Editore"s Note
Tilting at Windmills

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June 11, 2007
By: Kevin Drum

ENEMY COMBATANTS....The tide is turning, both politically and judicially, against holding enemy combatants indefinitely in military prisons:

In a stinging rejection of one of the Bush administration's central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians," Judge Diana Gribbon Motz wrote, "even if the President calls them 'enemy combatants,' would have disastrous consequences for the Constitution — and the country."

....[Ali al-Marri], whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

....A dissenting judge in today's decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush "had the authority to detain al-Marri as an enemy combatant or belligerent" because "he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States."

Hudson should be ashamed of himself. Al-Marri might be "the type of stealth warrior used by Al Qaeda," but nobody's denying that. The question at hand is whether the federal government is allowed to simply assert this indefinitely without evidence.

Question: Will the Bush administration allow al-Marri a trial, or will they appeal this to the Supreme Court and risk an adverse ruling? In the past they've played every legal game in the book to avoid the possibility of a definitive decision, but time may be running out. Eventually the Supremes are going to rule on this, and this might be the time. Stay tuned.

Kevin Drum 2:14 PM Permalink | Trackbacks | Comments (201)

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Comments

This completely destroys Bush's ability to protect us! America was the greatest nation in the history of the world, and now the savages will be streaming in with scimitars for cutting our throats and burkas for covering up our women!

Posted by: Never Was a Liberal on June 11, 2007 at 2:19 PM | PERMALINK

And it took almost six years to get to this point? We all should be ashamed of ourselves.

Posted by: Tighthead on June 11, 2007 at 2:24 PM | PERMALINK

Man. That Henry Hudson fellow sure sounds like a sophisticated and well informed gentleman.

Posted by: mattsteinglass on June 11, 2007 at 2:25 PM | PERMALINK

hey, idiots, the constitution was written pre 9/11. back then we didn't need a monarchy.

Posted by: an al on June 11, 2007 at 2:28 PM | PERMALINK

Man. That Henry Hudson fellow sure sounds like a sophisticated and well informed gentleman.

He's a strict constructionist, unlike those other two activist judges.

Posted by: Never Was a Liberal on June 11, 2007 at 2:28 PM | PERMALINK

"he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States."

Great. A judge who believes that people should be locked up based on what "type" of person they are. I wonder if Hudson would be willing to say what characterizes those types of people, and to lock every one of them up?

Posted by: RSA on June 11, 2007 at 2:32 PM | PERMALINK

I lived in Northern Va when Hudson was a Commonwealth Atty there. He was a pig then, he's a pig now. Was very big into anti-obscenity prosecutions (so much for strict constructionist).

Posted by: Martin on June 11, 2007 at 2:34 PM | PERMALINK

I doubt that Bushco fears an SC rejection. The worst they'd do is 5-4 in their favor. Hudson has nothing on Alito and Roberts.

Posted by: Kurzleg on June 11, 2007 at 2:36 PM | PERMALINK

Why do liberals hate Jack Bauer?

Posted by: elmo on June 11, 2007 at 2:37 PM | PERMALINK

The AP story on this ruling has the following headline:

Court Rules in Favor of Enemy Combatant

Say what? Doesn't the headline misleadingly assert the very thing that is under dispute? Does the detainee in question consider himself an "enemy combatant"? Isn't it the point of the ruling that the government can't simply slap that label on you and lock you away forever, that a person has the right to a legal process in which such a designation can be challenged?

A Google News search shows that some news outlets are already correcting this dumb headline. Sheesh.

Posted by: ppp on June 11, 2007 at 2:38 PM | PERMALINK

Judge Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, might be the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.

My guess is that the Honorable Judge Henry E. Hudson, SF would sign a confession to any crime if threatened with the type of treatment already given to al-Marri, which is why we have constitutional protections against that sort of thing.

Posted by: Brojo on June 11, 2007 at 2:39 PM | PERMALINK

Sounds like the Administration has what they need to charge, convict and incarcerate this guy the proper way.

So, if it's all about exerting executive power, aren't there other ways to achieve that besides showing utter contempt for the law? Or is the GWOT simply too tempting a playground to resist?

Posted by: wishIwuz2 on June 11, 2007 at 2:39 PM | PERMALINK

Hudson was, of course, a Bush nominee. That's a dreadful dissent. It may well be entirely possible to disagree with this decision on strictly legal grounds, but to disagree on the basis of emotional crap like that? And to actually write that crap into the opinion? As far as I'm concerned, Hudson has just confirmed that he is not qualified to be in the position he currently holds. That was disgusting.

Posted by: PaulB on June 11, 2007 at 2:40 PM | PERMALINK

Or is the GWOT simply too tempting a playground to resist?

It's like playing a violent video game: once you've obtained the BFG-9000, killing with a double-barrel shotgun isn't as fun anymore...

Posted by: rusrus on June 11, 2007 at 2:43 PM | PERMALINK

Ummm, why exactly are we confident that the current Supreme Court lineup will rule against the administration on this?

Posted by: chaunceyatrest on June 11, 2007 at 2:48 PM | PERMALINK

If the U.S. really has the goods on Al-Marri, and truly believe him to be dangerous, why not try him in a court of law and let us all see how bad a person he is? Why the Star Chamber approach? What is the Bush Administration afraid of?

Posted by: CT on June 11, 2007 at 2:51 PM | PERMALINK

Wow! That's (near) my home town (of Morton, Il) and it's my alma mater!

I never even heard about this!

Posted by: Dr. Morpheus on June 11, 2007 at 2:51 PM | PERMALINK

At last, we might finally force the recognition that it IS the Bill of Rights, not the Bill of Privileges.

Posted by: Steve Harsch on June 11, 2007 at 2:53 PM | PERMALINK

It's pretty interesting to see how in general the extreme positions taken on by Bush and company against our liberties are being re-evaluated.

It reminds me of what one reads about the McCarthy era, in which, at long last, fearmongering stopped working, and indeed started backfiring.

The 9/11 effect had its day. It was used cynically to advocate for things that only in a period of fear would find broad support. In the end, the shark was jumped, and the fear passed.

Now those who traded in fear will come to their richly earned disgrace.

Posted by: frankly0 on June 11, 2007 at 2:53 PM | PERMALINK

That's my home town and my alma mater!

Up till now I never even heard about this case!

Posted by: Dr. Morpheus on June 11, 2007 at 2:54 PM | PERMALINK

Damn. If the courts take away POTUS powers to hold any citizen indefinitely, how will President Hillary be able to send Bush and Cheney to Gitmo?

Posted by: Disputo on June 11, 2007 at 2:55 PM | PERMALINK
I doubt that Bushco fears an SC rejection. The worst they'd do is 5-4 in their favor.

I think there is a fair chance Bush loses by 5-4 in the Supreme Court. In the majority, Breyer, Ginsburg, Kennedy, Souter, and Stevens; in the minority Alito, Roberts, Scalia, and Thomas.

Posted by: cmdicely on June 11, 2007 at 2:57 PM | PERMALINK

Dr. Morpheus: That's my home town and my alma mater!

It's probably a coincidence, but even so, I hope the appropriate authorities are tracking your IP and determining whether you have any connections to al-Marri. It might seem overzealous, but we can't be too careful in these times.

Posted by: Never Was a Liberal on June 11, 2007 at 3:00 PM | PERMALINK

Wow! That's (near) my home town (of Morton, Il) and it's my alma mater! I never even heard about this!

He was arrested back in the day when even the arrests were kept secret.

(Ever take the bike path from Morton to Peoria? Nice ride.)

Posted by: Disputo on June 11, 2007 at 3:01 PM | PERMALINK

Where's that fucking fascist Al? How come Al, the fascist repukeliscum, shares the same first name as Al qaeda? Are Repukeliscum fascist nazis like Al actually plants of Al Qaeda? Al and Al Qaeda want the same thing - a permanent threat against the US. Without a permanent threat, the Repukeliscum pols will go down to defeat in this country, after all.

Posted by: POed Lib on June 11, 2007 at 3:04 PM | PERMALINK

My daughter was attending Bradley U. I probably shouldn't say this, since the logic of the King TURDBOY administration suggests that anyone would has been in contact, even indirect, with a terrorist is a terrorist.

Posted by: POed Lib on June 11, 2007 at 3:06 PM | PERMALINK

And it took almost six years to get to this point? We all should be ashamed of ourselves.

American history seems to be scattered with episodes of popular madness corrected rather quickly. It started as near as I can tell, with the Salem witches, an episode quickly followed by revulsion and rejection of the religious superstition involved in them. Think of others -- the Haymarket affair, which also resulted in the execution and posthumous pardon of innocent men; the Palmer raids in the midst of a red scare, which promptly became sufficiently unpopular to ruin Palmer's political career; McCarthy's career, and so on. Six years is probably as long as any of these episodes lasted, but Bush has had big advantages, including a Congress and judiciary largely shaped to his liking.

Posted by: David in NY on June 11, 2007 at 3:06 PM | PERMALINK

Serious question:

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

Posted by: sportsfan79 on June 11, 2007 at 3:10 PM | PERMALINK

Kevin: In the past they've played every legal game in the book

In other words: The Bush Administration has obeyed all applicable court decisions. When they believed a lower court decision was incorrect, they used the right of appeal to take the case to a higher court.

Doesn't sound so evil that way, does it?

Posted by: ex-liberal on June 11, 2007 at 3:12 PM | PERMALINK

They should just stop ducking and go to the Supreme Court. A guaranteed 5 to 4 win awaits them so of what are they afraid?

Posted by: Curt M on June 11, 2007 at 3:14 PM | PERMALINK

"I doubt that Bushco fears an SC rejection. The worst they'd do is 5-4 in their favor. Hudson has nothing on Alito and Roberts."
I'm not so sure that Alito and Roberts would go along with the Bush rape of the Constitution. They have both shown themselves to be legal craftsmen who respect the rules of legal and constitutional interpretation. As true conservatives, they should be as outraged by the administration's disregard for the Constitution as liberals are. But the same cannot be said for Kennedy. He joined Scalia and Thomas in the 20th century's most corrupt constitutional decision, voting for Bush in Bush v. Gore, a purely political decision that went against every rule of constitutional interpretation those three had previously insisted on.

Posted by: keith on June 11, 2007 at 3:15 PM | PERMALINK

The question of what to do with AQ fighters captured on American soil, especially those who are American citizens is a vexing one.

However, is it really your position, Kevin (and others) that enemy combatants captured on the field of battle in Afghanistan or elsewhere must be released to return to the fight unless the soldiers who captured them also happened to collect enough evidence to convict them of some war crime or other crime? If that is your position, then say so, plainly.

Posted by: DBL on June 11, 2007 at 3:15 PM | PERMALINK

How little changes - First, the Schiebels leave Bavaria for Princeville, Illinois because they did not want to serve under the despotic rulers in Bavaria - Not, just a few miles away from Princeville, another despot runs roughshod over the populace.

Posted by: thethirdPaul on June 11, 2007 at 3:21 PM | PERMALINK

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

If that is the criteria for being locked away without access to habeas corpus, then why aren't you in gitmo?

Posted by: Disputo on June 11, 2007 at 3:22 PM | PERMALINK

sportsfan79: How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

Yeah, how many of you bleeding heart libbies would do that? sportsfan is right. If you wouldn't have one of these people in your guest room, using your best hand towels and playing with your Xbox, you shouldn't consider giving them due process. How hard is that?

Posted by: Never Was a Liberal on June 11, 2007 at 3:22 PM | PERMALINK

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

If that is the criteria for being locked away without access to habeas corpus, then why aren't you in gitmo?

A technical knockout, I think.


Posted by: David in NY on June 11, 2007 at 3:29 PM | PERMALINK
If that is the criteria for being locked away without access to habeas corpus, then why aren't you in gitmo?

A technical knockout, I think.

Technical?!?

Posted by: kenga on June 11, 2007 at 3:42 PM | PERMALINK

Never Was a Liberal, I see you are doing such a fine job that never-ever has diasppeared after one brief entry. If that was the real never-ever. It's so hard to tell, sometimes. But I appreciate your efforts to bring us the alternative view so promptly.

================
I haven't been around to see what was deleted this thread, but I will say that deletion seems over-used at times. Are there any guidelines?

Posted by: notthere on June 11, 2007 at 3:50 PM | PERMALINK

Kevin is in serious need of troll repellent. Although I'm of the opinion that Never was a Lib is a parody of ex-lib.

Needless to say, the dissenting opinion in this case gives us a clue as to how much damage Dumbya has done to our judicial system in 6 short years.

Posted by: MeLoseBrain? on June 11, 2007 at 3:53 PM | PERMALINK

Why do liberals hate Jack Bauer?
Posted by: elmo on June 11, 2007 at 2:37 PM | PERMALINK

Jack Bauer never held anyone for 4 years with no trial. Question HOW he determined a suspect's guilt or innocence, but at least he got it over with in 24 hours or less.

Posted by: osama_been_forgotten on June 11, 2007 at 3:57 PM | PERMALINK

I think there is a fair chance Bush loses by 5-4 in the Supreme Court. In the majority, Breyer, Ginsburg, Kennedy, Souter, and Stevens; in the minority Alito, Roberts, Scalia, and Thomas.

Scalia, of all people, may not be able to stomach this--note that he voted against the adminsitration in Hamdi v Rumsfeld.

Posted by: rea on June 11, 2007 at 4:01 PM | PERMALINK

The third judge was Justice Roger Gregory, appointed by Clinton as a recess appointment in 2000.

Here is the opinion

Posted by: Adam on June 11, 2007 at 4:02 PM | PERMALINK

Scalia, of all people, may not be able to stomach this--note that he voted against the adminsitration in Hamdi v Rumsfeld.

Agreed. As nutty as he is, Scalia isn't a loyal Bushie like Alito and Roberts are. If anything, Scalia thinks that Bush works for him (as he does, since Scalia appointed him POTUS).

Posted by: Disputo on June 11, 2007 at 4:08 PM | PERMALINK

I've been trying to find the dissent in full.

Any ideas, anyone?

From the quote given this is obviously an inane dissent that has nothing to do with law, and everything to do with politics and judicial interpretation ignoring the constitution. Go figure!

What if there had been two of these asses?!

Here's another dumb shrub appointment that should be thrown out, it seems, on this opinion alone.

I'd be really interested in a Supreme Court ruling. That would tell us everything about these guys and gal.

Posted by: notthere on June 11, 2007 at 4:08 PM | PERMALINK
guest for a couple days? sportsfan79 at 3:10 PM
Rather him than you, any day.
...Doesn't sound so evil that way, does it? ex-lax at 3:12 PM
Keeping a guy in jail without charges without Habeas Corpus doesn't sound like the divine right of tyrants to you? You'd be a lot happier in the '30's.
....collect enough evidence to convict them of some war crime or other crime...DBL at 3:15 PM
Is it your position that any time Bush wants to imprison someone without charges indefinitely he should be allowed to do so? If you think that would be legal and constitutional, just say so plainly.


Posted by: Mike on June 11, 2007 at 4:12 PM | PERMALINK

Sorry for the double post, but the comments window isn't refreshing after posts lately.

I even closed the window and reopened it and still didn't see my comment.

Posted by: Dr. Morpheus on June 11, 2007 at 4:14 PM | PERMALINK
Scalia, of all people, may not be able to stomach this--note that he voted against the adminsitration in Hamdi v Rumsfeld.

Yeah, I could also see it 5-4 with Scalia in place of Kennedy, or 6-3 with Scalia and Kennedy both against the Administration, too. Though Scalia's position in Hamdi was rather narrowly bounded and doesn't in and of itself apply to the al-Marri case, and I can easily see Scalia distinguishing this case from Hamdi.

Posted by: cmdicely on June 11, 2007 at 4:14 PM | PERMALINK

Do the GOP and GWB in particular believe in democracy at all?

The answer suggests itself very emphatically if one looks at their contempt for the judicial system and the Congress.

Posted by: gregor on June 11, 2007 at 4:15 PM | PERMALINK

the full opinion is here.

(warning: PDF)

Posted by: Disputo on June 11, 2007 at 4:16 PM | PERMALINK

OK. Found it, Didn't read the ruling all through.

Posted by: notthere on June 11, 2007 at 4:17 PM | PERMALINK

How many of these victims will be terrorists when they are released? When they find their families dead or scattered, their property destroyed or stolen. We need a neo-Nuremburg. The world needs it.

Posted by: Michael7843853 G-O/F in 08! on June 11, 2007 at 4:20 PM | PERMALINK

How many of these victims will be terrorists when they are released?

Almost all. Which is why they should never be released.

Posted by: wingnut on June 11, 2007 at 4:26 PM | PERMALINK

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

Before I'd invite you Sport. With you, I know what I'm getting.

Posted by: ckelly on June 11, 2007 at 4:29 PM | PERMALINK

Detaining people without charging and trying them is a form of torture (mental cruelty). We don't torture people, do we? This keeps Right on our side, right?

Posted by: slanted tom on June 11, 2007 at 4:29 PM | PERMALINK

Do the GOP and GWB in particular believe in democracy at all?
Posted by: gregor on June 11, 2007 at 4:15 PM | PERMALINK

Yes!

Democracy is a wonderful and useful tool to keep the rabble convinced that they have a real say and a real choice in how their government runs, and where their tax money goes.

Some people drink Pepsi, some people drink Coke. . .

Posted by: osama_been_forgotten on June 11, 2007 at 4:29 PM | PERMALINK

"Sorry for the double post, but the comments window isn't refreshing after posts lately.
I even closed the window and reopened it and still didn't see my comment".
Posted by: Dr. MorpheusI

I just takes a while, maybe 30 seconds or more.

Posted by: slanted tom on June 11, 2007 at 4:32 PM | PERMALINK

You think Judge Hudson's opinion might cause the Republicans on the Senate Judiciary Committee some heartburn. He just handed the Democrats a powerful reason to slow walk Bush's appointments.

Posted by: Ron Byers on June 11, 2007 at 4:43 PM | PERMALINK

A happy day for the Republic.

The only legitimate time to suspend habeas, and this would be contingent on many factors, is during an invasion or a serious rebellion when the government is threaten with dissolution. Dick Cheney’s claim that the United States is engaged in an unprecedented struggle that requires the suspension of the Constitution for certain people is a cruel joke. Just the opposite is true. The United States today is the most powerful nation in the world, if there was any time of threat it would have been during the War of 1812 and maybe the Civil War.

The Cheney Regency’s assertion is merely that of policing power and power to detain without evidence or on the evidence of association. I keep point it out, but this is ever the claim of anti-republican tyrants. It is because of this illegitimate assertion of power that habeas is essential. When Cheney stands up and says we are in dangerous times fighting a wicked enemy who threatens us everywhere and because of this you must trust the executive with unilateral and sweeping powers- even against essential rights, he stands with kings and dictators. He does not stand with them symbolically, but literally as a part of a broader tradition of power. I suspect he isn't even aware of it.

Posted by: bellumregio on June 11, 2007 at 4:50 PM | PERMALINK

How many of these victims will be terrorists when they are released?

I believe that the government claims that 7 out of 146 have been bad in some way after being released. Deduct about 75% for the usual mendacity, and the anwer is not very many. Most of these were released because of pressure from their native countries. The real question, then, is -- had these 7 (or so) folks been promptly put to trial under full due process protections, convicted of some act, and imprisoned, instead of being held under conditions that would make their own countries demand their return, would they still be in prison? The answer: quite possibly, yes. The point: due process protects us, and its denial may be hurting us.

I know people who represent prisoners at Guantanamo. They say their clients are bewildered. They see real terrorist types let go. They see total innocents imprisoned indefinitely. It is truly Kafkaesque. A little dose of due process would be best for the security of our country.

Posted by: David in NY on June 11, 2007 at 4:50 PM | PERMALINK

Serious question:
How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

Since when have righty trolls ever been serious here?

Posted by: Bob M on June 11, 2007 at 4:51 PM | PERMALINK

Mercy me! I do believe that Henry Hudson is the spitting image of an activist judge.

Posted by: ckelly on June 11, 2007 at 4:52 PM | PERMALINK

Hudson: "...their analysis flows from a faulty predicate. In my view, the appellant was properly designated as an enemy combatant by the President of the United States pursuant to the war powers vested in him by Articles I and II of the United States Constitution and by Congress under the Authorization to Use Military Force (AUMF)...al-Marri has received all due process entitlements prescribed by existing United States Supreme Court precedent. I would therefore vote to affirm the district court's dismissal of al-Marri's Petition for Writ of Habeas Corpus...."

And Hudson's predicate? That we are "at war" with al Qaeda, therefore the President can call him an "enemy combatant" and he can be held, evidence or not, presumably, indefinitely and inhumanely.

I guess I'd ask how we can be "at war", in legal terms, any more than we can be at war with the mafia, or the SLA, or the Montana militia and suspend a legal resident's or US citizen's rights on preznit say-so.

One judge who believes this is one judge too many.

Posted by: notthere on June 11, 2007 at 4:55 PM | PERMALINK

At the end of the NYT article we get this:

Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.

The path for the Pentagon is obvious: deport Marri to a ghost prison in Eastern Europe or Syria.

Posted by: Disputo on June 11, 2007 at 4:56 PM | PERMALINK

Oops, that data on releases from Guantanamo I cited above is very old, from 2004. I'm aware of no recent data, though it may exist. I am aware that the process of release from Guantanamo is irrational.

Posted by: David in NY on June 11, 2007 at 4:57 PM | PERMALINK

Serious question:

If lefties on this board love the terrorists so much, why don't you just marry them?

Posted by: sportsfan69 on June 11, 2007 at 5:00 PM | PERMALINK

However, is it really your position, Kevin (and others) that enemy combatants captured on the field of battle in Afghanistan or elsewhere must be released to return to the fight unless the soldiers who captured them also happened to collect enough evidence to convict them of some war crime or other crime? If that is your position, then say so, plainly.

If you don't have any evidence that they've committed a crime then why are you charging them with one???

Posted by: Stefan on June 11, 2007 at 5:02 PM | PERMALINK

Serious question for the sportsfan:

If the Righties on this Board love freedom so much, why are they so scared of it?

Posted by: Doug-E-Fresh on June 11, 2007 at 5:05 PM | PERMALINK

nowhere your point is well taken. Hudson's opinion is based on the assumption that we are "at war" with Al Qaeda. That America is in conflict with Al Qaeda is without doubt, but "wars" only happen between nation states. Enemy combatant is a status afforded citizens representing enemy nation states which allows a nation to hold enemies without due process on the assumption that as soon as the war ends between the belligerent nation states they will be returned to their home country. Judge Hudson's logic leads directly to allowing the executive to declare war on anybody or any group. By his logic we could hold suspected drug dealers as enemy combantants in the war with drugs. Down Hudson's path lies the end of American civilization.

Posted by: Ron Byers on June 11, 2007 at 5:08 PM | PERMALINK

"The question of what to do with AQ fighters captured on American soil, especially those who are American citizens is a vexing one."

Actually, it's not even remotely vexing. If they are captured on American soil and/or they are American citizens, they are entitled to the full protection of the law.

"However, is it really your position, Kevin (and others) that enemy combatants captured on the field of battle in Afghanistan or elsewhere must be released to return to the fight unless the soldiers who captured them also happened to collect enough evidence to convict them of some war crime or other crime?"

Dear heart, the majority of people held in Guantanamo were not "captured on the field of battle" and are, in fact, completely innocent. When you are prepared to talk about the innocent men held in Guantanamo, we might be able to have a fruitful discussion.

"If that is your position, then say so, plainly."

We have stated our position, repeatedly. That you are not paying attention, preferring to joust with those evil straw liberals created in your own head, says more about you than it does about us.

Posted by: PaulB on June 11, 2007 at 5:15 PM | PERMALINK

The often-overlooked aspect of these habeus cases is that we are not technically "at war". The AUMF is not an official declaration of war, and if Dumbya wanted to play war preznit with all its bells and whistles, he should have asked Congress to issue an official declaration of war.

But they didn't want to do that. It was approaching mid-term elections, and any war declaration would have been antithetical to the right's claim to "do the war on the cheap". They made a calculated decision not to declare war, yet want all of the powers that go with it. And all of the "strict constructionists" view this as trivial constitutional niceties.

Posted by: MeLoseBrain? on June 11, 2007 at 5:16 PM | PERMALINK

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

sportsfan79, you and all your buddies are so f---ed when I get to be President.

"At war" -- check, 'cos we say so.
sportsfan79 an "enemy combatant" -- check, 'cos preznit says so.
empty solitary cell -- check, got your name on it.
evidence -- shucks we'll make it up 'cos noone has to see it.
key -- check, disposable, single use only.

It's the new USA way.

Yearning to breath free? fa'ged aboudit!

Don't suppose there's anyone in the US I'd invite into my home to stay a few nights sight unseen for no other reason but. That's just common sense.

evacuees, refugees, maybe. But I never found myself tempted to invite the homeless person on the corner to jump in my car and come on back to my place for a few days either.

Posted by: notthere on June 11, 2007 at 5:30 PM | PERMALINK

Down Hudson's path lies the end of American civilization.

I do not normally go in for the "slippery slope" argument, preferring that we just put on cleats. But in this instance it is exactly right. We can't venture down that path even a little bit.

Posted by: Blue Girl, Red State (aka G.C.) on June 11, 2007 at 5:32 PM | PERMALINK
Down Hudson's path lies the end of American civilization.

I think that is to generous: Hudson's position is in itself—not just the path to—the utter rejection of "American civilization" inasmuch as that is characterized by the ideals of limited, accountable government.

It isn't the first step on a slippery slope, its jumping right of the edge of a chasm. If arbitrary detention without substantive review is allowed as long as the executive mouths the right excuse, it doesn't matter what the required excuse is, you've got a tyranny in which the executive has unconstrained power to detain anyone on a whim.

Posted by: cmdicely on June 11, 2007 at 6:12 PM | PERMALINK

The AUMF is not an official declaration of war...


Even if it was it's expired.

The AUMF called for the "disarming of Sadam", since there were no WMD and since, even if there were, Sadam is no longer alive, none of the clauses are applicable.

Which leads me to wonder under what authority does Bush continue the occupation of Iraq? Congress has not given him any.

Posted by: Dr. Morpheus on June 11, 2007 at 6:18 PM | PERMALINK

I thought Hudson had been put on the court by Reagan, soon after his service with the Meese porn commission in 1986. But maybe he didn't get through that time.

The district court page, incidentally, is singularly uninformative about the judges on the court. Apparently if we know who the judges are, then the terrorists win...

Posted by: noplot on June 11, 2007 at 6:44 PM | PERMALINK

they hate us for our freedom fries

Posted by: cboas on June 11, 2007 at 6:53 PM | PERMALINK

The 4th Circuit is very conservative. This panel had 2 Clinton appointees. Bushco will ask for en banc review by all the memebers of the Circuit and likely get it and a reversal. On the other hand, even the conservative memebers of the circuit bench may remember the games played by Bushco with Luttig and do nothing...

Posted by: bushworstpresidentever on June 11, 2007 at 7:00 PM | PERMALINK

This particular court is also one of the most conservative in the country, so the old "left wing liberal California court" argument won't work this time either.
This one might be second only to the Fifth Circuit as most conservative. Not a good omen in terms of SCOTUS appeals. Although maybe the full circuit will reverse, but I doubt it.

Posted by: Ringo on June 11, 2007 at 7:06 PM | PERMALINK

Oops, bwpe beat me to it. Although I'm not so sure of a full court reversal unless the only two Clinton appointees were part of this one.

Posted by: Ringo on June 11, 2007 at 7:09 PM | PERMALINK

Having only taken one Constitutional Law class in college, please correct me if I am wrong. However, I believe that Appeals Court decisions are considered prescedent, if not successfully appealed, at a minimum, for the region governed by the Appeals Court.

Therefore, if this Appeals Court has jurisdiction over the Pentagon, there will be no choice but to appeal it to the full Appeals Court, or the Supreme Court.

Chris
Las Vegas, NV

Posted by: Chris in Vegas on June 11, 2007 at 7:30 PM | PERMALINK

Having only taken one Constitutional Law class in college, please correct me if I am wrong. However, I believe that Appeals Court decisions are considered prescedent, if not successfully appealed, at a minimum, for the region governed by the Appeals Court.

This is partially correct. U.S. Courts of Appeals' decisions are binding precedent only for lower federal courts in their respective circuit.

Posted by: cmdicely on June 11, 2007 at 7:45 PM | PERMALINK

Chris in Vegas,

I believe (And correct me if I am wrong. I also apologize if this has been discussed earlier, I only skimmed the posts) that the only option that the Bush Administration has left is to appeal to the Supreme Court. What happens is that the Administration will risk an adverse ruling that applies everywhere in the United States. Thus, if the Supreme Court rules against the Administration (which it appears that they will), they will have to release all "enemy combatants," or, at least, give them a proper trial.

Also, to add to what cmdicely has stated. Circuit Court decisions, while not binding in other circuits, are pursuasive (unless it's a 9th Circuit Decision).

Posted by: adlsad on June 11, 2007 at 9:18 PM | PERMALINK

How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?

I stopped counting after reading 8 replies to my comment at 3:10.

Bottom line: EVERY SINGLE ONE OF YOU DUCKED THE QUESTION. COWARDS.

Predictable. That tells me or anyone else all they need to know about you.

Posted by: sportsfan79 on June 11, 2007 at 9:28 PM | PERMALINK

no, sportiespice; everyone answered it; you're just too stupid to comprehend the answers.

My advice to you is to sue your parents and teachers for negligence.

Posted by: Disputo on June 11, 2007 at 9:36 PM | PERMALINK

Thank you, Kevin Drum, for bringing this to the forefront. It has been an abomination.
Bush has been the dark prince of prime time, reminiscent of all things wrong, and I object to the nastiness of the holding of so-called combatants. The enemy within is the gov't.

Posted by: tired of this shit on June 11, 2007 at 9:40 PM | PERMALINK

Chris,

I made some mistakes in my last post that I need to correct.

This ruling was from a district court in the 4th Circuit. The next step would be to the U.S. Court of Appeals 4th Circuit. Again, as stated earlier by cmdicely, a decision by the 4th Circuit Court of Appeals is only binding to federal courts in that circuit.

Also, the last bit about the 9th Circuit was a joke (and a bad one at that).

Posted by: adlsad on June 11, 2007 at 9:47 PM | PERMALINK

Will the Bush administration allow al-Marri a trial, or will they appeal this to the Supreme Court and risk an adverse ruling?

Whatever they do, I sure that the career professionals in the Justice Department will be ignored. Who needs them when you have an AG like Gonzales?

Or for that matter a Solicitor General like Paul D. Clement. Don’t know much about him, but he clerked for Judge Laurence H. “Lets get Bill Clinton” Silberman of the U.S. Court of Appeals for the D.C. Circuit, and for Associate Justice Antonin “Election Stealer” Scalia of the U.S. Supreme Court. Then he worked for the Washington, D.C., office of Kirkland & Ellis. All that gives me great confidence.

Posted by: little ole jim from red country on June 11, 2007 at 10:06 PM | PERMALINK

Bottom line: EVERY SINGLE ONE OF YOU DUCKED THE QUESTION. COWARDS

It's you who are trying to duck the real issue - the unlawful suspension of habeas corpus and its deadly consequences for the Republic - by trying to make this instead about "nice" guys you'd have in your home versus bad guys you wouldn't who ipso facto shouldn't therefore be afforded any of the basic rights that are part of the foundation of Western civilization.

Let's be clear: I want Charles Manson and Jeffrey Dahmer and Duke Cunningham and all past and future Republican scum wrongdoers to have constitutional protections because if THEY have them it means I will get them.

Having said that, I'd have either the pre-tortured or post-tortured Al-Marri in my house. I have no problem trying to talk crazies out of their beliefs, as my record here at Political Animal clearly shows. And credit card fraud isn't particularly frightening, unless apparently you're a wingnut.

Posted by: tRex on June 11, 2007 at 10:06 PM | PERMALINK

Sportsfan79,

You state, "How many of the lefties on this board would invite al-Marri into your home to stay with you as a guest for a couple days?" Then you go on to chide people.

Now, I am sure that someone answered your query better and more clearly than I will, but I will try my best to answer you.

First, there is a flaw in your logic - you are comparing two things that are completely unrelated (I do not know the proper logical term for this). I do not allow a lot of people in my apartment (as, I am sure, many people do not want me in their homes). But that does not mean that I approve of them being seized by the government and detained indefinately.

Second, you are asking us a loaded question, and you seem to have already made up your mind about us. Whatever answer that we give you will be the wrong answer to you. If I say that I will allow him in my home, you will think that I am a terrorist sympathizer. If I don't, you will say that I am a hypocrite. Keep in mind that whether or not I allow this gentleman in my apartment has nothing to do with government agents seizing a civilian and holding him indefinately.

Third, your question already assumes this man's guilt. How is he guilty? Because the government says he is? As if they have not been wrong on anything before. If he is guilty, then give him a trial and let his guilt or innocence be determined in a court of law.

Maybe that's not the answer that you want. But it doesn't matter because no answer that I give you will satisfy you. And this is upsetting because this is an extremely important issue to me, to a lot of posters on this blog, and to a lot of citizens in the United States. Because most of us realize how important the issue of habeus corpus is in our justice system. And many of us believe that if one person loses it, we all lose it.

Posted by: adlsad on June 11, 2007 at 10:10 PM | PERMALINK

What is truly “shocking” is the inconvenient truth about Guantánamo. Based entirely upon the United States Government’s own documents, research undertaken by the Seton Hall University School of Law has revealed striking data regarding the profile of the Guantánamo detainees (pdf, 467 kb). The following data is largely ignored and often hidden from Americans. Among the data revealed by the Report:

Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.


This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.


55% of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.


Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% have no definitive affiliation with either al Qaeda or the Taliban.


The Government has detained numerous persons based on mere affiliations with a large number of groups that are, in fact, not on the Department of Homeland Security’s terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably.

Throughout the Bush administration and the 109th Congress, the Constitution and its guarantees have been severely curtailed and redefined. America’s standing in the world is the lowest it has ever been. Those who are labeled “enemy combatants” lose many rights including habeas corpus, with the passage in October of the Military Commissions Act.

The abuse of prisoners and their inability to challenge their detention is a stain on America’s legacy of liberty and justice for all. It is not too late for Americans and their representatives to right the wrongs that have been committed and finally confront this inconvenient truth.

Posted by Jamil Dakwar, ACLU Human Rights Working Group in Torture & Abuse at 4:28 PM | Comments (2) | Trackbacks (0)
Thursday, May 18, 2006
The Beginning of the End or the End of the Beginning?
Today’s hearing was perhaps the shortest of the military commission proceedings since they started in August 2004. Mr. Abdol Zaher (pronounced Thaher), a 34-year-old native of Hasarak, Afghanistan, and father of three sons, appeared for less than five minutes before the presiding officer, Marine Col. Robert Chester. After receiving “satisfying answers” from the detaining authorities in Guantánamo, Mr. Abdol Zaher’s military defense attorney, Army Lt. Col. Thomas Bogar, withdrew a motion he had filed to protest Mr. Abdol Zaher’s conditions of confinement.

Lt. Col. Bogar explained after the adjournment that he was trying to improve Mr. Abdol’s Zaher’s conditions of confinement which worsened as a result of his transfer last march from camp 4 to camp 5. For Mr. Abdol Zaher, the transfer to camp 5 meant being held in a single cell in an austere steel and cement block facility that houses all 10 Guantánamo detainees who face charges before military commissions. In camp 4, Mr. Abdol Zaher enjoyed less restrictive conditions and shared a communal facility with other detainees from Afghanistan. Unlike some of the detainees in camp 5, Mr. Abdol Zaher has not threatened to boycott the proceedings and, according to his lawyer, he is still keen to cooperate and prove his innocence before the commission.

Posted by: stop this craziness on June 11, 2007 at 10:11 PM | PERMALINK

June 5, 2007

Is This the End of the Military Commissions?

Today, two military judges hammered a couple of more nails into the coffin of the military commissions when they dismissed the cases of Omar Khadr and Salim Ahmed Hamdan. Army Col. Peter Brownback III and Navy Cpt. Keith Allred both held that the prosecution had failed to show that Omar Khadr and Salim Ahmed Hamdan were unlawful enemy combatants and thus the military commissions did not have jurisdiction to try them.

The primary grounds for the dismissal were the same in both cases. Basically, the Military Commissions Act of 2006 (MCA) provides the military commissions with jurisdiction over: (1) individuals who meet the MCA’s definition of unlawful enemy combatant (which HRF has criticized for being overbroad and vague) or; (2) over individuals who have been found to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or by another competent tribunal. The MCA specifies that military commissions do not have jurisdiction over so-called “lawful enemy combatants.” And herein lies the problem. The CSRTs established by the Bush Administration beginning in 2004 only determined whether a person was an enemy combatant, using a different definition than the MCA’s, for the purpose of detention. The CSRT did not determine if a person was an unlawful enemy combatant – as defined in the MCA – for the purpose of trial by a military commission.

In both the Hamdan and the Khadr cases, the prosecution attempted to argue (among other things) that this distinction didn’t matter. According to the prosecution, based on President Bush’s February 7, 2002 memorandum (in which the President found that Taliban and al-Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions), all al-Qaeda and Taliban detainees were unlawful combatants. In addition, the CSRT proceedings found each of Khadr and Hamdan to be enemy combatants. Merging these two determinations, the prosecution argued, Khadr and Hamdan were unlawful enemy combatants for the purposes of the MCA. Both Col. Brownback and Cpt. Allred disagreed.

In fact, Cpt. Allred rejected the prosecution’s argument, based on the President’s memorandum, that the President could determine unlawful combatant status for a group of people, as opposed to an individual basis, for the purpose trial before a military commission. Indeed, during the argument, Cpt. Allred asked the prosecutor (and I am paraphrasing) if he wasn’t troubled by the idea that the President could declare an entire group of people to be unlawful combatants without any individual, factual finding.

Cpt. Allred put his finger on one of the major problems with the administration’s detention, interrogation, and prosecution policies over the past five years. The reason there is so much confusion – including among military judges! – about what constitutes an “unlawful enemy combatant” vs. “an enemy combatant” vs. an “alien unlawful enemy combatant” is that most of these categories have no basis in the laws of war and their definitions in the last five years have constantly changed. In his February 2002 memorandum, the President and his administration invented a whole new category for prisoners. Since then, members of the administration have greenlighted the use of harsh interrogation policies on this new category of people (policies that have since been rejected by Congress), subjected them to indefinite detention, and fashioned a wholly new trial system to prosecute a small number of them. The military commissions are the latest manifestation of flawed policy choices.

So do these rulings mark the end of this second version of the military commissions? Maybe. Maybe not. The prosecution has indicated its intent to appeal both the Hamdan and Khadr dismissals. But more and more, the military commissions are like a game of whack-a-mole—just when the administration thinks it has taken care of one emerging crisis, another appears. And Congress is taking note. In response to this latest setback, at least one senior Republican Senator, Arlen Specter, has voiced his deepening concern regarding Guantanamo and the commissions. Isn’t the administration tired of this game? The United States doesn’t need to continue this way when it has two widely-admired, tried and tested judicial systems: it’s time to go back to using either the U.S. federal courts or courts-martial, as applicable, to try terrorist suspects.

Posted by: Congress take note on June 11, 2007 at 10:23 PM | PERMALINK

Okay, but would you guys lend al-Marri a hundred bucks?

Posted by: sportsfan69 on June 11, 2007 at 10:27 PM | PERMALINK

Security Detainees/Enemy Combatants
Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Hina Shamsi – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

March 23 , 2007

Quick, What Are The First Five Things That Come To Mind When You Think of Guantanamo?

This isn’t a test – don’t think too hard – just note what pops into your head.

I did this exercise myself in the last couple of days, once the U.S military confirmed that I could go to the U.S. naval base in Guantanamo to observe a hearing in the case of Australian detainee David Hicks. The hearing is this Monday, March 26. My organization, Human Rights First, has sent an observer to Guantanamo to report on every hearing since they began in 2004, but this will be my first trip. I work on related issues daily, but it’s been a while since I thought about what it evokes personally.

Not unexpectedly, my responses were pretty lawyerly – at the core of each was the concept of Guantanamo as a law-free zone – and I got to wondering what the place evokes for people who don’t work on human rights and civil liberties issues. So, in a completely random survey that doesn’t aspire even to a pretense of science or impartiality, I got responses to my question from ten friends whose only basis for inclusion is that they called me back within a 24-hour period. Oh, I tried for geographical diversity (hello Montana, California and Illinois!) and also included an old buddy from North Carolina who identifies himself as a conservative thinker. I’ll get to the responses, but first, a note about the significance of the Hicks hearing.

Monday’s Significance

David Hicks has been charged with material support for terrorism. (My post for this blog on Monday will be about the specifics of Mr. Hicks’ case and the parallel proceedings his lawyers in Australia and the U.K. are pursuing.) It’s likely that the Monday hearing will be pretty mundane: it is the arraignment at which the charges against Mr. Hicks will be read. Mr. Hicks will then be asked to make a plea. The judge may set a schedule for legal motions by both sides and, unless any issues are raised by the prosecution or the defense, that’s likely to be it.

Still, Monday will be significant for Mr. Hicks’ father, who will see his son for the first time in three years. The father is already apprehensive and anticipating the emotional toll and stress. I can’t begin to imagine what a parent in that situation feels like. But Mr. Hicks at least has seen his son. The families of most of the approximately 385 detainees still at Guantanamo have not, for more than five years.

The other significance of Monday is that it’s the first military commission hearing to take place since the old system established under an order by President Bush was struck down by the Supreme Court in June 2006 in Hamdan v. Rumsfeld. Hamdan, of course, is one of the most important Supreme Court decisions on the limits of Presidential power, and the Court made clear that the executive branch must comply with U.S. laws and treaties on fair trials and humane treatment. Congress then responded with the Military Commissions Act of 2006 (MCA), which the President signed into law in October last year, and which establishes a military trial system that is deeply flawed, but not as much as the old system. If you want to travel down memory lane to recall just how bad the old system was, here’s HRF’s analysis of it.

The new military commission system’s proponents say it’s possible to have a fair trial under the MCA – and theoretically, that’s possible, but only if the trial is presided over by heroically ethical judges who don’t do what the law tells them they can. For example, the law says judges can:

allow evidence obtained through coercion;

order that evidence showing the defendant’s innocence or otherwise favorable to his defense be provided only in summary or redacted form, if the government claims it’s classified; and

try people (including civilians captured far from any battlefield and who may not have committed any terrorist act) for acts that weren’t war crimes when they were committed.
That’s just a start; you can read about some of the other flaws here (And I don’t have the space here to write about the most distressing aspect of the MCA, its stripping from the Guantanamo detainees the right to challenge the basis for their detention, through habeas corpus, which the Supreme Court recognized in 2004, in Rasul v. Bush. The habeas-stripping provision is being challenged in cases now heading to the Supreme Court.) Justice Robert Jackson famously said in his opening statement to the International Military Tribunal at Nuremberg, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.” We would do well to remember his admonition.

Back to “Guantanamo”

We know that the administration established the prison there on the theory that it was not U.S. territory and detainees would not be protected by U.S. or international laws requiring due process and humane treatment. In essence, no law, no protections. That theory was soundly rejected by the Supreme Court in Rasul, of course, and again in Hamdan. Also, in large part as a result of the efforts of dedicated lawyers, military and civilian, and also because of legislative measures like the McCain Amendment, improvements have been made (but more on Monday about continuing concerns on detainee treatment). Still, the administration may have got what it wanted, but not in the way that it wanted it. The reality is that Guantanamo is no longer completely lawless, but that may not matter for perception.

Based only on my (non)survey:

Every single person referred to torture or abuse as the first or second thing that came to mind about Guantanamo. Some (most) specifically said “Torture.” A couple of people reeled off specific techniques, including, to my surprise (a lesson learned about friendship and preconceptions), the metals trader from Delaware who recited: “waterboarding, deprivation, not allowed Korans, forced renditions, forced confession.”

The next highest category (five people) responded with what I think of as “emotional words”: “Wrong”, “Abhorrent”, “Horror”, “Frustration” [later explained as frustration with the U.S., that this was happening], “Shaming of America.”

For about half the people, Guantanamo evoked “military”. One expanded: “There’s a social contract between people and the military. They protect us, in a manner that protects our ideals. We’re supposed to support them and protect them, not ask them to do things that are immoral or against what this country stands for.”

The impact on the U.S. and its reputation was another common theme, with four people expressing variations (e.g. “Un-American,” “violation of every principle this country is built on”, “Pariah, I mean the U.S.’s behavior that’s led to international opprobrium, we’re outside the community of nations”). It was the main response of my conservative friend: “We stand for the universal rights of man, the idea of the city on a hill. . .[This is] not something Reagan would have approved of. Not what Americans do.”

And then there were the responses I think of as specific to the person: “Control” (the psychologist), “No value” (the investment banker), and “black” (the lawyer who, asked to explain, said “legal black hole”).
You probably didn’t need my little exercise to tell you what you already know: Guantanamo is a symbol of unfairness, of cruelty and it’s badly hurt the United States’ human rights reputation around the world. But, on the eve of trials starting again, it might be interesting to think (and ask around) this weekend what “Guantanamo” evokes for you and your friends.

My responses? Torture. Indefinite and arbitrary detention. Hamdan. The detainees, Gitmo-ize.

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Posted by: keep on keeping on on June 11, 2007 at 10:29 PM | PERMALINK

As with the previous military commission proceedings, it is not only Khadr and Hamdan who will be on trial this week but also five years of U.S. detention and interrogation policy. Both Khadr and Hamdan have alleged they were tortured and mistreated by U.S. officials while at Guantanamo. According to Hamdan’s lawyers, he was placed in solitary confinement for 10 months and was subjected to beatings by U.S. forces, made to sit motionless for days, dressed inadequately in subfreezing temperatures, and threatened with death and torture. To protest his harsh detention conditions, Hamdan at one point had gone on a hunger strike and lost 50 pounds while in detention.

Khadr was only fifteen years old when he was picked up in Afghanistan. He has spent the last five years of his teenage life in U.S. custody. According to his Canadian lawyers who met with him last week, he is “wasting away in a basement cell, doesn't see daylight and isn't allowed to exercise.” Khadr’s treatment during interrogations, alleged in court filings, is particularly devastating in light of his age. Khadr was reportedly held in contorted stress positions and left to urinate and defecate on himself, later, military police allegedly poured pine oil solvent on him and used him a "human mop" to clean the floor. Khadr also claims he was repeatedly threatened with rape and rendition to countries where he would be tortured, including Israel, Egypt, Syrian and Jordan.

President Bush’s own Secretary of Defense Robert Gates supported closing the prison and has informed Congress that “no matter how transparent, no matter how open the trials, if they took place at Guantanamo, in the international community they would lack credibility." The writing seems to be on the wall for these new military commissions.


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Previous Diary Entries

Read previous posts from Human Rights First observers.

Related Links

Military Commissions: An Overview

Read about the Individual cases


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Posted by: now the story's played out like this on June 11, 2007 at 10:45 PM | PERMALINK

If al-Marri wanted to borrow your car to get to a job interview, would you let him?

Posted by: sportsfan69 on June 11, 2007 at 10:48 PM | PERMALINK

How does George Bush sleep?

From the article:

What a hideous combination of conceits Bush has. He has the ego that drives him to want to be the top man. He has the arrogance to think that he his qualified. But he has the laziness that makes him not want to actually do the job. He has the insecurity that makes him want to cover up his faults. He has the smallness of character that will not concede his weaknesses and seek out help. He has the hubris to think that he could cover up all this, run the world into the ground and think that people won't notice. How has the world fallen into the grasp of this tiny, tiny man?

George W. Bush is the perfect storm of character flaws. Not only does he bring all of these horrible traits together at once, but he does at the worst possible time in the worst possible position. The president of the United States of America has to be the most competent person on earth. And somehow the exact opposite has snuck in to that role.

Posted by: The Conservative Deflator on June 11, 2007 at 10:56 PM | PERMALINK

If al-Marri took a sip of your beer, would you wipe off the rim of the glass before you resumed drinking from it?

Posted by: sportsfan69 on June 11, 2007 at 11:03 PM | PERMALINK

If al-Marri wanted to borrow your car to get to a job interview, would you let him?

My liberal principles demand it!

But I'd draw the line at letting him do my hair....

Posted by: tRex on June 11, 2007 at 11:03 PM | PERMALINK

Those POW's fought under the flag of Germany, a sovereign nation, and the Geneva Conventions applied to them. Totally different situations. Wanna try again?

Posted by: Blue Girl, Red State (aka G.C.) on June 11, 2007 at 11:21 PM | PERMALINK

The hate America syndrome runs rampant now in liberals, probably due to their hearing someplace that is the sophisticated thing to do. That kind of talk goes well with Chardonnay.

Oh, and by the way, dickhead, stop ascribing me motives. And I drink single malt scotch or fine bourbon.

Posted by: Blue Girl, Red State (aka G.C.) on June 11, 2007 at 11:24 PM | PERMALINK

Yep, weepy liberals like Colin Powell...the guy who would shut down Guantanamo in a matter of hours.

Posted by: Bobster on June 11, 2007 at 11:30 PM | PERMALINK

mhr: Liberals need to invent a sense of their superiority to justify the completely unmerited high opinions they have of themselves. ... blahblahblahblah...

... and not a single reference to Marx or Communism in that rant! MHR, you're going soft!

Posted by: Constantine on June 11, 2007 at 11:33 PM | PERMALINK

Prefer Jamesons myself...although a good sipping bourbon does hit the spot at times.

Posted by: Bobster on June 11, 2007 at 11:33 PM | PERMALINK

mhr,

I know that you are a troll, and you are just posting this to provoke a reaction. But I will comment on your post anyway.

First, the U.S. in WWII tried to treat the German prisoners of war according to the Geneva conventions and treat the prisoners as humanely as possible.

Oh, I forgot to mention, they were called "prisoners of war." We did not invent a new term "enemy combatant" to sidestep both domestic and international law.

Second, we did not torture, abuse, or humiliate German POWs. In addition to giving our forces a boost in morale (because we could rightly claim to have moral superiority), the humane treatment of POWs actually encouraged the surrender of many Axis forces. Unfortunately, thanks to President Bush, Vice President Cheney, Donald Rumsfeld, John Yoo, Alberto Gonzalez, and all of their enablers, we can't rightly do that in this conflict.

Third, I have friends who grew up in Japanese internment camps. Some are still very bitter about it. I think that nowadays, most Americans (both Democrat and Republican) view the intenment camps as both morally reprehensible and counterproductive.

Posted by: adlsad on June 11, 2007 at 11:34 PM | PERMALINK

Isn't the chardonnay snark a little Dennis Miller circa 1999. Maybe the RNC should update their stereotypes.

But that would require someone there to actually be witty and original.

Posted by: squall on June 11, 2007 at 11:36 PM | PERMALINK

Ah, Kevin.

We are at war Kevin, fighting for the future of hte country. You want us to quit just when we have them on the ropes. Were going for the juguler, and you want to call off the hounds.

Al Mari is a stealth warrior, Kevin, just the type of guy whose the most dangerous. A wounded animal in a corner is at its most dangerous, and now we want to let him go?

In WWII, imagine what would happen if we had let all our prisoners go, so that they could "understand us". We'd all be speaking German right now eating raw fish hens and rice. But you'd like that, wouldn't you, you fascist loving elitist multicultralist?

Posted by: egbert on June 12, 2007 at 12:05 AM | PERMALINK

raw fish hens

???

OK. That is at least original.

Good one, Egbert.

Posted by: squall on June 12, 2007 at 12:13 AM | PERMALINK


Sportsfan, you're a genuis man, this is a great game.

So tell us, if we chain up al-Marri and give you a chain saw, would you cut him in half, starting from this head all the way down to his crotch?

Posted by: sportsfan admirer on June 12, 2007 at 12:19 AM | PERMALINK

Ooh, ooh, I got a better one sportsy,

Lets say we tie down al-Marri, naked, then we hand you a couple jugs of 98% sulphuric acid, would you pour them slowly over his entire body while the acid ate away his flesh amid screams of horror?

Posted by: sportsfan admirer on June 12, 2007 at 12:23 AM | PERMALINK

You're right sport, we can do better than that, those were just too limited to be any fun.

How about we tie him down naked, again, this time we give you a 7" angle grinder, a 24oz claw framing hammer, of course the required power drill, no make that a hammer drill with a full assortment of bits, some 18" water pump pliers, sure, we'll still let you use the chainsaw and sulfuric acid, maybe throw in some 70% Nitric, and 48%HF, salt to go with the angle grinder, some really big ass clamps, and some 240v electrodes. Would you be man enough to take him out?

I want an honest answer here, not just some more of your internet BS designed to side track the discussion.

Posted by: sportsfan admirer on June 12, 2007 at 12:35 AM | PERMALINK

egbert: "Al Mari is a stealth warrior, Kevin, just the type of guy whose the most dangerous."

Your expertise in this matter is stunning, egbert. It;s hard to know "whose" better qualified to judge guilt and innocence: you or Dr. Mengele.

Posted by: Kenji on June 12, 2007 at 12:38 AM | PERMALINK

Maybe I should go turn myself in as the kind of individual who might vomit on Judge Hudson.

Posted by: BroD on June 12, 2007 at 7:09 AM | PERMALINK

Enemy Combatatnts YEAP that discribes Bush and Cheney to a tee. Kick their sorry azzez to the curb.

Posted by: Al on June 12, 2007 at 8:37 AM | PERMALINK

Ah, yes, that great historian, mhr, has expounded once again. Please tell us, mhrrr the blur of truth, about that Great Ultra Liberal Joe McCarthy speaking in the Senate in defense of Joachim Peiper and his murderous SS thugs for their massacres during the Battle of the Bulge. Joe said that they had not received a fair trial, such as they had not given to those American prisoners of war, they dispatched at Malmedy and other Belgian crossroads. Go and kiss that Shrine of Tailgunner Joe, mhr, and then tell us about your hero.

Posted by: thethirdPaul on June 12, 2007 at 9:17 AM | PERMALINK

OK, lets take this enemy combatants thing a little further. Each and every soldier is sworn to uphold and defend the constitution of the United States. A politician who overtly disregards the constitution is therefore an enemy combatant since he is an enemy of the constitution and seeks its demise. So is any other Dictator of the United States.

So when is the Army going to step in detain George W. Bush? Better yet, lets deny him a trial or any other judicail review and go straight to the gallows with him!

Posted by: ModernMarxist on June 12, 2007 at 11:18 AM | PERMALINK
....FDR put another 140,000 US residents of Japanese descent in camps....meathead republican at 11:07 PM
I'm sick of crackhead armchair generals using FDR's erroneous policy as justification of their own fear-mongering. There were Japanese Americans who joined 442nd combat regiment from Manzanar and other camps and fought heroically for their country while armchair cowards and pissant patriots like you do nothing.

That internment had nothing to do with fighting the war. It was done because from fear-mongering and racial prejudice. It was a complete failure of government and one of the two worse acts that FDR committed.

In other cases, we had POW camps in Brooklyn for Italian soldiers and they were treated humanely there. Some later immigrated and became American citizens.

....The fact that Al-Marri wore no uniform, liberals say, entitles him to all the rights of US citizens meathead republican
at 11:27 A

The fact that he was arrested in the US entitles him to US Constitutional protection. The fact that the Bush regime can provide no evidence of wrong entitles him to his freedom. The fact that the Bush regime has lied and lied repeatedly about those it illegally holds in its world-wide chain of gulags means they are guilty of the worst acts of criminality in the history of the American presidency.

Posted by: Mike on June 12, 2007 at 11:36 AM | PERMALINK

"Those POW's fought under the flag of Germany, a sovereign nation, and the Geneva Conventions applied to them. Totally different situations. Wanna try again?"
___________________

It does raise the question of how to handle enemy combatants who clearly do not qualify as POWs described by the Geneva Conventions. Do we provide trials to every one of the tens of thousands of enemy that we have captured? In a way, it would be easier to designate them as POWs, since we would be entitled to incarcerate them indefinitely, so long as the war continues.

Bearing in mind that soldiers are not police investigators, the whole point of taking prisoners on the battlefield is not to try them, but to remove them from the conflict, so that they are no longer killing our people. Giving detainees trials and eventual release seems counter to that purpose, particularly if judicial evidence is slim. We can find ourselves in a catch and release situation where the only real hope is that we manage to kill the enemy next time, rather than capture them.

Anybody got an idea how to handle that?

Posted by: Trashhauler on June 12, 2007 at 11:38 AM | PERMALINK

It does raise the question of how to handle enemy combatants who clearly do not qualify as POWs described by the Geneva Conventions.

If they do not qualify for POW status, you hold them under the provisions of the Fourth Geneva Convention Relative to the Protection of Civilain Persons in Time of War.

Do we provide trials to every one of the tens of thousands of enemy that we have captured?

Trials for what? If you're charging them with a crime, then yes, you certainly need to provide them with a trial to prove they're actually guilty of that crime. If you are not charging them with a crime, on the other hand, then you cannot claim they are terrorists, i.e. criminals, and you have to hold them under the Fourth Geneva Convention. In any case, they are entitled to a hearing to determine their status. As Reagan's Deputy Legal Advisor to the U.S. State Department, Michael Matheson, stated in 1987:

"We [the United States] do support the principle that, should any doubt arise as to whether a person is entitled to combatant status, he be so treated until his status has been determined by a competent tribunal, as well as the principle that if a person who has fallen into the power of an adversary is not held as a prisoner of war and is to be tried for an offense arising out of the hostilities, he should have the right to assert his entitlement before a judicial tribunal and to have that question adjudicated."

Bearing in mind that soldiers are not police investigators, the whole point of taking prisoners on the battlefield is not to try them, but to remove them from the conflict, so that they are no longer killing our people. Giving detainees trials and eventual release seems counter to that purpose, particularly if judicial evidence is slim.

Again, if you don't want to provide them with trials then don't charge them with crimes and don't claim they're terrorists. If they've been captured on the battlefield (a status actually enjoyed by less than 5% of Guantanamo prisoners, actually, since the rest were handed over to us by the Pakistanis or the Northern Alliance) then they're war fighters and deserve to be held with the full panoply of Geneva Convention protections.

Posted by: Stefan on June 12, 2007 at 11:48 AM | PERMALINK
Anybody got an idea how to handle that? Trashhauler at 11:38 AM
End the insane policy of the Bush regime. Get your arse out of Iraq. Quit killing Iraqis. Quit creating Iraqi refugees. Quit destroying their country. Close Abu Ghraib. Close Gitmo and the rest of Bush's illegal gulags.

When you launch a war based on lies, disinformation, and the desire to steal a country's resources, you have no legitimacy: moral, legal, or otherwise. The US is an occupying power and is violating all international law in the process.

Posted by: Mike on June 12, 2007 at 11:49 AM | PERMALINK

Anybody got an idea how to handle that?

Yes. According to the International Committe of the Red Cross Commentary to the Geneva Conventions, which is considered authoratative under international law:

"Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law."

Posted by: Stefan on June 12, 2007 at 11:54 AM | PERMALINK

It does raise the question of how to handle enemy combatants who clearly do not qualify as POWs described by the Geneva Conventions.

How do we know they do not qualify as POWs without giving them a hearing to determine their status? Under international law, combatants captured during an international armed conflict are presumed to be POWs unless or until determined otherwise. Article 5 of the Third Geneva Convention states "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy" belong to any of the categories for POWs then "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Specified categories of combatants who "have fallen into the power of the enemy" are entitled to POW status, including the armed forces of a party to the conflict, militia forces forming part of those armed forces, and inhabitants who take up arms openly to resist the invading forces, which would cover most prisoners taken in Afghanistan during our 2001 invasion.

Since POWs may not be tried for the mere act of being combatants, that is, for taking up arms against other combatants, we couldn't try them for that, and must instead offer them the full range of Third Geneva protections.

Posted by: Stefan on June 12, 2007 at 12:01 PM | PERMALINK

"Again, if you don't want to provide them with trials then don't charge them with crimes and don't claim they're terrorists. If they've been captured on the battlefield (a status actually enjoyed by less than 5% of Guantanamo prisoners, actually, since the rest were handed over to us by the Pakistanis or the Northern Alliance) then they're war fighters and deserve to be held with the full panoply of Geneva Convention protections."
____________________

Well, I was referring to the thousands of other enemy we have captured, as well, not simply to the Guantanamo detainees. If I understand what you are saying, most anyone who shoots at us should be presumed to be a legitimate enemy, worthy of POW status, regardless of the stated requirements for POW status in the GC. If they are, then we should simply hold them indefinitely, without charges or trial.

But then, I thought the problem was we were not charging them with crimes, but were holding them anyway?

By the way, can you provide a cite for that 5% Guantanamo number captured on the batttlefield? And since when did the Northern Alliance become an illegitimate source of capture? How many of their captures also took place on the battlefield? Certainly most, since the number of our own people involved was initially very small. You're not going to recycle that old saw about the "simple shepherd who made an enemy" are you? Even if we grant that might have happened, why would anyone think we'd deliberately pull such people out of the thousands of prisoners we have and send them to Gitmo?

Posted by: Trashhauler on June 12, 2007 at 12:15 PM | PERMALINK

But then, I thought the problem was we were not charging them with crimes, but were holding them anyway?

No, the problem is that we are holding them without any determination as to their status -- without the trial and final resolution that they would be entitled to if they were charged as criminals, but also without the protections that would be due to them if we held them as POWs. They are being held in a legal black hole, with no way to get out and no way to determine if they are innocent or guilty.

Posted by: Stefan on June 12, 2007 at 12:25 PM | PERMALINK

If I understand what you are saying,

Why start now?

most anyone who shoots at us should be presumed to be a legitimate enemy, worthy of POW status, regardless of the stated requirements for POW status in the GC.

Yes, if someone is captured shooting at US forces in the middle of an armed conflict then they are presumed to be POWs, barring a final determination of their status as mandated under international law and under treaties to which the US is a signatory. And not regardless, but specifically because of the stated requirements for POW status in the Geneva Conventions.

If they are, then we should simply hold them indefinitely, without charges or trial.

Not indefinitely, but for the duration of the conflict. And yes without charges, but not without a hearing to determine their status so they have a chance to prove whether they actually are combatants or merely innocent victims.

Posted by: Stefan on June 12, 2007 at 12:34 PM | PERMALINK

Alternatively, if we want to treat all the prisoners we hold as protected persons who have violated the law, then we could, for example, make it a capital crime to kill a member of our armed forces, try each fighter captured doing so, and execute them after a six month period.

Seems a bit excessive, though.

Posted by: Trashhauler on June 12, 2007 at 12:37 PM | PERMALINK

By the way, can you provide a cite for that 5% Guantanamo number captured on the batttlefield?

Among other sources, Prof. Mark Denbeaux of Seton Hall Law School's study "Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Defense Department Data." Using the Defense Department's own figures, Prof. Debeaux found that only 8 percent of detainees at Guantanamo were labeled by the Defense Department as “al Qaeda fighters,” and only 11 percent had been captured “on the battlefield” by coalition forces. (Given the Pentagon's proven record of lying, I'm cutting their 11-8% estimate in half to about 5%).

You can also find this data at the Defese Department's own web site at

http://www.dod.mil/pubs/foi/detainees/index.html

Posted by: Stefan on June 12, 2007 at 12:39 PM | PERMALINK

Alternatively, if we want to treat all the prisoners we hold as protected persons who have violated the law, then we could, for example, make it a capital crime to kill a member of our armed forces, try each fighter captured doing so, and execute them after a six month period.

No, we couldn't, not without violating international law and the Geneva Conventions. POWs cannot be tried or punished simply for their participation in the armed conflict -- they may be prosecuted only for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law. Article 99 of the Third Geneva Conventions provides that "No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed."

Moreover, Article 83 of same Convention also provides: "If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only" -- i.e., not legislative punishments.

For someone who claims to be a soldier, you seem awfully ignorant of military law....

Posted by: Stefan on June 12, 2007 at 12:50 PM | PERMALINK

And since when did the Northern Alliance become an illegitimate source of capture?

Probably since we started offering large bounties for prisoners, giving them a financial incentive to hand over as many people as they could to us in order to get their hands on those no questions asked cash payments.

Posted by: Stefan on June 12, 2007 at 1:06 PM | PERMALINK

In case anybody forgot: torture is wrong. Period.

Posted by: Kenji on June 12, 2007 at 1:18 PM | PERMALINK

I have to admit ignorance of the Geneva Conventions but there does seem to be a problem. Since Bush has declared this a perpetual "War" then treating these prisoners as POWs or under any of the Conventions means they are held in perpetuity correct?

Posted by: ckelly on June 12, 2007 at 1:22 PM | PERMALINK

Serious question:

How many of the commenters on this board would invite sportsfan79 into your home to stay with you as a guest for a couple days?

Posted by: Cal Gal on June 12, 2007 at 1:32 PM | PERMALINK

"Okay, but would you guys lend al-Marri a hundred bucks?"

No, but I'd have a beer with him. Shouldn't that make him POTUS?

Posted by: Cal Gal on June 12, 2007 at 1:40 PM | PERMALINK

And I'd probably GIVE his lawyer a hundred bucks if I could get a guarantee from BushCo. that I would not be sent to Gitmo for doing so.

Posted by: Cal Gal on June 12, 2007 at 1:42 PM | PERMALINK

"The defendant was a member of Al-Quada"

Really, dear? And you know this how, exactly?

Posted by: PaulB on June 12, 2007 at 1:47 PM | PERMALINK

Since Bush has declared this a perpetual "War" then treating these prisoners as POWs or under any of the Conventions means they are held in perpetuity correct?

Well, not unless Bush remains in power in perpetuity....

But really, the first step is to determine whether these prisoners are even POWs or combatants in the first place by giving them an impartial review to contest their status. If we can't establish that they've done anything wrong then they should be released.

Posted by: Stefan on June 12, 2007 at 2:22 PM | PERMALINK

Stefan wrote about us treating our prisoners as protected persons IAW IVth Geneva Convention:

"No, we couldn't, not without violating international law and the Geneva Conventions. POWs cannot be tried or punished simply for their participation in the armed conflict -- they may be prosecuted only for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law.
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed."
___________________

Actually, we probably couldn't treat them as protected persons because we are not an Occupying Power in either Iraq or Afghanistan. Technically, we are allied to the legitimate governments in both countries.

So the whole thing comes down to determining whether a prisoner is either a prisoner of war or a criminal. Apparently, the argument for treating any fighter as a POW rests largely on this clause:

"Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

Of course, since it can be argued that the time for "spontaneous" resistance passed several years ago, that's a debatable point, as is compliance with the requirement that they "carry arms openly and respect the laws and customs of war."

Then there is this:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Such tribunals were to have been established by Act of Congress. It shouldn't take a regular trial and full habeus corpus rights to decide if someone is a legitimate POW or criminal.


Posted by: Trashhauler on June 12, 2007 at 3:17 PM | PERMALINK

stefan wrote:

"For someone who claims to be a soldier, you seem awfully ignorant of military law...."
____________________

It might surprise you to know that few professionals know everything about every subset of every topic that might impinge on their profession. That's why we have lawyers, I suspect.

I was going to end with an insult, but I thought better of it.

Posted by: Trashhauler on June 12, 2007 at 3:27 PM | PERMALINK

Law Professor Orin Kerr tentatively predicts that the decision will be reversed, either by the Fourth Circuit Court en banc or by the Supreme Court. He writes:

According to Judge Motz, Al-Marri was not an "enemy combatant" who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist...

My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute. http://volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#1181590920

It seems like common sense that when we capture al Qaeda members, we should have some legal way to keep them imprisoned. The fact that some al Qaeda member managed to get onto US soil shouldn't be a Get-Out-of-Jail-Free card.

Posted by: ex-liberal on June 12, 2007 at 3:30 PM | PERMALINK

Actually, we probably couldn't treat them as protected persons because we are not an Occupying Power in either Iraq or Afghanistan.

No, you're confused and/or not good at reading. The Fourth Convention applies in all cases of a conflict, not merely an occupation. As Article 2 says

"...the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

Technically, we are allied to the legitimate governments in both countries.

We weren't when we invaded.

Posted by: Stefan on June 12, 2007 at 3:34 PM | PERMALINK

Apparently, the argument for treating any fighter as a POW rests largely on this clause: "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

Apparently it's not. The argument for treating any fighter as a POW unless determined otherwise rests on this quite clear and explicit language in Article 5:

"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention [i.e. be held as POWs] until such time as their status has been determined by a competent tribunal." [bolding mine].

Of course, since it can be argued that the time for "spontaneous" resistance passed several years ago, that's a debatable point,

We're talking about prisoners taken several years ago, during the time of our invasion of Afghanistan.

as is compliance with the requirement that they "carry arms openly and respect the laws and customs of war."

This is a fact question, which is precisely to be determined by such a tribunal as has to this point been denied to them.

Posted by: Stefan on June 12, 2007 at 3:45 PM | PERMALINK

"the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

_________________________

Okay, so who's the other High Contracting Party?

And if we weren't allied to the Iraqi and Afghanistan governments when we invaded, we certainly have been for at least two years.

It doesn't appear that the IVth GC has any application at all now, though it probably applied to our OEF/OIF activities in the past. That's from a layman's viewpoint, of course.

Posted by: Trashhauler on June 12, 2007 at 3:46 PM | PERMALINK

Such tribunals were to have been established by Act of Congress. It shouldn't take a regular trial and full habeus corpus rights to decide if someone is a legitimate POW or criminal.

Again, wrong question. The tribunal is only to determine whether someone is a POW or not. The question of whether that person is a criminal is a separate matter, and must be decided by a full trial with habeas rights.

Posted by: Stefan on June 12, 2007 at 3:50 PM | PERMALINK

Okay, so who's the other High Contracting Party?

Afghanistan and Iraq are both signatories to the Conventions. The wars "arose" between two or more of the High Contracting Parties -- between Iraq and the US, and between Afghanistan and the US.

And if we weren't allied to the Iraqi and Afghanistan governments when we invaded, we certainly have been for at least two years.

So what?

It doesn't appear that the IVth GC has any application at all now, though it probably applied to our OEF/OIF activities in the past.

No, it still applies. At minimum in any case we would be bound by Article 3, which states "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:" which provisions include humane treatment of prisoners and which forbids the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

That's from a layman's viewpoint, of course.

From a lawyer's point of view the layman's point of view about what the law is is wrong.

Posted by: Stefan on June 12, 2007 at 4:08 PM | PERMALINK

And if we weren't allied to the Iraqi and Afghanistan governments when we invaded, we certainly have been for at least two years.

For historical context, though we were allied to the government of South Vietnam, and were in that country at the government's request and were not technically an occupying force, we still applied the Third and Fourth Geneva Conventions to the treatment of our prisoners (both uniformed and irregular) taken in that conflict. The official position of the United States military was that the hostilities constituted an armed international conflict and that the Geneva Conventions applied in full, and Viet Cong captured in combat were treated as POWs and were not sent to civilian South Vietnamese jails.

Posted by: Stefan on June 12, 2007 at 4:16 PM | PERMALINK

"'It doesn't appear that the IVth GC has any application at all now, though it probably applied to our OEF/OIF activities in the past.'

No, it still applies."
_____________________

Okay, so let's see if I understand:

Our prisoners might or might not be POWs, but must be treated as such until a tribunal determines if they are or are not.

If they are, then we can hold them until the cessation of hostilities. If they are not, then we must either release them or accuse and try them in a regular US-style court. Or can we also turn them over to the legitimate governments of Iraq and Afghanistan?

Is that about right?

Posted by: Trashhauler on June 12, 2007 at 4:22 PM | PERMALINK

Our prisoners might or might not be POWs, but must be treated as such until a tribunal determines if they are or are not.

Yes.

If they are, then we can hold them until the cessation of hostilities.

Yes. But these must be actual hostilities -- the "War on Terror" fakery doesn't count.

If they are not, then we must either release them or accuse and try them in a regular US-style court.

Yes.

Or can we also turn them over to the legitimate governments of Iraq and Afghanistan?

If they were Iraqis or Afghans and/or were captured in Iraq and/or Afghanistan, yes, and so long as they will be treated humanely -- if we know they will be subject to torture and abuse we can't turn them over.

You know, you can read the Third and Fourth Conventions online. They're not hard to find....

Posted by: Stefan on June 12, 2007 at 4:33 PM | PERMALINK

I have to say something here. I am utterly appalled and disgusted at any officer willing to parse away the social contract that has served this nation quite well up to 17 October 2006.

I know what that oath says. I have watched people I love take it, and once upon a time I took it myself, a long long time ago.

Trashhauler, you and I have disagreed, but we have always been respectful. This position you are taking is an embarrassment to me.

Maybe I am naive and idealistic, but god-damnit, if we want to claim American exceptionalism, it would help to behave in an exceptional way, don't you think?

Posted by: Blue Girl, Red State (aka G.C.) on June 12, 2007 at 4:42 PM | PERMALINK

It seems like common sense that when we capture al Qaeda members, we should have some legal way to keep them imprisoned.

And which little birdy told you he was an "Al Qaeda member"? If it's so freakin' obvious he's Al Qaeda, present the evidence and lock him up. Otherwise, shit or get off the pot.

Posted by: ckelly on June 12, 2007 at 5:02 PM | PERMALINK

"Trashhauler, you and I have disagreed, but we have always been respectful. This position you are taking is an embarrassment to me."
__________________

What a minute. Just what position is it that I'm supposed to have been taking? Stefan just walked me through his interpretation of the Geneva Conventions and I understand his position.

Posted by: Trashhauler on June 12, 2007 at 5:03 PM | PERMALINK

Well - let me reread....If I misunderstood and owe an apology I will tender it promptly.

Posted by: Blue Girl, Red State (aka G.C.) on June 12, 2007 at 5:06 PM | PERMALINK

Okay - I misread. I thought you were excusing the Constitutional abrogations of the administration.

Posted by: Blue Girl, Red State (aka G.C.) on June 12, 2007 at 5:12 PM | PERMALINK

I do get my knickers in a twist in short order over violations of the social contract. ;)

Posted by: Blue Girl, Red State (aka G.C.) on June 12, 2007 at 5:15 PM | PERMALINK

And not an apology to be found. How very politician of me. Sorry I misread your intent.

Posted by: Blue Girl, Red State (aka G.C.) on June 12, 2007 at 5:16 PM | PERMALINK

It's okay, Blue Girl. I'm also quite used to being accused of thinking that invading Iraq was a good idea. ::grin::

Posted by: Trashhauler on June 12, 2007 at 5:39 PM | PERMALINK
...It seems like common sense that when we capture al Qaeda members, we should have some legal way to keep them imprisoned...ex-lax at 3:30 PM
If the entire Fourth Circuit hears the case, it is possible because they are equally rightist and don't appreciate constitutional guarantees. It is expected that the case would be appealed to the Supreme Court in that eventuality. It seems only reasonable, rational and responsible that everyone in the American prison system accused of a crime should be able to answer the charges unless one advocates absolute president power as you do.


Posted by: Mike on June 12, 2007 at 7:40 PM | PERMALINK

ckelly: And which little birdy told you he was an "Al Qaeda member"? If it's so freakin' obvious he's Al Qaeda, present the evidence and lock him up. Otherwise, shit or get off the pot.

You raise the question of who should decide if the accused is an al Qaeda enemy. There are several problems with having civilian criminal justice system do so. Some of the evidence may not be usable under criminal court rules and procedures. Witnesses against him may be unavailable to testify in person in this country when the trial comes about. Some information may need to be kept secret.

Also, being an active member of al Qaeda isn't a crime under US domestic laws. We don't want to sentence al Qaeda members only for specific crimes. We want to lock them up so they can't commit acts of terrorism against us and against the entire civilized world.

Yes, a determination of the person's al Qaeda status needs to be made, but it's better done by the military.

Posted by: ex-liberal on June 12, 2007 at 8:10 PM | PERMALINK

Also, being an active member of al Qaeda isn't a crime under US domestic laws.

Yes, it most certainly is. See 18 U.S.C. Chapter 113B, Sections 2331-2339. Section 2339B, for example, "Prohibited Activities," provides that
"Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life." Mere membership in Al Qaeda qualifies as providing material support.

Membership in a terrorist organization can also be punished under the RICO statutes.

Posted by: Stefan on June 12, 2007 at 8:23 PM | PERMALINK

ex-lib, was it weird to see your ass from the front as Stefan handed it to you - yet again?

Posted by: tRex on June 12, 2007 at 9:15 PM | PERMALINK

Stefan, I note that the sentence, "Mere membership in Al Qaeda qualifies as providing material support" is not in quotes. Does that come from some other section of the law or from some court decision?

Either way, I stand corrected on this one point. However, my other reasons for preferring a military determination still stand. I suppose it comes down to my judgment that it's more effective for us to deal with radical Islam as a war enemy, rather than a criminal conspiracy.

Posted by: ex-liberal on June 12, 2007 at 9:55 PM | PERMALINK

I suppose it comes down to my judgment that it's more effective for us to deal with radical Islam as a war enemy, rather than a criminal conspiracy

Since you don't have any of your facts straight and none of your arguments have empirical support you're asking us to rely on your "judgment?" Are you twelve?

Treating "radical Islam" as a "war enemy" has only increased the power and reach of Al Qaeda. This has been the judgment of our own intelligence services and those of our allies. I think we can all agree their judgment is much better in this matter than yours.

Posted by: tRex on June 12, 2007 at 10:46 PM | PERMALINK

ex-liberal wrote:

"I suppose it comes down to my judgment that it's more effective for us to deal with radical Islam as a war enemy, rather than a criminal conspiracy."
________________________

Some of the war must be dealt with as a matter of criminal justice. Other parts of it requires military action. Lawyers tend to think everything has a legal answer; military people tend to think of military solutions. Neither is completely right, of course. But few here have been in places where simply being who you are can get you killed and where being a cop doesn't protect you one little bit.

Posted by: trashhauler on June 12, 2007 at 11:36 PM | PERMALINK

tRex wrote:

"Treating "radical Islam" as a "war enemy" has only increased the power and reach of Al Qaeda. This has been the judgment of our own intelligence services and those of our allies."
___________________

That isn't quite what they've said. Our intelligence services have reported an increase in the number of identifiable terrorist groups. Like shaking a super-saturated solution brings a chemical into view, our military action has brought already existing fanaticism into action. It probably would have even if we hadn't entered Iraq. The fanaticism was always there; pretending it was not only allowed us the dubious luxury of hoping it didn't exist.

Posted by: trashhauler on June 12, 2007 at 11:55 PM | PERMALINK

Lawyer Paul Mirengoff gives a good argument favoring the President's right to detain al-Marri at PowerLine.

According to facts that were undisputed for purpose of the appeal, al-Marri was closely associated with al-Qaeda and indeed trained with that organization at a terrorist camp. In 2001, he met with bin Laden and volunteered for "martyr duty." Bin Laden duly ordered him to the U.S. (where he had once been a student). He entered on September 10, 2001 for the purpose of operating as a "sleeper agent" to facilitate terrorist activity. His mission also involved figuring out how to disrupt our financial system through computer hacking and obtaining information about poisonous chemicals. His efforts were funded by a known terrorist financier and he communicated with known terrorists by phone and email.

If al-Marri had been dispatched here for these purposes by the military high command of a country with which we were at war, there is no doubt that he would be an enemy combatant and, as such, could be held without trial. Alternatively, under Fourth Circuit jurisprudence, if he had once fought against the U.S. on a formal battlefield, say in Afghanistan, he could also have been detained here when he came to pursue his assigned acts of terrorism. But because neither of these conditions was satisfied, two out of the three judges who heard the case voted in al-Marri's favor.

But this outcome makes no sense in the context of the war on terror, particularly given Congress's express grant of power to the president to use all necessary force against those nations and organizations that authorized, committed, or aided in the 9-ll attacks. Why should it matter whether a terrorist is sent here by bin Laden, the head of an organization with which we are at war, or the head of a nation we're fighting? Why, for that matter, should it matter whether what prior hostile activities al-Marri had engaged in before coming to the U.S. as a terrorist?

Posted by: ex-liberal on June 13, 2007 at 12:04 AM | PERMALINK

Once again, ex-liberal, you just don't grasp it.

What has this man done? He's "associated" with a terrorist group. If that is a crime under US law, as you claim, and if the facts are "undisputed" as is claimed in the piece, then why, oh why is he not being charged in civilian court for a violation of that law? Should be a slam dunk. Should be great pr victory for The Leader, eh?

The answer is pretty obvious, isn't it? al-Marri probably isn't an "undesputed" member of a terrorist organization and the evidence against him is probably smoke and bs or based on sources so flaky as to not be actionable.

Either that, or he's some wild eyed dope who thinks blowing up a tricycle will bring America to its knees - in other words, a zero in the war on terror.

Of course, on the other hand, it would be SO useful if we have an opposition party with some stones who would expressly withdraw any power from the president that involved breaking piecetime standards of civil liberties. Would that be too much to ask?

Posted by: JohnN on June 13, 2007 at 1:54 AM | PERMALINK

Oh, ho, once you READ the decision then it gets even better. Take the quote above that "According to facts that were undisputed for purpose of the appeal" Sounds bad, eh? Only that's NOT what the decision says, it says "Even assuming the truth of the Government’s allegations, the President
lacks power to order.." In other words the "facts" of his guilt are not "accepted" by everyone, the court is saying that "even if" the facts were proved to be true, it wouldn't matter.

So, now we've established that Paul Mirengoff is intellectually dishonest.

So, why did the government seize him? Here's the quote that gives it away from the court decision: "On Friday, June 20, 2003, the
court scheduled a hearing on pre-trial motions, including a motion to suppress evidence against al-Marri assertedly obtained by
torture. On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the
indictment based on an order signed that morning by the President." An order to declare him an enemy combatient.

In other words people, he was tortured while in custody and the government was afraid that would come out and so declared him an enemy combatent to cover that up.

All this after being in jail over a year with no terrorism charges being filed against him.

And just in case you still think this is 'activist judges' consider this quote from the decision: "Al-Marri’s constitutional claim is a serious one. As an alien
captured and detained within the United States, he has a right to habeas corpus protected by the Constitution’s Suspension Clause.
See Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (“All agree that, absent suspension, the writ of habeas corpus remains available to
14 every individual detained within the United States.”)."

Game, set and match. He's in the US. Everyone in the US has a right to habeas corpus unless suspended. It hasn't been suspended, not in any of the resolutions Congress passed.

Posted by: JohnN on June 13, 2007 at 2:10 AM | PERMALINK

It probably would have even if we hadn't entered Iraq.

No, it probably wouldn't have. For one thing, how many Iraqi terrorist and/or guerilla groups where we fighting before we attacked Iraq? About zero, I believe?

Posted by: Stefan on June 13, 2007 at 9:51 AM | PERMALINK

That isn't quite what they've said. Our intelligence services have reported an increase in the number of identifiable terrorist groups.

No, that's false. They've reported an increase in the number and intensity of terrorist attacks, note merely groups:

U.S. Figures Show Sharp Global Rise In Terrorism: State Dept. Will Not Put Data in Report

By Susan B. Glasser
Washington Post Staff Writer
Wednesday, April 27, 2005; Page A01

The number of serious international terrorist incidents more than tripled last year, according to U.S. government figures, a sharp upswing in deadly attacks that the State Department has decided not to make public in its annual report on terrorism due to Congress this week.

Overall, the number of what the U.S. government considers "significant" attacks grew to about 655 last year, up from the record of around 175 in 2003, according to congressional aides who were briefed on statistics covering incidents including the bloody school seizure in Russia and violence related to the disputed Indian territory of Kashmir.

The State Department announced last week that it was breaking with tradition in withholding the statistics on terrorist attacks from its congressionally mandated annual report. Critics said the move was designed to shield the government from questions about the success of its effort to combat terrorism by eliminating what amounted to the only year-to-year benchmark of progress....

The controversy comes a year after the State Department retracted its annual terrorism report and admitted that its initial version vastly understated the number of incidents. That became an election-year issue, as Democrats said the Bush administration tried to inflate its success in curbing global terrorism after the Sept. 11, 2001, attacks.

"Last year was bad. This year is worse. They are deliberately trying to withhold data because it shows that as far as the war on terrorism internationally, we're losing," said Larry C. Johnson, a former senior State Department counterterrorism official, who first revealed the decision not to publish the data....

http://www.washingtonpost.com/wp-dyn/content/article/2005/04/26/AR2005042601623.html

Posted by: Stefan on June 13, 2007 at 9:56 AM | PERMALINK

"According to facts that were undisputed for purpose of the appeal,"

This is deliberately misleading by Mirengoff (but then again so is everything he writes). These facts are only "undisputed" in the sense that, for the procedural purpose of the appeal, the court accepted the government's claims since the appeal was decided on constitutional and not factual grounds.

In fact, however, the government's alleged claims against Masri have never been submitted to a jury and have never been proven in a court of law beyond a reasonable doubt, and Masri disputes them.

Posted by: Stefan on June 13, 2007 at 10:07 AM | PERMALINK

JohnN: "Even assuming the truth of the Government’s allegations, the President
lacks power to order.." In other words the "facts" of his guilt are not "accepted" by everyone, the court is saying that "even if" the facts were proved to be true, it wouldn't matter.

I almost agree, except I think the phrase means "even if" the alleged facts ARE true, it wouldn't matter. This version means the same thing as Mirengoff's formulation, "undisputed for purpose of the appeal."

But, it seems to me there's a logical problem with either formuation. When the President makes the decision to hold al Masri, he doesn't know what the truth is. So, the President's position comes down to a claim that as CIC he has the power to make that determination. The court's ruling is that the court system has the power to make the determination.

I think the Supreme Court will uphold Bush's positoin, because the Congressional declaration against al Qaeda in 2001 is equivalent to a declaration of war. I expect the Supreme Court to rule that the CIC has the same powers in the struggle against al Qaeda as he would have in a declared war against a country.

Also, from a practical point of view, Stefan's observation about the increase in terrorism shows the need to give the President all necessary power to fight terrorism.

Posted by: ex-liberal on June 13, 2007 at 11:04 AM | PERMALINK

"Everyone in the US has a right to habeas corpus unless suspended."
______________________

Is that the view of the Supreme Court in every case?

Posted by: Trashhauler on June 13, 2007 at 11:17 AM | PERMALINK

"No, that's false. They've reported an increase in the number and intensity of terrorist attacks, note merely groups."
_____________________

No, it's not false. An increase in active groups almost necessarily means more activity. That's mostly how we learn about their existence. In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.

Posted by: Trashhauler on June 13, 2007 at 11:40 AM | PERMALINK

"For one thing, how many Iraqi terrorist and/or guerilla groups where we fighting before we attacked Iraq? About zero, I believe?"
____________________

Several dozen in numerous countries, though mostly through passive defensive measures. Those people are out there and they've been killing
for a long time.

As for Iraqis, we were at war against the Baathists since 1991. While I would have done things quite differently, the odds that Saddam Hussein would have simply watched our anti-Al Qaeda campaign without joining in the fun were pretty unlikely.

But have it your own way. This "we wouldn't have enemies if only we didn't fight our enemies" idea is endlessly intriguing.

Posted by: Trashhauler on June 13, 2007 at 11:52 AM | PERMALINK

Is that the view of the Supreme Court in every case?

It's the view of the Constitution of the United States, which in Article I, Section 9 states:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Posted by: Stefan on June 13, 2007 at 12:21 PM | PERMALINK

That's not what our intelligence has reported.

You're either completely fucking dense -- which is my vote -- or you're being deliberately obtuse.

The incursion into Iraq CAUSED terrorism -- period. (At some level) you know it, I know it, Bush knows it -- everyone knows it but won't say it because it's not politically expedient. The invasion showed people in the Muslim world that in fact the U.S. would illegally invade a sovereign nation based on knowingly false evidence -- and then have no plan for security or rebuilding that nation's destruction! And then come up up with half-assed plan but give the work to American companies instead of starving local Muslims! And then let the entire country slide into chaos, causing an enormous refugee crisis, healthcare crisis, and security crisis.

That.caused.terrorism.

That.caused.insurgent.activity.

That.fueled.nationalism.

Just the most basic understanding of military history says that when you invade a country people will take up arms against you and sympathetic nations and groups will join in the fight. That's not shaking something out of solution, that's adding a catalyst to it.

On that fateful day we decide to invade Canada you can be goddammed sure that we're going to get the same reception from all the hockey-loving Molson-drinking "terrorists" there.

This tag team of dumb and dumberer is mildly interesting from a psychopathological point of view, but it's nothing more than an intellectually-challenged troll version of "Who's On First."

Posted by: tRex on June 13, 2007 at 12:26 PM | PERMALINK

"'Is that the view of the Supreme Court in every case?"

It's the view of the Constitution of the United States, which in Article I, Section 9 states:"
_____________________

So, the answer is no, as far as case decisions go?

Posted by: Trashhauler on June 13, 2007 at 12:28 PM | PERMALINK

Several dozen in numerous countries, though mostly through passive defensive measures. Those people are out there and they've been killing
for a long time.

Several dozen what? I was talking specifically about Iraqi terrorist and/or guerilla group, and the plain fact is that we did not have any conflict with them until we attacked and invaded their country in 2003.

As for Iraqis, we were at war against the Baathists since 1991.

We were? That's news to me, and, I think, to the rest of the world.

While I would have done things quite differently, the odds that Saddam Hussein would have simply watched our anti-Al Qaeda campaign without joining in the fun were pretty unlikely.

No, it's pretty likely, since Saddam and Osama were enemies of each other. All we did was take out one of al-Qaeda's enemies for them.

But have it your own way. This "we wouldn't have enemies if only we didn't fight our enemies" idea is endlessly intriguing.

Yes, the "they wouldn't defend themselves against our invasion if we didn't invade them" idea is interesting, isn't it?

Look, this is not hard (or shouldn't be): we invaded them. We attacked them. We're in their country. We're the aggressor. We started it. They're fighting to defend their homes, families and faith against us, the foreign invader. So yes, they wouldn't be our enemey if we hadn't started attacking them.


Posted by: Stefan on June 13, 2007 at 12:33 PM | PERMALINK

tRex wrote (with the usual comity so admired here):

You're either completely fucking dense -- which is my vote -- or you're being deliberately obtuse.
______________________

Of course, our invasion of Iraq caused an increase in terrorism. Terrorism is a long-standing response to military action. So what? The intelligence community has not reported that our activities have "increased the power and reach of Al Qaeda."

As I said, I wouldn't have chose to invade Iraq, but I didn't get a say. My choice would have been to pull our troops not needed for Afghanistan home and then wait for Saddam to get into the act. Which he would have, eventually.

That might have been a little tough on our regional allies, but it would have stopped folks like you whining about it when the shit really hit the fan.

Posted by: Trashhauler on June 13, 2007 at 12:38 PM | PERMALINK

In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.

Washington Post
February 19, 2007
Terror Officials See Al Qaeda Chiefs Regaining Power
By MARK MAZZETTI and DAVID ROHDE

WASHINGTON, Feb. 18 — Senior leaders of Al Qaeda operating from Pakistan have re-established significant control over their once-battered worldwide terror network and over the past year have set up a band of training camps in the tribal regions near the Afghan border, according to American intelligence and counterterrorism officials.

American officials said there was mounting evidence that Osama bin Laden and his deputy, Ayman al-Zawahri, had been steadily building an operations hub in the mountainous Pakistani tribal area of North Waziristan....

The new warnings are different from those made in recent months by intelligence officials and terrorism experts, who have spoken about the growing abilities of Taliban forces and Pakistani militants to launch attacks into Afghanistan. American officials say that the new intelligence is focused on Al Qaeda and points to the prospect that the terrorist network is gaining in strength despite more than five years of a sustained American-led campaign to weaken it.

....Some of the interviews with officials were granted after John D. Negroponte, then the director of national intelligence, told Congress last month that “Al Qaeda’s core elements are resilient” and that the organization was “cultivating stronger operational connections and relationships that radiate outward from their leaders’ secure hide-out in Pakistan to affiliates throughout the Middle East, North Africa and Europe.”

....Officials said that over the past year, Al Qaeda had also shown an increased international capability....

Posted by: Stefan on June 13, 2007 at 12:39 PM | PERMALINK

In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.

Intelligence Chiefs Pessimistic In Assessing Worldwide Threats: Negroponte Cites Resilience of Al-Qaeda, Iraqi Insurgency

By Dafna Linzer and Walter Pincus
Washington Post Staff Writers
Friday, January 12, 2007; Page A12

Iraq is at a violent and "precarious juncture," while al-Qaeda is significantly expanding its global reach, effectively immune to the loss of leaders in battle, Director of National Intelligence John D. Negroponte told Congress yesterday. He also warned that the Taliban is mounting a vigorous insurgency in Afghanistan, that Pakistan has become a safe haven for top terrorists and that Iran's growing regional power is threatening Middle East stability.

In their annual worldwide threat assessment before the Senate Select Committee on Intelligence, Negroponte and other top intelligence chiefs provided a bleak assessment of regions and conflicts at the center of President Bush's foreign policy agenda.

....the head of the Pentagon's Defense Intelligence Agency...Lt. Gen. Michael D. Maples said that al-Qaeda "has consistently recovered from losses of senior leadership," and that its "increasing cooperation with like-minded groups has improved its ability to facilitate, support and direct its objectives." Negroponte said the group's leaders have found a haven in secure locations in Pakistan....

Posted by: Stefan on June 13, 2007 at 12:45 PM | PERMALINK

stefan wrote:

"Look, this is not hard (or shouldn't be): we invaded them. We attacked them. We're in their country. We're the aggressor. We started it. They're fighting to defend their homes, families and faith against us, the foreign invader. So yes, they wouldn't be our enemey if we hadn't started attacking them."
__________________

What is equally obvious (or should be) was that the Baathists were already our enemies before we invaded. We can go back over the whole "containment was working, containing was failing" argument, but the fact remains we had merely a much-violated cease fire agreement with them. We did not have peace.

Posted by: Trashhauler on June 13, 2007 at 12:46 PM | PERMALINK

So, the answer is no, as far as case decisions go?

Yes, the answer is no. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004), where the Court wrote that

"...the parties [i.e. the government and petitioner] begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained in the United States...Only in the rarest of circumstances has Congress seen fit to suspend the writ...At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 US 289, 301 (2001).

Posted by: Stefan on June 13, 2007 at 12:53 PM | PERMALINK

On that fateful day we decide to invade Canada you can be goddammed sure that we're going to get the same reception from all the hockey-loving Molson-drinking "terrorists" there.

Of course, if the Bush regime ever does decide to invade Canada you can be sure that within a year we'll be huddled inside the Ottawa Green Zone while the rest of the country is taken back by roving bands of Canuck guerillas, moving silently on their snowshoes like northern ninjas....

Posted by: Stefan on June 13, 2007 at 12:58 PM | PERMALINK
There are several problems with having civilian criminal justice system do so.... ex-lax at 8:10 PM
Military law applies to military personnel only. If you cannot prove your case, you have no case. While you may wish for a fascist state in which your Dear Leader is the supreme arbiter of life and death, it isn't acceptable to people who aren't of your authoritarian mindset.
...the increase in terrorism shows the need to give the President all necessary power to fight terrorism.ex-lax at 11:04 AM
Since the increase in terrorism is due to the irresponsible actions of George W. Bush, your statement is an egregious exercise of circular reasoning. No one under any circumstance have extra-Constitutional power no matter how many little Republicans march around the square chanting Heil Bush!
As for Iraqis, we were at war against the Baathists since 1991. ....the odds that Saddam Hussein would have simply watched ...."we wouldn't have enemies if only we didn't fight our enemies" ....Trashhauler at 11:52 AM
Your arguments are endlessly duplicitous. When your fight creates more enemies, it's counter-productive. There is zero evidence to support your assertion that Saddam would have supported al Qa'ida which is a fundamentalist group who didn't support him. The war that the US was waging against Iraq since '91 was purely for domestic consumption. Every so often, some pol would get 'tough on Saddam' to the cheers of the same Republicans who supported him during his war on Iran.
The intelligence community has not reported that our activities have "increased the power and reach of Al Qaeda." Trashhauler at 12:38 PM
That is untrue ...THE Pentagon has admitted that the war on terror and the invasion and occupation of Iraq have increased support for al-Qaeda, made ordinary Muslims hate the US and caused a global backlash against America because of the "self-serving hypocrisy" of George W Bush's administration over the Middle East.

The mea culpa is contained in a shockingly frank "strategic communications" report, written this autumn by the Defence Science Board for Pentagon supremo Donald Rumsfeld.

On "the war of ideas or the struggle for hearts and minds", the report says, "American efforts have not only failed, they may also have achieved the opposite of what they intended"....


What is equally obvious (or should be) was that the Baathists were already our enemies before we invaded.... Trashhauler at 12:46 PM

We did not have "peace?" We did not have war. Iraq was not a threat to the US; Iraq was in no position to attack the US.
The US supported Baathists when it suited us and the Ba'ath Party accepted that support.
Posted by: Mike on June 13, 2007 at 1:00 PM | PERMALINK

The intelligence community has not reported that our activities have "increased the power and reach of Al Qaeda."

Bzzzt! Wrong as usual:

A prestigious British research organization, the International Institute for Strategic Studies, has issued a report that asserts that the U.S.-led occupation of Iraq has actually strengthened the Al-Qaeda terrorist network, rather than weakened it. The report, titled "Strategic Survey 2003/2004," says the Iraq conflict has led to an accelerated recruitment to Al-Qaeda. And it says the ideal goal of the group is to use weapons of mass destruction.

and this:

The war in Iraq has become a primary recruitment vehicle for violent Islamic extremists, motivating a new generation of potential terrorists around the world whose numbers may be increasing faster than the United States and its allies can reduce the threat, U.S. intelligence analysts have concluded.

and this:

WASHINGTON -- New investigations by the Saudi Arabian government and an Israeli think tank -- both of which painstakingly analyzed the backgrounds and motivations of hundreds of foreigners entering Iraq to fight the United States -- have found that the vast majority of these foreign fighters are not former terrorists and became radicalized by the war itself.,

and this:

The Royal Institute of International Affairs, known as Chatham House, concluded in a report that the war in Iraq gave a "boost" to Al-Qaeda and made Britain especially vulnerable to attacks -- a theory that clashed with Blair's belief that there is no link with the July 7 bombings.

I could post on and on because every serious think tank and intelligence agency in the world concluded that the Iraq war has -- in fact -- increased the power and reach of Al Qaeda. Mindboggingly, you have no idea what you're talking about and yet you go on as if you do.

Oh, and when people are dying for no reason and willfully obtuse numbnuts are cheerfully supporting it -- fuck comity.

Posted by: tRex on June 13, 2007 at 1:05 PM | PERMALINK

In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.

Christian Science Monitor
US intelligence report: Iraq war breeding more terrorists
By Tom Regan | csmonitor.com

A classified National Intelligence Estimate (NIE) contends that the war in Iraq has increased Islamic radicalism, and has made the terror threat around the world worse. Based on information from US government officials who had seen the document and spoke on condition of anyonymity, The New York Times reports that the NIE document, titled "Trends in Global Terrorism: Implications for the United States," says the war plays a much more direct role in the spread of Islamic radicalism around the world than has previously been indicated by the White House, or in a recent report by the US House intelligence committee.

The intelligence estimate, completed in April, is the first formal appraisal of global terrorism by US intelligence agencies since the March 2003 invasion of Iraq, and it represents a consensus view of the 16 different spy services inside government. The estimate asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread around the globe.

An opening section of the report, "Indicators of the Spread of the Global Jihadist Movement," cites the Iraq war as a reason for the diffusion of jihad ideology. The report "says that the Iraq war has made the overall terrorism problem worse," one US intelligence official said.

..."It paints a fairly stark picture of what we all know, and that this is a movement that is spreading and gaining momentum around the world," said the official familiar with the document. "Things like the Iraq war have given the terrorists recruiting tools and places to ply their trade and a training ground." The official said the estimate touches on a number of factors fueling the jihadist movement, but that "the reference to Iraq was the main one."

Posted by: Stefan on June 13, 2007 at 1:07 PM | PERMALINK

Ah, I see that Stefan with his usual swiftness beat me to the punch. All the better.

Posted by: tRex on June 13, 2007 at 1:08 PM | PERMALINK

"Intelligence Chiefs Pessimistic In Assessing Worldwide Threats: Negroponte Cites Resilience of Al-Qaeda, Iraqi Insurgency"
_________________________

Yes, and where in Negroponte's report does it say that our military activities have caused this resilience? In any case, what is the argument here? That our proper response should be withdrawal and reliance upon "soft power?"

That might work, eventually. But it'll be pretty tough on those people we are supporting against these groups. In Iraq, our withdrawal might cause a bloodbath, but I suppose as long as it isn't our bloodbath, that might be okay with some. Or should we set some threshold on the post-withdrawal fighting, so that if the legitimate government gets in trouble, we step in again?

Posted by: Trashhauler on June 13, 2007 at 1:09 PM | PERMALINK

You know, when most people have been proven wrong again and again and again, as I and others have been doing to Trashauler since yesterday, they generally shut up out of a sense of shame. But Trashauler bravely muddles on, cheerfully spewing out falsehoods, ignorance and muddled thinking without a care in the world. The second he's proven wrong in one case, he swiftly pivots and is on to the next idiocy.

And at some point I'm afraid I'm going to have to start billing him for the free legal education I'm giving him. It cost me over $100,000 to get this education myself, so it doesn't come cheap....

Posted by: Stefan on June 13, 2007 at 1:15 PM | PERMALINK

In Iraq, our withdrawal might cause a bloodbath, but I suppose as long as it isn't our bloodbath, that might be okay with some.

In Iraq our invasion caused the bloodbath, resulting in over half a million dead and millions more maimed and wounded. But as long as it wasn't our bloodbath I suppose it was okay with some....

Posted by: Stefan on June 13, 2007 at 1:18 PM | PERMALINK

tRex wrote:

"I could post on and on because every serious think tank and intelligence agency in the world concluded that the Iraq war has -- in fact -- increased the power and reach of Al Qaeda. Mindboggingly, you have no idea what you're talking about and yet you go on as if you do."

"Oh, and when people are dying for no reason and willfully obtuse numbnuts are cheerfully supporting it -- fuck comity."
___________________

Well, of course, fuck comity. Especially if indignation is your only contribution to anything whatsoever.

You could indeed go on and on quoting from one unclassified site or opinion after another and it wouldn't change the intelligence reports. And you can take to the bank that if the comments are limited to how much more powerful our enemies have become, you didn't get the entire picture. The threat is only part of any intelligence briefing.

But you go ahead with your "fuck comity" indignation and your "we caused it all" dogma, tRex. I'm sure it will advance the cause of peace and security immensely.

Posted by: Trashhauler on June 13, 2007 at 1:22 PM | PERMALINK

Yes, and where in Negroponte's report does it say that our military activities have caused this resilience?

It says it in that report and every other one we've cited and the half dozen others that exist.

That our proper response should be withdrawal and reliance upon "soft power?"

The proper response would have been to avoid invading a country that was not a threat, not gin up intelligence to do so, and if going forward with such a disastrously ill-considered plan to AT LEAST do it with half a million troops to maintain security and have one hell of a post-war occupation plan to make the Iraqis fall deeply, hopelessly in love with us.

Security at home all starts with not breaking the law and not doing really stupid things, particularly when it's transparently for political gain.

But it'll be pretty tough on those people we are supporting against these groups.

Do you mean the Sunni insurgents we're currently arming or the Shi'ite militias we're currently arming? Because Iraq is experiencing sectarian violence with at least twelve different major groups vying for power depending on how you slice them up, and "Al Qaeda" in Iraq is the tiniest one.

And at some point I'm afraid I'm going to have to start billing him for the free legal education I'm giving him.

You know, that's not a bad idea: a blog where trolls have to pay to post. That'll test the courage of their convictions and make it worth our while.

Posted by: tRex on June 13, 2007 at 1:23 PM | PERMALINK

In any case, what is the argument here? That our proper response should be withdrawal and reliance upon "soft power?"

The argument is that by failing to go after al Qaeda, by letting bin Laden get away, and by diverting resources from that fight to an unnecessary, illegal and inflammatory attack on an unrelated country that we wasted our resources and intelligence assets and provided al Qaeda with a breather, a recruitment tool, a training ground and a never-ending source of propaganda, thereby giving them time, men and materials to regroup and become even stronger. The proper response would have been to destroy al Qaeda first and foremost and not to invade Iraq.

Posted by: Stefan on June 13, 2007 at 1:25 PM | PERMALINK

In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.

Yes, and where in our intelligence reports does it say that our activities have not increased the power and reach of al Qaeda? Please detail for us what our intelligence has reported if you're so familiar with it. Why don't you try providing some cites and primary sources for a change?

Posted by: Stefan on June 13, 2007 at 1:32 PM | PERMALINK

You could indeed go on and on quoting from one unclassified site or opinion after another and it wouldn't change the intelligence reports.

??? That IS the intelligence. And if you're asserting that some secret report exists that contradicts not only the opinion of 16 different intelligence agencies but every expert opinion in the world and all that we can see happening right in front of us...then I'd suggest you call the nurse and ask for you daily meds early.

As for personal contributions, if only those of us here had been able to persuade the same number of Americans who now understand that we never should have invaded Iraq in the first place, in our own small way we would have assisted in saving literally hundreds of thousands of lives AND helped make our country safer. The one thing the Titanic needed most was not another shoveler in the coalroom or smug kiss-ass officer on deck but a guy with a pair of spyglasses shouting "go the other way!"

In a democracy, participation in the debate is a contribution.

And yes, I am indignant, aggrieved, and crazed over over past and future carnage, falsely perpetrated for political and geostrategic gain in the name of patriotism and security while measures to defend against real threats, non-existential though they may be, are ignored. I make no apologies for that.

Posted by: tRex on June 13, 2007 at 1:46 PM | PERMALINK

trashauler: In any case, the original posted contention was that our activities had "increased the power and reach of Al Qaeda." That's not what our intelligence has reported.


"The US invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism."

..."the overall terrorist threat has grown since 9-11." - National Intelligence Estimate 9/22/06

dont forget...the president disbanded the bin laden unit...

“Osama bin laden is in Pakistan actively re-establishing al Qaeda training camps.” - Mike McConnell, the new director of national intelligence 2/27/07

Posted by: mr. irony on June 13, 2007 at 5:09 PM | PERMALINK

stefan wrote:

"You know, when most people have been proven wrong again and again and again, as I and others have been doing to Trashauler since yesterday, they generally shut up out of a sense of shame."
_______________________

You see, stefan, that's where you go off track. I have been wrong many, many times in my life and doubtless will be again. That's a very simple admission for an adult, one that only the young and the arrogant have trouble making. There is also nothing evil about being wrong, so long as one is trying to find the truth - and isn't so arrogant as to believe he is the sole owner of the Truth.

As far as shame goes, that is a proper feeling if one has intentionally committed a crime or some sort of sin. I'm doing neither here. I have no intent to deceive or confuse anyone. Most of the time I'm not even trying to convince anyone.

However, I am always willing to learn and to help others learn. If that makes me a troll in your lights, I cannot help that.

I do appreciate your assistance in explaining your reasoning regarding the Geneva Conventions and related issues. So, thanks much. Naturally, I went elsewhere to get bits of other opinions. That's my understanding of how the dialectic process, the thesis/antithesis, works.

Posted by: Trashhauler on June 13, 2007 at 5:30 PM | PERMALINK

Mike wrote regarding our pre-OIF relationship with Iraq:

"We did not have "peace?" We did not have war. Iraq was not a threat to the US; Iraq was in no position to attack the US."
_______________________

Not quite, Mike. Civilians at home in the US had peace. The military was on a war footing from the end of DESERT STORM onward. Iraq repeatedly attacked our aircraft in the no fly zones and caused several scares that resulted in massive deployments to Kuwait and Saudi Arabia during the time, as well as several short bombing campaigns. Iraq was never in any position to attack the United States, but without US air cover, Saddam was a continuing threat to his neighbors.

I was also making the point that we did not conclude a formal peace agreement after the first Gulf War. We merely signed a cease fire agreement. Technically, hostilities had never terminated.

Posted by: Trashhauler on June 13, 2007 at 5:57 PM | PERMALINK

stefan wrote:

"'That our proper response should be withdrawal and reliance upon "soft power?'


The proper response would have been to avoid invading a country that was not a threat, not gin up intelligence to do so, and if going forward with such a disastrously ill-considered plan to AT LEAST do it with half a million troops to maintain security and have one hell of a post-war occupation plan to make the Iraqis fall deeply, hopelessly in love with us."

and tRex wrote:

"The argument is that by failing to go after al Qaeda, by letting bin Laden get away, and by diverting resources from that fight to an unnecessary, illegal and inflammatory attack on an unrelated country that we wasted our resources and intelligence assets and provided al Qaeda with a breather, a recruitment tool, a training ground and a never-ending source of propaganda, thereby giving them time, men and materials to regroup and become even stronger. The proper response would have been to destroy al Qaeda first and foremost and not to invade Iraq."
_____________________

I note that both of you are talking about things four years in the past. I was interested in where your arguments were going for what we should do now.

Posted by: trashhauler on June 13, 2007 at 7:42 PM | PERMALINK

tRex wrote:

"That IS the intelligence."
___________________

Again, with respect, no, that's only a portion of the intelligence. Any complete intelligence report will include some sort of order of battle (ORBAT) of the participants, calculations of relative effectiveness, effects of our specific efforts and the enemy counter efforts. And you can be pretty certain that almost none of our advantages or effectiveness will get much play through unclassified media.

Posted by: trashhauler on June 13, 2007 at 7:49 PM | PERMALINK

tRex wrote:

"In a democracy, participation in the debate is a contribution.

And yes, I am indignant, aggrieved, and crazed over over past and future carnage, falsely perpetrated for political and geostrategic gain in the name of patriotism and security while measures to defend against real threats, non-existential though they may be, are ignored. I make no apologies for that."
______________________

Nor should you apologize for that, though it generally takes two sides to a debate. Deciding that the other side is unworthy of your consideration means there is no debate, there is only reinforcement of one's orginal position.

I do owe you an apology, though, as I should not have intimated that you contribute nothing to the way forward. I get a little crazed too, sometimes.


Posted by: trashhauler on June 13, 2007 at 7:56 PM | PERMALINK
Iraq repeatedly attacked our aircraft in the no fly zones and caused several scares.... Trashhauler at 5:57 P
Not quite. First, your no-fly zones were illegal and Iraq never shot down any aircraft.

...the no-fly zones were not authorised by the UN and they are not specifically sanctioned by any Security Council resolution.
BBC diplomatic correspondent Barnaby Mason says the Western powers - led by President George Bush senior - argued that their action was consistent with Security Council Resolution 688 adopted on 5 April 1991.
The resolution condemned the repression of the Iraqi civilian population and demanded that Iraq end it immediately.
It said the repression amounted to a threat to international peace and security - a phrase our correspondent says is often used to justify intervention.
But critics of the no-fly zones point out that the resolution did not say the Security Council was acting under Chapter VII of the UN Charter, which provides for enforcement action....

Note, SCR 688 said nothing about no-fly zones.
As to there being 'several scares,' we've seen that from the Bush administration. They are not worth the media time they receive. Let Kuwait and/or Saudi Arabia defend themselves. They have ample military capabilities. Why should American's pay with blood and treasure to support the Kuwait monarchy of the repressive Saudi regime?

....Technically, hostilities had never terminated. Trashhauler at 5:57 PM

Technically, hostilities have never terminated in Korea either. If that is your justification for the Iraq War would it justify an attack on North Korea? Would it justify a North Korean attack South Korea?
As for comity, there are millions are refugees from war; hundreds of thousands are dead; billions have been wasted. I think passion should be the order of the day.

Posted by: Mike on June 13, 2007 at 7:58 PM | PERMALINK




 

 

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