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June 11, 2005

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ed

Hmmm.

I'm probably the wrong person to comment on this because it's my personal belief that interrogation of hard-core terrorists should include the experts Black & Decker.

So I'll pass for the nonce.

Cecil Turner

He seems to have two major themes: morality of interrogation standards; and legal acceptability.

"All these terms are sometimes loosely subsumed in opinion articles under the heading ''torture lite'' (though you might wonder what's so ''lite'' about waterboarding). None of them would be remotely legal in an investigation of an American on American soil."

I think most Americans understand the difference between civil rights for those suspected of a crime, and treatment of enemy combatants in a war (especially those who don't abide by the laws of war). And the fact that waterboarding is routinely used on our own troops for training takes most of the wind out of that argument.

"Still, it seemed to me that the idea of legislating standards for the application of torture lite is one of the two available positions that meet any test of intellectual honesty."

Lelyveld talks earlier about practicality, but here (and with the rest of his argument about transparency) he fails to account for the practical effects. Both Mac Donald and his own sources claim ambiguity makes coercive interrogation more effective. The Army SERE school uses the same technique:

"But the Army will not publicly disclose what the limits are so it can maximize the anxiety for future students."
And neither should we, for precisely the same reason.

Observer

The NY Times used Andres Serrano, who created "Piss Christ" in 1987, to create photos for this article.

This newspaper serves America's enemies well.

Chuck

I'm probably not the most politically correct person to comment on this, but........

If we continue to treat terrorists like "insurgents" we will get more of the same as 9/11. These people laugh at our interrogation methods, think we are weak, and would slit any throat of an available "infidel".

For every innocent killed by a bomber in Iraq, drag a like number out of the captured terrorists and have a public execution, preferably with something sharp.

Oh yeah, and these animals in Gitmo should begin to contract some highly contagious and fatal diseases.

We are at war and our opponents ask no quarter, give none, and we should oblige with all methods possible.

gt

The Israelis know clearly why they are fighting and interrogating. The problem on our side is that we don't see that so clearly.

The "I'm a macho guy" tough talk by ed or Chuck on this thread is the typical banter of those detached from poitical realtiy. Our society does not accept such actions unless our very survival is at stake. And no, it isn't.

The Israelis suffer the impact of domestic terrorism continously so they know why they may have to torture. But us? Why are we toruturing people in Iraq? There are no WMDs. Why are we dying there?

That's why Bush and the war have become so unpopular (http://www.washingtonpost.com/wp-dyn/content/article/2005/06/10/AR2005061001706.html>here and http://www.washingtonpost.com/wp-dyn/content/article/2005/06/10/AR2005061001708.html>here and http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100879.html>here).

You can't talk about torture in abstract. If we had daily bombings in Grand Central , if we accepted the WoT as defined by Bush to be essential to our survival (as most Israelis do in thier country) our support for torture would be different. But that's not the situatio nwe have.

Bush made a huge mess in Iraq, one he has no one to blame but himself. Bush was unwilling to listen to anyone and got us into http://www.washingtonpost.com/wp-dyn/content/article/2005/06/11/AR2005061100723.html>a predictable mess.

That's why the more interesting question is how do we get out. Expect to hear more and more of this as the Iraq quagmire drags on.

Bostonian

Quagmire alert!!!

Chuck

qt: Then your rationale is until we have daily bombings in Central Station we should just stand around with our hands on our ankles, wait on another 9/11, and quietly absorb the killing of 3000 Americans every few years.

What would you do? Criticizing the Bush administration is not a valid policy for handling terrorism. Your mention of NO WMD tells me where you are probably coming from. To your credit you haven't brought up the Downing Street memo or used the phrase No War for Oil. Yet.

Dave

"And the fact that waterboarding is routinely used on our own troops for training takes most of the wind out of that argument."

While I agree with your larger point on the difference between civil rights and treatment of combattants not following the conventions, it is important (given that you're speaking of the morality of using these techniques) to keep in mind the context of the use of those techniques on American troops. My understanding is that a) the intent of subjecting trainees to these techniques is to educate them as to what they may face if captured by an enemy that does not respect the laws governing how prisoners of war are to be treated (and prepare them to continue to resist in the face of abuse), and b) a tiny minority of personnel are subjected to this training (i.e., it's a routine only of a sort). I'm uncomfortable using this set of facts as sole justification for using some of these techniques. It's certainly not irrelevant that American troops are subjected to these techniques for training purposes, but I think it also requires external justification -- damned if I know how we get there, however. I'm not unsympathetic to the "But these are very bad people and it's the best of a pretty bad set of alternatives" argument, but the pedant in me would like more.

ed

Hmmmm.

"The "I'm a macho guy" tough talk by ed or Chuck on this thread is the typical banter of those detached from poitical realtiy."

You don't know me. And you most definitely have no basis or credibility to make such a statement. I'd give you a written spanking but I'll leave it this way for the moment.

Here's a clue for you, if we have to wait until there are daily bombings in Manhattan, then we have LOST. At that point it becomes impossible to defend ourselves and this country will immediately devolve into directed violence against every single mosque and muslim in reach.

Your way is to die.

Cecil Turner

"a) the intent of subjecting trainees to these techniques is to educate them . . ."

That's true, but the method is to conduct an evasion exercise, capture, and a very realistic POW camp. An effective illusion is created of having been captured and being abused (and they play up the rogue out-of-control interrogator angle to give you the impression that they may disregard the limits).

"b) a tiny minority of personnel are subjected to this training (i.e., it's a routine only of a sort)."

It's certainly a minority, but I don't know how "tiny" it is. It's given to those with a higher-than-normal risk of capture; and since that includes pretty much all aircrew, it's not an insigificant number. I'd also point out that the only a small minority of detainees are subjected to the harsher measures, so that parallel seems fairly apt.

"I'm uncomfortable using this set of facts as sole justification for using some of these techniques."

If waterboarding is the worst technique (as all accounts suggest), then I'm having a hard time getting excited over the possibility it might be applied to folks like Khalid Shaikh Mohammed, whether it works or not. A quick look at the approved interrogation guidelines suggests waterboarding is a one-off requiring specific approval (it's not on the list). Aand in fact, it requires SecDef notification to implement something as benign as "good cop/bad cop" (which they call "Mutt and Jeff"). ISTM the approved techniques are just as likely to attract criticism for being too mild as for being too harsh.

narciso

The fact that Leyleweld, was former South African bureau chief for the Times, has some bearing. Hey
there's an analogy that hasn't been used recently;
Washington as Pretoria; only Rangel or Sharpton might
try that one. One does recall how Chomsky's UP dopple
ganger, Ed Herman, was warning of the Argentinization
or Brazilianization, back in the 1980s. The lack of
ruthlessness in this administration, is disturbing;
people are now whining about the annoyance to Mohammed
Al Quahtani, in Gitmo; this is the man, who had his
plan come to fruition, there would be a funeral pyre
where the Capitol now standa

Geek, Esq.

Those brave commenters who are showing such great courage in the face of other people's suffering should remember that the Bush administration also sought (and would have received from Clarence Thomas) the right to unilaterally declare American citizens seized on American soil "enemy combatants" with no possibility of judicial review.

Translation: they wanted the right to grab you, ship your ass off to the land that the law forgot, and use every CID technique on you.

But of course, the government would NEVER abuse such power. . .

Jim Rockford

The Press, along with Joe Biden, Feinstein, Boxer, Kerry etc. have called for the closing of Gitmo and the immediate unqualified release of all prisoners. Including Mohammed Al Qhattani, Khalid Sheik Mohammed (the 9/11 Architect) right hand man and the person Mohammed Atta (remember him) was waiting for when he was turned back by Immigration control.

The Press and Dems have simply decided they will trade American lives rather than pressure SENIOR captured Al Qaeda members, including the "20th Hijacker" who's hinted he knows big secrets.

Dems and the Media ultimately just aren't interested in American lives, no matter how many thousands Al Qaeda kills in this country, or will kill. They are not serious. They would rather appeal to the moral vanity of the chattering classes than any hard decisions about protecting American lives. This is just what Clinton did btw. Put the lives and considerations of others over killing bin Laden.

Republicans ought to welcome this debate. On the one hand you have Islamic Terrorists (picture their supporters in NYC who held a flag burning and stomping recently) along with the Press and Democrats, and on the other hand Republicans who put American lives first.

Patrick R. Sullivan

'The "I'm a macho guy" tough talk by ed or Chuck on this thread is the typical banter of those detached from poitical realtiy. Our society does not accept such actions unless our very survival is at stake. And no, it isn't.'

Speaking of being detached from political reality, GT has just said that we can't fight back unless we're facing the same odds as Israel. Otherwise we just have to sit and wait for the next attack.

Dave

Based on what I know (which in the greater scheme of things isn't much) of the system, I'd be surprised if SERE training throughput approached five figures annually, though anything could happen given what's been going on in SOF recruiting.

AFAICS that a larger number of troops being subjected to these techniques the better the moral argument for them being regularly adopted in the treatment of the enemy. If they're used rarely and under strict controls in a training context, it seems to me that the same rarity and strict controls should be applied to their use in an operational context against a hostile enemy.

At the end of the day I quite agree with your view of KSM and the waterboarding thereof - I'm unwilling to accept the necessary outcome of not using such coercive techniques against guys like that. That said, I think it's the context of that interrogation that makes it acceptable. It's difficult to be sure with the accounts that I've been able to track down, but my understanding is that: a) the personnel involved were CIA, not DoD (and I think that's why waterboarding doesn't appear on the list - I wouldn't be surprised if SecDef can't / won't authorize it), and b) coercive techniques of that type are at the top of the spectrum and are carried out by specialized personnel. More than anything, what concerns me about the use of coercive interrogation is what happens if it gets divested down to 18 year old privates in a purely military context. I don't think it's enough to say that the US military uses waterboarding on some of its personnel as a training tool, ergo it's blanket acceptable - I think that we have to use waterboarding and allied techniques in very particular circumstances against very particular personages before it becomes justifiable. Short form: context matters.

ed

Hmmm.

"Translation: they wanted the right to grab you, ship your ass off to the land that the law forgot, and use every CID technique on you."

And I see you've decided not to remember just how many American "citizens" have been implicated in terrorism.

Go ahead and push this as much as you like. I know I have far less to fear from the government than you're alleging.

POUNCER

I wanna know if those who object to coersion have any similar objections to other kinder, gentler, methods of getting truthful, cooperative, information from prisoners?

Do we object to sodium pentathol or other tranquilizing drugs intended to relax a prisoner's mental vigilance (and general stress levels -- which stress we, after all, caused by dragging the prisoner from his comfortable cave in the Afghan winter and housing him instead in the tropical resorts of Cuba)? Perhaps such aids might stimulate more forthcoming responses to conversation?

If we have no objections, could we progress to other drugs -- providing them marijuana or hashish to while away the long lonely hours? Maybe a cooperative prisoner could earn a toke for his help... I'm not expert, but it's my impression that hashish in particular has certain historical, cultural, and religious traditions associated with its use that might not only help relax the prisoners but fulfill some of their cultural requirements, as well.

Or why not give the guys crack? There is a theory that the CIA developed the stuff, after all. Perhaps there was a reason. After awhile a cooperative prisoner can rely on a vial with his meals -- while an uncooperative prisoner might find the vial missing.

Probably all that is, after all, objectionable. But it would be interesting to learn upon what grounds far right wing / libertarians would object, given that they would legalize such drugs for the general public. Also there's an interesting prospect of hearing liberals, especially California Liberals, ( a breed apart) object to providing recreational relaxation supplies to the prisoners which they would allow to themselves.

Setting aside drugs -- do we object to polygraph (so called "lie detector") tests? It is, of course, intrusive to literally wire up a prisoner and hold him in a chair while questions are asked and graphs are read ... what if we use implantable RF sensor-chips and gather telemetric pulse, respiration, blood pressure, and other bio-stress data 24-7 -- during recreation, during sleep, and all. That'd make a heck of a baseline against which to compare such during a prisoner's response to questions.

Do we permit diet options as an interrogative tool? Cooperative prisoners get a full menu of various cafeteria offerings while stubborn ones make do with bland soymeal loaf, a vitamin pill and tepid tap water every meal? Is it inhumane to fail to trouble ourselves to cook for our charges?

Is the "Prisoners' Dilemma" game abusive? Suppose you gather a small group of prisoners and set up the rules -- the first one to "defect" gets any reward one might reasonable offer (crack, good food, whatever) while the remainder get the most uncomfortable treatment the law allows (A ten page essay, early bedtime, no TV, and no you can't go to the dance on Friday either, young man!) Whatever. Does the pressure from some prisoners upon others count as abuse imposed by the captors?

Cecil Turner

Geek,

"Bush administration also sought (and would have received from Clarence Thomas) the right to unilaterally declare American citizens seized on American soil "enemy combatants" with no possibility of judicial review."

FDR sought precisely the same right was during WWII. The Supreme Court agreed with him:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war . . . It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

Dave,

"I'd be surprised if SERE training throughput approached five figures annually"

I would, too. The list of school dates suggest about 10 classes annually (with about 50 students per class), x2 Navy sites, x3 Services, yields ~3000 (for a WAG). Of course, the total number of Gitmo detainees is about a fifth of that, so ISTM the parallel holds.

"More than anything, what concerns me about the use of coercive interrogation is what happens if it gets divested down to 18 year old privates in a purely military context."

I agree. And in fact, the various abuses in Afghanistan and Iraq show what happens when military types believe they have the latitude to make up their own procedures--and there's certainly room for criticism of leadership failures that allowed that to occur. But the numbers of cases and severity (e.g., no deaths in custody for 18 months) suggests we've gotten a much better handle on the problem--as opposed to the first few months of the GWOT, which is somewhat understandable.

Geek, Esq.

Cecil:

You misstated the court's finding. That court explicitly rejected the Bush/Thomas royalist perspective on presidential power--that the President's actions are above judicial review and may not even be challenged:

"The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of [317 U.S. 1, 25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission."

This was the Supreme Court that(to its everlasting shame) approved the power to lock American citizens up in concentration camps because of their race.

In other words, the same folks who are pushing for "torture-lite" are also wanting to roll back protections so basic that even the Korematsu court recognized them.

Think about what these champions of liberty wanted--the unlimited power to unilaterally detain and incarcerate American citizens without the possibility of judicial review. Just by saying the magic words, "in my capacity as Commander-in-chief" the President can act as King. Want to detain a political opponent? That's okay, because the courts can't tell him otherwise.

Fortunately, 8 Supreme Court justices decided that the United States elects a President, not a Doge.

Cecil Turner

"You misstated the court's finding. That court explicitly rejected the Bush/Thomas royalist perspective on presidential power--that the President's actions are above judicial review and may not even be challenged:"

I don't think it misstated at all. The court specifically held it had limited authority to review, a finding it made even more clearly in the Yamashita decision:

We also emphasized in Ex parte Quirin, as we do here, that on application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged. In the present cases it must be recognized throughout that the military tribunals which Congress has sanctioned by the Articles of War are not courts whose rulings and judgments are made subject to review by this Court . . .They are tribunals whose determinations are reviewable by the military authorities either as provided in the military orders constituting such tribunals or as provided by the Articles of War. . . . Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions. [emphasis added]
"That's okay, because the courts can't tell him otherwise."

There is ample precedent to forbid holding civilians for trial by tribunal (e.g., Milligan). However, if the case is triable by military tribunal, the findings are not reviewable by the courts. (And complaints that a centuries-old application of the law of war is a new and dangerous abuse of executive power are overwrought.)

Geek, Esq.

We're not talking about the procedures governing a trial here. We're talking about the ability to detain and imprison indefinitely American citizens without the prospect of judicial review.

"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."

Agree or disagree? I agree, Clarence Thomas and the "torture-lite" crowd disagree.

TexasToast

Complaints regarding the application of the laws of war to something as amorphous as the GWOT are not overwrought. There is not a bright line justifying the applicability of military justice to these detainees. Calling something a “war” does not make it so in the legal sense, and detentions without judicial review can only be justified in extraordinary circumstances – like a theatre of war. Are you suggesting that the whole world is the theatre of the "GWOT"? Sounds like an impermissible expansion to me. Yamashita is not on point.

creepy dude

No. 8

"The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.1 Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority."

Cecil Turner

"We're talking about the ability to detain and imprison indefinitely American citizens without the prospect of judicial review."

Judicial review is limited to a habeas corpus determination on whether or not the subject is a combatant (and hence liable to trial by tribunal). And history suggests that review is normally conducted by the USSC after the tribunal is complete.

"Calling something a “war” does not make it so in the legal sense, and detentions without judicial review can only be justified in extraordinary circumstances – like a theatre of war. "

The Quirin case above relates to saboteurs in the US, not some overseas theater. The "war" argument is similarly unconvincing, as no less an authority than Joe Biden attests:

I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed . . . Under the Constitution, . . . there is no distinction between a formal declaration of war, and an authorization of use of force. [snips for brevity, emphasis added]
"It is of the nature of war to increase the executive at the expense of the legislative authority."

Umm, no kidding. However, the detention of a couple citizens with clear ties to our enemies is hardly equivalent to star chamber proceedings against political opponents. (Especially since they've had and will have additional opportunity to dispute the "combatant" characterization.) Again, the arguments are overwrought.

creepy dude

"with clear ties to our enemies"

Like when Rumsfeld was shaking hands with Saddam?

Geek, Esq.

Cecil: You're missing the point.

The Bushies didn't even want to concede that someone like Padilla had a right to seek a writ of habeas corpus. Under their theory, they could hold Padilla for the rest of his natural life without ever charging him or giving him access to the courts. And they could inflict upon him cruel, unusual, and degrading punishment at a place like Guantanamo--again without ANY supervision by the other branches of government.

In other words, they wanted the same options that Saddam had.

What is overwrought is this notion that the Constitution doesn't really matter if the government says that the detained parties concerned are really, really bad people.

Newsflash: If Padilla doesn't have the Constitution protecting him, neither do you or I.

Cecil Turner

"The Bushies didn't even want to concede that someone like Padilla had a right to seek a writ of habeas corpus."

I think they wanted the standard review after tribunal, and contended they could hold him without charge for the duration (for which there is ample precedent). And my reading of the reports of the fragmented USSC decision suggests they weren't too far off:

The plurality opinion written by Justice Sandra Day O’Connor concluded that although Hamdi might contest the factual basis of his detention, the President is legally authorized during armed conflict to designate American citizens as enemy combatants. Further, they may be held without charge or criminal trial pendente bello. [emphasis added]
"Like when Rumsfeld was shaking hands with Saddam?"

If shaking hands with scoundrels were forbidden, our diplomats' workloads would be substantially reduced. And on that note, I'm going to be busy for a few hours. Later, gents . . .

Geek, Esq.

How can you hold someone without charge during a criminal proceeding such as a tribunal? Sounds rather Kafkaesque, no?

The government made no such argument about holding the hearing after the tribunal, Cecil. Under the government's theory, they could hold Padilla without charging him as long as hostilities continued. In the case of the GWOT, that means "forever."

In other words, so long as the President says there is a GWOT, he can detain any citizen he finds anywhere that he says is an "enemy combatant" and the courts can't say diddly about it.

Greg D

I'm curious. All those people who think the US Gov't should be extending US Constitutional protections to non-US Citizens not on US soil. Do they think we should grant those people their Second Amendment rights, too? Or, given the way European governments restrict freedom of speach, should we extend First Amendment rights to those who criticise Islam (see Italy's prosecution of the author for the crime of telling the truth about Islam)?

Do these idiots ever bother to think about what they say before they start spouting off?

Forbes

Geek: Forever? We're still going to have elections aren't we? Let's not get hyperbolic with our assumptions here.

Greg D

Um, "Geek", "hold him without charge for the duration" meant "duration" of the war. Since your second sentence demonstrated you clearly understood that, your first sentence is revealed to be lame grandstanding.

Am I glad that the US Gov't can't just declare a US Citizen on US soil an "enemy combatant" and lock him away forever? Hell yes.

Should the US gov't be able to do that to people not on US soil? Hell yes.

Geek, Esq.

Greg:

When do you expect the official declaration that the Global War on Terror is over and hostilities have ceased?

I don't expect one in my lifetime.

The Great Writ is the foundation of personal liberty and democracy in this country--more fundamental than the right to free speech, to vote, etc. It is worrisome that those in power don't recognize that.

creepy dude

The War on Drugs is still going strong after 40 years, and that seems like an easier noun to defeat than Terror.

Geek, Esq.

At least drugs are a tangible thing and not a tactic.

Cecil Turner

"How can you hold someone without charge during a criminal proceeding such as a tribunal? Sounds rather Kafkaesque, no?"

The right of a belligerent to detain enemy combatants for the duration of the conflict is a centuries-old application of the law of war. The tribunal for war crimes requires a charge, but that can wait until the conflict is over.

"Under the government's theory, they could hold Padilla without charging him as long as hostilities continued."

Umm, yeah. Just like in every other war we've ever fought Look, if you could make a serious charge that the Administration was detaining noncombatants (for political purposes), you'd have something. So far they've detained precisely one (plus two on battlefields), and it's obviously not political. As slippery slopes go, this one seems navigable.

"When do you expect the official declaration that the Global War on Terror is over and hostilities have ceased?"

Are you seriously claiming hostilities have ceased? Or that the government has to predict the end of a conflict before it can detain enemy combatants? Or that the enemy's failure to abide by the basic tenets of the law of war should entitle them to preferential treatment when captured? Or that it's the Administration's fault that the enemy's chosen tactics makes the current conflict difficult to predict? All the "forever war" wailing would be a lot more convincing if the GWOT detainees had been held a couple decades, instead of a couple years.

Geek, Esq.

No, Cecil, we object because the President and other faux champions of liberty think that they can suspend the Great Writ by executive fiat.

Let's review:

The Bush administration sought the right to:

1) detain any American citizen they choose to deem an "enemy combatant" anywhere they want, including US soil;

2) deprive that person of liberty, right to counsel, access to the courts, and every single other constitutional and human right;

3) for the duration of a 'war'--and that said 'war' will never end.

In other words, their theory was that the Executive has absolute discretion over whom to call an 'enemy combatant,' how such 'enemy combatants' are to be treated, and for how long such 'enemy combatants' would be detained.

That's how Fidel Castro operates.

Cecil Turner

"No, Cecil, we object because the President and other faux champions of liberty think that they can suspend the Great Writ by executive fiat."

In the first place, we're hardly talking about a blanket suspension of habeas corpus here. In the second, the right is not absolute, as the Constitution notes, and specifically may be suspended to protect the public (precisely akin to Padilla). And though it's normally thought to take an act of Congress (when time permits), the clause is vague:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Finally, the court upheld an arguably much more political case in Ex Parte Vallandingham, wherein a military tribunal held a notorious Copperhead for the duration, merely for rebellious speech. Contrast that with dirty bombers, and I think we're well within the Framers' intent.

And though I truly admire phrases like "faux champions of liberty," the hand-wringing is not persuasive. Even if you were right on the principle and the law, and the application of civil rights to wartime detainees, there is clearly no abuse here. Granting Padilla a court hearing, and putting our intelligence capabilities on display in order to protect a civil right that does not exist, makes no sense. We've already done this before, in the Kenya and Tanzania embassy bombing trials. It made great copy:

Perhaps the real importance of the New York trial lies not in the guilty verdicts but in the extraordinary information made public through court exhibits and trial proceedings. These have given us a riveting view onto the shadowy world of Al-Qaeda-though you'd never know from following the news media, for this information was barely reported. Tens of thousands of pages from the trial transcript provide a full and revealing picture of Al-Qaeda, showing it to be the most lethal terrorist organization anywhere in the world.
Unfortunately, the information needed to secure a conviction also provides our enemies with useful information:
When we tried the bombers of the U.S. embassies in Kenya and Tanzania, we released documents showing that we had monitored bin Laden’s satellite phone communications. After those documents became public, bin Laden didn’t use his satellite phone again; then September 11 happened.

Geek, Esq.

Vallandingham? As a rule, cases from the period when slavery was legal tend to have extremely weak precedential value.

There is nothing "vague" about who has the authority to suspend the Writ. Guess which section of the Constitution contains the language regarding the Great Writ--that dealing with the Legislative branch or that dealing with the Executive branch?

The executive must show more than mere expediency when trying to subvert constitutional rights.

"Making sense" is not the criteria used to determine the constitutionality of a statute or act of the executive. Giving Padilla a court hearing doesn't have to make sense--the Constitution demands it.

I'm sure that Castro and Kim Jong Il were much more proficient and able to destroy the enemies of their respective states than the US is. That's the price one pays for living in a constitutional democracy. Making the US more like Baathist Iraq is not consistent with a global effort to spread freedom.

TexasToast

Lincoln was highly embarassed by Burnside's activites in Ohio and overruled him by freeing Vallandingham and sending him south. Vallandingham ended up running for Governor of Ohio from Windsor, Ontario. He was not the "Man in the Iron Mask" that Padilla or these other extea-legal detainees are.

What in your view, will represent the "end" of the emergency requiring suspension of the writ? Does it have an end?

Cecil Turner

"The executive must show more than mere expediency when trying to subvert constitutional rights."

Wartime history suggests you are incorrect. And again, this is hardly an egregious case.

"Giving Padilla a court hearing doesn't have to make sense--the Constitution demands it. "

No, your reading of the Constitution demands it. Precedent suggests otherwise, or the SCOTUS would have freed Messers Haupt and Vallandingham.

"I'm sure that Castro and Kim Jong Il . . ."

I think we need a Godwin's corollary for this sort of thing. It isn't persuasive.

"Lincoln was highly embarassed by Burnside's activites in Ohio and overruled him by freeing Vallandingham and sending him south."

Note a review by military authorities . . . not a court.

"What in your view, will represent the "end" of the emergency requiring suspension of the writ? Does it have an end?"

Again, a crystal ball is not necessary to rebut the "forever war" thesis. It's enough to point out that the current war is not over, and that it hasn't been particularly long by conflict standards. If either of those change, then you might have a point.

Geek, Esq.

Cecil:

1. Why do you cite Vallandingham like it means anything? It's like citing Plessy v. Ferguson to contradict my claim that "separate but equal" is patently unconstitutional or citing Lochner to contradict my claim that the New Deal programs were/are constitutional.

2. 8 of the 9 current SCOTUS justices agree with my reading of the Constitution. Only Clarence Thomas signed on to the Royalist view. His rationale: he wasn't competent to judge such issues.

3. What meaningful limits would you impose on the ability of the executive branch to arrest American citizens on American soil, ship them overseas, subject them to cruel and degrading treatment, and detain them indefinitely?

To put it another way: Let's say that the Bush administration detains Michael Moore, alleging that he's an enemy combatant, and ships his fat, disingenuous ass off to Gitmo "for the duration of the war on terror."

When does Michael Moore get a chance to exercise his constitutional due process rights, under your interpretation of the Constitution? When does he get to go into court and challenge the administration's decision to label him an "enemy combatant?"

And please, no "our government would NEVER do anything like that" nonsense. It has plenty of times in the past.

Cecil Turner

"Why do you cite Vallandingham like it means anything?"

Why did the SCOTUS cite it in Quirin? Is it possible it's not quite as obsolete as you'd like to think?

" 8 of the 9 current SCOTUS justices agree with my reading of the Constitution."

Not if you're claiming the Executive doesn't have the right to hold him for the duration, which you apparently are.

"What meaningful limits would you impose . . . "

Enemy combatants during wartime. I note you don't dispute either for Padilla.

"When does Michael Moore get a chance to exercise "

Obviously never.

Geek, Esq.

1. It was cited 50 years ago? Man, you gotta do better than that. That's a pretty faint trail.

2. I'm claiming that he has a right to challenge his detention in court, and that the judiciary has the authority to invalidate bogus detentions. The SCOTUS agrees with me.

3. Very clever. But, a dodge that can only lead me to conclude that you're not comfortable answering the question.


Cecil Turner

"1. It was cited 50 years ago? Man, you gotta do better than that. "

Not sure why. It was almost 100 years old when it was cited. And the laws of war are themselves a body of common law literally centuries old (again from Quirin):

Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course.
"2. I'm claiming that he has a right to challenge his detention in court, and that the judiciary has the authority to invalidate bogus detentions. The SCOTUS agrees with me."

They seem to've added a little codicil you don't care for: "Further, they may be held without charge or criminal trial pendente bello."

"3. Very clever. But, a dodge that can only lead me to conclude that you're not comfortable answering the question."

Sorry, couldn't resist. But again, there is no need to answer a hypothetical. If your point is that the power could be abused, so what? Lots of powers could be. Padilla is not Michael Moore, he's not a political prisoner, and the power is not being abused. If it were, the SCOTUS would undoubtedly overrule the Administration, and you'd have an actual case to base your outrage upon. Until then . . .

Geek, Esq.

Cecil, that language doesn't appear in the Hamdi decision.

This language, however, does:

"We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."

Hamdi may be held without charge once it is established that he is an "enemy combatant," but he has the constitutional right to challenge his designation as an "enemy combatant" at the outset.

The detainee gains the right to review of his designation after the government detains him, NOT after the end of hostilities.

When a neutral decisionmaker affirms that designation, then and only then may the government detain him until the end of hostilities.

The government may NOT delay the review of the designation as an "enemy combatant" until the end of hostilities.


Cecil Turner

"Cecil, that language doesn't appear in the Hamdi decision."

Yes, one should never rely on summaries. What they did say was:

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.
Unfortunately, they followed with a standard for proving combatant status that approaches a criminal level. They made some few concessions, e.g. evidentiary presumptions:
At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.
And an implication that the standards are subject to military efficacy:
We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. . . While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.
But on the whole, they make detention of enemy combatants meaningless unless the enemy combatant is stupid enough to admit he is one. I'd note they also conclude the "forever war" argument does not apply to the current situation:
But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.

Geek, Esq.

Well, if they pick the guy up with a Kalashnikov, that would probably be enough.

Padilla was always the bigger case, but Hamdi established a minimum bar of due process. They'll have to rely on the GWOT to argue that Padilla should be detained without charge. Not likely to succeed--four justices in the Padilla decision wanted him freed right away, and one can be sure that Scalia would join them once the jurisdictional quibble is no longer relevant.

Cecil Turner

"Well, if they pick the guy up with a Kalashnikov, that would probably be enough."

By my reading, that'd just shift the burden of proof. (And this, in my opinion, is a good indicator that we don't take the current conflict seriously, and a classic example of why we don't entrust national defense to civil rights lawyers.) "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

"Padilla was always the bigger case, but Hamdi established a minimum bar of due process."

From a military perspective, Rasul was always the biggest case. And that decision appears to me to be a complete reversal of Eisentrager, and militarily unworkable. And frankly, the only justice with a common-sensical approach to both cases was Thomas (yes, that's my opinion, and no, I don't expect you to agree). Cheers.

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Wilson/Plame