Freedom Isn't a Joke
Conservative blogs are all mocking the Obama administration's reported plan to resettle most of the 17 Uighur detainees currently being held at Guantanamo Bay to the island nation of Palau. If you read their posts, there's a disturbing lack of appreciation of the most important facts in this story. These men have nothing to do with al Qaeda. They are people who were turned over to the U.S. by bounty hunters and were subsequently declared, by the Bush administration, not to be enemy combatants. We, as a country, have no legal or moral basis for holding them at all. And yet they've been imprisoned in isolation for over seven years.
The reason these men have not yet been released is because the U.S. fears that if they are returned to China they will be tortured or killed, and most other governments either fear that accepting these detainees will anger China or that the issue will be demagogued by domestic political opponents. So these men simply rot away in prison, deprived of their freedom for no reason.
That the plight of these men elicits precisely zero sympathy (indeed, it provokes laughter) from most supposedly freedom-loving conservatives in this country underscores the extent to which many conservatives have managed to dehumanize in their own minds the many foreigners whose lives are impacted by our policies. As Jonah Goldberg put it this morning in a post entitled "Enemy Combatants as Toxic Waste":
This is not a joke. These are real people. And many of them have been imprisoned without justification for the better part of a decade. If the Obama administration has managed to find a way to restore their freedom, that plan should be praised, not mocked.
The reason these men have not yet been released is because the U.S. fears that if they are returned to China they will be tortured or killed, and most other governments either fear that accepting these detainees will anger China or that the issue will be demagogued by domestic political opponents. So these men simply rot away in prison, deprived of their freedom for no reason.
That the plight of these men elicits precisely zero sympathy (indeed, it provokes laughter) from most supposedly freedom-loving conservatives in this country underscores the extent to which many conservatives have managed to dehumanize in their own minds the many foreigners whose lives are impacted by our policies. As Jonah Goldberg put it this morning in a post entitled "Enemy Combatants as Toxic Waste":
The more I think about it, the more the enemy combatant "problem" can be understood like a toxic waste issue (and, no, I'm not trying to dehumanize these fairly inhuman people — they do that just fine on their own).Jonah's right that feckless politicians in this country are treating Guantanamo detainees like toxic waste, but he doesn't seem at all disturbed by this fact and has no problem casually describing all the detainees as "fairly inhuman people."
This is not a joke. These are real people. And many of them have been imprisoned without justification for the better part of a decade. If the Obama administration has managed to find a way to restore their freedom, that plan should be praised, not mocked.
posted by A.L. at 9:31 AM
71 Comments:
I'm real worried that some doughy piece of shit is again woefully uninformed on the pieces and devoid of anything resembling basic human emotions.
I feel compelled to disagree. It's reason he's lacking, not "basic human emotion."
He's got plenty of those... fear, hate, and more fear.
Conservative blogs are all mocking the Obama administration's reported plan to resettle most of the 17 Uighur detainees currently being held at Guantanamo Bay to the island nation of Palau. If you read their posts, there's a disturbing lack of appreciation of the most important facts in this story.
And there's a disturbing lack of facts in this post.
These men have nothing to do with al Qaeda. They are people who were turned over to the U.S. by bounty hunters and were subsequently declared, by the Bush administration, not to be enemy combatants.
The Bush administration didn't just "subsequently declare" the Uighers to not be enemy combatants; that came years later, as noted in the article you linked to. In fact, it was seven years after many of them were captured before the Bush administration made their declaration; that means it occurred last year. You make it seem like it happened fairly quickly after the Uighers were captured. And who says they weren't part of Al Qaeda? Nobody knows, and nobody is or was willing to find out definitively.
We, as a country, have no legal or moral basis for holding them at all.
They were captured in Afghanistan and Pakistan while the U.S. and the government of Pakistan was (and is) at war with Al Qaeda. The NYT article notes a plethora of apologists attempting to figure out why these Uighers would go to Afghanistan or Pakistan at all if all they were doing was fleeing the despotic Chinese regime. Why there, when there are other countries bordering China to go to? The Times does mention why one of them went:
"There is nothing else there but to learn to fight the Chinese, and then go back again,” one of them told a military panel.
That isn't mentioned in the post. So at least one of them admits he went there to learn how to fight the Chinese government, only to be captured by American or Pakistani troops. And we're supposed to feel some sort of moral outrage for holding those being trained by Al Qaeda?
The reason these men have not yet been released is because the U.S. fears that if they are returned to China they will be tortured or killed, and most other governments either fear that accepting these detainees will anger China or that the issue will be demagogued by domestic political opponents.
Not mentioned in the post is that there is a chance these Uighers will commit terrorist acts as well, something done by a good percentage of terrorists that have been released from Gitmo. It would help if all of the reasons why they haven't been released were given instead of just the talking points of the left.
Jonah's right that feckless politicians in this country are treating Guantanamo detainees like toxic waste, but he doesn't seem at all disturbed by this fact and has no problem casually describing all the detainees as "fairly inhuman people."
Seeing 3000 killed and two huge buildings destroyed (and others damaged) on 9/11 (and it could have been a lot worse) had an effect on people, and gave the U.S. the moral basis to keep another attack from happening again. It doesn't help that the left, nor the Obama administration, won't recognize the murder of one U.S. soldier and the severe wounding of another by a homegrown Muslim terrorist in nearby (to me) Little Rock. So letting those Uighers go, the ones who were being trained by America's Al Qaeda enemy, isn't something to be praised, but mocked.
It doesn't help that the left, nor the Obama administration, won't recognize the murder of one U.S. soldier and the severe wounding of another by a homegrown Muslim terrorist in nearby (to me) Little Rock.
huh? what does this even mean? The culprit was arrested right? And is being prosecuted right?
So letting those Uighers go, the ones who were being trained by America's Al Qaeda enemy, isn't something to be praised, but mocked.
You're so full of it, Steve. There is zero evidence that any of these people were trained by al Qaeda. If there was, they wouldn't have been de-designated as enemy combatants. We have NO legal basis to hold these people. None. They would have been release a long time ago had the Chinese government not made things difficult.
AL
You are wasting your time. You should direct "SteveAR" to a series of posts written by Hilzoy (over at the washingtonmonthly.com) a few weeks ago on exactly how the Uighur's ended up in Gitmo. Those posts unfortunately deal with a tricky thing called "facts" and I am afraid "SteveAR" is gonna be repelled by that.
Against my better judgement, here goes:
http://obsidianwings.blogs.com/obsidian_wings/2009/05/shameful.html
http://obsidianwings.blogs.com/obsidian_wings/2009/05/the-uighurs-1.html
http://obsidianwings.blogs.com/obsidian_wings/2009/05/the-uighurs-2.html
http://obsidianwings.blogs.com/obsidian_wings/2009/05/the-uighurs-3.html
http://obsidianwings.blogs.com/obsidian_wings/2009/05/the-uighurs-4.html
http://obsidianwings.blogs.com/obsidian_wings/2009/05/the-uighurs-compilation.html
Of course, there are more but this should keep "SteveAR" busy for a while.
I think it's a nice trick SteveAR is trying to pull. Even though the Bush Administration declared that the 17 Ughiars WEREN'T IN AL-QUEDA, Steve gets cheeky and says "And who says they weren't part of Al Qaeda? Nobody knows, and nobody is or was willing to find out definitively." What's the matter, fuckwad, are you sore that the 17 Ughiars who WEREN'T IN AL QUEDA weren't tortured within an inch of their lives in order to determine what was already obvious. You know, that they WEREN'T IN AL QUEDA.
What's even more disturbing is that the 17 Ughiars who WEREN'T IN AL QUEDA weren't "captured on the battlefield". Hell, they didn't do as much as throw a rock at a passing NATO convoy.
I wrote Jonah Goldberg about this, and his feeble defense was "those guys weren't saints". So fucking what? You can't unilaterally declare someone to be a "terrorist" if you don't have a scintilla of evidence that they are so.
By the way, Steve, at what point will you find that you aren't paralyzed with fear and hatred over 9/11? It was terrible, yes. It was catostrophic, yes. It was also almost 10 years ago. If you are going to argue for the United States to unilaterally commit war crimes and bully the planet, then you need to come up with a new justification for doing so.
A.L.:
There is zero evidence that any of these people were trained by al Qaeda. If there was, they wouldn't have been de-designated as enemy combatants.
Excuse me but there was supposedly zero or minimal "evidence" about all of the individuals who have been already released from Gitmo, except that a significant number were actually terrorists that returned to their terrorist ways, even against U.S. soldiers and civilians. So either the terrorists did a really great job of hiding the fact that they were terrorists, or the "evidence" was inconclusive at best. People ended up being killed; what that does is debunk your idea that we had no "legal or moral basis" for holding them, including the Uighers. We're in a real shooting war, not some kind "police action".
The problem is that Obama "screwed the pooch" announcing that he was going to close Gitmo without one iota of a plan, or an idea of what to do with its current "residents". The American people don't want Gitmo closed, nor the terrorists (and "suspected" terrorists) released on U.S. soil. That is the mainstream of thought in America right now, and anyone thinking otherwise, the President included, is out of the mainstream. The civilized world doesn't want them, and Palau only took them after being heavily bribed. Bribing other countries to take them will run quite a bit more, and I don't think the American people would be happy about how much that will cost.
In case you haven't noticed, conservatives are mocking everything Obama does regarding his idiotic move to close Gitmo. What Obama did in bribing Palau to take the Uighers is just another item of the Gitmo saga to mock. It is nothing to praise.
The culprit was arrested right? And is being prosecuted right?
In case you didn't know, federal law enforcement took their eyes off the ball on this guy, and he was able to kill one soldier and seriously wound another. I wouldn't call it a victory for the law enforcement method of fighting terrorism. You could argue the same could be said regarding the Tiller murder, except that Obama and the DoJ took extra steps to avoid a repeat of that, while saying next to nothing (and doing nothing) to stop a repeat of Little Rock.
Anonymous (3:39pm):
By the way, Steve, at what point will you find that you aren't paralyzed with fear and hatred over 9/11?
When are you going to realize we're still in a war? Congress and the Obama administration say so since the 2001 AUMF is still in effect. I realize being in a war might upset some who are "sensitive", but that isn't my problem; it's yours. Maybe you should look into getting your Rep. and Senator to put an end to the AUMF. Then watch them go down in flames the next time they run for office.
Steve,
It's really not worth engaging you on this because you have no idea what you're talking about, but suffice it to say, the Uighar situation has absolutely nothing to do with closing Guantanamo. These guys have already been declared not to be enemy combatants. We have no basis for holding them anywhere, even Guantanamo. It's just a matter of time before the courts order their release within the U.S. Even if we kept Guantanamo open, we had to do something with them.
And that's wholly apart from the simple concept that it's flat out wrong to imprison people when you have zero evidence that they've ever done anything wrong.
Steve, so you appear to be moving towards the Minority Report theory of "pre-crime". So, if you have no evidence, or inconclusive evidence that a person is a terrorist, you don't want them released from prison because they MIGHT turn out to do something bad in the future? You're basically arguing for lifetime detention in prison without even charging a person with a crime based on "they might...". Should our domestic legal system adopt this as well, lifetime imprisonment without due process or even trial?
One other thing, just who said anything about "releasing terrorists on US soil"?
Steve, oh, so we're in a WAR huh? So, I guess if we're in an offical WAR then the Gitmo prisoners really should be treated as PRISONERS OF WAR, huh?
The beauty of the fascist Right invoking our WAR as a justification for shredding every American value out there is this WAR literally has no endpoint. What would be the conditions that would have to exist for the "war" to end? Since we're fighting in most cases stateless actors, there is literally no way a true formal surrender could ever be put forth. Thus, we have perma-war, where torture, the elimination of due process, and warrantless surveillance of American citizens is SOP.
The longer this goes on with the Righteous Right cheerleading, the more my beloved USA is turning into the villain. The empire. The bully of the world. Whatever blowback we get unfortunately is going to be somewhat justified because of our own actions.
Tell me Steve, why didn't you enlist if this WAR is so important that the Constitution has to be put aside like an old newspaper. Why aren't YOU fighting, Steve? Why aren't you collecting aluminum for the WAR effort, Steve? Or are you just a typical conservative coward, who is so fearful of brown people that they want other people to kill said brown people in your name.
I think it's a shame that YOU weren't in the Trade Towers that day.
A.L.:
It's just a matter of time before the courts order their release within the U.S.
Really? Where? In the suburbs with the other Uighers? Don't you think the other people who live in the area, along with their Congressman, Senators, state representative, state Senator, and Governor, might have something to say about that? And if you think they wouldn't, think again. The Uighers would be there already if what you said was the case. So obviously you're blowing smoke on this. Just as you're blowing smoke on the idea that this has nothing to do with Obama closing Gitmo, because it most assuredly does.
And that's wholly apart from the simple concept that it's flat out wrong to imprison people when you have zero evidence that they've ever done anything wrong.
You're right when it comes to regular law enforcement. But regular law enforcement wasn't involved in the capture of the Uighers, was it? The U.S. captured them in the middle of a war zone by soldiers, under a wartime directive (the 2001 AUMF), not some place the regular police could catch them. That is a whole different situation than the one you are attempting to portray.
Anonymous (4:58pm):
Steve, oh, so we're in a WAR huh?
Where have you been for the last eight years?
So, I guess if we're in an offical WAR then the Gitmo prisoners really should be treated as PRISONERS OF WAR, huh?
Have you ever seen the definition of a PRISONER OF WAR, and why those at Gitmo aren't covered by that definition?
The rest of your rant is nothing more than a typical leftwing diatribe that is typically nonsensical and not worth any further time.
Steve, you can't simultaneously claim that we're in a war but then suspend the rules of war when they become inconvenient to you.
By the way, the US didn't "capture" the Ughiars. Bounty hunters turned them over. Again, just what crime did these guys actually commit? What evidence of a crime can you produce, apart from being in the wrong place?
Sorry, Steve, but at the end of the day, keeping people in a prison camp for nearly a decade without actually charging them with a crime under the premise that they "might" do something if let go is antithetical to what the US is supposed to be about. But I guess it's easier to to ignore this when it's brown people who get affected.
The problem is equally that this logic can be applied anywhere..
For instance, SteveAR. Steve, we don't have any evidence that you've ever had anything to do with Al Qaeda. But, if you were kidnapped and tortured for a couple years, you might want to do something bad.
This is precisely the case that exists against the Uighers. If it's good enough to imprison and torture them, why not you?
Is there any government, ever, that you would trust with the authority to do this?
Thank you for posting this - it is very well written. A lot of these detainees had nothing to do with terrorism before being jailed in Gitmo. But I can imagine being jailed for half a dozen years without trial or reason, being tortured and treated like an animal would make someone want to seek revenge against a country that does such a thing.
What I find really sad, is that politicians on both sides of the aisle are quick to vote on resolutions saying "No Detainees in my Backyard!"
Yet no one says "Hey, we put them in this situation, we must resolve it".
It's scary that a lot of these guys were simply in the wrong place at the wrong time and then picked up by these bounty hunters who were more interested in making money from the US then actually catching the real terrorists.
Steve seems to have charged into this discussion content to rely on the assumption that all detainees are guilty until proven innocent, and that the Bush Admin only released people when the Big Bad Judges made them. For example,
"Not mentioned in the post is that there is a chance these Uighers will commit terrorist acts as well, something done by a good percentage of terrorists that have been released from Gitmo"
I'm guessing he's relying on the Pentagon's "one in seven" claim, which if you look at named examples (and of those, several are accused only of associating with terrorists), becomes 5.43%, or one in twenty.
Relatedly, Steve says, "Excuse me but there was supposedly zero or minimal 'evidence' about all of the individuals who have been already released from Gitmo, except that a significant number were actually terrorists that returned to their terrorist ways, even against U.S. soldiers and civilians."
I can't even guess at where he came up with this. The Bush Admin did not release detainees in order of lack-of-evidence-of-terrorist-activity. It released them based on citizenship and their home country's willingness to have them back. Citizenship of course has nothing to do with dangerousness. Their home country's willingness to have them back will be somewhat affected by dangerousness, but in many cases will have more to do with how much pull the detainee's friends and family have with their government. If you don't believe that influence makes the difference, try comparing the releases of Kuwaitis (who *really* would seem to have no business in a godforsaken pit like Afghanistan) to those of the Uyghurs.
Finally, there's a wee gap of logic in the assumption that if someone engaged in terrorist activity after being released from Gitmo, then he must have been a terrorist prior to going to Gitmo. This gap is based on the popular conservative fantasy that nothing happens to people at Gitmo that could turn them against the U.S.
Really? Where? In the suburbs with the other Uighers? Don't you think the other people who live in the area, along with their Congressman, Senators, state representative, state Senator, and Governor, might have something to say about that?
Steve, I know the Bush adminstration conditioned everyone to think otherwise, but you can't simply defy a court order. There is no legal basis to detain these people. Eventually the courts would order their release. By negotiating this agreement with Palau, the Obama administration is avoiding being forced to release them here, which it would they would have had to do. It has nothing to do with Guantanamo. Thanks to recent Supreme Court cases, it is now clear that U.S. law applies equally to detainees at Guantanamo as it does to those in the U.S. There is no rationale for continuing to keep anyone at Guantanamo. We only put people there in an attempt to avoid U.S. law. That effort failed.
So either the terrorists did a really great job of hiding the fact that they were terrorists, or the "evidence" was inconclusive at best. People ended up being killed; what that does is debunk your idea that we had no "legal or moral basis" for holding them, including the Uighers.
No, it really doesn't. You're not very good at debunking. You haven't mounted a shred of a legal or moral defense for holding the Uighurs. Your defense boils down to "Who knows?" Moron.
Anonymous (5:33pm):
Steve, you can't simultaneously claim that we're in a war but then suspend the rules of war when they become inconvenient to you.
And you can't discuss suspending the rules of war if you don't understand what the rules of war are. Allow me to show you by your own example:
Sorry, Steve, but at the end of the day, keeping people in a prison camp for nearly a decade without actually charging them with a crime under the premise that they "might" do something if let go is antithetical to what the US is supposed to be about.
Do you have any idea why the U.S. released German POWs after WWII? Because it was after WWII; the war was over because the Germans surrendered. Period. Had the war gone on 10 years, then German POWs would have remained in the prison camps for 10 years. No habeas rights, no charges filed, none of that. Those are the rules of war for POWs.
For Al Qaeda terrorists, we are still at war with them (the 2001 AUMF, in case you forgot), and they aren't POWs by any stretch of the law, except to those on the left, and the terrorists themselves, who pervert the law. Read the Geneva Conventions sometime.
A.L.:
Steve, I know the Bush adminstration conditioned everyone to think otherwise, but you can't simply defy a court order.
Sure you can. It's called filing suit or an appeal. Even the Obama administration has used them repeatedly, to keep classified documents from being used in Al Haramain, and for not releasing the interrogation photos.
Eventually the courts would order their release.
As I asked, where? Even if it reached the Supreme Court, any remedy they could come up with in order to satisfy such a stupid decision would be repeatedly challenged, tying this up for many more years. You, being a lawyer, knows this would happen. Obama, being a lawyer, knows this would happen.
By negotiating this agreement with Palau, the Obama administration is avoiding being forced to release them here, which it would they would have had to do. It has nothing to do with Guantanamo.
Again, it has everything to do Obama's closing of Gitmo. As I mentioned, he could never get the courts to order any release of any of the detainees because of the repeated challenges that would come about, and still expect to keep to his ridiculous policy to close Gitmo in that one year period he wanted. You're a lawyer; you know these challenges would occur, and those filing them would have standing. Besides, do you think Obama wants to be known as the President who released terrorists amongst the American people, even if ordered to by the Supreme Court?
The mocking of Obama by conservatives is completely warranted because they know this too. Like I said, Obama "screwed the pooch" when he ordered Gitmo closed within a year without any idea of how to do it. He made things worse by sticking his neck out even further unnecessarily at Cairo.
PG:
Finally, there's a wee gap of logic in the assumption that if someone engaged in terrorist activity after being released from Gitmo, then he must have been a terrorist prior to going to Gitmo. This gap is based on the popular conservative fantasy that nothing happens to people at Gitmo that could turn them against the U.S.
It is a leftist fantasy that Gitmo created terrorists.
I'm a sucker for responding to your nonsense, Steve, but you simply don't know what you're talking about. The continued existence of Guantanamo has absolutely zero impact on the legal state of the detainees there. They are subject to same laws whether held there or in a U.S. mainland facility. With respect to the Uighurs, even if it was morally defensible, there is no way to indefinitely detain them. There is no legal basis for holding them. They are not combatants. They have not been charged with crimes. Obama could take steps to delay their release, but not forever. By shipping them off to Palau, he is not only doing the right thing, he is avoiding being forced to release them at home. Those are the only options. Release them somewhere else or be forced to release them here.
And by the way, even under law of war principles, there is no rationale for holding these people. They have been declared (by the Bush administration) not to be enemy combatants.
A.L.:
The continued existence of Guantanamo has absolutely zero impact on the legal state of the detainees there.
Here's where you're wrong.
Obama could take steps to delay their release, but not forever.
You are correct. But any delay would have a serious impact in getting Gitmo closed within Obama's timeframe. Back in February, a panel of the DC Circuit said that the courts don't have the ability to allow the Uighers into the U.S., as was originally ordered last October, and remanded the case back to the District Court. An appeal by the Uighers before the Supreme Court has already happened, and Obama has already filed a motion with the Supreme Court to convince them not to take the case. If they did, it probably wouldn't rule within the Obama timeframe to close Gitmo. And since Congress is holding up funds to close Gitmo anyway (which is what the DC Circuit required, a political solution), the chance of the Uighers getting out before Obama's scheduled Gitmo closing are nil; even if they are released, the remaining detainees would still be in an unclosed Gitmo.
Obama's bribe to Palau to take the Uighers was just about entirely political (with possibly a scintilla of legal justification, maybe 1/1000th of 1%), and entirely mockable because he should have never called to close Gitmo in the utterly incompetent manner he did.
The thing about Jonah Goldberg is that he DOESN'T think. He might mull, lightly consider or regard, but THOUGHT is not Jonah's stock-in-trade. It's REACTION. He's once of the most intellectually dishonest people walking the planet. Besides, of course, his beard, Kathryn Jean Lopez.
Steve appears to think that because one in seven people (a dubious figure, but I will give him the benefiti of the doubt there) we determine are not terrorist and therefore release turn out to be terrorist after all, instead of being an argument for refining the incredibly incompetent way they have been processed up till now, we should lock the six innocents away for life just to be sure. Sorry for finding this morally contemptible, but I do.
Yes A.L, you are a sucker. I do not think that SteveAR is a good faith commenter. His command of language and legal precedent shows he is relatively smart and well educated, but his points are so illogical and contradictory that you get the sense that his purpose is more to distract/bamboozle than to persuade or contribute to a reasoned discussion. He persistently erects straw men or argues at cross purposes and he usually is most interested in issues where his view allows for no compromise. Please don't ban him, bait him or treat him unfairly (he's a useful to a point) but he's a sophist, as other regulars here have observed before.
Sophist? I'd been assuming the correct term is "sock puppet."
Bill Keane:
His command of language and legal precedent shows he is relatively smart and well educated, but his points are so illogical and contradictory that you get the sense that his purpose is more to distract/bamboozle than to persuade or contribute to a reasoned discussion...
...but he's a sophist, as other regulars here have observed before.
I'm not above taking constructive criticism, being a flawed human being. I can admit when I'm wrong. Please point out where on this thread I've actually engaged in sophistry. I don't mean in general, but the details of where this sophistry took place on this thread. Allow me to rebut if I see where you might be in error. But I need to know exactly where I engaged in the behavior you mentioned on this thread or I won't be able to understand where you're coming from. That is, unless what you're saying isn't true at all, and you're just saying it to say it, expecting people to believe it to be true without providing any proof.
I'll take this one:
Right there. The last two sentences of your post.
That's exactly what we mean.
I also am a sucker...
First, A.L. Is correct that t being in Guantanamo does not affect the legal status of the detainees. The whole purpose of Guantanamo (and Bagram now) was to create a legal black hole, where the executive could act with impunity. The Supremes have shot this theory down. The detainees would have the same rights in Kansas as they do in Guantanamo.
The bribe to Palau is mockable, but not for the reasons SteveAR gives. Its mockable because Obama knew he was going to lose, and he did not want to face the political fallout of having “terrorists” ordered to be released into the US. So, much like Bush did with small members of the “coalition of the willing,” Obama bribed Palau to take them. I will not give Obama the credit A.L. Does – if Obama was really principled, he would have allowed their release into Uighur communities in the US. But nothing is going to get in the way of health care reform, even taping back up the Constitution shredded by the previous occupant of the White House. So, a “pragmatic” answer, that avoids taking the fearmongers directly. I sympathize w/ Obama, since he didn't create the problem, but he clearly is going to try and solve it without constraining himself to principles.
No one would be able to challenge the Uighurs release. There would be no standing to do so. The only legal difficulty in ordering the release into the US is the unclear relationship between Habeas and immigration law. Once that gets resolved, the Courts will order Obama to release detainees he does not have legal authority to hold into the US, if no one else will take them.
Also, as I have told you repeatedly on this blog SteveAR, the prisoners at Gitmo are covered under Common Article 3 of the Geneva Conventions. Second, your comparison to the Japanese or Germans makes no sense, since the detainees requesting habeas contend they were not engaged in hostilities with the US. So they are neither POWs, nor unlawful enemy combatants, and the executive lacks legal authority to hold them. It's really that simple.
nerpzillicus:
Also, as I have told you repeatedly on this blog SteveAR, the prisoners at Gitmo are covered under Common Article 3 of the Geneva Conventions. Second, your comparison to the Japanese or Germans makes no sense, since the detainees requesting habeas contend they were not engaged in hostilities with the US. So they are neither POWs, nor unlawful enemy combatants, and the executive lacks legal authority to hold them. It's really that simple.
First, show me where in Common Article 3 where the terrorists are covered. I've looked, and I can't find it (but that's because I believe it isn't there, and neither do millions of other people).
Second, what you're saying is that all a terrorist has to do to avoid detention is say he isn't a terrorist, and the U.S. can't hold them, unless the soldiers engaged in combatting terrorists get a warrant and all the other "niceties" police are required to get in ordinary criminal cases. In the middle of a war zone. While a war is going on. Is that what you're saying? Is that was is so simple?
First, show me where in Common Article 3 where the terrorists are covered. I've looked, and I can't find it (but that's because I believe it isn't there, and neither do millions of other people).
Ummm, how about Hamdan v Rumsfeld? Yep, that's about it.
Second, what you're saying is that all a terrorist has to do to avoid detention is say he isn't a terrorist, and the U.S. can't hold them, unless the soldiers engaged in combatting terrorists get a warrant and all the other "niceties" police are required to get in ordinary criminal cases. In the middle of a war zone. While a war is going on. Is that what you're saying? Is that was is so simple?
No, not quite. In the case of the Uighurs, they have demonstrated, and the administrations have agreed, they were not enemy combatants.
The test in a habeas proceeding is whether the detention is legal. There are different grounds for detention. Armed combat against US troops or their allies? Certainly legal to detain, whether or not the detainee is a regular soldier (entitled to full POW protections) or not. But when you pick up a person in, say, Bosnia, after the Bosnian court has cleared him of any wrongdoing, let's just say it is less clear if the detention is legal. Thus a Habeas petition. If the jailor can submit a return that satisfies the court, the detention can remain legal. If the petition itself demonstrates the detention is legal – like “I was captured on battlefield X”, the court can deny the petition. If there is a serious question of the legality, then a hearing can be had, and the court can determine whether the President has the legal authority to detain the person. The hearing is in equity, so flexibility exists in administering evidence and procedure. I don't see what is controversial about this. Since many of the more eggregious cases of detention (the Uighurs, Boumediene) were nowhere near a battlefield (remember, the Uighurs came from bounty hunters, as mentioned by others) your concerns for the safety of our soldiers on the battlefield in capturing detainees is not applicable to those circumstances.
Really, your big problem is that you try to take the extreme case, say a combatant captured at Tora Bora or something, and act like all other detainees are similarly situated. This is an individual, case by case, situation. I certainly believe the Bush administration was legally detaining a large number of people. However, he, equally clearly, was detaining a large number of innocent people. The fact he would not allow someone else to check his work is what is so infuriating. It is repellent to our principles and the Constitution.
nerpzillicus:
Ummm, how about Hamdan v Rumsfeld? Yep, that's about it.
The Court makes two erroneous assumptions: that somehow Common Article 3 relates to the conflict against Al Qaeda, despite the fact that this isn't war in one place (I add to that below); and, that Al Qaeda also "accepts and applies" the terms of Common Articles 2 & 3. Which, of course, they don't. (See page 14 of the DC Circuit ruling). The ruling creates a loophole terrorists can exploit because of the Court's preconceived assumptions.
Since many of the more eggregious cases of detention (the Uighurs, Boumediene) were nowhere near a battlefield (remember, the Uighurs came from bounty hunters, as mentioned by others) your concerns for the safety of our soldiers on the battlefield in capturing detainees is not applicable to those circumstances.
Really? Where do most terrorists attack anybody? Not anything resembling a traditional battlefield where two armies square off. Al Qaeda terrorists make anyplace in the world a battlefield. They've made attacks in Afghanistan, Pakistan, Saudi Arabia, Yemen, Tanzania, Kenya, Algeria, Great Britain, Spain, the U.S., Bali, and the Philippines (and others as well). It seems to me that the war zone pretty much encompasses just about the whole world, with the possible exceptions of South America and Antarctica. So the idea that neither the Uighers or Boumediene weren't picked up on a battlefield doesn't fly, especially since the vast majority of the world is a war zone. Al Qaeda made it one. You can't deny that isn't true.
Thus, your argument that things are simple isn't true, and things aren't all that simple at all.
Really, your big problem is that you try to take the extreme case, say a combatant captured at Tora Bora or something, and act like all other detainees are similarly situated.
Maybe because this is a real shooting war we are in, not any kind of enhanced law enforcement exercise. A captured enemy uniformed soldier who had never fired a shot against an American soldier isn't treated as an exception, and is thrown into a POW camp with all those captured enemy soldiers who did fire on American soldiers; they would also remain detained for the duration of the war, whether it lasted a year or 20 years. The only difference here is that the current enemy doesn't wear uniforms, thus making their terrorist activities illegal to the laws of war.
However, he, equally clearly, was detaining a large number of innocent people. The fact he would not allow someone else to check his work is what is so infuriating.
It's the job of Congress to do that. Whether anyone believes it or not, Congress wasn't inactive at this time, and didn't have a problem with the commissions as they were originally conceived. The courts, on the other hand, ended up making a slew of ridiculous rulings, showing their "oversight" to be hopelessly naive in the face of this enemy. People may have, and probably were, killed as a result of these rulings.
SteveAR-
Ummm, how about Hamdan v Rumsfeld? Yep, that's about it.
The Court makes two erroneous assumptions...
Erroneous or not, that's the law. Common Article 3 applies to detainees from this conflict. Period. I am more than willing to debate the merits of the case, but there is no question about what the law is.
Since many of the more eggregious cases of detention (the Uighurs, Boumediene) were nowhere near a battlefield (remember, the Uighurs came from bounty hunters, as mentioned by others) your concerns for the safety of our soldiers on the battlefield in capturing detainees is not applicable to those circumstances.
Really? Where do most terrorists attack anybody? Not anything resembling a traditional battlefield where two armies square off. Al Qaeda terrorists make anyplace in the world a battlefield. They've made attacks in Afghanistan, Pakistan, Saudi Arabia, Yemen, Tanzania, Kenya, Algeria, Great Britain, Spain, the U.S., Bali, and the Philippines (and others as well). It seems to me that the war zone pretty much encompasses just about the whole world, with the possible exceptions of South America and Antarctica. So the idea that neither the Uighers or Boumediene weren't picked up on a battlefield doesn't fly, especially since the vast majority of the world is a war zone. Al Qaeda made it one. You can't deny that isn't true.
Thus, your argument that things are simple isn't true, and things aren't all that simple at all.
I will deny this. The world is not a war zone. We are not in World War III because 19 guys with box cutters committed an atrocious act. Calling it a war gives these guys far too much credit. They are criminals and cowards. The Republic is not in existential jeopardy. We are not at war with Bosnia. If the world is a battlefield, and we have to give up the rule of law to fight it, Al Qaeda has already won.
I refuse to accept this fallacious reasoning. We are not at war anywhere but Iraq and Afghanistan. Even there, we are not “at war” since no declaration of war has been made. But I would certainly accept many areas in those two countries count as a battlefield. Nowhere else.
You were the one who said I claimed “the U.S. can't hold them, unless the soldiers engaged in combatting terrorists get a warrant and all the other "niceties" police are required to get in ordinary criminal cases. In the middle of a war zone. While a war is going on.”. Since your concern seemed to be my “excessive” procedural requirements on a battlefield, I tried to assuage you that this is not always (nor typically) the case. Nevertheless, there was no firefight when we kidnapped Boumediene right after his release form the Bosnian Courts, no soldier's safety was at risk.
And I think this gets back to something we have probably debated here before – if you are right, and the world is a war zone, then you are fine with Obama grabbing you from Arkansas and putting you in Gitmo with no process or habeas, right? If he says you're a terrorist, you must be, right? I mean, we're at war! We can't have the Courts mucking up the Commander in Chief's prosecution of that war, right?
What is more amazing to me is that you can, in the same post, claim there is nothing like a traditional battlefield in this war, but then treat it exactly as WWII when it comes to simply detaining all POWs. Which is it – a completely non-traditional conflict, or do we handle captures exactly like we do in traditional state v state war?
Really, your big problem is that you try to take the extreme case, say a combatant captured at Tora Bora or something, and act like all other detainees are similarly situated.
Maybe because this is a real shooting war we are in, not any kind of enhanced law enforcement exercise. A captured enemy uniformed soldier who had never fired a shot against an American soldier isn't treated as an exception, and is thrown into a POW camp with all those captured enemy soldiers who did fire on American soldiers; they would also remain detained for the duration of the war, whether it lasted a year or 20 years. The only difference here is that the current enemy doesn't wear uniforms, thus making their terrorist activities illegal to the laws of war.
The other difference is Boumediene and the Uighurs are not enemies. Kind of a key distinction. Sort of, you know, crucial. Again, if the actual status of a person is unimportant, why can't Obama come and get you?
Of course, the proper analogy is not a captured enemy uniform soldier who had never fired a shot, but a non-combatant civilian. Can we throw them in the brig for the duration too?
You can continue to simply assume each person in Gitmo is a terrorist, but then you have abdicated any claim to be operating in reality. What do you propose to do with the innocent people? The existence is a fact, so you are going to have to handle it. Should they simply accept that they must be sacrificed for the greater good?
However, he, equally clearly, was detaining a large number of innocent people. The fact he would not allow someone else to check his work is what is so infuriating.
It's the job of Congress to do that. Whether anyone believes it or not, Congress wasn't inactive at this time, and didn't have a problem with the commissions as they were originally conceived. The courts, on the other hand, ended up making a slew of ridiculous rulings, showing their "oversight" to be hopelessly naive in the face of this enemy. People may have, and probably were, killed as a result of these rulings.
No. It is the writ of habeas corpus that allows the judiciary to check an executive drunk on his own power, and a Congress too spineless to stand up to him, so much so that it passes an unconstitutional show trial statute the Soviets would have been proud of. I don't know if people have been killed because of the reenforcement of the rule of law, but I do know, for a fact, innocent people have been freed because of it.
nerpzillicus:
The other difference is Boumediene and the Uighurs are not enemies.
Considering how Al Qaeda wages war, how would anyone know?
It is the writ of habeas corpus that allows the judiciary to check an executive drunk on his own power, and a Congress too spineless to stand up to him, so much so that it passes an unconstitutional show trial statute the Soviets would have been proud of.
And how do you know either the President's or Congress's commissions (prior to the MCA) were going to be show trials? How the hell do you know that? Where's your evidence? How do you know that Boumediene and the Uighers wouldn't have been released by those commissions years ago if the courts hadn't intervened, holding up the commissions, and issuing their unconstitutional and naive rulings? Where is your evidence? You've given terrorists like KSM and his ilk more legal leeway by calling them "suspected terrorists" than those in the Bush administration, and nobody in the Bush administration has actually been charged with anything, let alone convicted. I'm really curious as to how you'd respond to that.
SteveAR-
The other difference is Boumediene and the Uighurs are not enemies.
Considering how Al Qaeda wages war, how would anyone know?
So there is no limit to whom the executive can detain, because, well, who knows? Seriously? Please answer me this: Do you support the idea that if Obama thinks you are a terrorist, he can simply come and get you right now, and put you in Gitmo with no process at all? Is there anyone we cannot arrest? If Obama says the republicans, by obstructing various policies, are waging war for Al Qaeda, can he lock them up, cause, well, who knows? Follow your assertions to their logical conclusions.
It is the writ of habeas corpus that allows the judiciary to check an executive drunk on his own power, and a Congress too spineless to stand up to him, so much so that it passes an unconstitutional show trial statute the Soviets would have been proud of.
And how do you know either the President's or Congress's commissions (prior to the MCA) were going to be show trials? How the hell do you know that? Where's your evidence? How do you know that Boumediene and the Uighers wouldn't have been released by those commissions years ago if the courts hadn't intervened, holding up the commissions, and issuing their unconstitutional and naive rulings? Where is your evidence? You've given terrorists like KSM and his ilk more legal leeway by calling them "suspected terrorists" than those in the Bush administration, and nobody in the Bush administration has actually been charged with anything, let alone convicted. I'm really curious as to how you'd respond to that.
Let's go with the example of Murat Kurnaz. http://en.wikipedia.org/wiki/Murat_Kurnaz. When the government claims to have evidence against you, but won't reveal it, and then they accidentally reveal it, and the evidence is actually exculpatory, well, call me old-fashioned, but that kinda shows the CSRTs were, well, show trials. Besides that, common sense tells us that secret evidence, excessive hearsay, and the inability to cross-examine your accusers leads to abuse. Sort of things we fought a little revolutionary war over.
How do I know that Boumediene and the Uighers wouldn't have been released by those commissions years ago if the courts hadn't intervened, holding up the commissions, and issuing their unconstitutional and naive rulings? Where is my evidence?
Simple, Boumediene v. Bush, “Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.” Section I of the opinion. So, if you accept reality, and concede Boumediene is innocent, then you see the CSRT erroneously found him (and so many others) to be an enemy combatant. He couldn't see the evidence against him (including testimony gained from people under torture), he had no counsel, he couldn't cross-examine, he couldn't subpoena, he did not get a list of the specific charges against him, hearsay was outrageous, etc., etc, etc. The CSRTs don't just look like a show trial - they read like the definition of a show trial.
And the KSM legal leeway thing is garbage. I believe we have sufficient evidence against him to hold him. He can feel free to file a habeas petition, it'll get denied. This is you, again, trying to conflate two entirely different situations.
The other difference is Boumediene and the Uighurs are not enemies.
Considering how Al Qaeda wages war, how would anyone know?
Um, Steve, we know because they have been designated as not being enmies, by the Bush administration. If the President designates that they are not enemies, which Bush did, then they are not enemies. This isn't debatable. The laws of war are clear on this stuff.
I suppose Obama could overrule Bush's designation--based on no evidence--but until he does that, these guys are not enemies. Period.
nerpzillicus:
And I think this gets back to something we have probably debated here before – if you are right, and the world is a war zone, then you are fine with Obama grabbing you from Arkansas and putting you in Gitmo with no process or habeas, right?
Yes we have. It's a ridiculous premise. Earlier, you accused me of making an extreme case on terrorists. In the eight years since 9/11, name me one American who has had this done to him by Bush.
I will deny this. The world is not a war zone. We are not in World War III because 19 guys with box cutters committed an atrocious act. Calling it a war gives these guys far too much credit. They are criminals and cowards. The Republic is not in existential jeopardy. We are not at war with Bosnia. If the world is a battlefield, and we have to give up the rule of law to fight it, Al Qaeda has already won.
I refuse to accept this fallacious reasoning. We are not at war anywhere but Iraq and Afghanistan. Even there, we are not “at war” since no declaration of war has been made. But I would certainly accept many areas in those two countries count as a battlefield. Nowhere else.
While you are correct that Al Qaeda terrorists are criminals and cowards, we are at war with them, and at war with them everywhere we find them. This is what is in the 2001 AUMF that was drawn up by Congress. It isn't up to you to refuse to accept this because it is what it is. It may not be a war fought like WWII, but it is a war nonetheless, and it is going on throughout the world. It isn't up to you to decide on your own whether the U.S. is at war or not. That's like me saying "John McCain is the President of the United States because I voted for him." That isn't going to fly. And neither is your decision to refuse to accept that the U.S. is at war.
nerpzillicus:
Let's go with the example of Murat Kurnaz...When the government claims to have evidence against you, but won't reveal it, and then they accidentally reveal it, and the evidence is actually exculpatory, well, call me old-fashioned, but that kinda shows the CSRTs were, well, show trials.
Did you actually read this piece that was in the Wikipedia entry? Or how about this one that I found? You know what they say? That the German government under Gerhard Schröder blocked Kurnaz's release for four years. The CSRTs weren't involved.
Simple, Boumediene v. Bush, “Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.” Section I of the opinion.
That isn't evidence. Both the 2005 DTA and the 2006 MCA had provisions whereby the DC Circuit would hear appeals after a final decision of a CSRT. But thanks to the Supreme Court, all that, including the CSRTs, were delayed until after the Hamdan and Boumediene rulings. It is very possible that the DC Circuit would have come to the same conclusion had the courts not unconstitutionally intervened and delayed the whole thing to get to that point.
You still haven't provided evidence that the Bush administration was trying to establish show trials.
A.L.:
Um, Steve, we know because they have been designated as not being enmies, by the Bush administration.
Last year. Not in 2001 or 2002, around the time they were captured, but in 2008.
Last year. Not in 2001 or 2002, around the time they were captured, but in 2008
How is that relevant? The point is that they are specifically designated not to be enemies. We therefore have no basis to continue holding them. No criminal basis. No law of war basis. Nothing.
nerpzillicus:
Erroneous or not, that's the law. Common Article 3 applies to detainees from this conflict. Period. I am more than willing to debate the merits of the case, but there is no question about what the law is.
The case has no merit because of the loophole. You're happy when one innocent man is released because of the Common Article 3 loophole, right? That's fine. If 19 guilty terrorists, the number of terrorists that killed 3000 on 9/11, are set free during this war also due to the Common Article 3 loophole and kill another 3000, would you say what you said earlier:
I don't know if people have been killed because of the reenforcement of the rule of law...
What if you did know those killed?
That's a less outrageous premise than Obama's FBI swooping into Arkansas to pick me up.
A.L.:
We therefore have no basis to continue holding them.
Earlier, I provided a link that stated that the DC Circuit had ruled that the court couldn't order the Uighers released into the U.S.; I believe the Uighers appealed to the Supreme Court. I don't know if they were going to take the case this session, but I also had another link that showed that the Obama administration had filed a motion with the Supreme Court not to take the case. So if they weren't going to be released in the U.S. anytime soon, then the Obama administration had the right to hold the Uighers until finding someplace suitable for them. Which he did. And the reason he did so was to maintain his purely political (and incompetent) decision to close Gitmo within a year, all without a plan on how to do it and without any political backing (which he still doesn't have), which may not have occurred had the Court gotten involved.
Steve,
You're still not getting it. The Court said that the Obama administration couldn't release the Uighars in the U.S. (i.e., set them free in the U.S.). It didn't say that they couldn't be detained here pending relocation elsewhere, just as they are currently being held in Gauntanamo. The location of their captivity is completely irrelevant. Obama would be under the same obligation to find somewhere to put them whether or not he wanted to close Guantanamo.
A.L.:
It didn't say that they couldn't be detained here pending relocation elsewhere, just as they are currently being held in Gauntanamo.
Thanks for clarifying.
But that leads to more questions. If, as you say, he could detain the Uighers in U.S., why didn't he? I mean, the DC Circuit opinion was written four months ago. Why would Obama keep the Uighers in Gitmo until the time they go to Palau if all he had to do was take them from Gitmo to the U.S. four months ago and then try to get them sent somewhere? That doesn't make sense. Unless he still wasn't legally allowed to detain them in the U.S., as you assert, or some other reason having nothing to do with the law.
Steve, Obama didn't move them to the U.S. because Guantanamo is still open, and therefore he didn't need to. They were hoping to find a country that would take them before the base closed. But if they hadn't, they simply would have moved them to a facility in the U.S.
The plan to close the base did not put any added pressure on them to find an accepting country.
SteveAR-
Erroneous or not, that's the law. Common Article 3 applies to detainees from this conflict. Period. I am more than willing to debate the merits of the case, but there is no question about what the law is.
The case has no merit because of the loophole.
I'm not sure what loophole you are even talking about, and I really don't understand how a Supreme Court decision has “no merit.” If you disagree with the analysis, you have the right to your opinion. But Hamdan is the law. I guess I could argue Bush v Gore has no merit, and therefore Al Gore has been President for the past eight years, and everything is coming up roses. Hamdan is the law. Anything else is delusional.
You're happy when one innocent man is released because of the Common Article 3 loophole, right? That's fine. If 19 guilty terrorists, the number of terrorists that killed 3000 on 9/11, are set free during this war also due to the Common Article 3 loophole and kill another 3000, would you say what you said earlier:
I don't know if people have been killed because of the reenforcement of the rule of law...
What if you did know those killed?
That's a less outrageous premise than Obama's FBI swooping into Arkansas to pick me up.
First, the innocent are released because of the reinstatement of the rule of law, and the return of an impartial arbitor's determination of the legality of a detention. The Great Writ, with a history of hundreds of years, allows this, and prevents the tyranny of an executive who thinks he is above the law, and incapable of mistakes.
The difference is I accept that as a possible result of my legal analysis of the situation. No matter how implausible you think Obama coming to get you and locking you up with no review, it is the power you have given him. It is the logical conclusion from your premise. Don't blame me if it is ridiculous or outrageous, you're the one promoting the idea that the President can seize anybody, call them a terrorist, and lock them up in Gitmo with no judicial review. You haven't presented a reason why the President couldn't do this. I don't think Bush ever did this (except for Padilla and Al-Marri), nor do I think Obama would. But what's to stop him? And the point, of course is to prove your analysis wrong, by contradiction. Your claims lead to this ludicrous result. Therefore, either you accept that the President can do this, or you accept that your analysis is incorrect. Tell me why, under your theory of a world-wide war zone, the President's ability to omnipotently designate someone an enemy combatant, and no judicial review available, Obama could not do just this.
Another difference is that we have (or are in the process of releasing) 17 Uighurs, and Boumediene and four others. That is twenty-one souls who have had years of their lives taken from them for no reason. Your proposed legal gulag would have forced them to remain there indefinitely, probably until their deaths. I'll accept the potential of a bad guy getting released, and his subsequent killing of innocent people. That is what I believe, that is what I propose, and that is what I would have to live with. Do you accept your theory's consequent robbing of innocent mens' lives? How many of them need to have their lives stolen from them before it bothers you? Is it okay to steal the lives of innocent men to hypothetically save others? Who gets to decide which innocent men will get to make this sacrifice? Why does he or she get that kind of power?
SteveAR-
While you are correct that Al Qaeda terrorists are criminals and cowards, we are at war with them, and at war with them everywhere we find them. This is what is in the 2001 AUMF that was drawn up by Congress. It isn't up to you to refuse to accept this because it is what it is. It may not be a war fought like WWII, but it is a war nonetheless, and it is going on throughout the world. It isn't up to you to decide on your own whether the U.S. is at war or not. That's like me saying "John McCain is the President of the United States because I voted for him." That isn't going to fly. And neither is your decision to refuse to accept that the U.S. is at war.
So could we have invaded Bosnia to get Boumediene? Were we at war with Bosnia? Do you really believe the AUMF gives the executive the power to invade any country? If not, how are we at war everywhere? What about the limitations of “appropriate and necessary force”? Do you really believe the AUMF trumped every other law on the books? If there was some Al-qaeda in Britain, could the President have invaded that country too, since the world is a war zone? Just follow your claims to their conclusions.
Let's go with the example of Murat Kurnaz...When the government claims to have evidence against you, but won't reveal it, and then they accidentally reveal it, and the evidence is actually exculpatory, well, call me old-fashioned, but that kinda shows the CSRTs were, well, show trials.
Did you actually read this piece that was in the Wikipedia entry? Or how about this one that I found? You know what they say? That the German government under Gerhard Schröder blocked Kurnaz's release for four years. The CSRTs weren't involved.
Oh, so the CSRT didn't declare him to be an enemy combatant? And since Germany acted improperly, it's okay for us to? Did the Bush administration acknowledge he was innocent back in 2002, or did they hide the evidence as classified? I don't care whether Germans acted cowardly, I am talking about the US. Try reading it again.
SteveAR-
Simple, Boumediene v. Bush, “Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.” Section I of the opinion.
That isn't evidence. Both the 2005 DTA and the 2006 MCA had provisions whereby the DC Circuit would hear appeals after a final decision of a CSRT. But thanks to the Supreme Court, all that, including the CSRTs, were delayed until after the Hamdan and Boumediene rulings. It is very possible that the DC Circuit would have come to the same conclusion had the courts not unconstitutionally intervened and delayed the whole thing to get to that point.
You still haven't provided evidence that the Bush administration was trying to establish show trials.
This does not make any sense. What was the DC Circuit going to do? If the CSRTs were constitutional, the evidence permitted there would support the finding of the individual as an enemy combatant. (that was the entire purpose of the CSRTs) The reviewing Court isn't supposed to reweigh the evidence, all it was going to do was confirm that the CSRTs followed the procedures prescribed to it. Unless the DC Circuit struck down the system, it would have affirmed the individual results. You're really reaching here.
There was not going to be any real trial due to the evidentiary procedures. That cannot be disputed. An appellate court would have to either strike down the system, or affirm the CSRT determination, because, since all of the evidence is classified and unconstestable, the CSRT reaches the “correct” conclusion. It's called “stacking the deck” - if you make the rules in such a way that a certain conclusion will always be reached, there will be no error within the proceeding itself. The CSRTs were a sham, the textbook definition of a system created to provide a veneer of legitimacy, but to have the results preordained.
The end of my comment you cite, but exclude the end of read “He couldn't see the evidence against him (including testimony gained from people under torture), he had no counsel, he couldn't cross-examine, he couldn't subpoena, he did not get a list of the specific charges against him, hearsay was outrageous, etc., etc, etc”
What is the purpose of all of these changes to the common criminal procedure if not to ensure a certain result? And since we have seen, case after case, of the flaws in the system, I would say the burden is on you to show the system would have worked, since, to the extent it did get to function, it failed miserably.
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SteveAR-
But that leads to more questions. If, as you say, he could detain the Uighers in U.S., why didn't he? I mean, the DC Circuit opinion was written four months ago. Why would Obama keep the Uighers in Gitmo until the time they go to Palau if all he had to do was take them from Gitmo to the U.S. four months ago and then try to get them sent somewhere? That doesn't make sense. Unless he still wasn't legally allowed to detain them in the U.S., as you assert, or some other reason having nothing to do with the law.
Obama, and Bush, were, at all times, perfectly allowed to detain people in the US. Bush chose Gitmo because he thought it could be a legal black hole. When it turned out it wasn't, most of its usefulness expired (thus the transfers to Bagram, in the hopes of another consequence-free zone).
I think A.L. is being a little generous to Obama here, because he is cynically keeping innocent prisoners in Gitmo because one of the contentions the government has is that the Courts cannot force it to bring non-citizens from outside the US borders into the country. This would violate immigration laws, which the Adminstrations have argued are a plenary power of Congress, thus Habeas cannot tramp on it to force release from a foreign territory into the US. If the prisoners were actually located in the US, this particular defense would evaporate. Since the Obama administration is currently attempting to stall and/or avoid the Supremes from ordering releases into the US, they want to keep the defense alive, stall with it through the courts, and hopefully ship all the innocent guys out of Gitmo before a challenge can actually get decided.
Since logically, the Court must be able to force the release of a person detained not on US soil into the US for habeas to have any power whatsoever, Obama probably knows what would happen if the court heard the case. Thus, Sotomayor's opinion in Arar is of intense interest to me, since we do not have a good picture of what kind of judge she will be on executive power questions.
We're in a real shooting war
And yet you call Abdulhakim Muhammad a "terrorist" for shooting a soldier at a military facility. Do you even try to keep your views internally consistent?
In case you haven't noticed, conservatives are mocking everything Obama does
You can stop right there, really. Conservatives are mocking everything Obama does and they will continue to mock everything Obama will do, regardless of how much it's exactly what they were doing when they were in power. It has nothing to do with what Obama does. Conservatives are simply devoid of ideas; everything they did when in power turned out to be a terrible disaster. Now they can only cry as they continue to deny reality.
nerpzillicus:
I'll accept the potential of a bad guy getting released, and his subsequent killing of innocent people. That is what I believe, that is what I propose, and that is what I would have to live with. Do you accept your theory's consequent robbing of innocent mens' lives?...Is it okay to steal the lives of innocent men to hypothetically save others?
Look at that statement of yours. You say "I'll accept the potential of a bad guy getting released, and his subsequent killing of innocent people." Subsequently you ask me a question you should be asking yourself, "Do you accept your theory's consequent robbing of innocent mens' lives?" If a guilty terrorist is wrongly released and kills an innocent man, wasn't that innocent man just as robbed as the innocent man locked up? I would say it's worse; the locked up innocent man has a chance of being released, while the innocent man killed by a wrongly released guilty terrorist has already had his life stolen. However, by your own statement, you accept your theory's consequent robbing of innocent mens' lives. It isn't hypothetical either; innocent people have already been killed due to the release of guilty terrorists.
Here's the other thing. Whether you accept it or not, the U.S. is at war. That is the reality. You ask:
How many of them need to have their lives stolen from them before it bothers you?
In a war, innocents die far too frequently. War can never be clean no matter how much we want it to be. It's a matter of assigning blame. Since Al Qaeda started this war, any innocents killed is on their hands, not that of the U.S., especially since the U.S. isn't engaging in a type of war that could have turned Afghanistan into a crater within a month, killing everyone and everything, in order to gain victory.
Additionally, Bush didn't order a mass roundup of Americans (citizens and legal immigrants) and put them into Gitmo or anywhere else (and if you remember, Padilla's detention in a military base was sanctioned by the Supreme Court; plus, he was found guilty of his crimes; Al-Marri pled guilty to a charge of conspiracy). Earlier, you accused Bush of being "drunk on power" and the CSRTs of being (paraphrasing) Soviet-style show trials. You still haven't provided one iota of evidence that show's it's true other than one guy who was actually kept too long in Gitmo due to the actions of the German government and not the CSRTs, court rulings that ended up delaying the start of any CSRTs, and two Americans picked up as terorrists who ended up being convicted of terrorism-related crimes. At this point, I can see that the Bush administration wasn't trying to ram down anything that has the appearances of show trials whatsoever, mostly because the federal court system unconstitutionally botched the whole process up.
Lastly, dropping the A-bombs on Japan was justified as potentially saving a million American lives if an invasion needed to take place to force the Japanese to surrender. It also means millions of other Japanese were spared as well. This is what happens in a war. It is always dirty no matter how clean people want it to be. The Japanese government could have surrendered prior to Aug 6, 1945, but they didn't. Any deaths that occurred afterwards is on their hands, not that of the U.S. I'm not proposing to do the same thing against Al Qaeda, but they can surrender anytime, but choose not to. Therefore, any deaths associated with this war is attributable to them. Period.
nerpzillicus:
Who gets to decide which innocent men will get to make this sacrifice? Why does he or she get that kind of power?
The President and Congress, via the U.S. Constitution. The President as Commander in Chief, and the Congress as the authorizer and appropriator of major military action.
The Great Writ, with a history of hundreds of years, allows this, and prevents the tyranny of an executive who thinks he is above the law, and incapable of mistakes.
In history, the Great Writ was never extended to captured foreign enemy combatants, those at war with the country who live by it, until Boumediene. Again, the CSRTs, especially after the 2005 DTA and the 2006 MCA, were never allowed to work their course up to the DC Circuit. So to blame the CSRTs is not valid by any stretch of the imagination.
nerpzillicus:
So could we have invaded Bosnia to get Boumediene? Were we at war with Bosnia? Do you really believe the AUMF gives the executive the power to invade any country? If not, how are we at war everywhere? What about the limitations of “appropriate and necessary force”? Do you really believe the AUMF trumped every other law on the books? If there was some Al-qaeda in Britain, could the President have invaded that country too, since the world is a war zone? Just follow your claims to their conclusions.
You insist on locking into the idea that a real war is somehow something where two armies primarily battle it out against each other. No two wars are the same and you know it. In the present war, the U.S. doesn't generally battle it out with Al Qaeda armies, mostly because Al Qaeda doesn't fight that way. But that doesn't mean it isn't a real war.
Your points about Bosnia and Britain have no merit since the U.S. has already attacked one its (erstwhile) allies, Pakistan, with airstrikes; both the Bush and Obama administrations have done so. But we don't have to do the same with Bosnia and Britain, because this war isn't being fought like you think a war should be fought.
Did the Bush administration acknowledge he was innocent back in 2002, or did they hide the evidence as classified? I don't care whether Germans acted cowardly, I am talking about the US. Try reading it again.
No sir, you try reading it again. It appeared that the Bush administration was actually already to release Kurnaz in 2002, but pressure from the German government kept it from happening. If you want to call Bush a coward, fine, although I believe you'd be completely wrong. But that wasn't the fault of the CSRTs. Not long after Merkel came to power, Kurnaz was released back to Germany without a fuss from the Bush administration.
There was not going to be any real trial due to the evidentiary procedures. That cannot be disputed.
You're guessing.
What is the purpose of all of these changes to the common criminal procedure if not to ensure a certain result?
That's the problem. These aren't common criminals. Treating Al Qaeda terrorists as common criminals was a failure when it was attempted and it did nothing to stop terrorism, nor stop the 3000 that died on 9/11. You said earlier:
I'll accept the potential of a bad guy getting released, and his subsequent killing of innocent people. That is what I believe, that is what I propose, and that is what I would have to live with...Who gets to decide which innocent men will get to make this sacrifice? Why does he or she get that kind of power?
Who are you to say that innocent men will have to make the sacrifice in order to stop terrorism by treating terrorists like common criminals and dealing with them via a proven failure, the law enforcement model? Don't you think that the constant killing of innocents by terrorists actually leads to a degradation of the rule of law if the law fails to protect those innocents?
And since we have seen, case after case, of the flaws in the system, I would say the burden is on you to show the system would have worked, since, to the extent it did get to function, it failed miserably.
You haven't provided me with any evidence of failure. The only thing you've done is promote the failure of trying to tie Al Qaeda terrorists as common criminals, which was already done, and a bunch of cases that should have never gone through the courts. The last I checked, the Supreme Court isn't the Commander in Chief of the military nor the authorizer and appropriator of funds of military actions. You keep saying "abuse of power", "abuse of power". Where? The only ones abusing power are the courts.
Naked Bunny with a Whip:
Conservatives are mocking everything Obama does and they will continue to mock everything Obama will do, regardless of how much it's exactly what they were doing when they were in power. It has nothing to do with what Obama does.
It actually has to do with what Obama does. Obama made it a point during most of the campaign to run against Bush instead of McCain (it obviously worked), and highlight all of the supposedly "egregious" things of the Bush administration. After becoming President, Obama has done pretty much everything Bush did, and worse. I think conservatives mocking Obama for what Obama does is very justifiable.
SteveAR-
I have a lot of work to do, so I don't have time to respond to much of what you said just now. and, judging from the way you ignore facts, no good will come from it either. So, I'll respond to a little bit, and see if you actually put forth a good faith response based in reality. I'll debate law, I'll debate policy, I won't debate facts.
No sir, you try reading it again. It appeared that the Bush administration was actually already to release Kurnaz in 2002, but pressure from the German government kept it from happening. If you want to call Bush a coward, fine, although I believe you'd be completely wrong. But that wasn't the fault of the CSRTs. Not long after Merkel came to power, Kurnaz was released back to Germany without a fuss from the Bush administration.
Then why did his CSRT classify him as an enemy combatant and member of al-Qaeda in fall of 2004?
http://www.washingtonpost.com/wp-dyn/articles/A3868-2005Mar26.html
From the oral argument in Boumediene:
You have the unredacted version of Judge Green's district court opinion.
I don't.
She discusses... she does address the adequacy of the substitute.
And she addresses the case of two individuals.
One is Mr. Ait-Idir, who is my client, and you have both in her opinion and our brief this truly Kafka-esque colloquy at his hearing in which he is accused of associating with a known Al-Qaeda operative, which he denies, but he can't be told the name.
Mr. Kurnaz is the other Petitioner who is discussed in her brief.
He was a Petitioner in this Court, but he has since been released by the government because of the fact that he had what the CSRTs won't give him, which is a lawyer.
He was told, two years after he was detained... he's a German permanent resident... he was told at his CSRT, as many of these individuals were not, that he was being held because he associated with a known terrorist.
And he was told the name.
He was told that he associated with somebody called Selcook Bilgen who, the government contended, was (a) a terrorist, who was... had blown himself up while Mr. Kurnaz was in detention... may I simply finish this account... while he was in detention and in a suicide bombing; and all that Mr. Kurnaz could say at his CSRT where he had no lawyer and had no access to information was I never had any reason to suspect he was a terrorist.
Well, when the government, in the habeas proceedings, filed its factual return in Judge Green's court, it filed as its factual return the CSRT record.
His counsel saw that accusation.
Within 24 hours, his counsel had affidavits not only from the German prosecutor but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden never involved in terrorism and fully getting on with his life.
That's what... and that evidence would not have been allowed in under DTA review.
It wouldn't have been in the CSRT, and it won't come in under DTA review.
And that's why it is inadequate.
That is the result of a CSRT. Even after the intelligence agencies determined Kurnaz was not a threat, nor a member of al-Qaeda, the CSRTs found him to be such, based on false information he could not challenge appropriately until his habeas hearing. Then, the case against him evaporated in hours.
So, imprisoned for four years, and within hours of an attorney actually getting to see the “evidence” that convinced a CSRT he was an enemy combatant, he was unquestionably exonerated.
Whenever you want to join me in reality, feel free. But I simply can't discuss this with you when you choose to ignore anything that infringes upon your fantasy world.
nerpzillicus:
I have a lot of work to do, so I don't have time to respond to much of what you said just now. and, judging from the way you ignore facts, no good will come from it either. So, I'll respond to a little bit, and see if you actually put forth a good faith response based in reality. I'll debate law, I'll debate policy, I won't debate facts.
Don't bother. Anyone who seems to refuse to accept that we're at war doesn't want to debate the facts. Thank you for your time.
And A.L., thanks for the use of this thread. I appreciate it.
We can draw some conclusions from what's been said:
1. SteveAR does not believe "innocent until proven guilty", except for Bush administration officials, and doesn't even agree with "until a crime has been committed, no crime has been committed."
Yet, hypocritically, he's argued continually on other threads that Scooter Libby didn't commit a crime, even though he was found guilty by a jury.
He could step right into George Orwell's 1984 and be happy there. Especially since there are no Democrats there (presumably they're all in Eastasia or Oceania.)
2. It's fine, according to him, to mock Obama for what he does, although, in SteveAR's opinion, Obama has done pretty much what Bush did. It's pretty hard to imagine a more open display of hypocrisy.
3. Although the Congress and Executive are above the law, and the courts have no power beyond what the other branches concede to them, any time the courts issue an opinion counter to what SteveAR believes, it's "abuse of power."
You can argue with a liar and expose the lies. You cannot argue with a hypocrite, as truth is whatever they say, even when it contradicts what they've said before.
This post has been removed by the author.
SteveAR-
nerpzillicus:
I have a lot of work to do, so I don't have time to respond to much of what you said just now. and, judging from the way you ignore facts, no good will come from it either. So, I'll respond to a little bit, and see if you actually put forth a good faith response based in reality. I'll debate law, I'll debate policy, I won't debate facts.
Don't bother. Anyone who seems to refuse to accept that we're at war doesn't want to debate the facts. Thank you for your time.
And A.L., thanks for the use of this thread. I appreciate it.
Two things:
I never said we were not at war (though there is no declared war), I said the battlefield is not world-wide. Iraq, Afghanistan (arguably the ungovernable portions of Pakistan). That's it. That's the battlefield.
Second, for once, I'll agree with you. I do not want to debate facts. If a "fact" can be debated, it ain't a fact.
Good day.
nerpzillicus:
I never said we were not at war (though there is no declared war), I said the battlefield is not world-wide. Iraq, Afghanistan (arguably the ungovernable portions of Pakistan). That's it. That's the battlefield.
Second, for once, I'll agree with you. I do not want to debate facts. If a "fact" can be debated, it ain't a fact.
Here's the first fact:
Al Qaeda's Declaration of War on the U.S., Feb. 23, 1998. Included:
The ruling to kill the Americans and their allies -- civilians and military -- is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque and the holy mosque [Mecca] from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim.
They declared war on us 3 1/2 years before 9/11, not the other way around. They didn't restrict their activities to Afghanistan, Pakistan, or Iraq.
The second fact:
The 2001 AUMF, which almost every House member voted for, and was passed in the Senate unanimously. If you note, there is no geographic restriction on where we can fight Al Qaeda. There is also no restriction on the tactics that the President as Commander in Chief can use to fight them with. Meaning that the President isn't restricted to having the military fight pitched battles in order to defeat Al Qaeda. This is especially true since Al Qaeda's methods of fighting aren't anything that resembles the rules of war.
I don't want to debate facts either. But you have to know and accept the facts first.
SteveAR-
I have no problem with the fact of the existence of the AUMF. I don't read it as broadly as you, since it is not a declaration of war, and since the Courts have repeatedly held other laws were not contravened due to it. And it does have limits (“all necessary and appropriate force”).
(I don't take a declaration of war from a bunch of yahoos in caves as a legally recognized declaration. You give these guys far too much respect. Do you realize the number of fringe groups throughout the world who have done this to us also?)
For instance, I don't think the President could carpet bomb a suburb of London, just because he knew an al-Qaeda was there. The Congress did not grant him that authority. If you accept there are clearly limits to the authority in the AUMF (which you do, unless you think we can carpet bomb a suburb of London), you must determine what those limits are. There is a standard presumption in the law, known by Congress, that two laws should be read, as much as possible, in harmony, unless it is clearly impossible to do so. Therefore, the presumption should be that Congress did not repeal any law due to the AUMF, and unless and until a law on the books is inherently contradictory to the AUMF, those laws are still good.
That being said, you have set up a strawman, (and an incredibly inconsistent thesis) by insinuating that I require “the military fight pitched battles in order to defeat Al Qaeda.” I never said such a thing. What I have said is that there are few real battlefields, where the laws of war apply instead of governing domestic law. For instance, on a battlefield in Afghanistan, soldiers can most assuredly detain people without Miranda, etc. But when kidnapping Boumediene, he was not on a battlefield, nor do the laws of war apply where he was taken. Thus, the President is bound to follow domestic law and treaty law in that action.
You want to have your cake and eat it too – “Al Qaeda's methods of fighting aren't anything that resembles the rules of war”, yet the President gets to utilize war powers to fight them, and you compare any theory I put forth to what happened with the Japanese and Germans. 'It's not like other wars, there aren't pitched battles with armies, but we'll treat the detention like other wars, and create a shadow judiciary system that didn't even exist then.'
So, yes, a state of conflict exists between ourselves and a number of militant organizations. And yes, it isn't like a number of wars in the past. Which is why the rules from those wars (and the extreme perversions of them from John Yoo) do not get thoughtlessly applied to this conflict. Picking up a guy outside of a courthouse in Bosnia is not “on a battlefield.” The laws of war do not apply in a sovereign nation's territory that is not a belligerent. You accuse me of not understanding the facts, I cannot see how your world view is anywhere close to reality. Calling the location in Bosnia where Boumediene was before his kidnapping a “battlefield” is a transparent falsehood. The “war on terror” is no more a “war” than the “war on drugs.” Now, when we have actual military operations in Afghanistan – that's a war. Iraq – war.
But even if your assertion of a world-wide state of war were true, you have failed to show that the President is suddenly unhinged from the law. As I said, habeas still worked in the Civil war, the Court shot down Truman's seizing of the steel mills in the Korean War, etc. We are not under martial law, and the Constitution is still operable. Uttering the magic phrase “war”, and clicking your heels together three times does not suspend the Constitution or put it in some box for when it's safe.
Now, you have still not answered my questions, or responded to my facts. The CSRTs still determined Kurnaz was an enemy combatant and an associate of al-Qaeda two years after intelligence cleared him (2004). They did this by prohibiting him from having a lawyer, not permitting cross-examination, not supplying him with the evidence against him, not letting him know the actual charges against him, no limits on hearsay. Once he had counsel, the miscarriage of justice was quickly corrected. The habeas hearing not only showed how weak the “evidence” for this was, but showed that the government actually had exculpatory evidence in its possession at the time of the CSRT determination. Those are the facts, and they are undisputed.
Square that with “You haven't provided me with any evidence of failure.”
nerpzillicus:
(I don't take a declaration of war from a bunch of yahoos in caves as a legally recognized declaration. You give these guys far too much respect. Do you realize the number of fringe groups throughout the world who have done this to us also?)
And you give their capabilities far too little respect. After their supposedly not "legally recognized declaration", they killed almost 300 people and wounded 5000 more in the U.S. embassies in Kenya and Tanzania; killed 17 on the U.S.S. Cole when the Cole, had the U.S. taken the declaration seriously, would have blown the terrorists out of the water; and killed 3000 more and destroyed two huge buildings, a bunch of smaller ones near it, and damaged the Pentagon on 9/11. These weren't just an ordinary "bunch of yahoos in caves". Plus, you don't have to respect the terrorists, but you have to respect the terrorists' capabilities, which the U.S. didn't do before then.
For instance, I don't think the President could carpet bomb a suburb of London, just because he knew an al-Qaeda was there.
You tell me about my extreme examples, yet your examples are not only extreme, but nonsensical. I'll add this, as I mentioned earlier, we are conducting airstrikes, albeit not carpet bombing, into Pakistan, which is still an ally of the U.S. government. It is obvious that Congress doesn't have a problem with that.
But when kidnapping Boumediene, he was not on a battlefield, nor do the laws of war apply where he was taken. Thus, the President is bound to follow domestic law and treaty law in that action.
There you go again, making invalid accusations. Rendition was a tool created in 1995, and much of it was declassified in 1997, so it wasn't a mystery as to what it was about. As far as I can tell, no court action has pronounced it illegal, nor has Congress opposed its use, especially while operating under the 2001 AUMF.
Picking up a guy outside of a courthouse in Bosnia is not “on a battlefield.” The laws of war do not apply in a sovereign nation's territory that is not a belligerent.
In Bosnia, the U.S. had and has stationed troops as peacekeepers; we didn't "invade" that country, violating its sovereignty. And if you read Judge Leon's order that released Boumediene, page 3 states:
On January 17, 2002, upon their release from prison in Sarajevo, petitioners were detained by Bosnian authorities and U.S. personnel.
So while the Bosnian government didn't have enough to hold Boumediene and the others, they didn't seem to have a problem letting the U.S. have them, at least not at the time.
Even so, the rendition program set up in 1995 was still in force, and it was (and is) a legitimate tactic that could be used to fight Al Qaeda, along with regular military operations. Even Obama has left open a gaping loophole in his Executive Order regarding rendition; he didn't end the practice.
As I said, habeas still worked in the Civil war...
Habeas was pretty much trashed during the Civil War, and any questions regarding Lincoln's suspension of it weren't resolved until the war was over and Lincoln was dead.
...the Court shot down Truman's seizing of the steel mills in the Korean War, etc.
Yeah, but Congress was never involved in any authorization of that war, which is one of the reasons the Court decided the way it did.
(It's interesting you mention this, considering the way Obama the constitutional scholar managed to seize Chrysler and GM, and those seizures had nothing to do with a war.)
I do want to respond to your other bits (Kurnaz, my belief that Hamdan left a loophole regarding Common Article 3, etc.), so I'm not ignoring them. But I have some stuff I have to take care of, and will get back to you perhaps tomorrow.
SteveAR-
For instance, I don't think the President could carpet bomb a suburb of London, just because he knew an al-Qaeda was there.
You tell me about my extreme examples, yet your examples are not only extreme, but nonsensical. I'll add this, as I mentioned earlier, we are conducting airstrikes, albeit not carpet bombing, into Pakistan, which is still an ally of the U.S. government. It is obvious that Congress doesn't have a problem with that.
Fair point. Very well, do you think we could do a targeted strategic bombing of a house in a London suburb? As I said, Iraq, Afghanistan, and the tribal regions of Pakistan are battlefields. Do you think we can conduct the same tactics as we do in those three areas elsewhere, like Britain, Germany, or Bosnia? If we can't perform the same state of war actions there as we do on real battlefields, why would the same laws of war apply to both places with captures?
nerpzillicus:
Very well, do you think we could do a targeted strategic bombing of a house in a London suburb?
Absolutely, provided the circumstances for doing so are the same as they are in Pakistan. This doesn't mean the U.S. could do so willy-nilly, and the U.S. didn't do so with the attacks in Pakistan. Both the Musharraf and the current governments gave the OK for the U.S. to be able to do what they had to. Considering the lightweight complaints that came from the Pakistani government indicates they knew about them.
I want to address Hamdan, but will have to hold off on your other items until later. I will preface this with the notion that I accept Hamdan as law and am not disputing that fact.
With that said, Hamdan is a mistake. As you very well know, Supreme Court Justices are not above making terrible mistakes that the country has to deal with for years; Justices are human and it happens.
In the case of Hamdan, Justice Stevens had no business saying that Common Article 3 applied to any of the detainees. As mentioned in the case, Common Article 3 has to do with a war not of an international nature; ie., a civil war or rebellion. It is meant to insure that anyone captured in that kind of war and who was to be hit with war crimes by the opposing party would receive the protections of the laws of that country. The problem is, and this came out in the DC Circuit ruling, our war with Al Qaeda was definitely one that was international in nature and not covered by Common Article 3, but Common Article 2. His arguments for thinking that the reasoning used by the DC Circuit in asserting Common Article 3 were erroneous has no merit, nor do Stevens arguments cite any relevant precedent.
Stevens (as well as Kennedy in his concurrance) extended that to include the tribunals set up by the Bush administration. For some reason, Stevens mistakenly decided that the Geneva Conventions meant that the individual rights we enjoy as Americans also extended to foreign nationals who are at war with us. In the entire history of warfare, that has never been the case; captured uniformed soldiers have never been allowed to file a habeas petition challenging their detention, at least not while a conflict is still occurring. The Geneva Conventions are an agreement between nations, and contain remedies that are left to diplomats and politicians, not our judiciary. Any issues with the Bush tribunals would be taken up at the diplomatic level as covered by Common Article 2; Common Article 3 has nothing to do with this, and it isn't up to our Judicial Branch to do the job of foreign diplomats, which is what the majority did.
nerpzillicus,
One other thing not mentioned by the majority in this case, nor in Rasul, Hamdi, or Boumediene. While all of these cases mention the 2001 AUMF, not one mentions Al Qaeda's declaration of war upon us three years prior to 9/11. It doesn't matter that it shouldn't be respected just because those in Al Qaeda are criminals and cowards; they were already at war with us. I already highlighted what they did prior to 9/11. We were at war even though our government tried to avoid it. It is inexcusable that those who ruled in the majority in every one of those cases ignores this fact, and how effective Al Qaeda was in engaging in their type of warfare against Americans.
Now, I can understand their concern about certain aspects of the tribunal setup, but that didn't give them license to issue any kind of ruling. Stevens makes it a point to mention UCMJ Article 36, which authorized the President to set the rules of military commissions. But his complaints about it are only due to his erroneous assumption that the tribunals violated Common Article 3, which they most assuredly shouldn't have. If anything, the only thing I can see is that Hamdan was charged with conspiracy, which in and of itself isn't a crime by the laws of war. That is as far as it should have gone, in my opinion.
Like I said, I'll get to the other items later, and am not ignoring them.
nerpzillicus:
The CSRTs still determined Kurnaz was an enemy combatant and an associate of al-Qaeda two years after intelligence cleared him (2004). They did this by prohibiting him from having a lawyer, not permitting cross-examination, not supplying him with the evidence against him, not letting him know the actual charges against him, no limits on hearsay. Once he had counsel, the miscarriage of justice was quickly corrected.
Your arguments that the CSRTs are invalid, and that one of the reasons for this is the case of Murat Kurnaz, doen't hold water. It's not that what you said above wasn't true; I accept it as a fact. However, you don't have all of the facts in this case.
Earlier, I linked to two pieces: a 2008 Christian Science Monitor piece (it is less than a month old), and a 2007 piece from Deutsche Welle. The CSM piece, which mentions but doesn't dwell on the involvement of the German government in regards to Kurnaz, says the following:
According to transcripts of testimony they later gave before Germany's parliament, the US and German intelligence agencies agreed that there was no evidence of links to terrorism and cleared him for release. But German officials, wary of looking soft on terrorism after a Hamburg cell was found to have played a key role in the 9/11 attacks a year earlier, blocked his return.
DW, being a German newspaper, goes into more detail:
German newspaper Süddeutsche Zeitung this week raised serious questions about the role played by the former German government led by Chancellor Gerhard Schröder in the affair surrounding the detention and release of ex-Guantanamo prisoner, German-born Turk Murat Kurnaz.
Citing confidential government documents it acquired, the daily reported that the previous government delayed Kurnaz's release from the US prison camp in Cuba. It added that in 2005 the government also hoped to received further information about Kurnaz from the American side that would "strengthen the case (against Kurnaz) for his support of international terrorism."
It looks like Schröder's German government had a hand in manipulating the U.S. into keeping Kurnaz at Gitmo. More:
It added that officials of Germany's BND Federal Intelligence Service who interrogated Kurnaz in Cuba in September 2002 had found no evidence linking him to any terrorist activity.
Faced with this information, Schröder's Social Democrat-Green Party government still tried to block Kurnaz' return to Germany after the 2005 federal elections, the paper said.
The paper's allegations were given further weight this week when Kurnaz' lawyer, Bernhard Docke, told a parliamentary inquiry in Berlin that the German Foreign Ministry only administered Kurnaz' case and wasn't proactive in freeing him.
Docke said he suspected that the government under then-Chancellor Schröder refused Kurnaz entry into Germany in the fall of 2002, when the US originally offered to release him from the prison camp.
More:
On Friday, two German newspapers reported that the US offer to release Kurnaz in 2002 -- which was refused by Germany -- came with several conditions.
For one, the US demanded that Kurnaz be monitored round the clock in Germany so that he would take up any terrorist activity, the Bild and Stuttgarter Nachrichten reported.
So it looks like the Bush administration wanted to release Kurnaz in 2002, only to see it blocked by the Schröder government.
To be continued...
This piece in Der Spiegel goes into further detail on the German government's investigation into Kurnaz. While
the piece doesn't say so specifically, you can assume that this is the intelligence information that allowed the CSRT to determine that Kurnaz be kept in Gitmo all those years, despite the fact that it looked like the Bush administration was ready to let Kurnaz go in 2002. It wasn't until after Angela Merkel became Prime Minister that Kunarz was allowed to go back to Germany.
It also looks like that even if Kurnaz had access to the evidence, and an attorney, his circumstances wouldn't have changed at the time. I would also speculate that they would have been worse for him since public knowledge about how dangerous the German government thought he was might have turned public opinion against Kurnaz. Again, that is just speculation.
It is possible to conclude that the Schröder government may have manipulated the CSRT that was established to keep Kurnaz in Gitmo since they did everything they could to keep him out of Germany. Does that mean the whole CSRT system was a complete mess? I would say no because even the regular justice system in the U.S. has been frequently manipulated by the government and defendents, and these manipulations don't always have to do with the process itself but by those who know the holes in the process. If the CSRTs are so bad as to be unusable, then one could say that our regular judicial system is just as bad and should be thrown out, and nobody is going to come out and do that.
It's the same with Boumediene and the Uighers. Boumediene and the others were picked up on suspicion of being tied to Al Qaeda. While Boumediene and most of his cohorts have been released, what you haven't said is that the key guy that was picked up, Bensayah Belkacem, still remains in Gitmo, on order from Judge Leon in the same order that released Boumediene and the others. Does that make Boumediene guilty? No, but it doesn't mean the government was wrong to hold them either.
Same with the Uighers. As I've mentioned, Al Qaeda declared war on the U.S. in 1998. Considering their success in attacking U.S. targets (including on 9/11), they weren't just run-of-the-mill terrorists. It is a fact that the Uighers went to Afghanistan in 2001 to get training from Al Qaeda so that they could go back and fight the Chinese government. It is impossible to believe they wouldn't have known about Al Qaeda's war on the U.S. after they got there. After their capture, there was every reason to hold them, even if their little group didn't want to fight the U.S. as they claimed. Had the U.S. not invaded Afghanistan, the Uighers would have remained there to get the training they need, and either got further enmeshed with Al Qaeda or gone back to China as they said they wanted to do. That may be just speculation, but getting training was the reason they went to Afghanistan in the first place.
To be continued...
One more bit.
Earlier you said:
Another difference is that we have (or are in the process of releasing) 17 Uighurs, and Boumediene and four others. That is twenty-one souls who have had years of their lives taken from them for no reason. Your proposed legal gulag would have forced them to remain there indefinitely, probably until their deaths. I'll accept the potential of a bad guy getting released, and his subsequent killing of innocent people. That is what I believe, that is what I propose, and that is what I would have to live with. Do you accept your theory's consequent robbing of innocent mens' lives?
My answer is is a conditional yes when it comes to those who don't live or have never lived in the U.S. being suspected of trying to attack it. My answer is conditional in that in the current war, there is no reason to suspect every single Muslim, over a billion of them, of wanting to attack the U.S. The relative few (and it is few) that have been captured weren't just picked up out of thin air for being Muslims; there was intelligence that said it was a possibility they were terrorists trying to attack the U.S. or U.S. interests. Both Presidents Bush and Obama have stated categorically that the U.S. is not engaging in a holy war, despite the fact that Al Qaeda wants it to look that way. But because this is a war, the traditional law enforcement methods don't apply, nor should they.
You can call it harsh and cold, or whatever phrase you would use, but I'm under no delusion (and I'm sure you're not either) that the enemy would kill you and me, and our families, despite the fact that we have probably never wronged any Muslims. And because this is a war, any empathy I may have regarding those possible innocents who have been picked up and put in Gitmo is overridden by how Al Qaeda wages war on the U.S. and everyone else.
Again, thanks A.L. for letting us continue our discussion.
I don't actually have anything to add to this discussion that hasn't been said by far more articulate and knowledgable people thus far. However I did want to comment that while it may be frustrating to argue with strawmen arguments the thorough and multifaceted explanations and views offered through this particular thread have done an enormous amount to clarify these issues for me.
Thank you A.L., nerpzillicus, et al. I am a better citizen for your work here.
I see SteveAR has reached the the endgame of the authoritarian defending the indefensible. That is, dogma. "it's a war!" -- in spite of the fact that only Congress can declare war, and only through a declaration of war.
Also, isn't it inconsistent to claim never to have harmed muslims, while vociferously supporting locking them up for life even if he doesn't even know if they're guilty?
He also says: "any empathy I may have regarding those possible innocents who have been picked up and put in Gitmo is overridden by how Al Qaeda wages war on the U.S."
I've always heard tell that collective guilt was counter to the tenets of the Christian faith. As well as Islam, Judaism, Hinduism, Buddhism, and Wicca. Apparently SteveAR is one of them pagans we hear about.
And who says they weren't part of Al Qaeda? Nobody knows, and nobody is or was willing to find out definitively.
You might want to do some primary source research if you are really concerned about an Al Quaeda connection.
You know, there are reams of testimony you can read. Such as http://www.dod.gov/pubs/foi/detainees/csrt_arb/Set_12_1179-1239.pdf, starting ca. pg42.
As far as I have read there is nothing to support the idea that the Uighurs were terrorists, "part of Al Quaeda,” or even remotely a threat to Mainland China. Maybe a few of the Uighurs expressed intent to "fight China,“ but I might say I want to "steal a million dollars." Does that mean I should be arrested for stealing because I expressed the intent to do so? At least one of the Uighurs stated in very compelling terms that he did not understand the "Arabs”--which I think he might be using loosely as a generic term for any foreign fighter in Afghanistan-- and explained why he wanted nothing to do with them. I believe it. There are pretty common prejudices about Arabs in China, probably even in Xinjiang. And it’s not like I haven’t heard persons from the middle East make bigoted statements against East Asian folk. (Truly, I believe not even a grand holy jihad could make Asian nations overlook cultural differences). I could go on and on, but I'll stop by saying that testimony suggests to me that even the Uighurs who said they wanted to "fight China" were desperately poor men or simply refugees who were biding their time in a war torn country , shooting at beer cans so to speak with a beat up AK-47, dreaming of getting to Turkey and the West. Apparently there are Uighur communities, re: Gastarbeiter, in places like Germany. Relative prosperity in the west and escape from tyrannical crackdowns (ethnic or otherwise) is the dream of many poor Asian working men and women. Try to imagine how those dreams were shattered when the Uighurs were scooped up by the Americans and placed in the torture prison called Gitmo.
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