The Best Only for the Worst

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Under the military commission bill passed by the Senate yesterday, a version of which the House already has approved, the "worst of the worst"—detainees like Khalid Shaikh Mohammed—get the best treatment, while the rest, including detainees who not only are not big-time terrorists but may in fact be innocent, are left to languish in obscurity. The commission procedures include fewer safeguards than ordinary criminal trials or courts-martial, but they are fairer than the Bush administration's original rules, allowing defendants to see all the evidence against them and restricting (but not completely disallowing) the admission of hearsay and of evidence obtained through "cruel or inhuman" means. Judgments can be reviewed by the U.S. Court of Appeals for the D.C. Circuit and ultimately by the Supreme Court.

But these protections apply only to the guys we're pretty sure are guilty. The rest, including poor schmucks sold for ransom by U.S. allies in Afghanistan and falsely identified as Taliban or Al Qaeda hangers-on, probably will never be brought before commissions. All they've got is the Combatant Status Review Tribunals, in which the military perfunctorily confirms that it was right to lock them up. The bill (which the president is expected to sign any day now) purports to strip them of the right to challenge their detention in federal court.

I say "purports" because the Supreme Court ruled that noncitizens detained at Guantanamo do have that right, since the base is effectively U.S. territory. If I'm reading that decision correctly, the Court said it was a statutory right and did not address the issue of whether it was also a constitutional right. But assuming it is, and leaving aside the question of whether we are in the midst of "rebellion or invasion" (we're not), can Congress selectively suspend habeas corpus? It clearly is not prepared to suspend it across the board, for citizens and noncitizens alike, and the Supreme Court says citizens detained as "enemy combatants" must have an opportunity to contest their status before a "neutral decisionmaker."

Speaking of which, the bill apparently confirms (grants?) the executive branch's authority to unilaterally identify "enemy combatants"—defined as people who "purposefully and materially" support hostilities against the U.S.—and detain them indefinitely. This seems to mean that noncitizens in the U.S. or anywhere else under U.S. control can be locked up at the president's whim, with no legal recourse whatsoever. Citizens presumably would have to get their shot with a "neutral decisionmaker." The Bush administration says the Combatant Status Review Tribunals qualify. Will the Supreme Court agree? Unfortunately, that's not a rhetorical question.

Here is the text (PDF here) of the bill passed by the House, which I gather is very similar to what the Senate passed.

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  1. Actually, the “purposefully and materially support hostilities against the U.S” definition is in a separate and independent clause of the bill from the “designation by a tribunal established by the Secretary of Defense or the President.” In other words, an Unlawful Enemy Combatant is EITHER a person who “purposefully and materially, etc.” OR a person so designated by the administration through a tribunal of their own making (not a court of law). There is no requirement under the second clause that the tribunal make a finding that the suspect “purposefully and materially” did anything. So, as we have seen before with post 9/11 legislation, you have a problematic definition followed by a catch-all section that swallows the definition entirely. On its face this bill applies to citizens and non-citizens alike. On its face, this bill strips even citizens who have been designated as UEC’s of habeas rights. And, on its face, this bill requires no appellate mechanism to challenge a UEC designation.

    This is an awful bill. The only basis for not being scared to death of this bill is if you “trust” the people in this administration, because there is now no practical formal restraint on their detention authority. And if “trust” is all you have, then you have signed on to a government of men, and not of laws.

  2. Is a detainee who doesn’t speak English entitled to an interpreter? Just saying they better get that in writing in the bill, or the Administration might not think of it.

  3. I’ve had a sick feeling in my gut since hearing of the senate’s passage of their bill. Is there some recourse to sanity left, or are we pretty much doomed?

  4. Republican Congressmen who voted for the bill are already saying they consider the bill unconstitutional, but they’re confident that the Supreme Court will strike it down.

    You know, that the ban on independent ads before elections in McCain-Feingold.

  5. Republican Congressmen who voted for the bill are already saying they consider the bill unconstitutional, but they’re confident that the Supreme Court will strike it down.

    You know, like the ban on independent ads before elections in McCain-Feingold.

  6. Osama won.

    How long until detention and torture get applied in routine domestic law enforcement, like the War on Drugs?

    I give it six months.

  7. I’m afraid Brian’s right.

    Anybody having second thoughts about calling vandalism “eco-terrorism” yet?

  8. Now that the President has the authority he sought, see a tongue-in-cheek visual of the Grand Opening of “Tortureland”…here:

    http://www.thoughttheater.com

  9. joe,

    So they’re using the whole “Voting their position, not their conscious”, voting for it out of a desire to appear consiliatory, but secretly hoping its so onus that the Supreme Court will wipe it off the face of the Earth and 2 years from now everyone will forget that they’re a bunch of scumbags willing to trade freedom for…playing nice with the executive branch?

  10. I am expecting a SCOTUS review of this law. There are a couple of issues. This law meets one of three points SCOTUS previously ruled on. Will that be enough? It is expected to be approved by Congress. So there is Bush Congressional authorization. But does it really meet GC, international, and federal standards SCOTUS spoke of and will they have a problem with it if it does not?

    They can try to “redefine” the GC but I don’t the SCOTUS will buy that. If one party can re-interpret the GC their own way, then any other party can too. That makes it difficult to apply the GC under any circumstance. There would be no standard of application.

    Is this law post de facto? That alone could get it struck down.

    We will see.

  11. I’ve had a sick feeling in my gut since hearing of the senate’s passage of their bill. Is there some recourse to sanity left, or are we pretty much doomed?

    I go with doomed.

  12. …restricting (but not completely disallowing) the admission of hearsay…

    Hearsay is admitted into evidence under all sorts of circumstances in regular criminal trials. Check out Article VIII of the Federal Rules of Evidence sometime.

  13. Citizens and non-citizens have different rights under this act, and non-citizens basically have no rights to a hearing of any kind. This leaves open the question as to how the determination of a detainee’s citizenship will be made. There is not an obvious, unambiguous way to determine whether someone is a citizen; that depends on where the detainee was born, who his or her parents were, whether the detainee has been naturalized, etc. It seems like the executive branch can simply assert that a detainee is not a citizen, and then the detainee will have no way to prove that he or she is a citizen.

    Any time there is a classification of persons who have no legal rights, it leaves anyone who is wrongly categorized with no recourse to challenge that classification.

    I do not support the extreme limitations on rights afforded event to citizens under this bill, nor do I support the claim that US citizens have special legal rights that others do not, but it seems that if people are treated differently based on their status as a US citizen, that everyone needs to have at least enough legal process to prove their citizenship.

  14. This is a cut and paste of the Senate bill. It does not classify “citizens”. As a guess, (TrickyVic may be of some help here), an American citizen who is picked up under any of the circumstances enumerated would probably fall under our laws as they apply to treason and “taking up arms against the United AStates”. In that case this bill would not apply to such an individual.

    (Two of the prominent votes cast were , , Hillary – Against, and Leiberman – For)

    `(3) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant’ means an individual who is–
    ` . . .(A) a member of the regular forces of a State party engaged in hostilities against the United States;
    ` . . .(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
    `. . . (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

    `(4) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant’ means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.

  15. Mr. Sullum opens with:

    >>>>>Under the military commission bill passed by the Senate yesterday, a version of which the House already has approved, the “worst of the worst”?detainees like Khalid Shaikh Mohammed?get the best treatment, while the rest, including detainees who not only are not big-time terrorists but may in fact be innocent, are left to languish in obscurity. The commission procedures include fewer safeguards than ordinary criminal trials or courts-martial, but they are fairer than the Bush administration’s original rules, allowing defendants to see all the evidence against them and restricting (but not completely disallowing) the admission of hearsay and of evidence obtained through “cruel or inhuman” means. Judgments can be reviewed by the U.S. Court of Appeals for the D.C. Circuit and ultimately by the Supreme Court.>>>>>

    Is he trying to replace the Geneva Convention with the bill just passed? Wasn’t the purpose of the bill to clarify whether Detanees had rights to a trial by established courts rather than by Military Commissions?

    And doesn’t the Geneva Convention still apply to how long a detainee can be held? Further, doesn’t the GC provide that detainees can be held . . . without trial . . . until the cessation of hostilities”?

    Please forgive my cynicism if I recommend that we could reduce detentions costs to zero, enhance AQ recruitment effort and start a revolving door program, all at the same time, by just releasing all detainees every time we nab them.

    Heck, why not just buy them a bus, taxi, plane, ship or train ticket back to the nearest AQ staging point? Maybe a phone call would be better, to have someone from AQ come and pick them up, all bathed, freshly groomed and with a new set of turbans in their tote bags.

  16. I would guess your right Elmo. There are other laws for which they could charge a U.S. citizen. But you never know, they made the P.A.T.R.I.O.T act sound like it would only apply to terrorism, that ended up not being the case.

    I would like to believe we are on the moral high road and that any legislation passed would be of a fairness that other countries could apply it to our people. I have what I’ll call the “Armed Texan” test.

    If a Texas citizen picked up a gun to defend against an invasion across the Mexico border, would he/she be a lawful combatant? I say yes, lawful. Any citizen has the right to take up arms to defend their country from an invasion. The GC agrees.

    I think it would be immoral to not recognize that right.

    Elmo’s excerpt would not recognize that right.

    The “Armed Texan” would not have “a fixed distinctive sign recognizable at a distance”. And probably would not be under “responsible command”. I’m not even sure what that means.

    If they are real enemy on the battlefield they should not be allowed to walk off alive. War is about killing people and capturing land, not the other way around. If you arrest them, you create moral issues. To lower our standards is just that, lowering our standards. I don’t know about anyone else here but I want to live in a society that places high standards on pretty much everything of real importance.

    If we don’t want to provide them with quality jurisprudence, don’t let them walkoff the battlefield alive. Or hold them for a short term.

    As far as real terrorist, no one cares if you assassinate them when you find them. We shouldn’t have a single terrorist in custody, it should be a wall of dead terrorist photos. I guess Bush likes things complicated.

  17. TrickyVic,

    I think your armed Texan is covered under the Geneva Convention when he is acting to protect against an invader in a manner that his government would act if that governemnt were on the scene. That is, he must be conforming to the rules of war.

    I will try to find the relevant part of the GC and post it.

    As for leaving the terrorists all dead? Well, since they seem to aspire to “martyrdom” anyway, maybe it’s something to think about down the pike, if and when things get really fuzzy in our own neighborhoods, with rubble in the streets. Fact is, I suspect some minds that right now want to provide kid gloves to the Gitmo detainees will be right out in front about somebody doing just that.

    But only verbally, that is. They’ll be too busy trying to stay out of the field of taking any “responsibility” for the situation.

    There is a precedent for not leaving any live enemy on the battlefield. On Guadalcanal, the first island they lost in the Pacific, the Japanese left some 35,000 of it’s soldiers sailers and Marines dead. We captured less than 400. On Tarawa it was 6,000 lost and 17 prisoners; all were sick or wounded. On Okinawa it was over 105,000 lost and 1,700 prisoners. Again, all were sick or wounded. Another 110,000 civilians died. Okinawa is still referred to as “The Iron Typhoon”.

    At the end of 1944, the ICRC counted a total of 8,658 Japanese prisoners, scattered among five camps in the United States, seven in Australia and New Zealand, four in the Pacific Islands and five in China. The number of these prisoners increased sharply during the first six months of 1945, with the advance of the Allied forces in the Philippines and the Japanese islands, and by the end of July 1945 it was thought to have reached a total of 15,949.

    In fact, by that time we had all the territory that was ever taken, so it looks like the Japanese prisoner of war population for the entire pacific war was 15,949. Out of the millions we encountered.

    I don’t think the American public, (if H&R is any example), is ready to fight that kind of war again. . . . . at least not just yet.

    But what would it take to turn these same Americans into pure savages? Not much, really. Loss of electricity and food for about a week is my guess.

    Cut off the drinking water and it won’t take a week.

  18. The above Armed Texan’s treatment is prescribed in Article 4, A(6) of the Geneva convention. IOW just as I said before.

    ARTICLE 4
    A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

    (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

    (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

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

  19. Yes, 4A(6) is where the Armed Texan would be covered. I agree that laws and customs of war must be followed. Customs I understand. Laws is a little differnt. It would make no sense to be required to follow laws of war written only by the country you invade. The invading army would be responsible to follow their own laws. We have the UCMJ. So that makes me think laws of wars must be created at the international national level. That was probably some of the idea behind the GC. An international standard. This country, fresh from the experience of war, signed the GC. So I think it’s possible that SCOTUS will apply an international standard to this law.

    “”At the end of 1944, the ICRC counted a total of 8,658 Japanese prisoners, scattered among five camps in the United States, seven in Australia and New Zealand, four in the Pacific Islands and five in China”””

    Sure, taking prisoners from the battlefield is not new. What did we do with those prisoners? In standard war you exchange prisoners at the end of the war. Our current enemies are not interested in prisoner exchanges. What can we gain by taking prisoners? It’s caused us more grief than anything.

    “””But what would it take to turn these same Americans into pure savages? Not much, really. Loss of electricity and food for about a week is my guess.

    Cut off the drinking water and it won’t take a week.”””

    Oh yeah, many don’t consider it but, this gives new meaning to personal waste management.

  20. TVic,

    The reason we had no more Japanese prisoners than we did was because they didn’t surrender. They didn’t even have the word in their vocabulary. When the Emporer broadcast that he was going to surrender, he did not have that word to use. What he said was that they would “accept the terms of the Allies”, and cease the conflict.

    A coup attempt followed to try and prevent the cessation of hostilities, and many, many Japanese committed suicide rather than face the dishonor of having failed.

    Last night I heard one news reader say that the day after Pearl Harbor the Japanese experienced a great influx of Kamikaze enlistments. Pure re-written history. The Japanese didn’t have an organized Kamikaze effort until the war was essentially lost during the battle of the Philippines.

    I apologize if the next is making a wrong assumption.

    The GC is a treaty between signing nations. It is the International Laws of War, (between signing nations). It is for each signing nation to then incorporate into it’s own national laws those laws necessary to conform to the GC. In our case the UCMJ dictates approved conduct in war for our uniformed services. Other US government departments might not have to comply with UCMJ, but they “would” have to comply with US laws that are specifically written to conform to GC. Where no nation writes “enabling legislation” to implement the provisions of GC, then the individuals representing that nation are bound by the larger International law, the GC itself.

    Where a beligerent party represents a nation that is not a signator to the GC, they may not be charged with any violations of it per se, but they may be charged with other heinous crimes. (Such as the laws of their own nation.) Some Japanese were in that category after WWII. All the trials in Germany were in accordance with GC violations.

    The Russians treated their own troops who had surrendered, or were otherwise captured by the Germans, worse than they did the Germans. And that was bad. Over 300,000 Germans started the battle of Stalingrad. 90,000 of them surrendered to the Russians. 6,000 survived POW treatment and eventually returned to Germany.

    Geneva Convention per Google can be viewed at:

    http://72.14.203.104/search?q=cache:unW9lJcYQbcJ:www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm

    Japan was not a signatory nation and was not bound by the provisions of the GC. After the war there were very few Japanese tried for war crimes, though they were innumerable and heinous in scope, including experiments on humans in China that would make the Germans look like a class of 6th grade students dissecting frogs.

    They captured both military and civilian construction personnel on Wake Island on December 23, 1941. They shipped everyvody off the island except most of the civilians. Just before the island was re-captured the 98 of them who were still alive were executed.

    There were NO prisoner exchanges with the Japanese. There weren’t even any discussions of prisoner exchanges with the Japanese. I’m not sure if there were any with the Germans or Italians, but I don’t think so.

    The US Navy captured German submarine U-505 off the African coast and held the sub and it’s crrew incommunicado until after the war. The Red Cross didn’t even know we had them. The story can be viewed at:

    http://www.msichicago.org/exhibit/U505/history/capture/06_prisoners/index.html

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