Antonin Scalia

Terrorized by the Supreme Court

Why conservative fears about the habeas decision are way overblown

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A lot of people who strongly believe in the war on terror are not above sowing a little terror of their own. From the reaction to last week's Supreme Court decision on Guantanamo, you would think the detainees were all going to be trained, armed and set free at Ground Zero, with free shuttle service to the nearest airport.

John McCain denounced the ruling, which said inmates may ask for federal court review under a procedure known as habeas corpus, as "one of the worst decisions in the history of this country." Former Bush Justice Department official John Yoo warned that henceforth, captured enemy fighters will be read their Miranda rights. The irrepressible Wall Street Journal had a cartoon with a judge atop a cage labeled "Gitmo" watching masked inmates stream out wearing suicide vests and lugging AK-47s.

All this outrage builds on the dissent registered by Justice Antonin Scalia. The court's decision "will make the war harder on us," he thundered. "It will almost certainly cause more Americans to be killed."

Well, it won't have that effect unless it leads to inmates being released—which it has not, will not anytime soon, and may not ever. If and when it does, he may have a point, though not necessarily a powerful one.

Anytime you let someone out of prison, even if he's innocent, you create the possibility that he will someday kill someone. Scalia makes much of the supposed fact that 30 of the detainees freed from Guantanamo "have returned to the battlefield." Just because they were later captured or killed, however, doesn't mean they "returned" to the war.

Some of them may have been victims of mistaken identity, which could explain why those softhearted folks at the Pentagon let them go. But stick a blameless unfortunate in a cage for six years, abusing him in the process, and when he comes out, he may seek revenge. The only way to eliminate the risk is to keep all the detainees locked up forever.

Even the Bush administration has not gone that far. It was happy to free more than 500 inmates over the years. When it did, by the way, nobody accused the president of causing more Americans to be killed.

Besides, any releases are only speculative right now. To have a chance at freedom, a prisoner will have to make a plausible case that he's innocent. The administration had already planned to try 80 of the detainees before military commissions, which suggests it has abundant evidence of guilt.

Presumably the Defense Department has information to show that many, if not all, of the others were connected to al-Qaida or other enemy forces. If the government presents incriminating evidence that the inmate can't refute, a habeas corpus petition will be about as useful to him as a snowboard.

Nor are the courts likely to let the American Civil Liberties Union draw up the standards for release. Justice Anthony Kennedy, writing the majority opinion, indicated the judiciary will err on the side of caution.

"Habeas corpus proceedings need not resemble a criminal trial," he stipulated, for those worried about Miranda warnings. Though inmates have rights, he noted, "it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent."

Let's suppose there's an inmate whom the Pentagon thinks was fighting for al-Qaida but lacks any supporting evidence it can use in court. Does he now have a get-out-of-Gitmo-free card? Not necessarily.

In that case, says Northwestern University law professor Ronald Allen, the government could classify him as a prisoner of war—who, like POWs in previous wars, may be held until the hostilities cease. The trouble, from the administration's point of view, is that he would then be entitled to standard POW protections, such as being treated humanely and not being punished for refusing to answer questions. But at this point, that's a small price to pay.

It's also a small price to say that if the executive wants to capture someone, treat him as an unlawful enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself. Critics of this decision are terrified that the courts will have the power to free innocent men. But really, the alternative is a lot scarier.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

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  1. “In that case, says Northwestern University law professor Ronald Allen, the government could classify him as a prisoner of war-who, like POWs in previous wars, may be held until the hostilities cease.”

    And when will that be? When can we say we have “Won the War on Terror?” This war seems more like the War on Drugs or The War on Poverty in that sense than a normal military war.

  2. Concur. Just what entity does Scalia expect to be anguishing over their POWs and whose surrender will signal the end of hostilities? Al Qaeda? Which Al Qaeada? The Taliban? FARC? KAOS? Perpetual war for perpetual control.

  3. Scalia has always struck me as one of those guys whose compass is not principle but mushy “it just feels right” emotionalism.

    He’s just really good at rationalizing his emotionally generated decisions, and people confuse the sarcasm that laces those rationalizations to with wisdom.

    Then again, compared with other “world class” lawyers like John Yoo, Scalia would look like a fount of wisdom.

  4. In that whole article nothing about WHY enemy combatants should be granted habeas corpus. I’m not necessarily against it, but I haven’t yet heard a convincing argument as to why the constitution protects enemy combatants, or even non-citizens for that matter.

  5. OK Hmmm, I’ll explain this very simple concept:

    The constitution does not protect anybody. It does not protect you, or me, or that crazy bag lady down the road.

    It authorizes the government to do certain things. One of them is to allow Congress ti suspend habeas corpus under certain circumstances: circumstances that have not been met.

    See, not dramatically hard. Congress has no more power to suspend habeas corpus right now than they have the power to order your wife to have sex with the senior members of the judiciary committee – something that also is not explicitly forbidden to them by the constitution.

  6. Hmmm…,

    In that whole article nothing about WHY enemy combatants should be granted habeas corpus.

    In a thread yesterday, matth answered that the best I have seen. It isnt a constitutional answer but a moral one:

    I can’t come up with any moral justification for denying any person the right to challenge their imprisonment. Regardless of who holds them or where. The power to arrest is one of the most frightening powers a government commands and should be totally transparent and easily challenged at all times.

  7. Not that the Administration sees it this way, but couldn’t a POW from Iraq only be held until that war is over (same goes for Afghanistan). Seen in that light, POW status would seem to make sense.

    Of course, the Administration doesn’t see it that way, so it’s a moot point.

  8. “The detainees will have to show plausible evidence of innocence.”
    No, goddammit, the government should have to prove BEYOND A REASONABLE DOUBT that they are guilty of terrorist activities.

  9. if the executive wants to capture someone, treat him as an unlawful enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself.

    This is what this case is about. Personally, I would like checks on the violence that is done in my name. In fact, I would like to know more about the “combantants.”

    If this country, through the acquiescence of the Courts, allows the executive to prosecute this policy with abject inhumanity that includes torture, then we are no better than North Korea, Iran, or any other petty tyrant on the street.

    No one here who agrees with this decsion expects the courts to have the authority to stop D-day, but telling the executive to stop torturing a few individuals for no gain is something that is in our self interest.

  10. Marcvs 9:34 am,
    They can’t really be POWs can they, since we’re not *technically* at war?

    Oh, that’s right. This is all part of the “war on terror”. So why aren’t the suspects POWs?

  11. economist,

    No, goddammit, the government should have to prove BEYOND A REASONABLE DOUBT that they are guilty of terrorist activities.

    Um, this isnt about a trial. People can, in fact, be held well be they are proved guilty. The government just needs to show reasonable evidence to hold them for a later trail.

    This is why I dont understand all the fuss over this decision. No one with any real evidence against them is going to be set free.

  12. be held well before they are proved

    Typing hard.

  13. I think the power to suspend habeas corpus is also incredibly dangerous. Congress should have to at least get a 2/3 majority in both houses to do so AND to keep it in effect it should have to renew the decision every year. Otherwise, you can either charge or release.

  14. Seton Hall Law School has issued a report discussing the freed detainees.

    http://law.shu.edu/center_policyresearch/reports/urban_legend_final_61608.pdf

  15. robc,
    If the government is going to hold someone for any significant length of time (I’d say 5 or 6 years should definitely qualify), they should have to justify it by proving the person’s guilt. This might just be the radical anarchist in me talking. Dammit, get back, anarchist! Back!

  16. So why aren’t the suspects POWs?

    Because they don’t meet the definition of POW in the Geneva Conventions: they aren’t in uniform or governed by a chain of command on behalf of a signatory to the Geneva Convention.

    You can hold POWs for the duration because the duration has a finite and legalistic end – the end of a war between sovereigns, which is marked by articles of surrender, an armistice, or whatever. That is not the case in the current conflict.

    The POW model really doesn’t apply. People are uncomfortable with the old “illegal combatant” model of summary execution. Some (including SCOTUS) believe we should overlay a civilian criminal justice model onto an armed conflict; others are not so happy with the operation or implications of that.

  17. If the government is going to hold someone for any significant length of time (I’d say 5 or 6 years should definitely qualify), they should have to justify it by proving the person’s guilt.

    Including POWs?

  18. Including POWs?

    You just said that they weren’t POWs, so that doesn’t apply in this case.

  19. There is a lot of theory in this article. There is a lot of hypotheticals, however, in the real world, folks like Khalid Sheikh Muhammad will now use our federal court system to delay and to propagandize.

    Never in the history of our country has an enemy in war been granted access to our federal court system. That is what has happened now.

    No one knows what will happen as a result of this ruling but the nightmare scenario is thousands of terrorists using the appeals process to propagandize against the U.S. in our own courts. There is plenty to fear there.

    This ruling is one of many misconceptions that liberals have about the GWOT. Here is most of them…

    http://theeprovocateur.blogspot.com/2008/06/liberal-misconceptions-lies-and.html

  20. One result of this may be that more of the enemy are killed on the battlefield. I think there will be a mindset (perhaps unconscious) that “I need to kill him here so he does not go through the revolving door of our court system.)

  21. Including POWs?

    Sure POW’s. Look at what happened with the German POW’s in Russia. Many of them weren’t released until the mid 1950’s.

    During the time of active hostilities you can make an easy case that Seargeant Shmukateli should continue to be a prisoner. The idea that thousands of German POW’s would clog the courts in 1944 is risible. The U.S. Federal Court system is capable of handling a few thousand cases a year. After 10 – 20 the rules would be clear to all participants allowing them to agree on likely outcomes for the vast majority of cases. Only the borderline ones would make it to trial. So we are talking about maybe 100 cases a year that won’t be summarily handled.

    Furthermore, everyone assumes that one has to keep POW’s incarcerated. That’s not the case – up to the mid 19th century it was quite common to offer prisoners of war Parole so long as they confined themselves to some town or city and kept some officer apprised of their movements.

  22. People are uncomfortable with the old “illegal combatant” model of summary execution.i>

    Actually, people are uncomfortable with applying it to this situation, which is so very different from the old “spy snuck through the lines, posed as a farmer, and was caught before he could plant his bomb” situation for which that model was created.

    Have you heard a single complaint about American soldiers in the field shooting anyone who was actually an enemy combatant?

    The old model you refer to was never meant to apply to, for example, the guy brought in with a rope around his wrists by two Afghan fighters who swear to Allah that he used to be Osama bin Laden’s manicurist, and want their two grand paid in cash, if it isnt’ too much trouble. The language in Geneva presupposes that the prisoners in question ARE enemy combatants, when in this case, the method of determining that fact is precisely the disputed issue.

    Heck, even John Kerry carved out an exception to his anti-death penalty position for terrorists.

  23. D’oh!

    Only that first part is a quote, from RC. The last four ‘graphs are mine.

  24. One result of this may be that more of the enemy are killed on the battlefield.

    Almost none of the people held at Guantanamo Bay were captured on the battlefield. They were either arrested in raids.

  25. No one knows what will happen as a result of this ruling but the nightmare scenario is thousands of terrorists using the appeals process to propagandize against the U.S. in our own courts. There is plenty to fear there.

    OH NOES! ENEMY PROPAGANDA REACHING THE TENDER EARS OF THE AMERICAN POPULACE! WE’RE DOOMED! FEW AMERICANS CAN RESIST THE SWEET CALL OF JIHADIST PROPAGANDA!

    God, if you have such little trust in your neighbors’ ability to handle living in a free country why don’t you move to Cuba? There you can live safely among people who haven’t been contaminated by enemy propaganda.

  26. tarran,

    Have you ever looked at the difference between Scalia’s writing before and after Bush took office?

    He used to write like a serious scholar, and now he writes like an internet troll.

  27. Mike: Sure, but you’re theorizing too, in your “nightmare scenario”. Though don’t worry, you’re in good company: Scalia did the same in his opinion. (Aside: this is a pity. Scalia freqeuently has good ideas and incisive analysis but his tendency towards snarkiness or even pure vitriol screws up his best opinions and at worst leads to frothiing opinions like the most recent one).

    Souter’s opinion put it best: these guys have been there for a Damn Long Time and it’s been the Government that has been frustrating their efforts to claim their innocence. The issue ain’t the guilty ones, it’s the innocent ones (and don’t give me the bullshit that they’re all guilty; there have been enough of them that have been released after we admitted a mistake – years later). If some government picked YOU up mistakenly and held you without charge and under torture for SIX YEARS without letting you challenge your detention – meaning, letting you say “Hey, I’m innocent!” – you’d be pretty damned pissed if you hadn’t been driven batshit insane. The government needs someone to call it to account lest it continue to extend its power.

    No one is talking about letting these guys go. Just in letting them show they might be innocent. And our Poor Overwrought Government is plenty big enough and mature enough to handle a few hundred court cases especially if the outcome will be to show we’re grown up enough to follow our own rules.

  28. Mike Volpe,

    This decision doesnt allow them to fill the courts with propaganda. It allows them to ask “why am I being held?” If the government has an answer, then back to the cell for them. If not, then they get sent home. Thats it. That is all this does.

  29. You just said that they weren’t POWs, so that doesn’t apply in this case.

    The statement at issue doesn’t distinguish between POWs and others. That’s why I asked.

    Look at what happened with the German POW’s in Russia. Many of them weren’t released until the mid 1950’s.

    A clear violation of the Geneva Conventions.

    The idea that thousands of German POW’s would clog the courts in 1944 is risible. The U.S. Federal Court system is capable of handling a few thousand cases a year.

    A few thousand new cases on top of their current caseload wouldn’t be so easy to digest.

    And, in WWII, it wouldn’t have been a few thousand, it would have been tens of thousands, with a concurrent burden on the military to make the case.

    After 10 – 20 the rules would be clear to all participants allowing them to agree on likely outcomes for the vast majority of cases. Only the borderline ones would make it to trial.

    What’s the incentive for an enemy soldier to agree to forego his due process rights? They have a duty, to their country, to be as big a burden as they can while a prisoner.

    That’s not the case – up to the mid 19th century it was quite common to offer prisoners of war Parole so long as they confined themselves to some town or city and kept some officer apprised of their movements.

    That stopped being practical around, oh, the early 19th century as the size of the armies involved in warfare got much, much larger.

  30. Ya, I gotta agree with Chapman here:

    Well, it won’t have that effect unless it leads to inmates being released-which it has not, will not anytime soon, and may not ever.

    The existing process was releasing detainees as long as they vowed not to commit any more terrorism (and many of them, of course, did go back to terrorism after being released). This isn’t likely to release anyone who wasn’t going to be released anyway.

  31. Here’s the numbers, btw:

    Since the beginning of the current war in Afghanistan, 775 detainees have been brought to Guantanamo, approximately 420 of which have been released without charge. As of May 2008, approximately 270 detainees remain.[9] More than a fifth are cleared for release but may have to wait months or years because U.S. officials are finding it increasingly difficult to persuade countries to accept them, according to officials and defense lawyers. Of the roughly 355 still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest. On February 9, 2008, it was reported that 6 of the detainees at the Guantanamo Bay facility would be tried for conspiracy in the September 11, 2001 attacks.[10]. In May 2008, the Pentagon claimed that 36 former Guantanamo inmates were “confirmed or suspected of having returned to terrorism”[11]

    http://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp

  32. RC Dean 10:11 am,
    No, because you know for a fact they are fighting for the other side. However, I take issue with the idea of “illegal combatants” as a separate class with the disadvantages of POWs (no access to the court system) and none of the advantages (guaranteed release upon the end of formal hostilities). Although I generally consider distinctions between government-sanctioned violence (applying in the case of POWs) and individually initiated violence (as in the case of many of these “illegal combatants”) to be specious, I understand the practical necessity of holding enemy soldiers until the end of the conflict. However, since we are not fighting a “sovereign” power and thus cannot formally end the conflict, the only logical option that I can think of to deal with cases in which one is suspected (but not proven) of having been involved in terrorist activities is to allow the captive a civilian trial, or its equivalent.

  33. there have been enough of them that have been released after we admitted a mistake – years later). If some government picked YOU up mistakenly and held you without charge and under torture for SIX YEARS without letting you challenge your detention – meaning, letting you say “Hey, I’m innocent!” – you’d be pretty damned pissed if you hadn’t been driven batshit insane.

    Not likely. Only three people were ever waterboarded. The worst you could expect is bright lights and yelling.

    Wrongful imprisonment happens to people in America all the time, and they manage not to become terrorists. There’s probably 100x as many Americans wrongly imprisoned in civilians prisons, under worse conditions.

    And if you can prove your case, you at least get a multi-million-dollar settlement.

  34. Because they don’t meet the definition of POW in the Geneva Conventions: they aren’t in uniform or governed by a chain of command on behalf of a signatory to the Geneva Convention.

    I have never been satisfied with this argument, for one of two reasons:

    If the US signed the Geneva Convention because we believe that regardless of what uniform they wear or what side they fight on, people deserve to be treated with dignity, then the fact that these people wear exploding vests rather than uniforms doesn’t give us license to hold them incommunicado and torture them to death.

    If, on the other hand, the US signed the Geneva Convention because we didn’t want the other side to be mean to boys from our side that they captured, then we’re a bunch of hypocrites.

  35. Turner Classic Movies recently aired a 1950’s movie “Ivanhoe” a classic knight in shining armor epic. It’s essentially unwatchable so I watched only long enough to catch one memorable line: “Justice for all or justice for none.” If America allows a president and his cronies to combine the powers of policeman, judge and jury, no one’s freedom is safe.

  36. Not likely. Only three people were ever waterboarded.

    Aw, that is SO CUTE.

  37. And if you can prove your case, you at least get a multi-million-dollar settlement.

    No, in this situation, if you can prove that the government wrongly arrested you, imprisoned you in a foreign country, tortured you, and then dumped you in another foreign country without a passport, you get the satisfaction of the government claiming ‘state’s secret’ privilege and having the lawsuit dismissed.

  38. People are uncomfortable with the old “illegal combatant” model of summary execution.

    There is no summary execution allowed, unless you’re referring to the methods of an Einsatzgruppen. Article 5 is quite clear on the subject.

  39. Look, there’s a reason we don’t send POWs back to the enemy during the war–we don’t want them coming back to shoot at us again. That’s the case with terror suspects picked up in the field, too. The key difference is that the guy in a Nazi uniform you grabbed in North Africa was clearly fighting for a declared enemy–Germany–and there was no need to formally determine his “guilt”, i.e., that he was an enemy combatant.

    In the current situation, it’s the latter point that requires some level of due process. We still don’t want to be sending combatants back into the field to shoot at us, but we now have to determine for some portion of the detainees that they are, in fact, enemy combatants. If the military presents evidence that Evil Ali was wearing the same outfit as the other guys shooting at us, was carrying a gun, and tried to kill his captor, that’s probably enough evidence to hold him for some amount of time (the indefiniteness of the WOT is another problem). However, when the evidence isn’t that clear, some sort of hearing is probably in order.

    On U.S. soil, I think you’ve got to try them in the civil courts, though it depends on the “war” in question. This can get into the citizen vs. person debate, but I think there’s no doubt that the current administration has done wrong to try to resist trying American citizens in court.

  40. TallDave,
    “There’s probably 100X as many people wrongfully imprisoned in US prisons”
    And I wouldn’t be at all surprised if being treated like a criminal whether you are one or not caused you to become one.

  41. Related to the problem of released detainees coming back to continue the fight:

    A popular talking point is the detainees released from Guantanamo have later been captured on the battlefield. Leaving aside (for the moment) the accuracy of the allegation that they were combatants after release, I don’t think this anecdote proves what the objectively-pro-gulag side wants it to prove. I am less than shocked when the executive branch screws up when making a decision (e.g. release) unilaterally and without the benefit of an open and careful process to examine evidence.

    Trials are about sorting wheat from chaff. Yes, there is a burden of proof and a presumption of innocence, but there’s also a process for examining evidence. That’s important when trying to make sure that you actually get the bad guys.

  42. Does anybody believe TallDave’s statement that people are realeased from Gitmo with NO OTHER conditions than a promise to be good?

    Anyone?

    At all?

  43. One result of this may be that more of the enemy are killed on the battlefield. I think there will be a mindset (perhaps unconscious) that “I need to kill him here so he does not go through the revolving door of our court system.)

    Not a chance in hell. Have you been paying attention to the military trials of Marines that have been going on over the so-called “massacres” in places such as Haditha?

    The Pentagon and our entire military is so lawyered up from top to bottom now that for all intents and purposes a soldier or Marine is forbidden from discharging his weapon without getting approval from the lawyers first. A sure-fire way for the greensuit lawyers to rise up in rank is if they can get a successful prosecution of combat troops for an unlawful killing.

    One of the greates (and sickest) ironies of this Supreme Court decision is that these foreign illegal combatants are inevitably going to end up having more rights under our system that our uniformed troops themselves do.

  44. Mike, you’ve got to be kidding. Getting a conviction or even prosecuting combat troops is career-killing, not promotional. Representing the Gitmo detainees has been nightmarish, not heroic.

    As for detainees having more rights than the troops: not if those troops are arrested they don’t. Troops in the field: no rights anyway. See Uniform Code of Conduct. Enemies in field: no rights anyway; see Geneva Conventions with appropriate lack of sifgnature. Apples to apples please.

  45. No, no, Hamilton’s exactly right.

    Why, just look at how Major General Anthony Taguba’s career took off after he realeased the report he was ordered to produce about Abu Ghraib.

  46. Er, should be, “hamilton, he’s exactly right…”

  47. I see some interesting thoughts on the thread, including the wingnut specialty of just making sh*t up, but I think the real issue to those who are/were involved in prosecuting the “War on some Terror” is a very real desire to keep the lid on what has actually been going on. Judging from what has leaked so far, there is a growing case for war crimes prosecution directed at them. Creating a special here-to-fore unknown class of “combatant” was part of the strategy to bypass existing law. Because I find it hard to believe anyone could honestly believe the proveably nonsensical justifications of their fear, I believe the rabid supporters of this same “war” don’t want to know just how egregious the prosecution has been from legal, competence, and moral aspects because that would expose them to be hypocrites at best and idiots at worst, or maybe both.

  48. “”””One of the greates (and sickest) ironies of this Supreme Court decision is that these foreign illegal combatants are inevitably going to end up having more rights under our system that our uniformed troops themselves do.”””

    How so? What elements will they have that our uniformed troops do not? Our uniformed troops have habeas in a court martial.

    If we tried them under previously established military tribunal rules, we would be have a total different conversation.

  49. How so? What elements will they have that our uniformed troops do not? Our uniformed troops have habeas in a court martial.

    You and I both know damn well that just giving habeus corpus to the foreign detainees is only the beginning. The ultimate end goal of the terrorists, the trial lawyers, and their allies on the far left is to give them full access and rights in the U.S. civilian court system, and to get them acquitted and released if possible.

    This is just merely the first step in the creeping incrementalism of leftism that is taking over the country one piece at a time.

  50. The ultimate end goal of .. their allies on the far left is .. to get them acquitted and released if possible.

    THAT is a well-phrased piece of jack-assery right there.

  51. “””You and I both know damn well that just giving habeus corpus to the foreign detainees is only the beginning. The ultimate end goal of the terrorists, the trial lawyers, and their allies on the far left is to give them full access and rights in the U.S. civilian court system, and to get them acquitted and released if possible.”””

    Speak for yourself. I don’t claim to have a crystal ball, nor do I fear a future where all people have a right to challange the authority that detains them under any circumstance.

    If you really beleive the purpose of all this is to get real terrorist released, your an idiot. There is no conspiracy here.

    What’s wrong with putting them in front of a regular military tribunal that been used in the past?

    Maybe you fear that Bush will be proven wrong and that many, if not most in Gitmo are not really terrorist.

  52. No, because you know for a fact they are fighting for the other side.

    That’s assuming the conclusion (without a hearing). If you have a right to habeas corpus, you have that right regardless of whether your captors/warden “knows for a fact” that you are guilty.

    Hugh @ 11:45, I think you’re overlooking the problem that the (original) GC was intended to address – the conduct of war between sovereigns, nothing more.

    As an incentive to compliance with GC norms, it explicitly says that if you aren’t willing to sign on and take the burdens, you don’t get the benefits.

    Now, we can say that we will extend GC rights even to those that aren’t entitled to them, and that’s fine, but denying GC rights to those that aren’t entitled to them is not a violation of the GC.

    There is no summary execution allowed, unless you’re referring to the methods of an Einsatzgruppen. Article 5 is quite clear on the subject.

    Many thanks for the link to the source material. That’s how its done, folks.

    Protected persons are defined as:

    Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

    Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

    To summarize, the GC does not protect citizens of a state that has not signed the treaty, or citizens of neutral states or allies of a warring state as long as their mother country has diplomatic relations with the state that has captured them.

    So, if we capture Syrians in Iraq, and we have normal diplomatic relations with Syria, the Syrians are not protected by the GC.

  53. You and I both know damn well that just giving habeus corpus to the foreign detainees is only the beginning.

    Yeah, next thing you know, they’ll be gay-marrying box turtles.

  54. RC,

    If you have a right to habeas corpus, you have that right regardless of whether your captors/warden “knows for a fact” that you are guilty. Yes, but let’s keep in mind, the Court didn’t uphold the right to file a petition for a write of habeas corpus for POWs. They only upheld it for the people in the legal no-man’s-land of Gitmo. Classify those mofos as POWs tomorrow, and their habeas rights vanish.

    Oh, and some language from Article 5 of the Geneva Convention:

    Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power,

    These are the people we’re talking about, the people you keep pointing out were “traditinally” (in fact, a couple centuries ago in the Anglo-American tradition) subject to extra-judicial execution.

    such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

    In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.

    The “present convention” being the Third, the 1949 Convention on the status of Prisoners of War. In other words, people accused of war crimes and denied POW status get to be tried according to the same principles as POWS accused of committing a crime.

  55. Actually, on further reading, that applies to “individual protected persons,” who can also be “spies or saboteurs.”

  56. Flat@@s Kennedy’s opinion in Boumediene v. Bush merely hides the Court’s and the country’s irredeemable racist, sexist, classist, privileged, straight white herosexist male culture that prevails in ameriKKKa and always will despite the best intentions of people of color. People of color are superior intellectually and oh so obviously superior physically. Hence, males of color have their pick of women without color due to superior intellect and physical attributes. Nevertheless, strong proud people of color must avoid the slave mentality in order to liberate themselves.

  57. Tarran, thanks for making the key point that so many people continue to miss (or deliberately ignore). With very few exceptions (such as defining treason to be a crime), the Constitution does not restrict the people. It enables and restricts out government. It shouldn’t matter where in the world, or in which era, our government operates. The restrictions on government activity and the rules that government must obey in conducting its activities should apply everywhere, at all times, whether or not the government is dealing with citizens or visitors in our own country, or our citizens or foreigners in THEIR countries, on the high seas, or in the air.

    I love that our Constitution was written in that way, and I wish more people — especially those in government — would get that aspect of our fundamental law straight. It’s one of the things that most distinguishes our system of government from every other one in the world. We ignore and abandon it at our own peril, as many are finally coming to realize — I hope not too late.

  58. “There is a lot of theory in this article. There is a lot of hypotheticals, however, in the real world, folks like Khalid Sheikh Muhammad will now use our federal court system to delay and to propagandize.”

    What’s the huge delay to worry about in allowing someone one chance to challenge the fact that they are being held?
    Oh, and Khalid Sheikh Mohammad is probably the worst example that you could have used for someone to be able to plauisbly challenge their detention.

    “Never in the history of our country has an enemy in war been granted access to our federal court system. That is what has happened now.”

    That’s just blatantly untrue. And being minimally aware of the news in the past few years would have led you to not write that sentence. Zacarias Moussaoui, who was the “20th Highjacker”, was tried and convicted in federal court long before the Supreme Court case being discussed now was ever even petitioned to the Court. Rcihard Reid, the shoe bomber, was granted access to federal courts, and was tried and convicted. Jose Padilla was tried and convicted in a federal court. John Walker Lindh was also tried and convicted in federal court. All of these people could be described as an “enemy in war”, yet were granted access to federal courts.

    “No one knows what will happen as a result of this ruling but the nightmare scenario is thousands of terrorists using the appeals process to propagandize against the U.S. in our own courts. There is plenty to fear there.”

    There’s plenty to fear from mere words – i.e. terrorists using “propaganda”? They’re not being given pistols and bombs upon entering a habeas hearing and then given a chance to shoot up the courtroom. You must be a real pussy to be so terrified of someone merely being able to talk. And, if these individuals are so clearly “an enemy of war” don’t you think that it would be fairly easy for the gov’t to demonstrate that?

  59. “Have you ever looked at the difference between Scalia’s writing before and after Bush took office?

    He used to write like a serious scholar, and now he writes like an internet troll.”

    It’s because Scalia is pissed that he was past over for the Chief Justice spot.

  60. Interesting theory.

  61. Zacarias Moussaoui, who was the “20th Highjacker”, was tried and convicted in federal court long before the Supreme Court case being discussed now was ever even petitioned to the Court. Richard Reid, the shoe bomber, was granted access to federal courts, and was tried and convicted. Jose Padilla was tried and convicted in a federal court. John Walker Lindh was also tried and convicted in federal court. All of these people could be described as an “enemy in war”, yet were granted access to federal courts.

    Jose Padilla and John Walker Lindh were both American citizens, and as such of course should have had the full constitutional rights of American citizenship.

    You are absolutely correct about Moussaoui and Reid, and in my opinion it was a mistake on our part to charge them with civilian crimes. As foreign members of Al Qaeda they should have been taken into military custody, put on military tribunal, and executed as spies and infiltrators, just like the German spies in the 40s.

  62. But the poster that I was responding to had a threshold of these individuals being “enemies of war” and not ever having had access to federal courts. I’d imagine that all of the people I mentioned fit that category. (and in Padilla’s case he was not charged with the offense that the administration so long claimed he was being held for – attempting to blow up a radiological device in the US)
    Anyway, there was no outrage that I can remember at any of the 4 individuals being put in front of judge/jury.
    I just don’t understand the reasoning that just because individuals were captured and then transported, at the direction of the Executive branch, to a naval base 90 miles from the US that then they are magically entered into an area where the Executive branch can do whatever it wants with them, and for however long they choose. Gitmo is under US jurisdiction, so it seems to follow that they must follow US laws. Are we really going to kid ourselves that it is Cuban territory and if the Castro brothers said that these individuals, as persons on their soil, are to be given certain rights that the Bush administration would say “okay”?

  63. There is no such thing as an “enemy combatant.”
    After all, have you ever heard of a “friendly
    combatant?” This is a complete fiction of Bush.
    You are either a soldier or a civilian. Also, I
    doubt that Guantanamo is legal under the GC, and what’s more denying Red Cross access, much less habeas corpus, could well get
    Bush in personal legal straits after inauguration day. He’s the “decider.” If they are soldiers (and uniforms don’t make you one, any more than a police uniform makes you a cop), it’s simple. Try ’em, shoot ’em or let ’em go. In a war, you can do any of those. If they’re crooks, bring them to court where they might face their accusers. Anything else is a crime committed by the USG, and the Scalias of the world can’t change that.

  64. So those soldiers in WW I & WW II that were caught on the battle field should have lawyers? The USA wouldn’t have won either of these wars if we would have had to provide an ACLU lawyer for each of the them. It matters not if you think that we are not at war with the terrorist, they KNOW they are at war with the United States. Did FDR care about habeas corpus? Not to say that a mistake can’tbe made but if you catch someone on the battlefield multiple times do think it is an accident? Was it just coincidnece that Billy the Kid was at a lot of banks that got robbed or just misunderestood? Those who wish at ANY expense to kill US citizens will use those ‘useful idiots’ to help them kill more. Should there be a system that monitors the prisoners? Yes, but even a POW doesn’t get to whine about being in captivity. Just because a terrorist says he was tortured, doesn’t make it so. Having your head cut off on camera and posted on a website is the REAL torture.

  65. So those soldiers in WW I & WW II that were caught on the battle field should have lawyers? The USA wouldn’t have won either of these wars if we would have had to provide an ACLU lawyer for each of the them.

    Thats why we give them other, lesser, lawyers who haven’t been given super-legal-powers through exposure to anti-American radiation.

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