearing uniforms, etc.) but they are not terrorists. So if your released guy goes to Iraq and blows up a HMMWV, he is not a terrorist.

    Terrorists are people who deliberately make war on civilians and terrorism is politically motivated violence against civilians. So if your released guy goes to Iraq and blows up some schoolkids, he is a terrorist and in my opinion hostic humanis generis. Hell, you can shoot him after a short trial if you catch him after that.

    Even Eichmann got a fairly decent trial. I’d think we could come up with a process that doesn’t degenerate into a farce simply for “building a record” for a review board.

  46. After all the glowing reviews on this site I?ve started reading Quicksilver (by Stephenson). It?s mentioned that someone with a V for Vagabond or a T for Thief burned into their hands would automatically be imprisoned (if not killed) if caught again at the same crime, since it would indicate that there was a history of this crime by the person.

    Is there something similar for terrorists that we release? Something that could be seen on the battlefield by regular soldiers, not needing DNA samples or fingerprinting analysis?

  47. Concerning Apostate’s comments, it’s pretty damned pathetic to think that Holocaust survivors treated known Nazis better than we American Good Guys treat folks whom we don’t even know for sure are guilty.

  48. I didn’t rtfa, but it seems like what we have here are individual consciences trying to keep some semblance of human rights in the system, and their efforts have been published in one the the world’s most widely-read newspapers. I thought that our military justice was an eternal black hole that swallows all in its maw without regard to facts or circumstance, just as one would expect from the imperialist USA as guided by a cabal of neocons with a christian retard figurehead. Evidently, I was misguided.

    Take a break from the bitching and applaud the elements which work toward your ideals. The end of the world has been postponed at least a few minutes. If we live long enough, something close to justice might occur.

  49. Dynamist–

    It’s too early to celebrate until we find out if this leads to actual change or just gets swept under the rug.

  50. Apostate,

    Iraq has a internationally recognized government, so does Afganistan. The two conflicts are no longer international armed conflicts within the meaning of the Geneva Conventions. They are internal armed conflicts governed by Common Article III. As such, the fighters in these two countries are not prisoners of war and are not entitled to any such protections. They are not entitled to be released when the conflict is over, pay, and such as POWs are. They are only entitled to a base level of human rights, i.e. no torture, summary execution, things like that. Basically, they are criminals who can be held by the US or the host nation for as long as we like as long as we provide them basic protections. Whether you want to call them terrorists or not, is a question of semantics. I am sure if you are one of the civilians rountinely murdered and targeted by the insurgency in Iraq, they are probably terrorists. If you are a well healed Western liberal, they are freedom fighters. Whatever you call them, they are criminals not prisoners of war and can be treated as such by either the Iraqi, Afghan or American governments. Yes,Yes, I know about the allegations of torture, but that is not what this tread is about. Suffice it to say, if any American did torture a detainee, he violated domestic and international law and is a war criminal under the Geneva Conventions. Whether that is what really happened or not, can we please save for another day?

  51. Well, they’re still Krauts and I don’t trust them but it’s not like we go around blowing up random hausfraus and their kinder all the time. Neither do you see Poles, or Russians, or Frenchmen killing Germans for their former oppression. And the civilized Germans did some very, very, very bad things.

  52. Apostate Jew,

    You might want to go to the Sudatunland and look for all the Germans left there. It will a long look because there are none left. The Czechs kicked them all out at the end of the war. Real ethnic clensing. Also, you might want to talk to the British and French about all of the industrial equipment they stole from Germany after the war as reperations. I guess its pretty difficult to consider Stalin’s Russia civilized so their systematic rape of German women probably doens’t count, but it did happen nonetheless. The allies were not so kind to the Germans, not that they didn’t have a right to be unkind. Also, the Nuremburg tribunals got a whole lot more people than just the top level Nazis. There are some pretty good arguments that they were victor’s justice and convicted a lot of Germans for doing the same things, like bombing civilian targets, that the allies were doing.

  53. Jennifer: Kind of like “No Justice No Peace”, I admire the devotion and vigilance, but it seems like a tough life to choose if you can’t once in a while feel a glimmer of hope. Makes for a higher weed bill, in my experience.

  54. Ron,

    It’d be helpful if the Chief Justice’s book were slightly less dishonest about the historical record. 🙂

  55. John,

    I’d have to see the numbers of who was caught when to see if that would change my opinion.

    I never said anything about “freedom fighters”. I just said someone who targets soldiers is not a terrorist, although he may be other things.

    I never said anything about “torture”, just about the likely effects of the publicy reported procedures on a non-terrorist.

    It is not semantics, it affects how people think. I am not a lawyer, but this part of the conventions seems quite clear to me …

    “To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
    (b) taking of hostages;
    (c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
    (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    Geneva Convention (III) Relative to the Treatment of Prisoners of War; August 12, 1949

    I assume that’s the convention you were referring to. I added the emphasis on procedures.

    We are better than the enemy – we are civilized and he is not – and ought to act like it. I am not arguing for civil standards, just something better than “building a record”.

  56. John,

    Your hyperbole doesn’t really allow for an impressive case.

    I would like to let the panels work and be reviewed and see how the process actually works.

    One of the problems of course is a lack of true appellate review.

    thoreau,

    Our modern concept of justice depends almost solely on proper process; without it, we have no justice.

  57. John, I celebrate your wiping of the floor with the likes of Jennifer. Good show.

  58. Whether it was right or wrong of the Czechs to deport the German from the Sudetenland, they Czechs did not indefinitely imprison them and are not today killing them. Reparations and even lotting are not murder, either.

    I believe that above I made a distinction between deliberately murdering civilians as a tactic and fighting an armed enemy. The bombing campaings were problematic but we’re not talking about them.

    The Tribunal was held in public and the defendents had lawyers and more than a few minutes to make their cases. It’s a bad comparison because those trials seemed then and still do distinctly fair, given how obviously bad the defendents were.

  59. Tom Crick,

    Every time the Pentagon miscommunicates we seem to invade another country. 🙂

  60. Basically, they are criminals who can be held by the US or the host nation for as long as we like as long as we provide them basic protections.

    Whatever you call them, they are criminals not prisoners of war and can be treated as such by either the Iraqi, Afghan or American governments.

    Well, I’m certainly relieved that you aren’t goin to use the “we’re at war!” line that some use to justify anything and everything.

    But now they are criminals? If they’re criminals, why not ordinary trials? Or at least ordinary courts-martial?

    What bothers me is the way that the people I argue with keep shifting the terms. The terrorists are criminals when it means we can ignore the Geneva Convention. But this is a war when it means we can ignore the Constitution. And they’re in a category that the Framers of the Constitution and signatories to various treaties never contemplated, when it means that we can ignore any notion of due process or limits on executive power.

    But Dynamist makes a good point: These conscientious prosecutors are part of the reason why I haven’t completely given up on the system.

  61. thoreau,

    The process of empaneling these commissions comes straight out the executive branch and has no other basis in law. Its part of the Bush administration’s efforts to claim non-constitutional war powers.

  62. The terrorists are criminals when it means we can ignore the Geneva Convention.

    it goes to demonstrate yet again, mr thoreau, that the war on terror isn’t about the moral bankruptcy of only one side.

  63. thoreau,

    Criminality by itself doesn’t strip someone of their rights under the GCs. In WWII, when German POWs were tried in the U.S. for say murdering another POW (the NAZI element was pretty strong throughout the POW camps and came down hard on informers, etc.), they were nevertheless provided all the rights and privileges expected by the GCs.

  64. thoreau,

    The U.S. had about a million German POWs in it by the end of the war (one of them was an ex-girlfriend’s father who ended up emigrating and thus garnering a Germano-Virginia accent).

  65. These conscientious prosecutors are part of the reason why I haven’t completely given up on the system.

    i have to say, to mr dynamist and mr thoreau, that you can always find good people in any belligerent bureaucracy. having a few of them stick their heads out doesn’t mean that the system is working. i don’t see any evidence that internal deliberation made any headway against what were probably imperial orders. and for every one whistleblower that surfaces — and i don’t know that these surfaced intentionally — it may well be that a hundred others were mowed down before they got that far.

    it’s very difficult to ascertain the health of our military-political-legal mechanism on this basis — just as a decent administrator or judge here and there in the french interregnum and terror didn’t acquit the system of robespierre.

  66. BTW, John totally overblows the issue of the rules of evidence in these sorts of cases. Judges are as a rule pretty damn deferential in national security law matters after all, and the rules of evidence allow for the admission of say “hearsay” in so many ways as to make his claim, well, ludicrous.

  67. Thoreau,

    There is nothing in international law that prevents the United States or Iraq from trying people captured in the insurgency as criminals and indeed that is happening in Iraq by the Iraqi government. The issue is how much protection do you give these people at trial? There is nothing illegal about a country facing mass terrorism suspending internal civil protections in terrorism cases. Countries like Columbia and Peru have done this. You can disagree with them, but there is nothing illegal in international law about doing it, provided the detentions are not arbitary and the detainees are treated humanly. International law does not gaurentee a justice system identical to the United States or even equal to the United States.

    People captured in Iraq and Afghanistan these days are not prisoners of war by any standard. A prisoner of war is a someone involved in an international armed conflict between two high contracting parties of the Geneva Conventions. The insurgency in Iraq are part of an internal armed conflict, still governed by the Geneva Conventions, but governed by a different part of the Conventions than prisoners of war. People on here talk as if there is one level of protections provided by the Geneva Conventions. This is not true. There are different classes of people defined by the conventions entitled to different levels of protection. Someone captured in an internal armed conflict is entitled to protections under common article III only, which means bascially they can’t be treated inhumanly. Beyond that, it is up to the host country what to do with them. All of this talk about the folks at GUITMO being entitled to this or that under the Geneva Conventions is hogwash. Unless they were uniformed fighters for the Taliban or Saddam’s Iraq captured before the new governments were internationally recognized, they are not entitled didly under the conventions other than not to be treated inhumanly or detained arbitarily. There may be good reasons to gold plate the military tribunal process or there may be domestic law that says they are entilted to all sorts of protections. Whatever those protections are, beyond human treatment and no arbitrary detention they don’t come from the Geneva Conventions.

  68. many of the detainees have been released and recaptured fighting us. doesn’t sound like a rigged process.

  69. Hakluyt

    You are dead wrong about your claims to hearsay. The Federal Rules of Evidence are not waived in a national security case. Yes, there are exceptions to the hearsay rule, but they do not guarentee the admission of evidence. I point to the Mousoui case. Had Mousoui not been crazy and pled guilty, the government probably would not have been able to convict him. All they had, was that he was friends with some very bad people and was taking flight lessons. So what? That doesn’t prove anything. Look at the Padia case. There are some intelligence reports, all heresay and none that will be admissible, that say that he was here scouting out the use of a dirty bomb on Chicago. I have yet to see any hard evidence that could convict Padia in a federal court. But I sure as hell wouldn’t want the guy released either, or Mousoui for that matter. Another good example is a guy down at GUTMO mentioned in a recent WSJ article. He was captured at Tora Bora. He tried enter the United STates in June of 2001 but was denied entry. The person there to pick him up at the Miami Airport was none other than Mahaumad Atta. Several detainees at GUTMO say that he was Bin Laden’s driver and was supposed to be the 20th highjacker on 9-11. How do you go about proving that in federal court? Is the testimony of known terrorists going to be considered relaible? Is being at Tora Bora a crime in and of itself? Is being friends with Mahaumad Atta a crime? No to all of the above. Again, I wouldn’t want this guy loose, but I fail to see how the government gets a conviction in federal court.

  70. John-

    I’m not interested in the rights of actual terrorists. I’m interested in keeping the power of the executive branch limited: Exercised in a manner prescribed by properly enacted law, and scrutinized by an independent judiciary. Once upon a time that was considered a reasonable notion.

    Since I’m not a lawyer, I will concede for the sake of argument that there’s no law, treaty, Supreme Court ruling, or Constitutional provision to stop the executive branch from doing whatever it wants to the people in question. The fact that there’s no controlling legal authority to step in and stop the executive branch from doing what I want doesn’t make me feel any better: The only thing worse than an executive branch that breaks the law is one that faces no law.

    Once upon a time that was considered a reasonable notion.

    So, I will concede (just for the sake of argument, so calm down, Hakluyt) that no written laws are being broken. But that doesn’t reassure me. I think that what’s happening puts us on a very slippery slope. If there isn’t a law in place to regulate the treatment of these prisoners, well, then there oughta be a law! And for once I consider that a perfectly libertarian sentiment: The only thing worse than an executive branch that breaks the law is one that has no laws to break.

    Anyhow, why am I so worried about this? It’s not that I have a deep and abiding concern for terrorists. It’s that I want a process for separating the terrorists from the mistakenly accused, something done in accordance with law and under the supervision of an independent judiciary. An executive branch without a leash is a terrible thing to behold.

    Or at least that’s what my friends from foreign countries say.

  71. John,

    Do you honestly defend the authoritarian regimes in Peru and Colombia?

    International law does not gaurentee a justice system identical to the United States or even equal to the United States.

    International law requires that signatories of the GCs respect the rights of “protected persons” and that individuals be treated as “protected persons” until a “competant tribunal” deems not meriting that status. I suggest you consult the Third GC (especially the revised version).

    A prisoner of war is a someone involved in an international armed conflict between two high contracting parties of the Geneva Conventions.

    Wrong. A POW can come from a non-high contracting party (the Third GC specifically states this in Art. 2).

    The insurgency in Iraq are part of an internal armed conflict, still governed by the Geneva Conventions, but governed by a different part of the Conventions than prisoners of war.

    Most of the individuals held in GITMO aren’t involved in the insurgency and all of the people they’ve chosen to try so far aren’t involved in that insurgency.

  72. “many of the detainees have been released and recaptured fighting us. doesn’t sound like a rigged process.”

    I know this wasn’t the point of your post, but shouldn’t we be asking ourselves why we released dangerous detainees in the first place? If they had been treated as full blown POWs, they wouldn’t have been released at all, right? So why did we choose a route–who cares whether it was legal–that returned dangerous detainees to the field to kill more Americans?

    …That suggests that the Administration’s strategy was way fucked up from the get go, doesn’t it? …What’s the word I keep using to describe the Bush Administration again? …Oh yeah, “incompetent”.

    P.S. I take issue with the word “many”. Got any specifics?

  73. John-

    I have no love for terrorists, and as Thoreau said if this were solely about them I wouldn’t much care, but aren’t you just a small bit concerned about the fact that our government doesn’t seem to give a damn about the difference between innocent and guilty people?

    I’m worried about the poor guys who probably knew next to nothing about the world beyond ten miles from their house, who were minding their own business when suddenly–foom!–the land around their house turns into a war zone, and some warlord from a rival tribe kidnaps them and turns them over to the Americans with the explanation, “Here’s another terrorist we found. Where’s my bounty money?”

    I don’t know the Gitmo ratio of terrorists: innocent people, but even if the innocence rate is only one or two percent, wouldn’t you want an honest system in place to find that small percentage and let them go? If not, then what percentage of innocent people do we have to hurt before you think we lose our status as the Good Guys?

  74. John,

    You are dead wrong; I suggest a perusal of the FRE. 🙂

    The Federal Rules of Evidence are not waived in a national security case.

    WHO SAID ANYTHING ABOUT A FUCKING WAIVER? Deference is not a waiver. Get your shit together and address the comments that I actually make.

    Yes, there are exceptions to the hearsay rule, but they do not guarentee the admission of evidence.

    There are numerous exceptions to the hearsay rule; a plethora of them.

    Had Mousoui not been crazy and pled guilty, the government probably would not have been able to convict him. All they had, was that he was friends with some very bad people and was taking flight lessons.

    Learn how to spell his name.

    You aren’t aware of the government’s case apparently. They would have nailed him.

    Look at the Padia case.

    First, his name is Padilla.

    There are some intelligence reports, all heresay and none that will be admissible, that say that he was here scouting out the use of a dirty bomb on Chicago.

    Bullshit. All that is admissable. BTW, similar items were admitted in the 1993 WTC bombing cases.

    I have yet to see any hard evidence that could convict Padia in a federal court.

    That’s the point. No one has outside the executive branch. They’ve never had to present their case. Duh!

    Another good example is a guy down at GUTMO mentioned in a recent WSJ article.

    Its GITMO. Ok? Not GUITMO, or GUTMO, or anything else.

    How do you go about proving that in federal court?

    The same way you demonstrate any other crime. How many criminal trials have we had against terrorists since 1993 that have successfully put people in jail? A bunch. Now suddenly the process could never work! 🙂

    Again, I wouldn’t want this guy loose…

    That’s about extent of your argument right there.

  75. Another thought:

    If results are all that matters, if good process is just an impediment to doing the job, then why exactly are we trying to establish a liberal democracy in Iraq? Why not just vest power in the hands of a few talented and tough people who will get the job done?

  76. John,

    BTW, it seems rather strange that you are claiming that what is happening in Iraq is completely internal and that only Article III applies since there is at least one external party involved in what is happening there and the U.S. government has yet to focus on Article III (indeed, they’ve exclusively used Article IV).

  77. thoreau,

    …why exactly are we trying to establish a liberal democracy in Iraq?

    We aren’t. At this point, the foolish Bush administration is hoping more for a managed insurgency than a Jeffersonian democracy on the Tigris.

  78. thoreau, are you trying to get a joe a transfer and promotion? 🙂

  79. John, seriously, what is wrong with requiring the government to provide some actual proof that these guys are up to something?

    The problem with simply allowing the government to lock people up and say “We won’t show you proof, just take our word for it,” is that even if the government is inherently non-corrupt, with nary a scumbag on the payroll, it’s a huge bureaucracy. Considering the size of the US Army and various other national-security departments, there will if nothing else be honest MISTAKES from time to time. Wouldn’t it actually make our national security stronger if we could identify and rectify those mistakes? Find more knowledge to help us get it right in the future?

  80. Jennifer,

    John himself admits that they are kangaroo courts and that the process is rigged; that’s why he keeps on prattling on about not wanting these guys on the streets. He supports a system which has a guaranteed verdict of guilty prior to even the opening statement.

  81. Hakluyt–

    In that case I can’t even begin to understand the motivation of one who claims to be more concerned with “national security” than (treasonous) people like me, but thinks the way to better security is to reward a system that isn’t even required to have a damned CLUE as to who’s after us and who’s not.

  82. “They’re Muslim, they’re Arab, and the warlord we paid the per-person bounty to swears that they’re members of al-Qaeda. Good enough for me!”

  83. Jennifer,

    Its a pretty reasonable reading of his statements.

  84. “The problem with simply allowing the government to lock people up and say “We won’t show you proof, just take our word for it,” is that even if the government is inherently non-corrupt, with nary a scumbag on the payroll, it’s a huge bureaucracy.”

    I understand your point Jennifer, and maybe I’m oversimplifying this…

    …but it seems to me that we already had a perfectly moral and legal process for locking people up without trial or proof–it’s called Prisoner of War status. It also seems to me that there were, essentially, two things about POW status that the Bush Administration didn’t like.

    1) You have to release POWs after hostilities cease.

    2) You can’t torture (interrogate/whatever) them.

    It seems to me that the pig heads in the Bush Administration went the other route because of these reasons, thinking they could bully the courts into accepting whatever line was thrown at them. When the courts ruled that they had to give these people some kind of trial… They went into tailspin mode and released people who shouldn’t have been released until the War on Terror was over.

    …It seems to me that the bullshit logic I’ve seen people use to justify the Administration’s policy, so far, has been just that–bullshit to justify the Administration’s mistakes and nothing more. …Justifying the Administration’s mistakes is a foolish way to make policy.

  85. Looks like I stumbled into a Anti-America prayer meeting…sorry, carry on with your service.

    p.s. Your choir sounds nice.

  86. No prayer meetings here–too many of us are atheists.

  87. I point you all back to my original postings which said, let these people go, if you are so convinced they are innocent. What do you do with someone by a clear preponderence of the evidence is guilty of planning something like 9-11 but is not guilty beyond a reasonable doubt? More importantly, what do you do when you have someone whom you know is guilty but to prove that they are requires you to put on valuable information about intelligence sources, means and methods in open court? In the civilian system, you let the person go in each case. That is not an outcome that anyone in their right mind would want to happen when the stakes are someone getting out and planning something like 9-11. That is why terrorism cases do not belong in district court.

    Hakluyt, the day you and Jennifer have actually been in a federal court and actually put something into evidence, please feel free to lecture me on how wonderful and easy it is to prove things in court. The “here it is” theory of admissibility generally doesn’t fly with most judges.

  88. The presence of the United STates does not make the conflict in Iraq an international armed conflict. The conflict must be between to high contracting parties. If both the high contracting parties are on the same side and the otherside is a rebel group that does not rise to the level of nation, it is still an internal armed conflict within the meaning of Common Article III.

  89. “Hakluyt, the day you and Jennifer have actually been in a federal court and actually put something into evidence, please feel free to lecture me on how wonderful and easy it is to prove things in court.”

    That sounds like an appeal to authority. …Generally speaking, those don’t do well around here.

  90. The bottom line is these people are not POWs, they are not U.S. citizens and nothing in international law gives the right to full protection under the U.S. Constitution. The U.S. owes them some minimum level of due process and humane treatment. The U.S. does not owe them the entire U.S. Rules of Criminal Procedure, does not owe them proof beyond a reasonable doubt, or the full protection of things like the right to a jury trial, the right against self-incrimination, or the right to confront witnesses. None of that is gaurenteed under international law, indeed many Western countries, especially Latin American countried with a Napoleonic tradition, do not have such protections in normal criminal proceedings. The Constitution certainly does not apply to foreign nationals held by the U.S. outside the United States. True, that does make the Padia case problematic and I am willing to admit that perhaps Padia as a U.S. citizen is entittled to the full protection of the Constitution.

  91. thoreau, are you trying to get a joe a transfer and promotion? 🙂

    Huh?

    I point you all back to my original postings which said, let these people go, if you are so convinced they are innocent.

    The only thing I’m convinced of is that the executive branch needs to act in a manner prescribed by law, with oversight from an independent third branch of government. I’m not the first person to propose this notion, although I do happen to think quite highly of this notion. I think there’s a name for it. Something like “Constitutional Republic.”

    What do you do with someone by a clear preponderence of the evidence is guilty of planning something like 9-11 but is not guilty beyond a reasonable doubt?

    The Constitution was written by people who had fought a war on US soil. They were quite aware that there might be saboteurs in our midst, enjoying the advantages offered by a free and open society. They never said anything about letting the executive branch act unchecked in those cases.

  92. “The conflict must be between to high contracting parties.”

    I know you’re arguing with someone else. …but I’d like to point out that there are a lot of things that are perfectly legal that are stupid and silly to do.

    …Running with scissors is legal. …So is group sex without a condom. Splattering my thumb all over the desk with a hammer is perfectly legal. Paying too much for a house is perfectly legal.

    Even if the Administration’s policy was perfectly legal–and I’m not saying it was–it was still foolish.

    …We actually let dangerous enemies go because of the Administration’s foolishness.

  93. Tom Creek,

    For the 50th time. The people being held at Guantonimo Bay are not prisoners of war. They were not captured in an international armed conflict and are not prisoners of war. They prisoners from an internal armed conflict and are not entitled to the protections afforded POWs. They are therefore not entitled to be released at the end of hostilities.

  94. “it is still an internal armed conflict within the meaning of Common Article III”

    So then why doesn’t Article III(1)(d) apply? I’ll refresh your memory, Johnny boy, about what is prohibited …

    III(1)(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    Seems pretty damn clear to me.

    If you can cite case law that supports your position, you might actually convince me that I’m wrong. If not, you’re just an apologist for something you know is wrong.

  95. The U.S. does not owe them the entire U.S. Rules of Criminal Procedure, does not owe them proof beyond a reasonable doubt, or the full protection of things like the right to a jury trial, the right against self-incrimination, or the right to confront witnesses. None of that is gaurenteed under international law, indeed many Western countries, especially Latin American countried with a Napoleonic tradition, do not have such protections in normal criminal proceedings.

    I’m not interested in what they deserve. I’m interested in how much power the government deserves.

    How many times do I have to repeat this? The executive branch should never have unchecked power over an individual’s fate. If you don’t believe me, go to your local Chinese or Middle Eastern restaurant and ask the immigrant behind the counter what might go wrong when the executive branch has unchecked power.

  96. And this bit from Article IV probably applies to some of the detainees as well …

    IV(A)(6)Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    When exactly was the peace treaty with Iraq, ending the war, concluded?

  97. That is a fair point Thoreau. Maybe it is a bad idea to have Military Tribunals. I think its a great idea, but its definitely a debateable point and a debate the country should be having. What is not a fair point is to say that the tribunals are somehow a violation of the GCs, or illegal. The fact is they are not illegal. A reasonable policy debate is certainly appropriate and if there are better ways to deal with the terrorism problem, by all means lets pursue them.

  98. “The bottom line is these people are not POWs, they are not U.S. citizens and nothing in international law gives the right to full protection under the U.S. Constitution.”

    For the 100th time, the apparent assumption that because something’s legal, it’s the smart thing to do.

  99. Apostate Jew,

    Before June 29th 2004, that was a fair point. After that, the insurgency became an internal armed conflict. The U.N. Security Council recognizes Iraq’s sovereignty and the new government in Iraq as the legitimate government. That said, even before June 29th, that provision does not give the insurgents the right to intentionally target civilians and operate without wearing a uniform when engaging in combat.

  100. The fact is they are not illegal.

    Lots of things aren’t illegal. But that doesn’t mean they’re all wise things to do.

    Giving the executive branch unchecked power over an individual may very well be perfectly legal. In an era where giving your home to Walmart is “public use” and growing your own weed is “interstate commerce” just about anything that the feds want to do is perfectly legal.

    But even if those powers are within the letter of the law, they are still dangerous, and the other branches of government should rein in the executive.

  101. John,

    Hakluyt, the day you and Jennifer have actually been in a federal court and actually put something into evidence, please feel free to lecture me on how wonderful and easy it is to prove things in court.

    All your bravado aside, your statement is the sort of intellectually lazy cop out and fallacious appeal to authority I expected from an authoritarian like yourself. Go move to the People’s Republic of China; that’s the sort of society you deserve.

    BTW, which federal courts have you worked in? Under what judges have you either tried or defended an individual?

    The conflict must be between to high contracting parties.

    WRONG! WRONG! WRONG! WRONG!

    Read the fucking 3rd GC. It doesn’t say that. A high contracting party is bound whether the conflict is with another high contracting party or not! That’s one of the most basic understandings you get in any international law course dealing with this issue.

    Your inability to spell Padilla’s name correctly doesn’t leave me with a lot of trust in your thinking skills.

    The bottom line is these people are not POWs, they are not U.S. citizens and nothing in international law gives the right to full protection under the U.S. Constitution.

    Now you are of course switching the metric again. No one has claimed anything about the “full protection” of the US Constitution. You know, an intellectually honest person wouldn’t do this sort of shit. You are also continously lumping different classes of persons together as if they all fell under Art. III of the 3rd GC; that tells me you’re a dishonest fuck.

    The people being held at Guantonimo Bay are not prisoners of war. They were not captured in an international armed conflict and are not prisoners of war.

    Again, you continue to lump every person in GITMO into the same pile (which the Bush administration doesn’t even do I might add); many who are there were in fact caught in an international armed conflict, namely the invasion of Afghanistan for example.

    The Constitution certainly does not apply to foreign nationals held by the U.S. outside the United States.

    The U.S. Supreme Court disagrees with you.

  102. What is not a fair point is to say that the tribunals are somehow a violation of the GCs, or illegal. The fact is they are not illegal. A reasonable policy debate is certainly appropriate and if there are better ways to deal with the terrorism problem, by all means lets pursue them.

    All right, how about have military tribunals, but have them be honest and fair tribunals determined to discover the truth about guilt or innocence, rather than stacked to reach a foregone conclusion?

  103. In many ways I agree Thoreau. We are playing with fire in doing these things. I hope that we are up to it. Its all too easy for things which are meant to be used to combat terrorism to become standard practice in ordinary criminal cases. But we have done this before, for example look at the powers Lincoln used in the Civil War or Wilson in WWI and the democracy survived. That said, there has to be very strong limits on the use of tribunals. Maybe 9-11 doesn’t justify it. Maybe we have to wait for something even more damaging before embarking on this. Its a tough call. My view is, it would suck to be innocent and stuck in a Guantonimo Bay, but not as bad as it sucked to be in the WTCs on 9-11. So forgive me if I am little bit jaded on these issues.

  104. My view is, it would suck to be innocent and stuck in a Guantonimo Bay, but not as bad as it sucked to be in the WTCs on 9-11. So forgive me if I am little bit jaded on these issues.

    Oh, fuck your forgiveness. Hardly any of the people in Gitmo had nothing to do with 9-11, and don’t use the death of your fellow Americans to justify the destruction of what their country is supposed to stand for.

  105. Make that “hardly anybody had ANYTHING.”

  106. OK, let me pose a different question:

    Let’s say, for the sake of argument, that this is all perfectly legal. There are no laws to the contrary, so there is no controlling legal authority (oh, how I love to quote Al Gore!) and the executive branch can do as it wishes.

    Now, suppose that Congress decided to change this. Suppose that Congress were to pass some law requiring the executive branch to either treat prisoners as POW’s, send them to regular courts martial (which John has praised), or prosecute them in regular criminal courts. No more special tribunals where the executive branch gets to make it up as they go along.

    Would this be a legitimate exercise of power by Congress? Would anybody argue that the executive branch should be able to ignore this legislation?

    Note, I’m not asking whether you would support this legislation (I already know who would or wouldn’t support it), I’m asking whether you think the executive branch should abide by it. (And, to simplify things, suppose that we live in a world where the necessary 2/3 majority could be mustered to over-ride a veto.)

  107. Read the fucking 3rd GC. It doesn’t say that. A high contracting party is bound whether the conflict is with another high contracting party or not! That’s one of the most basic understandings you get in any international law course dealing with this issue.

    I am about to give up correcting your ignorence. I never said the GCs don’t apply. Clearly Aricle III does. But Article III does not deal with POWs. People caught up in internal armed conflicts are not POWs. Yes, they are protected by the GCs, but the protections are different.

    Yes, if you were a uniformed member of the Taliban fighting in Afghanistan before the new governemnt was established, you are a POW and entitlted to return home provided you did not commit any war crimes. In fact, in 2003, there were former Taliban fighters who were released for just that reason. There are no uniformed Taliban fighters left in Guantonimo Bay.

  108. John,

    The more you keep jumping from metric to metric and the your lumping strategy unravels the more ridiculous you look. I’ll note that you didn’t defend your silly “waiver” claim, BTW.

    What is not a fair point is to say that the tribunals are somehow a violation of the GCs, or illegal.

    That is indeed debateable, because guess who determines if a GC provision is a violated? The Executive branch. You see, the courts defer (wait, I see a claim about waiver coming on! arggh!) to the President on these matters. The Executive branch is the enforcer of what is and is not a violation, and you’ve essentially bought their line that they are indeed not violating the GC.

  109. John, I’m glad you realize we’re playing with fire here. We’ve survived these things before, but if you play with fire enough times eventually you’re going to burn something down.

    Where there’s smoke there’s an idiot playing with fire.

  110. Thoreau,

    In answer to your question, that is in my view an absolutely legitimate use of Congressional Power. There is nothing that says we can’t treat these people as POWs, whether we should or not, is another matter.

  111. John the Authoritarian,

    I am about to give up correcting your ignorence.

    I’ll note that that not once have you ever point to any language backing up your interpretation of the text.

    I never said the GCs don’t apply. Clearly Aricle III does. But Article III does not deal with POWs.

    The point of course is that this is not an Article III issue; even the Bush administration admits this by not invoking it. It invokes the provisions of Article IV.

    Yes, if you were a uniformed member of the Taliban fighting in Afghanistan before the new governemnt was established, you are a POW and entitlted to return home provided you did not commit any war crimes.

    The problem for you is that half or more of those in GITMO were caught this way. That blows apart your rather moronic claims about who is and who is not a POW. Clearly there are a heck of a lot of POWs down in GITMO, which you have just admitted.

  112. John,

    In what federal court did you practice in?

    There hasn’t been any use of Congressional power. The Commissions are an Executive branch creation.

  113. The idea that this some sort of Article III conflict is mere idiocy. It remains an Article IV conflict, as even the Bush administration admits by not invoking the former when it imprisons someone even today.

  114. thoreau,

    Don’t worry, the Bush administration has shifted its policies in the wake of the Hamdi and Padilla decisions; “extraordinary rendition” is now the perferred modus operandi. Once we hand some poor bastard over (guilty or not) to a third-rate totalitarian regime the issue of our legal responsiblities becomes nil.

  115. John,

    In what federal court did you practice in?

  116. I find the distinction between what is legal and what is illegal to be of critical importance. The Bush Administration (and to be fair, probably every previous administration) is operating under the policy of “if it ain’t specifically forbidden, then it is permissible”. That is the wrong attitude for any administration. The proper interpretation whould be “if it isn’t specifically authorized, then it is forbidden.” Sure, you can argue that this ties the hands of the administration. THAT’S THE POINT.

    If the administration wants to do something that it is not authorized to do, it should go ask Congress for authorization. If Congress is dubious about the request, they can refuse or at least put a sunset clause on the authorization so they can review how well it worked in practice.

    Assuming that terrorsits/insurgents are operating in a new class that doesn’t properly fall under either domestic or international law doesn’t give the administration carte blanche to treat prisoners as it sees fit. The administration should go before Congress and plead they are powerless. Congress should then pass legislation that allows the administration to act on these prisoners. In the absence of experienced knowledge on how this new class of prisoners should be treated, Congress could simply authorize the administration to assign captives to existing categories (criminal, POW, whatever) as it deems necessary. As experience accumulates, Congress can create new rules on how to treat this class of prisoners.

    In the event that the Congress authorizes the administration to act in an unconstitutional manner, then Congress needs to either find a constitutional alternative or do the hard work of amending the Constitution.

    Administrations should never, ever, get to make up the rules as they go along. Administrations should never, ever, get to act in the absence of authorizing legislation.

  117. I used to hate you guys because of your freedom. But, as I look at what your administration has done to destroy freedom in your country, I have to admit that I shouldn’t have been so hasty in condemning you guys. I’m learning to love your country. My mullah says you can’t hurry love, no you just have to wait.

  118. thoreau, you cannot claim to love your country while fearing your government!

  119. thoreau: I should have put the reference in the post. I was trying to warm up the crowd for our Headliner: Stevo Darkly. Anyway here’s my wisecrack again:
    ==
    Why not just vest power in the hands of a few talented and tough people who will get the job done?

    thoreau, are you trying to get a joe a transfer and promotion? 🙂
    ==

    On topic, it is good to hear you still have a little faith in the system. Your idea of Congress passing a law dictating the military’s handling of prisoners is the kind of leash that works best, because it doesn’t depend upon the goodwill of whichever idiot is in the Oval Office. They all have to abide the law. It’s faint praise, but USA still seems to be the most humane superpower in history. If we keep vigilant, we’ll get the pendulum to swing back our way.

  120. “…but they would rather ramrod an innocent than admit they were wrong.”
    –Jennifer

    So how does that make them any different from most every D.A. in the United States (aside from the fact that the D.A. isn’t allowed to preside over the trial)?

  121. If the administration wants to do something that it is not authorized to do, it should go ask Congress for authorization.

    From the joint resolution:

    SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    A Congress full of frightened old people handed Bush a broadsword three days after September 11. What did you expect? They are more concerned with its political survival in the face of the “war on terror” than our civil liberties.

  122. Kevin Carson–

    Well, one difference is that DAs usually have to have SOME sort of evidence (even if it’s false), and give the guy SOME sort of a trial, rather than say “Lock him up. No, no, just trust me on this–he needs to be locked up.” And the DAs aren’t generally allowed to “disappear” people.

  123. Playing with fire indeed.

    After an IRA bomb in the UK in 1974 six innocent people were rounded up and imprisoned on the grounds that they were Irish.

    Lord Denning, the judge who refused their appeal in 1980 later said: “We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten and the whole community would have been satisfied.”

    The six were released on appeal in 1991 with overwhelming evidence that the case against them had been fabricated and extracted under torture.

    As long as we have the likes of Lord Denning in positions of authority we need to be very careful indeed playing with fire.

  124. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten and the whole community would have been satisfied.

    Because, of course, to become safer in times of terrorism we don’t need to lock up the actual TERRORISTS–we just need to lock up any old person who will serve as a convenient scapegoat/talisman. Whether or not they had anything to do with actual terrorism is immaterial. Right, John?

  125. “The point of course is that this is not an Article III issue; even the Bush administration admits this by not invoking it. It invokes the provisions of Article IV.”

    Article IV? The full faith and credit clause? Privileges and immunities? Admission of new states? Republican form of government?

  126. After an IRA bomb in the UK in 1974 six innocent people were rounded up and imprisoned on the grounds that they were Irish.

    Several years ago I advocated rounding up and imprisoning six young men on the grounds that they were in a boy band. I eventually relented, however, when rumors came out that Lance Bass had bought himself a ticket into outer space. I instead proposed that they all be given complimentary one-way tickets into space.

    Now you see that coercive use of space travel can indeed be turned to useful ends! Too bad nobody took my suggestion.

  127. Seamus, I assume he’s referring to Article IV of the Geneva conventions, not Article IV of the Constitution.

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