Editore"s Note
Tilting at Windmills

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December 16, 2005
By: Hilzoy

As all the newspapers are reporting, President Bush has agreed to John McCain's amendment prohibiting torture. However, Newsweek adds this:

"But the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence thats obtained through coercive interrogations that may occur in other countries. Whereas Grahams previous draft had forbidden the use of such evidencein accordance with standard rules of military justicethe new draft says that it should be barred only to the extent practicable. The latest bill language also now says that the probative value of evidence should be consideredin other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. "There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that's been changed to a 'consideration' clause that says the tribunal board must take into account the source of the information." He contended the change had been requested by military judge advocates general."

So: instead of banning the use of evidence obtained through torture, tribunals have to 'consider' the source of that information. Great.

The Graham amendment already strips Guantanamo detainees of their right to file for habeas corpus. (For more info, see the series Katherine and I wrote on it at Obsidian Wings. Links to most of the posts are here.) The amendment adopted by the Senate did allow detainees to appeal tribunal findings to the courts, but that doesn't get at one of the most important functions of habeas corpus: the right to ask why you're being held when the government has either held no hearing at all, or held one and found you innocent. And we are holding people who have been found innocent by tribunals. I wrote about one such case here.

Now, Graham is jettisoning one of the few good provisions in his bill: its ban on the use of evidence gained through torture. As Scott Horton of Balkinization wrote:

"In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administrations viewpoint, this would be a shocking result."

If you oppose this change to the Graham Amendment, call your Senators and Representatives. This is especially important if you live in the district of one of the conference committee members. I've put a list of them below the fold.

Conference Committee members:

Senate

Republicans:

Stevens, Ted (AK), Chair

Cochran, Thad (MS)

Specter, Arlen (PA)

Dominici, Pete V. (NM)

Bond, Christopher S. (MO)

McConnell, Mitch (KY)

Shelby, Richard (AL)

Gregg, Judd (NH)

Hutchison, Kay Bailey (TX)

Burns, Conrad (MT)


Democrats:

Inouye, Daniel (HI), Ranking Member

Byrd, Robert C. (WV)

Leahy, Patrick J. (VT)

Harkin, Tom (IA)

Dorgan, Byron L. (ND)

Durbin, Richard J. (IL)

Reid, Harry (NV)

Feinstein, Dianne (CA)

Mikulski, Barbara A. (MD)


House

Republicans:

Young, C.W Bill (FL, 10th District), Chair

Hobson, David L. (OH, 7th District)

Bonilla, Henry (TX, 23rd District)

Cunningham, Randy Duke (CA, 50th District)

Frelinghuysen, Rodney (NJ, 11th District), Vice Chair

Tiahrt, Todd (KS, 4th District)

Wicker, Roger F. (MS, 1st District)

Kingston, Jack (GA, 1st District)

Granger, Kay (TX, 12th District)

Jerry Lewis (R-CA, 41st District), Chairman of the House Committee on Appropriations


Democrats

Murtha, John P. (PA, 12th District) Ranking Member

Dicks, Norman D. (WA, 6th District)

Sabo, Martin Olav (MN, 5th District)

Visclosky, Peter J. (IN, 1st District)

Moran, James P. (VA, 8th District)

Kaptur, Marcy (OH, 9th District)

David Obey (D-WI), Ranking Minority Member of the House Committee on Appropriations

Hilzoy 11:04 AM Permalink | Trackbacks | Comments (38)

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Comments

Shouldn't Duke Cunningham be excised from that list? I can't imagine he's got much say in this anymore.

Thanks for the info, though--good to know the deal has its significant downside.

Posted by: Jeff Mariotte on December 16, 2005 at 11:09 AM | PERMALINK

In other words, we won't torture, but if we do, you can't challenge it, and we can possibly use the evidence gained. Somehow, I am not convinced we won anything here.

And hilzoy, any idea when Typepad will be back up for ObWings?

Posted by: Dantheman on December 16, 2005 at 11:13 AM | PERMALINK

And to think I was ready to label Bush a flip-flopper for dropping his veto threat. I guess he has principles after all, and torturing random brown people is one of them.

Posted by: craigie on December 16, 2005 at 11:17 AM | PERMALINK

Evening TV news also mentioned the Graham 'condition'.

It's not gonna sneak thru unnoticed.

Posted by: wishIwuz2 on December 16, 2005 at 11:22 AM | PERMALINK

I know I'm theoretically in a position to know, but did the last five days of ObsidianWings just vanish?

Posted by: Sebastian Holsclaw on December 16, 2005 at 11:22 AM | PERMALINK

Whatever Republicans say or do about torture it's bound to be all about protecting themselves from being found guilty of torturing people when it was against the law. To say 'there was no controlling legal authority', as Al Gore did, just doesn't get it. There has been a clear definition of what torture is and that it's illegal for a very long time. America shouldn't even have to be discussing this. Leave it to the Republicans to bring up a new discussion on torture and arguments against the 'war on Christmas' at the same time. These ARE tortured arguments nobody really wants or needs.

Posted by: MarkH on December 16, 2005 at 11:23 AM | PERMALINK

This is in keeping with the Hamdi holding. You can't hold people indefinitely without some form of review, but they won't demand from military tribunals anything resembling constitutional due process. One of the remaining questions was whether evidence obtained through measures--like torture, or multiple layers of hearsay, etc.--would be sufficient to keep locking people away upon their review. The answer, we now know, is "yes."

Posted by: dj moonbat on December 16, 2005 at 11:23 AM | PERMALINK

Weasels looking for wiggle room. I think Congressional republicans are excited though. Not because torture in banned, but because that Great Freight Train of Cash (aka the Defense appropriations bill) is now veto-proof and will be leaving town soon. All aboard!! Have your earmarks ready.

Posted by: Spense on December 16, 2005 at 11:24 AM | PERMALINK

Great Freight Train of Cash (aka the Defense appropriations bill) is now veto-proof

Not necessarily. I think Stevens or someone has stuck in a rider allowing for drilling in ANWR. These people just don't like openess and accountability, do they?

Posted by: craigie on December 16, 2005 at 11:26 AM | PERMALINK

Isn't the definition of 'probative value' the heart of the disagreement on the effectiveness of torture?

Torture works - if you hold that getting any information is the goal.

Torture doesn't work - if you hold that it's the reliability of that information that's the goal.

Torture is desirable - if you're just a vengeful interrogator. I'd like to apply.

Posted by: wishIwuz2 on December 16, 2005 at 11:29 AM | PERMALINK

Seb: they say Typepad is down for 'maintenance'. As best I can tell, all Typepad blogs are showing a backup copy, minus several days of stuff.

Posted by: hilzoy on December 16, 2005 at 11:29 AM | PERMALINK

Why should non-nationals, captured on a battlefield or as the result of anti-terrorist operations in a foreign country, held in a military prison, have the right that American citizens have to habeas corpus? The Constitution clearly doesn't apply to them. I see no reason to extend rights under the Constitution to them.

For foreign nationals who meet the conditions of the Geneva Conventions, there is a mechanism to handle them, and while you might not believe it, the US military has applied it (for instance, Afghan nationals in the Taleban were treated carefully as POWs). For foreign nationals who aren't covered by the GC, I have no problem holding them until their home country wants them back and we've gotten whatever information we need from them. You pick up a bomb or gun to use against us, you take your chances.

The parts of the Graham amendment that permit evidence obtained by torture should be re-written to prevent that. Torture is wrong, always and completely wrong, and we should provide no temptation for its use.

Posted by: Steve White on December 16, 2005 at 11:47 AM | PERMALINK

They'll continue to use torture, but will hope for something legalistic to hide behind once Congress passes into more responsible hands.

It's odd becauseI thought the CIA and DoD had learned their lessons during the Reagan administration - don't get dragged into bullshit political "missions" that do nothing really to maintain or increase the security of the country.

Posted by: Jeff II on December 16, 2005 at 11:49 AM | PERMALINK

"The Constitution clearly doesn't apply to them. I see no reason to extend rights under the Constitution to them."

Well somebody woke up on the treason side of the bed this morning. The only time the words "citizen" or "citizens" appear in the original Constitution and BoR are in reference to requirements to hold office. Everywhere else, "person", or "persons" are used. As the text of the Constitution was fine-tuned more than once to insure everybody agreed with the text, the use of persons is not insignificant, as it would have been easy to simply use citizen the entire time if that was the intent. However, the FFs clearly saw rights as intrinsic to being human (see "inalienable rights in the DoI); it isn't that non-US citizens don't have rights, but that repressive regimes will not respect those rights. Your position is both antitheical to the text of the Constituion and also the beliefs of the guys who wrote it (so you've failed textually and Originally); not to mention by asserting rights aren't part of being human, you've also pissed on the DoI and God* ("endowed by their Creator"). To recap: you hate the Constituion, the Declaration of Independence, the Founding Fathers (by this point, we can safely say you hate the United States), God, Jesus, _and_ Christmas; Dude, suicide may be a vaid option for you, since with that many enemies, your pretty much screwed.

* You've also thrown out the idea of helping others regardless of nationality, ie being a Good Samaritan, so I guess Jesus is also on your hate list; well, I guess you are against Christmas also.

Posted by: Phalamir on December 16, 2005 at 12:18 PM | PERMALINK
Why should non-nationals, captured on a battlefield or as the result of anti-terrorist operations in a foreign country, held in a military prison, have the right that American citizens have to habeas corpus? The Constitution clearly doesn't apply to them.

Uh, really? Please point me to the text of the Constitution -- either the original or any amendments -- where any protection related to due process, limitations on punishments, or other provision related to the issues here is limited to citizens.

Posted by: cmdicely on December 16, 2005 at 12:25 PM | PERMALINK

The Constitution clearly doesn't apply to them.

Do you mean to say they are beyond the law?

Or just that the consitution applies differently to them than to other people?

What justificiation do you have for either position? I don't think you'll find one in the consitution.

If you round up guys on a battle field, they are POWs. If it turns out you wanted one of these POWs for a separate crime, prosecute them for it. If you think it's illegal that they were ununiformed, send them to a court marshall.

If you nab a guy in an anti-terror raid, prosecute him the same way you would someone caught up in a drug raid, or a conspiracy raid.

On the contrary, Steve White, it's quite clear that established law covers the current situation very well. Even if you think otherwise, running the terror-war in an illegal fashion instead of as an effort to *change* the laws will be ultimately destructive to our aims of fighting terrorists.

Posted by: Boronx on December 16, 2005 at 12:30 PM | PERMALINK

You know, this just goes to show you how insincere the arguments from the right really are when it comes to torture.

Bring up the subject of torture, and they'll talk endless about a hypothetical, carefully concocted "ticking bomb" scenario that has about the same chance of occurring as monkeys jumping out of a flying pig's ass. And in that little piece of fiction, well, by God, it DOES seem reasonable to torture the terrorist who can tell us instantly the location of the backpack nuke he placed in the center of NYC during Christmas with all of the holiday cheer and innocent happy children.

But then, when it comes to IMPLEMENTING torture, we get a very different scenario. Prisoners mindlessly tortured in Iraq for what is in truth nothing more than the sheer fun of it, for example. Not one piece of important, identifiable information related to anything remotely resembling the "ticking bomb" scenario that supposedly justified torture.

And in this case we have torture being legitimized for no purpose other than providing evidence against the detainee in a military tribunal.

Really, it's like these people on the right have absolutely zero concept of the slippery slope when it comes to altering such a major principle of civilization as that of the prohibition of torture. Or, more likely, and more cynically, they DO know there's a slippery slope there, and that's exactly what they're hoping for, because they just LOVE the idea of torture, almost whenever and whereever they can get it. The ticking bomb scenario is just their way of sticking the camel's nose under the tent.

Which brings up the fundamental question of why it jazzes them so to engage in torture. By any objective accounting, there's about zero evidence that torture ever has or ever will solve more problems than it creates. What is it that they're missing in their sad existences that makes torture do it for them? You gotta think it's a psychological predispostion of some kind, and not a pretty one.

Posted by: frankly0 on December 16, 2005 at 12:41 PM | PERMALINK

What bothers me the most about all this is the torture supporters' apparent lack of faith in the founding principles of the United States. The founders were not starry-eyed idealists. They well appreciated the human capacity for evil. They may not have faced today's technological capabilities but they faced exactly the same human nature.

It seems to me that the argument that "everything is different now" betrays a complete lack of belief in principles. Human nature hasn't changed, only technology has. If the principles set forth in the Constitution and the Declaration of Indepencence no longer apply, well, what is left? Only the law of the jungle.

Posted by: ral on December 16, 2005 at 12:52 PM | PERMALINK

So this administration decided to create its own reality, because it thinks what we have is not evil enough? I don't get it.

Posted by: Sara on December 16, 2005 at 1:06 PM | PERMALINK

Steve White: Why should non-nationals, captured on a battlefield or as the result of anti-terrorist operations in a foreign country, held in a military prison, have the right that American citizens have to habeas corpus? The Constitution clearly doesn't apply to them. I see no reason to extend rights under the Constitution to them.

It should and all Americans should be ashamed that if it does not under current Supreme Court precedent.

We declared, quite emphatically, that the rights which were later embodied in our Constitution, are inalienable and belong to all men and women, not just Americans.

It is shameful that we ignore these principles that we say we hold so dear.

It is shameful that you are okay with that.

Posted by: Advocate for God on December 16, 2005 at 1:09 PM | PERMALINK

Steve White: "The parts of the Graham amendment that permit evidence obtained by torture should be re-written to prevent that. Torture is wrong, always and completely wrong, and we should provide no temptation for its use."

Okay, you blew the constitutional thing. But you definitely get points for sticking the landing.

Posted by: chaunceyatrest on December 16, 2005 at 1:16 PM | PERMALINK

Steve White, I'm not sure you'd be willing to really face up to the implications of a decision that Guantanamo isn't sufficiently under US control for the Constitution to apply (as effectively held in Rasul). For example, if a prisoner was to obtain an order from a Cuban court directing his release, would you agree that the US has to honor it? Would you rather have Cuban courts deciding what rights the prisoners have, and what standards must be applied?

Your confidence that the GC have been observed is touching, but maybe not perfectly in line with the facts. Can you describe the procedures undertaken by the military -- prior to the Rasul decision -- to determine whether or not the people held were actually combatants?

DJ Moonbat: we're a long way from the answers. If Guantanamo is sufficiently under US control to make fundamental rights applicable, then can Congress just cut off fundamental rights without changing the nature of the control? (The right to be free of evidence obtained through torture, with its 400 year plus pedigree as described last week by the House of Lords, surely is part of this).

Of course the bigger question is why on earth we would want to do it this way. Dozens of prisoners are already on hunger strike, some very far advanced. Take away any process that even those the government admits are innocent can use to get review, and what do you think happens down there?

Does anyone think that Karen Hughes can fix the damage that would follow? Does anyone see any reason to find out?

Posted by: CharleyCarp on December 16, 2005 at 1:28 PM | PERMALINK
It seems to me that the argument that "everything is different now" betrays a complete lack of belief in principles. Human nature hasn't changed, only technology has. If the principles set forth in the Constitution and the Declaration of Indepencence no longer apply, well, what is left? Only the law of the jungle.

Yes, ral. That's what "conservatism" boils down to: a lack of faith in human nature. For my money that is true faithlessness.

Grab your plastic Cheney statuette and let's head for the bunkers!

Posted by: obscure on December 16, 2005 at 1:37 PM | PERMALINK

Chaunceyatrest, you're right to commend Steve White for his disagreement with the current text of G-L-K. The problem with even his fix, or with the original language, is that the amendment does not explicitly direct any new proceedings. New procedures don't do much good if we don't have new "trials."

The other problem, of course, is that the burden is going to be on the prisoner, who will not be allowed to have a lawyer, and will not be given access to any classified information -- which would include anything ever said by any other prisoner, and any evidence any US or foreign official has turned up -- to prove that any particular evidence was obtained under undue coercion. This wouldn't be an easy task under even the 'ideal' conditions of, say, a Texas capital case. But in a pro se drumhead action, with most of the evidence actively concealed, the burden is nearly impossible.

As I said before, instead of arguing about what the meaning of is is, whether and to what extent Eisentrager is good law, what the Insular Cases mean, whether Common Article 3 applies, what minimum we can get away with, we could be using the opportunity with these prisoners to show the best our system has to offer. My uncle-in-law was a German prisoner of the US (and the UK) during WWII. A stronger advocate and better friend of the US you could not find.

Is it fear, stupidity, or both that keeps us from using an opportunity to shine?

Posted by: CharleyCarp on December 16, 2005 at 1:43 PM | PERMALINK

My God, what cowards we've become since we founded the nation.

The Founders didn't live in safe or secure times. They'd lived through the French and Indian war, which was bloody and brutal and threatened the nation. The British frigging burned down the White House in the early 1800's!

And today, we've got milk-fed cowards arguing that we need to sacrifice our freedoms to this Administration, so they can make us safe. Sacrifice our freedom to a bunch of hysterical neo-cons who were so afraid of their own shadows that they invaded a country to protect us from weapons of mass destruction that didn't exist!

My God, what cowards we've become. From "they who would give up an essential liberty for temporary security, deserve neither liberty or security," to "habeas corpus, schmabeus corpus" in 200 years. Pathetic, really.

Posted by: theorajones on December 16, 2005 at 2:00 PM | PERMALINK

CharleyCarp: Is it fear, stupidity, or both that keeps us from using an opportunity to shine?

I would say it was deliberate cultivation and exploitation of fear and stupidity that placed this administration in office.

Posted by: ral on December 16, 2005 at 2:18 PM | PERMALINK

Theora Jones, we're not sacrificing any freedoms to the current administration. The very fact that all of you write, speak and do as you wish is ample evidence of that. There are not and will never be secret 'Ashkkkroft' camps for any American citizen.

CharleyCarp notes the treatment of German POWs during WWII. He's correct, and many ex-POWs remember us fondly: not just the German ones from WWII but also the Iraqi ones from the Gulf War. I note that a jihadi a) isn't a POW and b) isn't likely to think fondly of us whatever we do.

Some commenters suggest that since the Constitution does not mention 'citizens', it applies to all. That is, of course, absurd, and is easily demonstrated by this simple test: does the Consitution apply in France? No. Absurd to claim otherwise.

The Constitution applies to our country and to our citizens, and that's been expressly understood under the law. Congress has extended the freedoms and responsibilities in the Constitution (and particularly the Bill of Rights) to resident aliens in our country (a correct decision) and in certain other situations. It's even written laws that extend many (not all) protections to illegal aliens in the US. But it doesn't cover non-citizens, in a foreign country, even if held by American soldiers in a prison not on American soil.

What does apply is the Geneva Conventions. That's why military personnel captured on the battlefield are treated as POWs, and civilians in a battlefield are protected as best as one can. That's the charge of the first four protocols of the GC that the US has signed. Terrorists captured abroad are in a no-man's land as far as the GC is concerned: there is a protocol (I think Protocol 6) to cover them, but the US never signed it and isn't bound by it.

What also would apply would be Congressional action, if Congress were to write a law specifying how we'd treat terrorists captured abroad. If you want legal protection and certain legal procedures applied to a jihadi captured in Afghanistan while planting a bomb to kill American soldiers, you need Congress to write that law. In the absence of that, traditional military law applies.

That military law says that terrorists captured in military operations may, if one wishes, be shot without further due cause or legal notice. Please note that we aren't doing that either.

The Bush administration has indeed worked the edges and fringes of current law in how we handle terrorists captured abroad. In some ways they're right, and in some ways not. If you really want something done, write a law. In that sense, Sen. McCain's proposed bill is the correct response -- Congress is exercising authority and specifying rules, and (in the issue of torture) doing so correctly. If you want habeas corpus applied to a jihadi currently held in Gitmo, write a law.

Otherwise you'll have Presidents who test the edges. Make no mistake: a President Hiliary Clinton (for example) would find ways to use the edges and fringes of current law to meet whatever she might believe proper to meet our security needs. Presidents are charged with national security, and most of our Presidents have not been squeamish about addressing that.

Posted by: Steve White on December 16, 2005 at 3:07 PM | PERMALINK

I note that a jihadi a) isn't a POW and b) isn't likely to think fondly of us whatever we do.Posted by: Steve White

That's your opinion. In any case, descending to the level of your enemy destroys your credibility. This is why so many people have little sympathy for Israel.

Posted by: Jeff II on December 16, 2005 at 3:17 PM | PERMALINK

Jeff II writes, In any case, descending to the level of your enemy destroys your credibility. This is why so many people have little sympathy for Israel.

I hadn't noticed the IDF sending splodydopes to blow up Palestinian busses and pizza parlors, but I may have missed it. Perhaps you have a reference for me? Thanks in advance.

Posted by: Steve White on December 16, 2005 at 3:21 PM | PERMALINK

Steve White, if everyone wore nametags saying whether or not they are terrorists, it would be easier to take your position. There are people who have been held in Guantanamo who were not ever terrorists. The system you describe provides no outlet for vindicating this, and assumed infallibility on the part of whoever accuses some particular prisoner. Keep in mind that a great many didn't surrender to US forces on a battlefield, but were turned over -- bound, gagged, black and blue -- by Pakistani authorities, having been denounced to them, for a fee, by persons unknown. You are staking the honor of our military, our country, on the good faith and efficacy of the Pakistani intelligence service.

Would any Administration be acting aggressively? Probably. But one would hope it would be done in an intelligent manner.

I don't need to have a law written to give habeas rights to prisoners held in Guantanamo. Which is why some folks are busy writing one that will take away that right, and possibly require dismissal of pending cases.

Posted by: Charleycarp on December 16, 2005 at 3:38 PM | PERMALINK

I hadn't noticed the IDF sending splodydopes to blow up Palestinian busses and pizza parlors, but I may have missed it. Perhaps you have a reference for me? Thanks in advance. Posted by: Steve White

Why would you need those when you've got helicopter gunships (courtesy of the American tax payer), tanks, fighter jets, etc., etc.

The state of Israel should not exist. It was only allowed to come into being because of European and American guilt over letting Germany slaughter 6 million Jews. And, besides, it helped get a lot of the remaining Yids out of Europe. Who cares if they were displacing a bunch of Arabs in the process?

The irony, lost on folks like yourself, is that Israel has always treated the Palestinians, short of a "final solution," the same way that Nazi Germany treated its Jews prior to the camps. And the U.S. has been the primary enabler of this for about 50 years.

Posted by: Jeff II on December 16, 2005 at 3:40 PM | PERMALINK

CharleyCarp writes, There are people who have been held in Guantanamo who were not ever terrorists. The system you describe provides no outlet for vindicating this, and assumed infallibility on the part of whoever accuses some particular prisoner.

By no means am I advocating that we have no system for sorting out who is a terrorist or who isn't. My point above is that these individuals aren't entitled to Constitutional protection.

We absolutely should have a system, and the GC makes it clear for most prisoners: a tribunal. I'm not the sea-lawyer, but my understanding is that it isn't clear whether a terrorist is entitled to a GC-style tribunal, or whether a hearing of a different sort is fine (that's one of the things being litigated). For those individuals whom, as you note, where delivered bound and gagged, we should figure out quickly whether said person is a terrorist or an unfortunate, and act accordingly. I'm not happy with the length of time it's taken for this to happen with some of the prisoners at Gitmo, etc., but it's clear that the slow response is due, in part, to the complexity of the legal issues.

As to your point about habeas corpus for prisoners at Gitmo, the law is being re-worked because some claim that it does extend, and Congress needs to clarify it. Note that the claim is based on past Congressional action and not the Constitution.

Regards,

Posted by: Steve White on December 16, 2005 at 4:31 PM | PERMALINK

Jeff II, I support the right of Israel to exist. I would even support it if it kept the West Bank, Gaza and Sinai, since they won them in battle.

Jews have been in the region for 5,000 years. It's a mistake to think that all the Jews came from Europe. The Balfour declaration came after WW I, not WW II, so your timing is way off.

The Israels do not act like Nazis: there are no concentration camps, no crematoriums, and no mass murder of Palestinians. The best hope the Paleos have is, in fact, that the Israelis are a decent, humane people.

Finally, it's clear that you are a vicious anti-Semite. I won't be responding to you further.

Posted by: Steve White on December 16, 2005 at 4:35 PM | PERMALINK

The Constitution applies to our country and to our citizens, and that's been expressly understood under the law.

This is plainly false, you've been challenged on it, and you've failed to support it except by reasserting it. The Constitution applies to our government in all cases, but, except where expressly limited in application to citizens, its protections apply to persons, and the express limitations on the authority of government (rather than positive rights of persons) apply to the government regardless of who it is dealing with.

Posted by: Sheep Everywhere on December 16, 2005 at 4:37 PM | PERMALINK

Wow, darn it, I made that "Sheep Everywhere" mistake a lot before I caught it.

Posted by: cmdicely on December 16, 2005 at 4:54 PM | PERMALINK

but my understanding is that it isn't clear whether a terrorist is entitled to a GC-style tribunal, or whether a hearing of a different sort is fine (that's one of the things being litigated). For those individuals whom, as you note, where delivered bound and gagged, we should figure out quickly whether said person is a terrorist or an unfortunate, and act accordingly. I'm not happy with the length of time it's taken for this to happen with some of the prisoners at Gitmo, etc., but it's clear that the slow response is due, in part, to the complexity of the legal issues.

Most of the delay -- that is from the fall of 2001 to the fall of 2004 -- is due to the absolute refusal of the government to do anything. Only after Rasul was decided in the summer of 2004 has any process been provided, and it doesn't measure up to any reasonable standard.

We can disagree about whether the Constitution applies in Guantanamo. I think it does, and I think my side will prevail in the Supreme Court on the question. (footnote 15 in the Rasul decision certainly points my way). I'll say again, though, that the more important question is why don't we act as if it does, whether it does or not. If the government provided due process consistent with that it provided Jeffrey Daumer and Charlie Manson, no prisoner could complain about that, even if the government said at the same time that neither the Constitution nor the Geneva Conventions apply.

We should be in a position to be proud of how we handle these things, not defensive.


Posted by: Charleycarp on December 16, 2005 at 5:38 PM | PERMALINK

Jews have been in the region for 5,000 years. It's a mistake to think that all the Jews came from Europe.

At the time the Jews began returning to Palestine in great numbers, there were more Jews in NYC than there were in what became Israel. In fact, up until about 1975, there were still more Jews in NYC than what was Israel. Jews made up less than 5% of the population of the Levant by the end on WWI. If Palestinians were granted the right of return, they'd outnumber Jews by 2 to 1.

The best hope the Paleos have is, in fact, that the Israelis are a decent, humane people.

Your right! It's not the fault of the Israelis, it's their buldozers, road blocks, and economic sanctions that are racists.

Finally, it's clear that you are a vicious anti-Semite. I won't be responding to you further.
Posted by: Steve White

Typical right wing response to anyone critical of Israel. You haven't a factual or moral leg to stand on so you retreat to name calling.

Posted by: Jeff II on December 16, 2005 at 5:38 PM | PERMALINK

Why is this even a question?

I really don't understand. Why do we need a law saying Tribunals must consider probative value and source if it's been coerced?

If we aren't going to support terrorizing people, torturing people, or whatever (and why do I care about tying their hands? If they're going to torture someone, they're going to do it law be damned, why should we support ot openly?) And how will we ever be certain we won't be toturing the wrong guy or getting the wrong info anyhow?

This just seems like the perfect wedge issue between those who want freedom and those who don't.

Posted by: Crissa on December 17, 2005 at 7:21 AM | PERMALINK




 

 

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