June 12, 2008

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

The AP reports:
The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
Justice Kennedy writes for the 5-4 majority. Chief Justice John Roberts, for dissenting, accepted the government's "generous set of procedural protections."

UPDATE: Orin Kerr says it's exactly what he expected and what "you could see coming from miles (or in this case, years) away."

230 comments:

1 – 200 of 230   Newer›   Newest»
Dust Bunny Queen said...

Is there any point in being an actual US citizen then?

What would be the downside of renouncing my citizenship since it seems that being a foreign terrorist or illegal alien gives all the upside protection with none of the downside obligations of citizenship?

Dust Bunny Queen said...
This comment has been removed by the author.
Hoosier Daddy said...

The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Funny how Lincoln and FDR didn't seem to think so.

Is there any point in being an actual US citizen then?

Damn good question

Triangle Man said...

DBQ. What are you talking about? Your view of the Constitution must put an eccentric spin on the notion of inalienable rights.

Bob said...

Effing Kennedy and his Eurocentric view of law.

Frederson's going to be even more insufferable than usual, I predict.

former law student said...

Is there any point in being an actual US citizen then?

Yes, to date no US citizens have been detained in Gitmo. Here's what you have been spared:

Such detainees spend 22 hours a day alone in small cells with little or no natural light or fresh air, extremely limited contact with other human beings, and little more than a book and the Koran to occupy their time. Several are reportedly suffering from depression and anxiety disorder, and some have reported having visions and hearing voices.

One teenager captured by the US has been kept in Gitmo so long they now intend to try him as an adult.

The sooner the US closes down our own Gulag, the better.

Dust Bunny Queen said...

Yes, to date no US citizens have been detained in Gitmo

Spare me the crocodile soap opera tears over terrorists being detained in Guantanamo Bay. Boo freaking hoo.

If US citizens commit or conspire to commit acts of terrorism and mayhem against their own country and citizens, I would hope and expect that they get the same or even worse treatment than foreign combatants since they would be traitors to their own country.

However, since it seems "anyone" can be afforded the same or actually better protections under the constitution than US citizens. Again. I ask what is the advantage to being a US citizen?

Hoosier Daddy said...

Such detainees spend 22 hours a day alone in small cells with little or no natural light or fresh air, extremely limited contact with other human beings, and little more than a book and the Koran to occupy their time. Several are reportedly suffering from depression and anxiety disorder, and some have reported having visions and hearing voices.

Wait, let me get my violin.

The sooner the US closes down our own Gulag, the better.

Obviously such an idiotic statement proves you never spoke with anyone who was in a gulag.

Quayle said...

Will the unspoken policy now become "take no prisoners?"

Trooper York said...

Tom Hagen: We ought to hear what they have to say, Sonny.
Sonny: No, no, no, not this time, Consigliary. No more meetin's, no more discussions, no more Sollozzo tricks. You give them a message from I want Solozzo if not it's all out war we go to the mattresses.
Tom Hagen: Some of the other families won't sit still for an all out war.
Sonny: Tom-anuch! Hey, a hundred button men on the street twenty-four hours a day. That Turk shows one hair on his ass and he's dead. . They shoot my father and it's business, my ass!
Tom Hagen: Even shooting your father was business not personal, Sonny!
Sonny: Well then, business is going to have to suffer. And please, do me a favor, Tom. No more advice on how to patch things up just help me win, please?
(The Godfather, Part 1, 1972)

Simon said...

FLS, what will you do with the Gitmo prisoners once our "gulag" is closed down? Where do you propose to house them?

Moreover, in light of Boumedienne, to what end would you relocate them? I would assume, at the outset, that you are sane enough to be proposing only relocation, not release. Surely, though, now that Boumedienne has rendered a dead letter the distinction between Guantanamo and sovereign U.S. territory, it can't be the location you object to. Your beef cannot any longer be that the detainees are housed at the U.S. military base located at Guantanamo Bay, Cuba, per se. Your beef must be with "Gitmo" as a system - the entire package of what goes on in the prisoner detention system, rather than where it takes place.

So my initial assumption must be incorrect: you can't be proposing relocation, because relocation is ineffectual. I would hope you aren't proposing releasing them. We could change the system of detention, of course, regardless of where we house it - what do you suggest, and where?

Lastly, having said that relocation is irrelevant, is it just that Guantanamo is in some way symbolic, to your mind? And that regardless of what actually happens there now, or happens in the future there or to the prisoners housed there, closing Guantanamo provides some kind of penitence to those foreigners and internal dissidents who disapprove ex ante of America's use of force against islamic terrorism?

downtownlad said...

God forbid we actually try them, and if they're found guilty, lock them up and throw away the key.

I don't think that is asking too much. Thank goodness we have five sane members of the Court.

Simon said...

Dust Bunny Queen said...
"If US citizens commit or conspire to commit acts of terrorism and mayhem against their own country and citizens, I would hope and expect that they get the same or even worse treatment than foreign combatants since they would be traitors to their own country."

Can't be done. If they're a citizen, they should be detained and expeditiously tried for treason. See Hamdi v. Rumsfeld, 542 U. S. 507, 554 (2004) (Scalia, J., dissenting) ("Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. ... Absent suspension [of habeas corpus], however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge").

Beth said...

Again. I ask what is the advantage to being a US citizen?

You have the advantage of living in a country that bests even its culturally closest Western neighbors in upholding liberty. You have the most expansive rights of speech and assembly that exist on this planet. We're currently waging war based in part on the premise that those inalienable rights belong to all humankind, not just American citizens.

We live in a great country. That's the advantage.

Dust Bunny Queen said...

"God forbid we actually try them,"

Yes, I agree. God forbid we use our tax payer supported court systems to have trials for terrorists that are not US citizens. People who are fighting while not in any offical or sanctioned military. Who are not wearing uniforms. Who are murdering people and who are operating completely outside of international laws. People who are basically just randomly killing citizens who are not combatants (making thejust plain murderers or terrorists) or killing our own military personnel.

"and if they're found guilty, lock them up and throw away the key"

I agree here as well. They should have been shot.

George said...

I'm sure the detainees will all be enjoying their future dungeons in Syria, Yemen, Egypt, and Afghanistan.

perry masonmint said...

Ah, Habeas Corpus.

Pissing conservatives off since 1305.

Simon said...

DTL, even assuming that there is a law applicable to their conduct, under what theory of jurisdiction would you prosecute non-Americans for acts undertaken outside of America? Suppose you have a German woman - a citizen and resident of Germany. She lives in Berlin. She procures for a friend (also a German, also living in Berlin) the basic components of some kind of chemical weapon, undeniably "assist[ing]" him in his procurement, receipt and posession of a chemical weapon. She then flies to New York. On landing, under your novel theory of federal criminal jurisdiction, can the feds arrest and charge her under 18 USC 229(a)(2)?

The mistake is to conceive of the war on terror as a law enforcement exercise, to think of foreign terrorists as criminals, and thus to reason "that war criminals such as KSM should be tried within the criminal justice system in the first place."

Trooper York said...

Michael Corleone: I don't feel I have to wipe everybody out, Tom. Just my enemies
(Godfather Part 2, 1974)

rcocean said...

More judicial over-reach. But supported by both McCain and Obama.

downtownlad said...

Simon and DBQ aren't the least bit worried that we have locked up INNOCENT people for six years, and our President was proposing to keep them imprisoned forever.

And yes, SOME of those in Gitmo surely are innocent.

Just because the Decider has declared them to be terrorists, doesn't mean they are. That's why we have trials - to determine guilt or innocence. Radical concept I know.

Texas Tom said...

Does this decision vindicate Gen. Patton's practice of summary execution of prisoners? Drat that Law of Unintended Consequences.

Fritz said...

"ultra vires" Kennedy will be the cats meow on his summer vacation in Europe.

SGT Ted said...

So, the war cirminals held at Guantanamo can go the the Federal Court of appeals and then the USSC?

I think the executive ban on summary battlefield executions and trating them as EPWs protected by the GC should be reconsidered. The Constitution isn't a suicide pact.

Padre Steve said...

Isn't Gitmo overseas? These guys are not on US territory and don't deserve the rights of a US Citizen!

Crimso said...

"Pissing conservatives off since 1305."

I don't think that, compared to his contemporaries, Lincoln was a conservative. Perhaps compared to the average person of today, but not of his era.

Simon said...

RCocean said...
"More judicial over-reach. But supported by both McCain and Obama."

Really. McCain approves of today's result striking down a law that he voted for? What's your evidence for that? Or is this just another unspecific slight in your ongoing fit of pique that your preferred candidate didn't win the primary. I grow tired of people who would prefer to consign this country into four years of darkness - an agenda aptly symbolized by Obambi's sunset logo - just because McCain is on the right side of only 75% of policy issues rather than the 85% or so of some other candidate.

What's particularly ironic is that it's people who like you, RCocean, who are responsible for today's decision. Two of the five votes in today's majority were supplied by appointees of a President who took office (and was thus in a position to nominate successors to Justices Blackmun and White) because people like you felt that Bush 41, like McCain, was a 75 percenter, and that that wasn't enough. McCain won the primary. Get over it and get in line. Otherwise, get used to the idea of a lot more decisions like this one.

Bob said...

FLS - the treatment of detainees in GITMO is basically the same as what a convicted felon does in a supermax facility or in the lock-down unit of a maximum security prison. Boo hoo...

An interesting question is what if Bush had demanded from Congress a formal declaration of war against Afghanistan back in late 2001? My sense is Kennedy basically says would have rendered these cases moot.

The troops and Commanders have got to reevaluate the utility of taking these guys prisoner from now on.

Crimso said...

"An interesting question is what if Bush had demanded from Congress a formal declaration of war against Afghanistan"

IANAL, but can one make the argument that an AUMF is a de facto declaration of war? I vaguely recall some Dem did just that several years back (Biden?).

perry masonmint said...

downtownlad said...

Simon and DBQ aren't the least bit worried that we have locked up INNOCENT people for six years, and our President was proposing to keep them imprisoned forever.


Wow. There's a shocker.

Simon said...

DTL said...
"Simon and DBQ aren't the least bit worried that we have locked up INNOCENT people for six years, and our President was proposing to keep them imprisoned forever. And yes, SOME of those in Gitmo surely are innocent. Just because the Decider has declared them to be terrorists, doesn't mean they are. That's why we have trials - to determine guilt or innocence. Radical concept I know."

That's nice, and it'll go down a storm when your turn comes in the Miss America Q&A. But it's non-responsive. Answer my question: assuming an applicable criminal statute, where do you get the idea that the United States has criminal jurisdiction over actions undertaken by foreigners in foreign countries?

former law student said...

HD, you're quite right, the Gitmo detainees are not being worked to death. Although I would argue that enforced idleness is just as soul-destroying as forced labor. To answer your question: my great-uncle spent three years in the war prison side of the Karaganda GULag, but he never spoke about his experiences.

What to do with detainees: They're either POWs or criminals. Criminals should be tried by a court-martial, and either sentenced or released. After all this time, POWs should be granted amnesty and returned to their countries of origin, for humanitarian reasons.

Yachira said...

From
Mark Levin
:

While I am still reviewing the 5-4 decision written by Anthony Kennedy, apparently giving GITMO detainees access to our civilian courts, at the outset I am left to wonder whether all POWs will now have access to our civilian courts? After all, you would think lawful enemy combatants have a better claim in this regard than unlawful enemy combatants. And if POWs have access to our civilian courts, how do our courts plan to handle the thousands, if not tens of thousands of cases, that will be brought to them in future conflicts?

It has been the objective of the left-wing bar to fight aspects of this war in our courtrooms, where it knew it would have a decent chance at victory. So complete is the Court’s disregard for the Constitution and even its own precedent now that anything is possible. And what was once considered inconceivable is now compelled by the Constitution, or so five justices have ruled. I fear for my country. I really do. And AP, among others, reports this story as a defeat for “the Bush administration.” Really? I see it as a defeat for the nation.

former law student said...

assuming an applicable criminal statute, where do you get the idea that the United States has criminal jurisdiction over actions undertaken by foreigners in foreign countries?

simon -- are you suggesting the US has no legal basis to hold these foreigners, making us no better than kidnappers? That we're just like those Austrians who immure their children for decades?

Zeb Quinn said...

Me, I was always unimpressed with the strategerie of scooping the "enemy combatants" up off the battlefield, whisking them halfway around the globe to a hairbreadth and a legal fiction away from US territory, and then with tongues stuck out taunting "niener niener niener, you don't have jurisdiction" to the entire US judicial system, and with the expectation of being able to keep it up indefinitely. It was a policy begging for this result.

TROBlog said...

Eh, I like the idea of taking no prisoners better anyway. After a brief and brisk interrogation that is.

Quayle said...

The law and Constitution are designed to survive, and remain in force, in extraordinary times.

Apparently, however, the long-held principals of standing, ripeness, and the political question doctrine are NOT designed to survive and remain in force in extraordinary times.

Bob said...

FLS - a couple of observations on your proposed solution. POWs are returned to their national government upon the cessation of conflict. Since we are still in hostilities in both Iraq and Afghanistan we are allowed to continue to hold them as POWs for now.

If you wish to try them as criminals then I maintain that the GC allows for the execution of those who are illegal combatants (conducting combat against uniformed combatants while out of uniform) as they are either spies or saboteurs.

Hoosier Daddy said...

Beth said You have the advantage of living in a country that bests even its culturally closest Western neighbors in upholding liberty. You have the most expansive rights of speech and assembly that exist on this planet.

Well Beth, considering that we have upwards of 15 million non-US citizens living here illegally who enjoy those very same rights, I think DBQ has a point. Seems that all you have to do is jump on American soil and you have all the rights and privledges of a US citizen. Illegals whoops, undocumented Americans already receive billions in Federal aid in the form of welfare, medical and education and now, foreign terrorists bent on the destruction of our nation are entitled to the benefits of our legal system with the best defense your tax dollars can buy.

I do honestly fear for the future of this country.

Pastafarian said...

Perhaps there's a silver lining to this decision: In previous wars, combatants that were captured behind our lines and out of uniform wouldn't have been detained indefinitely; they would have been executed on the spot.

We didn't hold a trial to determine if a German soldier captured behind our lines in civilian clothing was guilty or not. Why is this enemy to be treated differently?

At some point, for some reason, we replaced immediate firing squad with indefinite detention. Maybe we thought that we could get some information out of them; or maybe we thought that this small measure of compassion would help us win hearts and minds.

But against this enemy, I suspect that it's been a waste of money to house and feed these bastards. I don't think that this was the outcome that DTL and the left that he represents had intended, but perhaps now when one of these people is captured, and their status as a non-uniformed combatant is beyond question, they'll be stood up against a wall and shot.

Congratulations on your big win, DTL.

Hoosier Daddy said...

simon -- are you suggesting the US has no legal basis to hold these foreigners, making us no better than kidnappers?

I won't speak for Simon but his position is based upon these individuals are non-combatants captured in a time of war and not part of a sting operation on child pornographers or illegal gambling. That seems to be the major gulf between those who see this entire matter as a criminal matter versus a war.

former law student said...

Bob: POWs are not kept in solitary confinement. I would be fine with keeping them as we did Italians and Germans during WW II. And I have no problem with hanging criminals if that's the appropriate punishment.

What I object to is the indefinite detention they're undergoing now. During WW II, we even released POWs to work on farms during the day, which gave them something to do with their time.

Hoosier Daddy said...

Actually the loophole is just remand these jihadists to the host country they were captured in. Most being in Afghanistan and Pakistan.

Larry J said...

In the past, it was stated that The Constitution is not a suicide pact.

Sounds like this Court has reversed that along with prior rulings on the matter. I guess legal precedent is only sacred for abortion.

Paul Zrimsek said...

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch.

Has the Imperial Judiciary ever expressed itself quite this baldly before?

Hoosier Daddy said...

During WW II, we even released POWs to work on farms during the day, which gave them something to do with their time.

Then the left would be whining that we were forcing them to do slave labor.

Bob said...

FLS - please check your history. We did keep some POWs in solitary. We also executed some during the war. However, the vast number of POWs were captured while they were legal combatants (in uniform). Nor were they engaged in illegal activities (targeting of civilians, using civilians as shields, etc). Also, the vast number of POWs complied with detention rules. POWs may have done work outside the camp but they were guarded by armed US troops.

Not all detainees in GITMO are in solitary. I suppose we could allow these detainees to be put into "the yard" and then execute them once they assault a guard.

OldGrouchy said...

I like the part about "No more prisoners." We wouldn't have to worry about Geneva Conventions then would we.

Or, in order to be more helpful citizens of the planet, in future wars we could issue our troops
"Miranda Warning" cards which they would read to potential prisoners before taking those souls to the prisoner cage. Somehow I don't believe we'd have to worry about more wars after the next scrimmage!

Ps: Anyone else ready to sign up for the class: "How to be an Insurgent in our Country", subtitled "How to tear up those cobble stone streets and use street car tracks for barricades!" 54-40 or Fight!

Zachary Paul Sire said...

It was a policy begging for this result.

Exactly.

The Bush administration had/has no "exit strategy" in terms of dealing with these people. Just another example of their lack of foresight and their sense that they can basically do whatever they want.

While the idea of parading these guys in and out of US courts is completely ridiculous (foreign fighters on foreign soil!), what do those of you who disagree with the court's decision propose be done with them?

Either way...if you want to be pissed, shouldn't you be pissed at the Bush administration for yet another epic blunder?

class-factotum said...

"we even released POWs to work on farms during the day, which gave them something to do with their time"

I don't think that was so they wouldn't be bored. I think it was because there was a labor shortage in this country because all our guys were over there fighting and because we didn't want them hanging out together plotting how to break out of the camp.

Mark said...

Dust Bunny Queen:

What a ridiculous question you pose about whether there's any point in being a US citizen. I suspect you're a US citize. If you don't see any benefits of being a US citizen, please renounce US citizenship.

On a more serious note, I am extremely happy with the Court's decisions. It's reassuring to see that even despite all the right-wing hysteria (which is abundant even in this thread), the 5 Justices are upholding the bedrock principle of habeas corpus.

For those unable to see beyong Sean Hannity's talking points: the Court's decision does not mean all detainees can go free. All it means that the accused will get an opportunity to try to prove their innocence to a fair-minded judge. If the detainee is really as guilty as the Government says he is, the judge (or the appeals court) will reject the habeas challenge. Most of the judges are appointed by Republican presidents, so it's not like the readership of DailyKos will determine how the challenge is decided.

Finally, it's amazing to see the complete reversal of the Republicans' former distrust of government. The party is completely overtaken by lunatic fringe who would gladly give our freedoms away in the name of "security." Goldwater would not have been a member of this Republican party.

perry masonmint said...

Zachary Paul Sire said...

Either way...if you want to be pissed, shouldn't you be pissed at the Bush administration for yet another epic blunder?


Don't hold your breath.

Trooper York said...

If more of these judges just had porn on their computers, they would keep themselves occupied and stop causing all this mischeif.

Crimso said...

"who would gladly give our freedoms away in the name of "security.""

What do you mean "our?" Do you have a mouse in your pocket? The issue here isn't the rights of American citizens (or, for that matter, people who are noncitizens but here legally; or, for THAT matter, even those who are here illegally), but rather the rights of unlawful combatants. I'll concede that they may coincide to a certain extent. They may even coincide entirely. But I see no reason to believe that they MUST coincide entirely.

Zeb Quinn said...

Zachary Paul Sire:

You should have stopped at exactly. While I never liked the Gitmo gambit, it doesn't mean that I dislike everything else about Bush or about the war in Iraq.

Rich B said...

But the real point was that it allowed the AP to say "In its third rebuke of the Bush administration's treatment of prisoners..."

Moose said...

Well, if the Haitians and the Cubans had any sense they'd storm Guantanamo.

They'd be US citizens then!

former law student said...

I think it was because there was a labor shortage in this country

There must be a labor shortage in this country, otherwise we wouldn't have fifteen million illegals working here.

Chip Ahoy said...
This comment has been removed by the author.
TitusEverythingsComingUpRoses said...

I say these activists judges need to go.

Good afternoon fellow republicans.

The weather in the city has made me really horny.

It has been hot hot hot in the city

And you know what that means. Very little clothing which I absolutely love.

Last night I did it on the DL with a thugged out, incredibly muscular black guy. Talk about hot and he bottomed for me. Love that.

How are you?

Hoosier Daddy said...

There must be a labor shortage in this country, otherwise we wouldn't have fifteen million illegals working here.

Does that mean welfare is a thing of the past as everyone is working now?

TitusEverythingsComingUpRoses said...

Also, I love seeing all the minorities shirtless and hot walking around the streets looking for trouble.

There is something very intoxicating about watching them prowl around. You can definitely tell they are hot and horny and want to get off. That makes me hot and horny and want to get off.

TitusEverythingsComingUpRoses said...

I love sex.

Dust Bunny Queen said...

If you don't see any benefits of being a US citizen, please renounce US citizenship.

Mark. There are lots of benefits of being a citizen of the United States and as Beth said and I firmly agree the US is the best country in the world with the most freedom and benefits.

However....since it seems I can have all those benefits as an illegal alien or as a known terrorist WITHOUT having any of the obligations of citizenship such as paying taxes, insuring my vehicles, paying my loan obligations, performing civic chores like jury duty, or in the event of a military draft being subject to involuntary military service..

Again......What is the incentive to maintain MY citizenship if all the benefits are given to non-citizens who take on none of the burdens and obligations of citizenship in order to earn those benefits?

If the ice cream is free, why should I pay for it?

TitusEverythingsComingUpRoses said...

The black guy I did last night told me he had done time. How hot is that?

TitusEverythingsComingUpRoses said...

impotence can be a indicator of cardiovascular disease.

TitusEverythingsComingUpRoses said...

Doctor-belly fat is the worst fat men can have.

Men get empowered for a healthy life.

Thank you.

LarsPorsena said...

No, I'm pissed at the court for taking the case.

Richard Fagin said...

The terrorists being held at Gitmo are not criminal suspects awaiting trial. They are enemy combatants picked up on the battlefield. Their detention is intended to prevent their returning to the battlefield until hostilities are over. They have been afforded procedures to challenge their status as detained enemy combatants. The Supreme Court has just disposed of 233 years of precedent in the handling of enemy combatants in a manner that may make it nearly impossible to hold prisoners of war in the future. The President should just tell the Court to stuff it, and declare he's doing so under his Article II authority as commander in chief. Who's going to make him turn over the prisoners? The worst that could happen is he'd get impeached. The Court is acting without authority, or usurped authority. The President has the power to correct that mistake on his own.

LarsPorsena said...

And, lest we forget 36 former inmates who were released went straight back to the war to kill or be killed.

If some of them get off (and they will in our system) whose responsible if they kill again?

Freder Frederson said...

She lives in Berlin. She procures for a friend (also a German, also living in Berlin) the basic components of some kind of chemical weapon, undeniably "assist[ing]" him in his procurement, receipt and posession of a chemical weapon. She then flies to New York. On landing, under your novel theory of federal criminal jurisdiction, can the feds arrest and charge her under 18 USC 229(a)(2)?

Well of course not, she would be returned to Germany to face criminal prosecution. I hear they have quite an advanced legal system over there--judges and lawyers and everything. Your ridiculous hypothetical is exactly the case of what happened in the liquid bombing plot in England. All those guys were tried under criminal laws in England.

Most terrorist plots are criminal acts and should be treated as such.

Simon said...

former law student has left a new comment on the post ""The laws and Constitution are designed to survive...":
"[Simon asked where DTL got the idea that the United States has criminal jurisdiction over actions undertaken by foreigners in foreign countries. A]re you suggesting the US has no legal basis to hold these foreigners, making us no better than kidnappers?"

Cute, but inapt. I'm saying that we are holding them as enemy combatants in a war, not because they are criminals. Prisoners of war were not detained because they violated any criminal statute, but because they were fighting for the enemy. And if that's too amorphous for you (it shouldn't be), Section 2 of the 2001 AUMF, 115 Stat. 224, provides ample authority. As I said above (and as HoosierDaddy alluded to), your mistake is in conceptualizing the war on terror as a law enforcement exercise rather than a war.

And I'd still like an answer to the questions I posed to you above, in my 10:35am comment. I think it's fair to ask you those questions, and fair to expect an answer, assuming that you have one.


Mark said...
"I am extremely happy with the Court's decisions. It's reassuring to see that ... the 5 Justices are upholding the bedrock principle of habeas corpus."

Habeas was "Uph[eld]"? It's one thing to argue that habeas ought to be available to detainees, but to argue - as you must implicitly do, insofar as it is antecedent to claiming that habeas rights were upheld for detainees - that this right previously existed, that the writ ran to people so situated, is a heavy burden. What case can you name - in the entire corpus of anglo-American law - where a writ of habeas corpus was issued in a case brought by a foreign enemy prisoner held by anglo-American military authorities outside of the sovereign's territory? The petitioner cited no such case in their brief. Justice Scalia posed that question repeatedly to counsel at oral argument in this case, and received no answer. Want to try your luck?

The issue is not the writ. All agree on that matter, but that is not dispositive in this case. The issue is: what is the scope of the writ? Perhaps today's holding is good policy - but it is, despite your implication, novel.

Chip Ahoy said...

I'm eagerly awaiting DTL's upcoming book, How to Win an Actual War (Not the Legal One in Your Mind) With One Arm Tied Behind Your Back and the Other Arm Stabbing It.

I'm all for freeing the prisoners -- by opening the North Western gate of Guatanamo base, the one leading directly into the nation of Cuba, (on a path through the mine field placed there by the Cuban government.) Hey, you want us to let them go don't you?

I know people like this. ^^^ They manage to wrench every related post into an average gay cocktail party. It's all a giant game to them. All of their enemies ALL of them, are on their immediate right. It's apparent whenthey open their mouths, or set their fingers to the keyboard. The only enemies they'll recognize are next to them, and the only war they feel is one of words and with their own compatriots.

Kerr is right though, the courts have already spoken on this issue in case after case, so this ruling was foreseeable, by miles and by years. I look forward to washing our hands of these prisoners and hastening them back to their countries of origin, our own system too lovely for them, now that we've had a swing at ... destroying their souls, is it?

Guatanamo is a masterstroke. Talk about putting the fear into our enemies. The reaction to it here proves this point. Just the mention of the place sends a shot up their spines. And for all the noise from the noisiest of all noisemakers to the contrary, in the end, with all the great agony and gnashing of teeth over the place, and Amnesty International notwithstanding, the base actually enhances or moral superiority internationally. Pile on, cite whomever you wish, you'll be citing emotionalists with a penchant for inappropriate comparisons and a preexisting bug up their arse about the US who simply doesn't know what they're talking about. They're dismissed as emotionalism is dismissed.

The ruling is being called a major blow to the Bush administration. Not so. Take the place apart if you wish and if you can, he's already won this one. Big time.

[Insert deep sinister HaHa x 15 here.]

For the sake of disclosure, I'm not a Bush supporter, a Republican nor even a conservative, so you can spare me the simple tagging and childish name calling, although they do become you.

Simon said...

Richard Fagin said...
"The terrorists being held at Gitmo are not criminal suspects awaiting trial. They are enemy combatants picked up on the battlefield. Their detention is intended to prevent their returning to the battlefield until hostilities are over. They have been afforded procedures to challenge their status as detained enemy combatants."

Exactly. Being picked up fighting U.S. forces on a battlefield is a prima facie case for detention. Reasonable process should be available for those few cases where the person claims to be an innocent caught in the crossfire. But thereafter, they should be treated exactly as prisoners of war have always been treated: detained for the duration of hostilities.

"The President should just tell the Court to stuff it, and declare he's doing so under his Article II authority as commander in chief."

"Mr. Kennedy has made his decision; now let him enforce it." No, I don't agree with this. The Court has, arguably, reached the wrong decision, but its decision is binding. If the political branches are free to pick and choose which rulings they will comply with, that is the end of a lot more than 233 years of precedent - it is the end of the rule of law.

"Who's going to make him turn over the prisoners?"

The electorate, five months hence, I fear. I would be far from surprised if one of Obama's first acts on taking office was to release all prisoners and formally apologize to them; I would not be entirely surprised if he went further, pushing Congress to provide compensation and expand the FTCA to allow suits by detainees against their captors.

"The worst that could happen is he'd get impeached."

The Democratic leadership are never going to impeach anyone while there's still a single vote left to be bought with the threat that they could do so.

perry masonmint said...

Richard Fagin said...

The terrorists being held at Gitmo are not criminal suspects awaiting trial. They are enemy combatants picked up on the battlefield.


I couldn't agree more. Since that's what the Bush administration claims, there's no question whatsoever that it's the truth.

Bob said...

The scene is a motor pool in Afghanistan. Hot, dusty and a squad of US soldiers readies itself for its day's patrol.

PFC looks at his NCO and says "Sarge, What does this ruling mean?".

The NCO looks down and away and says "the Court says we gotta allow them to go to our courts."

PFC: "Why? If we get captured they mutilate us slow. We lose our head. Who do we petition for our rights?"

NCO: "No one gives a crap about our treatment. You know the deal -a US soldier gets captured and they die ugly & slow."

PFC: "Well it sucks! How come those human rights groups don't complain about our treatment when captured?"

NCO: "Cause there's no raising money complaining about mistreatment of US soldiers."

PFC: "Does that makes sense? How is that? And why should I bother capturing them?"

PFC to other PFC: "Look, from now on we capture them when we're told to."

PFC: "Otherwise, 2 in chest and 1 in head."

NCO: "Saddle up & stay sharp. Remember, everyone comes back - no one left behind..."

One NCO to another as the patrol leaves "WTF is up with the Supreme Court? What planet do they live on?"

Hoosier Daddy said...

Freder said Most terrorist plots are criminal acts and should be treated as such.

Spot on Freder. In fact, I heard NBC is working on their latest new crime series. Titles are still in draft form but an inside source told me that they're looking at CSI: Special Jihadist Unit or Tora Bora Blues. They thought about Sharia and Order but didn't think it would work since beheadings won't get past the censors.

Doyle said...

Is there any point in being an actual US citizen then?

Well for one thing, it's nice to know that even if your fellow citizens elect a deranged monkey twice, there's still a court system which can kinda sorta be counted on to make sure he can't just break whatever laws he wants.

Crimso said...

"there's still a court system which can kinda sorta be counted on to make sure he can't just break whatever laws he wants."

Too bad we lacked such a court system while Clinton was POTUS.

OldGrouchy said...

PM: Actually those inhabitants of Gitmo, in effect, were picked up at the corner of 5th and Main and thus are due all the rights of an ordinary criminal, so spake SCOTUS!

A consideration: Will the POWs we held during WWII now sue the USA for illegally detaining them back then and forcing them to do inhuman acts like weeding the cabbage patch? I'm certain there's no effective statute of limitations on that crime committed by our forces way back then.

Pandora's Box has been sprung open and the latch torn off.

I doubt whether President Bush will do anything to rectify this SCOTUS ruling. His powers under Article II may not be superseded by SCOTUS, and not by congress either, but this President will not exercise those rights and powers.

The troops new motto will become: "No Prisoners!"

former law student said...

simon -- responded to you 11:34. Those detainees not criminally liable should be repatriated. Indefinite detention without having something to do is inhumane, the more so because the detainees are becoming mentally ill in consequence.

padre steve said: Isn't Gitmo overseas? These guys are not on US territory and don't deserve the rights of a US Citizen!

The issue is our behavior and not what our detainees "deserve". Further, as a minister of the Gospel, are you not familiar with Christ's teachings from the book of Matthew?

7:12 “In everything, therefore, treat people the same way you want them to treat you, for this is the Law and the Prophets.

5:43“You have heard that it was said, ‘YOU SHALL LOVE YOUR NEIGHBOR and hate your enemy.’ 44 “But I say to you, love your enemies and pray for those who persecute you, 45 so that you may be sons of your Father who is in heaven; for He causes His sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous. 46 “For if you love those who love you, what reward do you have? Do not even the tax collectors do the same?

25:3737 “Then the righteous will answer Him, ‘Lord, when did we see You hungry, and feed You, or thirsty, and give You something to drink? 38 ‘And when did we see You a stranger, and invite You in, or naked, and clothe You? 39 ‘When did we see You sick, or in prison, and come to You?’ 40 “The King will answer and say to them, ‘Truly I say to you, to the extent that you did it to one of these brothers of Mine, even the least of them, you did it to Me.’

The Drill SGT said...

Perhaps there's a silver lining to this decision: In previous wars, combatants that were captured behind our lines and out of uniform wouldn't have been detained indefinitely; they would have been executed on the spot.

We didn't hold a trial to determine if a German soldier captured behind our lines in civilian clothing was guilty or not. Why is this enemy to be treated differently?


actually when German soldiers landed in the US during WWII, we tried them in front of a Military Tribunal and executed them the following week. I think the whole process took 30 days.

as for the impact now:

1. Turn them over to the capturing power or the country they were captured in. Spending 24 hours a day behind wire in Anbar in July eating MRE's would be an experience they would soon regret.

2. Take no prisoners into US custody. Let the Iraqis and Afghans hold whomever we find, or just take no prisoners...

Bob said...

Reflecting on this ruling brings me to the conclusion that this is a victory for the Air Force. A Prez won't be able to get a declaration of war thru Congress and we won't want to deal with prisoners clogging the courts. So we're left with bombing places to vaporize terrorists. We'll blame the intelligence when we get it wrong. We're gonna be left fighting like Bill Clinton - sending in a hundred cruise missiles on a target. It will give the appearance of being neat and we'll have video for the news.

former law student said...

actually when German soldiers landed in the US during WWII, we tried them in front of a Military Tribunal and executed them the following week. I think the whole process took 30 days.

I'd be fine with this.

Doyle said...

Spare me the crocodile soap opera tears over terrorists being detained in Guantanamo Bay. Boo freaking hoo.

Do any of you dumbass rubes making this argument understand that the whole point of "due process" is to separate the actual terrorists from the people who have been wrongfully imprisoned?

Do you really think it's a good idea for the president of the United States to be able to arrest anyone on the planet that he/she deems a "terrorist", without any evidence, and keep them locked up indefinitely?

I mean, this is kind of rhetorical because I know a lot of you do, but it's just because you have little reptile brains and no appreciation for the principles our country was founded on.

Salamandyr said...
This comment has been removed by the author.
Crimso said...

"without any evidence"

I'd like a citation for this assertion.

Paddy O. said...

no appreciation for the principles our country was founded on.

Principles formed by men who held African prisoners locked up indefinitely in slavery, and not only them but also their descendants.

No argument for Guantanamo. Just noting the fact that no one has had appreciation for expansive principles if it contradicts immediate interest.

Folks just differ on what their interests are--and which party they would like to have in power and which they would like to fail.

Mark said...
This comment has been removed by the author.
Salamandyr said...

So is being a soldier of a foreign power now a criminal act? If not, then why would they be handled the same way as criminals?

It seems that we, and by "we" I mean the 5 old gits, that came up with this decision, have forgotten that the entire purpose of POW camps is to hold hostile combatants until the fight is over, at which point we let them go. The alternative of course, was shooting them, but we thought putting them in camps was nicer. Go fig.

So, if they do go to trial, do they get sentences now? Can we sentence some poor schlub 10 years for being in the wrong Army?

Doyle said...

It was actually phrased as a question, but either we have to let foreign prisoners challenge their detention in court or we don't. The Bush position was that we don't. What say you, Crimso?

madawaskan said...

former law student-

Well obviously you shouldn't be allowed to interpret Solzhenitsyn by yourself since somehow you've come to the conclusion that-

Gitmo=Gulag.

Mark said...

Dust Bunny Queen said:

".....What is the incentive to maintain MY citizenship if all the benefits are given to non-citizens who take on none of the burdens and obligations of citizenship in order to earn those benefits?"

Are you serious?? If you don't see any incentives, please give up your US citizenship! It's one thing to argue that habeas corpus should be available to "unlawful combatants", it's entirely other thing to argue that because habeas corpus is available, there are no benefits of being a US citizen. Plus, you are logically inconsistent: on the one hand you recognize many benefits of being a US citizen that Beth stated, on the other hand, you insist that these benefits are available to everyone.

Simon,

As the Court's majority said, the issue of the applicability of habeas corpus in the situation such as at hand, was not squarely addressed by the Court. Notwithstanding Scalia's slanted review of the precedent, all of the previous cases can be distinguished on material aspects. Thus, it was an open question whether or not habeas corpus applies to Guantanamo's detainees. The Court "upheld" habeas corpus, in the sense that it ruled that according to correct understanding of the constitutional law, habeas always applied; whether or not it was addressed previously. So, the Court's policy is "novel" only in the sense that this direct question was not squarely addressed previously. Under this definition of "novel", any Court's decision interpreting the Constitution is "novel."

Crimso:

I am glad you are not the one determining the scope of protection that our Constitution affords to detainees in our custody. Please show me where in the Constitution it says that habeas corpus does not apply to detainees held by US military. As I am sure you know, in our system, courts determine whether laws are constitutional. The Supreme Court determined that stripping of the habeas corpus must be done in the manner prescribed in Constitution, even when applied to non-US citizens detainees.

Mark said...

Madawaskan,

Have you been to Guantanamo? And by "been", I don't mean a one day Potemkin village tour. Unless you personally lived there, you can't say whether Guantanamo is like or unlike Gulag.

LarsPorsena said...

"Do you really think it's a good idea for the president of the United States to be able to arrest anyone on the planet that he/she deems a "terrorist", without any evidence, and keep them locked up indefinitely?"

It's not anyone on the planet. It's those in service and bearing arms for a regime that committed an act of war against this nation. Does this tickle your limbic system?

Doyle said...

the entire purpose of POW camps is to hold hostile combatants until the fight is over

But the entire purpose of the War on Terror is that it is neverending. Even the ostensibly coherent war in Iraq War doesn't have a clear finish line. The leader of the country is in theory our ally. Our troops are there basically in a supporting role to prevent factional violence to the extent possible, for an indefinite period of time.

We're the superpower, and defending ourselves and our allies against terrorism will be an ongoing process, so we need a system to deal with prisoners that recognizes as much. That means we can't just lock up whoever we want for the rest of their lives without meeting some threshold of evidence that they're a terrorist.

You're going to have to get used to the law enforcement model, because the POW model is obviously inappropriate. That doesn't mean enforcement can only be reactive instead of proactive, but it does mean that there are rules.

Doyle said...

It's those in service and bearing arms for a regime that committed an act of war against this nation.

What regime is this?

madawaskan said...

Mark-

I've got your reading list right here-

One Day in the Life of Ivan Denisovich
The Gulag Archipelago


Oh ya and for starters I'm sure the elements are just the same-hell maybe worse at Gitmo...

Uh huh.

Crimso said...

"The Bush position was that we don't. What say you, Crimso?"

How many, say, Germans during WWII were afforded habeas hearings? And if POW's aren't afforded habeas, then why should it be permitted for those who are UNLAWFUL combatants?

"Have you been to Guantanamo? And by "been", I don't mean a one day Potemkin village tour. Unless you personally lived there, you can't say whether Guantanamo is like or unlike Gulag."

Have you been a prisoner of the Taliban and their jihadi friends? And by "been" I don't mean a one day Potemkin village tour (or an MSNBC depiction thereof). Unless you personally have been, you can't say whether being a "guest" of the colleagues of those now sitting in Gitmo is like or unlike being a victin in a chainsaw massacre movie.

madawaskan said...

Mark-
How many visits from international organizations such as the Red Cross were allowed at The Gulags?

LarsPorsena said...

The then internationally recognized
government in Afghanistan.

AKA Taliban/AQ INC.

Being a little obtuse aren't we?

Crimso said...

"That means we can't just lock up whoever we want for the rest of their lives without meeting some threshold of evidence that they're a terrorist."

You again assert that no evidence is needed. Citation, please.

Doyle said...

And if POW's aren't afforded habeas, then why should it be permitted for those who are UNLAWFUL combatants?

For one thing, the Germans wore uniforms, so separating authentic German POWs from German non-combatants wasn't an especially tall order.

Secondly, if you're going to use all caps for "UNLAWFUL combatants", you should probably no that it's a made-up term to describe the folks who shoot back when we invade other countries.

KLDAVIS said...

Best line...from Scalia's dissent,

"Turns out they were just kidding."

Referring to 4 of the majority, who wrote in their Hamdan dissent that the President could go to Congress and ask them to do exactly what he did, and what they today invalidated.

Mark said...

Madawaskan,

I've read both Gulag Archipelago and One Day in the Life of Ivan Denisovich. Have you? If you have, please re-read them. Maybe then you'll understand the similarities between indefinite detention in Gulag and indefinite detention in Guantanamo. You'll see that the main horror is not in the physical treatment (there's no argument that detainees in Guantanamo are treated better physically than Gulag's prisoners) but in what the "system" does to you as a person. It dehumanizes you, turns you into an animal. And on this matter, there's no critical difference between indefinite detention in Gulag and indefinite detention in Guantanamo. Notwithstanding Red Cross visits, which mainly have to do with physical aspects of the treatmentl which, as I said, are not the point.

P.S. If you want more advice on the literature to let you better grasp horrors of indefinite confinement, I can help. ;)

KLDAVIS said...

Oh wait...maybe even better,

"What the court apparently means is that the political branches can debate, after which the Third Branch will decide."

Crimso said...

"Secondly, if you're going to use all caps for "UNLAWFUL combatants", you should probably no that it's a made-up term to describe the folks who shoot back when we invade other countries."

Shit from the ass of a bull. It refers to those who don't conform to recognized standards of lawful warfare. Of course, the alternative is to go back to what used to be done with such cowards...

rcocean said...

Simon,

According to MSNBC here is McCain's response:

In the Guantanamo ruling, McCain said he hasn’t read the opinion yet, but said the ruling “obviously concerns me."

“We should pay attention to Justice Roberts,” McCain said, adding, "It is a decision the Supreme Court has made and now we need to move forward.”


As for rest of your post, Republicans nominated 3 of 5 votes. There is no reason to believe Poppy Bush would have nominated and FOUGHT FOR 2 justices of the Roberts type. And Poppy Bush lost because he governed as Fort Part II instead of Reagan Part II (which he presented himself as in '88).

Doyle said...

The then internationally recognized
government in Afghanistan.

AKA Taliban/AQ INC.


Oh that clears it up. Do all the people in Gitmo have business cards with that on them?

The point is that you positively identify the people who are "Taliban/AQ INC." and separate them from people who just drive a car for a living and had a fare in the back seat who was a member of "Taliban/AQ INC."

And surely you'd admit that it's impossible for everyone we've detained to have had something to do with 9/11. And the known mastermind of the plot is still free, and Bush has gone so far as to express a lack of interest in seeing him captured.

LarsPorsena said...

"Secondly, if you're going to use all caps for "UNLAWFUL combatants", you should probably no that it's a made-up term to describe the folks who shoot back when we invade other countries."
I guess it's just a semantics problem.
Let's declare them lawful combatants and immure them for the duration of hostilities.

Doyle said...

It refers to those who don't conform to recognized standards of lawful warfare.

Find me a definition pre-2002 and I'll give you a shiny nickel.

Crimso said...

"For one thing, the Germans wore uniforms, so separating authentic German POWs from German non-combatants wasn't an especially tall order."

And what, precisely, was the typical fate of Germans during WWII who engaged in hostilities without wearing uniforms? So the Taliban and their al Qaeda proxies try to make an end-run around established laws of warfare by simply not wearing uniforms? That way none of them can be considered POW's? Or is their intent that all of them be considered POW's?

madawaskan said...

Mark-

Let's see how many pictures have we got of Gitmo vs. The Gulags to compare?

And so of course you'd rather go to the equivalent of the Soviet gulags right?

Trooper York said...

Drudge Report June 10, 2008
In a surprise 5-4 decision the United States Supreme Court has ruled that use of Raid or other chemical exterminating fluids to destroy cockroaches or other vermin is prohibited as it is deemed cruel and inhumane by the Geneva Convention and the International Criminal Court in the Hague. Citing the precedent that international rules and regulations should always supercede the Constitution and common sense, Judge Anthony Kennedy stated “We must abide by the global test of our humanity as promulgated by the humanitarian impulses nurtured in France and Germany who have always been so concerned with the human rights of those less fortunate then themselves.” When reached for comment, the blogging cockroach of Cambridge, MA said “Well that is a good first step. Now if they will only allow same species marriage I can finally marry a centipede like I always wanted to. The sight of 1,000 legs spread in the air just gets me really hot!”…..Developing.

madawaskan said...

Gitmo or Gulag Mark?

tick, tock...

Doyle said...

Crimso -

Do you think everyone in Gitmo fired a gun at a US soldier? Because I don't. I think the vast majority of people who shoot guns at US soldiers get killed on the spot, and the people in Gitmo are the suspicious characters who need to be rounded up. I'm not against rounding up suspicious characters, but there needs to be a process to let the innocent among them go free, even if most of them are guilty.

Crimso said...

"The point is that you positively identify the people who are "Taliban/AQ INC." and separate them from people who just drive a car for a living and had a fare in the back seat who was a member of "Taliban/AQ INC." "

You again assert (by implication in this case) that all that has to happen here is that the evil Chimpy McBushitler declares that someone is an enemy and therefore they are thrown into Buchenwald. Can you support your now repeated assertions that there is no evidence required at any step of the process?

"And the known mastermind of the plot is still free"

Waht, you're one of those whacked out Truthers now? Or have you never heard of KSM?

Crimso said...

"but there needs to be a process to let the innocent among them go free, even if most of them are guilty."

Are you absolutely certain such a process doesn't exist?

perry masonmint said...

LarsPorsena said...

"Do you really think it's a good idea for the president of the United States to be able to arrest anyone on the planet that he/she deems a "terrorist", without any evidence, and keep them locked up indefinitely?"

It's not anyone on the planet. It's those in service and bearing arms for a regime that committed an act of war against this nation.


Absolutely!!! And we know this because the Bush administration has said so, and therefore it's the gospel truth.

Just as we know for an absolute certainty that the warrantless wiretaps were not directed against the political opponents of the Bush administrations.

What kind of sick bastard could believe otherwise for a nanosecond?

Crimso said...

"Just as we know for an absolute certainty that the warrantless wiretaps were not directed against the political opponents of the Bush administrations."

You do have some sliver of evidence that this occurred? I mean, really, why not say he's a pedophile while you're at it?

AJ Lynch said...

Warrantless wiretaps - now those things are truly horrifying to the average American!

Doyle said...

You again assert (by implication in this case) that all that has to happen here is that the evil Chimpy McBushitler declares that someone is an enemy and therefore they are thrown into Buchenwald.

No this is the assertion made by Chimpy McBushitler. I and most of the Supreme Court believe that they have a right to a trial.

Doyle said...

Warrantless wiretaps - now those things are truly horrifying to the average American!

True American Patriots wipe their ass with the Bill of Rights.

perry masonmint said...

Crimso said...

"Just as we know for an absolute certainty that the warrantless wiretaps were not directed against the political opponents of the Bush administrations."

You do have some sliver of evidence that this occurred? I mean, really, why not say he's a pedophile while you're at it?


You're saying Bush is a pedophile?

You really are a sick bastard.

Simon said...

FLS said...
"simon -- responded to you 11:34. Those detainees not criminally liable should be repatriated. Indefinite detention without having something to do is inhumane, the more so because the detainees are becoming mentally ill in consequence."

I missed that - apologies. You said that in your view, "[t]hey're either POWs or criminals. Criminals should be tried by a court-martial, and either sentenced or released. After all this time, POWs should be granted amnesty and returned to their countries of origin, for humanitarian reasons." Well, we agree at least that, at this point, those who are triable for some kind of crime ought to be tried (although for the reason noted in my reply to DTL above, I'm hard-pressed to see that number being anything other than negligible), and the balance treated as PoWs.

We part ways on your amnesty proposal. If we treat the detainees as PoWs, there can be no grant "amnesty" because that is not treating them as PoWs. A Prisoner of War is detained for the express purpose of preventing their returning to the front to fight for the enemy, and is therefore detained until that is no longer a concern - i.e. until the cessation of hostilities. Thus, if the detainees are treated as PoWs, they must be detained until hostilities cease - a duration whose span is as entirely beyond our control as it has been in every previous war in which PoWs were kept.

I'm also curious to know the reasoning behind this amnesty, and how it would apply to PoWs picked up more recently and prospectively. Are they being given amnesty because of time served? If so, how much time must a detainee serve before being released? If not, what is the criterion for determing who is released when? Or are we issuing not only an amnesty, but foreswearing the taking of detainees prospectively?

Crimso said...

"Find me a definition pre-2002 and I'll give you a shiny nickel."

See the 1942 SCOTUS decision in the case of the Pastorius saboteurs.

Titan said...

Pastafarian said...

We didn't hold a trial to determine if a German soldier captured behind our lines in civilian clothing was guilty or not. Why is this enemy to be treated differently?


Ummm... we did hold trials. There is a whole system of military courts that tries cases like that. Bush chose not to use it.

Bob said...

Doyle, so just how would you know that the Gitmo crew are a bunch of homies just caught up in a sweep of the curbside? Because YOU know we only double-tapped the "real" bad guys. I mean you know US troops just get their jollies grabbing choir boys from the neighborhood, right? Newsflash - the test for whether they fired a gun is done at the roadside or at the in-processing. Of course the hommies could be the bomb maker and never fired the gun.

Might I inquire as to just what real world (as in actual) experience do you have upon which to base your paradigm of the GITMO detainee population? You do have real experience in this, right? Or is this just you pulling out of your arse?

Also, if you look in the Geneva Convention you will find a list of what constitutes a legal combatant. Fighting in a uniform, as part of recognized militia or military, rank insignia, not using civilians or protected sites as shields cover the major bases. Its pre-2002 too.

Crimso said...

"You really are a sick bastard."

Oh, indeed, but for reasons having nothing to do with the current discussion. Sick bastards like me expect assertions to be backed by evidence.

I find it difficult to believe that everyone in Gitmo (or anyone) was incarcerated without any evidence, just as I find it difficult to believe that Bush's international wiretapping program was used for anything but.

Mark said...

Madawaskan,

If the choice is between Gulag and Gitmo, I'd choose Gitmo. However, our standards are low indeed if we are proud that Gitmo is better than Gulag.

Dust Bunny Queen said...

I said: ".....What is the incentive to maintain MY citizenship if all the benefits are given to non-citizens who take on none of the burdens and obligations of citizenship in order to earn those benefits?"

You said: Are you serious?? If you don't see any incentives, please give up your US citizenship! It's one thing to argue that habeas corpus should be available to "unlawful combatants", it's entirely other thing to argue that because habeas corpus is available, there are no benefits of being a US citizen. Plus, you are logically inconsistent: on the one hand you recognize many benefits of being a US citizen that Beth stated, on the other hand, you insist that these benefits are available to everyone.

I am dead serious. IF all the benefits of US citizenship are freely available to ANYONE and those benefits come WITHOUT any burdens or obligations as I detailed above, then what is the incentive to bear those burdens.

There are many benefits to being a US Citizen, this is why we have a huge influx of immigration legal and ILLEGAL. Now that the courts have effectively decided that there is no distinction between citizens and non-citizens who can reap all the benefits of merely stepping foot in the US.

In otherwords: If I can get the benies for free, why am I paying the price?

Crimso said...

"Bush chose not to use it."

I could have sworn that military tribunals began just recently for these poor shepherds.

former law student said...

simon -- if not considered to be criminally liable, future detainees should be held as Axis prisoners of war were in the 40s -- in camps, on US soil, treated humanely, with only the troublemakers isolated from their group.

Tim McVeigh was tried, convicted, and executed -- that's the appropriate model for treatment of terrorists.

Simon said...

rcocean has left a new comment on the post ""The laws and Constitution are designed to survive...":
"According to MSNBC here is McCain's response: In the Guantanamo ruling, McCain said he hasn’t read the opinion yet, but said the ruling 'obviously concerns me ... We should pay attention to Justice Roberts,' McCain said, adding, 'It is a decision the Supreme Court has made and now we need to move forward.'"

In other words, he completely repudiated your claim, RC. You claimed in your 11:14 comment that this decision is "judicial over-reach. But supported by both McCain and Obama." And now you post McCain's response to the ruling, a response that clearly if diplomatically expresses anything but "support[]" for it.

Doyle said...
"[The entire purpose of POW camps is to hold hostile combatants until the fight is over, b]ut the ... [nature] of the War on Terror is that it is neverending. ... You're going to have to get used to the law enforcement model, because the POW model is obviously inappropriate."

Why is the PoW model obviously inappropriate? We don't know when this war will end, but I don't see how that much, freestanding, distinguishes this war from any previous war in which PoWs were kept. We know now that World War II ended in 1945, but we did not know when we started taking prisoners in 1942 or whenever it was whether they would be detained for three months, three years, or three decades. No one knew how long it would take to defeat our enemies in that conflict, just as we do not now know how long the present conflict will last. That makes the period of detention not infinite, but indefinite - and indefinite for reasons beyond our control but wholly within the control of the enemy whose welfare you are so solicitous of.

Your argument, I suppose, boils down to the unspoken premise that because we don't know when the war on terror will end and we suspect it might take quite a while, holding PoWs would mean indefinite detention. And with the point shorn of all obfuscation, you're revealed to be defending a quite lonely outpost. Do you really think you can find a majority in America at large that objects to holding foreign terrorists who wish to harm this country and who will try to do so if released?

Titan said...

Crimso said...

I could have sworn that military tribunals began just recently for these poor shepherds.


No. Bush created a whole new system of military tribunals to deal with these so that he could hand pick all the judges. So these tribunals are new, but there are existing tribunals that have been used for a long time.

This was a key part of the Hamdan ruling. The Geneva Convention requires that combatants be tried by "regularly constituted" military tribunals. Since the GITMO courts were created by the President just for this special occasion, they did not count.

Congress fixed that particular problem by passing legislation that made the GITMO tribunals into an authorized body.

vet66 said...

How about a discussion on whether or not our Constitution can survive in an assymetrical world? The niceties of law now replaces justice with mercy.

It is always amazing to me that the criers, whiners, and handwringers can kill unborn babies with gay abandon, celebrate Che Guevarra as a fashion statement, including Peru's Shining Path terrorist organization, expend energy on saving monsters from the death penalty, and give aid and comfort to murderers who revile the very standards of behavior they can now hide behind.

DBQ; in answer to your question, the plan appears to be that we become global citizens with no home rights. We will appeal our mistreatment to faceless/nameless elites (Den Hague) who will dispense rulings based on expediency with a nod to the aggrieved in recognition of their sacrifice to the needs of the greater world society.

Meanwhile, Villaraigosa, mayor of L.A. attended to pressing matters of his "City of Angels" by providing solemn commentary recently on the particular, yet peculiar rights of the gays, lesbians and transgendered.

Are you feeling the love?

Doyle said...

Doyle, so just how would you know that the Gitmo crew are a bunch of homies just caught up in a sweep of the curbside?

Well judging by the number of Gitmo detainees that have been released already, it's pretty clear that the place was not wall-to-wall terrorist masterminds.

Again, I'm not saying that there aren't any legitimate bad guys there who should be on lockdown indefinitely. I just favor a judicial process that is capable of separating the wheat from the chaff.

The position that it's wrong to give them the "privilege" of a trial that should be reserved for American citizens I find pretty dumb. If American courts are gonna be for Americans citizens only, then so should American prisons.

madawaskan said...

Mark-

Well you know waht?

Thanks for the honest response.

I don't know much about the law I'll admit that handedly but I do know the American soldier-and I can't help but feel that today once again they are overburdened.

It seems as if the American public has more sympathy for the unlawful combatent and the soldier that tried his best to discern the un-uniformed enemy from the civilian, and did not want the added burden of being judge, jury and executioner on the battlefield-has an added weight put on his shoulders/soldiers today.

It seems to me that civilians have once again absolved themselves of resposibility.

I don't really know how to express this-but I think our enemies have won one today.

There should be no argument that they will be emboldened by this-it's that simple.

I think that this will be the first time in history that our enemies have been given OUR equal rights.

Even though they seek our destruction.

Remember the 40,000 German soldiers in Georgia?

Oh and finally back to the Gulag thing...it's Duranty Disease if somehow their values match the American Left's then it didn't happen.

{Walter Duranty -Pulitzer}

Crimso said...

"No. Bush created a whole new system of military tribunals to deal with these so that he could hand pick all the judges."

IANAL, but I fail to see how this is necessarily wrong. Where in the GC's does it specify the meaning of "regularly constituted?" If SCOTUS defines it as "pre-existing,", well that's one I'll have to accept (though I think they're wrong). Just because Bush wanted it doesn't make it wrong (nor right).

OldGrouchy said...

Titan, yes the US Army did hold military trials for those Germans caught behind our lines either in civvies or in USA uniforms, trials held then under the articles of war and properly sentenced to death.

This process, the one during WWII, was deemed inappropriate for AQ's minions because those types were considered unlawful combatants, a different cat from your WWII German infiltrator or spy. Stop comparing apples and oranges, you're confusing the Dhimmis Otherwise known as Socialists!) in the audience!

Doyle said...

Your argument, I suppose, boils down to the unspoken premise that because we don't know when the war on terror will end and we suspect it might take quite a while, holding PoWs would mean indefinite detention. And with the point shorn of all obfuscation, you're revealed to be defending a quite lonely outpost. Do you really think you can find a majority in America at large that objects to holding foreign terrorists who wish to harm this country and who will try to do so if released?

C'mon Simon. You're better than this.

There was no obfuscation to my point. The fact that this particular "war"(on terror) is going to go on indefinitely and isn't between two or more governments that can formally end it is what makes the POW model inappropriate.

If I were opposing the idea that we can detain foreign terrorists indefinitely, that would indeed be a lonely outpost. Fortunately, I said something completely different. Namely, that foreign detainees should be allowed to challenge their detention in court. Otherwise we're just assuming they're terrorists because hey, if they weren't terrorists they wouldn't be in Gitmo, would they?

Of course, our governments been known to have a few too many oopsies in that regard for me to be comfortable just letting them lock up whoever. Plus there's the whole "inalienable human rights" angle.

Simon said...

former law student has left a new comment on the post ""The laws and Constitution are designed to survive...":
"simon -- if not considered to be criminally liable, future detainees should be held as Axis prisoners of war were in the 40s -- in camps, on US soil, treated humanely, with only the troublemakers isolated from their group."

At least in the abstract, I would be fine with this.


"Tim McVeigh was tried, convicted, and executed -- that's the appropriate model for treatment of terrorists."

I agree that it's the appropriate model for treatment of terrorists who are U.S. citizens, although I would add that indictment for treason may also be considered, something with which McVeigh was not charged. I also agree that it could be an appropriate model for dealing with some non-citizen terrorists, provided that you don't run into the problems of criminal jurisdiction that I've been trying to get DTL to address. Those problems are serious, and I'd welcome your thoughts on them. I can't agree that you've identified the appropriate model, across the board, because of this jurisdictional problem. It is likely that our enemies will not be U.S. citizens, and the activities for which we would hold them would not be carried out within the United States. (Those activities may or may not even be crimes, even if they were conducted in this country.) I utterly abhorrent - and novel - find the idea that as a citizen of country X, you can be indicted in country Y for conduct violating the laws of country Y despite the fact that your actions took place in country X, and are legal in country X. (Several examples of this can be found in Melissa Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 92 Geo. L.J. 487 (2005), and I discuss some of them in The Misguided Search for the 'One Law - and the Ongoing Struggle to Articulate it Correctly'.)

KLDAVIS said...

"The Nation will live to regret what the Court has done today. I dissent."

Wow. NiƱo...with authority!

UWS guy said...

Is this post and the post below in the same family of argument? Siblings? Cousins? Maybe, in some minds, distant relatives?

If you are a supporter of the Constitution and the law as applied in the post below, but hold a different view of the law in this post, would you share your reasoning?

UWS guy said...

I'd be surprised if they were posted by The Divine Ms. Althouse without thought to their relation.

madawaskan said...

Now the American soldier has to round them up, gather forensic evidence, AND preserve the crime scene, all while dodging the bullet and the head hunters so that the American public can feel more comfortable.

Where's my white flag....must be around here somewhere..

Mark said...

Dust Bunny Queen said:

"I am dead serious. IF all the benefits of US citizenship are freely available to ANYONE and those benefits come WITHOUT any burdens or obligations as I detailed above, then what is the incentive to bear those burdens.

There are many benefits to being a US Citizen, this is why we have a huge influx of immigration legal and ILLEGAL. Now that the courts have effectively decided that there is no distinction between citizens and non-citizens who can reap all the benefits of merely stepping foot in the US."

Who said that all benefits of being a US citizen are available to anyone??? Are you getting all your news from Rush and Hannity? The court only decided the habeas corpus issue!!! The court said nothing about other rights of citizens vs non-citizens.

The detainees didn't "step foot", they were detained overseas and brought to Guantanamo. If they were US citizens, this would not have happened.

And since you switched to the illegal immigration topic, if you are an illegal, you're always under the threat of being deported. You cannot get a decent job if you're an illegal. It's preposterous to claim there is o difference between US citizens and non-citizens. For the third time, if you are serious and don't see any difference, why don't you renounce your US citizenship. You'd still have all the rights, according to you.

Crimso said...

"Well judging by the number of Gitmo detainees that have been released already, it's pretty clear that the place was not wall-to-wall terrorist masterminds."

Well, judging by the number of defendants at the major Nuremburg trial who were acquitted, we might question the validity of those proceedings. Or we might do the opposite. If they've released people without trying them (some of whom have been recaptured engaging in illegal combat), that would seem to indicate the system works to at least some extent. The fact that you and I are not privy to everything that goes on at Gitmo does not necessarily mean that what's happening there is evil. I think a fair portion of the passion over this subject is dependent upon whether one views Bush as evil. Not all of it, mind you, but a fair portion.

madawaskan said...

Does this mean we have to read them their Miranda Rights ?

{in Arabic too of course.}

paul a'barge said...

America, we mourn for you.

In your short time on this Earth you rose so high only to be dashed on the rocks by your own people.

Titan said...

OldGrouchy said...

Titan, yes the US Army did hold military trials for those Germans caught behind our lines either in civvies or in USA uniforms, trials held then under the articles of war and properly sentenced to death.

This process, the one during WWII, was deemed inappropriate for AQ's minions because those types were considered unlawful combatants, a different cat from your WWII German infiltrator or spy. Stop comparing apples and oranges


Lets take POWs captured in uniform. They got military trials and were often incarcerated until the war was over.

Now take spies caught out of uniform or other baddies. They got military trials often followed by execution.

I would consider AQ to be somewhere in between these two categories. They are combatants (many were captured on or near the battlefield) but they have no uniforms. The Court has agreed, and said that they get some basic Geneva Convention protections (but not full POW protection).

I don't see why the regularly military trials weren't good enough. I am not saying that AQ is the same, but I don't see why the existing structures were not sufficient. Military trials were often short, and provided only reasonable assurances. (They did not include include all the safety mechanisms of a regular trial.)

Instead, it has been 6 years and the detainees have gotten NO trial of any sort.

Many people in this thread have said that the detainees should have been treated like spies - combatants without uniform are subject to military execution. Fine. But even spies get trials.

rhhardin said...

I don't see offhand what Club Gitmo has to do with interstate commerce, but I have to defer to the wisdom of the court.

Simon said...

Doyle said...
"There was no obfuscation to my point. The fact that this particular "war"(on terror) is going to go on indefinitely and isn't between two or more governments that can formally end it is what makes the POW model inappropriate. ¶ If I were opposing the idea that we can detain foreign terrorists indefinitely, that would indeed be a lonely outpost. Fortunately, I said something completely different. Namely, that foreign detainees should be allowed to challenge their detention in court."

That's not quite all you said, I had thought. I had thought that you argued not only that detainees should be able to challenge the determination that they are an enemy combatant, but also the premise that we can hold them as an enemy combatant absent a determination that they are not. That is, I thought that it was your view that we must take a law enforcement approach where we capture, detain, indict, try, and, if convicted, incarcerate them.

Personally, I think - I've thought for several years - that the administration has things entirely backwards on detainees.

Simon said...

Rhhardin, could you clarify that comment? What does interstate commerce have to do with Guantanamo, the MCA, habeas corpus, etc?

donostiarra said...

James Taranto of the WSJ's opinionjournal.com has actually BEEN to Guantanamo and has written a lot explaining unlawful enemy combatant status and the facility at Gitmo in layman's terms (see
here
and
here
, for example).


Upon arrival, each detainee has an "article 5" hearing to determine whether he is in fact an unlawful enemy combatant, and then he has a yearly review to determine whether he can be safely released. I realize that they don't have access to all the same protections as regular folks in the criminal system, but this setup is entirely consistent with international law regarding unlawful enemy combatants.

I'm open to persuasion that the U.S. should change the way it handles these folks if someone at least shows me they understand the current process and the definition of an unlawful enemy combatant. But what I read from the anti-Gitmo crowd in this thread is based entirely on emotion.

rhhardin said...

Simon - I am mocking the wisdom of the court.

Any old reason will do, in political decisions.

The traditional non-reason reason is interstate commerce.

OldGrouchy said...

What could shake the belly of the SCOTUS Beast or that of The New World Order, would be a directive from the Puzzle Palace to hence forth take no prisoners except as determined necessary for intelligence gathering.

Regardless, in the future, the ACLU, and others of that Ilk, will be measuring the number of prisoners in each engagement to determine whether the prisoner "norm" is being maintained within 1 Sigma, as defined as acceptable levels of captures. A major part of an Officers fitness report will be how he, or she, or whatever, is able to maintain a high correspondence with those accepted norms.

Pogo said...

I hope we put all of the Gitmo detainees on a slow boat to Europe. It's dying anyway, and their terrorist bretheren can use the help.

Goodbye, Netherlands. Goodbye, Sweden, France, and Spain. Goodbye merrie olde England.

We hardly knew ye.

madawaskan said...

Basically what you are doing here is not honoring the conditions of warfare and the battlefield-in fact terrorism flourishes by breaking the expected norms of even that.

Now you are trying to equate enemy combatants captured in the battlefield with US citizens captured in the civilian eviron.

AND on top of that-the military has to communicate all of that to civilians-

The jury-

The enemy combatants supposed peers?

madawaskan said...

You know actually, I hope I am snowballing that...

Does this mean they have a right to trial by jury?

Or am I jumping to conclusions?

Titan said...

donostiarra said...

Upon arrival, each detainee has an "article 5" hearing to determine whether he is in fact an unlawful enemy combatant.... I realize that they don't have access to all the same protections as regular folks in the criminal system, but this setup is entirely consistent with international law regarding unlawful enemy combatants.

I'm open to persuasion that the U.S. should change the way it handles these folks


The Article 5 hearings were a huge step forward. (Of course, the Bush administration fought them tooth and nail and the Supreme Court had to order them.) Before the A5 hearings, there was no procedure at all.

When ordering the hearings, the Court said that there must be some minimum hearing at the beginning of detention. The administration created these Article 5 hearings, more commonly known as CSRT's.

The detainees are currently arguing that these CSTR's don't even meet the minimum status that the Court required. To put it in your own words, they are arguing that this setup is NOT consistent with international law regarding unlawful enemy combatants.

The Court concluded today that it will hear those cases. It didn't (yet) decide if the Article 5 hearings are in fact sufficient. Basically, the Court decided today that it will decide that question later.

No one is arguing that the detainees must get some sort of civilian trial (although I think we could do it if we wanted), but they should get some minimum, military trial.

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

Titan-

So today's decision keeps it all within military jurisdiction-is that what you are saying?

Which is organized under the D.O.D. and The Executive?

Have I got you right on that?

TitusEverythingsComingUpRoses said...

Althouse, you didn't make the cut in Vanity Fair's Blogopticon.

You must be devastated.

Mortimer Brezny said...

Plus, you are logically inconsistent: on the one hand you recognize many benefits of being a US citizen that Beth stated, on the other hand, you insist that these benefits are available to everyone.

No. The logical inconsistency is in Justice Kennedy's opinion. Dust Bunny Queen is simply pointing it out and mocking it. And rightfully so.

Mortimer Brezny said...

Simon,

There is no point in arguing with these idiots. Chief Justice Roberts' dissent does a very good job of pointing out the logical flaws, incoherences, and outright falsifications in Justice Kennedy's opinion. They do not care about logic or legal craft, nor do they care about rule of law. They care about politics.

Kennedy's opinion is great to them because it gives them the political outcome they want. They have no standards or ethics, and they do not feel obligated to feel shame over it. If a Supreme Court opinion literally made no sense, but was consistent with their utopian vision, they would favor it. These are people who treat Supreme Court opinions like political poetry.

They do not understand the legal issues and they do not plan to spend time grappling with them, because they have better things to do. You cannot change their minds because they are not engaging rationally or critically with the substance -- on this subject, there is nothing to change. They hate Bush and they hate Bush policies and they believe in civil liberties and if you try to explain that this is more complex than that, they will accuse you of hating freedom. It is of no moment to them that a President Kerry would have taken the same position, and said as much during the 2004 election.

You lead a horse to water, but you cannot force it to drink.

Methadras said...

former law student said...

The sooner the US closes down our own Gulag, the better.


You do understand what a Gulag is right? How is Gitmo a Gulag or even compare to one? I want to read this.

TitusEverythingsComingUpRoses said...

As a favor to the US I would like to go down there, inspect the prisoners and pick the hot ones that I want to do.

It would be totally hot. Afterwards, they would be all ashamed and being praying and feel suicidal.

We would videotape the passion love making sessions and play it in there cell all day.

I would receive a medal of honor from our best president we have ever had.

Just a small way in which I would participate in the war of terror.

Methadras said...

Beth said...

We're currently waging war based in part on the premise that those inalienable rights belong to all humankind, not just American citizens.

We live in a great country. That's the advantage.


Really? So has the war been redefined to include inalienable human rights considering that Iraq and Afghanistan have determined what their civil, legal, and human rights will be? What documents outside of the US Constitution even enumerates inalienable rights to anyone but American Citizens. Otherwise, what is the point of American Citizenship other than to attain inalienable rights. If what you are saying is true, then I wonder why any people who aren't citizens of the US do not have inalienable rights until they come to this country to become citizens.

The Constitution is a national document, not a global one. It may have perceived global implications, but from a completely legalistic point of view (my own) it only applies to US citizens and no other. Otherwise, the uniqueness of US citizenship is rendered moot if anyone can enjoy them without the hard labor required to attain them.

Methadras said...

downtownlad said...

Thank goodness none of those kids in that camp were gay.


And you wonder why anyone even takes you seriously anymore, you piece of filth.

former law student said...

Of the characteristics of the Gulag identified by its historian Anne Applebaum, Gitmo lacks only forced labor:

"Gulag" means the repressive Soviet "meat-grinder" procedural system and its consequences — arrests, interrogations, transport (in unheated rail road cattle cars), forced labor, familial separation, exile, and early death,

the Gulag ripped open lives, destroyed families, tore children away from their parents, and condemned millions to live in remote wastelands, thousands of miles from their families.

Skeptical said...

Simon, Can you explain what you find abhorrent about a nation claiming jurisdiction over actions that occur outside their borders and by non-citizens? Look: if what someone is doing outside of our borders is something that they have no (moral)right to do to us, then we are (morally)entitled to demand that they not do it, and (morally) entitled to enforce that demand. So what sort of objection do you want to make to invoking that set of moral rights in statutes of universal jurisdiction — e.g. anyone, anywhere in the world, who plots a terrorist attack to occur against US citizens or on US soil is guilty of an offense?

Cedarford said...

Doyle said...
"And if POW's aren't afforded habeas, then why should it be permitted for those who are UNLAWFUL combatants?"

For one thing, the Germans wore uniforms, so separating authentic German POWs from German non-combatants wasn't an especially tall order.

The problem then, Doyle, is by giving unlawful combatants enhanced rights and access to US civilian criminal courts to challenge their detention that you say lawful soldiers are not entitled to since they were clearly complying with Geneva and wearing distinguishing uniform per the rules - all you do is introduce perverse incentives for formerly lawful POWs and other national leaders to flout Geneva when fighting America.

1. If each POW sheds uniform and their detention can be challenged in US courts with the usual evidentiary rules - a savvy enemy will know that each suit filed will help cripple American resources and ability to fight. Soldiers will have to be pulled out of war and wait weeks or months to testify in case preps, enemy lawyers discovery phase, and of course the grand civilian trial. On the circumstances of capture in door-to-door fighting, chain of custody on evidence, who processed the "criminal forensics" at the scene, which soldiers then risked death to go into enemy territory to interview enemy alibi witnesses.

2. If thousands, tens of thousands, even millions of enemy habeas lawsuits (we had 2 million German POWs) can be filed, then we would have to pull triple or quadruple the equivalent number of lawyers, soldiers with training in evidence handling - off other vital military duties (in WWII the typical lawyer serving in the military was not doing criminal defense or prosecution, but direct work for the war effort like serving in war contracts, bomber pilot, tank commander, spec ops, code-breaking, etc.)

3. People forget that the Draft is called the SELECTIVE SERVICE. Meaning who can be drafted is based on the vital needs of the service. Which in national emergency has meant people with medical careers, qualified civvie pilots, electronics techs, heavy equipment operators. It would be ironic if the Lawyers in Robes set up unintended consequences where an urgent need for lawyers to protect enemy rights to US liberties means that lawyers MUST be drafted so they can do the casework starting with frontline combat and tracking down enemy and US soldier witnesses to give 1st testimonies.
Which would be sorta nice to see the people undercutting the military have personal consequences and have to accept the risks our troops do.

"In fighting in Obama's War on Pakistan, 3 Marines were killed today, along with 2 lawyers travelling with them to preserve enemy habeas rights, with 1 Marine and 4 other Drafted lawyers badly mutilated by an IED - ironically, set off by an radical Muslim one of the maimed lawyers sprung from custody 3 weeks earlier on Miranda questions.

******************
Doyle - And surely you'd admit that it's impossible for everyone we've detained to have had something to do with 9/11. And the known mastermind of the plot is still free, and Bush has gone so far as to express a lack of interest in seeing him captured.

Doyle, that's idiotic, as you think only those with a direct responsibility to 9/11 - (which you hold as just another criminal act best left to cops and lawyers) - should be in detention. By that logic, you would be saying that it is impossible that every Jap and Nazi we detained had a direct link to Pearl Harbor.

Nor are we seeking the 9/11 Mastermind. We have had him in custody since 2003 and are paralyzed by lawyers under our present "Talmudic Law" system of endless motions and appeals of initial due process to block trial of that asshole, KSM. With millions in lawyer's fees generated over KSM paid for by the taxpayers - which is exactly the point of subverting traditional US law to the new Talmudic style - the longer justice is delayed, the more money lawyers make...

As for Bush, he properly recognizes bin Laden is not the concern he once was - is is boxed in a small area and is "SIGINT Dark" - which has led to no ne attacks on America after Iraq became AQ's "Central Front" to defeat the Crisaders. And while Obama thumps his chest about avoiding distractions like "al qaeda's declared central war for Iraq and the heart of Islam and the future Caliphate" - and postures that he would really invade a nuclear power capable of giving the US Vietnam-like casualty numbers if the fighting is kept conventional - Bush at least, with all his faults, understands how bad an invasion of Pakistan could get just for the right to search for amd maybe never find even if we win - a dozen "Doyle-designated criminal suspects"! We all know that Obama was doing stupid posturing about starting a new war simply because before that he looked weak compared to the other candidates.

*************

blogging cockroach said...

hey trooper
you got at least some of that right...
i mean, i've always said that the i-word should be banned
as a chemical weapon of mass destruction
and what better way than through international law...
they really like that sort of thing here in cambridge
all you have to do is say 'geneva convention' and it's end of argument

mom here at the house is french and very international
but even though she's a citizen of france
saying that the geneva convention prohibited
the parking enforcement officer
--we don't have meter 'maids' in cambridge--
from giving her a ticket the other day
just didn't work
and the ville de paris is still trying to collect on that ticket she got in the 7th back in '01
but at least they're not trying to put her on devil's island
although she thinks sarko might try
you know, all this international jurisdiction business
is just -so- complicated

but back to your main point
and what a nice thought the supreme court might issue that ruling
that would be much more important to me that a little trip
to cuba, or even devil's island
which as a fan of heat and humidity i wouldn't mind at all
just no chemical weapons please

but i do have to object to whoever wrote
that alleged news story
putting words in my mandibles
i'm just not that kind of cockroach
i don't give a fig about who marries whom
--though i wouldn't mind if you left a fig
on the counter tonight--
no, i'm a straight and boring cockroach that way
i believe in live and let live
what you do under that cabinet is your business
me, i'm under the fridge working on a meatball
and dreaming of all that warm weather
down in cuba

UWS guy said...

Only a moron would put on a uniform, line up in a row, and fight any western power. Roman legion in formation staring at a horde of naked germans and saying, "hey no fair put on some clothes already."

I'm all for our servicemen to go all Hindu Shiva on our enemies, but the idea of unlawful combatant is a bit rich.

"excuse me, you're not allowed to fight back, and if you do...please be so kind as to clearly mark yourselves for our predator drones." I'm fine with our enemies doing that mind you...I just don't think it's gonna work.


What does work, is when the enemy uses civilians as human shields we capitalize on their barbarity with the local populous by winning them over to our side (see Petraeus, General: War in Iraq).

We have to be smarter than the enemy, so calm your high dungeons.

Trooper York said...

Yes I know you are a roach of the world mes ami who loves the ladies…. Just think of the wild kinky time you will have as you slowly and sensuously glide your maniples up and down the freshly shaven 1000 legs of you centipede queen…. You run your tongue up and down her undulating torso…. As you bodies join you slowly begin to couple she will wrap all of those legs around your firm manly ecoskeleton as thrust again and again......

Wait I have to email this to a judge.

UWS guy said...

The Republic can withstand giving OBL limo driver a due process. After all, they're the barbarians not us...

UWS guy said...

why is it always farm animals with pervs anywho?

UWS guy said...
This comment has been removed by the author.
UWS guy said...

I hate to be a blog hog, but I have another point to make.

It's all 'wink wink nudge nudge'. 9/11 happened and Bush did what he felt he needed to. The courts said, "ok, but we're watching the clock, get what you think needs doin' done."

Times up, Executive has had 3/4 of a decade of extraordinary powers (Romans granted the Consul powers of Dictator Imperious Magnum--hence the term--for 6 months) The judicial branch has been extra lenient...

rei gerundae causa for the matter to be done...and it is; Afghanistan/Iraq.

Not all the laws of America are written.

Hoosier Daddy said...

As a favor to the US I would like to go down there, inspect the prisoners and pick the hot ones that I want to do.

Titus, that would be a fabulous idea alas, we wouldn't be able to because since you're gay and Muslims hate gays more than Republicans, it would be considered culturally insensitive, racist and demeaning to expose these poor folks to your person. So while your desire to serve our great nation is admirable, we have to think of the sensibilities of the detainees.

Plus you would say hog and Muslims don't eat pork so you'd be out of luck anyway.

Thanks for asking though.

Revenant said...

Only a moron would put on a uniform, line up in a row, and fight any western power.

So what?

The rules of warfare don't say "you must fight in uniform, unless you need to fight OUT of uniform in order to win". They say, in essence, "you must fight in uniform, and if that means you lose then tough cookies".

Pastafarian said...

Doyle --

Those scare quotes you use around the word "war" in "war on terror" speak volumes about your attitude. You really don't need to say anything more than that.

You have a fundamental misunderstanding of the most important issue on planet Earth.

Either that, or you're absolutely right, and all those millions of jihadists are mistaken in their belief that they're waging a war on the West. Silly Jihadists, you don't even have a flag; you don't even march in columns to parade music. War shmore.

I guess I'll have to research this -- I'm pretty sure it's accurate, but I don't have any corroborating links. Maybe some commenter can help me out: During WWII, didn't the US soldiers in the field operate under rules of engagement that allowed them to execute German soldiers that they found penetrating US lines out-of-uniform? I seem to remember hearing stories about this happening, particularly during the Battle of the Bulge.

I can't believe that all such Germans were taken to the rear and held until a tribunal could be convened. Particularly during the Bulge.

UWS guy said...

...This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years...

Looks like at Slate.com Dahlia Lithwick agrees with me.

Hoosier Daddy said...

I hate to be a blog hog, but I have another point to make. Times up, Executive has had 3/4 of a decade of extraordinary powers (Romans granted the Consul powers of Dictator Imperious Magnum--hence the term--for 6 months)

If only we could have fought these bastards the Roman way then it would have been over in six months.

Actually if you cracked a history book you'd probably learn that extraordinary powers you claim Bush has is nothing compared to what Lincoln, Wilson or FDR did during a time of war.

Unless of course you see all this as an episode of CSI like Freder thinks it should be rather then a war.

UWS guy said...

...I don't mean to be a prick either, but good fucking lord I hate WW2 analogies.

Conservatives love it cause we won, and Liberals love 'Nam 'cause we lost.

Both, tell me that whomever is making the analogy can't remember history further back than 60 years.

Revenant said...

Looks like at Slate.com Dahlia Lithwick agrees with me.

That's usually a pretty good indication that you don't know what the heck you're talking about. :)

MadisonMan said...

IF all the benefits of US citizenship are freely available to ANYONE and those benefits come WITHOUT any burdens or obligations as I detailed above, then what is the incentive to bear those burdens.

Well, as I understand it, that's a very big IF and it's false. All the benefits of US citizenship are not freely available to anyone.

UWS guy said...

My mind glazes over with a WW2 analogy. Orwell was right and over used writing affectations and stale phrases, "Choke the mind like tea-leaves clog a sink

Did ancients have to deal with, "well! so-and-so senators stance is just like Hannibal!", "blah-blah when we fought the Carthaginians!"

WW2 ANALOGIES DELENDA EST!!!

Hoosier Daddy said...

During WWII, didn't the US soldiers in the field operate under rules of engagement that allowed them to execute German soldiers that they found penetrating US lines out-of-uniform? I seem to remember hearing stories about this happening, particularly during the Battle of the Bulge.

Well it wasn't just the US. Generally if you were engaged in hostile operations out of uniform you were considered a sabotuer and were not afforded rights under the Geneva convention. Spies and sabotuers could be shot on the spot. During the Bulge, German paratroop commandos donned US uniforms, particularly MPs and operated behind our lines re-directing reinforcements or leading units into ambush. The ones who were caught were executed.

Also after word had gotten out after the Malmedy Massacre, it was not uncommon for Waffen SS troops to be shot when captured as well although that wasn't official policy just reciprocity. Naturally Doyle and his entourage would have considered those US troops war criminals too.

The GC did not afford protection to spies or sabotuers.

Hoosier Daddy said...

Roman legion in formation staring at a horde of naked germans and saying, "hey no fair put on some clothes already."

Actually the Germanic tribes gave the Romans a pretty good fight.

"excuse me, you're not allowed to fight back, and if you do...please be so kind as to clearly mark yourselves for our predator drones." I'm fine with our enemies doing that mind you...I just don't think it's gonna work.

That's cool. Just don't bitch because they're not being treated in accordance with the laws of war or whatever concept of humane treatment you think savages should have.

Exactly how many of our soldiers captured are still alive?

UWS guy said...
This comment has been removed by the author.
UWS guy said...

Hoosier: I agree with you.

But the war is over, we won. The other branches of the government are taking back the powers granted the executive. Water-boarding was what needed to be done?

Fine, but you only get 6 years Consul then it's back to the republic.

UWS guy said...

Fairness isn't the only reason Lady Justice wears a blindfold.

Hoosier Daddy said...

..I don't mean to be a prick either, but good fucking lord I hate WW2 analogies.

I would argue its a precedent rather than an analogy.

All the benefits of US citizenship are not freely available to anyone.

Well considering a whole bunch receive welfare, medical and education benefits on taxpayer dime and every deportation brings the ACLU out of their offices to demand 'justice' it does beg the question.

Maybe the better question is what benefits 'don't they have?'

Cause for the life of me I can't think of a damn one.

P. Rich said...

On what legal basis, upon what set of laws and precedents, will a civilian federal judge assess the "status" of a non-citizen detainee whose capture - and conditions surrounding that capture - occurred in a foreign country in battlefield conditions by military personnel? Are those personnel all potential wittnesses? What rules of evidence will apply, and what will constitute sufficient evidence to rule for continued detention, or not, or some other action? What ridiculous cover-your-butt paperwork storm will be unleashed on the military? Where, exactly, is it written that a non-uniformed combatant must be processed "in a timely manner", whatever that is, while said conflict is continuing.

This is another liberal PC decision whose application is a nightmare in waiting. If there is some modicum of a real problem involving the wrongfully captured, whatever the hell that means, then this "solution" is attacking the proverbial fly with the proverbial 16 pound sledge hammer.

Stupid. Stupid. Stupid.

Hoosier Daddy said...

The other branches of the government are taking back the powers granted the executive.

I'm not sure Bush had any powers that he didn't already have as Commander-in-Chief. Again, I think we're in a war, others think its a law enforcement matter so the twain shall never meet.

Fine, but you only get 6 years Consul then it's back to the republic.

There's a good reason Caesar tossed out the Republic.

Oh and for Doyle, think of this as the War on Islamic Terrorism which will eventually come to an end when the jihadists finally tired of being fed into the US military meat grinder. When the Islamofascists are reduced to being like the Bader-Meinhoff Gang or the Red Brigades then it will be over.

Ann Althouse said...

Remember, after the 200th post you need to click to comment and click again for the newer posts.

Thanks to all for the comments. I've been very busy today.

I want to read the case closely, and when I do, I'll try to comment in some depth.

OldGrouchy said...

An observation: We're all over the map on this topic. Seems to be much confusion and little understanding on the issues and anyone can ding me on those points too!

So, what does our government do now? How does our military deal with the issues as laid out by SCOTUS? Will there be any reaction from the troops and if so, what will that be?

We'll find out later and God Help us because we seem unable to help ourselves!

In the beginning, in 2001, I didn't see the need for rationing or for other belt tightening measures. I went shopping as was asked by our President; up your folks.

Perhaps something needed to be done to meld us together rather than fighting like cats and dogs as we've been doing on this topic.

So, next time, bring back selective service, enforce rationing (meat once a week), limit TV networks to only 2-reality shows a week, 3-packs of cigarettes or joints a week, make joining workout gyms mandatory; whatever.

Well, anyone else got better ideas. Go for it!

MadisonMan said...

If you can't think of one, you're not trying.

When was the last time an illegal got a passport? Pretty lame for a 200th post, but there ya go.

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