Terrorist Plot Foiled In D.C., or, Dr. Thoreau's Combustible Constitutional Conundrum

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Everybody's favorite commenter Professor Thoreau has a thought experiment related to today's news of the foiled abortion clinic bombing in D.C. From the Washington Post:

So on Sunday, more than a week after their 25-year-old son disappeared from their home and stopped returning their calls, [Robert Weiler Sr.] and his wife, Catherine, called Prince George's County police to report their suspicions, he said. That tip led to their son's arrest—but not until more than three days later. Police, he said, "sent two officers out to interview us and took our statement, and then we heard nothing back from them."

"In frustration, I contacted the FBI on Monday, and again I heard nothing back," said Weiler, 49, an administrator at the National Naval Medical Center in Bethesda.

Weiler said it appeared to him that the investigation did not move significantly until Wednesday, when agents from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives arrived at his home in Forestville for a six-hour visit.

Early Thursday, Robert Weiler Jr. was taken into custody at a rest stop in Western Maryland. By dawn, the pipe bomb he allegedly built and stored at a friend's house in the Riverdale Heights area had been partially detonated by bomb squad technicians working to disarm it.

Asks Thoreau:

A lot of Hit and Run commenters have argued that when ideological fanatics are planning to kill civilians we can't afford to utilize the normal procedures of the justice system. I'm wondering what they think the appropriate course of action would be in this case. And whether they would have given the same answer if the plot had involved a young Muslim planning to set off a bomb in a mall instead of a guy from a Catholic family planning to bomb an abortion clinic.

I would say Thoreau, Dr. of Thinkology, is setting up a little bit of a straw man, or at least I wouldn't say many Hit and Run commenters have made this argument. I'd say, newfangled constitution is not a suicide pact believers are not numerous, in either numbers or percentages, among the commenters, and for that I thank God, the Academy, and you, the Fabulous Little People.

However, as a conversation starter, I'll hazard a general reply: I believe Weiler Jr. should get a fair trial in open court, and I believe a young Muslim caught under similar circumstances should get the same; however, I think the two cases are different because Islamist Terrorism is a unique threat to our country and our people, and it will take more than the fifth anniversary of 9/11, and possibly even the 25th anniversary of 9/11, to persuade me to change that belief. (Does that make me the constitution is not a suicide pact believer? Discuss.)

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  1. “Islamist Terrorism is a unique threat to our country and our people”

    If by “unique threat” you mean “a threat orders of magnitude less severe than that posed by the Soviet Union and only marginally more severe than the risk of death from an allergic reaction to bee stings” I agree.

  2. I would say Thoreau, Dr. of Thinkology, is setting up a little bit of a straw man, or at least I wouldn’t say many Hit and Run commenters have made this argument.

    I’ve seen more than one person here use that very argument to explain why we can’t hold trials for the Gitmo guys (three of whom just committed suicide, by the way), why Jose Padilla doesn’t deserve a trial, and so forth. “Nine-eleven changed everything! Blah blah blah.” I wish Thoreau’s contention were a strawman.

  3. Agreed, but as I said, I think they’re far outnumbered by people of the law.

  4. I think a dozen weirdbeards got really lucky on 9/11 and it’s unlikely to be repeated. (If so, why hasn’t it happened yet? They don’t seem to be able to pull off something easy like snipers or suicide bombers over here). The fact that the Pentagon was focused on missile defense and the FBI on internet porn helped.

    You’re going to die of cancer, heart disease, car accident, plane accident, lightning, shower/toilet/bathtub accident, dog attack, pretty much anything before the terrorists get you.

  5. Islamist Terrorism is a unique threat to our country and our people

    Unique threat of what? On a per capita basis, I don’t think the 9-11 highjackers got any more than McVeigh did (assuming McVeigh really did it and assuming he acted alone). How are Islamic terrorists different than McVeigh? Discuss Tim, Tim, discuss.

  6. However, I think the two cases are different because Islamist Terrorism is a unique threat to our country and our people…

    Assuming Weiler was religiously motivated (and he undoubtedly was), how is this case any different from Islamic terrorism? Both are religious fanatics violently imposing their will on others. The only real difference is the book they read.

  7. I thank God, the Academy, and you, the Fabulous Little People.

    I feel like a leprechaun

  8. Besides McVeigh there is the IRA, which I take it is something of a terrorism success story.

    Just not getting the “uniqueness” aspect of Islamic terrorism.

    Is it the anti-semitism?

  9. McVeigh was pretty anti-semitic, right? Wasn’t he reading the Turner Diaries and that screed about the elders of Zion or whatever?

  10. Tim-

    As I think about it, you’re right that there have been relatively few people who come out and say that we can’t afford the luxury of due process and so forth. However, there’s a somewhat larger contingent that has, at least in the past, been remarkably sympathetic to the government’s legal arguments. Whenever the government doesn’t want to put somebody in a courtroom you can count on a number of people to say that this is a perfectly fine decision because terrorists don’t get trials and so forth.

    My response has always been to grant, for the sake of argument, their interpretation of the law and instead focus on the prudence of the action. Let’s say, for the sake of argument, that there is no Constitutional provision, statute, treaty, court ruling, or other legally binding thing (call it what you will) that gives [insert detainee here] the right to a trial. OK, great. Isn’t it, nonetheless, a very bad idea to take the executive branch at its word? Wouldn’t it be better if the executive branch put these people on trial so that the allegations could be reviewed by some independent authority? Even if the law doesn’t require it, perhaps we could look at the trial as a magnanimous act by the benevolent executive branch.

    When I’ve made that argument in the past I’ve found that a significant number of people are more interested in reminding me that this is all (supposedly) perfectly legal, and they are less interested in discussing the prudence of this (allegedly) perfectly legal action.

    So, I ask again: To those who are willing to trust the executive branch when it accuses a person of being a violent religious fanatic with plans to kill US citizens on US soil, what do you think about putting this guy on trial? And would your answer be any different if he were a Muslim?

  11. “I believe Weiler Jr. should get a fair trial in open court, and I believe a young Muslim caught under similar circumstances should get the same; however, I think the two cases are different because Islamist Terrorism is a unique threat to our country and our people…”

    Tim, you state that the two cases are different, yet you apply the same level of legal protection as well as the same quality of legal process to both.

    From a legal standpoint, then, what is the difference?

  12. McVeigh does seem to have been kind of confused about why he did the bombing.

    Part of what makes me wonder if it was him.

  13. Thoreau fancies himself to be a measured voice of calm insight around here. It’s hilarious to watch. He generally should be ignored, and definitely not described as “Dr. of Thinkology.” There are lots of strong thinkers at this blog; Thoreau’s demeanor is a frikkin affectation.

  14. I don’t fancy myself to be that calm. And “Doctor of Thinkology” is something that Tim came up with on his own. You’ll have to ask him why he used that phrase. I certainly didn’t suggest it to him, nor would I want the phrase to catch on. I find it kind of embarrassing, but it’s Tim’s blog and he can write what he wants.

  15. Maybe the uniqueness Tim is driving at is that Islamic terrorists are more likely to be funded and encouraged by foreign sources, sources outside the jurisdiction of US courts.

    Maybe some due process otherwise available has to give way because of that. I’d be more sympathetic if the authorities seemed inclined to actually pursue this angle. Cf:

    http://www.foxnews.com/story/0,2933,93139,00.html

    http://www.guardian.co.uk/comment/story/0,,1266317,00.html

  16. Tim is right. Few people have argued from that position. However, the few people that have done so have been quite adament in their belief and created a lot of heat in the process, thus making it seem as if there is a large crowd of folks in favor of the “don’t use normal legal procedures” position.

  17. Maybe the uniqueness Tim is driving at is that Islamic terrorists are more likely to be funded and encouraged by foreign sources, sources outside the jurisdiction of US courts.

    So, the biggest difference in your view is that it would be harder to sue the deep pockets behind an Islamic terrorist group. If anybody here would catch that distinction it would be you 🙂

    Here’s the thing: How many deep pockets are there behind domestic terrorist groups? A lot of domestic terrorists have been people with relatively mundane day jobs, or losers with very little money (e.g. the guy in this article, who worked at Pizza Hut and stole a little bit from his middle class parents). There is no domestic equivalent of Saudi oil money behind some of the domestic terror groups.

    So, the foreign terrorists sometimes have deep pockets but the pockets are harder to reach (maybe not impossible, but definitely harder), while the domestic terrorists tend to have shallow pockets. In practical terms, the difference seems to be small: It will be tough to get much cash either way.

  18. So, the biggest difference in your view is that it would be harder to sue the deep pockets behind an Islamic terrorist group. If anybody here would catch that distinction it would be you 🙂

    I wasn’t thinking of civil suits against foreign terrorists. I think you can tell by reading the links I provided what I think the antiterrorism authorities should be doing but are not.

    The connection is more of a Constitutional one. The Constitution defines the rights of the government vis-a-vis the people. The document is not a suicide pact because it does give the goverment considerable power, setting limits on the powr thatwere thought to be consistent, as a practical matter, with having a civilized society. SCOTUS thinks the same way when it interprets the Bill of Rights or the 14th amendment, balancing individual rights with the idea that you can’t make it too easy for criminals by giving them too many rights.

    When the terrorists are coming from faraway places, it makes it a lot harder for police to catch the criminals before the crimes (in this case Islamic terrorism happens). So, I can see room for an argument that criminals who have help from foreign sources need to have less rights to give law enforcement any chance of maintaining a decent balance between crime and individual rights. In other words, in the US, when you are caught, the police can execute search warrants on your criminal associates and arrest them, too. That is a lot harder if your $100,000 of terror-bucks came from Pakistan or Saudi Arabia or Germany.

    I am arguing that Islamic terrorists are not categorically different from other terrorists, as Tim would have it, but that foreign funded terrorists are somewhat Constitutionally different from homegrown.

    b4 thinks I have become a copluver here: I don’t think that the government should be able to argue that foreign funded terrorists have fewer rights, unless and until they get more serious about exposing and quashing terrorist funding from foreign sources. Torture is the lazy (and) ineffective substitute for actually giving a damn about the foreign funding Islamic terrorists receive.

  19. I predict that those who have in the past insisted that accused terrorists don’t deserve trials or any other such rights will stay the hell away from this thread.

  20. Agreed, but as I said, I think they’re far outnumbered by people of the law.

    There are regular commenters, opponents, commenters via instalanche, et. al. and then there’s the American people.

    I suspect the American people and commenters via instalanche are more in synch than most of us would like them to be, which is why the President probably feels confident about having Congressional hearings on whether he should be able to authorize listening in on phone calls without regard to the law or the Constitution, etc. I suspect the average American, much like the average instalanche commenter, also doesn’t care much about due process, extraordinary rendition, prohibitions against torture in ticking time bomb scenarios or probable cause, so long as it’s pitched as protecting us from terror.

    Then there’s the opponents. I remember one opponent once suggested that Jennifer, joe and me must have signed a treaty to always comment in support of each other–I thought the statement was ridiculous. …I can’t think of two regulars I disagree with more often. An opponent once suggested that Gary Gunnels, joe, thoreau and me must work out automatic joint responses. …how often do we all agree? I remember a certain anti-immigrant semi-regular seemed to think the four of us were all the same person posting under different names!

    Although we clearly see differences among ourselves, I think Tim’s right that the regular commenters here are more or less in synch with each other, particularly in regards to Constitution as Death Pact issues. …and it seems that our opponents, even those who have seen us in action for a while, tend to group us all together that way. The Constitution is not a death pact–how many regulars disagree with that statement? How many of us see it as emblamatic?

    …even if I think Jennifer is flat wrong on any one of a dozen economic issues, she’s closer to my position, I’d guess, than 90% of the American people who agree with me on economic issues. Ditto for joe–even if he doesn’t self-identify as libertarian; I say we claim him anyway–you can only swim in these waters for so long without getting infected.

  21. I think Thoreau is correct is pointing out
    that for a lot of people there is a
    double-standard for domestic versus
    islamic terrorists. Here’s another example:

    http://www.commondreams.org/headlines04/0107-03.htm

    “Much of the criticism has come on Internet Web logs, known as “blogs.” People who operate the websites, or “bloggers,” have seized on the Krar case and what they perceive as the inattention it received from the Bush administration and major media.”

    “The fault, critics say, lies not with law enforcement officers, whom they believe prevented a deadly plot from developing. Instead, they say, the fault lies with an administration that adheres too closely to a script.”

  22. Islamist terrorism is seen as a unique threat because people apply the following simplistic formula (explicity, implicitly, or unconsciously):

    9/11 x 1-billion Muslims in world = true size of threat

  23. think a dozen weirdbeards got really lucky on 9/11 and it’s unlikely to be repeated.

    DON’T SAY THAT!

    If 9-11 really was a one-in-a-million shot that would in all likelihood never happen again, then how can we scare the people into supporting quasi-police state tactics and immoral military conquests?

    Don’t say it… even if it’s true.

  24. That there are more Islamist terrorists than militia/white power/anti-government terrorist, or communist terrorists, or, heh, pro-life terrorists, at this moment in time doesn’t make the threat they pose unique.

    There’s a quantitative difference to be sure, which has some operational relevance, but that doesn’t make the threat unique.

    Ken, I consider myself an on-again-off-again sympathizer. At most.

  25. I don’t think this is any more confusing than the question of when the military should be used instead of the police. The only way to deter bad people from doing bad things is to give them some reason to believe that they will fail and pay a steep price.

    A notable distinction between a fellow operating in Afghanistan and one operating on domestic soil is that there is no practical way to employ law enforcement methodologies in Afghanistan. You can’t just stroll into a warlord encampment with a bobby hat and night stick and demand answers.

    The law enforcement mechanisms and many of the rights we associate with criminal law exist within a context where those things can work. The burden of proof requirements have to be different when operating outside of that context. A police officer is rightly constrained when facing a gang member in cuffs who says he wants to kill a cop. The cop submits the guy to the system and the system has to deal with him.

    I’m not shy whatsoever about saying that a military officer in hostile territory needs the ability to make a call when an unconfirmed jihadi says he wants to kill Americans. That guy may find himself in a hole and with substantially lesser rights. He may not get out of that hole until combat operations cease.

    I’m uncomfortable that we have no formal standard on how long that can be in a perpetual undeclared war, and I fully support creating some law there. I will say, though, that the standard should rightly be nowhere near parity with a domestic criminal.

    That is my practical answer. My philosophical answer has to do with citizenship. You can’t treat everyone in the world as equal citizens under American law because they aren’t under American law. I’ll have to flush that out a bit, but there you go.

  26. hogan and MacKenzie seem to be headed where I want to head.
    As an anarchist, I’ve never been enamored of the Constitution.
    I’d like to see a thought experiment about how anarchy has a tendency to nip aberrant plots in the bud.

    Anarchy, over time, would be so dull, I wonder if that is not what frightens people about it.
    In other words, we may need leaders and government more as gossip/excitement-generators than as leaders and governors.

  27. Wow. I find myself in frightening agreement with Dave W …

  28. What makes Islamic terrorism unique is the vast network of state and non-state, domestic and non-domestic actors facilitating and/or advocating these sorts of plots.

    If you grab a lone nut trying to bomb an abortion clinic, the only point of torturing him would be for revenge. If you nab a member of Al Qaeda it’s a different scenario.

    Now don’t read that to mean that I advocate such actions, but there is a difference in the two scenarios.

    And the threat is unique. An abortion clinic bomber isn’t likely to try and use a dirty bomb or a biological weapon because his goal isn’t to terrorize the public as a whole, but simply the doctors, nurses, volunteers and patients of abortion clinics. Again their lives are just as important, but still the threat of Islamic terrorists is more random and therefore unique.

    The unique part of Islamic terrorism is that they seem to be concerned with causing random death and mayhem. It’s uniqueness is its lack of specifics. Everybody, everywhere is a potential target, people are protected only by the practicalities of population density.

    If McVeigh had the opportunity to kill 80% of the United States, would he? If your average Al Qaeda terrorist had the same opportunity, would he?

    Pretending Islamic Terrorism is equivalent to bee stings does libertarianism no favors at all and is a good way to continue to marginalize those principles at the polls. There’s more to the threat of Islamic Terrorism as to how many people they’ve killed so far, it’s the psychological effect of the American public seeing 3,000 fellow office workers die live on National TV. It’s not the current realities, its the possibilities that frighten.

    For libertarians to dismiss those possibilities instead of address them is both stupid and counterproductive. Who do you want addressing the potential for catastrophes due to terrorism? A libertarian who will use every tool under the law to fight them, or people for whom the law is an inconvenience and will destroy the country trying to save it?

  29. We can’t afford the luxury of due process!

    How much does undue process cost?

  30. I predict that those who have in the past insisted that accused terrorists don’t deserve trials or any other such rights will stay the hell away from this thread.

    I think in the past I have defended the president on the grounds that the constitution does give him the power to do something like listen to phone calls between the US and another county without a warrent.

    I am still formulating if I think this is a good idea or not…but I am certian that it is legal constitutionaly…and FISA is trumped by constitutional presidential powers.

  31. I’ll go further:
    The government of the US generated the “excitement” of 9/11.
    Most people know in their hearts I’m right.
    One of the many problems of government is that we remain stuck with it to solve the problems it creates.
    That would obviously not be the case, if anarchy prevailed.
    The War on Drugs is another example. It both creates the problem and is assigned to solve it. Conflict of interest, at the least.

  32. Would it be terrible to say that the safety of american citizens trump the constitutional rights of non-US citizens outside the boarders of the US?

  33. Lighten up, people. I called Thoreau a Doktor of Thinkology because he’s an out-of-the-closet holder of a Ph.D. I meant no offense, and I hereby set the record straight: Thoreau is not a Doctor of Thinkology; the Scarecrow is.

  34. “The government of the US generated the “excitement” of 9/11.”

    Are you out of your mind? Do you know what the average American’s reaction is to seeing a plane smash into a building, or to seeing a skyscraper collapse when you know there are at least hundreds of people still inside? For real like, not in the movies.

    Again this “no big deal” reaction of some libertarians is a completely useless attitude because I guarantee you it is not one shared by a mjority of Americans, and I think very little of that comes from government playing up the attack.

    People ask what the Libertarian Party can do to be more competitive in elections. If this represents the party’s general reaction to terrorism, what makes anyone think the party _deserves_ to do better in elections? Be serious for a second.

  35. If there is one thing I learned here it is that one must never mock T. It makes everybody wary & angry. T. remains an exceptional learner.

  36. “What makes Islamic terrorism unique is the vast network of state and non-state, domestic and non-domestic actors facilitating and/or advocating these sorts of plots.”

    No different than the Soviet Union and International Communism: 1920-1989. During the 1920s and ’30s in particular, literally millions of Americans joined organizations that either were openly pro-Soviet or whose leadership was under direct Soviet influence.

  37. Are you out of your mind? Do you know what the average American’s reaction is to seeing a plane smash into a building, or to seeing a skyscraper collapse when you know there are at least hundreds of people still inside? For real like, not in the movies

    and if the media could show all the daily car wrecks or heart attacks or people with big tumors, then we would be excited about those things instead.

    Don’t be so complaisant about media manipulation, Again. Your fears are not rational.

  38. Yeah, you don’t want to cross the T.
    😉

  39. Ph.D level comenntary my ass…he hasn’t told us jack shit about lasers or contact lenses or fiber optics.

    Hey T should i get eye surgary to correct my stigmatism or should i wait for something that is comming down the pipe?

  40. Again,
    I’m not “shocked and awed” by “their” “shock and awe,” just as “they” were not “shocked and awed” by our “shock and awe.”
    And, if you want to be “serious,” you have come to the wrong blog.

    And, hey, give up on the Librarian Party already.

  41. “Your fears are not rational.”

    Whose are? Human beings are not Vulcans. The irrational is a daily part of life for all of us. Events with similar outcomes affect us differently even if rationally the results are the same.

    The reality is that those things you mention are things that happen, not things that are perpetrated like 9/11. The effect that has on our pysches is profoundly different.

    More to the point, we fight things like car accidents, heart attacks and tumors every day of the week. We buy auto insurance and health insurance. We wear seatbelts and decide not to smoke or decide to quit. Car companies invent airbags and crumple zones. We develop alternate types of heart surgeries to bypasses: angiograms and angioplasties to clear out clogged arteries. We arrest drivers for driving while under the influence. We spend billions on cancer research, and millions of Americans participate in walk-a-thons and other fundraisers to fight deadly diseases.

    And by the same token, all sorts of advocates for those causes try and bend and break our laws in service of them all the time. Banning smoking in public spaces, random sobreity checks on holidays, all sorts of nanny-state proposals to regulate the fast-food industry.

    What, exactly, makes you think people _aren’t excited about those things? _You_ be rational and concede that when 3,000 Americans are purposefully massacred all at once by someone, that maybe our Government ought to take an interest in this event, or else there’s little use of having a government.

    If Greece launched a missile attack against the Pentagon, it is the responisibility of this government to deal with that action for what it was: an open act of war. It would be well within our government’s rights to hold Greece responsible for such an action. Why then is a similar but more brutal attack similar to “bee stings” just because it happened to be perpertrated by non-state actors?

    If you are so anti-confrontation that you can’t find the will to fight this group of loony-toons after they committed a murderous attack on thousands of civilians, then who exactly are you prepared to fight? Canada?

    If your an anarchist, just say so.

  42. I think I’m in the “Constitution is not a suicide pact” camp at least to the extent that I am willing to abide some temporary measures in an emergency situation that I would not abide otherwise. Thus, depending on the nature of the threat, I have had no problem, per se, with holding terrorist suspects longer for security and intelligence purposes than I would otherwise deem proper.

    On the other hand, having long argued that the measures taken in response to 9/11 have been more dangerous than the threat from Islamist terrorism itself, I certainly want judicial review of the exercise of executive power. For that matter, it would be nice to see a little more backbone from the legislative branch on that front. And while I understand the arguments regarding how citizenship and the location of capture, etc., may matter from a purely legal point of view, I would prefer insisting on certain minimum rights and due process to anyone captured and detained by the U.S. regardless of such circumstances. I think this is not only the right thing to do morally but prudentially as well — the world should see the U.S. acting better than its enemies even when some of those enemies take that as a sign of weakness.

    Still, and even given my remarks about the overreaction to 9/11, I think the example is a strawman insofar as the threat posed by the occasional anti-abortion fanatic is vastly lower than the likely threat of international Islamist terrorism. If the threat were the same, all relevant factors considered, then the reaction should be the same. Frankly, however, talk of distinguishing the two in terms of ethnicity or religion is simply insulting.

  43. Dave W,
    The job of the media is to present what’s new and different: “man bites dog.”

    The media is not likely to cover Librarians… even their parties.

    We need a thought experiment to discover what the media would cover in an anarchic world.
    Come to think of it, blogs are how and what media cover in an anarchic world.

    Ever the optimist am I! Begosh and begorrah!

  44. “If your an anarchist, just say so.”

    Anarchist is just another word for not knowing who to fight.

  45. I see some difference between the two types of bombers. The attempted abortion bomber may feel his actions are on behalf of the society in which he lives, rather than against it. He is protecting unborn citizens of his country by killing their potential murderers. The kill-an-American-for-allah bomber is trying to amass a body count, potentially including people who may be sympathetic to his cause, to pressure our government to change its ways. This would be closer to, as an example, the anti-abortion bomber killing the abortion doctor’s wife, or closer yet, killing a random swath of society, in an effort to persuade the doctor or government law-makers to quit killing babies.

    Maybe not a huge difference, but also not a “distintion without a difference”.

  46. “Anarchist is just another word for not knowing who to fight.”

    Or for someone who failed history class.

  47. Again,

    “If you grab a lone nut trying to bomb an abortion clinic, the only point of torturing him would be for revenge. If you nab a member of Al Qaeda it’s a different scenario.”

    How do you know the guy with picture of the Pope next to his ammonium bomb is a Lone nut?

    How do you know Ali with the same ammonium bomb is part of Al Qaeda?

    The Madrid bombers, the LAX shooter, and the London bombers were all homegrown self-starters.

  48. The reality is that those things you mention are things that happen, not things that are perpetrated like 9/11. The effect that has on our pysches is profoundly different.

    Yeah, this is exactly the attitude I am advising you to get over. Just because the terrorist attacks got 3000 people so quickly does not make it any more probabilistically harmful to you or your family’s life than dangerous phenomena that take a month or even a year to claim 3,000. The great time density of the deaths on 9-11 is playing tricks on your psyche and you need your conscious mind to overcome your emotions here.

  49. Jason Ligon,

    I don’t like your phrase “hostile territory.” How many times have we been told in the last four and a half years that “the battlefield in everywhere?” There’s the battlefield, and there’s civilization. Think of what a soldier on a battlefield can do to a civilian he stumbles across – negligent homicide doesn’t exist even in theory in that situation. Is that how security personnel should be authorized treat Americans in their home towns? Outside of some very limited circumstances for very limited times, I say no.

    We should not let the government act in our neighborhoods as if they are a battlefield, unless they actually are a battlefield.

  50. “Anarchist is just another word for not knowing who to fight.”

    Or for someone who failed history class.
    …..
    My bon mot was so good, Again, I’m now doing, not again, but it in triplicate.

    (Should I have said “whom” to fight?)

  51. Here comes ORLY the Owl and he has a news bulletin for bigbigslacker:

    http://www.timesonline.co.uk/article/0,,2089-2220200,00.html

  52. Jason-

    I largely agree that we may need somewhat different approaches when a suspected terrorist is nabbed in an area where the local authorities are some mixture of corrupt and/or incompetent and/or in cahoots with the terrorists. I would still say that the approach should be something other than letting the executive branch do whatever it wants. I would still insist that the case be heard by an independent tribunal, a tribunal composed of people who don’t take orders from the President, i.e. an independent judiciary. I would like to see that tribunal abide by laws that Congress wrote, not executive orders. To do anything else is simply too dangerous. No branch of government should be able to operate with complete autonomy when it makes accusations against a person.

    It would be tempting to say that the geographical considerations would be sufficient protection: This won’t apply to John Q. Protestor because John Q. Protestor is marching in downtown DC, not in rural Pakistan. But then I think of guys like Khaled El Masri, an innocent German who got caught up in some snafu involving mistaken identity, and found himself forcibly removed from a very lawful European country (one where local authorities were very cooperative with the CIA), and sent to a US prison in Afghanistan. In that prison his captors pointed out to him that he is in a country with no laws and hence he is at their mercy. Then they tortured him.

    That should give us pause: If we are going to relax certain standards when activities (allegedly) happen in a lawless area, well, don’t be surprised if government employees rub their hands in glee. How hard would it be for John Q. Protestor to be nabbed when vacationing in Toronto or Cancun because his name is similar to that of a person on the No Fly List? And then he’s sent off to a land with no laws. Remember, the No Fly List isn’t limited to names like “Khaled El Masri.” It also includes names similar to “Robert Weiler” and “Eric Rudolph”. And you just happen to be a gun owner who (presumably) doesn’t like the IRS…

    So I’m forced to conclude that we need more than geography to protect us from government employees taking certain liberties. We need review by an independent branch of government, even if the alleged activities do happen in rural Pakistan or whatever. If Khaled El Masri had been given the chance to talk to somebody in a different chain of command than the CIA agent handling his case, he might have been able to demonstrate that it was a case of mistaken identity before the torture commenced.

    And as long as we’re talking about lawless areas, there’s a very lawless area just south of our border. Mexican cops are a mixture of corrupt and incompetent and complicit in all sorts of criminal activities. Hell, there’s a steady stream of people trying to get the hell away from that lawlessness and participate in the wealth creation that becomes easier when you live under the rule of law.

    So, how hard would it be to allege that somebody was involved in activities in Mexico?

    As far as war zones:

    In war zones, I would normally be comfortable with doing this according to the relevant treaties and long-standing rules of war (including the rules that enemies not in uniform have far less protection). I would be comfortable with that if this was a war with a very concrete objective and therefore a forseeable endpoint. But, as you point out:

    I’m uncomfortable that we have no formal standard on how long that can be in a perpetual undeclared war…

    We don’t know when this war will end. We don’t even really know what the metric for an identifiable victory will be.

    Bottom line: History shows that government employees with no leash can kill at least as many people as terrorists. Some of them even fund terrorists.

  53. joe made a much shorter version of the point that I was trying to make:

    All of the distinctions that Jason wants to draw would be nice if our leaders weren’t busy trying to blur these distinctions. I’d be fine with doing what Jason wants to do if Jason were the one doing it. But Jason isn’t the one who will do it. This will be done by a guy who thinks that the Constitution only applies if the decider says so, and he’s being checked and balanced by a Congress that thinks interstate commerce is a blank check. (After all, those blank pieces of paper were produced at a paper mill in one state and then cut into pieces and bound into a book of blank checks in another state…)

    This is all way too convenient. We need to insist on the full participation of all 3 branches, rather than approve of limits being loosened when they assure us that it was a “special case.”

  54. Finally, to get back to the original subject:

    We should note that the government has captured a guy who certainly appears to be a dangerous terrorist. They did it while obeying the law. He will be tried in a court of law, and if he is unable to establish reasonable doubt about the charges then he will certainly go to prison for a long time, and he will remain there unless he can provide an appellate court with evidence that he was wrongly convicted. Thus far we have every reason to believe that the system will be adequate to this task, one way or the other.

    Given that the system seems adequate thus far, it’s worth examining the analogies between this and other scenarios that might confront us: Just as this guy apparently belonged to a group of guys with some sort of violent ideology, what if some young Muslim men on US soil, acting as a self-contained unit with no direction from overseas, plan a bombing? What should we do?

    Note that getting ideological inspiration from angry preachers over the web isn’t the same as getting money, orders, and operational instructions from a leader in a foreign land. Hell, for all we know, Robert Weiler might have communicated with skinheads in Europe. (The article mentions that some of his associates had been convicted of spray-painting racist graffiti.)

    Also, I don’t know to what extent Weiler used electronic communications, but I don’t see any reason to think that indiscriminate wiretaps would have been necessary in this case. He was on the radar as associating with known criminals and radicals. If investigators had taken an interest in him (before his father reported him) I’m guessing that it would have been pretty easy to get enough evidence for a warrant.

    If he and his friends hadn’t been on the radar, is there any evidence that he would have raised red flags in some sort of pattern analysis? A bunch of young men calling each other on the phone and emailing regularly doesn’t mean much. They could be a terrorist cell, or they could just be friends. The only reason to single them out would be if they were already on the radar for some other reason (e.g. he stole from his parents, his friends were convicted criminals and known radicals, etc.).

    I look at this case, and I see a terrorist who was thwarted because somebody ratted on him. I don’t see how tapping every phone in the US would have been useful. And I don’t see any reason to cut corners on procedures now that he’s in custody.

    And looking at the death of Zarqawi, it appears that he was also found by good old-fasioned detective work rather than some indiscriminate method.

    The lessons of the past few days suggest to me that terrorists, both at home and abroad, will most likely be thwarted by a combination of informants and old-fashioned detective work. Which raises certain questions about the things that our government has been proposing lately.

  55. “Why then is a similar but more brutal attack similar to ‘bee stings’ just because it happened to be perpertrated by non-state actors?”

    It’s similar to bee stings in terms of the probability of being killed by it. Excluding 9/11, the average American was at least a couple times more likely to be killed by a bee sting in a given year than by a terrorist. Even counting 9/11 in the figures (which is questionable under statistical principles, where you often discard a single number that is vastly out of scale with all other figures in the dataset), the average American is still more likely to die in an animal attack than a terrorist attack.

  56. Hmm, I know that drug lords are often extradited to the US and tried. Some of them operated in lawless areas. And yet the prosecution is able to establish guilt beyond a reasonable doubt.

    I never thought that I’d point to the War on Drugs as proof that due process is possible. I think I need to get some sleep.

  57. This will be done by a guy who thinks that the Constitution only applies if the decider says so.

    yeah I don’t get this…from any sort of historical presedance what Bush is doing is fairly small potatos…simply stateing such things as japanese internment or the actions of Johnson for equal rights (the out come I agree with) shows a far greater flaunting of constitutional restarant on the power of government and the executive branch.

    And even when looked at in constitutional terms most of the rules Bush is breakeing are extra constitutional in nature. FISA, Geneva convention, UN etc. I mean i agree in substance that I disagree with many of actions his administration has taken but you really have not made or anyone on this board made a remotly convincing arguement that he has surpassed constitutional restraints.

    Just yelling at the echo chamber Unconstitutional unconstitutional uncosntitutional just not make it unconstitutional

  58. We need a thought experiment to discover what the media would cover in an anarchic world.
    Come to think of it, blogs are how and what media cover in an anarchic world.

    How I interpret this, wrongly or rightly, is that we already live in an anarchic world. Man is a wild animal living in the natrual world as it were.

    I like ruthless, the world is better for that he exists.

  59. thoreau,

    Your analysis of the historical record is flawed. Ask yourself, what were the responses to those incidents that you detail? Indeed, your commentary is at best self-fisking if you are indeed trying to defend modern day concepts of due process, liberty, etc. How so? Because the responses to those incidents were far more radical, vicious, etc. than anything the Bush administration has done.* Thus the argument could easily be made that anything short of those responses is fine. After all, if you are going to use as examples events which the Republic survived, then you have to take into account the responses to those events and take seriously the claims that those responses helped the Republic survive. In the future, for the sake of us all (after all, any argument you might make might sway someone who ends up making a decision which effects all of our liberty), don’t use that argument again.

    *Note that I am not defending the Bush administration here.

  60. Well I guess I have to say that anyone who thinks, “the Constitution is not a suicide pact”, should read it that way anyhow. That kind of argument is used to justify the unjustifiable. The Constitution is not a suicide pact because carrying out due process, and upholding the rights of the people, can only make us stronger, and could never result in the demise of the Republic. Indeed, by ignoring the Constitution we have placed ourselves and our posterity in greater peril.

  61. Some people need to read the following words carefully:

    I’d say, newfangled constitution is not a suicide pact believers…

  62. joe and T:

    Regarding your concerns about war zones or my use of the term ‘hostile territory’. I understand those terms to refer to any area outside of the United States in which the US military has been deployed for the purposes, presumably, of killing people and breaking things.

    There is no war zone within the United States barring some truly exceptional circumstances. Just ask yourself when the military can be deployed with orders to harm US citizens.

    “”And looking at the death of Zarqawi, it appears that he was also found by good old-fasioned detective work rather than some indiscriminate method.

    The lessons of the past few days suggest to me that terrorists, both at home and abroad, will most likely be thwarted by a combination of informants and old-fashioned detective work.”

    No offense, but did it escape you that based on informant information, we dropped 1,000lbs of ordinance on the guy’s house? What sort of detective work do you suppose was done here? Do you think we could have prosecuted the guy with the evidence we had? Where was his lawyer?

  63. “How hard would it be for John Q. Protestor to be nabbed when vacationing in Toronto or Cancun because his name is similar to that of a person on the No Fly List? And then he’s sent off to a land with no laws.”

    I don’t mean to bum you out thoreau, but if the government is going to do this, it can do it no matter the procedures you choose to set up. What protects you from being black bagged off the street is the enormous cost to the government caught doing such a thing to a citizen. If the government is willing to go to these lengths to get you, violating in clear terms most provisions specifically afforded you under common law and the constitutiobn, it is absurd to think that if only you say “AHA! You can’t violate my rights just because I’m in a lawless land,” that will somehow save you.

    Having an Executive with the ability to prosecute a war acting as commander in chief is pretty important. You can not pursue military objectives with a deployed fighting force on the terms that all of the branches get to check every action at every step and that all noncombatants have to be read Miranda and so forth.

    You can’t eliminate the ability of a government to blur lines. Hell, they blur lines on the first, second, and fourth amendments all the time, and that is for citizens within US borders. What you can do is establish and codify what you think the limits should be when dealing with terrorist suspects taken as part of military action.

    Honestly, my read is that our differences arise from the vastly different lessons we take from these recent events. What I see is one case where due process worked and one where due process would have been a joke.

  64. To clarify the ‘what if he was a muslim?’ case:

    Anyone who is a citizen gets full due process in all cases I can imagine.

    Someone who is a foreign national caught on domestic soil will get such rights as are afforded his case, which depends greatly on the situtation. If there are extradition agreements in place and he is from some random country, we follow those guidelines. If there are troops in the field in his homeland or if we are at war with his home government, that is a different story. You could then have proceedings wherein the executive could make an argument in front of the judge that he should be treated as a military capture.

    Anyone caught overseas in a combat zone by deployed military forces has nothing like due process as we know it. In a standard war declaration, he should expect to be held until the cessation of conflict or until a military decision has been made that he is not a threat to troops in the field. In our present undeclared war with no end, I want a timeline imposed before which he must be tried or released. Such trial would not be a domestic court in the US. It would have to be a tribunal established by the military or, just thinking out of the box, it could be a subdivision of the justice department tasked to create special courts for just such occasions. The burden of proof should not be beyond a reasonable doubt, and there should be no jury.

  65. Ok, Jason, here is a hypothetical for your juryless system.

    The defendant argues that he was wearing a uniform, specifically a large red sash to indicate that he was in the organized resistance army fighting against the US invasion of Afghanistan.

    The prosecutor shows the written military records that purport to show what the defendant really was wearing when captured. These records indicate that the defendant was not wearing the sash. The prosecutor rests his case.

    Defendant then argues that the written records are a lie and that he really was wearing a sash.

    How do you rule, Judge Ligon? Who do you, the judge, think is credible and not credible. Has the prosecutor met the standard of proof you would impose?

  66. “No offense, but did it escape you that based on informant information, we dropped 1,000lbs of ordinance on the guy’s house? What sort of detective work do you suppose was done here? Do you think we could have prosecuted the guy with the evidence we had? Where was his lawyer?

    I’m talking about how he was found, not how he was dealt with once he was found. I agree that we had neither the time nor the people in place to go grab him.

    But he was found using the sort of methods that I would describe as detective work rather than indiscriminate sweeps. The people searching for him had a specific name to go after. They apparently had an informant. They identified a specific person connected to him and followed that other person.

    This is very different from any number of bright ideas that our government has had since 9/11, including tapping every phone in the US, recruiting UPS drivers and plumbers and cable guys to report “anything suspicious” (the TIPS program), subjecting every citizen to ID checks and searches, tossing hundreds of people in a black hole and then leaving them there simply because an Afghan warlord collecting a bounty said they might be Al Qaeda (if you can’t trust a local government official and drug trafficker collecting a fee, whom can you trust?), constructing a vast No Fly List that even demonstrably innocent people can’t escape from, having Tom Ridge go on TV to say that someone somewhere at some time may attack something with some unknown method so be on the lookout, etc.

    I conclude that terrorists will be located by intelligent and focused efforts, not indiscriminate methods.

  67. In the above hypothetical, hypothetically assume that the sash means the defendant walks per US treaty obligation. Should have made that clearer.

  68. What protects you from being black bagged off the street is the enormous cost to the government caught doing such a thing to a citizen. If the government is willing to go to these lengths to get you, violating in clear terms most provisions specifically afforded you under common law and the constitutiobn, it is absurd to think that if only you say “AHA! You can’t violate my rights just because I’m in a lawless land,” that will somehow save you.

    I half agree. I assume that, from time to time, people have always disappeared into black holes, maybe even since the early days of the Republic. Governments have always had unscrupulous thugs on their payrolls and have always done dirty deeds. If they really want to blackbag somebody then they’ll simply do it, and it will never wind up in court because nobody will even know that his disappearance was the work of a government employee.

    But, as you say, it’s costly for the gov’t if such things are discovered. In the past, that has limited the scale of whatever blackbag operations they may have had going on. But in the past few years they’ve been arguing that people captured under certain circumstances (or captured under what the government claims are certain circumstances) can be held indefinitely without trial. They have had slick lawyers writing these arguments, when forced to do so they’ve made it in court (they don’t like doing that, however), and they’ve generally been trying to sow the notion that a certain amount of blackbagging is perfectly kosher.

    If this argument is accepted then they can expand the scale of whatever dirty deeds they’ve been doing all along.

    And they conveniently have a conflict of potentially endless duration. Even some self described libertarians have been saying that in light of this conflict we may need to accept that people captured overseas should be put before:

    a tribunal established by the military or, just thinking out of the box, it could be a subdivision of the justice department tasked to create special courts for just such occasions. The burden of proof should not be beyond a reasonable doubt, and there should be no jury.

    If your juryless system could only be applied in very specific geographical regions, maybe (just maybe) I could contemplate it. But a tool like that will always find greater application. It will be applied to anybody who alleged to be an enemy soldier out of uniform. I keep thinking of Khaled El Masri. He was certainly captured in a lawful area (a border checkpoint in Macedonia, I think), but he was suspected of being a member of Al Qaeda, so he was treated like an enemy soldier operating out of uniform: Basically zero rights. He was sent to a lawless land. This was done with the acquiescence of another Western government.

    It would be tempting to say that the system worked because in the case was released in the end, but there are two ways in which it failed grossly:

    1) The system missed a very easy opportunity to clear things up before the torture commenced. A meaningful process, one in which the executive branch doesn’t get to call the shots unchecked, could have easily fixed that.

    2) Once the mistake was identified he wasn’t simply put on the first plane home. No, he was held for a few weeks while the US gov’t tried to figure out how to do with with minimal humiliation or diplomatic fallout. That sounds great for us, but kind of sucky for the innocent guy whose wife and kids thought that he had either died or abandoned them. They weren’t notified during those weeks leading up to his release. And when he was finally released he was released in a rather lawless region of the Balkans, in the hopes that he might either be killed by bandits, or at least that nobody would believe his story. (“OK, these masked men who released you in a remote area. You’re sure they’re CIA? They certainly fit the description of the many bandit and militia groups operating out here. That seems a whole lot more likely, dude.”)

    What you are describing is a tool that could be very easily applied with no shame to people captured under any number of circumstances if they are alleged to be equivalent to soldiers out of uniform, taking their orders from Al Qaeda or some other group operating in a region where US troops are deployed. The absence of shame means that this dangerous tool will be more widely deployed.

    I know that people captured in war zones have never had many rights, but that was a codified fact of life in a declared war with a declared objective. In a post 9/11 war, where war is supposedly endless, the tools that you’re describing are simply too dangerous. I will not tolerate the world’s most dangerous legal instruments being deployed without shame by the world’s most expensive government. In a post 9/11 world that risk is simply unacceptable.

  69. Since I can’t sleep, and since we’re talking about blackbagging, I’ve been tossing around in my head an idea for a screenplay about our post 9/11 world. A comedy:

    You know how in the movies there are always these secret agents who can make people disappear? They always do really elaborate schemes to cover their dirty deeds. They fake somebody’s death so nobody knows he’s in the secret prison. They fake a suicide so nobody knows he was murdered. They frame him for a crime that he didn’t commit so nobody knows the real reason he’s in prison.

    This story is about those guys. One day they’re dropping a guy off at the secret prison, when they meet somebody from the new Department of Homeland Security, who’s also doing a delivery. They start talking shop, and they describe to him how they did the disappearance. There’s a femme fatale agent who lured the guy to a hotel where he was grabbed, then they had a body double get on a flight to Pakistan so there would be a trail that makes it look like the guy left the country, etc. All the standard movie stuff.

    The Homeland Security guy is stumped. He’s like “I just showed up, announced that the guy is an enemy combatant, and dragged him away. You don’t need to do all that elaborate stuff anymore, guys. Blackbagging is legal now!”

    Our secret agents quickly realize that their jobs are in jeopardy if coverups are no longer necessary, so they decide to fight back. Being civil servants, the first thing they do is talk to their union rep. He explains that this is a political matter, not a labor-management issue. So they take it to the political realm and hold a big protest. But because their work is classified their signs are blacked out, just like documents that the CIA releases. So, they decide to fight back. They’re secret agents who use dirty tactics, right? They plan to use their tactics against the Department of Homeland Security. Well, they’re a bunch of keystone cops and they get caught and sent to the secret prison, where they start complaining that their rights are being violated. In the end they escape in some hijinx, but the message of the movie is that the days of hidden conspiracies are over, and the days of bad behavior with zero shame are upon us.

    I call it “Homeland Job Security”, and it’s basically X-Files meets Office Space.

    Now, if only I could get some sleep…

  70. Spies Like Us for the xbox generation. I hear Pauly Shore is making a comeback.

  71. You can’t sleep either, Dave?

  72. No. I’ve only been up for an hour. The sleepless night thing is brutal, tho. My wife is very prone and I get it sometimes too. Are you still in California? I wish I could go back. Here in Mississauga (homegrown Islamist terror central) it is morning.

    I hope you are not reading this because you managed to get to sleep.

  73. I am on the east coast now. I slept sporadically, and finally got out of bed at 5:30 am. It’s now 7am and I see no hope of getting sleep at this point.

    Fortunately, these sorts of nights are rare for me.

  74. To get back to the original topic, I would like to note that this attempted abortion clinic bomber has a lot in common with what we know of some of the London subway bombers: Home-grown. No significant assistance from foreign sources as far as we know. Homemade explosives.

    If at some point some angry young Muslims are alleged to be making bombs in the US without any significant foreign assistance, I hope that their case is handled in the same way as this one.

  75. Dave W.,

    The federal courts are seeing less and less jury trials for criminal cases. Why? In part it is because of the way the law structures penalties for guilty verdicts.

    thoreau,

    I conclude that terrorists will be located by intelligent and focused efforts, not indiscriminate methods.

    By “one” data point? I’m not defending Jason Ligon here, but all he need do is bring up his own data points (given your line of reasoning) to justify indiscriminate methods. Pragmatic, etc. considerations are dangerous things upon which to hang liberty.

    But in the past few years they’ve been arguing that people captured under certain circumstances (or captured under what the government claims are certain circumstances) can be held indefinitely without trial.

    In the past “few years?” Try for most of the Republic’s history.

  76. Oooh, I got 76; as in the “Spirit of 76.” 🙂

  77. e.g. Argue that due process is a luxury that a free society can’t afford

    Isn’t that a bit of an oxymoron? Meaning that the lack of due process is a major indication that a society isn’t free.

  78. Isn’t that a bit of an oxymoron? Meaning that the lack of due process is a major indication that a society isn’t free.

    Hence it’s the sort of incongruous argument that sticks out like a sore thumb when made on a libertarian forum.

  79. thoreau,
    Take a nap.

    There are terrorists, and then there are terrorists.
    How ’bout my neighbors wearing shirts that say:
    “If you see da police, warna brother” (With the Warner Bros. logo in the background)?

    or: “Snitch Motel: You check in, but you don’t check out.”?

    Any government approach to terrorists, whether Constitutional or not, is like a potato chip factory: It just keeps making more.

  80. The federal courts are seeing less and less jury trials for criminal cases. Why? In part it is because of the way the law structures penalties for guilty verdicts.

    Good point. We often talk of jury trial as one of the more important Constitutional protections for criminal defendants. However, for many criminal defendants, other Constitutional rights are more important, such as right to face one’s accuser (note how I built that into my hypo), right not to be convicted on hearsay, right to call friendly witnesses and (perhaps most importantly) a right to discover any exculpatory evidence the prosecutor has.

    Still, for laypeople like Ligon, we just say “jury trial.”

  81. oh, and the rights against entrapment. It is those particular rigts that we be important for the Canadian Muslim terrorists they caught in my town last week attempting to buy 3 tonnes of amonium nitrate.

    Will they decide it like a prostitution case with respect to entrapment? Don’t know. Don’t know Canadian law.

  82. Actually, the unique threat to America is the abortion clinic bombing. Does that even *happen* in other countries?

    Plenty of countries have been subject to Islamist terrorist bombings, by foreigners or locals, with a variety of funding sources.

  83. Jon H,

    Does that even *happen* in other countries?

    Maybe in Latin America. Of course in most Latin American countries abortions are mostly provided on the “black market” (in “underground” clinics).

  84. ” It is those particular rigts that we be important for the Canadian Muslim terrorists they caught in my town last week attempting to buy 3 tonnes of amonium nitrate.”

    I rather wonder if the government agents made up a ridiculously low price, lower than would be found on the market or even the black market. After all, they weren’t in it for profit, they were in it to bag some terrorists.

    My theory on that whole thing is that most of them are probably a bunch of kids for whom playing jihadi is the Muslim teenage rebellion equivalent of Western kids being faux-Satanists, and one or two older nutters who actually believe the stuff, with the older guys wholly responsible for escalating the plans.

  85. Dave W:

    Concerning the triumverate or special court system, it is not an amazing feat to come up with a situation that reveals such a system as unfair. It is unfair. It is a level between carpet bombing all hostile territory and having a division of public defenders following the Marines in. It is close to the limit of what you can do while still being able to achieve military objectives in time of war.

    What checks the treatment of those captured in war time is how we expect our captured to be treated, and not some extending of the constitution off shore.

  86. Alright thoreau. What is your proposal? “My” juryless system is the most liberal version I can recall of what has been applied to NONCITIZENS CAPTURED IN MILTARY THEATER IN TIME OF WAR.

    I don’t mean to shout, but somehow that distinction keeps getting missed in the responses I’m reading. It never applies to citizens captured on domestic soil.

  87. Jason Ligon: Concerning . . . shore.

    Dave W.: so what’s the verdict Judge Ligon. Do you believe the military’s written records or the oral statements of the alleged terrorist?

    Cause I can’t figure out from the platitudes you answered with.

  88. Jason-

    I don’t have easy answers, but I can tell you what options should NOT be on the table:

    Indefinite detention with no trial and no means for identifying the end of hostilities should not be on the table. Period.

    In the thread about the Gitmo suicides, kwais and I have been talking about this. He’s been pointing out situations that he and other people face in the field. I’ve said that I realize that in the field, captures are made and that’s that. In the field, in the midst of battle, I realize that all sorts of niceties will be ignored, and that’s just a sad fact of life.

    My concerns kick in once the prisoner is taken off the battlefield, to a situation where he is no longer a danger to American forces. At that point, one of three things should happen:

    1) If he can be clearly identified as a POW then he should be treated as such. The nice thing about POW’s is that they answer to an enemy government, so once that government surrenders, signs a treaty, offers a prisoner exchange, or does something else along those lines you can release them. There’s a clear criterion for when they’ll go home: When their commanders say so.

    2) If he isn’t a traditional POW, but is nonetheless clearly a participant in a conflict that will have a definite endpoint, then he should be held until some milestone is reached. We may not know when the conflict will end, but we’ll know what it will look like. So you put him in a cell with a sign that says “To be opened when [insert event here] happens.”

    3) If he would otherwise fit into one of the 2 categories above, except that he committed a war crime (defined in whatever the traditional manner is) then do whatever they do with war criminals. Since there are treaties and conventions there, I’m not as concerned about an unconstrained state.

    4) Here’s the tough one: Terrorists. Participants in terrorism, the war on which has no easily spotted end point. Or alleged participants in terrorism.

    How to handle them? Well, first, get them the hell away from a battlefield situation, obviously. You can’t observe any procedures in a place where bullets are flying.

    Once they are away, we can’t just hold them in a black hole forever. A free society cannot long endure if its government can, without shame, put people in black holes forever without trial. That sort of tool will inevitably roll down a slippery slope. I won’t back down from my slippery slope argument here. They’ve already tried to send at least two people that we know of into a black hole, even though they were captured far away from battle fields in any traditional sense of the word: Khaled El Masri (a German citizen captured at a European border crossing by cooperative local officials) and Jose Padilla (a US citizen captured on US soil).

    That’s my bottom line: The black hole should not exist.

    What to replace the black hole? I’d suggest a court. A court that isn’t composed of military officers or other executive branch employees. That is non-negotiable for me. I don’t want this to remain a purely internal executive branch affair. That’s simply too much temptation for mischief.

    So we’ll need judges. These will be unusual judges, with security clearances among other things. They’ll be similar to the FISA court. They should be appointed by the President and confirmed by the Senate, just like the FISA court. They should conduct their trials in accordance with laws established by Congress.

    I don’t have easy answers on what their exact rules should be, but these laws should be established for them in advance by the legislative process. The people hearing the cases should be an independent branch of government. Period. There should be no chance for the executive branch to pick its own referees and write its own rules. America simply cannot go there and remain a free society for the long term. Period.

    As a first shot at establishing some rules, the jurisdiction would have to be specifically restricted to areas where the US military is fighting and local authorities are a mixture of weak and/or corrupt and/or complicit.

    In a previous thread, somebody said that there are military courts where the trial judges are military officers but the appellate judges are members of the third branch of government. I might consider that as a compromise.

    Anyway, my bottom line is that NOBODY should go into a black hole with no chance at a trial and no established metric for when he will be released. Period. Anything less is unacceptable if we wish to remain a free society for the long term.

  89. There is no such thing as a terrorist on the battlefield, T. “Illegal” combatants, yes, but the existence of the battlefield means that any violence committed there is not terrorism, but rather is combat.

    People near the combat can’t understand this because they have to worry about life and death issues, but here outside the battle zone we should use the word “terrorism” more carefully.

  90. Dave W:

    Okay, I’ll play. Let us all keep in mind that I am not a judge and have completed exactly 0 hours of law school, which makes my opinion of how a specific case should be judged not all that important. Slightly less important, even, than the snide views of a patent attorney.

    Deference goes to the military records. My reasoning here is that the triumverate is at the outset not a full justice system. It is a way to weed out egregiously inappropriate holdings. The court is not bound by an assumption of innocence.

    I’ll counter. The military tracks a small force believed to have been involved in mortering a convoy to a small Afghan village. Everyone in the town says that the three suspects have been at working home all day. You have the word of one guy you paid for information vs 100 people. General Dave, what are you allowed to do here? You could never make anything stick in a domestic court of law. The physical evidence you hoped for miraculously disappeared when your suspects went into a friendly town.

    Since you can’t convict these guys in front of a jury, and since your justice system assumes innocence, allows you to face your accuser (otherwise known as an intelligence asset in this case), and so forth, I guess you just learn to live with mortars falling on your head, right?

  91. “My concerns kick in once the prisoner is taken off the battlefield, to a situation where he is no longer a danger to American forces.”

    Is this determination of no danger made before or after he is released to return to the battlefield?

    I’m glad there is a perspective from the ground present in kwais.

  92. Is this determination of no danger made before or after he is released to return to the battlefield?

    By “no danger” I mean that a guy who has been forcibly restrained and sent to a cell far away from a battlefield cannot shoot at you. He is currently unable to do harm, so now there is the luxury of time and procedure. I accept that kwais will do what he has to do. But once somebody is away from the battlefield, once he is in restraints, unarmed, and away from a situation where bullets are flying, a decision has to be made about what to do with him. I’m not advocating returning a bad guy to the battlefield. I’m advocating a process to decide what will happen to him.

    A free society cannot endure if the government can, without any shame, hold people in lawless black holes for indefinite duration with no metric for release. Period. If you think otherwise then you are too frightened to live in a free society.

  93. Jason Ligon

    Thank you for the clear answer.

    I think your system is worse than no system at all then. If a piece of paper with no one to vouch for it is taken more seriously than the word of a witness who is there to vouch personally, then the military always wins automatically. They just have the appropriate paper drawn up, submit it to the judge and they win every time no matter what happened in country.

    If the miitary can automatically win every case, why bother with the trials. As far as I am concerned, show trials are for Communists, not Americans, not ever.

  94. thoreau,

    Indefinite detention with no trial and no means for identifying the end of hostilities should not be on the table.

    So, what would you do if we captured OBL?

    There’s a clear criterion for when they’ll go home: When their commanders say so.

    Or not.

    2) If he isn’t a traditional POW, but is nonetheless clearly a participant in a conflict that will have a definite endpoint, then he should be held until some milestone is reached.

    You talking about spies or saboteurs here? Why wait that long? The eight Nazis saboteurs caught during WWII were tried and convicted, etc. long before the war was over, and that is perfectly kosher still today.

    Since there are treaties and conventions there, I’m not as concerned about an unconstrained state.

    Treaties and conventions are enforced by the executive (in the U.S. at least). There is very little to no oversight over their enforcement, especially by the courts.

    A free society cannot long endure if its government can, without shame, put people in black holes forever without trial.

    Then you must oppose civil commitment proceedings against sex offenders, which don’t resemble trials in any way and allow the state to commit someone (probably for life) to a mental health institution (often they’re stuck into some sort of wing of a prison, etc.) following the end of their official sentence.

    That sort of tool will inevitably roll down a slippery slope.

    Sorry, I don’t believe anything is “inevitable”; probably because I’m not a determinist.

    They’ve already tried to send at least two people that we know of into a black hole, even though they were captured far away from battle fields in any traditional sense of the word: Khaled El Masri (a German citizen captured at a European border crossing by cooperative local officials) and Jose Padilla (a US citizen captured on US soil).

    Doesn’t the very fact that they are free defeat your “inevitability” argument?

    So we’ll need judges.

    Ha ha ha! Civilian judges on average show no more or less deference in these sort of national security matters than do military judges, etc. One has to ask at this point, how many national security law decisions have you read?

    They should be appointed by the President and confirmed by the Senate, just like the FISA court.

    The FISA court is made up of regular old Article III judges.

    They should conduct their trials in accordance with laws established by Congress.

    And the Constitution presumably.

    The people hearing the cases should be an independent branch of government.

    The Federal Courts are not an independent branch when it comes to national security issues. You are being quite naive thoreau.

    As a first shot at establishing some rules, the jurisdiction would have to be specifically restricted to areas where the US military is fighting and local authorities are a mixture of weak and/or corrupt and/or complicit.

    That’s constitutional, but probably not practical. If you are going to have a federal “War Court” then its jurisdiction should extend to all areas of the war; including spies and saboteurs who may get onto U.S. soil.

  95. Thoreau:

    I agree that this:

    “4) Here’s the tough one: Terrorists. Participants in terrorism, the war on which has no easily spotted end point. Or alleged participants in terrorism.”

    is the area of focus. I don’t dispute any of your proposals for other areas, and I’m glad to see that you recognize them as utterly distinct from domestic law enforcement issues.

    As Dave points out, there are really two subcases. There is the terrorist, say someone caught trying to blow up the USS Cole a number of years ago, and there is the illegal combatant. The current problem is that we have no good way of handling that second category.

    The problem I see is the suggestion that there is parity between a captured domestic bomber and a captured illegal combatant. I agree that there should be no black hole, which is why I, on two occasions above and several times in previous threads, suggested that we need law written to handle this situation in the case of open ended war. There is your legislative involvement. I agree that there should be judicial involvement in the form of special courts.

    Where I suspect we will diverge is in evidenciary standards, burden of proof, and so forth. The truth is, a normal court would let every single one of these guys go because there is no evidence to hang a conviction on – no police procedure on a military sweep, no reliable witnesses in hostile territory, destroyed physical evidence, no crime labs, no fingerprints, nothing.

  96. Anyone who thinks that the federal courts are an independent check of any weight on the executive re: national security law is simply naive. An thoreau’s proposal is unrealistic; neither the Congress nor the Executive branch would allow the creation of his federal (as I call it) “War Court.” At best what the Congress will create is what exists today; the sort of military tribunals used in WWII.

  97. Dave W:

    You are missing the bigger picture. What we used to do is carpet bomb and not ask any questions. If captured combatants are granted immunity from consequences by virtue of being assumed to be innocent and being able to amass “witnesses”, THEY win every case, go home and start blowing people up again.

    At the end of the day, the management of proper treatment for folks in these situations is entirely a political decision. The check on treatment is political. Yes, that sucks. No, it isn’t fair to the accused. Yes, it is better than blowing them up to be sure.

    We can’t put ourselves in the situation where having no uniform is an Aegis behind which you can blow up whoever you want.

  98. “At best what the Congress will create is what exists today; the sort of military tribunals used in WWII.”

    That is fine with me, too, if we don’t think an independent judiciary system is workable. I haven’t put too much thought into the distinction.

  99. Jason-

    I’m glad that we agree that there should never be a black hole, and that we both agree on the need for a special court created by Congress. We probably would disagree somewhat on the extent to which standards of evidence can be relaxed. However, hopefully we would agree on the very narrowly defined scope of such a court.

    As to the 4th category, I probably erred when I described them as “terrorists”. I was trying to get to the point that the 4th category is simply guys who don’t fit into the first three categories: Guys who can’t be held until some milestone is reached because we have no idea what that milestone will look like. If we can’t identify a milestone for release then we need a court. A court that doesn’t answer to the President and that follows laws drafted by elected representatives, not memos issued on the fly by the President’s personal lawyers.

    If we agree on that, and we agree that the scope of this court’s jurisdiction should be narrowly defined, then we already agree on the most important points.

  100. thoreau,

    By “no danger” I mean that a guy who has been forcibly restrained and sent to a cell far away from a battlefield cannot shoot at you.

    Are you suggesting that an unarmed prisoner in his cell can’t harm a guard? On American death rows they routinely bite hands, break arms, etc.

    If you think otherwise then you are too frightened to live in a free society.

    Or you want to preserve it. Or that’s the sort of path you think that will preserve it. Insulting people, their motives, etc. is a bit silly at this point. In fact, though I don’t agree with it, I think that those who argue for indefinate detentions don’t have the motives you ascribe to them, and that their response is (especially from a historical perspective – the same historical perspective you used earlier) a rational one.

  101. Jason Ligon,

    At the end of the day, the management of proper treatment for folks in these situations is entirely a political decision. The check on treatment is political.

    Oh definately; that’s why the proposal to use the federal courts is so naive.

  102. Jason Ligon,

    While I do disagree with your position (or at least with what I think is your position), I do respect it and see the rationale behind it.

  103. Where I suspect we will diverge is in evidenciary standards, burden of proof, and so forth. The truth is, a normal court would let every single one of these guys go because there is no evidence to hang a conviction on – no police procedure on a military sweep, no reliable witnesses in hostile territory, destroyed physical evidence, no crime labs, no fingerprints, nothing.

    There are plenty of things you could do, Judge Ligon, besides convicting everybody or letting everybody go.

    One thing you can do is force the military to call witnesses who witnessed the allegedly illegal combatants answer. Who caught the illegal? was it a local bountyhunter or a proud Marine? What does this individual remember about the capture? Is the capturer’s story consistent? If you are even remotely qualified as a judge, then you can do a little cross examination.

    You could also call people captured at the same time, if any. What do they say? Is it consistent or inconsistent with what the defendant is saying.

    You could also make sure the prosecutor coughs up all the papers he has, not just the ones he wants you to see. Being a military judge, you will know what records should exist. If a piece of paper that should be there is not, it seems fair to draw some conclusions adverse to the prosecution.

    Even the pieces of paper that support the military’s case: are they internally consistent? are they credible?

    These are all evidentiary measures that are possible. It is not the same as requiring fingerprints. If the military doesn’t want to routinely fly witnesses out to Gitmo, then they should hold the trials where the witnesses are.

    And, finally, they can, should and probably will let these guys have lawyers and even pay for the lawyers. if they need money to pay these lawyers, then just draw down the troops and use the savings in combat pay to pay the lawyers. Simple, really.

    I am not saying that the trial would be anywhere near as rigorous about the defendant’s “rights” as a Constitutionally sanctioned criminal trial for a US citizen, but this idea that the military produces a piece of paper and the defendant is automatically convicted is ridiculous and abhorrent.

  104. Let’s get back to the case that started this thread: A purely domestic terrorist plot.

    Jason, would you agree that anybody captured on US soil should be tried in a standard US court, unless he is a recognized agent of a foreign government?

  105. thoreau,

    Let’s get back to the case that started this thread…

    Why?

    Jason, would you agree that anybody captured on US soil should be tried in a standard US court, unless he is a recognized agent of a foreign government?

    It depends on whether the area in question is open rebellion, etc. or not.

    As to the “foreign government” language, I don’t see why you use such narrow language. You’ve mentioned FISA already; why not use the language that it uses – “foreign power.” A “foreign power” can mean a foreign government of course, but it could also mean a foreign terrorist group.

  106. To refine my question:

    Let’s say that we find a group of guys with some pipe bombs, and we have evidence that they were planning to use those bombs in some sort of attack. Let’s say that all of the guys are in the US legally (either US citizens or they have the appropriate immigration documents). Let’s consider varying degrees of foreign involvement:

    1) No foreign involvement. The guys met each other in the US and conceived of their attack ideas after meeting here.

    2) They get some inspiration from abroad: They read websites or listen to speeches by a foreign radical teacher. In response to his influence, they decide that it’s time to take up arms. This foreign radical teacher could be a cleric in Saudi Arabia, a Neo Nazi in Germany, an animal rights radical in Britain (a friend of mine from Britain does experiments with animals, and he tells me that there are some very militant types in the UK, even more so in the US, so he has to be very careful what he says about his work when hanging out in certain circles), or whatever.

    3) They get some training from a foreign radical: At some point this terrorist cell in the US learns bomb-making techniques from a foreign radical, and he encourages them to use what he’s taught them. He cannot be found at the time of the arrest, and is believed to be operating in a lawless part of the world. (Since we’re talking about lawless places, insert White House joke here.)

    4) They receive money and instructions from a foreign radical.

    5) They were sent here by a foreign radical, and knew before they came that they would make bombs and try to hit civilian targets.

    In every case, they are found on US soil with explosives in their possession, and there is lawfully obtained evidence (be it witness statements, court-approved wiretaps, or whatever) of intent to harm civilians with those explosives.

    Is there any reason not to send these guys to a regular court for a trial?

  107. I have a hard time seeing a terrorist as a separate class of humanity–I see terrorism as a separate class of crimes.

    If a terrorist is captured in a war zone, he’s essentially a “prisoner of war” (not in the strict legal sense)–I have no problem imprisoning enemy combatants without a trial. …but if we’re going to keep them in custody after hostilities cease, then I think we should have to convict them of something. …and targeting civilians specifically is a war crime.

    In the case of a domestic terrorist working to bomb an abortion clinic, for instance, there’s no “prisoner of war” status applicable in that case. Outside of a war effort, it is never okay to imprison someone without a fair trial, etc. …So I guess I just don’t see the two, domestic terrorist targeting abortion clinic and Taliban/Al Qaeda targeting civilians, as obviously comparable.

  108. If captured combatants are granted immunity from consequences by virtue of being assumed to be innocent and being able to amass “witnesses”, THEY win every case

    No one is suggesting that anyone be granted immunity, not even me. Just because a defendant can call witnesses doesn’t mean they automatically win, or even anything close to that. Some witnesses are not believable, and these witnesses can be heard, cross examined and not believed (or believed, as appropriate). This applies to both military witnesses who assist in captures, as well as other capturees or local witnesses expected to be supportive of the defendant.

    One great thing about witnesses is that you can examine them separately and see if their stories are consistent. If bountyhunter A and bountyhunter B tell widely divergent stories, then they are probably not credible. Same with US Private A and US Private B. same with detainee A and detainee B.

    They better have records of the people in custody: otherwise how would they know how many they had and who was who. Not out of the question that they should take a mugshot or 2: maybe even a full body shot if the way the detainee is dressed is important to how the soldiers must handle him per the Geneva Conventions. This idea that the prosecution has no contemporaneous records to compare to witness testimony is absurd. Of course they keep records. These records, especially when used in conjunction with witnesses, can be used to separate the guilty and innocent.

    , go home and start blowing people up again.

    Of course they will, even the ones who were innocent when they got picked up initially, but also the ones where the military “lost” the paperwork or otherwise fucked up bad (think about the Zarqawi controversy going on right now — the soldiers don’t always tell the truth). Its a warzone. that is why we pay our soldiers so much. War is Hell. the sooner you recognize that the better.

  109. Ken Shultz,

    Terrorism can also be an act of war or part of an act of war.

  110. thoreau,

    Is there any reason in many of those instances that a civilian court is needed?

    Anyway, we have traditionally viewed foreign agents differently than domestic parties; and that dividing line is often based on U.S. citizenship, but not always. Why? Because foreign agents risk the health of the nation more than domestic parties, unless those domestic parties are in open rebellion, or rather, they are part of a at least partly successful one. Seems like a good Hobbesian view of the matter.

  111. “Jason, would you agree that anybody captured on US soil should be tried in a standard US court, unless he is a recognized agent of a foreign government?”

    Yes, barring the open rebellion case PL mentions, which is the extreme situation I alluded to earlier.

  112. Jason Ligon,

    You have to remember that thoreau can’t openly recognize anything I write. 🙂

  113. Dave W:

    I perhaps read too much into your proposed case. I had assumed that the judge or tribunal had gone through all or most of the evidenciary methods you suggested above and it all came to a wash, where the suspect says no and government says yes. The government’s paperwork appears to be consistent and so forth. You certainly do what you can do, but when push comes to shove, you are dealing with huge potential for polluted evidence on both sides, and I don’t think the defendant gets the tie break here.

    I don’t view the ability of the accused IN THESE CASES ONLY to call witnesses from home to be of determinative value. Prosecution could always cloud the credibility of defense witnesses by perfectly legitimately arguing that they have a horse in the race. Further, the counterweight to defendant witnesses is what, secret intelligence assets?

  114. …So I guess I just don’t see the two, domestic terrorist targeting abortion clinic and Taliban/Al Qaeda targeting civilians, as obviously comparable.

    That didn’t really come out right.

    Some of this hinges on the meaning of a state of war. In a state of war, not only is it okay to imprison people without a trial, it’s okay to shoot the enemy in combat. The losers aren’t charged with murder/attempted murder after hostilities cease either–combatants shooting each other is what war is all about.

    In the case of an abortion clinic bomber, there is no state of war. However, regardless of whether we’re in a state of war, it is never okay to target civilians specifically; and, regardless of whether we’re in a state of war, anyone accused of targeting civilians specifically should get a fair trial. Thoreau’s absoltuely right about that.

    I see the word “terrorist” bandied about to include everyone in civilian clothes targeting American troops though, and so long as that’s all they’re doing, I’m not so sure such people aren’t entitled to a trial if we’re going to keep ’em locked up once hostilities cease. At the same time, however, I don’t think we should have to gather evidence and convict every combatant of a war crime before we can take ’em off the battlefield either. …and I don’t think thoreau’s saying we should.

    The words “terrorist” and “terrorism” seem to mean different things to different people. When I use the word “terroist”, I mean people targeting civilians specifically. …anyone held for that reason alone should get a fair trial, but that doesn’t mean we should have to give a fair trial to every combatant we want to hold.

  115. Jason-

    What’s interesting to me is the extent to which we seem to agree on the preferred system despite our very different weighting of priorities and scenarios. In the end, we both agree that nobody should get a free pass but nobody should wind up in a black hole. We both seem to agree that people captured overseas by the military should either be placed in a category that has a clear criterion for release or be placed before an independent court of some sort. And so we both seem to agree that the current situation, in which the administration claims it can hold people as long as it wants based solely on its own determinations, is a bad one.

    Yet we wind up crossing keyboards in these threads because we have very different weighting of concerns and priorities. I look at these situations and my first thought is “Shit, if this keeps going the government could slide down the slippery slope!” Your first thought seems to be (correct me if I’m wrong) “Whatever we do, we’d damn well better make sure that the bad guys don’t get out.”

    The nice thing is that a good process with independent reviewers and pre-established laws can reconcile both of our concerns. It may not reconcile these concerns perfectly, but no process is ever perfect. At least it will avoid the worst case scenarios from both sides.

  116. that doesn’t mean we should have to give a fair trial to every combatant we want to hold.

    If the plan is to release them when the situation reaches a clearly identifiable milestone then I agree with you. The problem is that we’re in a conflict for which there are no easily identifiable milestones. As long as we’re in that situation, we do need trials.

    Trials held to the standards of a US civilian court might not be practical, but as Dave W. pointed out there are still ways to examine the allegations and scrutinize the government’s actions. And the trials should be conducted by independent authorities who don’t have to call the President “sir”.

    The trials won’t be ideal, but they will weed out the worst mistakes, and will do so more quickly than has been happening in some instances.

    Bottom line: Legal black holes are unacceptable for a free society.

  117. thoreau:

    Your refined situations get at the issue nicely. The line I would draw is something like this:

    If you have evidence of foreign involvement from training on down the list, you have some further criteria to look at. If we are engaged in military operations against the providers of said training, funding, or direction, there is a plausible case to be made that the capture on the domestic front is properly viewed as a capture of illegal hostiles on domestic soil. That is a jurisdictional fight.

    Another criteria is whether we are talking about a citizen or not. Handing a citizen captured on domestic territory for domestic crimes over to our military would be a truly extraordinary event. Not impossible given the realm of conceivable circumstances, but highly suspect – probably on the order of espionage cases in time of war. I can’t say this enough, there is a huge gulf – conceptual, historical, philosophical, and political – separating citizens from non citizens with regard to suspending their rights.

  118. Apologies for the Excessive Use of Caps today. I’m very concerned that I’ll inadvernently wind up Suspend Habeus Corpus Man as a result of these discussions.

  119. Trials held to the standards of a US civilian court might not be practical, but as Dave W. pointed out there are still ways to examine the allegations and scrutinize the government’s actions. And the trials should be conducted by independent authorities who don’t have to call the President “sir”.

    I’m not so sure that it’s entirely inappropriate for combatants taken prisoner in a state of war to be tried for war crimes by a military tribunal. We try our own soldiers for war crimes that way. In the case of an abortion clinic bomber, however, there is no state of war.

  120. thoreau:

    While I agree we’ve come closer in positions, there are some differences remaining. I think those have to do with your confidence in an independent judiciary proceeding.

    I’m neutral between military tribunals and special judiciary courts. There are advantages and disadvantages to both. The current system of tribunals has the advantage of keeping military and judicial jurisdictions clear. Remember, service men are tried under UCMJ using very different rules from civilian trials. There is a lot of specialized knowledge and procedure in there that is useful in trying cases tied to military action.

    If I believed that a War Court of some sort would be as effective and would serve as a check on the executive, I’d support it. I’m not sure I believe that, though.

    Also, I don’t know if you meant ‘government’ in the strict sense in your example, but PL’s point regarding the inappropriacy of that term for our purposes is a good one if you did. The whole problem is how to handle people who gather to do bad things, but not in the name of any government.

  121. Jason-

    My concern isn’t just about who has what rights. It’s about the limits on the government.

    And in every case that I described, a civilian court would no doubt be able to send the guys away for a long time. If a bomber is going to be sent away for a long time, what more do you want? Why should any other aspects of his status matter?

    Really, what does it matter if the guy providing the training is a member of a group that the US military is acting against? The guys captured by cops on US soil are clearly going away for a long time. What more do you want? Why provide any temptations or weaken any barriers?

    The bottom line is that I simply don’t trust the state to respect our liberty if they are allowed to operate without shackles. America should hold its government to the highest possible standards in every situation.

    The danger, of course, is that if you allow the government to act with a lower standard of proof when it claims that a person on US soil is accused of collaborating with certain foreign groups then the government will use that allegation to secure a lower burden of proof when the investigators are fucking up. It won’t start with malice, it will start with incompetence. Cops already have a reputation for lying their asses off and planting evidence, not to mention coercing confessions. They do this because they’re “sure” that the guy is guilty and they’d hate to see him get off just because the evidence is “a little shaky.” Why make it even easier for them by creating a special class of allegations that carries a lower burden of proof?

    The more exceptions we carve out for them, the more likely they are to exploit those exceptions to cover their asses, cover their incompetence, and eventually to get back at their enemies. They might not go after John Q. Protestor at first, but they’ll damn sure go after John Q. Police Critic.

    You seem very eager to carve out exceptions to make damn sure that a bad guy never gets it easy. I figure that there are already a lot of bad guys working at the police station, so I want to make damn sure that they get as few exceptions as possible.

    Also, the more exceptions we carve out, the more likely they are to spill over to the Drug War. Hell, the Patriot Act is already being used for the Drug War. Carve out an exception for a case that involves people in a lawless area? You know damn well that the term “lawless area” could be applied to Afghan opium fields, guerrilla-run areas of the Andes, and any place patrolled by cops in Mexico. Carve out exceptions for people whose collaborators are fighting the US military? Given the use of the military in fighting the drug war you know damn well that this is ripe for abuse. Carve out exceptions for non-citizens? You know damn well that a lot of drug trafficking is done by non-citizens. Hell, the LAPD Rampart CRASH unit deported witnesses to their crimes.

    I say we carve out as few exceptions as possible, rather than looking for more reasons to make exceptions. I fear the LAPD, NYPD, and other lawless but state-sponsored militias more than I fear Bin Laden.

  122. The current system of tribunals has the advantage of keeping military and judicial jurisdictions clear.

    OK, that’s a good point. I’ll have to think about that. Maybe my proposal would carve out even more exceptions, which would be one hell of an unintended consequence.

    Just remember that every time you carve out an exception you are taking one hell of a risk. They might not blackbag protestors any time soon, but a dirty cop might allege that a drug defendant was in direct contact with guerrilla organizations in the Andes or warlords in Afghanistan. They might not haul opposition candidates away, but somebody who tries to blow the whistle on cop misconduct might find out that he’s being charged with a drug crime, and the evidence conveniently comes from a lawless region of Mexico, hence the need for a lower standard fo evidence.

  123. I perhaps read too much into your proposed case. . . . I don’t view the ability of the accused IN THESE CASES ONLY to call witnesses from home to be of determinative value. . . .

    Prosecution witnesses have a horse in the race, too. As do all witnesses in pretty much all cases. Do you think that Afghanistais or Iraqis lie more often than US soldiers?

  124. Jason, I also meant to say in the last post that it does sound like we are a lot closer together on this than I had thought. I certainly don’t want the army mirandizing suspects or waiting for a lawyer to show up before questioning the detainee. Some procedures are consistent with running a war and some are not.

  125. “You seem very eager to carve out exceptions to make damn sure that a bad guy never gets it easy. I figure that there are already a lot of bad guys working at the police station, so I want to make damn sure that they get as few exceptions as possible.”

    I think about it in terms of incentives. The cops and our government are operating within a system where they are significantly restrained. Even exploitation of loopholes is subject to political consequences.

    My great fear about amorphous terrorist organizations is that they have hit on a strategy that, as viewed by some people, makes them unprosecutable criminals. To insert a disincentive to that behavior into the equation, we deploy military force against them. Because the disincentive is not institutional (i.e. we have to mobilize and pay for it each time we use it) it is very important that a lot of bad guys die when we bring it to bear. The argument for bringing a domestic combatant to the military side of the house would be if we think we can kill more bad guys of significance that way.

    I see the choice to use the military and the controls on military methods as primarily political. Deploying the military is a big decision with plenty of moral, economic, and utilitarian considerations. I would like to see a recommitment to the notion that congress declares war to make the political nature of such a large decision apparent, and I don’t like never ending wars.

    That said, it has to be recognized that militaries are in the business of killing people and breaking things in the pursuit of strategic objectives. I think there are some romantic notions about what intelligence, special forces, and police work are capable of in hostile territory, and I think those notions lead some in the direction of erroneously viewing military actions as police actions with bigger guns. Once deployed, the tools available to the military are completely different. The constraints on miltary personnel and tactics are political and moral – they are not derived in similar fashion to constitutional principles that apply to citizens.

  126. “Prosecution witnesses have a horse in the race, too. As do all witnesses in pretty much all cases. Do you think that Afghanistais or Iraqis lie more often than US soldiers?”

    Hence my contention that witnesses are not especially valuable here. The reasons you would believe a witness in general are absent in these cases. You aren’t likely to even be able to verify the identities of the witnesses. Again, it sucks.

  127. The cops and our government are operating within a system where they are significantly restrained.

    And there’s a very good reason for that.

    That said, it has to be recognized that militaries are in the business of killing people and breaking things in the pursuit of strategic objectives.

    Which is why I want to use them as little as absolutely possible, whereas you seem more willing to use them often.

    I think there are some romantic notions about what intelligence, special forces, and police work are capable of in hostile territory, and I think those notions lead some in the direction of erroneously viewing military actions as police actions with bigger guns.

    Here we agree. They are not omnipotent, omniscient forces that can do anything. They can fuck up.

    Back to the examples I brought out earlier: Let’s say we capture some guys on US soil with pipe bombs and clear evidence of intent to use them. If that’s what the situation really is then after a civilian trial they will go to prison for a long time. Period. Give me one good reason why it’s at all necessary to let somebody other than the civilian judges handle them. Say what you will about incentives, but these guys are going to spend a long time in a place where they are subject to beatings and rape. That’s a huge fricking disincentive right there. What do we gain by letting them be tried by people who face lower burdens of proof?

    I can think of a lot of things that we might lose if they are handled by guys who face a lower burden of proof. I just can’t figure out what we gain.

    And if you want to talk about incentives, I can think of some HUGE incentives put in place when you allow the gov’t to face a lower burden of proof when certain allegations are made, e.g. “This guy has friends who are fighting against US troops” or “The evidence in this case was collected in a lawless region of the world”. Those are some VERY dangerous incentives to put in place. Cops respond to incentives at least as well as terrorists. There’s a reason why the LAPD is no longer allowed to refer illegal immigrants for deportation: They were only arranging the deportation of illegals who witnessed a crime committed by LAPD officers.

    You’re worried about the terrorists coming from the other side of the globe, I’m worried about the terrorists who ride around in cars with sirens.

  128. Hence my contention that witnesses are not especially valuable here.

    This is an area where some lawyer experience helps. People on both sides of every important case have incentive to lie. A lot of trials about is talking to all the potential liars and seeing who seems the least duplicitous. You don’t decide this based on cold resumes. You do this by talking to the actual real live human beings involved so that you can gauge who makes sense and who doesn’t. That part of real courtroom drama can be effectively employed in a military tribunal.

    EXAMPLE: a few months ago taped (I think taped) testimony of terrorists was used at the Moussaoui trial to help establish that he was not really part of 9/11 and to spare his life on that basis. Although the people testifying for Moussaoui were presumably evil terrorists, lots of people (including myself) accepted the truth of what they said about Moussaoui.

    SIDE NOTE TO T.: IIRC, you were concerned about defendants having to wait too long for their tribunal. The law has a special way of dealing with that problem called laches. Would probably be a good defense to give to the defendants. Would assure that the military does not drag its feet too much. Of course, it doesn’t solve the problem of defendants who never get a tribunal, but it can work wonders in cases where the military’s delay makes it practically impossible for a defendant to defend. Also sends a good message to Kwais and his buddies not to delay too long or you will be fighting these same guys a 2d time.

  129. Dave-

    I don’t worry about kwais. kwais is a guy who realizes that his concerns in the field are not the only concerns involved in the case. He just focuses more on his concerns in the field because he has to, and he hopes that somebody else will get things right for the other aspects. Hell, he admitted that he let a guy go because he wasn’t quite sure enough that the guy was a bad guy. He erred on the side of conscience, which is more than we can say for Alberto Gonzales.

    I’m glad that kwais is taking care of his end of the business as conscientiously as he can. The thing is, what do we do with the guys that kwais captures? kwais capturing somebody is erring on the side of safety. Alberto Gonzales arguing against holding any sort of trial once the guy is removed from the battlefield is erring on the side of tyranny.

  130. “What do we gain by letting them be tried by people who face lower burdens of proof?”

    I’m not willing to take the option off the table because we may be able to use them in different ways to kill more bad guys. We may be able to hold them longer. We can interview them without lawyers. And so on.

    I’m not saying that the military always gets the guy. Far from it. I’m saying that they can take a jurisdictional claim to court on the very plausible grounds that we have captured an enemy hostile on domestic territory.

  131. We may be able to hold them longer.

    If you think that the civilian penalties for conspiracy to set off a bomb are too short then ask your elected representatives to pass a law that imposes longer prison sentences.

    We can interview them without lawyers.

    Hell, the NYPD already does that. With toilet plungers. We don’t need Gitmo in order to torture suspects, if that’s what you’re interested in.

    I’m saying that they can take a jurisdictional claim to court on the very plausible grounds that we have captured an enemy hostile on domestic territory.

    So what? The prosecutors are already more than capable of locking him up for a long time. It’s great that the military could do it too, but I want this done by the guys who faced the steepest burden of proof.

    What do you say to my concerns about incentives? Do you think you’re more likely to be attacked by a cop or attacked by a terrorist?

    Let’s ask a black guy.

  132. T:

    “You’re worried about the terrorists coming from the other side of the globe, I’m worried about the terrorists who ride around in cars with sirens.”

    This comment drags us backward a couple of steps. I don’t think the use of the term terrorist is appropriate on a number of levels. The guys with the sirens may be on occasion thugs, but they operate within considerable institutional constraints. No matter how you feel they might sieze on loopholes to make things worse, they don’t blow up schools answering to no rule of law.

  133. Point about kwais taken, T. Thanks for helping me see his situation in a truer light.

  134. Thoreau:

    Your 8:05 post seems to have missed my entire point. The suspect may be an intelligence or military asset that can’t be exploited from within the constraints of the civilian justice system. Again, “may” is a key word, and I’m only saying why I don’t want the option off the table.

  135. thoreau,

    Legal black holes are unacceptable for a free society.

    You keep on writing this as if repeating it makes it true.

    The problem is that we’re in a conflict for which there are no easily identifiable milestones.

    I think there are some easily identifiable milestones actually. For example, we can measure how much we’ve disrupted/eradicated a terrorist network by the same means which we track them. The number and intensity of terrorist attacks should give us an idea too. The capture and/or killing of major figures within the movement can be a measure. The response of local populations to terrorists can also help us determine what is going on.

    I fear the LAPD, NYPD, and other lawless but state-sponsored militias more than I fear Bin Laden.

    That’s your basic argument (or at least the sentiment behind it), right there, and its nice to see that you’ve finally come to it. But i wonder how reasonable it is.

    Ken Shultz,

    However, regardless of whether we’re in a state of war, it is never okay to target civilians specifically…

    Not even if it is an effective way to destroy the enemy’s will to fight?

    We try our own soldiers for war crimes that way. In the case of an abortion clinic bomber, however, there is no state of war.

    Well, I don’t think thoreau understands that military law isn’t necessarily the lap dog of the executive branch. In fact, I think that military lawyers and judges are less likely to grant the executive branch deference in national security matters because unlike Article III judges, they don’t get their shorts in a bunch about military matters.

    __________________________________

    A lot of this conversation is based on moral conclusions about what one should never, ever do. But is that how real life works? And if real life doesn’t work that way, why is there no fluidity in areas of life like this?

  136. Jason-

    We can spin all sorts of scenarios where the government needs fewer constraints in order to keep us safe, but then we can look at reality and see a number of things:

    1) A lot of the failures to protect us involve incompetent government rather than constrained government. Reason has published at least one article on how 9/11 could have been prevented with the more intelligent application of existing tools.

    2) A lot of the successes in nabbing terrorists were done with traditional law enforcement tools. McVeigh was nabbed before Congress passed anti-terrorism legislation in response to his attack. The millenium bomber was nabbed at a routine border checkpoint (something that I support, for the record). This would-be abortion clinic bomber was stopped with traditional law enforcement tools. Eric Rudolph was nabbed without breaking any laws (that I know of). The leftist radicals of an earlier generation were (as far as I know) nabbed without breaking any laws.

    3) Government has a history of exploiting tools to go after innocent people. Cops cut all sorts of corners. The LAPD deported witnesses to their crimes. Cops cover up all sorts of things and lie on witness stands.

    4) Government exploits every new tool in its insane drug war.

    5) If we must turn somebody into an intelligence asset, I’d rather appeal to the most fundamental human instincts: Greed and self-preservation. Offer him a deal. Let him get off easy if he rats on his friends. Put him in witness protection if necessary, and give him a plush new life in a beautiful suburb.

    That seems less problematic to me than giving the government the option of a lower burden of proof.

  137. “And if you want to talk about incentives, I can think of some HUGE incentives put in place when you allow the gov’t to face a lower burden of proof when certain allegations are made, e.g. “This guy has friends who are fighting against US troops” or “The evidence in this case was collected in a lawless region of the world”.”

    Allegations are insufficient. The first check on these concerns is the protection afforded by citizenship which I think I made pretty clear. The second check is that illegal combatants are either captured in theater or not (in which case they are terrorist suspects and subject to extradition, etc.). There is no allegation that results in lower standard in these cases at all.

    So far, we have removed citizens, international terrorist suspects, and illegal combatants captured overseas from the whimsy of allegations. That leaves us only with non citizens captured domestically for crimes tied to internatioal terrorism.

    If the ties to international terrorism can’t be established during a jurisdictional hearing, the guy is going to civilian court.

  138. If the ties to international terrorism can’t be established during a jurisdictional hearing, the guy is going to civilian court.

    What is the burden of proof in a jurisdictional hearing? What sorts of protections does the defendant have?

  139. thoreau,

    What is the burden of proof in a jurisdictional hearing?

    If it is just a grand jury we’re talking about, then its low.

  140. To put my fears in perspective:

    To date, no Islamists have attacked my home town of Milwaukee. However, we hear at least once a year (on average) about a dubious police shooting. A couple years ago, some off-duty cops got drunk at a party and beat the crap out of a guy. Only a handful of cops were willing to testify. One of them no longer receives backup when she gets on the radio to call for backup.

    Milwaukee’s state-sponsored militia group is a bigger threat to public safety than Jihadis.

    Jeffrey Dahmer, Milwaukee’s famous serial killer, was investigated for a kidnapping and ultimately released because the cops were incompetent. Giving them more power wouldn’t have made anybody safer. They were incompetent. He went on to kill a few more people before being arrested.

    So, my native city is menaced by a brutal but incompetent state-sponsored militia. And yet I’m supposed to conclude that the public would be safer if we just let the government face a lower burden of proof in certain cases? Yeah, right.

  141. thoreau:

    Once again, the difference is that Dahmer operated within an environment where we had good reason to believe that the totality of his crimes could be prosecuted and deterred. He was ultimately caught and the potential for continuing crimes ended in large part because the environment in which he operated was hostile to his continued success. He was also an isolated actor. He was also a citizen. I don’t see a strong parallel.

    Your risk analysis is off kilter from where I’m sitting.

  142. Alberto Gonzales arguing against holding any sort of trial once the guy is removed from the battlefield is erring on the side of tyranny.

    My understanding is that a portion of those released from Guantanmo were released reluctantly. …we wouldn’t have had to release them if we had bestowed POW status upon them. If, as has been asserted, some of those released later showed up on the battlefield, then the Bush Administration’s failed legal strategy didn’t just err on the side of tyranny, it erred on the side of incompetence.

  143. A lot of this conversation is based on moral conclusions about what one should never, ever do. But is that how real life works? And if real life doesn’t work that way, why is there no fluidity in areas of life like this?

    There’s a lot of moral conclusions like that bouncing around in the background, but I think a lot of it’s practical too. What’s more practical than holding combatants as POWs and releasing them at the end of hostilities unless they’ve been convicted of a crime? Sure, there are questions about when hostilities cease, exactly, the nature of the war crimes tribunals, etc., but those aren’t questions about what one should never, ever do.

  144. I think this thread will soon fade away. I would just like to say that Jason is an honorable opponent, and if every person who held his views could argue as well as Jason that would be a very good thing for everyone.

  145. T. is right. It is possible to have a back and forth mutually responsive dialogue with Jason Ligon (and with T. himself too), even when we don’t agree.

    If that ain’t good thinkology I don’t know what is.

  146. Thanks, T and Dave. I was wondering there for a while if we would lose it. I’m just glad we didn’t have this thread in full force on a work day.

  147. The “Doctor of Thinkology” is a clever reference to the original “man behind the curtain” (whom we should ignore). In the movie “The Wizard of Oz.” the Wizard (who was a fraud) awarded the scarecrow (who wanted a brain) a fake diploma as a “Doctor of Thinkology.” Tim was taking a gentle poke at commenter Thoreau, Hit and Run’s very own Deep Thinker. Perhaps Dr. Thoreau (who has a real, earned Ph. D.) could award Tim with a cheesy heart-shaped watch so that he can have a real heart.

  148. Clearly I need to re-watch “The Wizard of Oz” before I embarrass myself any further.

    🙂

  149. What to replace the black hole? I’d suggest a court. A court that isn’t composed of military officers or other executive branch employees. That is non-negotiable for me. I don’t want this to remain a purely internal executive branch affair. That’s simply too much temptation for mischief.

    So we’ll need judges. These will be unusual judges, with security clearances among other things. They’ll be similar to the FISA court. They should be appointed by the President and confirmed by the Senate, just like the FISA court. They should conduct their trials in accordance with laws established by Congress.

    I like the sound of that, myself.

  150. What to replace the black hole?

    Just to clarity my position, it seems to me that this “black hole” is a creation of the Bush Administration, a function of their incompetence. There is no amount of rethinking of our legal processes that will account for what happens when administration officials behave incompetently.

    …and if ignoring legal precedent and putting forth some novel legal theories, led us to release combatants before hostilities had ceased, if that isn’t incompetent, then I don’t know what is.

    There is no amount of legislation will account for incompetent leadership. …I have a fundamental issue with allowing Administration incompetence to seem as though we need to rework our policy. That smacks of flailing–I will not assist the Bush Administration to somehow, oh somehow, make all their stupidity on this issue seem brilliant.

    The black hole still seems like their bad decisions to me–not an absent necessity in the law.

  151. Jason Ligon writes: “This comment drags us backward a couple of steps. I don’t think the use of the term terrorist is appropriate on a number of levels. The guys with the sirens may be on occasion thugs, but they operate within considerable institutional constraints. No matter how you feel they might sieze on loopholes to make things worse, they don’t blow up schools answering to no rule of law.”

    How about the cops who bust into a private home at 4am, without announcing who they are, throw some grenades around, shoot people and pets, in order to arrest somebody for a nonviolent crime, then find out it’s the wrong house, and the 72 year old man who was just shot dead has a spotless record.

    And for this, nothing happens to them, except they probably get more taxpayer money the next year for bigger guns and more paramilitary drag to wear.

    Using that level of force where it isn’t remotely needed is a prime example of establishing a reign of terror.

  152. “Using that level of force where it isn’t remotely needed is a prime example of establishing a reign of terror.”

    JonH:

    I’m sympathetic to the excessive force and police brutality bit, but I think advocates of liberty do themselves a disservice by making hyerbolic comparisons. You do not live in a reign of terror. If you think you do, you lack imagination.

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