Congrats to Marty Lederman
The Politico is reporting that Marty Lederman has accepted a position in the Obama administration. The report doesn't say what position he'll be taking, but I'm sure we'll find out soon enough. I suspect he'll either be working with Dawn Johnsen at the OLC or he'll take some other high ranking position in the Justice Department.
As those of you who read this blog regularly know, I've been one of Lederman's chief boosters, so I'm thrilled that he'll be joining the administration. Lederman has been one of the smartest and most persistent critics of the Bush administration's illegal policies, patiently explaining time and again why the theories being trotted out to justify things like torture, indefinite detention, and warrantless surveillance were both frivolous and dangerous.
By choosing someone like Lederman to join his administration, particularly after already choosing Eric Holder and Dawn Johnsen, Obama is sending an unmistakable signal that he intends to distance himself from both the policies and the legal theories of the Bush administration, and that's enormously reassuring.
Congratulations to Marty. I'm sure he'll do a fantastic job wherever he ends up.
UPDATE: Apparently Marty will be taking John Yoo's old job at the OLC. As I've said before, Marty is the perfect person to be given the daunting task of undoing all the damage that John Yoo did. I'm sure he's already read through most of the Bush administration OLC opinions and has probably already begun drafting new ones.
As those of you who read this blog regularly know, I've been one of Lederman's chief boosters, so I'm thrilled that he'll be joining the administration. Lederman has been one of the smartest and most persistent critics of the Bush administration's illegal policies, patiently explaining time and again why the theories being trotted out to justify things like torture, indefinite detention, and warrantless surveillance were both frivolous and dangerous.
By choosing someone like Lederman to join his administration, particularly after already choosing Eric Holder and Dawn Johnsen, Obama is sending an unmistakable signal that he intends to distance himself from both the policies and the legal theories of the Bush administration, and that's enormously reassuring.
Congratulations to Marty. I'm sure he'll do a fantastic job wherever he ends up.
UPDATE: Apparently Marty will be taking John Yoo's old job at the OLC. As I've said before, Marty is the perfect person to be given the daunting task of undoing all the damage that John Yoo did. I'm sure he's already read through most of the Bush administration OLC opinions and has probably already begun drafting new ones.
posted by A.L. at 11:32 PM
30 Comments:
How come, "By choosing someone like Lederman to join his administration, particularly after already choosing Eric Holder and Dawn Johnsen, Obama is sending an unmistakable signal that he intends to distance himself from both the policies and the legal theories of the Bush administration" and yet picking someone like Clinton Gates or Emanuel doesn't mean the opposite
Prof Lederman is going to be a Deputy Assistant Attorney General in the Office of Legal Counsel, working with David Barron. There is a post at Balkinization about this:
http://balkin.blogspot.com/2009/01/marty-lederman-joins-office-of-legal.html
It is really nice that he has joined the OLC. Like you, I am a fan of his.
Kris.
In a Balkanization post July 08, 2007, Lederman grouped all of his, Mark Graber's, Stephen Griffin's, Scott Horton's, Sandy Levinson's, David Luban's, Brian Tamanaha's, Jack Balkin's and a few others posts "on the complex of issues raised by torture, interrogation, detention, war powers, Executive authority, the Department of Justice, and the Office of Legal Counsel" together under the heading The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC
The job Lederman got is the same one held by John Yoo when he wrote the Torture Memos.
With the team of Eric Holder as AG, and Marty and Dawn Johnsen running the OLC, we now have a good chance at forcing the issue of prosecuting Bush administration war crimes, with the Formal Petition to Attorney General-Designate Eric Holder to appoint a Special Prosecutor to investigate and prosecute any and all government officials who have participated in War Crimes...
Lederman has been one of the smartest and most persistent critics of the Bush administration's illegal policies, patiently explaining time and again why the theories being trotted out to justify things like torture, indefinite detention, and warrantless surveillance were both frivolous and dangerous.
I think its important for Obama supporters to explain this:
However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.
In a certain respect, it's a smart move to classify such a loophole. It keeps the enemy from guessing at what the government will do to them if captured (even if the government doesn't use enhanced interrogation techniques). This is always good when the nation is at war.
It also means that any attempt to prosecute the Bush adminstration for using enhanced interrogation techniques (what some call torture) makes those prosecutions against policy differences, not prosecutions against violations of the law, since the Obama administration may be doing the exact same thing. The fact that the policy would be classified must make the incoming administration think it has the cover to deflect criticism. But prosecuting others for doing the same is nothing but rank hypocrisy.
Isn't this then the politicization of justice that Obama supporters claim to be against?
I've read a number of Professor Lederman's blog posts, and I sincerely doubt that there will be any cover from the OLC for anything that could be construed as torture, no matter what some idiot from the AP thinks.
Steve,
You're grasping at straws. This "loophole"--if approved--would merely allow the CIA to use some techniques that go beyond the limited procedures outlined in the Army Field Manual. There are any number of potential interrogation techniques that are not in the manual but fall well short of anyone's definition of torture.
It's worth debating whether the CIA should be limited by the field manual (I think they should), but that's not the same thing as debating whether the CIA should be allowed to torture. I guarantee you that Obama's OLC will not write him opinions stating that water-boarding, induced hypothermia, stress positions, etc. are not "torture." That will not happen.
You're grasping at straws. This "loophole"--if approved--would merely allow the CIA to use some techniques that go beyond the limited procedures outlined in the Army Field Manual. There are any number of potential interrogation techniques that are not in the manual but fall well short of anyone's definition of torture.
First off, I don't think I'm grasping at straws at all. Second, the point made by the incoming administration that the Army Field Manual was to be followed by the CIA, no if's, and's, or but's. These aren't my words, but in effect the words of the Obama campaign. Third, what one thinks isn't torture might be called torture by someone else. Opinions and facts don't necessarily coincide.
I guarantee you that Obama's OLC will not write him opinions stating that water-boarding, induced hypothermia, stress positions, etc. are not "torture." That will not happen.
How can you say that if it's going to be classified? You are probably right, although how can you ever really know?
Like I said, I think it's a good idea, and in America's interest, to keep the enemy guessing. It's the militarily smart thing to do when fighting a war. Whether any enhanced techniques, what some may consider torture, are used are immaterial since nobody knows if it's allowed or not. But to say policies like this are going to be put in place, which may not be construed as different than what the Bush administration put in place, how can anyone not be considered a hypocrite if the new administration attempts to prosecute the old one for the same thing?
I'm not the one grasping at straws at what the Obama administration might do. All I have to do is look at every past administration for the clues.
Steveil,
If you are extrapolating on the basis of imaginary information (what do you, after all, really know about what any past administration did in secret?) about the future activities of the Obama administration, then, by definition you are grasping at straws.
If you are extrapolating on the basis of imaginary information (what do you, after all, really know about what any past administration did in secret?) about the future activities of the Obama administration, then, by definition you are grasping at straws.
I don't know about any secret or "imaginary" information of past administrations. The public history of them will suffice.
You really don't understand the Chicago Way, do you?
Steveil,
Except there is no history of past administrations' adoption of torture. It was always done by proxy -- and that is not to say that it wasn't vile even then.
There also isn't any evidence of the creation or operation of a gulag by any past administration.
Since Obama has already, today, taken the first steps to shut gitmo, your theory seems fundamentally in error.
I lived within spitting distance of Chicago for years, and I know how things are done there. Good things can still happen there, and good people can come out of there. It's only your one-sided cynicism that blinds you to reality.
Wallow in your dogma if you like, but always remember that dogma is the last refuge of the authoritarian follower.
There also isn't any evidence of the creation or operation of a gulag by any past administration.
Apparently you've already forgotten about these. None of the people interred was ever charged with a crime, they were denied their habeas rights, and the Supreme Court upheld a President's Executive Order that didn't have the backing of Congress. Thankfully, it was a great conservative Republican, Ronald Reagan, who righted this wrong in the best way he could.
Since Obama has already, today, taken the first steps to shut gitmo, your theory seems fundamentally in error.
I don't think so. I'll believe it when I see it. And I won't go bashing Obama for this until all the facts are in.
I lived within spitting distance of Chicago for years, and I know how things are done there. Good things can still happen there, and good people can come out of there. It's only your one-sided cynicism that blinds you to reality.
I know about the good things of Chicago, because I currently live within spitting distance, at least for another three months. But those good things don't include the criminals and cowards masquerading as Democratic politicians running the city and the state into the toilet. The whole Blago imbroglio has now brought it all out into the open.
Wallow in your dogma if you like, but always remember that dogma is the last refuge of the authoritarian follower.
So stop wallowing.
Steveil,
One incident, nearly 70 years ago, in wartime (real wartime, not the sham "war on terror") does not make convincing evidence, especially when it has been acknowledged, even by Alzheimer's patient RR, as a mistake.
Unfortunately for your accusation of dogma, which is really more of a second-grader's "no, you are!" taunt, I'm not the one displaying a dogmatic aversion to all things Democratic.
when you can actually demonstrate a dogmatic belief, you can accuse someone of dogmatism. Until then, it's really as empty as any of your other blatherings.
...I'm not the one displaying a dogmatic aversion to all things Democratic.
I can agree with that. But I do see a dogmatic aversion to all things Republican. You're jibe at Reagan shows it. At least what I say about Illinois and Chicago Democrats is backed up by the evidence.
One incident, nearly 70 years ago, in wartime (real wartime, not the sham "war on terror") does not make convincing evidence...
In your previous comment, you said:
There also isn't any evidence of the creation or operation of a gulag by any past administration.
I provided one, proving your original point was in error. Then you say that isn't enough evidence, even though I only needed to supply one to prove that it had happened. Saying this isn't enough evidence at this point is invalid.
And what do you mean the "war on terror" is a sham? Was the destruction of two huge buildings and other smaller ones a sham? Was the exacerbation of the recession going on at the time and the near ruination of airline-related industries a sham? Were the 3000 murdered on 9/11 by war criminals rotting in hell, hiding in Afghanistan and Pakistan, and awaiting justice in Gitmo, a sham? Outrageous.
Steveil,
Quoting you: "I don't know about any secret or "imaginary" information of past administrations. The public history of them will suffice."
That can only be read as implying there is a history of actions, but now you claim only one example is needed to prove it?
Here's a news item for you: Ronald Reagan died of Alzheimer's, and the symptoms appeared no later than in his second term. This is not a criticism of Republicans, merely a statement of fact.
As for the rest of your blather, even you must realize it's just a farrago of nonsensical assertions strung together.
As usual, the only thing thing you've proven is that you don't understand the terms you throw around.
Here's a news item for you: Ronald Reagan died of Alzheimer's, and the symptoms appeared no later than in his second term. This is not a criticism of Republicans, merely a statement of fact.
Wrong. The fact that Reagan had Alzheimer's, even going back to his days as President, has nothing to do with the conversation. You slipped it in as a dig. Heck, I'm even giving Obama's advisers credit for leaking that enhanced interrogation techniques might be included in a classified loophole since it's the smart thing to do, even of those techniques are never used.
That can only be read as implying there is a history of actions, but now you claim only one example is needed to prove it?
Nice try. You followed up with a definitive assertion which I proved was false. As far as the others, you should already have an idea of what they were without me having to provide them.
As for the rest of your blather, even you must realize it's just a farrago of nonsensical assertions strung together.
You made the claim that the War on Terror is a sham, and I replied that I disagreed with your assertion. What I said wasn't in the least bit nonsensical. In fact, I found your assertion utterly repugnant.
Lederman is a terrific pick and will help put America back on the right track. The torture will stop.
Steveil,
Your complaint about someone using Saint Ronnie's name in a snide fashion seems pretty hypocritical, since you did it above -- and first.
If your assertion is that, at some point in the past, some administration committed acts similar to those of the Bush administration, then FDR's actions might be so construed (although the Nisei weren't tortured or held indefinitely, were they?) That wasn't your claim, and your attempt to pretend that it was is dishonest.
If we are to accept what might, very loosely, be described as your "reasoning" in re why the "war on terror" is anything but an excuse the Bush administration used to obtain more power, then why can't we have a "war on drunk drivers" or a "war on tobacco producers"? Both kill far more people every year than the WOT.
Actually, Blago, Burris, and yourself give me hope for Obama, because the law of averages says that there must be exceptionally honest, selfless, and sane people from Illinois.
The right-wing trope that it's "meet the new boss, same as the old boss" has been exposed as idiotic by actions such as the appointment of people like Lederman.
I'm done here.
If we are to accept what might, very loosely, be described as your "reasoning" in re why the "war on terror" is anything but an excuse the Bush administration used to obtain more power, then why can't we have a "war on drunk drivers" or a "war on tobacco producers"? Both kill far more people every year than the WOT.
Where have you been for the last 40 years?
If your assertion is that, at some point in the past, some administration committed acts similar to those of the Bush administration, then FDR's actions might be so construed (although the Nisei weren't tortured or held indefinitely, were they?)
I don't know about torture (I agree they probably weren't), but you're talking apples and oranges. Those interred by FDR were only released when victory over our enemies in WWII was within reach. Had the war not been so close to its end, it is very likely the internments would have continued. But we'll never know, will we? In the current war, it hasn't ended and the enemy hasn't come close to surrendering, which is why the terrorists (no, not alleged terrorists; terrorists) haven't been released yet. Besides, seven years isn't indefinite. Simple math can be used to determine that.
I'm done here.
You were done before you started.
SteveIL-
If we are to accept what might, very loosely, be described as your "reasoning" in re why the "war on terror" is anything but an excuse the Bush administration used to obtain more power, then why can't we have a "war on drunk drivers" or a "war on tobacco producers"? Both kill far more people every year than the WOT.
Where have you been for the last 40 years?
So I assume you believe the President has the power, since there is a war, to hold potential drunk drivers without charges indefinitely without review? Or to torture tobacco executives?
If your assertion is that, at some point in the past, some administration committed acts similar to those of the Bush administration, then FDR's actions might be so construed (although the Nisei weren't tortured or held indefinitely, were they?)
I don't know about torture (I agree they probably weren't), but you're talking apples and oranges. Those interred by FDR were only released when victory over our enemies in WWII was within reach. Had the war not been so close to its end, it is very likely the internments would have continued. But we'll never know, will we? In the current war, it hasn't ended and the enemy hasn't come close to surrendering, which is why the terrorists (no, not alleged terrorists; terrorists) haven't been released yet. Besides, seven years isn't indefinite. Simple math can be used to determine that.
in⋅def⋅i⋅nite
1. not definite; without fixed or specified limit; unlimited: an indefinite number.
2. not clearly defined or determined; not precise or exact: an indefinite boundary; an indefinite date in the future.
3. Grammar.
a. indefinite article.
b. indefinite pronoun.
4. Botany.
a. very numerous or not easily counted, as stamens.
b. (of an inflorescence) indeterminate.
http://dictionary.reference.com/browse/indefinite
Seven years is indefinite, since the alleged terrorists don't know when there getting out. It isn't infinite, which math can prove, but standard definitions show the detentions are indefinite.
And they are alleged terrorists, unless you have forgotten the Uighers, the Boumediene five, or the over 200 people we have already released. They are alleged, since most of them have turned out not to be terrorists. That whole American idea of innocent until proven guilty and all.
So I assume you believe the President has the power, since there is a war, to hold potential drunk drivers without charges indefinitely without review?
Now your comparing apples and oranges, just as the other guy did. Look, I'm sorry you don't like the name "War on Terror". I don't like it either. "War on Islamist Terrorists" would have been a better, more specific name, but I don't have the job of naming wars. Besides, the 2001 AUMF is clear on who the U.S. is fighting, even if the name of the war sucks.
Seven years is indefinite, since the alleged terrorists don't know when there getting out.
In 1942, when the round-ups and internments of those of Japanese heritage were occurring, those being interred didn't know when they were getting out either. Using the liberal mantra of indefinite detentions, that means their stay was indefinite as well, since they didn't know when, or if, they were to be released. The only reason we know the WWII internments weren't indefinite is because their release did occur, since it happened in the past.
Therefore, while the detention of the Gitmo terrorists seems indefinite now, their eventual release hasn't occurred yet, unlike the release of those detained during WWII. And it shouldn't happen until someone says the war is over, even if it takes 20 years.
And they are alleged terrorists, unless you have forgotten the Uighers, the Boumediene five, or the over 200 people we have already released. They are alleged, since most of them have turned out not to be terrorists. That whole American idea of innocent until proven guilty and all.
Bull. Due process in a military engagement consists of killing or capturing the foreign enemy. That's it. If the foreign enemy is captured and charged with war crimes, they are still a foreign enemy, not one bit protected or guaranteed by any rights under the U.S. Constitution, and any rights recognized by the Constitution in treaties and whatnot. The Geneva Conventions do not protect unlawful enemy combatants, terrorists, which means foreign terrorists shouldn't be protected by the Constitution. What Boumediene did was to create brand new rights for foreign war criminals that no nation in history has ever provided to their captured foreign enemies. It also rendered the land the Gitmo base is on an actual part of U.S. territory, instead of a rented piece of Cuban real estate. Someone should probably notify the Castro brothers of this, and then tell them the rent will no longer be paid.
The concept of innocent until proven guilty in a court of law is reserved for those who are supposed to be protected by the U.S. Constitution, which doesn't include unlawful foreign enemies, terrorists, engaged in a war against the United States.
They aren't alleged terrorists, they are terrorists.
Bull. Due process in a military engagement consists of killing or capturing the foreign enemy. That's it.
Really? What about the UMCJ, the law of war, International law on the appropriate use of force, international bans on certain weapons and actions, etc, etc.? Methinks there may be a little more to civilized nations in combat than what you say.
If the foreign enemy is captured and charged with war crimes, they are still a foreign enemy, not one bit protected or guaranteed by any rights under the U.S. Constitution, and any rights recognized by the Constitution in treaties and whatnot.
Those morons who conducted Nuremberg! Or Slobadon! Or the trial of Saddam! Had you been there, you could have prevented that waste of time and just shot them, since there are no treaties or laws affording rights to the accused. I bet Justice Jackson is slapping himself on the forehead right now in the afterlife, saying “Gosh, why didn't I think of that?”
WOW.
I mean, WOW.
The Geneva Conventions do not protect unlawful enemy combatants, terrorists, which means foreign terrorists shouldn't be protected by the Constitution.
Uh, if a lawful combatant is charged with war crimes he is, under treaty and US law, entitled to process. The GCs protect all other captures under common article three. Those captured under those provisions are not POWs, but they have rights.
What Boumediene did was to create brand new rights for foreign war criminals that no nation in history has ever provided to their captured foreign enemies. It also rendered the land the Gitmo base is on an actual part of U.S. territory, instead of a rented piece of Cuban real estate. Someone should probably notify the Castro brothers of this, and then tell them the rent will no longer be paid.
Boumediene preserved the fundamental privilege of the writ of habeas corpus, returned balance to the branches of government, eliminated the creation of a lawless black hole by the executive and Congress, stopped dead in its tracks arbitrary detention by the executive, and allowed innocent people a day in court to demonstrate the unlawful detention they were suffering. What Boumediene did was restore the rule of law.
The concept of innocent until proven guilty in a court of law is reserved for those who are supposed to be protected by the U.S. Constitution, which doesn't include unlawful foreign enemies, terrorists, engaged in a war against the United States.
They aren't alleged terrorists, they are terrorists.
Then why did George W. Bush release so many dangerous terrorists? Did he make a mistake by releasing them, or by detaining them in the first place? If the latter, your theory is patently false.
What about the guys handed over to us by bounty hunters? Is there an Osmosis of Knowing Terrorist Knowledge that occurs during the transfer? Or the Serbians who were captured in Serbia, ordered freed by the Serbian Courts, and then detained, before the US courts ordered them released since not a lick of evidence existed to classify them as terrorists? I guess all those people were wrong, and Bush and you were right, huh? Your entire premise boils down to “if the President says so, that's it.” Unfortunately, that's exactly why we fought a certain revolution about 230 years ago.
So, you can do one of two things:
acknowledge some of those detained in Guantanamo have been wrongly detained, and therefore your contention that everybody down there is a terrorist and not an alleged terrorist is mindblowingly false
or:
admit Bush released terrorists, and that President Obama can declare you a non-citizen unlawful enemy combatant at his whim with no judicial review available to you, and as long as you are taken to a place just outside of the US borders, Obama can do anything at all he likes to you, and the US courts are powerless to act. Also, you are delusional and living in an alternate non-reality.
Take your pick!
Really? What about the UMCJ, the law of war, International law on the appropriate use of force, international bans on certain weapons and actions, etc, etc.? Methinks there may be a little more to civilized nations in combat than what you say.
I don't think so. Take a look at what the U.S. is actually a signatory too. Plus, the definition of a civilized nation is not one bent on committing national suicide by letting their own foreign and war policy be dictated by phony-baloney international groups that admit mass murderers as equals. And where in the UCMJ does it say that in a war the military isn't authorized to kill and capture a foreign enemy?
Those morons who conducted Nuremberg!
I love it when liberals mention Nuremburg as a model of due process. First, those held to be tried at Nuremburg did not have anything approaching the right to habeas corpus. Everyone held would have to face the tribunal. Second, judgements and sentences were final; there was absolutely no appeal. Those who were found not guilty were released, those sentenced to imprisonment were sent to prison, and those sentenced to death were executed (usually hanged). Boumediene has gone so far away from that. So forget using Nuremburg as an example. And the U.S. doesn't recognize, and rightly so, the ICC for those it captures.
Uh, if a lawful combatant is charged with war crimes he is, under treaty and US law, entitled to process.
And the unlawful enemy combatants were given a process, the Military Comissions Act voted on by Congress. But the majority on the Supreme Court ignored the relevant parts of it.
Boumediene preserved the fundamental privilege of the writ of habeas corpus...
Boumediene preserved nothing. It granted unlawful foreign enemies, people who are in no way mentioned in or covered by the U.S. Constitution (not even in those 9th Amendment unenumerated rights), a right that never existed to any similar type of person anywhere in the history of the world.
What Boumediene did was restore the rule of law.
The rule of law states that Congress writes legislation, and it is signed into law by the President, such as the MCA. Boumediene created a law written and signed by five unelected Justices without any involvement by either of the other two branches of the federal government, the branches that actually create the laws.
Then why did George W. Bush release so many dangerous terrorists? Did he make a mistake by releasing them, or by detaining them in the first place? If the latter, your theory is patently false.
[snip]
or:
admit Bush released terrorists...
Bush released terrorists due to political pressure from those with a stake in seeing him fail, even at the expense of more Americans killed. 61 of those released returned to their terrorist activities.
Your entire premise boils down to “if the President says so, that's it.” Unfortunately, that's exactly why we fought a certain revolution about 230 years ago.
My premise says that five unelected Justices created a right and a law, despite the work Congress and the President had done, in violation of Article I of the Constitution. That is why we fought a certain revolution about 230 years ago (plus that whole taxation without representation thing).
By the way, it is time to stop saying Bush did this all on his own since that isn't what I'm advocating at all. This whole thing may have started that way, and he had case law he believed would back him up (Ex Parte Quirin and Eisentrager in part, and that the 2001 AUMF was enough authority to establish the tribunals, similar to the tribunals set up by Executive Order by FDR). But Bush took forever getting these set up (yes, this was his fault), and then came the Hamdan suit, which took two years to run through the courts. One of the main points in Hamdan was that Congress had to write a better law than the Executive Order Bush wrote, along with parts of the 2005 Detainee Treatment Act, in order to try terrorists as war criminals. Congress did with the 2006 MCA. The one Boumediene completely ignored.
Ergo, I do not:
acknowledge some of those detained in Guantanamo have been wrongly detained.
That's my pick.
...and that President Obama can declare you a non-citizen unlawful enemy combatant at his whim with no judicial review available to you, and as long as you are taken to a place just outside of the US borders, Obama can do anything at all he likes to you, and the US courts are powerless to act.
That's what liberals accused Bush of doing, even though Hamdi cleared that up years ago.
SteveIL,
Wow--several wrongs, but I will leave this as a placeholder to correct you later.
Fraud Guy,
I dropped back in to see how things are going. I see that Steveil is still providing amusement.
When trying to correct Steveil, you have to keep in mind that at any time there is only a finite amount of demonstrably correct knowledge, but there's no limit on the amount of wrong.
For example: "Bush released terrorists due to political pressure from those with a stake in seeing him fail"
In this one phrase:
A) There's no evidence that the releases were due to political pressure -- not that a lack of evidence prevents Steveil from declaring it absolutely.
B) They're not terrorists, but simply alleged terrorists.
C) Bush never needed any help to fail from anybody.
D) Bush didn't order the releases anyway, it was judges in Gitmo, acting without his direct supervision.
And that was one small phrase, not even a complete sentence -- not that complete sentences, or even coherent phrases, are Steveil's forte.
C2H50H,
Sorry, I was at work, and didn't have time to think it through.
SteveIL,
Just two points--1) Is it true because DoD says it's so, even though they have not provided names, documentation, or other information confirming that those they claim have returned to fight us instead of, say, wrote a letter to the editor complaining about their captivity.
2) According to GC (3rd, which we did accept), captured violators of the GC (i.e., war criminals, such as terrorists attacking civilians, Bush administration officials who conducted and approved of torture, and the like) are to be captured and prosecuted under the existing civil or military justice systems of the capturing power. No MCA needed, or warranted, or even useful. No special jails--just appropriate trials and sentences, if the violations can be proved according to the justice method chosen. The best part; they don't even need to be POWs to be so treated (though you do have to treat them in a manner similar to POWs).
2) According to GC (3rd, which we did accept), captured violators of the GC (i.e., war criminals, such as terrorists attacking civilians, Bush administration officials who conducted and approved of torture, and the like) are to be captured and prosecuted under the existing civil or military justice systems of the capturing power. No MCA needed, or warranted, or even useful. No special jails--just appropriate trials and sentences, if the violations can be proved according to the justice method chosen.
Common Article 3 states the following:
"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:...the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
This does not mean that the federal government, through an Act of Congress signed by the President, is hamstrung by the Geneva Conventions in putting in its own laws regarding how it tries war criminals. Laws aren't required to be static.
What the Supreme Court said in Hamdan is that the military commissions, which were established by Executive Order and deemed legal based on Ex Parte Quirin and Eisentrager, were in violation of Common Article 3 (mentioned all over the place in Hamdan) because they did not meet the GC's requirement, in the Court's opinion, of being a regularly constituted court since it wasn't "expressly authorized by any congressional Act." What this does mean is that the tribunals would be legal if backed up by an act of Congress. Hence, the MCA, which was passed by Congress and signed by the President. Therefore, the MCA does adhere to the Convention's regularly constituted court requirement.
Boumediene did not strike down the MCA as a whole, especially since neither the Geneva Conventions as a whole nor Common Article 3 are mentioned there, only the section relating to habeas matters. Hamdan provided no direction for how to handle habeas writs nor the tribunals themselves, just that Congress had to get involved, which they did with the MCA. But then Boumediene went far beyond by completely ignoring the sovereignty arguments made by the government regarding Eisentrager, and determined that Gitmo is U.S. territory. What it also means is that any American military base outside of the United States, all of which operate under the same jurisdiction as Gitmo, could be considered U.S. territory as well, something the nations those bases are in probably don't agree with. Through this, they erroneously believed Congress invoked the Suspension clause, and denied Congress, the elected representatives of the people and the states, their Article III, Section 2 powers to establish exceptions as to the federal court's jurisdiction. And lastly, the Supreme Court in Boumediene, after providing no direction in Hamdan, overstepped its bounds by determining the courts in which habeas petitions were to be heard, again in violation of Article III, Section 2.
The political branches didn't switch the Constitution on or off at all, as is mentioned in Boumediene. There was a terrorist attack, which was why there was an AUMF. After Hamdan determined that Congress must write the laws to codify the tribunal system, this was done satisfying Common Article 3. Not only that, they codified that habeas writs were not allowed for these individuals. Congress never invoked the Suspension Clause for those protected by the U.S. Constitution. The system was set up on territory that is not part of the sovereign territory of the United States.
That is where my disagreement is with Boumediene. In my opinion, it also means that any real POWs held anywhere would also be granted the right to habeas petitions, even if their detention completely followed the Geneva Conventions. Considering how the legal system works in this country today, habeas petitions of such detainees would be allowed to proceed depending on the whim of some other unelected federal judge.
Therefore, the Supreme Court in Boumediene created a brand new right that had never existed before in the history of the world.
Really? What about the UMCJ, the law of war, International law on the appropriate use of force, international bans on certain weapons and actions, etc, etc.? Methinks there may be a little more to civilized nations in combat than what you say.
I don't think so. Take a look at what the U.S. is actually a signatory too.
All righty then.
Protocol for the prohibition of the use in
war of asphyxiating, poisonous or other
gases, and of bacteriological methods of
warfare.
Done at Geneva June 17, 1925.
Entered into force February 8, 1928;
for the United States April 10, 1975.
26 UST 571; TIAS 8061; 94 LNTS 65.
Convention with respect to the laws and
customs of war on land, with annex of
regulations.1
Signed at The Hague July 29, 1899.
Entered into force September 4, 1900;
for the United States April 9, 1902.
32 Stat. 1803; TS 403; 1 Bevans 247.
Convention for the exemption of hospital
ships, in time of war, from the payment of
all dues and taxes imposed for the benefit
of the state.
Done at The Hague December 21, 1904.
Entered into force March 26, 1907.
35 Stat. 1854; TS 459; 1 Bevans 430.
Convention relative to the opening of hostilities.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2259; TS 538; 1 Bevans 619.
Convention respecting the laws and
customs of war on land, with annex of
regulations.1
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2277; TS 539; 1 Bevans 631.
Convention respecting the rights and
duties of neutral powers and persons in
case of war on land.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2310; TS 540; 1 Bevans 654.
Convention relative to the laying of
automatic submarine contact mines.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2332; TS 541; 1 Bevans 669.
Convention concerning bombardment by
naval forces in time of war.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2351; TS 542; 1 Bevans 681.
Convention relative to certain restrictions
with regard to the exercise of the right of
capture in naval war.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910.
36 Stat. 2396; TS 544; 1 Bevans 711
Convention concerning the rights and
duties of neutral powers in naval war.
Signed at The Hague October 18, 1907.
Entered into force January 26, 1910;
for the United States February 1, 1910.
36 Stat. 2415; TS 545; 1 Bevans 723.
Declaration prohibiting the discharge of
projectiles and explosives from balloons.
Signed at The Hague October 18, 1907.
Entered into force November 27, 1909.
36 Stat. 2439; TS 546; 1 Bevans 739.
Convention for the amelioration of the
condition of the wounded and sick in
armed forces in the field.1
Dated at Geneva August 12, 1949.
Entered into force October 21, 1950;
for the United States February 2, 1956.
6 UST 3114; TIAS 3362; 75 UNTS 31.
Depositary: Switzerland
Status:
http://www.eda.admin.ch/eda/en/home/topics/intla/
intrea/chdep.html
Convention for the amelioration of the
condition of the wounded, sick, and
shipwrecked members of armed forces at
sea
Dated at Geneva August 12, 1949.
Entered into force October 21, 1950;
for the United States February 2, 1956.
6 UST 3217; TIAS 3363; 75 UNTS 85.
Depositary: Switzerland
Status:
http://www.eda.admin.ch/eda/en/home/topics/intla/
intrea/chdep.html
Convention relative to the treatment of
prisoners of war.1
Dated at Geneva August 12, 1949.
Entered into force October 21, 1950;
for the United States February 2, 1956.
6 UST 3316; TIAS 3364; 75 UNTS 135.
Depositary: Switzerland
Status:
http://www.eda.admin.ch/eda/en/home/topics/intla/
intrea/chdep.html
Convention relative to the protection of
civilian persons in time of war
Dated at Geneva August 12, 1949.
Entered into force October 21, 1950;
for the United States February 2, 1956.
6 UST 3516; TIAS 3365; 75 UNTS 287.
Now, that's just some of the treaties the US is a signatory to and are in force, See http://www.state.gov/s/l/treaty/treaties/2007/index.htm for more info. I get the feeling you have absolutely no idea what you are talking about, and simply make statements with no knowledge of the veracity of your claims. It is not a convincing way to argue, and results in you getting “served.”
Plus, the definition of a civilized nation is not one bent on committing national suicide by letting their own foreign and war policy be dictated by phony-baloney international groups that admit mass murderers as equals. And where in the UCMJ does it say that in a war the military isn't authorized to kill and capture a foreign enemy?
Our obligations and rules (including the myriad of treaties I generously listed for you above) put limits on what soldiers can do. Can a soldier kill unarmed enemies? Civilians? Surrendering enemies? The point is, even in war, even on a battlefield, there are rules and limits to how a soldier is to act. In that sense, there is “due process” or law. A surrendering enemy becomes a POW, and cannot be shot, tortured or beaten. You contended:
Bull. Due process in a military engagement consists of killing or capturing the foreign enemy. That's it.
You are completely wrong. There are a number of rules of engagement and regulations a soldier must abide by. I will not hold my breath for your admission of error.
Those morons who conducted Nuremberg!
I love it when liberals mention Nuremburg as a model of due process. First, those held to be tried at Nuremburg did not have anything approaching the right to habeas corpus. Everyone held would have to face the tribunal. Second, judgements and sentences were final; there was absolutely no appeal. Those who were found not guilty were released, those sentenced to imprisonment were sent to prison, and those sentenced to death were executed (usually hanged). Boumediene has gone so far away from that. So forget using Nuremburg as an example. And the U.S. doesn't recognize, and rightly so, the ICC for those it captures.
I love it when people who have no idea what their talking about pretend to be experts on things. The process at Nuremberg is a model to the civilized world. There was cross-examination, subpoena power, evidence presentment, the right to know the charges and evidence against you, the right to an attorney (not just an “assitant”). Sure, there was no appeal, etc – but that was mostly because they were making up the law as they went anyway (plus, what would have been the superior court to appeal to? If you have an original action in the US Supreme Court, there ain't no appeal from that either). But the defendants had the right to present defenses – something victors in war had never done previously. Evidence was presented, and the nazis were proven to be the criminals they were – instead of assumed as criminals as you do to the Guantanamo prisoners. Which is what I have never understood about this – if these guys are so bad, done some many despicable evil things, why not just put 'em on trial, show the world, and be done with it. The answer is simple – many of them are completely innocent, but some people just hate to admit mistakes, or that the world isn't black and white, good and evil.
Uh, if a lawful combatant is charged with war crimes he is, under treaty and US law, entitled to process.
And the unlawful enemy combatants were given a process, the Military Comissions Act voted on by Congress. But the majority on the Supreme Court ignored the relevant parts of it.
Boumediene preserved the fundamental privilege of the writ of habeas corpus...
Boumediene preserved nothing. It granted unlawful foreign enemies, people who are in no way mentioned in or covered by the U.S. Constitution (not even in those 9th Amendment unenumerated rights), a right that never existed to any similar type of person anywhere in the history of the world.
What Boumediene did was restore the rule of law.
The rule of law states that Congress writes legislation, and it is signed into law by the President, such as the MCA. Boumediene created a law written and signed by five unelected Justices without any involvement by either of the other two branches of the federal government, the branches that actually create the laws.
No. No. No. No. No. The Court determined the Congress exceeded the power granted to it under the Constitution by suspending the writ of habeas corpus without an insurrection or invasion, which is an explicit limit on the lawmaking power of Congress. Congress and the President wrote a law that violated the Constitution, and the Court took them to the mat for it. Those branches are obliged not to violate the Constitution, not to exceed their powers, and the Court is obliged to stop them when they do.
You have a fundamental misunderstanding of Constitutional law. At first blush, the problem with the MCA was not that it took away a “right” from the prisoners, but that the law attempted to suspend Habeas Corpus (a power of the Courts) without the prerequisite insurrection or invasion. The first argument made to the court was that the Court did not have jurisdiction in Guantanamo, since it was not sovereign US territory. This is where Obama can take you from Chicagoland and move you to Gitmo, and there wouldn't be anything anyone could do about it, if the Courts have no power there. Luckily, the Court rejected this “black hole” argument, and made sure the Court's power is coterminous with the rest of the government, which only makes sense in a separation of powers constitution. Therefore, the Courts have power there. The Second threshold was a determination of whether the writ should be “extended” to non-citizens. This is where most conservatives seem to lack any understanding of how the writ works. Assuming the Court has the power to effectuate process at Gitmo, is it limited to applications from citizens? But how will it determine if the applicant is a citizen? From the petition, of course. But if the court cannot even consider petitions from non-citizens, the government has a trump card – after Obama seizes you, the government will just say you are not a citizen. You cannot prove otherwise, because the court cannot accept non-citizen applications. In this catch-22 world, you are still stuck in Guantanamo. Therefore, basically through proof by contradiction, the Court must be able to accept applications from all applicants. (Even Eisenstrager recognized limited questions of citizenship had to be considerable by the courts). Now, fundamentally, Habeas simply determines if the detention is legal. If the applicant is an enemy combatant (legal or otherwise), the court will deny the application for writ, as the applicant is legally detained. In the old common law cases, like Shiver and the Spanish Sailors, the courts found, that, on their own “shewing,” the applicants were prisoners of war, and therefore legally detained. But, if the court had no power to consider the applications, then whatever the applications “shewed” is irrelevant. The fact that those cases involved “shewings” demonstrates the common law courts can consider applications from alleged prisoners of war, etc. (indeed, the whole point of habeas is the executive will claim he has legally detained the individual). So, the only question left is whether the individual is in fact legally detained. That's a case by case consideration, and sent back to court.
So clearly, the individuals are permitted to petition for habeas. The MCA is fine if it is a statutory equivalent or better to common law habeas. After looking at in the woeful procedures of the MCA, the Court correctly determined it was not an adequate substitute for habeas, thus an unconstitutional suspension of Article I, Section 9, Clause 2.
Boumediene has to do with the limits on Congressional power, and does not involve the Court making laws.
Then why did George W. Bush release so many dangerous terrorists? Did he make a mistake by releasing them, or by detaining them in the first place? If the latter, your theory is patently false.
[snip]
or:
admit Bush released terrorists...
Bush released terrorists due to political pressure from those with a stake in seeing him fail, even at the expense of more Americans killed. 61 of those released returned to their terrorist activities.
First, that number is garbage. Part of that count is an Uigher who wrote an op-ed in the NY times. Yep, Op-Eds praising the virtues of the US legal system and the Great Writ counts as “returned to their terrorist activities” in Bush World. If you want to live there, be my guest. But over here in reality, writing an Op-Ed would be considered “freedom of speech,” not “returning to the battlefield.”
Second, even if we assumed your number was true, we have released about five hundred detainees. Which means more than 400 were innocent, and your claims are more ridiculous than ever before. Try and see reality: We detained innocent people. There probably are still innocent people in Guantanamo. There is simply no arguing against it.
Your entire premise boils down to “if the President says so, that's it.” Unfortunately, that's exactly why we fought a certain revolution about 230 years ago.
My premise says that five unelected Justices created a right and a law, despite the work Congress and the President had done, in violation of Article I of the Constitution. That is why we fought a certain revolution about 230 years ago (plus that whole taxation without representation thing).
Then you simply have no idea what you are talking about. Congress violated Article I by suspending the writ in violation of an express limitation of the power granted to Congress by the Constitution. Congress does not have the power to take the power of the Courts to issue habeas, without the conditions being met. Period. The lawbreakers are Congress and the Executive. And we didn't fight a revolution in fear of the Courts.
By the way, it is time to stop saying Bush did this all on his own since that isn't what I'm advocating at all. This whole thing may have started that way, and he had case law he believed would back him up (Ex Parte Quirin and Eisentrager in part, and that the 2001 AUMF was enough authority to establish the tribunals, similar to the tribunals set up by Executive Order by FDR). But Bush took forever getting these set up (yes, this was his fault), and then came the Hamdan suit, which took two years to run through the courts. One of the main points in Hamdan was that Congress had to write a better law than the Executive Order Bush wrote, along with parts of the 2005 Detainee Treatment Act, in order to try terrorists as war criminals. Congress did with the 2006 MCA. The one Boumediene completely ignored.
Ergo, I do not:
acknowledge some of those detained in Guantanamo have been wrongly detained.
Your ergo does not follow. Factually, it is undisputed that the Uighers and the Serbians were not engaged in conflict with the US. Whether Bush detained them pursuant to his “inherent powers,” or based on an unconstitutional law, they were not terrorists. That is simply unquestioned.
Further, Boumediene did not ignore the MCA – it ruled it unconstitutional, as it should have. I really don't know how you can read the case and get “ignored” out of it. It was the center of the entire dispute. Moreover, the Court recognized Congress could set up commissions or procedures for the detainees, it just couldn't set up Soviet-Style Kangaroo Courts like those in the MCA.
That's my pick.
...and that President Obama can declare you a non-citizen unlawful enemy combatant at his whim with no judicial review available to you, and as long as you are taken to a place just outside of the US borders, Obama can do anything at all he likes to you, and the US courts are powerless to act.
That's what liberals accused Bush of doing, even though Hamdi cleared that up years ago.
How did Hamdi clear it up? The Court said “We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”
Ahhhhh – but if you get taken to the black hole, then there is no due process. That is kinda the whole point with the “Cuba is a sovereign nation” crap from the authoritarians. If the courts have no power at Guantanamo, they don't have any power there whether you are a citizen or not. So, yes, under your theory of the law, Obama can come and get you, ship you post-haste to Cuba, and can keep you there as long as he wants. You can't file a court action for release, since the Courts have no jurisdiction there, and habeas does not run to Gitmo. That is the natural, logical conclusion to your legal analysis.
Enjoy your stay!
Now, that's just some of the treaties the US is a signatory to and are in force...
And you did a wonderful job. Except it's all bull. Because every single President from Truman through and including Obama would then be required to be hauled in for war crimes, along with every single Soviet Premier from Stalin through Gorbachev, and nobody is calling Gorbachev, Carter, George H. W. Bush, Clinton, or Obama to be put on trial, are they? And I included our current President because HIS military launched missiles into Pakistan, and it is rumored children were killed.
I also never claimed Nuremburg didn't have due process. But those being held didn't have anything approaching what is considered due process in the U.S. since they didn't have habeas rights or the right of appeal (which you confirmed).
The Court determined the Congress exceeded the power granted to it under the Constitution by suspending the writ of habeas corpus without an insurrection or invasion, which is an explicit limit on the lawmaking power of Congress.
And I'm saying that they didn't have any habeas rights until they were created for them by the Court in Boumediene, so the Suspension Clause was never invoked. Neither the UCMJ or regular civilian law covers how to prosecute these people, and the MCA should have fit the bill until Boumediene. And as I mentioned in my previous comment, Common Article 3 does not restrict a signatory nation from following its own laws in creating a regular court system, which is what was done with the MCA.
Your argument is that the tribunals, even when backed up by legislation, are an invalid form of due process in prosecuting those detained in Gitmo. And I'm saying they are valid; so does the Supreme Court since they didn't throw out all of the MCA, just the section regarding habeas writs (MCA Sec. 7).
But let's look at it as if Congress did suspend habeas corpus.
You say the Court determined Congress was wrong in trying to invoke the Suspension Clause because there was no insurrection or invasion. What do you consider the 9/11 terrorist attacks? A foreign enemy crossed our borders in order to make war on the United States. If that isn't an invasion, I don't know what is. Congress passed the AUMF in response to that because there was a war on. The Supreme Court has never overturned that, which means even they believe, at least in a wrongly narrow fashion (based on Boumediene), that the U.S. is at war. The MCA narrowly defines who is to be denied habeas rights, and that habeas rights for everyone else, especially those of us who live in the U.S., had already been factored in by Hamdi, which was decided two years before the MCA was written.
So even with this, it isn't that everyone is at risk of being thrown into Gitmo to face a tribunal without the right to challenge the detention. Only those who are believed to be foreign enemies who were never protected by the Constitution in the first place and who are making war on us now. If the tribunal determines that some were wrongly detained, with their own hearing process, then they are released. It's the same as it was with Nuremburg. It's still due process. It isn't the due process we know of for citizens or legal immigrants, since that process requires a whole different set of procedures in order to prosecute. That includes court martials under the UCMJ. With the MCA, it isn't that courts don't have any jurisdiction since tribunals are a valid form of court. Plus, unlike at Nuremburg, there was an appeals process put in place, and appeals were to be heard only by the DC Circuit. So it isn't that the courts weren't involved. Again, the Supreme Court in Boumediene didn't overturn the MCA, just the section regarding habeas writs, and then proceeded to direct these writs to regular District courts instead of telling Congress to determine where any habeas writs were supposed to be filed. That is a violation of the Article III, Section 2.
Nerpzillicus,
My argument against MCA et al, is different from the courts, mainly in that the GC3 provides that non-POW violators of the GC's (the terrorists) are entitled to almost all of the same provisions (excepting those that really apply to members of an regular military force) and treatment as POWs. In addition, they are entitled to being tried for their crimes under the existing civilian or military rules of the detaining power. There's no need for a "new" method. We can handle secret intelligence information; we can handle trials of terrorists (domestic and foreign); we can hold such persons in military and probably civilian prisons; but apparently what we can't do is do that under the Bush administration without soiling ourselves with worry that somehow our system won't work. To me, those who can't handle that, and can't handle prosecuting those who broke the law because they were too busy soiling themselves (and us in the process), apparently don't want to handle the responsibilities of living in a democracy based on laws.
< snark > however, I am sure SteveIL could use a vacation in the Caribbean away from the Chicago winter this year. It's been damn cold. < / snark >
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