Enemy Combatants

I'd missed this piece of demagoguery from John McCain about Barack Obama's response to the Supreme Court's ruling about enemy combatants:

"Senator Obama is obviously confused about what the United States Supreme Court decided and what he is calling for," McCain said in a statement issued by his campaign. "After enthusiastically embracing the Supreme Court decision granting habeas in US civilian courts to dangerous terrorist detainees, he is now running away from the consequences of that decision and what it would mean if Osama bin Laden were captured. Senator Obama refuses to clarify whether he believes habeas should be granted to Osama bin Laden, and instead cites the precedent of the Nuremburg war trials. Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremburg trials and what procedures were followed. There was no habeas at Nuremburg and there should be no habeas for Osama bin Laden. Senator Obama cannot have it both ways. In one breath he endorses habeas for terrorists like 9/11 mastermind Khalid Sheikh Mohammed and in the next he denies its logical conclusion of habeas for Osama bin Laden. By citing a historical precedent that does not include habeas, he sends a signal of confusion and indecision to our allies and adversaries and the American people."

I really think it's McCain who's confused here. If Osama bin Laden or anyone else were in the jurisdiction of a properly constituted international tribunal, the U.S. judicial system obviously wouldn't have the authority to rule on his status one way or the other. The ruling had to do, in part, with the Bush administration's silly effort to use the ambiguous status of Guantanmo Bay to hold people in American captivity while somehow also outside the reach of American law. A suspect who's genuinely in someone else's custody (rather than in the fake sense that the Gitmo detainees are in Cuba) is a whole other can of worms.

The other thing is that the right the Court gave the detainees is a pretty basic one -- a legal right to challenge the basis for having classified them as enemy combatants. In the case of bin Laden, this would be child's play -- the man issued a declaration of war against the United States. It's pretty clear that he's an enemy combatant.

To get a persuasive critique of the Court, McCain needs to rely on the names of individuals who are clearly enemy combatants -- guys like KSM and OBL. But in the case of those guys there'll be no problem proving that they're enemy combatants. To generate a good example of the decision creating a legal problem, McCain would need to name someone for whom there's no good evidence of his enemy combatant status. But a guy like that doesn't make for persuasive rhetoric. After all, if there's no sound basis for believing that he's an enemy combatant, why detain him?

Comments

It's easy to imagine the Bush adminstration claiming to be holding Osama bin Laden in Guantanamo. "Wait a minute," the guy says, "I'm not Osama, I'm well-known blog commentor Chris Ford!" Sorry, Mr. Ford . . . er . . . bin Laden--no habeas for you! Osama bin Laden, after all, is clearly an enemy combatant, and an unlawful one at that.

Posted by rea | June 23, 2008 3:04 PM

Your desire to apply Harvard-honed logic to these McCain talking points is really kinda funny.

McCain is trying to create a CNN headline with Obama and Osama in the same tag. And CNN will probably do it.

Posted by jvoe | June 23, 2008 3:12 PM

See today's AP story re the court decision on the Uighur prisoner. Six years at Gitmo and no basis for detention.

Posted by anonymous | June 23, 2008 3:18 PM

"There was no habeus ad Nuremburg." I have no idea if this is correct, but, um, if so, so the F what? Habeus is the absolute minimum right granted to an accused. The defendants at Nuremburg were put on trial, had defense lawyers, were entitled to examine the evidence presented by the prosecution, etc. All of that is MORE than habeus.

Posted by bobbo | June 23, 2008 3:21 PM

Obviously McCain is "confused" because the Supreme Court didn't grant a writ of habeas to anyone. All they did is hold that the relevant detainees could petition for the writ in the U.S. district courts, and then those courts can go ahead and grant or deny the petitions on the merits.

I'm just not sure whether McCain's confusion is tactical or genuine.

Posted by DTM | June 23, 2008 3:21 PM

I really think it's McCain who's confused here.

Matt, don't you know you aren't allowed to say "McCain" and "confused" in the same sentence?

Why do liberals hate old people?

Posted by ryan | June 23, 2008 3:23 PM

Re rea

Oh come on now. I'm sure that Mr. Ford looks nothing like Mr. bin Laden. Mr. Ford is probably closer to 5' 4" then Mr. bin Ladens' 6' 4".

Posted by SLC | June 23, 2008 3:23 PM

Well, obviously anyone who's been accused is a terrorist and needs to be locked up; after all, if they weren't a terrorist and loved freedom (freedom in general, obviously, not theirs personally), they'd understand that their being locked up indefinitely due to false accusations and misunderstandings was a small price to pay for maintaining the illusion of security and certainty in The War On An Abstract Noun. Attempting to obtain their release undermines the narrative, destroys public confidence, and is therefore ipso facto terrorism.

It's like when those Gitmo hunger-strikes and attempted suicides were described by the base commander as being tactics of asymmetric warfare.

Posted by Warren Terra | June 23, 2008 3:24 PM

I'm just not sure whether McCain's confusion is tactical or genuine.

Given that it's McCain, I think genuine confusion is the safest bet.

Posted by mpowell | June 23, 2008 3:24 PM

I'm just not sure whether McCain's confusion is tactical or genuine.

Given that it's McCain, I think genuine confusion is the safest bet.

Posted by mpowell | June 23, 2008 3:28 PM

Matt -- you're not a lawyer and your lack of legal reasoning obviously shows.

Posted by big Al | June 23, 2008 3:28 PM

big Al: I am a lawyer. McCain's idiocy here is totally transparent to anyone with legal training and a bare minimum of good faith. So much so that I forwarded this release on to a swing-voting colleague without comment, knowing that it could only damage McCain's reputation.

Posted by Leo | June 23, 2008 3:38 PM

Jeez, Matt - do you really think Sen. McCain, even if he DID understand the ramifications of the GTMO/habeas issues (a doubtful proposition right there) is going to two rats' fucks about getting the details "right"??

Crap like this from Old John McCreak - especially on the campaign trail - is designed for one thing only: to try to get imbecilic slogans like "Obama wants to let terrorists go on technicalities!" drummed into the public's head - as a contrast to his own tough and manly policy of... of... well, "let 'em rot in jail 'cause they must be guilty of something!" is good enough; logic and the law run a distant second when there are soundbites to generate.

Posted by Jay C | June 23, 2008 3:39 PM

Oh come on now. I'm sure that Mr. Ford looks nothing like Mr. bin Laden. Mr. Ford is probably closer to 5' 4" then Mr. bin Ladens' 6' 4".

That's evidence, SLC. What will you do with it, if there is no habeas corpus?

Posted by rea | June 23, 2008 3:51 PM

Big Al, do you have an actual critique of Matt's legal reasoning? In what way do you believe it is flawed?

Also, are you any relation to the University of Alabama mascot?

Posted by Gator90 | June 23, 2008 3:52 PM

Is it snotty to point out how many times the McCain campaign misspelled "Nuremberg"?

Posted by Brian | June 23, 2008 3:53 PM

Obama is, of course, right, but the Republicans have won elections villifying procedural rights for American citizens accused of crimes. Why wouldn't they expect to have the same success, if not more, villifying procedural rights for foreign muslims accused of terrorist activity.

Posted by Led | June 23, 2008 4:08 PM

I need to listen to the audio but I am impressed that McCain didn't mix up "Obama" and "Osama" even one time. Who says he isn't sharp?

My solution to the OBL issue would be to kill him. No muss, no fuss.

Nuremburg is an anglacized spelling of Nurnburg.

Posted by danceswithgoats | June 23, 2008 4:22 PM

Producing grounds for detaining Osama bin Laden would take about as long as it would take to put together a greatest hits reel from all the videos and tapes he's put out since 9/11. The notion that granting habeas corpus rights to bin Ladin would somehow result in him being let off the hook by some (probably gay) 9th circuit court judge is absurd.

Posted by Andrew | June 23, 2008 4:39 PM

Six years at Gitmo and no basis for detention.

Legal basis? Pshaw. The basis was always political, as serial human rights violators (China, Uzbekistan) used 9/11 as an excuse to crack down on separatist or reformist movements with the whiff of Islam.

Posted by pseudonymous in nc | June 23, 2008 4:51 PM

Matt says "If Osama bin Laden or anyone else were in the jurisdiction of a properly constituted international tribunal, the U.S. judicial system obviously wouldn't have the authority to rule on his status one way or the other."

But this isn't right. In part, it's because the phrase "in the jurisdiction of a properly constituted international tribunal" is just gibberish. The question is whether the US has the ability to effectuate release. If, for example, US troops are holding a prisoner for trial, whether by the US or by some other party, and those troops are under US control, then the prisoner has habeas rights.

I'd note that this means, contrary to what some might read into Matt's gibberish, that the US can't cooperate with the ICC without providing those detained for trial with habeas rights. Further, it seems to me that since the detained would, by mere dint of the fact of their detainment, have US constitutional rights, that they couldn't be turned over for trial by the ICC, among others, because the ICC's procedures aren't in accord with the US constitutional requirements. So, effectively, US cooperation with the ICC is illegal.

Posted by Thomas | June 23, 2008 4:56 PM

Nuremburg is an anglacized spelling of Nurnburg.

I think you mean: Nuremberg is an anglicized spelling of Nurnberg.

Obviously it's not a big deal, except they are trying to show how awesome their knowledge of Nazi war crime trials is and they don't even know how to spell the name of the city in which they were held. This also comes after they mocked an Obama release for saying "flack jacket" instead of "flak jacket" when either spelling is acceptable.

Posted by ibid | June 23, 2008 4:57 PM

McCain actually has a point: the recent SC case would allow bin Laden to make a habeas petition in a regular federal court.

The saying is that hard cases make bad law, and the recent SC case is proof of that. The SC was forced to choose between: a) refusing to extend habeas to non-citizens, in which case they will be stuck in Guantanamo at least until Bush leaves office; or b) extending habeas to non-citizens, in which case we will see odd future results like a bin Laden habeas petition. The first choice was right legally but wrong morally, so the SC made the right moral call but established bad precedent in doing so.

Posted by Joe Magarac | June 23, 2008 5:09 PM

Joe, the US is electing a new president in November who will take office in January. It is unlikely that the Supreme Court can require the release of any detainee prior to that point. So why change constitutional rules for a situation that will correct itself after the election?

Posted by Thomas | June 23, 2008 5:14 PM

What is so odd about a hypothetically-detained Bin Laden petitioning for habeas?

It would be odd if his petition was granted, of course, but that isn't the question.

Posted by DTM | June 23, 2008 5:24 PM

ibid - you are correct. Does the first "u" in Nurnburg have an umlaut? I digress.

Did you see the piece about the Gitmo detainee captured in a firefight in Afghanistan requesting that he be released because no one read him his Miranda rights?

Posted by danceswithgoats | June 23, 2008 5:36 PM

DancesWithGoats, I didn't see that petition. If it exists, meh, so what. People make dumb and inane petitions that waste everyones' time; this is not new, and is hardly unique to Gitmo. Some enormous percentage of prisoners who manage after strenuous requests to get the evidence that convicted them retested for DNA are shown only to be more convincingly guilty, for example, and surely those prisoners knew whether they were involved in the crimes. Permitting the existence of groundless and falsely premised petitions, at some significant cost in time and effort, is the price we pay to make sure that the actually important petitions get heard, so we can hope to avert some miscarriages of justice. It's not like any judge is going to spring the guy because he didn't get Mirandized during a firefight in Afghanistan.

Posted by Warren Terra | June 23, 2008 5:52 PM

Warren, the purpose of the detention of enemy aliens during wartime isn't justice; it's to win the war. And significant expenditures of time and effort on the part of the US military to justify detention are likely to degrade and distract from military efforts to win the war, are likely to change the calculus to favor death over detention, and are likely to result in at least some dangerous individuals being freed, all of which make winning the war harder.

Posted by Thomas | June 23, 2008 5:58 PM

It's a little strange that John McCain thinks that a world in which OBL is tried by an American court is somehow more dangerous than the actual world where we just let him run free.

Posted by Jinchi | June 23, 2008 6:05 PM

big Al: I am a lawyer. McCain's idiocy here is totally transparent to anyone with legal training and a bare minimum of good faith. So much so that I forwarded this release on to a swing-voting colleague without comment, knowing that it could only damage McCain's reputation.

I second this. FWIW, it's the same kind of legal incoherence which was at the heart of GOP opposition to the Ledbetter act - the only lawsuits that would have allowed which weren't previously would be ones were there was evidence of discrimination, and thus by definition, not frivolous.

Logic has a well known liberal bias.

Posted by Pooh | June 23, 2008 7:06 PM

Warren, the purpose of the detention of enemy aliens during wartime isn't justice; it's to win the war. And significant expenditures of time and effort on the part of the US military to justify detention are likely to degrade and distract from military efforts to win the war, are likely to change the calculus to favor death over detention, and are likely to result in at least some dangerous individuals being freed, all of which make winning the war harder.

A) What war? Has one been declared.

B) Yes if we make all those poor JAG officers actually do trials and shit, who will man the front lines. You, Lt. Weinburg?

C) So we're going to kill them and THEN set them free?

More internally consistent bullshit please.

Posted by Pooh | June 23, 2008 7:22 PM

Meh, first graph supposed to be italicized...

Posted by Pooh | June 23, 2008 7:25 PM

Pooh, are you saying that we should do away with statutes of limitation? It would be good for trial lawyers. Claims not brought within the statute aren't barred because they are frivolous; they are barred because there is a value to requiring claims to be brought quickly (when documents and memories are fresh and witnesses available) and to certainty.

As for the rest: I can't help it if you don't see that we are at war, or if you believe for some reason that "declarations" of war are of some relevance to this discussion. The burden is not one that will be faced (or not solely faced) by JAG officers; there is a need for evidence to be collected, depositions to be taken, witnesses to be made available--all of these are required to make the right guaranteed by the Court meaningful, and all of them will be a burden to those charged with fighting and winning the war. At the margin, US troops faced with a choice between capturing and killing suspected enemy aliens will now have additional reason to favor killing them, because the costs of detention have been raised. (This is assuming of course that the suspected enemy aliens are without due process rights prior to their capture; it may be that they have such rights, and that the US military can't constitutionally prefer killing them to capturing them--we'll have to see what the Court invents there.)

Posted by Thomas | June 23, 2008 7:49 PM

Matt: "After all, if there's no sound basis for believing that he's an enemy combatant, why detain him?"

You're looking at it backwards, Matt. Why not detain him? After all, if he isn't prepared to use violence against the US now, he probably will be afterwards.

Thomas: lawyers can be greedy, but it takes a real innumerate to think that expenditure could ever be enough to significantly influence military decisionmaking. How much does a single combat mission by a modern fighter aircraft cost? Do you think that is a significant restraining factor on land forces calling them in for air support?

If a policy were, in fact, to constrain military operations due to cost, as far as I'm concerned that would be an upside. But, unfortunately, that's a wisp of a prospect.

Posted by Kalkin | June 23, 2008 9:03 PM

Kalkin, you're right that in some sense anything is affordable, if we're willing to make the expenditures. So, for example, a detainee captured on the battlefield in Afghanistan could be detained, and those who captured him could be immediately removed from the front lines with the detainee, and made available to lawyers to build the case for detention, and then made available to lawyers for the detainee to challenge the sufficiency of the evidence for detention--all in a hearing that would take place in DC. Yes, you're absolutely right that this is in some sense affordable. But you'd have to be a moron to think that that wouldn't impact military effectiveness.

Posted by Thomas | June 23, 2008 9:26 PM

In so far as Boumedienne was made applicable to KSM, and Abu Zubeydah, the Court apparently disagrees with 200 hundred years of military tribunal policy. Had they made an argument against this particular tribunal; they would have more of a case. It follows up the ignorance of ex parte Merryman, Milligan, Quirin, Eisentrager, et al; applying Geneva protections whose actions don't warrant it. Under this view; Atta,Hanjour
& Jarrah could only be tried by civilian court; and pre 9/11 that would have been an exceedingly
hard case. They had no criminal record, only their associations with the Kuds mosque in Hamburg
could really tie them to players like KSM. Most likely his attorneys would have challenged the
admissability of BND and or CIA surveilance on probable cause grounds. Obama's "Restoring the
Constitution" bill suffers from many of these problems.

Posted by narciso | June 23, 2008 9:55 PM

Of course Thomas knows quite a bit about morons - seeing as how even those people are mental giants when compared with Thomas.

It's almost as if Thomas has no idea how these people arrived in Cuba. Was every single one of them taken directly from the battlefield, loaded on a helicopter, and flown to this island paradise? Not by a long shot.

We know for a fact that some of those in the American gulag in Cuba are innocent of any criminal acts against the United States. The idiocy of defending infinite detention for someone who has not been convicted of any crime is obvious to all but the thickest of posters (sorry Thomas, it's obvious where you stand).

Here's something that seems to be a secret from the sub-morons like Thomas - indefinite detention isn't even a valid punishment for those who have been convicted of criminal acts. By its nature, indefinite detention is certainly "cruel and unusual," and, cretins with an anti-American agenda notwithstanding, the "war on some terrorism plus some random non-terrorist brown people" does not constitute a national emergency and cannot justify the internment that Thomas and Malkin promote (and, let us remember that the decision in Korematsu was one of the worst ever decided by the USSC).

Posted by Not as stupid as Thomas | June 23, 2008 10:00 PM

Stupid, if you knew anything about this, it would be a change, because you habitually post about things you know nothing about. (There must be some subject you have some knowledge of, but unfortunately you haven't share that with us yet.) So it isn't surprising to see that you don't understand the issues in this case. For example, the question isn't whether any or all of those detained are "innocent of criminal acts against the United States." That is entirely irrelevant. And "indefinite detention" is entirely appropriate and is customary for dangerous detainees during war. It isn't "punishment"--it has nothing to do with punishment, or with the criminal justice system and its concepts. That one could wade into this discussion without beginning to understand any of the basics is astounding. You never cease to amaze.

Posted by Thomas | June 23, 2008 11:00 PM

One substantive problem with applying the conventional POW framework is that this "war" lacks the attributes necessary for it come to an end. For example, who has the power to surrender? Failing that, who or what can we capture or kill/destroy such that we know the "war" is over?

A related substantive problem is defining who counts as "dangerous" during this period of "war". In a conventional war between states with organized armed forces, that is less of an issue. But here we are detaining nationals of states we aren't at war with, and who may lack any sort of uncontested membership in combatant groups.

So, it is indeed a bit silly to claim the detention paradigm for conventional wars of limited duration between states with organized armed forces applies in a straightforward fashion to these cases. That said, I would also agree the conventional criminal justice system also does not apply in a straightforward way. So what we really need is a new body of law to deal with this situation, but for far too long now the Administration has tried to prevent that from happening (meaning they want to be able to do whatever they please, free from the constraints of law).

Posted by DTM | June 23, 2008 11:40 PM

Thomas, I realize you aren't very smart, but your rudeness is uncalled for. I haven't called you anything but the name you post under. Please do me the same courtesy.

If you were nearly as smart as a moron you would realize that you have to have a war to have people detained for the duration of that war. We haven't declared one, we have long since overthrown the government of Iraq, so even the AUMF figleaf someone as stupid as you would suggest justified the unprovoked assault on the Iraqi people.

As for the Kafkaesque notion that "indefinite detention isn't punishment," well, once again your inability to think manifests itself quite clearly. That you hold yourself up as someone "knowledgeable" would be laughable if it weren't for the damage anti-American assholes like you do to the good name of this nation.

Posted by Not as stupid as Thomas | June 23, 2008 11:48 PM

Prof. Richard Epstein just did an even better job than George Will of slapping McCain across the face for this garbage -- in nice clear language that even the American people might be able to understand (if they ever hear it):

http://www.nytimes.com/2008/06/21/opinion/21epstein.html?_r=1&oref=slogin&pagewanted=print

Posted by Bruce Moomaw | June 23, 2008 11:57 PM

This is the problem with allowing terminology like the "War on Terror" to go unchallenged. Soon, you have nuts like Thomas insisting on taking the "War" terminology literally.

I suppose Thomas wouldn't have minded suspending habeas for the duration of the Cold War. Hey, it says war, dunnit? Maybe the government should have tried all corruption cases under wartime profiteering acts.

We could model ourselves after Syria, which has had a state of emergency since 1963. Syria is not a real dictatorship, you see, just a tolerant liberal democracy temporarily under a state of emergency.

Posted by DJ | June 24, 2008 12:54 AM

One substantive problem with applying the conventional POW framework is that this "war" lacks the attributes necessary for it come to an end.

Exactly. And that is why calling this "a war on terror" is so odious. When people say "it must be thought of as a war, it is ridiculous to think of it as law enforcement," and then admit that the war may go on forever, they are essentially saying nothing more than they are tired of the procedural rules of the law and want to scrap them.

Was every single one of them taken directly from the battlefield, loaded on a helicopter, and flown to this island paradise?

Another good point. If someone was detained on the battlefield and is undoubtably a soldier, conventional war ideas like detention without trial might make sense. What if these are people captured by covert ops in their homes? Shouldn't we have the best safeguards to make certain that people cannot simply be "disappeared" at the will of the President?

Posted by Glaivester | June 24, 2008 1:40 AM

MY - I really think it's McCain who's confused here. If Osama bin Laden or anyone else were in the jurisdiction of a properly constituted international tribunal, the U.S. judicial system obviously wouldn't have the authority to rule on his status one way or the other.

Yglesias gibberish. Nuremberg was the victors hashing out how to kill the Nazis they wanted to kill over a few short meetings. Churchill wanted no trials and thought France had no right to be on any Tribunal as a matter of fairness to those that actually did the brunt of the fighting. His solution was to just shoot the Nazis on his death lists, no trial, no ceremony. Stalin wanted propaganda for the big shots, but actually went ahead and did the Churchillian thing with lower-level Nazis on their death lists. FDR wanted trials of the big shots, but only with the big 3 in Europe..short 1-2 day tribunals for less prestigious war criminals and with the US the sole determinant of who among the Japs got to swing before the UK, Aussies, Filpinos, Chinese got tribunal seats.
(My granduncle prosecuted 3 Nazis for a war crimes in Holland. They got a lawyer 2 days before trial, could not cross-examine witnesses. Trial lasted 4 hours. Guilty, no appeals. Two were shot 2 days later, the 3rd went to prison.

MY - The ruling had to do, in part, with the Bush administration's silly effort to use the ambiguous status of Guantanmo Bay to hold people in American captivity while somehow also outside the reach of American law.

Considering that is how we dealt with enemy combatants and enemy civilians (alien internees) for 200 years, holding thousands to millions depending on the war outside the reach of US civilian law, plus millions of US citizens in WWII, the Civil War who fell under martial law and outside habeas --MY only joins Transnationalist Justice Kennedy is his dense vapidness.

A suspect who's genuinely in someone else's custody (rather than in the fake sense that the Gitmo detainees are in Cuba) is a whole other can of worms.

No, the military can have battlefield custody in another sovereign country, or custody of a US soldier for breaches than may or even may not be American civilian "crimes", or the foreign country might - depending on SOF and UCMJ applicability.

Keep in mind US soldiers have limited to no Habeas appeal rights depending on circumstances. Deserters, AWOL, dereliction of duty court martials, refusal to obey a lawful order. They stay in the military system.

MY- The other thing is that the right the Court gave the detainees is a pretty basic one -- a legal right to challenge the basis for having classified them as enemy combatants. In the case of bin Laden, this would be child's play -- the man issued a declaration of war against the United States. It's pretty clear that he's an enemy combatant.

As Thomas and others have mentioned, the evidentiary hearings and bringing military witnesses in or foreign allies from places like Uzbeckistan or getting some guys who left the Army a couple of years ago all to come to DC and be deposed for days, and do it again if a trial is ordered by the lawyers dressed in robes - is onerous and degrades military readiness and may discourage national service. Who wants to serve then be notified that you will be named and your address known so you can go testify against an Al Qaeda fighter that surrendered to you when, on second thought, it now appears it would have been far wiser to just shoot the guy and avoid future high risk situations like your face and address being slapped up on several AQ websites years after you left the Army. Or worse, if prisoners have habeas, then SURELY the two Jewish transnationalists and Kennedy on the Court would also find it reasonable for relatives of men killed in combat to have habeas access to US courts and get the names and adresses of the Americans that killed their little Jihadi martyr..

Also, it is fatuous of Matt to pretend that bin Laden, like Hitler, was so well-known that his habeas hearing, then his civilian trial indictment - would be a breeze to establish.

The problem is how much money is the US obligated to spend to give rights, in perverse incentive for violating Geneva, to men who shun uniforms and other rules of war. How much will the US allow the military to be disrupted by "Jihadi rights" - factors the SCOTUS idiots say aren't in any part of any law or the Constitution but the last two hundred years of America "got wrong"???

Especially when everyone knows what "rights" Muslim terrorists or insurgents give to their foes - be they Americans or enemy who happen to be fellow Muslims.

Posted by chris ford | June 24, 2008 3:59 AM

Ford, I hope that one day soon your Ku Klux Klan activities will result in your being sent to Federal prison - or better yet, state prison in whatever crap Southern state you live in. I really would like to be the fly on the wall - but not your cellie, since I couldn't take the whining - to see how you handle getting the same treatment you want to dish out.

Personally I figure you'll end up being some black inmate's bitch. Those guys do badly in most joints. I had a cellie who was chased into protective custody just for selling homemade wine to a black/white couple in the next cell.

Danceswithgoats: "My solution to the OBL issue would be to kill him. No muss, no fuss."

My standing offer: a billion in advance, bin Laden - dead or alive (your choice! but dead is easier) - in ninety days.

Posted by Richard Steven Hack | June 24, 2008 4:23 AM

I'd rather have 9 "Jewish transnationalists" of the Ginsburg/Breyer stripe than corporate fascist toadies like Roberts, Alito, Thomas and the big pasta fazool Scalia. Fuck those motherfuckers.

Posted by Trevor | June 24, 2008 5:27 AM

How do you judge someone an enemy combatant without some sort of due process? How do you make this declaration when the odds are he could be a taxi driver sold to you for the bounty?

Posted by bob h | June 24, 2008 5:29 AM

DTM, Congress passed legislation on point, so this isn't a case in which the executive is acting on its own.

Stupid, you might remember that the Congress authorized military force against al qaeda in 2001. That war is on-going. The connection between that war and the war in Iraq is disputed, but the two wars rely on separate authorizations and so can certainly be seen as legally distinct.

DJ, I don't favor suspending habeas. I just don't think that enemy aliens captured abroad are entitled to habeas under our constitution.

Richard, you are one strange dude. Your comment is offensive.

Posted by Thomas | June 24, 2008 8:59 AM

Especially when everyone knows what "rights" Muslim terrorists or insurgents give to their foes - be they Americans or enemy who happen to be fellow Muslims.

Posted by chris ford

There was a time when Americans sought to set their own standards of behavior, and to be judged by their own adherence to these self-set high moral standards, rather than comparing themselves to barbarians so that they come out slightly ahead.

Posted by El Cid | June 24, 2008 9:04 AM

Thomas, just because you are a fucking moron doesn't give you the right to change someone's nick - yours is Thomas, mine is "Not as Stupid as Thomas." One would think, given that it helpfully has your nick in it, that even someone as bone stupid as you are could remember it.

As for any substance, you gave up on substance the moment you declared that detention wasn't punishment. One of the most fundamentally stupid things ever said on any board anywhere.

Punishment without so much as the ability to see the evidence against you is the province of petty dictators. Your support for it marks you as anti-American.

Posted by Not as stupid as Thomas | June 24, 2008 10:21 AM

"It's a little strange that John McCain thinks that a world in which OBL is tried by an American court is somehow more dangerous than the actual world where we just let him run free."

What Jinchi said.

" I just don't think that enemy aliens captured abroad are entitled to habeas under our constitution. "

The whole &%$!ing point is that you don't know whether or not they are enemy aliens without habeas. In large part, these aren't people who have been captured by American soldiers in battle. They are people who have been turned over to us (often for cash), or rounded up from their homes on the basis of tip-offs. Many of them will indeed be "the enemy". We know for a fact that a lot of them aren't.

Posted by Ginger Yellow | June 24, 2008 11:32 AM

Ginger, you say that "you don't know whether or not they are enemy aliens without habeas" and you say "We know for a fact that a lot of them aren't." How do we know, given the lack of habeas? Is it possible--just possible--to reach conclusions on these matters outside of a habeas hearing?

Stupid, if the police have a DUI checkpoint and stop your car and temporarily detain you, is that punishment? Was it punishment when the US held POWs during WWII? Are you confused? (Answers: no, no, and yes.)

Posted by Thomas | June 24, 2008 12:29 PM

Thomas,

There were almost four years between the beginning of detentions at Guantanamo and the passage of the Detainee Treatment Act and Military Commissions Act. Meanwhile, the Administration did everything it could to prevent meaningful judicial review of its policies. So for a long time, this precisely was a case of the Executive acting on its own.

Moreover, in fact the DTA and MCA were only passed because of the Supreme Court's decisions in Rasul and Hamdan. With respect to detentions, their primary purpose was to eliminate habeas petitions from detainees--a purpose since struck down as unconstitutional. A secondary purpose was to remove the Geneva Conventions as a grounds for a habeas petition. So, the DTA and MCA were primarily designed to REMOVE applicable laws (the laws the Supreme Court had found applicable in Rasul and Hamdan), not to provide a comprehensive legal framework.

This is all contrary to how our republic is designed to function. From the very beginning, Congress should have taken on the task of devising a comprehensive legal framework for these detentions. Article III courts should then have been immediately involved in reviewing this framework for constitutionality. And yet years have been wasted in an unconstitutional attempt to protect Bush's approach.

Posted by DTM | June 24, 2008 1:05 PM

The statutory scheme adopted by Congress was comprehensive and was intended to provide a substitute for habeas. The statutory scheme provided a substitute for habeas, and removed the statutory habeas right that the Supreme Court had found. The politically accountable branches made a determination as to the appropriate system, which is precisely how our republic is supposed to work. In fact, Justice Breyer in Hamdan wrote quite eloquently about the role of the politically accountable branches: "Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means." Except, as you and Breyer now would have it, when those democratic means result in policies you don't like.

Posted by Thomas | June 24, 2008 2:33 PM

Thomas you really need to learn to be polite. The moniker it "Not As Stupid As Thomas." And it's not just a moniker, it's a matter of fact.

Now, do you know what "false imprisonment" is? How about "false arrest?" Do you know that the police have to pay damages to those for whom they cannot demonstrate probable cause to have imprisoned? Probably not, you don't really seem to know very much - even for a stupid person.

Now, unlike you, I don't have much experience driving drunk; the likelihood of my being picked up for a DUI is, well, pretty close to zero. But next time when you are arrested remember there is a fixed amount of time the police can hold you without demonstrating sufficient cause. Indeed, once convicted the time already spent imprisoned usually counts against your sentence. But perhaps you don't think that Charles Manson is being punished by his imprisonment. That would be stupid, but then you have demonstrated that you are remarkably idiotic.

That you confuse the limited incarceration (which can get the police into trouble if they fail to show cause), with indefinite detention is exactly why a bedbug would be justified in posting under the moniker "Not As Stupid As Thomas."

Posted by Not as stupid as Thomas | June 24, 2008 3:28 PM

Stupid (aka Bedbug), do you think it's ok to punish people when we only have "probable cause"? Do you think it's ok to detain enemy aliens on probable cause? Do you know what a DUI checkpoint is? Do you know anything about anything? That's not just rhetorical. Why do you bother?

Posted by Thomas | June 24, 2008 3:49 PM

Thomas: "Your comment is offensive."

Well, let me offend you further.

I hope you end up in the same cell as Ford so you get the benefit of the same education, to wit:

Ex-State Dept. official: Hundreds of detainees died in U.S. custody, at least 25 murdered
http://thinkprogress.org/2008/06/18/ex-state-dept-official-hundreds-of-detainees-died-in-us-custody-at-least-25-murdered/

At today’s House Judiciary Subcommittee on Civil Rights hearing on torture, Lawrence Wilkerson, former chief of staff to Colin Powell, told Rep. Jerrold Nadler (D-NY) that over 100 detainees have died in U.S. custody, with up to 27 of these declared homicides:

NADLER: Your testimony said 100 detainees have died in detention; do you believe the 25 of those were in effect murdered?

WILKERSON: Mr. Chairman, I think the number’s actually higher than that now. Last time I checked it was 108.

A February 2006 Human Rights First report found that although hundreds of people in U.S. custody had died and eight people were tortured to death, only 12 deaths had “resulted in punishment of any kind for any U.S. official.”

Transcript:

NADLER: Colonel Wilkerson, in your prepared testimony, you write that “as I compiled my dossier for Secretary Powell, and as I did further research, and as my views grew firmer and firmer I had to reread that memo (of February 7, 2002), “I needed to balance in my own mind the overwhelming evidence that my own government had sanctioned abuse and torture, which at its worse had led to the murder of 25 detainees and at least 100 detainee deaths. We have murder at least 25 people in detention. That was the clear low point [lower end of the range] of the evidence.” Your testimony said 100 detainees have died in detention; do you believe the 25 of those were in effect murdered?

WILKERSON: Mr. Chairman, I think the number’s actually higher than that now. Last time I checked it was 108, and the total number that were declared homicides by the military services, or by the CIA, or others doing investigations, CID, and so forth — was 25, 26, 27.

NADLER: Were declared homicides?

WILKERSON: Right, starting as early as December 2001 in Afghanistan.

NADLER: And these were homicides committed by people engaged in interrogations?

WILKERSON: Or in guarding prisoners, or something like that. People who were in detention.

NADLER: They were in detention, not trying to escape or anything, declared homicides by our own authorities.

I wonder if SLC wants to quote Wilkerson any more on whether Israel supported the war in Iraq.

Posted by Richard Steven Hack | June 24, 2008 4:45 PM

Really, you still can't spell out "Not as stupid as Thomas?" You're so close. You've already called out "Stupid" because it's a word you hear often, and I know you know Thomas because you keep using it. Now all you have to do is string them together with a couple of connecting words and you can properly address pretty much everyone as "Not as stupid as Thomas."

Now that I have reminded him of how to address his betters, I see Thomas is really driving his stupidity into the ground. He is apparently so stupid that he thinks that a DUI checkpoint has indefinite detention.

Look, I'm sorry about your DUI. It sucks that you were detained merely for the criminal act of using a motor vehicle as a weapon against your fellow citizens. But only a complete fucking moron like you, Thomas, could compare a DUI checkpoint with indefinite detention.

These people are not stopped in their cars you brain-dead fuckwit. These people are in cells. Just like Manson. And you have, in your infinite stupidity, claimed they are not being punished. There are millions in cells everywhere rejoicing at your words. Or there would be if they weren't a testament to your Olympian levels of stupidity.

Posted by Not as stupid as Thomas | June 24, 2008 5:07 PM

Stupid, you are incapable of making an argument. That's not the end of the world; there are lots of happy idiots out there, after all. You are also a really unpleasant person. And the combination of those two things, well, that's a tragedy. Except I can't help but laugh at you.

Posted by Thomas | June 24, 2008 5:47 PM