Innocent Until Proven Non-Person

That habeas corpus link Julian Sanchez highlighted below is worth a look, in case you haven't. It's a Washington Post op-ed by Guantanamo-detainee lawyer P. Sabin Willett. Excerpt:

I wished the senators could meet my client Adel.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus. […]

The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever.

Comments

[thoreau]

I sure hope that bounty hunter is no longer on the payroll. See, I owe a debt to this alien gangster named Jabba....

[Jennifer]

This is what the no-trial apologists kept insisting could not possibly happen. Will they now insist it's an isolated one?

[jf]

Well, now were finding out that these secret tribunals aren't as bad as everyone feared.

Granted, the process after the tribunal is pretty fucked up, but still...

[thoreau]

jf-

The tribunal itself might not be as bad as we thought, but the system is indeed every bit as bad as we thought. Worse, even, if acknowledged innocents are being kept locked up anyway.

I know that this guy can't be safely sent back to China. Still, there must be some place where a guy facing persecution in his homeland could go. Some nation that has a history of safely and effectively assimilating such people.

[jf]

thoreau:

Yes, the system is horrible. The Senate has failed freedom time and time again and yet these clowns continue to get re-elected as long as they bring the pork back home.

Cute last paragraph, by the way.

[Johnny]

The important thing is not to be swayed, the conservative side may be leaning away, but with SCOTUS members like Thomas, the really important things like property and small government will be protected. Libertarians must stand firm with the conservative brothers. We must remember, Hilary and the Democrats are the real enemies of liberty.

Physical liberty will be preserved for those who focus on property, rather than civil rights...

Something like that, RIGHT?

[theOneState]

Yeah, jf, let's say...but if we let the gov't arrest, prosecute, punish w/o any kind of oversight or even just some reporting requirements for god's sake we're heading towards a dark, dark place.

I.e., this is pretty messed up.

You do have some Senate committees that ought to be informed and be providing some oversight, but that kind of power legislated over to the executive is frightening.

I feel bad for this guy. No one will take him (how 'bout his own country???). I bet there are lots of these folks. Maybe the military should set up some kind of camp for folks like this, you know, so they can have a bit of freedom, get some exercise, enjoy the weather, and maybe earn their keep while they're at it. There's lots of stuff we could have them do....

(That was a joke, in case anyone's sarcasm detector is on the fritz.)

[Larry A]

"If you haven't done anything wrong, what are you afraid of?"

[Jason Ligon]

There is middle ground between full public trials and what we have now. Get congressional oversight right now, for a starter.

I completely see that we might have to hold someone in the absence of evidence for a period of time longer than we'd be comfortable with for a domestic crime. What I don't see is a tribunal designation of innocence and throwing away the key anyway.

I do not agree that full public trials will work. Tribunals and a congressional oversight panel should be a good starting point.

[ME]

If he has been found innocent, why are they still holding him? If no other country has agreed to take him, let him loose in the US and he can figure it out from there.

[joe]

Jason,

Why a Congressional oversight panel? Why not habeus corpus; ie, a judicial oversight panel?

Habeus corpus is a method of protecting due process. Due process for a battlefield captive isn't the same as due process for an arrested civilian, but it isn't a big ZERO, either.

[emme]

When it comes to scrapping habeas corpus (and implementing policies that are basically censorship) why does Abraham Lincoln get such a pass? I'm reading DiLorenzo's The Real Lincoln. It seems like Lincoln really sucked ass.

[Jason Ligon]

joe:

I'd have to see what is entailed in habeus corpus for a battlefield captive. I was thinking that demands for habeus corpus were demands for civilian habeus.

[thoreaudil]

Jason-

I can entertain the notion that some cases may require longer detentions and looser standards of evidence than your typical shoplifting case.

But why not put the third branch of government in charge of handling those cases? They're already capable of handling different burdens of proof for civil vs. criminal cases. Surely they can rise to the challenge and provide independent oversight.

And I don't see why an innocent man can't just be released into the US. I know he can't be sent back to China because they've been known to put their Muslims in prison without trial, and even torture them. But that doesn't mean he has to be kept in Cuba without a trial.

[SY]

Well, his lawyer says he's innocent. That's good enough for me.

[joe]

Jason L,

IIRC, there isn't really a "habeus corpus" right for POWs. But then, most of these prisoners aren't really POWs. They are an odd amalgamn of arrested suspects and captured enemies, and our laws haven't really caught up to the circusmstances.

To me, that suggests that we need to catch up out laws to the circumstances, to make sure the proper balance is struck between the two mandates of checking the government's power/protecting rights and providing security.

To others, is suggests that, since there are no restrictions on the government drawn up in existing law - yeehaw! It's on!

[thoreaudil]

To others, is suggests that, since there are no restrictions on the government drawn up in existing law - yeehaw! It's on!i>

We will pursue with vengeance and hatreds to the end of the World any Vala, Demon, Elf, or Man...

[jack]

THIS GUY WASN'T A BATTLEFIELD CAPTIVE! He was kidnapped by people paid by our government.

[Viking Moose clad in the codpi]

yeah. just send em back to the bus station in some third world country. after all, only bad guys hang out there. i'm gonna be careful at harrison and the dan ryan... eek.

[Johnny]

Imagine how much easier, once attitudes like JL's become de rigueur, to hold "battlefield" capture's of the "other" war. The war on drugs.

This is part of a two pronged attack against any concept of habeas corpus, both the spirit of holding innocents (even non-citizens) and the laws against holding innocents.

First, deny all judicial revue of battlefield captures, secondly pass laws limiting habeas corpus for citizens.

Imagine how effective the government will be in fighting wars than.

Can't wait.

I take it I'm still not allowed to call them fascists? (and by them, I mean anyone who supports this kind of pro-government non-sense, not any political party)

[joe]

I think you're being unfair to Jason Ligon, Johnny. He certainly has not hewed to the Bushite line on this.

[thoreaudil]

Look, you're either with us or against us. If those Teleri won't let us use their boats to pursue Morgoth, well, DON'T YOU AVARI REALIZE WE'RE AT WAR HERE?

Bottom line, you can't make an ommelete without breaking a few eggs. If some innocent Teleri got killed, well, we are at war. Morgoth is much worse.

[joe]

jack, as a practical point, you are right - the way that some of these poor bastids ended up in our gulags is just plain wrong, wrong, wrong. Stupid, stupid, corrupt policy.

As a legal point though, it's a little less enlightening - "battlefield captive" is their legal status. Every single one of them is going to say "You got the wrong guy." The question is, then what? If we were able to sort out beforehand which captives should have been taken and which should not, this would be a lot easier. But what we've got are some guys who are evil terrorist bastards, and some who are completely innocent, and we don't immediately know which is which.

[Jason Ligon]

"To me, that suggests that we need to catch up out laws to the circumstances, to make sure the proper balance is struck between the two mandates of checking the government's power/protecting rights and providing security."

Yes, this is my position as well. I was going with tribunal with nonmilitary oversight as a check as a way to handle it. I don't care if the nonmilitary oversight is judicial or legilative, they just have to be vetted to get full access to all information the military has, and that isn't a whole lot of people outside of the DoD. I don't think you can go to full civilian courts.

[TallDave]

Yeah, that's all great until they release "Adel" and he impinges on my freedom by flying a plane into a building where I'm working. If he's still in prison, I'm betting there's a reason.

It's a messy GWOT. See, they've actually recaptured several terrorists who were judged "not Taliban or Al Qaeda" and released from Gitmo after vowing to forsake violence. So I find the sob story about sweet innocent persecuted-by-the-evil-American-military "Adel" 1) hard to believe and 2) hard to sympathize with.

[Jon H]

joe writes: "As a legal point though, it's a little less enlightening - "battlefield captive" is their legal status."

Seems to me the Bush administration has essentially declared the entire planet a battlefield for purposes of taking prisoners.

They're doing CIA kidnappings in the middle of Europe, for pete's sake.

"Battlefield captive" has been rendered meaningless by the Bush administration.

[AC]

thoreau has won this thread, I think.

[SY]

"thoreau has won this thread, I think."

No, he hasn't, nor has anyone else because we don't have the facts, only a raw assertion by an attorney! It's reasonable to argue that we ought to know the facts here, but the reality is we don't. There might be an outrage here, but there might not. Never trust an uncorroborated statement by an attorney; ask anyone who has been involved in litigation.

[Kip]

The article says that the tribunal concluded he was not al Qaeda, not Taliban, not a terrorist. But does that mean he was found innocent? Was he even charged with specific crimes?

[Ken Shultz]

"To me, that suggests that we need to catch up out laws to the circumstances, to make sure the proper balance is struck between the two mandates of checking the government's power/protecting rights and providing security."

I still say we'd be better off if we treated all prisoners as if they were Prisoners of War under the Geneva Conventions regardless of qualification.

I haven't seen anything to suggest that the benefits of treating them otherwise outweighs the associated costs.

[robert]

SY,
But the attorney said he was found innocent, and he would like for the senators to meet him.
sounds like a good guy to me

[The Wine Commonsewer]

As the Senate prepared to vote Thursday to abolish the writ of habeas corpus

WTF?

They can't do that. Can they?

[AC]

No, he hasn't, nor has anyone else because we don't have the facts, only a raw assertion by an attorney! It's reasonable to argue that we ought to know the facts here, but the reality is we don't. There might be an outrage here, but there might not. Never trust an uncorroborated statement by an attorney; ask anyone who has been involved in litigation.

You missed my point. I'm talking about humor value only.

[SR]

"WTF? They can't do that. Can they?"

Yes, they can actually. Article I, Section 9, Clause 2 of the U.S. Constitution states:

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.

[thoreaudil]

Ken-

I see your point about using POW status. My only concern is that, IIRC, a POW has to be released when the conflict is over. When, exactly, will we know that this conflict is over.

I see Jason's point about the need for a lower standard of evidence, or longer detention before trial. My biggest fear is that creating a laxer set of standards will also create a fun new way to fight the drug war. It will start with kingpins, of course. But soon they'll go after anybody who brings something in from Canada.

I still think that we should strive to handle terrorism cases in the same way that we'd handle any other violent felony, or at least come as close as possible to that standard.

[Ken Shultz]

Having to release terrorists after the conflict is a legitimate concern. Even under the Conventions, however, there are ways to convict POWs of war crimes.

[Ken Shultz]

...We might have tried terrorists in a Nuremberg Trials like spectacle, using it to heap the scorn of the world on terrorism and its ideology. Instead, we've managed the seemingly impossible--we've created sympathy for terrorists.

If I said this was further evidence of Administration incompetence, would it take away from my point?

[Phil]

Thanks for the cite, SR. What rebellion or invasion have we suffered?

[Hakluyt]

How Kafkaesque.

[joe]

"If he's still in prison, I'm betting there's a reason."

This sentiment sure makes me proud to be an American.

SY, "There might be an outrage here, but there might not. Never trust an uncorroborated statement by an attorney; ask anyone who has been involved in litigation." Doesn't the fact that we're not allowed to corroborate the attorney's statment strike you as an outrage?

thoreau,

First, knock it off with the silly elvish name. We don't cotton to your identity politics around here.

Second, this isn't a metaphorical war. This is an actual war.

Ken, Jaysus, you're right. We've managed to make Talibs look like the good guys.

[thoreau]

Ken makes a good point.

I respect Jason Ligon's position. I might draw lines differently from where he does, but he agrees that the exercise of government powers must be done in accordance with the rule of law. If somebody falls into a category not covered by ordinary criminal procedures and not covered by the Geneva Conventions, that means we need to establish laws to cover that category. It doesn't mean that it's a free for all for the government.

If the government is not kept on a leash, Lynndie England will start putting us on leashes.

[Bramblyspam]

Hmm. Maybe he hates freedom?

[Happy Jack]

lower standard of evidence

nonmilitary oversight

Sounds like you're describing the UCMJ and court-martials. Preponderance of the evidence, Court of Appeals for the Armed Forces (civilian appellate judges appointed by the Senate).

I recall some service JAG's making this argument, but it's possible they're sissies who hate America.

[thoreau]

Happy Jack-

I would seriously consider that as a suitable trade-off for terrorism suspects arrested overseas. I really would. Especially if the civilian appellate court is included in the process, and the trials are not conducted in secret.

I need to think about it more, but if sentences can be appealed to civilian judges confirmed by the Senate then I would seriously consider it. If I expressed reservations about it in the past, it's because I thought that the verdicts would be subject to the ultimate review of the Defense Secretary and President rather than the third branch of government.

I don't revere judges as divine figures, but their independence is crucial in our republican form of government.

[thoreau]

Jason Ligon, what do you think of Happy Jack's suggestion?

[thoreau]

I've thought about it some more: The basic rationale for a lower standard of evidence in some terrorism cases is that when the crime involves things done in places where local authorities are either weak or complicit, it's not really possible to collect evidence with proper warrants and do all the other sorts of things that one would expect in domestic criminal investigations.

OK, fair enough. But we have in our prisons a lot of people who have worked with foreign drug cartels. Many of them did most of their work in countries where the local authorities are even more corrupt than ours. How did we put those guys on trial?

I realize that it's rather ironic to look to the Drug War for guidance on due process. Maybe that's a sad comment on how our idiot rulers are conducting the War on Terror.

I will say this much: If there are cases where ordinary criminal procedures are truly inadequate, I will give serious consideration to courts martial supervised by civilian judges. It would certainly be better than what our wannabe Stasi are doing with Jose Padilla. But the relaxed burden of proof described by Happy Jack should be a last resort rather than standard procedure.

[Happy Jack]

I should clarify that for a soldier, in a court- martial, reasonable doubt is the norm. However, other cases will allow for preponderance.

As the president is allowed to define the terms of military commissions, preponderance would be a step up from "probative value", which is what he wants.

I should also add that the limited case law appears to make this contingent on congressional authority (war declaration). The Patriot Act may have some limits on Bush's authority, which would explain why Graham's amendment explicitly denies habeus corpus.

[Jason Ligon]

I'm fine with a UCMJ type approach. Obvously, the actual UCMJ as a code of law wouldn't work, but procedurally, that is more or less what I'd envisioned the tribunal rules of conduct to be. I would add to preponderance of evidence an available option for an extended holding timeframe to allow tactical and or strategic situations to change.

I would argue for the necessity of a lower standard of proof that is consistently lower. Having a floating standard is asking for trouble in that consistent law and precedent can't really evolve along two distinct paths for the same people. What we are seeking to define is the in-between cases that result in conflict engaged in this particular way. Geneva doesn't apply and fully civilian procedure is inadequate. Let's just say that the Universal Code of Terrorist Justice (or whatever) applies to the gap cases we've found.

[thoreau]

What is "probative value", and how does it differ from "preponderance of evidence"?

How is the President allowed to define the terms for military commissions? I thought that military law was still subject to some kind of Congressional oversight? And I thought you said that cases are appealed to civilian judges?

Basically, what I'm looking for is a system that's independent of the President and forces the gov't to do a good job of proving its case. I thought that the idea of "preponderance of evidence" was that it's simply which ever side has the stronger case, while "reasonable doubt" could give a victory to the defense even if the prosecution's case was stronger (just not strong enough). If so, then reasonable doubt puts the burden on the gov't, and preponderance makes it a level playing field. So, wouldn't "probative value" put the burden on the defense?

I'm scared.

[thoreau]

Jason-

I read your post after responding to Happy Jack. In addition to my concerns over procedure, I also worry about how we'll decide which cases are subject to this lower standard. Under what circumstances would you say our ordinary procedures are inadequate? Before you answer, remember that Hillary Clinton is supposedly interested in being President some day.

[thoreau]

Final thought: The criterion for deciding who gets a regular trial and who gets something else should be better than "Well, we have evidence, just not enough to convict in a regular court."

[Jason Ligon]

thoreau:

US citizens get full constitutional protection.

Those captured in active conflict between uniformed armies get POW status and Geneva applies.

Those captured on US soil for acts that transpired on US soil get the US court system.

Those captured as part of military operations on foreign soil designed to interdict terrorists or others who engage in such tactics as to make Geneva inapplicable get the reduced evidenciary burden.

[The Wine Commonsewer]

SR, thanks for the info.

I had to get a writ once to get this crazy ass chick out of the looney bin that shoulda probably been left there.

So, did they abolish the writ of habeous corpus?

Scanned through the last 30 posts but didn't see if anyone mentioned the outcome of the vote.

[Happy Jack]

thoreau- I'm not saying that we have to strictly follow the court-martial model, just to use it as a framework for uncharted waters. We could be setting some bad precedents for years to come.

Probative value in this context means any evidence that provides proof. This would include confessions under torture, which obviously isn't allowed in a normal court. Preponderance is the standard of civil law.

A military court-martial does allow for civilian appeal. Preponderance would be used in an Article 15, minor stuff, and if you don't like the outcome you can request a court-martial, and then go to appeal.

The President gets his authority for commissions from Art. 21 of the UCMJ, as Commander-in-Chief. This power is delegated by Congress, so they should be able to write the rules under Art. 1 Sec. 8 of the Constitution. Whether they step up to the plate remains to be seen.

[Dave W.]

This is what the no-trial apologists kept insisting could not possibly happen. Will they now insist it's an isolated one?

They are probably worried about things like precedent aned PR and liability. Since I don't have many real facts to work with: here is a hypothetical:

Let's say enemy combatant X defends against charges by claiming that he was in uniform and part of a sufficiently regular fighting force such that he should be entitled to the protections of the Geneva convention. Furthermore, let's say X shows the inventory of his possessions and it includes a red headscarf with an emblem and Islamic badge he wore as a uniform. He describes the military training he received, to show that the fighting force was sufficiently regular.

In my hypothetical, let's say a judge buys into X's arguments (they might be correct for all I know -- I only got to see Walker Lindh after they laid the duct tape on him -- I didn't see pix of the rest of them at all -- it would be disturbing to me if revolutionaries could *never* be protected by Geneva Convention -- presumably there is some factual showing X could make on this).

Now imagine this hypothetical comes to pass. The US gov't would have the following new worries:

- bad PR for US
- X sues under Geneva Convention
- Belgium (or whoever) files war crimes charges
- every other prisoner defends on similar grounds, using X's case as precedent
- a veritable extravaganza of international lawyers suing the US civilly and criminally.

Now please bear in mind, this is just one plausibility that I came up with in 15 minutes thinking about it. There is probably a multitude of similarly ruinous outcomes the US is worried about.

[Dave W.]

Further to previous: In other words, Jennifer, the gov't isn't worried about ppl like Adel. Rather, it is worried about ppl like X. But if you start trying the Adel's then you have to start trying the X's too. That's where it gets sticky.

[Dave W.]

and, of course, they will never, ever, ever lay it out plain for you like I did just now. I am telling you what they are thinking and not saying.

[Hakluyt]

Jason Ligon,

Even those caught on U.S. soil don't get the U.S. courts. The eight Nazi sabotuers we caught on U.S. soil in WWII only got into a civil court upon the Supreme Court honoring their cert petition (which is obviously discretionary). Those caught on U.S. soil could very well go before a military tribunal just as the eight Nazi sabotuers did.

[Hakluyt]

Dave W.,

The Geneva Conventions don't provide for liability in that way. Belgium got rid of its universal jurisdiction law about a year or so ago.

Its basically up to the U.S. (and other signatories) to enforce the Geneva Conventions re: its own actions. The U.S. courts have continuously refused to take suits based on the Conventions, arguing that they need to take up their complaints with the President and the Congress. Don't look for the courts to change their mind.

[Hakluyt]

Happy Jack,

The Congress does have laws in place that deal with these issues and the Executive branch cites them when it discusses how it deals with people it detains.

[thoreau]

Jason-

What you propose seems reasonable. A lot of people will probably point out that what you propose is not necessarily mandated by law, but that's sort of the point: There are areas where the law does not provide clear guidance, so it's important to come up with laws to cover those gaps, rather than taking the government off its leash (and letting them put inmates on leashes instead).

Civilian courts for US citizens and people caught on US soil.

Geneva Conventions where applicable.

Military courts, with preponderance of evidence and civilian appellate courts, for everybody else.

It seems reasonable.

[thoreau]

One other thought:

Civilian trials might also be appropriate for foreign nationals extradited from friendly countries. Standards of evidence might be a problem if the person was captured in rural Pakistan without cooperation from local authorities (can't really subpoena witnesses), but a terrorism suspect captured by the French or Canadians is a somewhat different story.

What I'm worried about is the prospect of Canadian pot dealers being sent here for military trials. You can laugh if you want, but the Patriot Act was basically a Drug War wish list. Any step toward lower standards of evidence could easily become a tool for the Drug War.

[Hakluyt]

thoreau,

There are areas where the law does not provide clear guidance...

The guidance exists. Its more of an issue of whether they want to follow it or not.

Civilian trials might also be appropriate for foreign nationals extradited from friendly countries.

That's not your thought.

Standards of evidence might be a problem if the person was captured in rural Pakistan without cooperation from local authorities (can't really subpoena witnesses)...

If the Pakistanis captured him (which they invariably would since we're not supposed to operating on their side of the border) he'd be tried in a Pakistani court (like lots of them have been).

...but a terrorism suspect captured by the French...

The French don't extradite people to other countries. He'd be tried in France.

, but a terrorism suspect captured by the French or Canadians is a somewhat different story.

[Dave W.]

"Geneva Conventions don't provide for liability in that way." True, the evidence of violation of the Geneva convention would be used as evidence to prove things like intent level under some other body of law. The commonlaw tort of false imprisonment springs to mind.

Belgium: would bring back their old laws after Prisoner X won in a US court. It would be the zeitgeist thing to do at that future juncture. If you want to get pedantic about it: I initially said "Belgium or somebody else" to foreclose the exact objection you made, anyway. D'oh. Now I remember why I am not talking to you.

[Hakluyt]

Dave W.,

There is no one else. No other country has anything resembling what Belgium had. And your statement presumed that Belgium has such a law.

True, the evidence of violation of the Geneva convention would be used as evidence to prove things like intent level under some other body of law. The commonlaw tort of false imprisonment springs to mind.

The point is that its up to either the Congress or the Executive branches to deal with the issue. No court in the U.S. is going to take on such a charge and they have repeatedly stated so over the years at the district and circuit court levels. There is no right of action under the Geneva Conventions in other words.

[Hakluyt]

Dave W.,

See, in the U.S., before you can sue the government for something like a common law tort, you've got to have the permission of the government to do so. Last time I checked the various laws which waive S.I. none of them mentioned violations of the Geneva Convention and none of them mentioned the sort of fact patterns you are describing here.

You stopped responding to me because I disabuse you of the fantasy land you appear to be living in.

[Hakluyt]

Leave it to Dave W. to forget the concept of Sovereign Immunity. I mean really, who are they going to sue for false imprisonment? A high level executive branch official would be absolutely immune from suit. Anyone else would likely qualify for qualified immunity.

[Hakluyt]

So, let's recap:

The Geneva Conventions provide for no right to sue.

Any common law suit would be turned away under existing S.I. doctrine.

Now, what an individual could do is attempt to sue the government for a constitutional tort, or in a habeas corpus action. But they won't find any succor for such under the Geneva Conventions, they'll have to hang their hat on the text of the Constitution (or if they are claiming a violation of statute, something violates just plain old U.S. law).

[Dave W.]

Hak,
I never said Prisoner X would win. Patent lawyers know about so'vern 'mutiny. It comes up in our field, believe it or not. Whether Prisoner X would win his suit is pretty much irrelevant to the point I was making above about why there is so much mysterious resistance to trying ppl like Adel. That is the point I would like for you to focus on and assimilate.

[Hakluyt]

Dave W.,

Your basic point is that there would be bad P.R., but as a court wouldn't even entertain his claim, its not a likely worry. So its not even an issue of winning or not; its getting in the courthouse door to start with.

No, this is more likely a case of flat out confusion on the part of the bureaucrats. They are unsure as to how to deal with the issue so they dither. Its typical of bureaucracies.

[Hakluyt]

Dave W.,

There is a lot of literature (starting with Weber of course) on what happens to bureaucracies when they don't have clear marching orders, and this looks just like the sorts of problems associated with that issue.

[Hakluyt]

I'd imagine that a whole lot of mixed signals are coming out of the Executive branch on these issues, and that individuals like this are caught in the middle of this sort of bureaucratic morass. If one reads what Executive branch attorneys write on these matters (and thus suggest to the President) it becomes very clear that they don't really speak with one mind and that neither Bush nor Rumsfeld have given them any clear marching orders or given any to those in charge of these programs. What they do seem determined to do is this though - make their own policy (eventually) on their own. The overriding point in their minds in other words seems to be enhancing the powers of the President when it comes to detentions like this and making such powers independent of the other branches.

[Hakluyt]

In both the Hamdi and Padilla briefs their claim of exclusive control in these areas was oozing out everywhere. Such claims of exclusive Executive power control in the area of national defense and foreign policy are what I found most troubling, though the Bush administration is hardly the first Presidency to make such outrageous claims.

[Dave W.]

Hak,

If they let Adel out and he brings a lawsuit, then you owe me a coke (whether Adel wins or loses). So'vern 'mutiny or no, if there is a release of all the innocent and other wrongfully held prisoners, pro bono lawyers will be hired, suits will be brought and the world will think substantially less of American justice. That is true regardless of the details.

You seem to like so'vern 'mutiny a lot. Maybe it is time to see what the rest of the world really thinks about this doctrine and its consequences. Let the lawsuits begin: may the party most respectful of other soverns win. This is why Adel is gonna stay put for a bit.

[Hakluyt]

Dave W.,

Heh. I don't recall entering a bet with you. I put it down to plain old bureaucratic confusion based on crappy signals out of the WH.

[Hakluyt]

Dave W.,

You seem to like so'vern 'mutiny a lot.

I don't like or dislike it. It just exists. I have to deal with the law the way it is.

Maybe it is time to see what the rest of the world really thinks about this doctrine and its consequences.

Well, the rest of the world practices some form of it, so they'd be hypocrites if they criticized our use of it.

[SR]

"Thanks for the cite, SR. What rebellion or invasion have we suffered?"

In my opinion, none, but I've seen those who would argue for the suspension say that 9/11 constituted an "invasion".

[Ken Shultz]

Well there was the War of 1812.