BREAKING: 5-4 Supreme Court Extends Habeas Corpus To Foreign Nationals Detained At Guantanamo
Court Overturns Congress' Military Commissions Act
By Dan McLaughlin Posted in Guantanamo | Justice Kennedy | Supreme Court | War — Comments (119) / Email this page » / Leave a comment »
Initial report from SCOTUSBlog here. 5-4 decision written by Justice Kennedy, with the Chief Justice and Justices Scalia, Thomas and Alito dissenting.
UPDATES: The opinions, all 134 pages, are here. More below the fold.
Justice Kennedy starts by conceding that Congress intended to strip federal courts of jurisdiction over such petitions; thus, the constitutional issue is squarely presented. He reviews the history of habeas and finds it not dispositive on the geographic scope of the writ.
The Court gave only partial deference to the Government's longstanding position that Gitmo is not U.S. territory:
[F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take noticeof the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.
Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles.
Slip op. at 24-25. The Court rejected the argument that its precedents compelled use of the de jure sovereignty test:
Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
Id. at 34. And here, at 35-36, is what looks like the key to the opinion - I've gotta run now, no further updates for a while:
And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
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still want to sit this election out?
Jindal in 2012!
I also think the political realities of a democratic Congress mean that at best, we get another Kennedy. At worst, another Breyer.
What bothers me about McCain here is his denseness on the issue. While in today's media clip he says he disagrees with and is troubled by the decision, he also says he has and still does want to close Gitmo. As the key quotes above show, the Gitmo jurisdictional point has been the only thing keeping ECs from these constitutional rights. McCain's closing of Gitmo and moving them to US prisons would have had exactly the same effect as this decision. Sir John doesn't get it. That's a real reason for fretting about him as president.
is the absolute LACK OF FORESIGHT in understanding that it could happen.
Closing Gitmo and moving the prisoners to US soil would have made this outcome more likely, yet McCain seemed unable to foresee that occurrence.
No offense, but the guy cannot foresee legal developments at all.
Every controversial position McCain has ever adopted as a legislator (CFR, McCain-Kennedy, Cap & Trade, Gitmo, et al) suggests the following conclusion is true:
McCain is blind to the law of unintended consequences.
Having Gitmo at least preserved the possibility that Kennedy would end up on the side of Roberts et al. Closing Gitmo would guarantee this outcome.
Bottom Line: This opinion simply accelerates what McCain would do as President.
This bites, it absolutely bites.
Just to be clear though, I still advocate voting for him because he is better than the alternative, but from my POV its going to be a rough ride either way.
but his position on Gitmo has always been naive. I remember when this issue came up in the Republican Primary. Fred specifically mentioned in one of the debates that moving Gitmo to U.S. prisons could give them habeas corpus rights.
McCain dismissed the possibility.
I realize that McCain is not a lawyer, but I'll bet you Bush is less surprised by this ruling than McCain is. Heck my dad is less surprised by this ruling than McCain is.
I confess that I was grinding this axe during the primaries.
I'm not a lawyer either and I guess I'm glad he isn't. But an excellent leader needs to be bright enough to see the consequences and implications. Making appropriate analogies is another thing. Seems to me that when it comes to drilling for oil, the Grand Canyon differs significantly from Anwar and the continental shelf. Republicans would be in a position beat Dems up for causing high gas prices, but oops, that steps on our leader's toes.
Anyway, the SCOTUS is the news of the day and as usual, we are screwed again.
I still advocate voting for him because he is better than the alternative, but from my POV its going to be a rough ride either way.
Makes me wonder what political stances we'll have to sacrifice on behalf of the Republican Party come 2016. (assuming McCain wins and is reelected in 2012)
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Dependence is Slavery.
using the outhouse.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
Yup, but knowing that in a couple elections, you may prefer the outhouse, but are willing to mess your pants.
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Dependence is Slavery.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
McCain is all for extending rights to illegal immigrants, foreign fighters, pretty much anyone who isn't actually a good, taxpaying citizen of this country. He wants to coddle suspected terrorists, close Gitmo prison... hell, for all I know, he wants taxpayer-funded footrubs for every last SOB in that place.
Now, if you're a producing member of society, well then, McCain plays a different tune. If you work for an oil company, he's going to force you to "give back" (whatever that means these days in the socialist handbook) your "excess profits" (whatever some failed middle-management bureaucrat says that is). Never mind that profit is the right of anyone who produces, and that confiscating it under any name is theft, plain and simple. THOSE people have NO RIGHTS.
That extends to the rest of us who hold shares, directly or in retirement funds - which is over half of Americans. We have no appeal to any court for redress for OUR stolen wealth, we have no constitutional protection for our property rights. But if I fly a plane into a building, then good ol' John McCain will go to the mat to make sure no one gives us so much as a dirty look.
After all the latest socialist nonsense he's been spouting on the airwaves this week, I am finally DONE trying to justify pulling the lever for that man. I won't do it. I'm willing to put up with a lot of crap from a candidate, but when he attacks the very underpinnings of capitalism in a populist appeal to the class-warfare crowd, then all I can say is this:
"I quit."
And when he comes out later today or tomorrow in support of this ridiculous raping of the constitution, I will have earned the right to tell all nose-holders that I told you so.
I will sit out, or vote for Bob Barr. He's a loop, but at least he aint' a communist.
Okay, let the party-line lambasting begin.
The modern liberal is defined as one whose sense of guilt has exceeded his capacity for restitution - making it not only forgivable, but morally superior to raid someone else's larder to pay his bottomless debt.
Go ahead and sit it out. Throw your vote away. Welcome in a whole NEW era of liberal judges.
McCain has said he'd pick people more like Roberts to fill vacancies. You know, the guys who voted AGAINST this decision.
If you let Obama win, we'll get more justices like Ginsberg.
Pick one: Roberts or Ginsberg.
Socialism doesn't work. It looks nice on paper, but it's been tried and it's failed miserably every time (usually accompanied by widespread death and suffering).
Proud member of the V.R.W.C.
No, Brian, that's not the choice, as much as you wish it was.
Picking someone like Roberts is fundamentally inconsistent with McCain's anti-constititional, anti-captialism stances.
If you believe his promises to nominate contructionists, then do yourself a favor and take an honest, hard look at what he thinks of the constitution - because THAT is the kind of "constructionist" he's going to nominate. It's not what you seem to think it is.
Then again, McCain may just skip the whole discussion and "reach across the aisle" again to nominate another Ginsburg just for the sake of "elevating the level of discourse in Washington." You know, the kind of anti-conservative crap he's famous for.
You make many unwarranted assumptions about the man's priorities that are not borne out by his behavior, at least recently.
The modern liberal is defined as one whose sense of guilt has exceeded his capacity for restitution - making it not only forgivable, but morally superior to raid someone else's larder to pay his bottomless debt.
The Fuzzy Puppy of the VRWC. I've been usurped!
I'm not the one who told someone to "get real." If you have an issue with something factual, please elaborate.
The modern liberal is defined as one whose sense of guilt has exceeded his capacity for restitution - making it not only forgivable, but morally superior to raid someone else's larder to pay his bottomless debt.
Moe was telling you, with great graciousness, that you need to do better at playing well with others. Allow me to reinforce the message with less ambiguity: do better at playing well with others. Thanks in advance for your cooperation.
-Mgmt.
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Kindly close my account. I didn't realize that lemming-like devotion to an individual was the measurement of "playing well" around here. I will trouble your fragile emotions no longer.
Thanks in advance for YOUR cooperation.
The modern liberal is defined as one whose sense of guilt has exceeded his capacity for restitution - making it not only forgivable, but morally superior to raid someone else's larder to pay his bottomless debt.
Sorry, you're going to have to *earn* a banning if that's what you want. However, if you want to just not post here anymore, we won't stop you.
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Yeah, I have a problem--with your hysteria and wild exaggerations.
McCain is "anti-capitalist"???
Why? Just because he supports a cap-and-trade system?
Even before global warming became an issue, we had to deal with economic externalities: Air pollution. Water pollution. Halocarbons putting a hole in the stratopheric ozone layer. Laissez-faire capitalism has no answer for these problems, because it assumes that the hydrosphere and atmosphere are infinite and their use is cost-free. That's how the atmosphere was treated throughout the entire Industrial Revolution, till the last few decades. Well, it isn't infinite and free. Either the use of the atmosphere has to be restricted, or somebody has to charge a fee for its use.
OK? So the idea that the Government is going to help balance the books on economic externalities didn't originate with McCain. And it's not inimical to capitalism to ensure that all costs, including these "hidden" costs of pollution and environmental degradation, are accounted for.
which is government control of the economy.
Just yesterday he was talking against "Big Oil" saying he would support windfall profits tax and that he would like to see the "excess profits" taken from the oil companies and distributed back to people.
He has also called our domestic drug companies "the enemy" and he is for using the government to control the compensation and retirement packages for company executives.
that McCain will pick justices like Robert and Alito. I believe we will get a lot more like Souter and Kennedy.
That McCain honestly can't see the difference, and hanging one's hopes on his judicial picks is reckless and naive.
Just saying he's more likely to nominate a conservative justice isn't enough to overcome the fact that he's also more likely to torpedo the republican brand for an entire generation. I've seen it happen here in Illinois and I see it happening now on a national level with every new word McCain utters.
I'd rather lose and endure four years of an incompetent boob like Obama - because Lord knows dems are just as eager to fight with one another as they are with republicans - and watch him flail for gravitas for a term.
Rush is right - without Carter, there would likely have been no Reagan. Welcome back to '76, kids. I remember it well enough to know it was worth it.
The modern liberal is defined as one whose sense of guilt has exceeded his capacity for restitution - making it not only forgivable, but morally superior to raid someone else's larder to pay his bottomless debt.
Beating an incumbent is really hard, even an incompetent like Carter. Ask Presidents Mondale, Dole, and Kerry.
This is a disastrous decision, and the tragedy is that McCain probably doesn't understand why. But McCain's nominees will be better than anyone Obama would choose.
My one hope (more fantasy than hope really) is that Kennedy took this absurd position because he knows one of the Justices is about to retire, and he knows that the Kennedy court is about to end.
i'm seriously going to have to consider calling in sick today. this country is going to hell in a handbasket with the supreme court and the democrat led congress all leading the way!
That whole "liberty/death" thing that the Fathers had going on has turned into "okay, I'll trade away this liberty that I'm not using because it offends me that you are" vs "OH YEAH??? WELL!!!! I'LL TRADE AWAY *THIS* PIECE OF LIBERTY THAT YOU LIKE!!!!" "OH YEAH????? WELL!!!!!"
To the point where people earnestly explain how the 2nd Amendment allows for reasonable limitations on handgun ownership.
How people explain how the founders couldn't have forseen the internet.
So on and so forth.
Anyway, this is a ruling yelling at Congress ("you didn't follow the right process") more than it's yelling at the Executive.
Also... I'm kinda surprised at Thomas on this one. I know that Scalia is a results-oriented kinda guy (see: Raich) but Thomas?
Man is free at the moment he wishes to be. --Voltaire
his position as the poster boy for moderates. He has no real philosophy, just like a good moderate. That should be Bork's seat. Elections do matter.
Jindal in 2012!
... when I can see what it's doing, and when they *know* I can see what they're doing.
Unless I'm badly misreading this decision, the SCotUS isn't setting any of these people free -- it's just saying that they get to have their cases tried in federal court. More visibility, more accountability, and less skullduggery out of the sunlight.
Seems like a good move to me, but then I've never been a big fan of the position that says we should blindly trust the government to do the right thing behind closed doors. Who trusts any bureaucracy that much?
We have the best legal system in the world but it still has lots of flaws. It's not that hard to beat a DUI conviction, let alone the high profile stuff that always seems to end in an OJ-type outcome.
I can live with OJ Simpson making a mockery of our legal system. But I don't get why a terrorist captured in a cave in Afghanistan enjoys the full protections and benefits of the US Constitution he is dedicated to destroying, and I certainly will not roll with it a-la the OJ outcome when we've got a bunch of ALCU-wannabe-Gerry Spence legal hacks intentionally creating neverending courtroom farces. Did you see the Moussaoui trial?
The decision also bothers me that a judiciary dumb enough to give habeas corpus to these terrorists may very well be dumb enough to kick them free because some mickey mouse warrant wasn't in order or somebody's statement gets tossed because the Marine who captured him didn't fully Mirandize him.
We're in a war, and we can either fight it light a war to win, or we can play this self defeating crap and let a bunch of these guys get away and keep trying to kill us.
to file writs of habeas corpus? We had tens of thousands of prisoners in WWII.
How many courts would we have had to set up?
What about the necessity of diverting soldiers from the front to testify?
This ruling essentially makes it IMPOSSIBLE for the US to fight a war of any magnitude.
You view the Constitution as a suicide pact---but you can count me out
Per the DoJ, we have around 2.3 million prisoners in the US:
http://www.ojp.usdoj.gov/bjs/prisons.htm
I don't think the three hundred detainees in Gitmo will put any kind of noticeable strain on our court system.
We demonstrate to the world that we are the better nation under the best laws by holding ourselves to our highest (that is to say, our most rigorous) legal standards, even under poor circumstances. If we start cutting ethical corners for expediency, we denigrate ourselves and our history.
So do you believe that is is ethical to put civilian prison guards at risk for the sake of political expediency?
"Land of the Free and Home of da Whopper" Peter Griffin...Family Guy
conform and celebrate diversity....or else!!!
There is NOTHING in this decision that says, since the number of prisoners is relatively manageable, they have due process rights, but if the number was larger, they wouldn't
This ruling makes the conduct of a large war impossible.
All China has to do is have 1 million troups surrender, and demand habeas rights. It would be victory through judicial fiat.
Good luck getting search warrants so that evidence is not excluded.
Good luck looking for evidence in a war zone. Oh, and interrogrations are out since all they have to say is "I invoke my right to remain silent."
Good luck trying to positively ID a shooter in a firefight that involves more than 20 people.
Good luck making all evidence available to the defendant (there goes all possibility of having spies, gathering intel, etc).
Good luck conducting a war when soldiers need to make themselves available for court hearings and depositions by defense attorneys.
No offense, you are a fool. Large cities have police departments with thousands of people to handle murders in the hundreds. The ratio of law enforcement to murderers needs to be quite high for the system to do an effective job in putting away the bad guys.
Your analysis makes two things absolutely clear:
(1) you have never fought in a war
(2) you have limited experience with the judicial system
The only thing that will be demonstrated to our enemies is that we are suicidal.
and his fellow terrorists will really be impressed by our sense of fair play. After they finish laughing at us, the terrorist detainees will be released and they will go back to plan and carry out more terrorist attacks against us.
We have not cut any ethical corners. We have bent over backwards to be more generous to these characters than we have been to any enemy combatants in the history of the nation. These terrorists have been granted Geneva Convention and other rights that they never had before, and they don't care squat about any demonstrations that we are a better nation. They just use our laws against us.
The ability to appear before a civilian court is no guarantee that they'll succeed on the merits of that claim.
I just don't agree with the premise that holding ourselves to our own standards is a fatal flaw.
Given the fact that we've had acknowledged "false positives" detained at GTMO I support this decision.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
No, and that's wholly unrelated to my point.
If we're going to bother with a judicial process, we should not allow the executive to create a situation where there is no possibility of oversight by the judiciary branch itself. Bombing is not a trial in the legal sense.
Again, availing onesself of the great writ does not mean you get to go home. It means you get your day in court. If these guys are guilty, if we've got the goods, they're going to lose on the merits.
We've had to let a fair number of the detainees go, and a non-zero number of them were innocent. Does it bother you, even just a smidge, that there were, and may still be, people in GTMO who didn't earn it?
were never designed to handle dealing with enemy combatants picked up on a battle field. In the entire history of this country, we never had standards giving terrorists, or any other non-uniformed enemy combatants rights under our constitution. As pointed out previously, such people, as far back as the revolution, were tried by military court and executed.
Again, these people were not arrested by cops and read their Miranda rights. The soldiers under fire on the battle field do not have time to issue warrants or gather forensic evidence, and it is unreasonable to expect them to.
And these terrorists will have a much better shot at release in front of a civilian court that does not have the experience, background or procedures to handle these situations that happened on the battlefield in foreign countries.
Besides, in prior court decisions, the court instructed the executive branch to consult with congress to set up the necessary procedures to handle these detainees. They did go though the democratic process as instructed and set up procedures to follow that included judicial review by a federal court. The Supreme Court just ignored all of that and swept it aside without even giving it a chance to work. Now they have added new layers of review that will take longer and dumped it on civilian courts that don't even have standards or policies set up yet.
When we set new standards that we have never extended to such enemy combatants in the past, standards that are in no way shape or form extended to our troops that they capture, and these standards make it easier for these terrorists to be released and attack us again, it is a fatal flaw. And it may turn out to be fatal to a member of my family.
unlawful enemy combatants and have NO right to due process in America. Han, are you OK with these evil bastards and their attorneys having access through discovery to the intelligence reports our troops and CIA have used? They have NO right to OUR courts. We do not live in Mayberry. These spawn of satan want to kill us. Pull your head out.
Tim Schieferecke
A mere two Terms ago in Hamdan v. Rumsfeld,
548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo petitioners’
claims, four Members of today’s five-Justice majority
joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consultation
with Congress, judicial insistence upon that consultation
does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding.
that the detainees get to have their cases tried in Federal Court only that they can challenge the reasons why they are being confined in Federal Court. If the government has the goods on the detainees that they plan on putting before a military commission (Read KSM and company) then nothing has really changed other than the government will have to show a Federal District Judge the reasons for confinement. KSM and company will still be going to a Military Commission instead of a Federal Court for trial.
The government rarely "has the goods" on any combatant captured on a foreign battlefield. This is not "CSI" we're talking about.
A number of these detainees were captured on the battlefield, when they took a pot shot at an American soldier in Afghanistan or Iraq or elsewhere. There was a firefight and the terrorist was captured. What kind of "goods" is that?
You can imagine what a smart defense attorney will do with that: "Were there any witnesses?" "Was the soldier under stress and mistook what he saw?" "Are you positive the bullet came out of the detainee's own gun?"
These men are NOT being detained as punishment for alleged "crimes," as with the case of criminals. They're just being taken out of circulation so they don't go right back into combat--the same rationale for keeping prisoners of war in a POW camp till the war is over. I don't know why the liberals on the Court found that so hard to understand.
in the process I happen to know that at least in regard to the ones that will go to a military commission, the government has the goods and there is more CSI involved than most people know.
I agree that they are not be detained as punishment for a crime though a trial and punishment may indeed follow. The individuals who will eventually end up at a military commission aren't individuals that were going to win a habeas petition to begin with. It's all the other detainees who as you say "were captured on the battlefield, when they took a pot shot at an American soldier," but beyond that there is little proof beyond what the soldiers saw.
I wonder if the president can't just declare the detainees who win their habeas challenges as POW's and hold them til the end of hostilities. Granted the government has avoided calling them POW's or granting any kind of protections under Geneva but at this point the government has been backed into a corner of sorts. Let dangerous people go or give them Geneva convention protections and hold them until the War on Terror is over.
I wonder if the president can't just declare the detainees who win their habeas challenges as POW's and hold them til the end of hostilities.
The problem is that they may have already been treated in ways that violate the Geneva Convention. They may have been interrogated. Under the Geneva Convention, a POW isn't obligated to reveal anything beyond his name, rank and serial number. And a POW cannot be put on trial for any acts he committed.
That's the dilemma.
Suppose our troops managed to capture Osama bin Laden himself. If he's treated as a POW according to the Geneva Convention, we can't interrogate him beyond asking him for his name and nationality. And we can't put him on trial for 9-11.
It was to get around this dilemma that the Bush Administration defined this third category of "enemy combatant."
I think the best answer is the one that was used in previous wars: If the civilian captive is "low-value"; i.e., committed no war crime deserving trial (which excludes bin Laden), then just take him out back and shoot him in cold blood. No habeas, no trial, no problem.
If we don't want our troops to dirty their hands with this, then employ a civilian contractor to do it. That's analogous to the Einsatzgruppen (Special Action Squads) the Germans used in World War II. They were paramilitary squads, tasked with rounding up civilians judged to be dangerous to the war effort (such as Jews) and shot them so the regular Wehrmacht didn't have to.
Too bad the Supreme Court didn't know what the implication of their ruling is. I would have told them.
Quite a few of these detainees were sold out by other factions in the middle of what can fairly be called a civil war. If the US is offering a bounty for members of the Taliban and Al Qaeda, there's no chance you'd sell out a rival for the money and the benefit of his new Cuban vacation?
No. That thing that had been going on prior to our invasion was. As far as the Afghanis were concerned, the Northern Alliance and the Taliban were still shooting at one another.
You do recall that a few days after 9/11 the Taliban managed to assassinate the leader of the Northern Alliance, right?
I can assume you are disavowing this?
Quite a few of these detainees were sold out by other factions in the middle of what can fairly be called a civil war.
Because zero of the detainees were captured before 9/11. Or even November 2001.
"A man does what he can and endures what he must."
No. It is a question of perspective. Did some of the participants consider the situation to be substantively the same? Did several factions want to run some or all of Afghanistan? Would these people benefit if their adversaries were removed from the field by the Americans? Would they like to get paid for it?
Let's say the British had recognized the Confederacy and sent troops. Britain may well have invaded, but as far as the combatants would have been concerned, there was still a civil war going on, or near enough.
My whole point was specific to perspective and to motive. That's why I said "fairly described." They had every reason to sell out their enemies, whether or not they were Taliban or Al Qaeda. I do not suggest that all such bounties were paid to liars, just that some were.
of you making a totally false statement and trying to backpedal.
We were co-belligerents with the Northern Alliance. The people captured after October 2001 were not engaged in a civil war.
They aren't "fairly described" as anything but what the are. As the Taliban had only been recognized as the legitimate government of Afghanistan by 3 countries. They didn't wear uniforms. There was no identifiable national chain of command. Ergo, they were illegal combatants.
"A man does what he can and endures what he must."
I did not backpeddle, and I would appreciate it if you would acknowledge that. You are mistaken.
The Taliban and the Northern Alliance had been at war for several years. That war, between them, continued after 9/11. I was initially referring to how the combatants saw one another and why someone might lie in turning someone else over, or "ratting" them out under false pretenses.
I know what I meant better than you do as I am the one who wrote it.
that you are one of the most casually dishonest posters I've come across in a week or so.
Actually I doubt that you've even taken the time to read what you've posted which really makes me feel like I've been robbed of seconds of my life.
"A man does what he can and endures what he must."
"Quite a few of these detainees were sold out by other factions in the middle of what can fairly be called a civil war. If the US is offering a bounty for members of the Taliban and Al Qaeda, there's no chance you'd sell out a rival for the money and the benefit of his new Cuban vacation?"
Okay, let's break this down.
We have a set of people, the detainees at GTMO. A decent chunk of these guys were turned over by other Afghanis in exchange for a bounty paid by the United States. While this was going on there were underlying tensions between various factions within the country (the Mudjahadeen were far better at fighting the Soviets than they ever were in creating a coherent state, or even agreeing on their own structure). These factions, such as the Northern Alliance and the Taliban had been fighting for years.
The fact that the Taliban was the de facto government of Afghanistan did not mean that this civil war had ended. The Northern Alliance still controlled territory, and was still vying for control. There were other cleavages as well, violent ones.
So. The United States invades Afghanistan following 9/11 (something I supported, fwiw). We ally ourselves with one of the factions in Afghanistan (something I also supported at the time). We topple the Taliban. We try like hell to apprehend or kill Al Qaeda members and significant members of the Taliban. To expedite this we offer a cash bounty on the heads of certain individuals, or classes of individuals that we would like to take into custody.
Now we come to the meat of my whole argument. When you have a multifarious conflict of this sort (the cleavages did not end when we arrived), you've got an incentive for some people to turn over their enemies, whether or not those enemies are a part of the group the United States has come to kill or capture. You've got the added bonus of the bounty. So, we have a pair of good motives for someone to lie.
The fact that we've released a decent number of detainees without any indication that they (I am not referring to all detainees that have been released, so don't even go there! I am referring to the subset who were turned over under dishonest pretenses) had actually done anything in the furtherance of war or hostilities against the United States.
That was it. That was my whole damned point. There was no dishonesty, casual or in depth. I didn't go into all that detail because that would take a considerable amount of time to do (which I've just demonstrated).
So, I have parsed what I had originally said. I have taken the time to re-read what I posted. I have digested it, and I still hold the conclusions I did prior to, and during the writing of the post.
If you feel robbed of those seconds of your life you'll have to excuse me, as I had nothing to do with the theft.
FYI, I am not referring to our actual enemies in this line of dialog. I am only referring to that subset who got rolled for no other reason than cash or pre-existing grievances, which I contend is a non-zero group.
Good day.
This ruling is a disaster for anyone (not just the Bush Administration) who considered the terrorists captured on foreign battlefields to be war combatants, not common criminals subject to presumption of innocence and habeas corpus.
I just scanned the Court's ruling. They make it sound like this is an historically unprecedented situation. I do not believe it is, and perhaps the Administration failed to point out some historical precedents.
The War on Terror is NOT the first war in which combat soldiers have been engaged in combat with other combatants who wear no uniform.
Civilian fighters have fought in many wars. They were usually called "partisans," or, in the Franco-Prussian War, "francs-tireurs" ("free shooters"). And when enemy civilian partisans were captured, they were invariably shot on the spot. No trial, no habeas corpus, no rights. That was the fate of the Yugoslav and Russian partisans captured by German troops in World War II. The Germans didn't shoot those combatants because the Germans were evil. The Germans shot them because there was nothing in international law to prevent it.
There was even an American precedent: During the Battle of the Bulge in World War II, in a covert operation dubbed "Operation Greif," the Germans tried to send agents disguised in American uniforms behind American lines, to sabotage communications and sow confusion. Some of them were captured by U.S. troops. These Germans were NOT treated as Prisoners of War (POWs), because they were not wearing German uniforms or insignia. They were treated as partisans. And so a number of them were just shot in cold blood, with the agreement of General Eisenhower.
Evidently these precedents were never even discussed, or else they would have at least been addressed in the ruling, even if the Court decided to ignore them.
This ruling seems so broadly drawn that even uniformed POWs, say Iranian troops captured in some future war with Iran, could challenge their detention. I looked through the ruling to try to find some clear distinction made between detainees who are uniformed and those who wear no uniform. I couldn't find any.
What will the practical effect be? Well, we've already had a couple of news reports that terrorists who were released from Gitmo went right back to committing terrorism in foreign countries. Now there's going to be a flood of them, since by definition, terrorists captured by U.S. troops in wartime were never given the rights of criminals (a lawyer, etc.). They can therefore challenge their detention on that basis alone and good bye. As you would suspect, the liberals on the Supreme Court didn't even spend one paragraph to discuss the military implications of their ruling, and whether it might make the War on Terror impossible to win now. Only the dissenters did.
Some folks are acting like this decision is a doomsday scenario. Remember that the district courts are still going to have to review these cases, and likely will give great deference to the US military. That having been said, if each inividual enemy combatant really should be locked up, the military shouldn't have trouble demonstrating that. We don't do anything for national security by locking up innocent farmers who were in the wrong place at the wrong time when GI Joe showed up in Afghanistan.
--
If I am not for myself, who will be for me?
But if I am only for myself, what am I?
And if not now, when?
~Avot 1:14
judicial system very often.
You are talking like someone who has not dealt with the
First, there are district court judges who will take this case and run with it to make all sorts of political statements. Remember the Detroit judge who ruled that warrantless wiretapping was unconstitutional?
Second, the principle that non-US military combatants outside the US are entitled to anything makes fighting a war impossible. WWII, Vietnam, Korea, et al. would be impossible if the military is forced to take the time and provide evidence regarding thousands or even tens of thousands of POWs.
This is an administrative straightjacket that cripples the ability of the US to conduct a war. Make no mistake about it, it is a VERY BAD outcome.
Imagine WWII under these rules . . .
The operate paragraph is this:
"Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda."
If we had captured a Moroccan in Zaire while fighting Hitler, he does not fall into the same category as a German fighting in Nazi uniform.
--
If I am not for myself, who will be for me?
But if I am only for myself, what am I?
And if not now, when?
~Avot 1:14
If the first was fighting the Allies when he was captured, and didn't qualify for those protections, he'd probably have been shot on the spot.
Pardon me, but are you agreeing with following a "shoot them when we catch them" strategy?
The Fuzzy Puppy of the VRWC. I've been usurped!
No. I'd prefer we act humanely. Our quality of humanity is an important difference between us and our enemies. If you look at the decision, you'll see that Justice Kennedy goes out of his way to say that the right to seek a writ does not attach as soon as the enemy combatant arrives in Gitmo. Nothing about this decision requires the immediate release of people who are captured in combat, as you seem to be implying.
--
If I am not for myself, who will be for me?
But if I am only for myself, what am I?
And if not now, when?
~Avot 1:14
For all his faults, he's not the candidate with the supporters who are willing to violate international law, risk further attacks on both American troops and innocent civilians, and legitimize acts of cowardly malice in order to feel better about themselves.
As for you, Sparky: 1,500 words on the Geneva Conventions, armed insurgents not part of an organized military, and the original reasons for why the first says what it does about the second. Write it up, send it in and we'll think about turning your account back on.
The Fuzzy Puppy of the VRWC. I've been usurped!
Roberts wrote the first dissent and Scalia wrote an additional one. Both versions were join by the other three dissenters. (Is that unusual? Why not combine it all together if all four signed both?) Here is the Roberts closing followed by the Scalia one....
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the 28 BOUMEDIENE v. BUSH ROBERTS, C. J., dissenting security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
I respectfully dissent.
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.
~~
Obama's guiding principle: "I reserve the right to revise and extend my remarks."
I really wish that the people screaming loudest on this issue would take to heart the concept that absent something like Gitmo there is neither any incentive against, or real alternative to, simply hanging or shooting any fighter out of hand we capture who is in violation of the Geneva Conventions.
The Fuzzy Puppy of the VRWC. I've been usurped!
I agree with this wholeheartedly.
If you don't feel like your case against them would stand up in a court of Law and you don't feel like you could let them go, then shoot them.
Man is free at the moment he wishes to be. --Voltaire
In all previous wars in the last century, that's how civilian partisans were treated: If they were caught, they were shot. In cold blood.
If we had a President with guts, like Rudy Giuliani, that would be my recommendation to him: Don't capture anybody unless you think they have information that could be valuable to military intelligence. Otherwise, have them executed.
with it is that we got some info out of the ones we captured that was presumably valuable. But faced with this new situation, guess the information will just have to be considered not valuable enough to fool with.
i.e. without mercy is an infringement in my view of the high moral standards that service personnel should be entitled to embody.
"Law of Unintended Consequences." Rush did a whole segment on this yesterday. Seems that unfailingly what the Left seeks to protect, they end up harming or outright killing.
The Germans had the exact same problem in World War II. Instead of the regular Wehrmacht, they employed special paramilitary "Einsatzgruppen" (Special Action Squads). These squads accompanied the regular Wehrmacht on the invasion. Their job was to deal with dangerous civilians (such as Soviet political commissars), and shoot them in cold blood, so the regular Wehrmacht didn't have to.
http://en.wikipedia.org/wiki/Einsatzgruppen
(Unfortunately, by official Nazi policy, Jews were considered to be "dangerous," and so they were summarily shot by the Einsatzgruppen too.)
We could do the same thing: Employ a civilian contractor to accompany our troops into battle, and do the dirty job of executing captured partisans so our young soldiers don't have that trauma to deal with. If our soldiers captured a foreign terrorist, they could hand him over to this civilian contractor for special processing.
...situations where we've captured armed combatants who were actually shooting at us at the time in violation of the Rules of War with situations where organized murder squads were set up to shoot schoolteachers. That is, in fact, a rather vicious slander to make against American troops, even in the abstract; and we don't tolerate that here.
And before you ask me why he wasn't banned outright for it, trust me: if it were entirely my choice, he would have been. As it stands, I can't wait to read his explanation to the Directors about why we should reinstate his miserable [expletive deleted].
The Fuzzy Puppy of the VRWC. I've been usurped!
You can petition the Directors for reinstatement once it passes.
The Fuzzy Puppy of the VRWC. I've been usurped!
If it's someone that you don't think you can detain with their case standing up in a court of law and you don't think you can shoot them, then let them go.
Seriously, one of the unintended consequences of this policy is that folks will go out of their way to communicate that they should neither be shot nor that there is anything close to evidence that they present anything close to a threat.
It has upsides all around.
Man is free at the moment he wishes to be. --Voltaire
feel like they are being hung out to dry. Terrible for morale in an all volunteer force.
Too many people will be let go, causing things to swing too far in the other direction. All sorts of things will be done under the table with a wink wink or a nod nod because nobody will want to officially engage in the conduct that will result.
This ruling is an atrocity. It is an attempt to preclude the possibility of military victory.
We service guys already have a helluva time with ROE. Seriously, we make tough decisions every damn day based primarily on politics. Guys get put up on charges all the time for making good "kills" that were somewhat ambiguous. Hell, guys have been killed by doing the politically correct thing. Moral ambiguity is a part of life in combat. Please read Marcus Luttrel's book, "Lone Survivor" for a clear example of this.
There ain't anyone who wants to kill some bad guy, only to end up spending the rest of his life in Leavenworth. I'd love to spit some Beechnut in that dude's (Kennedy's) eye!
"Even if you think our presidential choices this election year are between disgust and disaster, anyone who has ever been through a real disaster can tell you that this difference is not small. It is big enough to go vote on election day." - Thomas Sowell
I suppose I also assumed that the civilian leadership would also say something to the effect of "people sometimes get shot by a gun in a war" and understand that we didn't take prisoners anymore.
Which is, I suppose, quite the assumption.
Man is free at the moment he wishes to be. --Voltaire
But the system is supposed to have your back.
What I am really saying is, we are making your job harder for no reason.
The problem is the perception (through action) that the system doesn't have our backs. The lower you are on the food chain... the more crystal this perception becomes... anyway JS... I know you've got our back!
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either summarily shoot the entire inmate population in compliance with the Geneva Conventions or release the folks in the most hostile country we can find.
Also, set up and fine tune the rendition program to these folk will be in another country.
____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
....as something else. They could consider these terrorists as members of some kind of standing army (a stretch, I know).
The point is, can they redefine these people to get around the ruling?
“.....women and minorities hardest hit”
uniformed personnel.
The implications for this opinion are terrible to consider.
If China wants to defeat the US in military conflict, all they need to do is let 1 million troups be captured, and have them all file habeas petitions.
Our military would be unable to continue without breaking the law. We would have to free to POWs.
this issue soon after 2001.
http://www.redstate.com/blogs/gamecock/2008/jun/12/anthony_kennedy_has_m...
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they are already classified at the LOWEST level of protection
illegal enemy combatents (see also spies/terrorists) that historically could be summarily executed!!!
Washington did it
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"One man with courage makes a majority." - Andrew Jackson
This discussion gets us back to the issue of judges. While McCain is not pure on the issue, he is 10000% better than Obama, whose appointments would make Ginsburg look like a Nazi (I can say that, can't I Moe?). He did support Bork, and if we were lucky, he would give us more judges like Roberts rather than Kennedy.
akin to conservatism or the "right"
It is not. Nazism was national socialism.
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"One man with courage makes a majority." - Andrew Jackson
I retract my statement, but I think my meaning is clear. Although I doubt McCain will nominate any Borks, he will put in MUCH better judges than Obama. And that is very important to all of us.
and Obama wins another year. But given Obama's statements and votes and Mccain's history and votes there is no basis for your opinon.
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"One man with courage makes a majority." - Andrew Jackson
Would it make a difference if we moved the detainees to a Panamanian (or some other flag of convenience) flagged ship?
If I remember correctly (I don't have Feith's War and Decision with me right now), when the issue of detainees arose, Sec Rumsfeld did not want the US DoD to be in charge of them, but no other country would take the lead. GITMO (SOUTHCOM AOR) was chosen as the site for habeus corpus reasons and because CENTCOM was busy fighting the war and needed to share the burden.
I brought up the FOC ship because our military IS above cold-blooded killing. I don't want this ruling to stand. I don't want to see the president impeached. I just thought it would buy some time until the composition of the court changes for the better.
I detest anyone who says John McCain won't put judges on SCOTUS who agree with Roberts and Alito. Mark Levin agrees with me:
5-4 Supreme Court Extends Habeas Corpus To Foreign Nationals Detained At Guantanamo
The 5-4 GITMO decision brings to the front, yet again, John McCain’s position on judges versus his own policies. McCain undoubtedly supports the 5-4 decision, yet the justices who voted against it, and argued strenuously against it, are of the kind McCain claims to want on the bench. We have seen the same issue arise respecting campaign finance. This is not to say that McCain won’t nominate originalists to the bench. But if he does, he will be nominating to the Court individuals who are better adherents to the Constitution than he is.
that McCain will actually follow through with nominating such justices. He will not nominate people who disagree with him on fundamental issues.
Also, even if he does nominate them, the vast majority the democrats will have will not even allow a vote on them.
ANOTHER BREYER?
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First off, I am a little surprised to see posters suggesting that we adopt the German WW2 model in our current situation for the following reasons:
1. The Third Reich was wrong.
2. The Third Reich was our enemy.
3. The Third Reich lost.
People shouldn't be surprised that the opposition would paint with a broad brush by calling people Nazis if they are going to muse, "Well, if we only did things like the Germans in WW2..."
This result is the "blowback" if you will of an Administration that tried to play cute with the rules and laws regarding the disposition of enemy combatants early on. Frankly, it was a bridge too far, and now they are reaping the bitter fruits of those efforts.
From the beginning, there should have been a decision to either treat them as POWs or not. If you are not going to treat them as POWs, then you have to be prepared for the negative reaction from the world for betraying all the principles you proclaim to hold dear. If you are not willing to endure that negative reaction, then go the other route.
They should have simply instituted the Nuremberg rules (the one's the Allies used).
There are three categories of prisoners:
uniformed POWs
unlawful combatants
civilian criminals
If you want to treat unlawful enemy combatants as either criminals or uniforms POWs, you are basically saying that we can't fight the GWOT.
I'm curious -- why couldn't we treat them as civilian criminals? That seems the most accurate description of their actions to me. I think you may underestimate the ability of our court system to handle cases.
I mean, demonstrating a supposed utter lack of understanding of the Geneva Convention arguments, on a day where I'm handing out homework assignments for people less self-admittedly ignorant on this topic... that was almost dumb enough to let you stick around, out of sheer perversity.
Almost.
The Fuzzy Puppy of the VRWC. I've been usurped!
They were captured on a foreign battle field during a military operation by our troops. They were not arrested by the police after a criminal investigation subsequent to the gathering of evidence using warrants. And they are not citizens of this country. They are part of a group that declared war on this country in the 1990s, and are committed to killing as many of our citizens as possible and severly hurting our national economy. These are not purse snatchers and bank robbers.
___________________________________
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VP Bush must get a warrent to KILL them.
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... nonsense. We are fighting a war, not some stupid Harvard Law Review case study. These "people" do not fit any definition of POW and to grant them that status demeans actual POWs who have conducted themselves honorably on the battlefield.
John
----------
Why would God invent something like whiskey? To keep the Irish from ruling the world of course.
I'm surprised that you're using the example of a since-banned* poster - one that we've suspected of being a troll for about oh, three months now - as your example with which to "broad brush" the readers of this site for being Nazi-lovers. I'd suggest that you address this in your next post, except that you apparently too will have to write a 1,500 word paper on the Geneva Conventions as they relate to illegal combatants before we can let you participate here further.
But no worries: you can explain yourself after you've gotten up to speed.
The Fuzzy Puppy of the VRWC. I've been usurped!
*Yes, the word has come down. He isn't coming back.
let's just let 'em all go free and be done with it, right?