June 21, 2008

"The alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings."

Lawprof Richard Epstein has a NYT op-ed on Boumediene:
This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president....

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.
ADDED: WaPo reports:
Senior lawyers inside and outside the Bush administration repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court. But such advice, issued periodically over the past six years, was ignored or discounted, according to current and former administration officials familiar with the debates.

95 comments:

Beldar said...

The "Star Chamber proceedings" were, of course, specifically designed and balanced by a bi-partisan majority of both chambers of Congress, passed by them as legislation, and signed into law by the President. They're modeled on the Uniform Code of Military Justice, the "Star Chamber proceedings" we use to determine the guilt or innocence of our own servicemen and -women who are accused of crimes.

Epstein is writing politics. Not law. That he's a law professor is purely a coincidence.

matthew said...

Beldar, read the editorial. He's basing his entire opinion on constitutional grounds. You don't have to agree, but following his argument, it doesn't matter that the Military Justice act exists - Habeas Corpus is an originalist constitutional right. To the extent that any law disagrees with this, it should be struck down. He's actually making solid legal argument.

Cedarford said...

Epstein is simply being paid to say what Pinch Sulzberger and Family want him to say.

Funny none of the 400,000 captured German soldiers and civilians were able to plead their cases in Fed Civilian court, nor the 1 million American citizens under martial law in Hawaii, Alaska, Puget Sound Naval Reserve for the duration of WWII.
Not to mention the 220,000 Confederate soldiers and "dangerous, influential citizens solidly working for The Cause".

Lincoln and FDR - Star Chamber Presidents according to at least one liberal Jewish lawyer.

It was a naked power grab by SCOTUS to say the Judiciary now reins supreme over the Exec's conduct of war, and in the sphere of war matters Congress's funding and passing laws and approving or rejecting treaties. Now what they do when America is engaged in conflict with a foreign enemy depends on the approval or disapproval of what has become "The Un-equal Branch of Government".

The New Sanhedrin.

Bruce Hayden said...

So, Epstein theorizes that since citizens get due process rights outside the U.S. and non-citizens have some inside the U.S., so everyone should have U.S. due process rights everywhere.

As Beldar points out, the detainees have all had military style hearings set up by a bi-partisan majority of Congress. They have gotten the level of Due Process that our soldiers get, despite not being citizens nor within the U.S.

What Epstein appears to want is to apply U.S. criminal procedure and due process to illegal combatants caught on the battlefield. Since that is feasible, despite his protestations to the contrary, he appears to be fine with releasing the illegal combatants.

I agree - Epstein is writing politics, and ignoring that this is a significant step in increasing the power of our courts at the expense of the other two branches of government.

John K. said...

Ann:

I'm curious: How did Libertarianism by John Hospers, Reclaiming the American Right by Justin Raimondo, and Our Enemy the State by Albert Jay Nock wind up on your Amazon ads? Do you have any input in those selections?

Our Enemy the State is in my opinion one of the greatest libertarian works of all time, but it's hardly the most famous (the book being distinguished by its philosophical anarchism combined with the heavy influence of Henry George), so it seems quite a coincidence that it's there in your Amazon ad. Nock is a quitessential representative of the "Old Right," which is what Raimondo is also trying to reassert in his Reclaiming the American Right.

Just wondering if you've been reading up on the Old Right, or if the ads in your Amazon ad are influenced by the books your commenters are prone to cite.

amba said...

This is a really naive question, and I'm obviously years behind the curve, but what if some of the people picked up on the not-so-clearly-defined modern "battlefield" are innocents who were in the wrong place at the wrong time?

Kinda tough sh*t, like the conservatives who live in major cities who disagree with Boumedien but whom we can write off (per Simon's comment I reacted to a day or two ago) because they're dumb enough to live near liberals who are gonna get the cities blown up? Darwin Award?

Moral of the story: if you're in the wrong place at the wrong time, you had it coming?

Beldar said...

Matthew: I also think Justice Kennedy was writing politics, not law. He very candidly admits in Boumediene that he's making this stuff up without any direct precedential support (at page 49 of the .pdf file; italics in original; boldface mine):

"It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure [i.e., formal legal] sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding."

The fact that Justice Kennedy is an Associate Justice on the Supreme Court is also purely a coincidence. But this may be the single clearest example of "legislating from the bench" in SCOTUS history, and John McCain would be a fool if he doesn't turn it into a campaign issue.

John K. said...

Oh, I feel really dumb now. I see on revisiting your home page that the list of books changes every time, and that they are actually tailored to the individual reader and computer, so that presumably when Cedarford reads your blog he sees Mein Kampf listed, whereas I'll see Bill Kauffman and a complete different listing of books. Boy those Amazon guys are smart.

Titan said...

Cedarford said...

Funny none of the 400,000 captured German soldiers and civilians were able to plead their cases in Fed Civilian court

Well, I don't think any of them claimed they weren't soldiers. (They were after all, captured in uniform.) Even the spies we caught in the U.S. quickly admitted to being German spies.

Furthermore, some of the people at Gitmo were arrested in exotic locations like INDIANA.

nor the 1 million American citizens under martial law in Hawaii, Alaska, Puget Sound Naval Reserve for the duration of WWII.

Umm, yes they did. The Supreme Court decided Korematsu, which said that the detention could not be challenged en mass. The same day, however, the Court said that individual challenges could be brought.

[Epstein is a] liberal Jewish lawyer.

If you think Epstein is a liberal, then you've got more problems than even I can fix. Perhaps you should read some of his books.

Titan said...

Beldar said...

The "Star Chamber proceedings" were, of course, specifically designed and balanced by a bi-partisan majority of both chambers of Congress, passed by them as legislation, and signed into law by the President.

And the explicit strategy of the liberals who didn't want to look soft on terror was to make the bill as extreme as possible so that it wouldn't be constitutional. That way the Court would have to strike it down and the liberals would be off the hook.

You may remember Arlen Spector referring to the bill as "blatantly unconstitutional" right before he voted for it.

But hey! The tactic worked! It certainly took you in. You seem to think that it was just like a regular military hearing. (Which makes one wonder why the Congress didn't just use regular military hearings.)

How about this nugget? If the detainee won his case, the government could have a do-over. Is that a standard military procedure?

Titan said...

amba said...

This is a really naive question, and I'm obviously years behind the curve, but what if some of the people picked up on the not-so-clearly-defined modern "battlefield" are innocents who were in the wrong place at the wrong time? Kinda tough sh*t?

Good question. What does it mean to be at the wrong place at the wrong time when you have cases like this one:

Ali Saleh Kahlah al-Marri -- the computer science graduate student at Bradley University, in the U.S. on a student visa -- was arrested at his home in Peoria, Illinois where he lived with his wife and five children, charged with credit card fraud, only to then have his trial canceled at the last minute by George Bush, who declared him an "enemy combatant" and ordered him into military custody, where he remained for years with no charges.

I guess Peoria, Illinois was the wrong place at the wrong time.

matthew said...

Beldar, almost every decision by the supreme court has political ramifications. It's really an unfair sleight of hand to say that a decision that affects politics is ipso facto not based on law.

That said, Epstein's argument is legally much stronger than the one espoused by Justice Kennedy and the majority. Obviously you don't agree with it, but Epstein is still making a legally sound argument that sounds in law. And would have political ramifications.

Also, it's not really surprising that there is no precedent here. And the lack of precedent similarly has no bearing on whether or not a decision is 'legislating.' Can you think of anything similar to the current Iraq war in history?

Titan said...

@Cedarford

The case I mentioned was Ex parte Endo, 323 U.S. 283 (1944). The Supreme Court recognized that Japanese put in internment camps had the right to challenge that detention and be released.

Ann Althouse said...

Beldar said..." He very candidly admits in Boumediene that he's making this stuff up without any direct precedential support..."

You're saying that when precedent doesn't determine the outcome, the judges is just making stuff up and exercising raw political power? How does the first precedent ever get made then? Kennedy disqualified all the purported precedent and derived some principles from them (mainly involving identifying factors that could be balanced). You might not like that sort of interpretation of the Constitution, but it's inflammatory to call it making things up.

madawaskan said...

The military is not a democracy, or a Constitutional Republic.

If you join the military you sign off a bunch of "rights" almost immediately.

If a military person is in a Federal hospital as opposed to a civilian and they present with extremely high blood pressure-

What happens?

What does the civilian have a "right" to that the active duty military member does not?

Seems to me that we might be comparing apples to oranges-right along with Epstein.

And the trouble is-Kennedy did refer to the Eistranger case.

They gave this new fangled spin to it though-saying that it was different somehow because then we were not intend on a long term occupation-{ even though that's turned out differently and because we were beholding to our Allies.

Which according to one of the dissents-those TWO points were not even made at the time-or argued?

{I think it is in Scalia's dissent.}

Also -these guys had access to the Court of Appeals DC Circuit under the DTA-what would have happened was never even flushed out.

Oh and you gotta love this line from Epstein-

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status.

Since this guy seems to be for one side of this I bet he wants mountains of that-"evidence".

That's something more for the military to do now for everyone else.

Also again the military is not a democracy-but it's "volunteer" at some point and there is a HUGE gap between the civilian world and the military one by design if you want to extend civilian rights to our enemies an advantage they never believed they would acquire on top of all the other ones they get for being less than Geneva honorable then they truly are a cancer.

They get our own sytem to beat us.

Beldar said...

Matthew: I give Epstein credit for recognizing that, in his words, the "sleight of hand" was Justice Kennedy relying on bits and pieces of the factual setting in Eisentrager as support for his own new rule.

But then Epstein proceeds to ignore the core holding of Eisentrager too, which is that nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

Politics. Not law. When you're arguing law, you can't ignore the core holding of a Supreme Court precedent that's on point. (Read Justice Scalia's dissent.)

Titan said...

madawaskan said...

Oh and you gotta love this line from Epstein-The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status.-Since this guy seems to be for one side of this I bet he wants mountains of that-"evidence".

To be fair, "substantial evidence" is a legal term of art. It is significantly less than "beyond a reasonable doubt".

As a lawyer, when I read that I noted in my head that Epstein wants to use a lower standard, not a higher one.

Titan said...

Beldar said...

Epstein proceeds to ignore the core holding of Eisentrager too, which is that nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

The detainees are claiming that they are NOT enemies, while the Germans in Eisenstrager admitted that they were.

So Eisenstrager was not as direclty on point as you think.

Spread Eagle said...

Habeas Corpus is an originalist constitutional right

Not for non-Americans on foreign soil. They have no constitutional rights.

Beldar said...

Prof. A: With due respect, I disagree that "Kennedy disqualified all the purported precedent." He attempted to distinguish them, but did so by misstating them, particularly Eisentrager. (Again, I incorporate by reference Justice Scalia's dissent.) And I can't agree that it's inflammatory for me to quote Justice Kennedy's own words, which admit that his decision is, quite literally, unprecedented. He did make it up — one may argue whether or not it's a good result, but not that it's created without supporting prior precedent directly on point.

Look again at the paragraph I quoted, for the two reasons he gives as his excuse for making up the new rule: First, it's a long war. Well, yeah. But Point me to the part of the Constitution that says it changes during long wars, please? Second, we really do have de facto control over Gitmo. Welll, yeah. But given the proficiency of our armed forces, we really have the same degree of de facto control over just about every camp or facility they've set up. Again, point me to the part of the Constitution that says our combat proficiency gives constitutional rights to everyone under our military's practical control.

Okay, if the Constitution doesn't support either of those two reasons, then point us to some supporting precedent that's kind of close. But there isn't any. The one that's closest, that he pretends to rely upon, is Eisentrager, and it came out the other way.

This is judicial activism at its most naked, and at its most abusive and dangerous (since it's not just lawmaking by the Court, but lawmaking predicated on declaring existing law created by the two other branches of government unconstitutional).

Jason said...

Kennedy and others have raised the issue of the length of the war as having a bearing on the right of detainees to challenge their status under the writ.

This is ridiculous to me. Either the detainees are combatants or they are not. If they are not combatants, what difference does the length of the conflict, which no one can predict, ever, on their rights?

And if they are, again, what bearing would it have? After all, Al Qaeda is free to surrender and cease hostilities at any time. The fact that they don't is hardly the fault or responsibility of the military or justice department.

And if you're an illegal combatant who signed on to murder Americans without bothering to submit yourself to a responsible chain of command, carry arms openly, wear a recognizeable uniform, and generally comport yourself with the law of war, then you can freaking die in a cell in 70 years as far as I'm concerned, and you ought to be grateful you're not simply hanged as a spy or illegal combatant or common criminal.

madawaskan said...

Titan-

Well and ya as a "civilian" when I read this:

(Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

I read substancial as well substancial...

Also as to the "evidence"- as a member of the military community I can think of looooaaaads of reasons for that to be a bitch.

Let's see "discovery"-who has access to that?

Oh and by the way who has a security clearance for that?

And ghee how did we "get" that evidence?

Not to mention -does the defendant get to face his accuser?

Ya someone was bemoaning Iraqis turning Iraqis in and being offered money as if this was the first time that ever happened during a war...

Let's see you're an Iraqi and you see terrorist activity but now there's a chance that you turn them in-they got US Court learn your name, get released or even if they don't communicate your name to their "friends" back home...

Who you going to call?

You might think twice about calling the US military even though they are trying to protect you from the methods of terrorism.

Which also leads me to the update-

If not Guantanamo -what were the alternatives- Scalia says this in his dissent-

But so long as there are some places to which habeas does not run--so long as the Court's new "functional" test will not be satisfied in every case--then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates.The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.

madawaskan said...

Oh crap you know I was up til 3:00 am last night and it shows-can't spell substantial-worth a anyways-

Who gets to decide what level of evidence is sufficient-civilian courts right?

Who says they should accept less than the norm?

Also why not have that be the next thing that is fought about for them in our courts?

I'm off for some coffee sorry for the language problems-I have them they're huge.

P. Rich said...

It seems to me, being a little simplistic about it, that for liberal-progressive judges the Constitution is only "on point" when it conveniently supports their view, which is to say, never - else they would be conservatives. Then they are reduced to attempting to argue from some previous imperfect, biased ruling which itself was fundamentally deviant. And as a last resort, they invent their own "precedent" which becomes justification for future deviant rulings. Such is the law as practiced by the left and objectively reported upon by the likes of the NYT and WaPo. It's all good, Pookie.

Ann Althouse said...

Prof. A: "With due respect, I disagree that "Kennedy disqualified all the purported precedent." He attempted to distinguish them, but did so by misstating them, particularly Eisentrager."

By "disqualified," I only mean that he explained why he was setting them aside and clearing the way to do his own style of balancing. I'm not saying he properly distinguished them, and I know a lot of people disagree with the way he handled them. But you were making a stronger assertion, that he just made stuff up. That's what I took issue with and that's what I called inflammatory.

I know most people only want to hear if the case was right or wrong and then they have to act outraged at the other side. That isn't the way I look at the Supreme Court. It doesn't seem that easy to me, and I don't regard either side as engaging in a naked power grab.

matthew said...

Beldar, I'm not arguing with you over the questionable merits of Kennedy's decision.

Even Epstein disagrees with the reasoning of the decision. He's arguing that a stronger, textualist approach to the constitution could lead to the same results - and that it would also be good policy. And he explicitly states that it involves overturning Eisentrager.

However, I do think you need to be more careful with throwing out the cries of 'legislating from the bench' and 'judicial activism.' Or making 'policy, not law.'

Under your reasoning, Justice Thomas is one of the most political actors on the court because he wants to ignore Supreme Court precedent on commerce clause cases and strike down federal laws. And the late Justice Rehnquist was involved in a dangerous 10th amendment power grab to strike down the VAWA. Or that the Kelo case, which did rest on precedent, was not in any way shape or form an 'activist' decision.

I agree with Prof. Althouse. The justices are actually interpreting the constitution in ways they find most authoritative. It's not just a arbitrary law-making power-grab.

knoxwhirled said...

what if some of the people picked up on the not-so-clearly-defined modern "battlefield" are innocents who were in the wrong place at the wrong time?

Well, of course this is the big problem. But it's one that was, in fact, created by our enemies--who eschew uniforms and strategically blend in with the innocents. How do you fight fair against people who refuse to play by the rules? It's almost impossible, and there will be lots of casualties: innocents who the enemy blows up; innocents we kill who are in the line of fire; and innocents we unwittingly lock up. I don't see how this is avoidable.

GTMO was far from ideal, but putting people in our court system seems worse to me. Impractical on many levels, and ultimately something that puts our soldiers in more danger. What do you want to worry about on the battlefield: surviving or remembering everything perfectly for a possible future cross-examination by the likes of a John Edwards? Probably a naive answer, but that's how I see it.

Chip Ahoy said...

I never once heard anybody mention much less be alarmed about our geopolitical position being fragile.

Beldar said...

When and if any actual trials of the Gitmo detainees are permitted to go forward, whether under the MCA or otherwise, they're likely to resemble the courtroom scenes from A Few Good Men — which was, by the way, a fictionalized version of a very real incident at Gitmo, with whole paragraphs of the play and movie scripts lifted by Aaron Sorkin from the court martial proceedings.

The real-life detainees will have real-life lawyers who may not be as attractive as Tom Cruise and Demi Moore, but the real-life lawyers will actually have gone to law school and they'll be just as committed to their professional duties as were the fictional Lt. Daniel Kaffee and Lt. Cdr. JoAnne Galloway. (Some of them are already working the American and international press hard, sending bulk emails to reporters even before they've filed their motions to suppress.) Many of the rules enforced in American civilian courts would apply in full force, but others of them (e.g., the civilian evidentiary rules limiting the use of hearsay) will apply in more limited form. But that's also exactly true of the proceedings under the UCMJ to which we subject our own service personnel.

Therefore, I'd suggest that what's "inflammatory" — what's an "alarmist view" — is Prof. Epstein's, when he suggests that these proceedings would, unless blocked by the SCOTUS, in any material way resemble the Star Chamber.

Doyle said...

So, Epstein theorizes that since citizens get due process rights outside the U.S. and non-citizens have some inside the U.S., so everyone should have U.S. due process rights everywhere.

No. Not everywhere. In the United States or in places under United States control, like Guantanamo Bay.

Props to Ann. I thought she'd be more sympathetic to Scalia's "We're all gonna die!" dissent.

Beldar said...

(I should mention that in the real-life incident upon which A Few Good Men was based, there was no high-level cover-up, no murder, no counterpart to Jack Nicholson's fictional Col. Nathan R. Jessep. I know there are lots of libs who can't distinguish fact from fiction, though, and who'd therefore like to put Dick Cheney in that role.)

Beldar said...

(Ack. Should have said, "no suicide" by a high-level officer. There was an unintended death of a Marine, though, during a hazing incident at the hands of his fellow Marines.)

EnigmatiCore said...

"The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense."

This is very close to how I believe things should have been decided. However, I don't think that the administration, Bush or otherwise, should be required to provide proof of enemy combatant status.

They should merely be required to show that the person is 1) not a US citizen, and 2) was not taken into custody in the US. Anything else should be outside of the jurisdiction of the Supreme, and other, courts.

That probably is not that far from proving someone is an enemy combatant, but far enough that I really hate this decision. What happens if the soldiers who would provide testimony about their capture are killed? Does that mean when we take prisoners, we need to either keep the soldiers involved off the battlefield until the trial, or that we need to kill the enemy rather than taking prisoners?

Neither approach seems optimal going forward. This isn't just about who is in Guantanamo now.

Beldar said...

Doyle: You're correctly summarizing the scope of the decision. By virtue of becoming a prisoner of the U.S. military, anyone, of any nationality, no matter where they were captured or what they were doing, suddenly and dramatically acquires an as-yet-unspecified bundle of rights under the United States Constitution that they can enforce in the civilian federal courts of the United States through an application for a writ of habeas corpus.

Talk about your transformations. One day, you're a terrorist who's shooting RPGs at American troops and cutting throats of Shi'ite babies; the next day, you get picked up by the U.S. Army and voila, you've got rights under the Constitution of the country you're trying your best to destroy!

rhhardin said...

Why would it matter if the fragile geopolitical position was alarmist or not?

Dealing with a foreign enemy in general is what cuts the court out, not whether it's alarmist.

The Drill SGT said...

1. Beldar, while I agree with your basic thrust, I think you got this part wrong, at least according to Epstein: By virtue of becoming a prisoner of the U.S. military, anyone, of any nationality, no matter where they were captured or what they were doing, suddenly and dramatically acquires an as-yet-unspecified bundle of rights under the United States Constitution that they can enforce in the civilian federal courts

He says in the section below that if you are POW, you get sh_t. If however you are less honorable and don't comply with the GC, then as an enemy combatant, we accord you more rights. Seems strange and indefensible to me.

see below:

Overruling Eisentrager on this point would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant.

2. So if Epstein and Kennedy are arguing because the Constitution doesn't make a distinction about citizens and non citizens nor between IN US versus outside the US that therefore HC applies to all people captured by US forces, anywhere under any circumstances (except of course if they are lawful POWs: see above), then what restricts HC from applying to all people anywhere, all 7 billion of them. Why can't all of them sue in Federal court? after all, nothing in the Constitution limits or excludes them?

Nothing in the suspension clause distinguishes citizens from aliens. Likewise, the due process clause extends its constitutional protections to all “persons,” citizens and aliens alike. If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens. Viewed this way, the court did not need to decide whether or not Guantánamo was American territory. Its ambiguous status no longer matters. Eisentrager disappears on originalist grounds.

EnigmatiCore said...

John K.,

"I'm curious: How did Libertarianism by John Hospers, Reclaiming the American Right by Justin Raimondo, and Our Enemy the State by Albert Jay Nock wind up on your Amazon ads"

Here is what shows up as my Amazon ads-- "The Real McCain". "Kindle". "A New Earth". "Moment of Truth in Iraq". "Battlestar Galactica, Season 3" (wait, what?).

Amazon uses tracking cookies (via a third party company) to track the browsing habits of those using the computer you are using to view their pages in order to tailor what they advertise to you.

So how did Ann's page end up with those ads for you? By you reading a lot of paleoconservative crap (especially Raimondo, ugh). They fed you exactly what would appeal to you.

Mine is just what you would expect given what I am-- an independent 'swing' voter who can see both sides. Although the Battlestar Galactica option is troubling to me; I've never been into that show and avoid geek as best I am able.

Maybe I am wrong and you are not primarily paleo. If so, good for you. Nock isn't bad, but the 'new' old right is rotten to its core.

EnigmatiCore said...

Hey, I refreshed a while later. Must have seen me say something good about Nock, or something at all about Raimondo, because now the #2 title on my Amazon ad box on Althouse's page is Ron Paul's Revolution book.

They also figured to replace BSG with something more appropriate-- "A Defense of Food".

Mmmmm. Food.

Mortimer Brezny said...

Even Epstein disagrees with the reasoning of the decision. He's arguing that a stronger, textualist approach to the constitution could lead to the same results - and that it would also be good policy. And he explicitly states that it involves overturning Eisentrager.

Yes, but Epstein is wrong, and Beldar is right.

Volokh

Jason said...

Accepting, for the sake of argument, the crazy idea that combatants are entitled to habeas rights because they are interred at Guantanamo as opposed to Kandahar - Why shouldn't the attacks on 9/11 qualify, constitutionally, as an "invasion or rebellion," anyway, thereby authorizing the executive to suspend the writ vis. those determined to be members of the organization that 1. invaded us, 2. declared itself to be at war with us, and 3. found itself the object of a congressional authorization of use of force?

matthew said...

[T]hen what restricts HC from applying to all people anywhere, all 7 billion of them

Is someone actually making this argument? Jeepers. Habeas corpus only even arguably applies to people who are in the custody of the U.S. (i.e., locked up in a prison run by the U.S.). No one is disputing that.

Mortimer Brezny said...

Is someone actually making this argument?

Yes. Richard Epstein.

OldGrouchy said...

"Sergeant, did you tell this POW his rights not to speak without a lawyer?"

"Sir, no I was too busy securing him and his weapons and didn't do that! It's rough out there, sir!"

"OK, Sergeant, this will go on your record. Give'em back his weapons once he's outside and after you've shut the hatch to my bombproof!"

3-Minutes later, after hearing a huge explosion nearby, the captain calls battalion: "Sir, when can you send down more lawyers for my company? I've only got 15 for the company and 9 are on sick call! Yes sir, I realize that my OPFor kill count is sky high while our POW cage still is empty! Need a double load of ammo too! We're burning it like crazy."

The Drill SGT said...

Habeas corpus only even arguably applies to people who are in the custody of the U.S.

Think of it as a quad chart.

quad 1. US Citizen US soil

quad 2. US Citizen, Foreign Soil. Eisentrager applied HC to these folks

quad 3. previously Non US Citizen on US soil. HC was thought to apply

Quad 4. Non US Citizens on Non US Soil. Kennedy says that nothing in the Constitution restricts HC to either Citzens or US Soil. He then applies that to GITMO, but why stop there. Why can't any world resident demand HC in a US court?

So does HC attach to folks in Iraqi Jails? Arguably, the Left say we are an occupying power, therefor the defacto power? Why doesn't HC aply?

Why cant a US Citizen in Turkish jail somebody sue the Turks in US Court for HC. The Constitution doesnt restrict that suit

Why Can't a Chinese Citizen sue the Chinese in US court? The Constitution doesnt restrict that suit

Seven Machos said...

Epstein is the best constitutional scholar out there, and certainly the most consistent.

Conservatives should pay close attention when he finds himself in disagreement, always.

Maguro said...

So does HC attach to folks in Iraqi Jails? Arguably, the Left say we are an occupying power, therefor the defacto power? Why doesn't HC aply?

The question of exactly when an enemy combatant obtains his newly-discovered constitutional rights is going to be a tricky one.

While they're at large and fighting, no constitutional rights. We can shoot them or direct a 500lb bomb into their house as the military sees fit.

By the time they make it to Guantanamo, thev've got their constitutional rights, but what about in between?

Do they gain rights as soon as they're captured? Once they're back in on base? Only upon touching down at Gitmo?

Presumably the next administration will have to figure a new policy and then we'll get to see if that meets with the court's approval.

The Drill SGT said...

By the time they make it to Guantanamo, thev've got their constitutional rights, but what about in between?

LOL, when I was a Tank Compan Commander, I carried a Miranda Card and a Law of Land Warfare/Geneva Convention Card in my wallet.

The Miranda card when I did a drug bust n the barracks, and the LoLW Card for handling POWs. Now I huess you need to read Miranda warnings to prisoners? :)

Mortimer Brezny said...

Epstein is the best constitutional scholar out there, and certainly the most consistent.

No, he is not. He is frequently idiosyncratic and wholly incorrect.

Ann Althouse said...

Mortimer, why did you link to Volokh like that, making it look like Volokh agreed with you? Your link goes to a post that's like mine, pointing out the op-ed without much more.

Enigmaticore: "So how did Ann's page end up with those ads for you? By you reading a lot of paleoconservative crap (especially Raimondo, ugh). They fed you exactly what would appeal to you."

Ha ha. The funny thing is that Amazon is making people feel like they have a special affinity to the blogger, even when the blogger isn't on the same page at all and in some instances would hate to give off that impression.

Jason "Accepting, for the sake of argument, the crazy idea that combatants are entitled to habeas rights because they are interred at Guantanamo as opposed to Kandahar - Why shouldn't the attacks on 9/11 qualify, constitutionally, as an "invasion or rebellion," anyway, thereby authorizing the executive to suspend the writ..."

The Court said it was an unconstitutional suspension of the writ because Congress did not provide "an adequate substitute" substitute for habeas.

***

Those of you who think it's enough that a person is not a U.S. citizen and was taken into custody outside of the U.S.: what if you were taken into custody by a foreign government when you were not in that foreign government's territory? Would you think it was right if you were detained without process indefinitely on that gov't's say-so, with no access to anything like judicial process? Obviously not, so why do you want to think that's what the United States can do. The United States.

Maguro said...

Now I huess you need to read Miranda warnings to prisoners? :)

Only if we intend to keep them. As a practical matter, I suspect that few high-value prisoners will remain in US custody for very long following this decision.

Deals will be cut with various unsavory regimes to house and interrogate the really dangerous terrorists. Back to the '90s, I guess.

EnigmatiCore said...

"what if you were taken into custody by a foreign government when you were not in that foreign government's territory? "

I would hope my country is good at diplomacy to get me back.

But other than that, what are you suggesting my rights would be if, say, I was taken prisoner by Russians while in Greece? While I admit it would be nice if the Russian courts would allow me the rights of a Russian citizen, I don't think they do. What if Iranians took me while I was in Iraq? Would I be treated as an Iranian citizen? (That wouldn't be enough, by the way!).

We should not be trying to treat the world as we want our people to be treated. We should treat the world as our Executive Branch, with approval of the Senate via treaties, has negotiated. Nothing more, nothing less.

Jason said...

Ann,

That answer doesn't work. After all, when Lincoln suspended the writ, he was under no obligation to come up with an adequate substitute for the writ! He simply suspended it and rounded up, say, Moseby's Raiders (when he could find them) and other irregulars.

Roosevelt didn't need to find a substitute for the writ when he interned thousands of Japanese nationals and Japanese Americans. He just did it. And the United States was no more under "invasion" then than it is now (unless you count the Phillipines).

Where in the Constitution does it say the Writ shall not be suspended, excepting in times of invasion or rebellion, provided that the executive come up with a substitute? I'm not seeing it.

Ann Althouse said...

Jason, I'm telling you about the way the Court dealt with it. Read the opinion.

Enigmaticore: "We should not be trying to treat the world as we want our people to be treated. We should treat the world as our Executive Branch, with approval of the Senate via treaties, has negotiated. Nothing more, nothing less."

Is that really what you think rights are?

knoxwhirled said...

what if you were taken into custody by a foreign government when you were not in that foreign government's territory? Would you think it was right if you were detained without process indefinitely on that gov't's say-so, with no access to anything like judicial process?

You need to watch "Locked up Abroad" on Natl Geographic.

The Drill SGT said...

Ann said...Is that really what you think rights are?

I don't actually care what my rights are if I'm arrested by a foreign power. What I care about is what the President and the US are going do do about it. I think McCain is more lkely to help me than Obama. I think Obama would want to jst talk a lot. Remember Teddy:

"This government wants Perdicaris alive or Raisuli dead."

I want to live as free as a Roman citizen of which it was said:

A Citizen could wander the breadth of the known world confident and safe, knowing that if harm befell him, the might of Rome would seek vengance, swift and sure

That's what I want :)

Mortimer Brezny said...

Mortimer, why did you link to Volokh like that, making it look like Volokh agreed with you? Your link goes to a post that's like mine, pointing out the op-ed without much more.

I didn't make it look like Volokh agreed with me. I just cited to the comments section of the post, where people are discussing it.

Jason said...

Ann,

Oh, that's a cop-out. I read the opinion. And commented at length on it.

http://iraqnow.blogspot.com/2008/06/so-illegal-combatants-have-habeas.html

http://iraqnow.blogspot.com/2008/06/more-on-latest-supreme-court-stupidity.html

It didn't make a lick of sense. I'm in good company... it didn't make a lick of sense to Justices Scalia or Roberts, either.

You're telling me how the Court dealt with it. But the court did not deal with it, because the argument I'm asserting was not before the Court in this case. The Administration was not arguing that the President has the right under the suspension clause to suspend the writ. The Administration was arguing, based on this court's own prior ruling (Hamdan) that the two elected branches of government had come up with an acceptable substitute.

They are very different positions.

Ralph said...

I don't regard either side as engaging in a naked power grab.
I don't want to regard either side naked, especially not Ruth B G, but power grab: that's what official Washington does. If you ain't grabbing, you're nobody.

EnigmatiCore said...
This comment has been removed by the author.
EnigmatiCore said...

Sorry for the delete, but I dropped a paragraph.

"Is that really what you think rights are?"

I believe we are endowed by our creator with certain unalienable rights. Life, liberty, pursuit of happiness, etc.

Do I believe that the rights that all men are endowed with by our creator are what our Constitution spells out, either explicitly or via penumbrums? Not at all.

Further, I don't think that what I believe our rights to be under our Constitution, or what you believe them to be, or Justice Kennedy and his four friends, matters at all, except in the bounds of our government, for our citizens.

I would not mind at all if we could impose our way of looking at the world everywhere. Or, even better, convince the rest of the world to look at things the way we do. But we cannot.

The fact is, we signed on to the Geneva conventions to protect our people. And a few years back, our courts decided that the Geneva conventions apply to people who are not covered by the terms of the treaty. Honestly, the only reason I can think is because they wanted to make the rights in our Constitution more universal, beyond our borders, regardless of the verbage they used to justify the decision.

But by doing so, we have instead created a system whereby our enemies have protections and our people do not, because other governments don't do things that way. If our people declared war on China, and were over there outside of uniform killing Chinese citizens and military, they would not be afforded the protections of the Geneva conventions.

Take China out of my equation, and use a different example, perhaps one exemplified by Daniel Pearl.

I don't think we should have any system at all whereby anyone captured in Iraq or Afghanistan or any country where we are engaged in warfare have any rights at all in our courts. None. They are our enemy, and the only controlling influence should be the American voter over who the Commander in Chief is, and perhaps afterwards if there have been war crimes committed them pursued the way they have been throughout recent history.

I believe any approach that tries to impose this court decision will only result in more dead enemies, as the benefit for capturing them goes away, and less intelligence for us (leading to more dead Americans).

Regardless of what I think about rights, I think that sucks, even though it is almost certainly going to be the result of this decision.

More dead Americans and more dead enemies is not what I consider a win-win, no matter how principled the ideals behind it are.

Tell you what, though. I believe that the people of Zimbabwe have rights. I think in a perfect world, they would be able to press charges against Mugabe, and have him thrown into jail here in America. Maybe we can get the Supreme Court to agree that this is absolutely the way things must be. After all, the people there have rights, unalienable and all.

madawaskan said...

Those of you who think it's enough that a person is not a U.S. citizen and was taken into custody outside of the U.S.: what if you were taken into custody by a foreign government when you were not in that foreign government's territory? Would you think it was right if you were detained without process indefinitely on that gov't's say-so, with no access to anything like judicial process? Obviously not, so why do you want to think that's what the United States can do. The United States.

Well...let's assume a few things-I think first of all -I'd avoid a war zone.

Then there are certain laws of war-which terrorism profits from by breaking - the "knowns" and the precedents {ironic}

Wars are a bitch that's why they are known to be imperfect things.

I don't know how to explain it but it might be akin to applying the laws of physics that are known on Earth to the conditions on Mars.

War is a different environment-people get killed for starters... and it's an accepted condition.

P. Rich said...

Balancing, now. That's really important. Overwhelmingly negative consequences of an imbecilic ruling, not so much. After all, we're talking new jobs for defense lawyers, maybe even a whole new legal specialty, and more appreciative contributions to the Dhims. Must be a good thing. It's all so clear now.

Host with the Most said...

We all have our wish list for how things should really be in America and it's Constitution.

Mine begins:

"The right of the United States to hunt, apprehend, and kill anyone determined to do harm to the people of the United States and do damage to it's political system shall not be abridged or restrained. It shall be encouraged. Pre-emptively.

So long Iran.

former law student said...

Enigmatic core and Host with the most do not understand a basic principle of International Law which is to treat others as you would wish to be treated. Call it the Golden Rule, or call it "what goes around comes around", disrespecting the rights of foreigners leads directly to foreigners disrespecting the rights of you and your fellow citizens. Then you just have the law of the jungle to rely on. We can't fight off the entire world, which is exactly what will happen if we lose the respect of our fellow human beings.

"The right of the United States to hunt, apprehend, and kill anyone determined to do harm to the people of the United States and do damage to it's political system shall not be abridged or restrained. It shall be encouraged. Pre-emptively.

This sounds exactly like the mission statement of al-Qaeda, and not anything I would want associated with the United States.
What good does it do us to destroy the basic principles of our political system? Shades of "We had to destroy the village in order to save it."

And madawskan: where is the war zone of the War on Terror? Where are the battlefronts? Where can I stick my red and green pins into the map?

Cedarford said...

Althouse - Those of you who think it's enough that a person is not a U.S. citizen and was taken into custody outside of the U.S.: what if you were taken into custody by a foreign government when you were not in that foreign government's territory? Would you think it was right if you were detained without process indefinitely on that gov't's say-so, with no access to anything like judicial process? Obviously not, so why do you want to think that's what the United States can do.

1. Funny, I do think countries can do that on certain grounds -

a. The Chinese periodically wiped out SE Asian pirates by not just killing the pirates w/o trial or throwing them in dungeons for life, but also backtracking to their support villages in Thailand, Malaysia, Indonesia and killing and burning the civilian part of the "bandit pirates" organization. It worked until the lessons in blood and pain were unlearned, then the Chinese went back and did it again every few centuries.

b. The Royal Navy's eradication of the slave trade was something lawyers would have a shitfit about and reams of lawsuits filed if it happened today.
They seized ships, imprisoned crew, and freed valuable bought slaves. They broke legal contracts of Central European and N African Jewish, and Dutch financiers - who paid the upfront slave trade money in a perfectly legal way. They killed or imprisoned foreign nationals outside the territorial jurisdiction of the UK who were engaged in behavior their cultures still sanctioned.

c. We have done that for almost 4 years with extra-national drug cartels, sometimes kidnapping drug lords and financiers in foreign countries.

2. The reason the enemy combatants are detained indefinitely is mainly the fault of lawyers who support terrorist civil liberties, not the evil Bush-Hitler. Within months of 9/11, Bush and Congress, but not the Sulzbergers and the Hard Left - wanted military tribunals to determine status of Arabs caught in Afghanistan - if they were legitimate POWs under Geneva Rules, unlawful enemy combatants, and which ones were war criminals that would qualify for harsh punishment.
Almost immediately, the ACLU, Jewish-run human rights organizations, and Euroweenies that saw terrorists as protected as "freedom fighters" under Geneva Protocol II (which most major nations never signed or agreed to). Once the civilian courts meddled and accepted the lawsuits on behalf of terrorists and leisurely worked the cases, all the "These poor innocent religious travellers only armed for self-protection are detained indefinitely!! howls of anguish for the Jihadis sprang up from the very people blocking legal resolution of their status by the US.

It's the same fucking tactic the same ilk of lawyers use by suing decades to block the execution of some serial rapist-killer monster - then claiming the indefinite detention and after 20 years of being sentenced the scumbag is suffering "torture" not knowing for sure if the scumbag will live or die. Which they say constitutes cruel and unusual punishment.

3. I'm sure the SCOTUS that is now the only Branch of government with final word on how we fight wars will eventually have to address the matter of real POWs caught in uniform and otherwise complying with all rules of War.

a. Because the matter of indefinite detention in a long war isn't something the Constitution addresses, therefore, lawyers in robes must make something up. If unlawful enemy combatants have access to courts and cannot be detained indefinitely without some charge from the civilian criminal code - the surely all law-abiding enemy POWs deserve more rights than them to access civilian courts and lawyers and maybe a nice "majesty of SCOTUS" ruling that POWs cannot be held more than 3 years without trial or they must have their weapons returned to them, if any, and be sent back to "territory not under the control of the US". I know the Germans sure could have used the 250,000 taken prisoner in N Africa in 1941 back killing Allied soldiers in 1944.

b. The lawyers in robes, in their wisdom, must explain to American society and the troops they send into harm's way - why such perverse incentives they reward terrorists with should not also fall onto Americas in the military as a similar blessing.
Why should troops fight in uniform if they don't feel like it, and being caught wearing one endangers them more than a Jihadi blending in to civilian crowds? Why should our soldiers be under harsher UCMJ and court martials rules? Why should they not have full habeas rights in civilian court, if it is what the "Constitution" of our Supreme Governing body demands we do with enemy combatants?

Beldar said...

Prof. A: I don't think Congress purported to invoke the Suspension Clause and suspend the writ via the Military Commissions Act. There weren't the requisite findings of invasion or civil disobedience. And I think traditionally the assumption has been that when Congress acted under the Suspension Clause, it would have to specify a place within which the writ would be suspended. But that may be wrong, and I've read speculation elsewhere that one way around Boumediene short of a constitutional amendment or a later decision overruling it would be for Congress to say, "Based on the invasion that occurred on 9/11/01, we're suspending the writ world-wide, but only for non-U.S. citizens who are apprehended abroad, based on acts committed abroad, and they're held abroad." Now that would certainly generate litigation over what kind of "invasion" there has to be. And I readily confess that I haven't done any serious research on precedents besides Boumediene that apply or discuss the Suspension Clause.

What Congress clearly did do in the MCA was to attempt to forbid the federal courts from exercising subject matter jurisdiction over the detainees' potential habeas claims, but of course, Justice Kennedy found that attempt to be unconstitutional because he and the four other Justices comprising the majority have decided that the detainees have rights under the American Constitution, such that habeas corpus could only be denied them if it as done under the Suspension Clause. Well, yeah, if the have rights that derive from the Constitution, then Congress can't deprive them of those rights. But that assumes the conclusion, which is an unprecedented one that conflicts with the closest precedents and is horribly unwise.

As for "with no access to anything like judicial process" -- there you go, with the same alarmism and hyperbole that Prof. Epstein engaged in. There definitely is a "judicial process" under the MCA, a very finely crafted and balanced one. Has a judge with a gavel, lawyers, the whole nine yards. If you mean "civilian judicial process," you're still wrong, because the MCA provides for appeals from the commission trials to a regular Article III court, i.e., the U.S. Court of Appeals for the D.C. Circuit.

Cedarford said...

Titan - "Funny none of the 400,000 captured German soldiers and civilians were able to plead their cases in Fed Civilian court."

Well, I don't think any of them claimed they weren't soldiers. (They were after all, captured in uniform.) Even the spies we caught in the U.S. quickly admitted to being German spies.

You don't read too well. We had German civilians and other nationality civilian labor conscripts caught working with uniformed Wehrmacht soldiers in prison camps inside the USA, but also in the UK, Canada, Iran, Egypt. None of those civilians in POW camps had any right to habeas.

Nor did the 11,000 Germans, Italians, Japanese, Romanians that were in official US internment camps. The relocated Japs did, because they were outside martial law zones and not official internees. Many had already filed suit in camps for matters of property, wills, rights to unopened mail.

Titan Furthermore, some of the people at Gitmo were arrested in exotic locations like INDIANA.

Khalid Sheikh Mohammed learned his skills as a destroyer of aviation in his 4 years as a mechanical engineering student in North Carolina. Atta was a quiet grad student in a bucolic Hamburg suburb studying urbam design.

Whats your point?

The mistaken belief that terrorists only live where women are in Burquas and the goats are scared?

Titan - "nor the 1 million American citizens under martial law in Hawaii, Alaska, Puget Sound Naval Reserve for the duration of WWII."

Umm, yes they did. The Supreme Court decided Korematsu, which said that the detention could not be challenged en mass. The same day, however, the Court said that individual challenges could be brought.

Umm. no they didn't. Korematsu was outside the martial law zones that affected US citizens, enemy Jap aliens (40% of the total on the Mainland), and J-A citizens alike. Korematsu was West Coast, outside the Martial Law zones.

madawaskan said...

fls-

Well good question-it's the terrorists that don't respect boundaries or nation states-they've changed the rules and of course they win again.

And to get back to the practicality of the matter tthe Gitmo detainees had access to the federal court system.

They had access to the Court of Appeals DC Circuit something that was never fully tested.

See here-

Congress entrusted that threshold question in the first instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742. But before the D. C. Circuit has addressed the issue, the Court cashiers the statute, and without answering this critical threshold question itself. The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an "adequate substitute" for habeas, ante, at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right--one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided.

It is also fruitless. How the detainees' claims will be decided now that the DTA is gone is anybody's guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat--precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.

I believe the system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy.
I therefore would dismiss these cases on that ground. With all respect for the contrary views of the majority, I must dissent.


Chief Justice Roberts.

I think he might disagree with the hypothetical given.

Sounds to me like the detainees had access to judicial process.

madawaskan said...

I see that Beldar already covered it-but we already went over this in this Althouse thread.

link

matthew said...

I personally disagree with the Court's decision here, but I think FLS is absolutely right. The Golden Rule exists, we should treat people the way we want US citizens to be treated. That isn't constitutional - and shouldn't have made it into a court decision - it's just ethical.

(I would feel different if this was a ground war like in WWII - but this is something new and different...)

The US, as a matter of policy, should be better than this. Does anyone honestly believe that we couldn't prove in a habeas corpus proceeding that the Gitmo prisoners are enemy combatants?

(And if you believe that we couldn't, why are we detaining them in the first place?)

Epstein is exactly right about at least one thing - if we show in a HC proceeding that they are enemy combatants, there are no legal arguments for the prisoners. They can be detained indefinitely. No one thinks otherwise (with the possible exception of the Drill Sgt who wants to argue that Chinese Prisoners should have access to US courts).

Seven Machos said...

Does anyone honestly believe that we couldn't prove in a habeas corpus proceeding that the Gitmo prisoners are enemy combatants?

This is one hundred percent correct. The issue then becomes who is an emeny combatant. But, really, that's been the issue all along.

Revenant said...

The Golden Rule exists, we should treat people the way we want US citizens to be treated.

Other nations are welcome to lock our troops in their own versions of Gitmo in the unlikely event that America starts waging war out of uniform.

The US, as a matter of policy, should be better than this.

Why should we start now? We've gone 233 years without extending habeas rights to captured enemy forces in wartime. If it was good enough for George Washington, why isn't it good enough for George Bush?

Does anyone honestly believe that we couldn't prove in a habeas corpus proceeding that the Gitmo prisoners are enemy combatants?

If a habeas proceeding could be accomplished at zero cost in time and money that would be a valid argument. As it cannot, it isn't. Obviously we *could* do that. But since we've no obligation to do so and doing so would cause great inconvenience to the military, we shouldn't do it. Bush should simply ignore the court's ruling.

Cedarford said...

matthew said...
I personally disagree with the Court's decision here, but I think FLS is absolutely right. The Golden Rule exists, we should treat people the way we want US citizens to be treated. That isn't constitutional - and shouldn't have made it into a court decision - it's just ethical.


Fine, Matthew, except what you are describing is not ethical behavior, but stupidity.
If the enemy is mutilating then chopping heads off soldiers and civilians and doing everything that fails to comply with Geneva to gain unlawful advantage, the sappy maxim we should treat people the way we want US citizens to be treated is already being violated. Which flies in the face of Pope Benedicts academic reflection on ethics and moral behavior - it is unreasonable to maintain that if there is no reciprocity, only one-sided punishment by the side breaking with norms.

Churchill applied his own Golden rule on rumors that Hitler, in a rage, had threatened to shoot all the Allied bomber crews. Basically in a do onto others as they do onto you, Churchill said if they found out POWs were being killed he would happily kill as many German POWs as it took to disabuse the Nazis of that behavior. And instructed his diplomats in Lisbon and Zurich to convey that if Hitler did it, his captured Luftwaffe guys were toast. It worked. No mass executions of Allied aircrew POWs happened, and with reciprocity, the German POWs were safe, too.

matthew - The US, as a matter of policy, should be better than this. Does anyone honestly believe that we couldn't prove in a habeas corpus proceeding that the Gitmo prisoners are enemy combatants?

Why, yes, in fact. Certainly enough gray area and lack of criminal acts that no civilian court will be able to prosecute 90% of the terrorists for any crime...even conspiracy, which is a pretty high bar that requires direct, replete with scads of official evidence with a custody chain, direct knowledge or participation in a criminal act.

All AQ trained in terror camps were given cover stories - "I was on a quest to see pure Islam in action in the Hindu Kush, I was invited to a wedding party in Khandahar by a nice chap I met in Karachi." Or, I'm shocked! I was just a simple cleric student who carried an AK-47 alongside all my friends for protection against bandits. All men in Afghanistan carry weapons."

Though I admit it would be funny to see each case become a 30-40 million dollar fiasco, unless charges are dropped.

And funnier still to have some ACLU Jew explain to US soldiers that the US guarantees their enemies great treatment, gourmet meals, free lawyers, and release after only a few months or years no matter what death and brutality the enemy inflicts on American civilians, American POWs because "we are morally superior to them and meting out consequences makes us look less noble and is reason #17 that Muslims may erupt in seething rage.."

if we show in a HC proceeding that they are enemy combatants, there are no legal arguments for the prisoners. They can be detained indefinitely. Then you would agree that anyone fighting the US in uniform and complying with Geneva is crazy? Because not only will an enemy out of uniform not draw immediate fire and has a lower risk of being killed in combat than a Geneva rule-follower.....you also argue if captured, the uniform soldier gets a harsher deal. No access to courts, indefinite detention as a "guilty" of being caught in uniform POW.
Seems like every enemy the US faces, if the mindset of SCOTUS and people persists, is well advised not to wear uniforms or not hide in and fire from high population civilian positions...

OldGrouchy said...

Cedarford: A.) "And funnier still to have some ACLU Jew" . B.) "Almost immediately, the ACLU, Jewish-run human rights"

WTF are you trying to say? Your words above, which are from your comments for this post, are anti-Semitic and have no bearing on AA's post or in regard to any other post for that matter. I would agree with many of your other comments but strongly disagree with your anti-Semitic tone and so-called subtle anti-Semitic hints.

If you're in fact an anti-Semite then please go join David Duke and his KKK buddies and roast in hell.

The issue of AA's post, in my opinion, is Boumediene conferring rights HC upon GITMO detainees, which we've never done in war before. Perhaps SCOTUS would enlighten us all by saying how we are to fight this war and how we detain anyone caught not in uniform during such a conflict. Unless and until Boumediene is overturned (And, when would that be?) we are stuck with it, which I feel means that many fewer such combatants will be detained, exceptions will happen.

The issue of how we want our troops to be treated by others has been covered well by "Geneva." A corollary is that many of the USA's recent warring opponents have not bothered at all to follow Geneva. We always followed Geneva since it was agreed to, and the older so-called laws of war, with exceptions brought out by other Yanks and dealt with by our courts or our military tribunals. The argument of "how do we want our troops to be treated" was answered years ago in Geneva. The issue is now and has been how are we to treat the combatants we have, whether uniformed or so-called illegal combatants and especially the latter variety. SCOTUS needs to go beyond its meager pronouncement and enlighten us quickly. Perhaps Article III does in fact supercede the first two articles in all matters?

Churchill's referred to admonishment to Hitler was proper and one we might have tried with Japan but I'm not certain of that. But I do know that Japan did not give a fig about our feelings nor would AH have except his military types did care. Lastly, there have been many cases of wartime cruelty (Much of which did lead to Geneva in 1949) some by ourselves during the Civil War by both sides, some on Brit prison ships during our War for Independence, but recall that war is not a tea party, simply somewhat better regulated now? None of that matters regarding Boumediene, although it does make for interesting natter.

The Drill SGT said...

OG said in part...The issue of AA's post, in my opinion, is Boumediene conferring rights HC upon GITMO detainees, which we've never done in war before.

Actually Epstein and the SCOTUS turn the Geneva Convention (GC) seemingly on its head.

tutorial. The GC's (and there are several) attempt to civilize warfare by prescribing rules and processes for conducting war and handling prisoners. Writ simple: Play nice or we will hang you after the war, and if you follow the rules, when we catch you, you get food and fair treatment

Now our opponents don't follow the rules. The correct way to disabuse them of this behavior according to the precepts that drove the creation of the GC would be to hang the leaders and treat the trooops caught out of uniform (etc) with less benefits than are normal for POWs.

That way (the Churchill/Hitler story aboe) people get the message and behavior improves

Epstein and the SCOTUS seem to have turned that around however. Now we are in a state where we are according NON-POWs more rights (HC for example than folks (POWs) who follow the rules. Keep that up and you get more folks breaking out of those restrictive GC rules, not fewer. Why play by disadvantgous GC rules if you get the same or better treatment by NOT doing so.


Footnotes to Cedarford:
1. i think it was Nov 42 in North Africa not 41
2. Actually the Brits hung slavers. well actually all slavers except those flying the US flag. Two reasons, 1, we had our own anti-slavery patrols and we boarded all but Brit ships as well, and 2, we went to war when they boarded our ships, and we'd do it again.
3.Rich Jews aren't responsible for all evil

knoxwhirled said...

disrespecting the rights of foreigners leads directly to foreigners disrespecting the rights of you and your fellow citizens.

I don't buy the whole "what goes around comes around" argument. By that logic, you're essentially saying we did something to deserve 9/11 and all the attacks before. And all we ever need to do is to be nice and they'll all back off. Neither of these is true, and in fact, the enemy we're facing now becomes only more fierce as they perceive weakness.

There are plenty of good arguments for this ruling (I don't happen to agree with them), but this is not one of them.

Ann Althouse said...

I wrote: "The Court said it was an unconstitutional suspension of the writ because Congress did not provide "an adequate substitute" for habeas. "

Beldar said: "I don't think Congress purported to invoke the Suspension Clause and suspend the writ via the Military Commissions Act."

That's right. The Court wrote: "The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention." The question was then "whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus," and, looking at the procedures in the DTA, concluded that it was "an unconstitutional suspension of the writ."

EnigmatiCore said...

Fls spouted,

"do not understand a basic principle of International Law which is to treat others as you would wish to be treated"

Can you please point me to the treaty, signed by a President and approved by the Senate, that codifies the Bible's Golden Rule?

Thanks in advance.

Jason said...

exactly my point!

Why not simply issue an Executive Order, or work with Congress to pass a law formally suspending the writ for combatant prisoners captured outside the United States who are determined by the Secretary of Defense to be members of or supporters of Al Qaeda or other known terrorist groups, until the cessation of hostilities?

Given that Congress has already authorized the use of military force against Al Qaeda all over the world, and given that Al Qaeda has already declared itself to be at war with the United States, and has actually attacked us within our own borders, it would be hard for the Supreme Court to argue that the suspension clause does not apply (though Kennedy and Ginsburg are apparently dumber than I ever gave them credit for. I shouldn't underestimate them.)

Of course, what these chuckleheads have done with this ruling has been to state that the President has unconstitutionally suspended a writ that he is constitutionally entitled to suspend.

Very nice logic.

Cedarford said...

Drill SGT - 3.Rich Jews aren't responsible for all evil

Obviously. Nor are Muslims responsible for ALL terrorism.

Old grouchy may have had a cow about me criticizing the progressive Jews who have led the effort for more terrorist civil liberties and exposed US counterterror efforts. Tough.

If the ACLU had had a Filipino-American Excecutive Director for 40+ years and an majority of it's Board and money had come from the Filipino ranks seeking an aggressive agenda to bypass US democratic institutions and use lawsuits as a way to force their will on others. And prior to that, the Filipinos were over half the members and nearly all the leadership of the Communist Party. Given that, presumably it would be acceptable for those who dislike Communism and Hard Left agenda being shoved down America's throat by Filipino-American judges and others at the behest of mostly Filipino lawyers and financers,
to criticize Filipinos. Who form a small part of the US population, for their disproportionate influence, attacks on other American's values, and for their anti-democratic, behind closed doors machinations. I suspect the criticism and questions about the major role of a small minority in running the show would be commonly asked.

But over half the names of ACLU leadership and finance and the names of the lawyers filing the bulk of the lawsuits on behalf of a shill or front person - are not Filipino.

Similarly, if Scotts-Irish were regularly revealing classified information and endangering US agents and soldiers overseas with divulgence of intelligence sources and methods, we would say why are the Scotts-Irish meddling so actively?? And through Scotts-Irish ownership of much of the media and key policy positions - Americans are regularly assailed as atrocity-committers and torturers of innocent enemy in hundreds of fromt page stories and TV news pieces sent to the ME and Afghanistan where they caused deadly riots and spur recruitment with relentless "America's shame!! propaganda delivered on a silver platter to our greatest enemies by the Scots-Irish, we might ask, what is up with the patriotism and loyalty of the Scots-Irish??

If the Scots-Irish then led on matters of terrorists civil rights and "due process rights of enemy combatants".....the American public would be wondering what the hell has gotten into the Maloneys, the O'Briens, MacDouglas types in courtrooms. And in circles where really rich Scots-Irish were funding a range of Scots-Irish led Fronts and Foundations dedicated to paralyzing surveillance, freeing terrorists, and as judges, Scots Irish were dominant voices of the hard left???

But the names aren't Filipino or Scots-Irish. They are instead almost 50% names like Neier, Stroessen, Feingold, Ruth Ginsburg, George Soros, the Sultzbergers, Boxer, Nadler, Wasserman-Schultz, Peter Allen, Mark Cuban, Geffen, Schumer, Bernie Sanders, Eric Litchblau, James Risen, Dave Axelrod, Penny Pritzker, Feinstein, Medea Benjamin and the other Jewish ladies of Code Pink, etc.

And while other groups influence on foreign policy, politics, and the courts is freely discussed - like Cuban-Americans and the black political machine of certain cities, the dominant place Japanese-Americans have had in Hawaii for 60 years, various areas of "white male control" - for the good or bad they do, they can be discussed...even blacks now, after a period where they had relative immunity to criticism that began in the early 70s and began slowly ending in the mid-80s though residual fears of criticism of certain black things = racism, persists.

With Jews, they realized quickly that sypmathy for the Holocaust gave them power in the moral authority of victimhood and the notion that Jewish activities and progressive or transnational agenda ambitions should ideally never be criticized. Because, you see, Jews suffered when people were free to criticize them controlling major parts of economies or were trying to transform nations with lawsuits and radical politics.

That logic held for a while in the USA, but it has been 70 years, and Jews are not the only people with a long pedigree of "persecution". Blacks, Celts, mestisos, Filipinos, Chinese, Scots, Slavs (the slave people), Russians and Euros who came from millenia of peasantry and serfdom all have "long historical persecution" claims - but we criticize them freely if we believe they act against the interest of American society.
In recent years, Jews themselves have been the foremost critics of Southern Whites and Christian religious fundamentalism - with sometimes open derision and belittlement of those groups.

Some in America besides Jews even seek and briefly get the Immunity Amulet from others questioning their actions. Blacks briefly, Muslims now, gays perhaps - but no group with such power and influence with more agressive efforts to reshape the rest of America to their suiting over the interests of others has had the immunity from criticism as long as the Jews. The only group claiming criticism of their fellow ethnics or even their nation, Israel - is a special form of bigotry that needs criminal laws to safeguard them from any criticism.

Well, sorry, but I think it is healthy for America to say the immunity of Jews from questioning on matters like excessive lawsuits to force leftist change on America, Wall Street corruption, dominance of key industries and aspects of US foreign policy are not forbidden. They are over after a decent interlude for recovery from WWII's slaughters, just as it was proper to be solicitous of other ethnicities significant suffering which is not discussed much in US schools, but certainly Greek, Serbian, Polish, Indonesian, Filpino, Chinese, and Russian schools..

Criticism is healthy - and it should not go in the direction the Jewish organizations succeded in imposing in much of Europe in state censorship or in criminal court, such as the Canadian Jewish Congress got passed in Canada in law creating the Human Rights Tribunals under 13(1) originally to persecute "critics of Jewish economic power, anti-semetic speech, holocaust deniers, "illegitimate criticism of Israel".

Jason said...

Cedarford...

Put a sock in it. You're a smart guy. Until you start into your Jew-bating fetish. Then you make yourself look like an idiot.

There's no place in conservatism for that crap. There's no place in civilized discourse for it. There's no place in human decency for it.

Don't be an ass.

Ralph said...

Wow, Threadkiller! Cedarford does have something other than Jourette's Syndrome, not sure what. Someone who believes in individual liberty should be more careful about lumping people in groups. At least he corrected his misspelling of "Scots," but the O'Briens and Maloneys are vile Catholic Irish, not saintly Scots.

Rich Jews aren't responsible for all evil
Their ideas of social justice require they leave some evil for poor Jews to be responsible for.

A nasty joke after the above post, but I couldn't resist.

former law student said...

we've never done in war before

We've never had a so-called war on terror before. The War on Terror is a bastardized concept ginned up in response to terrorist-piloted Boeings flying into our buildings. The WoT seems to have as much in common with the War on Drugs as it has with war as we've understood it for the past 233 years or so. In fact, I would say that the War on Terror is to war as Same-sex Marriage is to marriage. It is little wonder that concepts derived from wars between sovereign nations have scant applicability to this so-called war. When we were at war with Germany, any German national was an enemy alien, to be interned for the duration of the war. But now that we're at war with terror, we must first show that aliens are in fact terrorists before we can deprive them of their liberty. Those who actually shoot at us make our case for us. In contrast, we're going to have to justify any seizure of Bradley University grad students.

Now, the Geneva Conventions are treaties. But treaties are not the final authority in international law; state custom is. If we don't treat other countries' nationals per the Geneva Conventions, that demonstrates that our practice is to ignore the Geneva Conventions. Then in response other foreign countries won't treat our nationals per the Geneva Conventions -- and that was exactly Churchill's point.

OldGrouchy said...

Some O'Briens might well be Scots, not at all sure what Maloneys are through! We of Scot, Irish, English, Scot Irish, Welsh, Dane, Swede, French and German ancestry do appreciate some ethnic jokes but none at all about the USA Constitution.

The last so-called USA Star Chamber hearings resulted in tossing dissidents and other malcontents into St. Elizabeth's by good old FDR. Epstein's favorite demon did nothing except spy on enemy agents and hold those who'd been fighting us in the WoT.

Regardless, SCOTUS has shaken its bony finger at the Admin. and Congress but has said nothing about how to deal with the after-effects of its pontification. SCOTUS is a little like all of us in that it scolds and leave us hanging in the wind, which we do NOT need. So much for the natter in this post.

As for Cedarford, you are a racist, an anti-Semite, and IMHO a raging idiot. I therefore do remove my qualifier from before and say: "Go to Hell and roast with your black-shirted buddies!" Also, roast your wieners upon your burning copy of the PoZ!

memomachine said...

Hmmmm.

@ former law student

"We've never had a so-called war on terror before."

Of course we've had "war on terror" before. We've had terrorism of various kinds in the continental USA and in American territories for over two centuries!

WTF?

What? Never read up on the labor wars during the unionization heyday? How about the COIN in the Philippines in 1899-1902?

For God's sake! Did Bloody Kansas somehow escape you?

memomachine said...

Hmmmm.

Here's a question that I have and I have yet to see a good answer. If you have a link to a good answer then I'm all for it.

Specifically: What are the rules of evidence, chain of evidence and how are earth are US Marines supposed to collect it during a firefight?

Verso said...

Melissa Hoffer, a lawyer representing some of the detainees at Guantanamo, describes the horrific abuse and torture the detainees are subject to.

Video

Warning! The vivid descriptions of torture and abuse will cause great excitment and enthusiasm for many of the conservative readers of this blog.

Note: Conservative icon Michael Savage wants to execute Ms. Hoffer.

I always laugh a little bit when I remember that the advocates of this depravity call themselves "values voters" and "pro-life."

SGT Ted said...

This ruling just means that troops on the ground will shoot more jihadis, rather than risk capturing them and having them walk free only to kill more people later on.

Because, it doesn't matter what the USSC says about the trial end; the US Army and Marines don't face the same engagement restrictions that the police do.

memomachine said...

Hmmmm.

"Melissa Hoffer, a lawyer representing some of the detainees at Guantanamo, describes the horrific abuse and torture the detainees are subject to."

Yeah horrifying stuff:

1. Fruit cup.

2. Clean beds

3. Medical care

4. Soccer balls

...

So tell me who was it that authorized handing off captured terrorists to third party torturers?

Bill Clinton and Al Gore.

All of you leftoid anti-torture BS artists are completely full of crap. If Obama is President I fully expect each and every single one of you to start justifying him authorizing torture with the most amazing sophistry.

But then again I am already starting to see you leftoids wriggling on the chickenhawk hook.

Revenant said...

Melissa Hoffer, a lawyer representing some of the detainees at Guantanamo

In other words, an Al Qaeda employee.

Revenant said...

Why not simply issue an Executive Order, or work with Congress to pass a law formally suspending the writ for combatant prisoners captured outside the United States who are determined by the Secretary of Defense to be members of or supporters of Al Qaeda or other known terrorist groups, until the cessation of hostilities?

The simple answer is "because they don't have to". Prisoners captured outside the United States during wartime have never had habeas rights. The authors of the Constitution obviously didn't intend for them to. Indeed, those British troops captured INSIDE the United States weren't even granted habeas rights, although for the most part that happened before the Constitution was written.

OldGrouchy said...

Revenant: Those Brit I was talking about were captors, imprisoning our good guys in ships just off old NYC. Many of those poor Yankee souls died from sickness and other cases of maltreatment.

Don't know where we kept Brits we captured but do believe Gen'l Cornwallis's Yorktown bunch were shipped off to NYC to be held there until the treaty of Paris was signed when the Brits released their hold on the town.

Guess that SCOTUS today would demand that Gen'l Geo. Washington show what evidence was used to detain Cornwallis's scabby crew, even for such a short time, within the bounds of the original 13, or else let them free so they might continue ravaging old Virginia! Wonderful, eh?

veni vidi vici said...

The adequate substitute for habeas in these Gitmo cases is to take all remaining Gitmo prisoners, strap parachutes on their backs, show them which cord to pull, and put 'em on a transport plane over Afghanistan and boot their asses out of the door at the appropriate altitude to make a safe landing, over meadows and farmlands or someplace they won't get dashed to bits on rock cliffs. That way, they get to take their fate into their own hands, and we wash our hands of them.

Any way you look at it, it's a better deal for them than a bullet to the head or a hangman's noose.

Jason said...

She lost me at the line "ladies and gentlemen of the jury."

Pretentious twits.

The Exalted said...

Revenant said...
Melissa Hoffer, a lawyer representing some of the detainees at Guantanamo

In other words, an Al Qaeda employee.


i hope all lawyers turn you down when your day in court comes.