Yoo Ain't Seen Nothing Yet

Last week, ex-Bush executive power rationalizer John Yoo penned an op-ed for the Wall Street Journal heaping the usual criticisms on the Supreme Court's Boumediene decision, which held that the government can't just snatch people up off the street, then hold them forever without ever giving them a trial.

Glenn Greenwald dresses Yoo down here. Cato's Tim Lynch has a go at him here. Meanwhile, Gene Healy finds an intriguing article written for Cato a few years ago attacking Bill Clinton for his unilateral, imperious approach to foreign policy. That article's author? John Yoo.

Hack-tastic!

Comments

[Elemenope]

A hired gun's bullets fly in whichever way the money directs. Catching a hack being a hack is no more damning that catching a squirrel stealing nuts and hoarding them. That is what they are, they know no better.

Poor Yoo.

[JMR]

Cue a neocon explanation for why this is somehow still "consistent" in 5...4...3...2...
JMR

[Fluffy]

John Yoo once worked for Cato?

Wow, talk about grist for the Rockwellian mill. Hey, "Stato" - nice hire there with the Yoo guy.

[Elemenope]

That's not hard, JMR. Let me give it a shot.

"Clinton lacked an understanding of American Empire as a *primary* agenda item, and thus to give imperial powers to such a man would only reinforce his pettiness. We need a man who understands that building and maintaining the American Hegemon is the most important task of a modern president, and to give such a man *Expansive powers* is not only right, it is necessary!"

[Taktix®]

That's not hard, JMR. Let me give it a shot.

Too many big words, it's got to be shorter and ore succinct. Ahem:

"We're at war, and in a post-9/11 world, we can't afford to take such risks."

Also, this sentence is a catch-all of sorts; feel free to use it regarding any issue.

[stephen the goldberger]

I was hoping this was a Yoo Hoo thread.

[No Name Guy]

Hack, indeed.

Reminds me of listening to Sean Hannity in 1999 demanding that Clinton have an "exit strategy". Those were the days...

[Reinmoose]

oooh oooh, let me try!

"You all want Barack Hussein Obama for president, but he'll just raise yer taxes and let all of his muslim buddies in guantanamo go so they can kill us real Americans. That's why he won't even say the pledge!"

[No Name Guy]

How did 9/11 move from a national tragedy to a punch line in seven short years?

[SugarFree]

Imagine the joy of a world where public hypocrisy was a fatal disease.

[Episiarch]

Cue a neocon explanation for why this is somehow still "consistent" in 5...4...3...2...

Daddy Bush: great President or greatest President?

[John]

"which held that the government can't just snatch people up off the street, then hold them forever without ever giving them a trial."

Of course the US and every other country has been doing that for thousands of years. They are called POWs Radley. This decision is another in a long line of "it pays to be a terrorist" decisions. I don't buy the right wing scare mongers who claim that this decision means that every POW can get relief in US courts. The Courts are too politically sensitive for that. No way would they allow real POWs to get relief. The public would never allow it. But a terrorist caught somewhere? Absolutely.

The whole idea behind the laws of war is to humanize war by creating rules and then providing protections to those who abide by the rules. In the last 40 years we have turned that on its head. Soldiers who follow the laws of war and get captured get a one way ticket to a prison cell for the duration. Someone who hides among civilians and ignores the laws of war and is captured gets to have due process in federal court. Why be a soldier where you can be killed on site and captured and held with no due process when you can be a terrorist who can hide in the civilian population and get due process if you are ever captured? The bottom-line is that it pays to be a terrorist under this regime.

[Episiarch]

Imagine the joy of a world where public hypocrisy was a fatal disease.

Or one where the media might actually call people on their hypocrisy and (also) on utterly wrong predictions.

[Reinmoose]

How did 9/11 move from a national tragedy to a punch line in seven short years?

Two words: Rudy Giuliani

[No Name Guy]

John, the problem is the old rules were great for fighting the regular army of a foreign country in a conventional war.

They are not made for a counter-insurgency or a war against terrorists. However, it'd be better to change the rules rather than to just ignore them.

[SugarFree]

How did 9/11 move from a national tragedy to a punch line in seven short years?

It's difficult to pin-point, but sometime around when it started to be used to justify every long-held authoritarian fantasy.

Sort of like when global warming became a punch-line when people started using to suggest that people live in houses made out of straw bales.

[John thomas]

What a joke. Isnt it time to put Dictator Bush and his whole regime out to pasture? Enough already.

JT
http://www.Ultimate-Anonymity.com

[Elemenope]

Too many big words, it's got to be shorter and more succinct.

Sorry. I was channeling Krauthammer, not Kristol.

[Comment by John, blah, blah, blah]

No, John. By int'l law POWs can only be held for the duration of the hostilities. If they are held past that, it is in violation of the law. You wouldn't by any chance be advocating that the US should violate the law now, are you?

Unless of course you somehow confused "duration of conflict" with "forever". What a conflation!

[No Name Guy]

Unless of course you somehow confused "duration of conflict" with "forever".

Many neoconservatives do.

[John]

"They are not made for a counter-insurgency or a war against terrorists. However, it'd be better to change the rules rather than to just ignore them."

The old rules were not so bad. You held military tribunals and made sure you had the right people and punished them. You didn't go to federal court. The problem is that I am not sure we are even capable of that anymore. The military or their JAGs or both will find a way to fuck that up to or if they don't, the civilian political hacks who run the Pentagon will fuck it up for them. IT is not that hard to run a fair and ethical military tribunal. We did it after World War II. No, I don't think the government should just be able grab people and keep them locked up forever, absent a formal war and POW status. But settling it all in Federal court is a terrible idea to. We are just not a serious country anymore. On the one hand you have the Bush admin trying to claim that GUTMO is not US territory and having the CIA torture people and run secret prisons and on the other you have the Supreme Court claiming every detention should be the subject of full blown federal litigation. A pox on both their houses.

[John]

"No, John. By int'l law POWs can only be held for the duration of the hostilities. If they are held past that, it is in violation of the law. You wouldn't by any chance be advocating that the US should violate the law now, are you?"

That is right, the "duration of the hostilities", which can be years or in the case of Vietnam decades. But, you don't get any due process about it.

[Shem]

Of course the US and every other country has been doing that for thousands of years. They are called POWs Radley.

Great, so, since they're POWs, the Geneva Conventions apply to them then? So holding them incommunicado is illegal. You should tell that to the Bush Administration.

[Pro Libertate]

Screw Yoo. George Carlin just died.

[P Brooks]

How did 9/11 move from a national tragedy to a punch line in seven short years?

It might have something to do with the eagerness of so many people to throw the Constitution into the toilet, in order to fool themselves into believing they have (or can ever have) reduced an infinitesimal risk to zero.

You know, the whole "They hate us for our freedoms" thing; let's get rid of our freedoms, and be just like them.

[No Name Guy]

My 9/11 question was rhetorical, but its been answered very well nevertheless.

[John]

"Great, so, since they're POWs, the Geneva Conventions apply to them then? So holding them incommunicado is illegal. You should tell that to the Bush Administration."

We shouldn't be holding them that way. We should be trying them and if they are guilty hanging them or giving them long prison sentences. Bush fucked it up royally. The old rules worked really well and gave him lots of options to deal with this. The problem is that both he and his advisors didn't understand the old rules well enough to tell the NGOs and the lawfare types to fuck off and do it the right way. Instead, they invented tortured bullshit reasons to throw the old rules out. Not only did they act illegally, they also ceded the ground to the lawfare liberals and basically admitted you can't effectively wage war under the rules, which is bullshit. You can. You just have to understand and have a reasonable interpretation of the rules.

[Lamar]

I know memories are short, but when are GOPers going to realize that they won't have success at the polls until they stop being full of shit? They haven't been fooling anybody for like 4 years now.

[John]

Carlin dying really sucks and puts me in an exceptionally bad mood today.

[joe]

POWs are neither snatched off the street, nor held forever. You know better than that, John.

You also know that terrorists, unlike POWs, can be tried as criminals for their actions and sentenced to extended terms, or even death. What you're bitching about is that the trials at which such judgements will be rendered have to be something approaching fair and reliable, instead of kangaroo courts.

[Elemenope]

The problem is that both he and his advisors didn't understand the old rules well enough to tell the NGOs and the lawfare types to fuck off and do it the right way.

The first bold is an example of something laughably stupid (professional lawyers don't know--or can't research--the proper application of a system that's been around for a century?), but the second bold, the neologism, is vaguely interesting.

Lawfare? Is that the new libertarian pejorative for lawyers? (If we make it sound like welfare, maybe they won't like it?)

Carlin dying really sucks and puts me in an exceptionally bad mood today.

Me too. I'm gonna be playing his greatest hits all day. Seven words is the apex of comedy, to me.

[John]

Was Nuremburg a kangaroo court Joe? Why did we do that and just not try all of them in federal court?

Also Joe get the fuck out of here. As soon as Obama is elected, if he is elected, he will be doing the same thing and you will either not be saying anything or on here telling us how good it is. How long have you been on here bitching about FISA and telecom immunity and when Obama refuses to do one thing about it, we don't hear a peep out of you or I am sure some bullshit obfuscation about how Obama FISA is different.

[joe]

But settling it all in Federal court is a terrible idea to.

"It all?" Did the recent decision order all Gitmo detainees to be tried on criminal charges in federal courts? Because I'm pretty sure that all it did was authorize federal judges to issue writs of habeas corpus, and only did that because the kangaroo courts were so stacked and unreliable than the SCOTUS decided that federal court oversight of the process was necesary unless the military tribunals' shortcomings were fixed.

They fired a military judge in the middle of a trial because he wasn't ruling the way the prosecution wants him to, as this case was before the Supreme Court. Damn straight they're going to stick their noses in. This process is a desgrace, and kudos to the Supremes for doing something about it.

[No Name Guy]

I'd really like to see you try to defend your candidate's flip flop on FISA, joe.

[joe]

Nuremburg was a model of civilized jursisprudence compared to the Gitmo courts.

And stop whining at me about your partisan bullshit just because you can't defend your arguments.

[JMR]

That's the great thing about a war on "terror" or "drugs." The duration of conflict is by definition FOREVER, so it's not an issue. We're always "winning" both, and there's a "light at the end of the tunnel," but for some reason every year more tax money must be borrowed/taxed and spent.

And on the subject of the ruling, Federal Judges get piles of habeus petitions. A clerk is assigned to read them and give a 1 page synopsis, but generally (I'd say 98% of the time) it's not any issue except a prisoner with too much time on his/her hands. They know how to say "no."
JMR

[joe]

NNG,

If he flip-flops, and does not attempt to strip telecom immuinity from the Senate bill, you won't find me defending him, NNG.

But, you see, there hasn't been a bill taken up in the Senate yet, so we'll have to wait and see what he does.

[John]

"The first bold is an example of something laughably stupid (professional lawyers don't know--or can't research--the proper application of a system that's been around for a century?), but the second bold, the neologism, is vaguely interesting."

No one outside of a few military circles thought about things like the Geneva Conventions before 9-11. John Yoo and Gonzalez and the whole crew at Office of Legal Counsel to the President and at DOJ didn't know a damn thing about history or the law of war. But that didn't stop them from panicking after 9-11 and all of the sudden becoming experts on the subject. Further, the CIA and FBI are totally broke and incompetent and fed them bullshit operational requirements. Think about the idea of keeping someone in communicado after capture. The idea is that we can't say who we have captured because that will let the enemy know we are onto them. What, they are not going to notice that Abdul is gone? For a few days or maybe a week I can see, but forever? Only a fucking moron law prof like John Yoo who has never been anywhere or done anything could believe something that stupid.

No, these people really are dumb and in over their heads. They didn't know shit and panicked after 9-11.

[John]

"Nuremburg was a model of civilized jursisprudence compared to the Gitmo courts."

Read my post Joe. I am saying that Bush and company fucked it up. They should have done Nuremburg and were too stupid to do it. What was more important, if they would have just adopted the Nuremburg rules, people would have had a hard time complaining. They still would have, but they would have had a lot less ground to stand on.

[No Name Guy]

If he does vote for the FISA bill when its in the Senate and it contains telecom immunity, Obama will have become Hillary Clinton. Just a centrist triangulator.

[Elemenope]

I'm sorry, John, I just can't buy the "we didn't know something we could have easily looked up in a fucking book" defense. Shit, a fourteen year old armed with nothing but Wikipedia could put together a system of combatant justice consistent with past practice.

And even if they hadn't been thinking about it, as soon as they captured their first prisoner they should have started. Just send some underpaid interns to go pound the books! That's what they're for!

[John Thacker]

the Supreme Court's Boumediene decision, which held that the government can't just snatch people up off the street, then hold them forever without ever giving them a trial.

Technically, it held that the government can't capture a non-citizen in a foreign location (or have that person delivered as a prisoner by an allied group) and bring them to a location with some sort of substantial US control over the location but from which it would be not too expensive to remand them to a US court system for a trial.

Snatching inside the US and outside of citizens were dealt with in other cases. The opinion in Boumediene refused to overrule Johnson v. Eisentrager, and in the opinion specifically left open the possibility of indefinite imprisonment in locations less controlled by the US government due to the way the distinction was made.

But hey, what's accuracy when you can turn a pithy phrase?

[Fluffy]

No way would they allow real POWs to get relief. The public would never allow it. But a terrorist caught somewhere? Absolutely.

The whole idea behind the laws of war is to humanize war by creating rules and then providing protections to those who abide by the rules. In the last 40 years we have turned that on its head.

Dude, you're an idiot.

You don't think it's an advantage to be declared a POW rather than enter the criminal justice system?

A POW can kill thousands, and can blow up whatever he wants, and he can't be punished. He can be detained, but even the conditions of his detention are strictly regulated: he has to be allowed to live with other POW's, he has to be left under his own officers, the Red Cross has to be allowed to visit him, he has to be allowed to receive parcels, he can't be interrogated, etc. And he has to be released at the end of the conflict without a hair on his head being out of place

A non-POW, however, if proven in a court of law to have killed thousands and to have blown things up, can be given the gas chamber and no one can say fucking shit about it.

The privilege of being a POW is that you can commit limitless acts of violence and get away with it in the end.

So by all means, let's not treat these detainees as POW's. Let's try and punish them for their crimes using the criminal justice system, and show the world that you can't commit acts of terrorism and escape punishment by being sent home when the conflict is over. By all means. But if we're talking about people held by Americans who aren't POW's, then we're talking about the American criminal justice system, and not some shit Bush made up on the back on an envelope.

[John Thacker]

And, of course, just killing people in a foreign country remains legal.

[John]

"I'm sorry, John, I just can't buy the "we didn't know something we could have easily looked up in a fucking book" defense. Shit, a fourteen year old armed with nothing but Wikipedia could put together a system of combatant justice consistent with past practice."

I am not saying it is a defense. I have no use for Yoo or Ganzelez. There were plenty of people who knew the right way to handle it. But they were too panicked and arrogant to listen. Yoo is a Berkley law professor. Gonzalez a former State Attorney General. Who are mere mortals who you know might actually know something to tell them what is right? They are both a product of our elitist society where no one can tell the people in charge or someone with the right credentials that they are full of shit, even when they are.

[joe]

But since they didn't follow a model like Nuremburg, or the existing court martial rules like the UCMJ, what are the courts to do?

It's nice that you feel that there are problems with this system, but if you don't want the federal courts to step in to fix it, (your first comment on the subject being to that effect)( you're saying those problems are just a matter of policy without consitutional bearing, and that is too weak.

[John]

Fluffy,

Yeah combatant immunity is a great thing if you can get it, but even if you have it you are still stuck in a camp for the duration if you are captured. If you are a terrorist, they have to prove you did those things. Further, if you are a high profile one, you will get a blue chip law firm to defend you for free. My guess is that most of the people at GUITMO right now will walk free sooner or later. None of them sans maybe KSM will ever be convicted much less punished.

[Alice Bowie]

Perhaps we can take
John Yoo
Scalia
Dick Cheney
and their children and grandchildren
and label them as terrorist and hold them in Jail.

I think we can all agree that none of these men are terrorist. And, if by any chance they were detained, they too should be given the opportunity to say it wasn't me.

I don't know why they would deny anyone else the same BASIC HUMAN RIGHT.

[P Brooks]

he can't be interrogated

Precisely.

[Shem]

if they would have just adopted the Nuremburg rules, people would have had a hard time complaining.

And the administration would have found it almost impossible to convict anyone. Leaving aside the people who were just caught up and who didn't do anything wrong, the rest would be in there on "suspiscion of intent to carry out terror attacks," with little more than the circumstantial evidence that the charge implies. And that's ignoring the fact that the Nuremburg rules stipulate that the proceedings be public, which, if one believes the crop of liars at the top, would require making public information about currently operating antiterror actions. I realize you've siezed on the idea that the legal experts in the DoJ were ignorant because it allows you to believe that you didn't support people who are feckless morons and failed criminals, but the evidence doesn't support you in that.

Nor are you the International Law expert you make yourself out to be. What was your specialty, by the way?

[joe]

If you are a terrorist, they have to prove you did those things.

Every single one of the people we're talking about could be declared POWs, unilaterally by the military, tomorrow, and as long as they were treated like POWs, they would have no habeas rights, no change to prove their innocence, nothing.

There terrorists don't have any rights beyond those of POWs. The entirety of their legal rights stems from the fact that they are facing trials and punishment as criminals.

[John]

"But since they didn't follow a model like Nuremburg, or the existing court martial rules like the UCMJ, what are the courts to do?"

First, the UCMJ is actually more liberal and forgiving than federal law. Stay out of it and leave it as a political matter. This case sets the precedent where the courts rather than the congress and the President will run this and that sucks and is a terrible precedent. It doesn't let Bush off the hook for fucking it up, but it is still a terrible precedent.

[Fluffy]

Was Nuremburg a kangaroo court Joe? Why did we do that and just not try all of them in federal court?

Because one party to the Nuremburg trials was the Soviet Union, who had a different system of jurisprudence than we did.

What you're bitching about is that the trials at which such judgements will be rendered have to be something approaching fair and reliable, instead of kangaroo courts.

Joe hits it dead on the head here.

What the hell was the Administration afraid of?

Did they seriously think that if they stuck these guys into federal courts in 2002 or 2003 that there was this huge risk of American juries letting them go?

They aren't OJ, you know.

These guys would have faced judges and juries who would have bent over backwards to convict them, had they been brought to trial in a speedy way.

"Wah! We don't want to reveal our evidence!" Tough shit. That's the price you pay for getting a conviction.

Of course, now that they've polluted all the available evidence by torturing these guys, and by not providing speedy trials, etc., if they brought them to trial now they might face a more difficult environment. Whose fault is that?

[joe]

What the hell was the Administration afraid of?

The former cheif prosecutor at Gitmo quotes his boss, the Pentagon's head lawyer, saying "We can't have acquittals. We've been holding these guys so long, it would look bad if any of them were acquitted."

Inexpert legal knowledge my butt.

[John]

"And the administration would have found it almost impossible to convict anyone. Leaving aside the people who were just caught up and who didn't do anything wrong, the rest would be in there on "suspiscion of intent to carry out terror attacks," with little more than the circumstantial evidence that the charge implies."

You could convict them all. Al Quada is a criminal organization. It has been declared so by UN Security council resolution. At Nuremburg mere membership in the Nazi Pary or the SS or other certain organization made you guilty. You do the same thing with Al Quada. All you have to prove is that they were members and they are guilty. Now, what they actually did or did not do is a question for sentencing, but not for guilt.

[Partisan Republican]

"Meanwhile, Gene Healy finds an intriguing article written for Cato a few years ago attacking Bill Clinton for his unilateral, imperious approach to foreign policy. That article's author? John Yoo."

But that was different because Clinton was a Democrat.

[No Name Guy]

I don't know why its so hard to put these people in a place like Supermax. That seems to work for our various domestic terrorists.

And I don't want to hear bull shit about how these people are hardened survivalists who would think Supermax is the Comfort Inn. Eric Rudolph is probably a better survivalist than any of the clowns at Gitmo, and he said Supermax is making him go insane.

[John]

Actually Joe is right. They fucked up and waited so long that they can't let any of these guys go without embarrassment. Further, the CIA fucked up and didn't build cases against them with anything beyond coerced evidence. We know have a case where we have people we know are guilty but don't have, thanks to the CIA, the evidence to convict them. It is a complete mess.

Also, why the hell can't you people read the damn posts? How many times do I have to write "Bush fucked this up" before you people get it through your thick skulls that I am blaming Bush not defending him?

[Elemenope]

My guess is that most of the people at GITMO right now will walk free sooner or later. None of them sans maybe KSM will ever be convicted much less punished.

Strip the 'terrorism' and scary sounding Arabic names out of that, present it to any decent prosecutor, and he'll undoubtedly say "not enough evidence to prosecute? We have to cut 'em loose."

The flaw in this brilliant plan is finding a decent prosecutor...

If killing people in order to scare other people is all that sets these jokers apart from other species of criminal, do we not have legislation on the books for dealing with criminal organizations? The mafia kills people in order to scare others, sometimes with the intent of changing governing or business policies...and yet our war against the mob has gone *very well*.

[Jim D]

Well, so much for my theory that John Yoo is actually the Highlander, and has been battling habeas corpus for over 700 years!

(Hint, John: you have to decapitate it).

[John]

No Name Guy,

Supermax is awful. I think it would be more human to hang someone like Rudolph than stick him in supermax.

[No Name Guy]

John, at least you realize its a pretty awful place to live. I've had certain neoconservatives tell me that Supermax would be like a "luxury hotel" to Al Qaeda members and thats why we need Gitmo.

[John]

"John, at least you realize its a pretty awful place to live. I've had certain neoconservatives tell me that Supermax would be like a "luxury hotel" to Al Qaeda members and thats why we need Gitmo."

Yeah but GITMO is a lot better than supermax. I would rather be at GITMO than supermax. I would rather be anywhere than supermax.

[joe]

Further, the CIA fucked up and didn't build cases against them with anything beyond coerced evidence.

There was plenty of coercive interrogation carried out by the military, too, John. Don't try to pass the policy decisions this administration imposed on the professionals as problems that started with people in the field..

Heck, we just learned a couple months ago about the National Security principles - the AG, the National Security Advistor, the VP, the SecDef - directing and even "choreographing" interrogation practices.

[No Name Guy]

I don't think they waterboard at Supermax, or play loud music to keep the inmates up at night, or turn off the AC in 100 degree weather.

[joe]

I can't understand how SuperMax could possibly pass the cruel and unusual test. At least, as a punishment, and not just as a security measure.

The Quakers abandoned their solitary-cell "reform prison" model a century and a half ago because of its obvious cruelty.

[Daniel]

"Supreme Court's Boumediene decision, which held that the government can't just snatch people up off the street, then hold them forever without ever giving them a trial."

That is NOT what the Court's holding was, or what the dissent argued.

[John Thacker]

"Wah! We don't want to reveal our evidence!" Tough shit. That's the price you pay for getting a conviction.

In the case of most of these, it's not the evidence per se that the government does not want to reveal, it's the sources and methods of obtaining that intelligence. Unlike what some of the most paranoid fantasists believe, the NSA can't catch everything, and prefers to keep people guessing as to what it can. See for example the refusal to demonstrate the evidence from the Venona decrypts against the Rosenbergs et al. Of course, the fact that they were convicted anyway without the most damning evidence may well help your point, Fluffy

But since they didn't follow a model like Nuremburg, or the existing court martial rules like the UCMJ, what are the courts to do?

Not like Nuremberg wasn't made up on the spot either. Have you ever read the history of the trials, and especially the Tokyo War Crimes trial? They were kangaroo courts in the sense that the rules were made up on the spot and the punishments pre-decided according to victor's justice. The judges not from the victorious countries voted for reduced punishments, and in the case of the Indian judge Radhabinod Pal, for acquittal, but of course the deck was stacked.

Every single one of the people we're talking about could be declared POWs, unilaterally by the military, tomorrow, and as long as they were treated like POWs, they would have no habeas rights, no change to prove their innocence, nothing. There terrorists don't have any rights beyond those of POWs. The entirety of their legal rights stems from the fact that they are facing trials and punishment as criminals.

Wait joe, so you're saying that we could (and should?) declare them POWs and hold them indefinitely without trial? I think that that's problematic as well. POWs at least have the hope of negotiations with the enemy, prisoner exchanges, and eventually an end to the war. The nature of this conflict means that treating them as POWs means indefinite imprisonment with no foreseeable end. That's something that ought to be avoided IMO. Legally, many of them could have been shot on sight too (including for being out of uniform) but I'm recommending that either.

[No Name Guy]

Joe, thats pretty much why I'm for the death penalty. Because the two options with people like Rudolph and the Unabomber are solitary confinment or death, and as John said death is probably more humane.

[joe]

NNG,

You get waterboarded or interrogated, and then it stops, and you're back in a cage, with a view, able to talk to other people, feel air on your face, just like you're a real human being.

People left to rot in one of those SuperMax holes are being psychologically tortured every minute of every day for years. Fine, comparing one minute of Supermax to one minute of waterboarding doesn't look so bad, but taking it in the totality, it' s awful.

[John]

"There was plenty of coercive interrogation carried out by the military, too, John. Don't try to pass the policy decisions this administration imposed on the professionals as problems that started with people in the field.."

Don't let the people in the field off the hook. Whether it be CIA or Military Intelligence, all of those people have the attitude of "I am the professional here and this is what we need to do". None of them can be trusted and all are in need of adult supervision. No question they didn't get it under Bush, but part of that reason was because the Bush people panicked after 9-11 and let the CIA and the like convince them that various practices were operational necessities.

[John]

"You get waterboarded or interrogated, and then it stops, and you're back in a cage, with a view, able to talk to other people, feel air on your face, just like you're a real human being."

No one at GUTMO has ever been waterboarded there. The CIA waterboarded people and at least one of them, KSM is at GUITMO, but the waterboarding was done God knows where but not at GUITMO.

[No Name Guy]

Thats true, joe. I guess its a more subtle form of torture.

Still, my biggest beef with Gitmo is the fact that its becoming an international symbol for anti-American crackpots to rally around. It shoots our credibility to hell.

We can't get after Putin or the Chinese anymore, because all they have to say is "Gitmo", "secret prisons" and "torture".

[joe]

John Thacker,

They were kangaroo courts in the sense that the rules were made up on the spot and the punishments pre-decided according to victor's justice. They were real courts, in the sense that they had rules of evidence and sufficient protections for the defense that it was possible to defend one's self. There were numerous acquittals and dismissals.

Wait joe, so you're saying that we could (and should?) declare them POWs and hold them indefinitely without trial?

Nope. I wrote that only to make the point that the "these people have more rights than POWs" argument is bunk.

I think we should try them before courts martial as directed by the UCMJ, or something very close to it.

[joe]

Don't let the people in the field off the hook. Whether it be CIA or Military Intelligence, all of those people have the attitude of "I am the professional here and this is what we need to do". None of them can be trusted and all are in need of adult supervision. No question they didn't get it under Bush, but part of that reason was because the Bush people panicked after 9-11 and let the CIA and the like convince them that various practices were operational necessities.

There was too much pushback from the CIA and military, including resignations and public statements, for me to believe that.

No one at GUTMO has ever been waterboarded there. The CIA waterboarded people and at least one of them, KSM is at GUITMO, but the waterboarding was done God knows where but not at GUITMO. I know that's the official line. I just don't believe it. Once upon a time, the official line was that we hadn't tortured anybody.

[Fluffy]

POWs at least have the hope of negotiations with the enemy, prisoner exchanges, and eventually an end to the war. The nature of this conflict means that treating them as POWs means indefinite imprisonment with no foreseeable end.

In the case of Afghani nationals, I think they could at least look forward to release if/when the Kabul government establishes control over the entire country.

Right now the Taliban is still active in the field, so Afghani POW's would be out of luck. If the Taliban toughs it out in the field, their POW's stay. Even if it's 10, 15, 20 years.

The situation is more complex in the case of the nationals of third countries, because there is no one around to "surrender".

[Elemenope]

Joe, that's pretty much why I'm for the death penalty. Because the two options with people like Rudolph and the Unabomber are solitary confinement or death, and as John said death is probably more humane.

I'm with Nietzsche on this one, who said that one should always give a capital offender the option to kill themselves, as opposed to rotting away in prison. Always leave it to their choice, though!

Nietzsche, the first modern Libertarian.

[John Thacker]

I don't think they waterboard at Supermax, or play loud music to keep the inmates up at night, or turn off the AC in 100 degree weather.

The sensory deprivation involved in SuperMax (at least at its highest levels, as it is relaxed very slightly for good behavior) is much worse, IMO, than anything at Gitmo. And it goes on near-constantly, 23+ hours per day in a small room. (The other hour allows some exercise, but again without human contact.)

The punishments tolerated in prisons (not just in the US but worldwide) are horrible. Any claim that Supermax is a country club compared to Gitmo is ridiculous; the claim could more easily be made the other way around.

[No Name Guy]

Fluffy-

Thats actually really a good idea. At least the state isn't really commiting murder, then.

[John]

"The punishments tolerated in prisons (not just in the US but worldwide) are horrible. Any claim that Supermax is a country club compared to Gitmo is ridiculous; the claim could more easily be made the other way around."

Not to mention the fact that the ordinary high security prisons in this country are run completely by gangs. There is no way someone could go to a maximum security prison in this country with the real desire to go straight and succeed. You would have to join some kind of gang to survive and they are going to expect you to commit crimes for them. Then once you get out who is going to hire you? Unless you have family connections you are screwed. With the borders open, why would anyone hire an ex-con when you could hire a hard working Mexican peasant?

[No Name Guy]

IIRC the Commies started labor camps because Marx believed they would be more humane than simple confinement.

Well, that didn't work out to well either.

Theres no really humane kind of punishment.

[Elemenope]

There's no really humane kind of punishment.

Well, I'd say a short 'time-out' followed by a stern admonishment is pretty humane. As to its effectiveness...well, not for nothing but I didn't turn out to be a homicidal maniac. Take that one data point for what you will.

[Fluffy]

I'd like to break from ganging up on John to reiterate my initial observation:

John Yoo wrote for the Cato Institute??!?!?

[SugarFree]

John Yoo wrote for the Cato Institute??!?!?

That betrays a pre-9/11 interrobang in your thinking.

[gmatts]

My favorite part of the link to "The Rule of Law in Wake of Clinton" is on page 161. There, Yoo writes that during Clinton's use of force in Kosovo the House passed a resolution supporting the troops, but not the mission. Also, he writes that the House passed a bill that barred the use of funds for deployment of troops to Yugoslavia unless it was specifically authorized by Congress.

I believe that both of those are examples of the types of activities that the Republicans now accuse people of essentially engaging in treason in regards to our troops, and the usurping of commander-in-chief powers by Congress in attemtping to tell the Executive how it can spend money on wars.

[joe]

For a monarchist or an aristocrat, it is not hypocrisy to claim that it's ok for your guy to exercise certain powers when in office, and not the other guy.

For people who believe in the rule of law and/or democratic legisimacy, that would be a massively hypocritical position in which to find yourself.

But if you accept the premise that your guy or guys are entitled to power merely by virtue of their being born into it, or chosen by Jesus, or belonging to the right party, it's perfectly legitimate.

[C:\\Pot>]

joe,

Ah, but he's not making monarchist divine-right arguments. His arguments are at least ostensibly being made in the context of a constitutional republic.

[BakedPenguin]

John Yoo wrote for the Cato Institute??!?!?

Strange world.Michelle Malkin once wrote for reason. Reading the piece, I suspect she's come to a change of heart.

[C:\\Pot>]

That's a hell of a find, BP!!!

Wow. Are we sure there's not another Michelle Malkin?

[Pro Libertate]

It's not surprising that yet another supposed libertarian (or follower of some other ism) lost his way after 9/11. There are plenty of examples of that.

[Bingo]

You guys don't understand. 9/11 changed everything. That's why we call it by the date instead of "The WTC attacks," because we can never forget or the terrorists will have won.

9/11

Nine eleven.

Never forget.

[BakedPenguin]

C\P - Years ago, I once referenced her in a post, because I'd read that in the print version (and that was all I knew of her). I was, of course, greeted by bemused and generally unappreciative comments.

[Happy Jack]

What the hell was the Administration afraid of?

They were afraid that they wouldn't be allowed to torture.

[Elemenope]

I was, of course, greeted by bemused and generally unappreciative comments.

Wow! They were quite a bit more mellow back then, I guess.

[Les]

Not to mention the fact that the ordinary high security prisons in this country are run completely by gangs. There is no way someone could go to a maximum security prison in this country with the real desire to go straight and succeed.

That was more true, at least here in California, up until the nineties, when the prison guards' union became immensely powerful. I have a dear relative who's been in prison for nearly 30 years (on a 15 to life sentence and after 24 years of perfect behavior and 3 separate approvals for release by the Board of Parole Hearings, each of which has been vetoed by the governor for no reason whatsoever) and I visit him every other month for regular lessons on prison life in California.

Back when gangs ran San Quentin, there were programs in place for prisoners wanting to rehabilitate themselves. Now that guards "run" the prisons, the programs are mostly gone, thanks, in large part, to their lobbying.

So, ironically, an inmate had a better chance of rehabilitation when the gangs were in charge.

[Rakune]

Hey John, can you provide a link? IIRC What you wrote is the exact opposite of what happened at Nuremberg.

"At Nuremburg mere membership in the Nazi Pary or the SS or other certain organization made you guilty."

[joe]

C-Potty,

(heh)

I'd say that Yoo's uber-expansive reading of the president's inherent powers moves him well into constitutional monarch territory. If you believe the only check on the Big Man's power is elections, not the law, then you are a monarchist, even if you favor an elected monarch.

Poland used to have an elected monarch. He was still the king.

[C:\\Pot>]

C-Potty

Oooh, that's creative. Haven't heard that one since second grade (at St. Joe's School, no less).

[joe]

"C-Piddy," then?

[Pro Libertate]

Is that DOS or CP/M?

[Rakune]

OK First question was too hard. How many Nazi party members or SS memebers were acquitted? Zero or not zero? Was the verdit based on what they did (the acussed actual actions) or what group they belonged to? Was every NAZI Hung? Was every SS Member executed?

"At Nuremburg mere membership in the Nazi Pary or the SS or other certain organization made you guilty."

[Rakune]

I hate speel chekk. All speel chekers are guilty!!!!911!

[Jon H]

"How many Nazi party members or SS memebers were acquitted? Zero or not zero? Was the verdit based on what they did (the acussed actual actions) or what group they belonged to? Was every NAZI Hung? Was every SS Member executed?"

Kurt Kiesinger, chancellor of West Germany from 1966-1969, was assistant chief of radio propaganda in the foreign ministry in WW2, and an unenthusiastic Nazi party member (joined in 1933, but refused to join a Nazi association of lawyers later on.) He was interned by the allies after the war but cleared by allied and German denazification courts.

Baldur von Schirach, head of the Nazi Youth movement, was given 20 years.

Albert Speer, architect and Nazi minister of armaments and war production (which included slave labor from concentration camps), got 20 years.

Karl Carstens, president of West Germany from 79-84, served in an anti-aircraft unit in WW2 but was cleared by an Allied denazification court.

Johannes Stark, a Nobel-winning physicist, was a supporter of Hitler and was sentenced in 1947 to 4 years in a labor camp.

The main Nurnberg tribunal acquitted 3 of the officials being tried, 4 were sentenced to prison terms of 10-20 years, 3 got life sentences, and 12 were sentenced to hang.

[Adam1]

Yoo have GOT to be kidding me!

Yoo. I learned it from watching Yoo!