TCS Daily


The Imperial Supreme Court

By Robert Haddick - December 19, 2007 12:00 AM

Critics of the Bush administration assert that America's wars in Iraq and Afghanistan, and other actions, overt and covert, in the larger War on Terror, constitute an attempt by President Bush to create an American empire in the classic meaning of that term. These critics claim that the U.S. military has seized foreign countries, and that President Bush has used the government's power to compel obedience from weaker nation-states, in the manner of past imperial powers.

Yet it is the United States Supreme Court that could in the months ahead make the most stunning declarations of U.S. authority over the sovereignty of other countries. In a list of cases now before the Court, petitioners are calling on the Supreme Court to extend the judicial power of the United States into the territory and affairs of other nation-states. Should the Court take these breathtaking steps, there will be few limits remaining to the reach of the Court's jurisdiction. It would then be up to future Presidents and Congresses to cope with the consequences of the Court's imperial ambitions.

This year's crop of Guantanamo cases

On December 5, 2007, the U.S. Supreme Court heard oral arguments in the case Boumediene v. Bush. The Boumediene case is another in the string of cases emanating from Guantanamo Bay where attorneys for the detainees there are attempting to get their clients into U.S. federal court. Before 2004 this seemed implausible; U.S. courts were not thought to have the authority to issue writs of habeas corpus beyond the sovereignty of the United States. But in the Supreme Court's first Guantanamo case, Rasul v. Bush (2004), the Court ruled that its authority extended onto the Guantanamo Bay naval base, Cuban territory, because the U.S. government exercises "exclusive jurisdiction and control" over that parcel of land.

As many predicted, that finding has opened up a floodgate for innovative lawsuits and, potentially, a stunning expansion of the Court's geographical reach. During oral arguments in the Boumediene case, Mr. Seth Waxman, the attorney for a group of Guantanamo detainees, attempted to explain his geographically expansive vision for the Court's authority:

MR. WAXMAN: Mr. Chief Justice, let me answer that question directly and then if I may finish my answer to Justice Scalia.

We don't contend that the United States exercises sovereignty over Guantanamo Bay. Our contention is that at common law, sovereignty (a) wasn't the test, as Lord Mansfield explained, and (b) wasn't a clear-cut determine -- there weren't clear-cut sovereignty lines in those days. Our case doesn't depend on sovereignty. It depends on the fact that, among other things, the United States exercises --quote -- "complete jurisdiction and control over this base." No other law applies.

[...]

JUSTICE ALITO: So the answer to Justice Ginsburg's question, it wouldn't matter where these detainees were held so long as they are under U.S. control. If they were held on a U.S. military base pursuant to a standard treaty with another country, if they were in Afghanistan or in Iraq, the result would be the same?

MR. WAXMAN: No, I think, Justice Alito, I want to be as clear about this as I can be. This is a particularly easy straightforward case, but in another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control.

In other words, by Mr. Waxman's reckoning, U.S. judges should be able use their discretion at evaluating "facts and circumstances" to determine what parcels of foreign territory they would like to rule over.

After hearing this exchange, Chief Justice Roberts expressed his concerns about Mr. Waxman's vision of where the judicial branch's powers should extend:

CHIEF JUSTICE ROBERTS: So to determine whether there's jurisdiction, in every case we have to go through a multi factor analysis to determine if the United States exercises not sovereignty, which you've rejected as the touchstone, but sufficient control over a particular military base? Over the Philippines during World War II, in Vietnam, and it is going to decide in some cases whether the control is sufficient and others whether it isn't?

MR. WAXMAN: Well, I don't --

CHIEF JUSTICE ROBERTS: And that is a judgment we the Court would make, not the political branches who have to deal with the competing sovereignties in those situations?

[...]

CHIEF JUSTICE ROBERTS: Mr. Waxman, this determination, whether it's sovereignty or subjugation or control of non-sovereign territory, would, I expect, have diplomatic consequences. It is, I think, typically an act of war for one country to assert authority and control over another country's jurisdiction. [emphasis added]

Who rules this patch of dirt?

In July 2005, I commented at my blog on the Supreme Court's early treatment of the Guantanamo issue. That blog post from almost two-and-half years ago seems prescient. At that time I wrote:

One wonders whether in the future the court will declare the dirt under the feet of a four-man U.S. Marine reconnaissance patrol in Afghanistan's mountains under U.S. "control", entitling an Al Qaeda fighter they may stumble across to a habeas corpus petition.

What would Mr. Waxman think of this hypothetical situation? We know he wants U.S. judges to be able to rule on "facts and circumstances" such as these.

Taking over Iraq's courts

But this term's Guantanamo cases are not the only ones bearing on the geographical reach of America's judicial power. This article from last Saturday's Washington Post discusses the cases of a Jordanian-American and an Iraqi-American being held in Iraq at prisons run by the U.S. military. One of these men has been convicted and sentenced by an Iraqi criminal court for kidnapping. The other, captured during a raid on a suspected al Qaeda safe house, is awaiting charges from an Iraqi criminal court. Through their attorneys, both men have requested the U.S. court system to stop the U.S. soldiers running the prisons from turning them over to the Iraqi courts for further proceedings.

Will the U.S. Supreme Court now see itself responsible for supervising Iraq's judicial system? These crimes occurred in Iraq and the Iraqi court system is adjudicating these cases. By running the prisons, presumably for a transitional period only, the U.S. military is acting as an agent of the Iraqi justice system, and is no way a principal in these cases. One can only imagine the howls of protest from editorial writers if the U.S. military or the Bush administration's justice department blatantly interfered with another country's internal judicial proceedings. Why should the standard be different for the U.S. Supreme Court?

Forcing the war deeper into the shadows

If the Supreme Court grants all of these habeas corpus claims, it will do so with the belief that it is extending its supposedly civilizing influence to parts of the globe it feels would benefit from that authority. Yet, its actions would have the opposite effect. In the future, no U.S. president would ever contemplate bringing war prisoners to the United States, to Guantanamo Bay, or any other place that the U.S. court system might see fit to get its hands on.

In fact, the U.S. military might find it preferable, at least less legally bothersome, to "subcontract" such things as prisoner-holding and interrogations to allied countries, or, where none are available, friendly tribes and militias. And if this doesn't reduce the legal nightmare caused by capturing detainees, the U.S. and its tribal allies might just be inclined to not take any prisoners. Why use rifles and pistols to raid a suspected terror safe-house when a laser-guided bomb will do? Such a practice would reduce the amount of intelligence U.S. military units might have otherwise received from live detainees. Or maybe not, if some judges feel especially inclined to micromanage the war effort.

During the past six years of conflict, nothing has caused more embarrassment and grief to the U.S. military than the detainees it has acquired. Knowing what it knows now, the Bush administration would never have established the detainee camp at Guantanamo Bay. Future presidents will also learn from this experience. They could be forced into a course that will result in much less visibility for future prisoners, and as a consequence, much less humane treatment.

The U.S. Supreme Court has an opportunity to make future conflicts worse. Acting like an imperial power, the Court has a chance to extend its authority over the territory of other nation-states. It has a chance to seize appellate authority over another country's judicial system. It has a chance to wreck the next President's ability to conduct diplomacy with other governments. And it has a chance to force warfare deeper into the shadows of lawlessness. Will the Supreme Court try to build an overseas empire? And who will suffer as a result?

The author was a U.S. Marine Corps infantry company commander and staff officer. He was the global research director for a large private investment firm and is now a private investor. His blog is Westhawk. He is a TCS contributing writer.


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37 Comments

Time to remove jurisdiction.
If we want to get the courts to stop farting around with military efforts, we need to remove their authority to do so. Congress can pass laws removing certain questions from the authority of the courts, and we ought to remove any jurisdiction over prisoners of war and enemy combatants from the Federal Courts.

At the very least, this will act as a warning to nuts on the bench: Step over the line, and you will lose your power.

As a side note, I think we need to soften the rules for "extreme" interrogation tactics like waterboarding that are uncomfortable, but do not risk any permanent damage. Waterboarding is neither the rack nor the thumbscrew, and should be recognized as such.

Harvard Law School and Military Emporium
So now were going to hand over the execution of war and national defense to the trial lawyers.

Maybe we can litigate the terrorists to death.

I know, lets sue Bin Laden, that will do it.

responsibility - all branches
we have allowed the judicial branch to overtake the 3 branches of gov't.

notice that all branches take an oath to uphold the constitution of the US. it is up to each branch to do so. if the courts get it wrong, then it is up to the other branches to uphold the constitution even if it means ignoring the court and stating the interpretation.

the courts have been a defacto oligarchy because we have allowed it to happen.

the states also have a role to play. if the federal gov't is overreaching, it has an obligation to do something about it. of course we remember what happened the last time that happened ...

supreme court
An alternative title, or a summation of the article could have been: Government beaurocrats keep trying to expand their empires. Or maybe: Beaurocrats try for more power.
You would have to be profoundly naive to expect anything else of them, or anybody else feeding at the public trough.

thats the free market
Our government isn't doing it, so someone will step in. Thats the free market.

I question one small point in the article, that Bush wouldn't have opened Guantanamo if he knew then what he knows now. I see no reason to believe that. We needed somewhere off American soil to keep those guys, exactly for the reason so the Courts wouldn't think they could get jurisdiction. As it is, the detainees are covered by no jurisdiction, and thats not acceptable for long.

I understand the basis of why the Court is doing this, there should be a process to determine detainees' status and a process that determines how and why we'll detain them or release them. Our government has failed to do this, they reject military process, they reject civilian process, they have failed to create a new process. Now its to the point the Supreme Court is stepping in to fix this problem, or at least force our government to fox it if it wishes to not give more of its power to the Court.

What else are we to expect? Thats its acceptable to detain people and not tell them why, not give them a chance to plead their case? Detain them for years in this undefined state? They're obviously not all bad guys we have detained, I find it highly objectionable that innocent people would sit in our jail for years and never get a chance to know the charges or be able to refute the charges. Is this the third world? Thats the kind of BS Americans fear will happen when travelling in third world countries, where the rule of law is weak. This is America people, the Court is being forced to do this because the Administration has failed to perform its responsibility.

Let me add, I object to the Court doing this, its not proper, but they have no choice. The Administration has failed up to this point, now they must step up and take care of this. Or the Court will.

Armed Combatants
Hmmm, so if I go to a 3rd world country and attack it's troops and citizens I should expect a trial in a criminal court?

Hmmm, once we open up the courts to this I see no end. I suppose if we capture Bin Laden next we can let it be viewed on court TV?

We have gone insane. Of ocurse the simple solution is not to detain. The incentive here now is to make sure nobody is taken alive.

It is always the unintended consequences of laws that come back to bite you.



Which other cases?...
The current case before the Supreme Court speaks to the status and rights of prisoners take in a battle zone.

Which other cases is the author talking about when he says: "In a list of cases now before the Court, petitioners are calling on the Supreme Court to extend the judicial power of the United States into the territory and affairs of other nation-states." ?

This author makes compelling arguments...but he tends to invent facts in support of his extreme positions.

are you dense or what?
You didn't even make an argument that my point is wrong. Or do you not understand what I'm saying? Thats a reasonable assumption for me to make given this comment you made (given your whole post actually)-

"Hmmm, so if I go to a 3rd world country and attack it's troops and citizens I should expect a trial in a criminal court?"

No, but if you go to a third world country and don't do those things, you might still get arrested and thrown in jail for no reason other than being in the wrong place at the wrong time.

Not all the people we have detained are terrorists. I thought that was obvious since so many have been released after years of custody and no proof whatsoever they did anything wrong.

But even "armed combatants" don't have a process to deal with them. I would think military justice is the answer given the name of "armed combatant". If they're POW's, define them as such and move on. Armed combatants, along with innocent people scooped up inadvertently, instead are left in limbo, leaving this opening for the Court to step in and deal with it. In fact, beckoning the Court to deal with it.

Its un-American to hold people in jail indefinitely and not tell them why, not give them a chance to refute the charges.

The problem here is the lack of a law (or process), not that the law is coming back to bite us. Thats my point. This is a new circumstance, it requires new definitions and processes, it requires new law. Absent that, the Supreme Court has now stepped in to deal with it when the Administration has failed to do so up to this point.


"Of ocurse the simple solution is not to detain. The incentive here now is to make sure nobody is taken alive."

I'm not totally opposed to that, but we better know its a terrorist or enemy combatant that we're killing and not innocent civilians. But how do you do that when the enemy is dressed like a civilian? Civilians are cover for the enemy, so to do this in this situation would be foolish.

That's funny, because we held people in jail indefinitely during every other war...
...who were captured overseas (or even in the US, see Civil War) as a result of military action.

It's PERFECTLY American. Study actual history.

"...but we better know its a terrorist or enemy combatant that we're killing and not innocent civilians"

THAT is impossible to do with the level of certainty you imply. Wars simply can't be fought that way.

"But how do you do that when the enemy is dressed like a civilian? Civilians are cover for the enemy, so to do this in this situation would be foolish."

Combatants that do not comply with the Geneva Convention requirements do not get the benefit of POW treatment and protections. Fighting out of uniform or deliberately using civilians as shields fall into the 'non-compliance' part. As for the civilian collateral damage, the Conventions call for doing quite a bit to minimize it, but doesn't out right ban military operations that can't always do so.

And, it is not for the Supreme Court to raise a stink about how to interpret the Conventions either way. Only other signatory governments involved can raise a stink about such treaty violations. The ACLU, Bob Jones, myself, those detained or the Euroweenie Bush-Hater League don't have legal standing according to the Convention. This is what Justice Roberts was raising a stink about to Waxman, among more general practicalities.

Of course, PubliusJr has the simplest solution -- pass legislation making it clear that the courts don't have an ounce of jurisdiction over these issues. Of course, the useless Republicans didn't do it when they had power and the Dems won't do it now (unless a Dem president gets into office and asks for it).

Freedom
It's interesting that you equate one branch of government - the judicial - seizing power from another - the executive - as "the free market". Very asinine, for freedom exists where state power is limited.

The way you and your fellow travelers think about freedom and the state never ceases to amaze me, bobjones. Were we Americans freer before or after the New Deal?

Let's cut to the chase: You want the Judicial to seize power from the Executive to determine what to do with foreign nationals seized by the Executive, not for the benefit of the nation, but for the benefit of the foreign nationals. You find the Judicial's non-existent authority to do this wafting from the gaseous emanations and penumbras of mouldering treaties and constitutions. Further, you believe this Judicial power grab, which can only be affected if the Judicial manufactures law sua sponte where none heretofore existed, is necessary because the Judicial, which does not have the power to legislate, has not yet legislated on this issue.

(It should be but is not) needless to say, these arguments are sheer nonsense. When the Judicial seizes legislative power to make law and executive power to conduct war, it violates the very legitimacy of its own power and subjects itself to severe reprisal. Why do you suppose that jurists, in order to serve their countrymen on the federal bench, must hazard the national political circus that has become the federal judicial nomination process, in which their names are smeared by lying politicians and media hacks pandering to their constituencies' lust for blood and spectacle? Roe v. Wade, and other such occasions where the Judicial has decided to seize the legislative power for its own use.

I guarantee you, bobjones, that if today's Supremes do not reverse the power-grabbing inertia of the Judicial, they'll preside over its demise.

We held Germans in the US in WW2
And they were held indefinitely until the end of the war. These were uniformed combatants held under the terms of the conventions of war, not some thugs like the Taliban.

Technically, under the terms of war, we can off anyone out of uniform who actively engages in war operations against our troops.

There is no lack of rules, they were well used in WW2. This has all been review in thepast and hence the reason they are off shore. The problem now is the sniveling left wants to treat terrorist just like a common thug and give them all the protections of our court system. Since these would be high profile cases I can see the media circus and all the ensuing trials. This is about bringing them into the courts to make the US and Bush Administration look bad. The left knows no bounds, they would destroy this nation. Maybe no you personally but many of the people pushing this stuff are openly hostile to US interests.

If a man named Abu Jamal can kill a police officer in public with 4 witnesses and be convicted to death in 3 hours by a jury and then have legions of blind fools advocate his release, have streets named after him as a symbol of racial injustice then why should I expect less of a terror suspect? After all, these poor terrorist are nothing but victims of the imperialist US and the Zionist plot to rule the world. They are only acting in the name of the religion of peace?

"the detainees are covered by no jurisdiction,"
Yes, they are under the jurisdiction of the US military.

The flaws of human constructs.
Not all people in jail committed a crime so lets abolish jails, hell NJ just abolished the death penalty lest one slip by.

Life is pretty risky when you attempt to create a risk free society.

Did not the Bush Administration attempt Military Tribunals? If I remember this caused outrage also. Remember, the Military is only a wing of the Imperialist Zionist state.

This is merely political and the whole thing is basically to undermine Bush. While I am no huge Bush fan the left is seething with hatred, drips with it. It is pretty amusing but dangerous. Revenge is a very dangerous business and the left is all bout revenge.

Litigation anyone?

remind me, how many "war on terror"'s have we fought?
So what is the point you guys are making exactly? You're not disproving my point and you're not proving your own point either. You say WW2 is the same as the war on terror, but thats not true. You say past wars provide the rules for this war, but thats not true, these detainees are not POW's. Do you not understand what I'm saying, or do you just not care (in the process of justifying your ideology)? Thats what your coments look like, not an argument, just a bunch of emotional points to spur anger and rally your ideology.


"...who were captured overseas (or even in the US, see Civil War) as a result of military action."

Really, so our standards and ethics have not changed since the Civil War? How about Japanese internment camps during World War? Those weren't even combatants, some were US citizens. Is that what you mean, you think thats acceptable, we should do more of that? Should we round up Arabs in America and put them in jail just in case?


"THAT is impossible to do with the level of certainty you imply. Wars simply can't be fought that way."

I agree. So lets put to bed the doctrine dbt offered to leave no one alive.


"Combatants that do not comply with the Geneva Convention requirements do not get the benefit of POW treatment and protections."

Agreed. So what protection do they get? They're not POW's. So should they get the protection our civilian courts provide? How about even military courts?

Those are the systems we have in place today, if terrorists don't fall into those systems, then a new system needs to be devised to deal with them. A system to deal with out-of-uniform combatants who don't represent a country's military. And not everyone we detain is a combatant. Its despicable we would detain an innocent person for years, never to tell them the charges, never to let them speak to a lawyer. I'm not saying they deserve a lawyer, but this is the reality. Some people we detain are innocent, we must have a system to deal with them. Thats my point. It would really be nice if you guys would address it, instead of dancing around it cherry-picking points to explain why American values are out the window because you're so terrorized.

This is about more than the Conventions. As you say, the "general practicalities", indeed, its about human rights and how we treat people, even if those people are scum-sucking terrorists. We have to have a process to prove they are terrorists, the Conventions don't do that because the combatants we're picking up don't fit in that definition. And not everyone we pick up is a combatant, so how do we deal with them?


"Of course, PubliusJr has the simplest solution -- pass legislation making it clear that the courts don't have an ounce of jurisdiction over these issues."

I don't see how thats acceptable. You can't hold people in jail and not offer a reason or give them a recourse to challenge their detainment. If they're a POW, like the prisoners we've had in every other war, so be it, thats the reason. The only other recourse is civilian courts. I agree thats too much protection, it shouldn't apply. But things as they are today, its the only thing available to apply. So these detainees are somewhere between, they're ghost people we scooped up anytime, anywhere and put them in jail. Some of them are innocent, thats reality. So we need a new system to deal with them. Their only recourse is the courts, there isn't a system to deal with them. Passing a law that puts the courts out of reach doesn't solve the problem. It would be worse, it would be a law that says we can detain you for whatever reason we want, for however long we want, and you can't use the courts for justice. It would be a law that signals the end of America as we've known it. It would signal the terrorists are winning.


dbt: "There is no lack of rules, they were well used in WW2."

Do you mean like POW's, or like Japanes internment? What rules from WW2 apply to the war on terror?

Are they POW's, if not, what are they? Are they prisoners, priviledged to get civilian courts, if not, what are they? Those are our rules, the people we've detained don't fit in those rules. Right?

The answer most certianly is not that we just detain them indefinitely with no explanation why. This is why the Supreme Court is being forced into this. The Administration and Congress have failed to devise a system to deal with these people in an acceptable way. The Court is FORCED to deal with it. I agree it should not be the Court's jurisdiction. But its NO ONE's jurisdiction now. Rather, its the Administration's jurisdiction, but they've failed to deal with it.

This isn't about making the Administration look bad. They do a fine job of that on their own. Its about human rights, its about the rule of law. We need a process to deal with these detainees. You can't just make it go away by whining about the left.

How can the US Supreme court have jurisdiction outside the USA?
"The Administration and Congress have failed to devise a system to deal with these people in an acceptable way."
But its NO ONE's jurisdiction now. Rather, its the Administration's jurisdiction, but they've failed to deal with it."

How have they failed to deal with it?

What's acceptable? By what standards?

Maybe you don't like the way the military is dealing with it, but they are dealing with it. THEY always find a way to deal with it.

Who or what FORCES the court to deal with it? It is supposed to be a court of law based upon the US Constitution. The Supreme Court is the Supreme Court of the USA, not the world.


Enemy Combatants
"There is no doubt that the attacks of September 11, 2001 constituted acts of war. They possessed the intensity and scale of war. They involved at least one military target, the Pentagon, and they came on the heels of a decade of attacks by al Qaida on U.S. military and civilian targets. Congress on September 18, 2001 authorized the President to use force in response to the attacks. And both the United Nations and NATO recognized that the attacks were “armed attacks” within the meaning of the UN Charter and NATO treaty. Since September 11th (and perhaps before then), we have been at war – both legally and in fact."

"War implicates legal powers and rules that are not available during peacetime. Among other things, the war context gives the President the authority to detain enemy combatants at least until hostilities cease."

"An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”"

"Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below)."

"The President has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime. See, e.g., Quirin, 317 U.S. at 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The authority to detain enemy combatants flows primarily from Article II of the Constitution. In the current conflict, the President’s authority is bolstered by Congress’s Joint Resolution of September 18, 2001, which authorized “the President . . . to use all necessary and appropriate force” against al Qaida and against those nations, organizations, or persons he determines” committed or aided in the September 11 attacks.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added). This congressional action clearly triggers (if any trigger were necessary) the President’s traditional authority to detain enemy combatants as Commander in Chief."

"Presidents (and their delegates) have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of POWs in the United States (some of whom were U.S. citizens) without trial or counsel. Then as now, the purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy."

"Many have claimed that enemy combatants are being detained “indefinitely.” The suggestion appears to be that they are being detained lawlessly and without limit. That is not true. As explained above, the constitutional power to detain during wartime is well settled. In addition, international law – including the Third Geneva Convention – unambiguously permits a government to detain enemy combatants at least until hostilities cease. There may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But disquiet about indefinite detention is misplaced for two reasons."

"First, the concern is premature. In prior wars combatants (including U.S. POWs) have been legally detained for years. We have not yet approached that point in the current conflict. Second, the government has no interest in detaining enemy combatants any longer than necessary, and the Department of Defense reviews the status of all enemy combatants on a case-by-case basis to determine whether they should continue to be detained. Since we first captured or came to control detainees in Afghanistan, we have released many thousands, and we recently released additional detainees from the United States Naval Base in Guantanamo Bay, Cuba. But as long as hostilities continue and the detainees present a threat or retain intelligence or law enforcement value, no law requires that the detainees be released, and it would be imprudent to do so.

Capturing and detaining a U.S. citizen, or any other human being, is not an activity DoD takes lightly. As in other armed conflicts in which our Nation has been engaged, the detention of enemy combatants serves a vitally important protective function. Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation. We are committed to defending the United States in accordance with our constitutional responsibilities, while preserving the constitutional rights of United States citizens. "

http://www.cfr.org/publication/5312/enemy_combatants.html

The point
Current laws are sufficient to deal with enemy combatants.

Maybe you don't like it, but war is what it is.

Maybe the real debate should be "are we at war"?

Does the Supreme Court decide when the war is over?

Great Response!!!
I wish I had time to write such a well thought and eloquent reply.

Hat Tip..

that is a good justification made by Bill Haynes
I'm simply not equipped to argue with a good lawyer. That is a convincing argument on its face, but I don't buy all of it.

I find much of that memo is contrived of vague definitions and connections that are questionable. Not too surprising given how common this tactic of argument is used by Administration counsels to justify the numerous grabs for power and political manipulation of non-political departments and institutions.


"Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below)."

So what protections do unlawful combatants receive? The discussion below, as referenced there, consists of: detention. So this is an argument to justify indefinite detention. Or at least as long as hostilities endure. But hostilities will never end, its not a conventional war, as long as one person out there wants to kill Americans we'll have hostilities.

But Haynes recognizes this and confronts it head on:

"Many have claimed that enemy combatants are being detained “indefinitely.” The suggestion appears to be that they are being detained lawlessly and without limit. That is not true."

Haynes is right that its not lawless, regardless that he is spurriously framing a "suggestion" as though its real. Haynes is wrong "without limit" isn't true, the war on terror is like the war on drugs, it will last as long as we say it lasts, there is no standard to independently determine an end to the conflict.

But again Haynes sees this pushback and heads it off at the pass:

"There may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But disquiet about indefinite detention is misplaced for two reasons."

"First, the concern is premature. In prior wars combatants (including U.S. POWs) have been legally detained for years. We have not yet approached that point in the current conflict. Second, the government has no interest in detaining enemy combatants any longer than necessary, and the Department of Defense reviews the status of all enemy combatants on a case-by-case basis to determine whether they should continue to be detained."

Ah, the concern is premature. Well, that premature concern is no longer premature, and wouldn't you know, its a real concern. A lot has changed since 2002.
And thats good to know the government has no interest in detaining ec's any longer than necessary. I feel better already.

Great argument. It amounts to- we're at war, "just trust us". And wouldn't we be a bunch damm fools if we did. Gee, why doesn't the Supreme Court accept this argument? Haynes cites the law multiple times in his memo. You mean the law doesn't support "just trust us"??

"Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation."

Thats easy to say, but you need to prove it with your actions. And how are we supposed to know DoD does this? How are we supposed to trust them after all the damage that has been done to our reputation, BECAUSE of them? Don't worry, "just trust us".

Too bad you don't trust the people keeping your ass from getting blown up.
There are a few bad apples in every organization, but the DoD, to include all in and out of uniform, are the most trustworthy, honest lovers of the USA that you will find in and out of the government.

How are you supposed to know? Trust your Congressmen(?) or read the military blogs.



Our reputation
What is this dribble, because of the DoD? They can do nothing without civilian authorization. So nothing they have done is the militaries fault, it is civil leadership if we indeed have suffered some reputation lapse, which I really don't think is as much as the liberals say. This is just more anti-military talking points. Yeah, they are storm troopers of the legion of zion right?

This is really hyperbole. Like Abu Graib. So these poor guys were humiliated, well there was a lapse of command but that is not a institutional issuse. We are not like Japan where the Army controlled the government.

It is like the war on drugs, good analogy and the war on drugs is simple to end. We simply do not have the will to do so.

The solution? If you are caught manufacturing or smuggling drugs into the US, specifically Heroin, Cocoaine and Meth it is death by firing squad. I bet you would see the problem dry up very quickly.

Ruthless and unlawful? What about the misery and destruction spread by these drugs? What about the cost in human pain and suffereing, so I am to have any empathy towards smugglers and dealer. Hell no.

How much would coke cost if the price of bringing it in was death? Nooo, we can't even execute a convicted child rapist/murderer. That is cruel and unusual, let alone some drug dealer or terrorist?

You live by the sword, you die by the sword execpt in the modern US where you simply get a court date, bail and split.

Rebuttal
You respond:

"Really, so our standards and ethics have not changed since the Civil War? How about Japanese internment camps during World War? Those weren't even combatants, some were US citizens. Is that what you mean, you think thats acceptable, we should do more of that? Should we round up Arabs in America and put them in jail just in case?"

My rebuttal:

1) The point you made was that detaining people w/o trial during war was 'un-American'. I just offered historical proof that it was indeed VERY American. I made no mention either way with regards to what I personally felt about it. So let's clear that up.

2) Also implied in my response (however vague, I admit now) was that it could happen again. You ask me if it should be ALLOWED to happen again because our ethics have evolved. My response to that is: We don't know just where our ethics lie until we are faced with that choice in the future and take actions for them. Clearly, it's happening again...so guess where I am placing bets on what will happen when a dirty bomb takes out one of our cities? Can you say, "those Arab-Americans who SURVIVE the lynch mobs will probably do so in no small part because they were rounded up and placed into internment camps just as the Japanese-Americans were." This happened before. My great-grandmother told me how, just after the Pearl Harbor was attacked, she saw US soldiers and police in 'Japtown' (in San Francisco) were holding back the lynch mobs of people wanting to rip the Japanese-Americans to shreds just as much they were going house-to-house to round them up for the railroad cars. My point is: ethics are all nice & good but lousy predictors of actual future human behavior. I prefer history to be my guide, regarding these issues.

The other 'practical generalities' I referred to had to do with the Supremes getting involved at a micro-managerial detail with US overseas activities in foreign countries, as Justice Roberts was bringing up.

You write: "But its NO ONE's jurisdiction now. Rather, its the Administration's jurisdiction, but they've failed to deal with it."

I recommend that you don't consider what the Administration is doing as a failure just because you don't like the outcome. After all, how can they fail when they are doing PRECISELY what they feel needs doing? (and you know that is a true statement because you're not happy about it being the case)

Better off
I've heard several Guantanamo detainees have petitioned the powers that be not to be sent back home.

Many German POWs wanted to stay
Of all places to put a WWII German POW camp, Stuttgart, AR.

I was told there were many who had 'disappered' when the war was over.

And not killed, but smuggled into the local community to assimilate.

The Competent Tribunal clause
This sort of reasoning would appear to be upheld by one of the bases of international law-- the Geneva Conventions:

MR. WAXMAN: Mr. Chief Justice, let me answer that question directly and then if I may finish my answer to Justice Scalia.

We don't contend that the United States exercises sovereignty over Guantanamo Bay. Our contention is that at common law, sovereignty (a) wasn't the test, as Lord Mansfield explained, and (b) wasn't a clear-cut determine -- there weren't clear-cut sovereignty lines in those days. Our case doesn't depend on sovereignty. It depends on the fact that, among other things, the United States exercises --quote -- "complete jurisdiction and control over this base." No other law applies.

[...]

JUSTICE ALITO: So the answer to Justice Ginsburg's question, it wouldn't matter where these detainees were held so long as they are under U.S. control. If they were held on a U.S. military base pursuant to a standard treaty with another country, if they were in Afghanistan or in Iraq, the result would be the same?

...The GC demands that before any individual may be denied protections under his status as a combatant, he must be found to be an unlawful combatant by the action of a "competent tribunal". Such wording would seem to describe conditions in an occupied territory, such as one existing in wartime conditions. There may be no real rule of law other than what is provided by a temporary occupier.

However the holder of a prisoner has both the right and the duty to try that person in a competent tribunal before meting out judgment or punishment. And that is the principle being applied in the Guantanamo cases.

The alternative would be to allow such cases to enter the Cuban courts. But the prisoners, all with undefined sentences, must have their day in court somewhere, somehow.

Waterboarding is not the thumbscrew
I can't argue with you there. People can and do die under waterboarding. The thumbscrew merely causes a lot of pain. The Holy Inquisition used both. Should it then be held up as the model for American behavior?

Also, you are more than halfway down the slippery slope when you assert that our military should take precedence over our legal system. Crossing that line, into military rule, transforms us into a dictatorship.

Declaring a war on individuals
Your analogy fails when you try to portray the 9/11 attack as an act of war. There was no state author-- just an organized group of conspirators. It was more akin to the acts of the John Wilkes Booth conspirators, where a very few people committed a grave act damaging the interests of the United States.

It certainly does not rise to becoming a justification for the punishment of nations not connected with the attack, such as Iraq and Afghanistan. As a matter of fact it does not even rise to becoming a justification for punishing the nation most connected with the attack-- Saudi Arabia.

What you have is a war against an idea-- against the resistance of any group of people to the spread of US power and influence. And such a war must by definition continue for so long as the US has any power or influence.

This kind of war on terror is most like the War on Drugs, or the War on Poverty. It is not an adequate excuse to suspend the workings of our state of law. We are founded on the principle that the state has a duty to serve the needs of justice under law, wherever our writ holds sway.

That would include Gitmo, Iraq and Afghanistan. And even inside the United States, where the trend now is to hold certain classes of prisoners in preventive detention, beyond their sentence limits.

Very original, too
No need to congratulate marjon on his eloquent prose. He lifted the quote from a Council of Foreign Relations article.

Rules of war and the Rule of Law
Yes, we did hold German POWs in this country. This summer I visited a work camp on Colorado where they were interned. Of course, they got paid seventy cents a day for cutting timber-- very good pay in 1943 for prisoners (many state prisoners only get a dollar a day for working now).

And they didn't get waterboarded.

Plus, they were being held for the duration, and it was a war that clearly one day would have an end. That's very different from this war, which is being conducted against individuals and small groups who resist our might-- not state players.

That kind of war by definition can have no end. As long as we are powerful, someone will try to bring us down. If we use this as an excuse to hold untried suspects forever, we coarsen the principles that we hope will make us rise above other nations.

"Technically, under the terms of war, we can off anyone out of uniform who actively engages in war operations against our troops."

Definitely not. Only if we decide we can do anything on our own terms.

A free party on the battlefield can be killed, in or out of uniform. But once he is in custody the rules apply. He is to be considered a legal prisoner of war until a compentent tribunal determines that his deeds were unlawful, and did not serve the ends of any party to the war. At that point, once convicted of a crime, he is to be considered a convicted criminal. At every step he is entitled to legal protections, even if the court should sentence him to death.

I think I've pointed that passage out to you before. Maybe you forgot it.

Not surprised
Deutschland was a tough place to be right after the war - shortages of everything, no jobs and an incompetent provisional govt. determined to keep it that way.

At the level of individuals, the world's not an us v. them kind of place even though that narrative is an attractive albeit lazy way to describe it.

And it is properly referenced.

No challenge to the content?

Waiting for justice
Your clipping is indeed properly referenced. I only pointed out to dbt that he somehow missed the citation, and the quote marks.

As for efuting its content, I've done that elsewhere here, notably at the end of the thread, in "the Competent Tribunal" clause.

In unsettled or ambiguous areas tribunals must be held to establish any authority to incarcerate the accused. One can not merely assume they must be guilty because they were picked up. That kind of thing is cop thinking, not court thinking.

Respect for the rule of law would hold, for instance, that in the case of Guantanamo, where legal authority was nebulous, the EITHER the US OR Cuba must hold trials to establish whether the accused are being legitimately held. Years ago, captors there offered the opinion that most of the people they were holding were guilty of nothing. Yet no one has come forward to release them. They continue to want to hold them in the darkness, to save themselves the enbarrassment of having to release innocent men. And it has now been six years.

My point is blunt. Either show me they're guilty of something, or let them go. This Boumedienne is a good test case. I'm waiting.

Rule of law is holding in Guantanamo
They have lawyers and are following a set of laws.

Maybe you don't like it, but they are following a rule of law.

Gitmo=club med
I think the best way to look at these prisons is to see how they are dealt with at the gitmo base, compared to how prisoners are treated on the rest of the Cuban island. Indeed, I'll bet that if these terrorists were asked if they would prefer to be held in real cuban prisons, I'll bet they would beg to stay. In fact, we should even make a further distinction. Apparently the Cubans treat terrorist prisoners in a much harder manner than even their normal prisoners, like journalists, gays, etc.

Our reputation matters big time
I agree with you dbt its not the military's fault for damage to the American reputation. I didn't mean to imply that, I was thinking squarely of the civilian leadership at DoD- Don Rumsfeld in particular, and Cheney and his people, while not officially DoD, you know he and they have much influence on the DoD, and CIA for that matter.


"This is really hyperbole. Like Abu Graib. So these poor guys were humiliated, well there was a lapse of command but that is not a institutional issuse."

The lapse of command on the military's part was not putting a stop to the orders the CIA gave these lower ranks to humiliate the prisoners, to "prepare" them for interrogation. Again, it was civilian influence on military jurisdiction that caused our own humiliation that this was happening.

I'm not sure we should define it as an institutional problem, its a blurry line to figure out where it should fall. It was ongoing, it was ordered by CIA- does that make it institutional? I don't know. But had the photos not gotten out, had the pressure of our international humiliation not forced the behavior to stop, its easy to expect it would have become institutional, if it wasn't already at that level.


"It is like the war on drugs, good analogy and the war on drugs is simple to end. We simply do not have the will to do so."

Agreed! But your simplicity more closely resembles insanity. Murder people for smuggling drugs? Thats called piling "worse" on top of "bad". The problem would not dry up quickly. The result would be higher cost for those drugs, and the violence associated with them would go through the roof. Think about it for a second. A guy is smuggling heroin, he knows we'll kill him if we catch him, you think maybe he might arm himself to the teeth to try and shoot his way out of it, or at the very least kill some cops in the process? He's dead anyway. Your idea just turned drug smugglers into murderers and cop killers. Enough of that happens already, you just made sure it happens every time. For what? I'd bet it would slow the flow of drugs a little at first, pushing the price further up. Thats a lot of money on the table, just waiting for the next taker. There will always be someone else to step up and take the risk for the money, just as sure as there will always be a demand for the product. Free market, son. I don't expect you to have empathy towards drug smugglers and dealers, but I do hope you would use your brain in dealing with the problem, not just emotion.

The Emperor would be pleased with your progress, you are a strong ally to the Dark Side.


"You live by the sword, you die by the sword execpt in the modern US where you simply get a court date, bail and split."

You should be living in the Middle East with an attitude like that. Live and die by the sword? Thats the kind of rhetoric I expect from terrorists. This is America jacko. We live by the rule of law. You do get a court date, and bail if you're lucky, but if you split you're guaranteed to go to jail. You should thank your lucky stars too, thats what our soldiers are fighting and dying for. If you don't like it, get the f*ck out.

You're as bad as marjon. You're terrorized. The terrorists have already defeated you because you've turned into exactly what they want.

i knew some
It's true and I knew some of them, in those days it was easy. Wish I could have done it too, but never got some chance, instead was stuck another decade.

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