Gitmo Rights

Matthew Continetti of the Weekly Standard opines on the Supreme Court decision embraced by the party of Civil Rights for Terrorists:

As it happens, some of the most effective arguments against Boumediene come from the decision itself. For example, Justice Kennedy wrote that in cases involving terrorist detention, "proper deference must be accorded to the political branches." Then he overrode them.

Kennedy further noted that "unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." They had better start, because the courts are about to be flooded with petitions to release terrorists sworn to America's destruction.

He also wrote that now the "political branches can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism." But that is precisely what Congress and the president were doing when they passed legislation laying out a process for detainee review, one that in fact addressed concerns previously raised by the Court. The Court now says this process is inadequate. What would be adequate? Kennedy's answer: I'll get back to you on that.

Jake Tapper of ABC News interviewed Barack Obama, who waxed on the wisdom of treating terrorism as a law enforcement, rather than military problem.

OBAMA: Well, but the fact that they disagree does not mean that they're right on this. What it means is, is that they have been willing to skirt basic protections that are in our Constitution, that our founders put in place.

And it is my firm belief that we can track terrorists, we can crack down on threats against the United States, but we can do so within the constraints of our Constitution. And there has been no evidence on their part that we can't.

And, you know, let's take the example of Guantanamo. What we know is that, in previous terrorist attacks -- for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, "Look, this is how the United States treats Muslims."

So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.

One obvious objection to all this is that the Bush people do not think they are operating outside the constraints of the Constitution - they simply have a different view of the limits of those constraints on a wartime President.

And the McCain camp provided the obvious rejoinder, as reported by Mr. Tapper - the post 1993 law enforcement approach was not a resounding success.

Comments

[kim]

Oh, please Obama, keep arguing that the Constitution is a suicide pact. The primary is over, and this dude is still singing to the Kos Dancers.
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[clarice]

A different view of the Constitution wqhich Congress agreed with and in an area the Constitution gives those two branches the responsibility and power to act, I'd add.

[Bob from Ohio]

"And, you know, let's take the example of Guantanamo. What we know is that, in previous terrorist attacks -- for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated"

Next time I'm in NYC, I really need to stop at the World Trade Center and ... Oops, I guess putting those people in US prisons did not work very well.

[Rich]

Obama's position is a GREAT strategy for terrorists!

[Neo]

The ability of Obama to embrace his a-holeness is breathtaking.

[Patrick R. Sullivan]

Yesterday, on a Seattle talk radio program, I listened to Richard Miniter--who has been to Gitmo and seen the detainees 'pocket lint' (including one guy's 16 passports)--discuss the fallout to be expected from the SCOTUS decision.

He said that in places where Al Qaeda's people have been tried in civilian courts--such as India--the judges, prosecutors, jurors and their families have all been targeted by Al Qaeda. Even defense lawyers and their families.

According to Miniter, everyone involved in any way can expect to become a target of terrorists.

[TexasToast]

Giving these people a right to a hearing regarding detentions lasting up to 5 years without any charge strikes me as somewhat less of a threat to the republic than a case reasserting Marbury v Madison.

[Neo]

Obama is already living in a fantasy world, one in which cold-hearted dictators will swoon in his presence like the hyperventilating fans at his rallies. But at this rate, I expect Obama to suggest, come October in one of the presidential debates, that if we'll just modify some of our spotlights to project a giant bat-image against the clouds, Commissioner Gordon will be able to mop up what's left of the war in Afghanistan within a fortnight.

LOL

[AJB]

Civil Rights for Terrorists

I believe you meant to say "Civil Rights for Random Brown People." Or at least that would be more accurate.

[Great Banana]

Giving these people a right to a hearing regarding detentions lasting up to 5 years without any charge

So, in a war, what we do is capture enemy combatents, and then charge them criminally and try them in american courts. Do our soldiers have to read them their rights? Do we need warrants and probable cause before we capture them? Can they sue the soldiers for using excessive force in their capture? Do they get discovery of all the top secret intelligence material that led to their "arrest"/capture.

It is a mindset like this, that does not understand the difference between apprehending a criminal w/in the U.S. and capturing an enemy combatent, that leads me to believe that most U.S. citizens are now too stupid for this nation to long survive.

[narciso]

You could ask those tourist at Luxor back in 1997, oops, you can't do either because
Lynn Stewart relayed messages from Omar Abdel Rahman to the Gamaa Islamiya cell that slaughtered them. Fizgerald let Al Mohammed go, until after the Embassy bombings in Kenya & Tanzania; it seems he did provide the sketchy details for the
December 1998 PDB; about Seif Al Adel and
Abu Haf al Masri, (Mustafa Atef) fellow Egyptians, whose names disappeared from the
August 2001 PDB. The PDB didn't containt information from William's Phoenix memo; re flight schools. Moussaoui's detention was two weeks in the future, as would Mohammed Manea Al Quahtani(whose training
regimen is in Peter Bergen's oral biography
of Bin Laden)a detail left off the defense
brief which is Phillip Sand's Torture Team.
"Abdullah Mujajir" the foreign servant's South Florida ties to Atta as well Adnan El Shukrijumah would also surface in thefuture.
It's ironic that if they had been apprehended on September 10th, Jarrah only had a traffic ticket in his past, Atta had no record, except his associations in the Hamburg Kuds mosque. It's unlikely that Al Hazmi & Al-Midhar would have surfaced because of the Gorelick "Wall" prescription"
Lawrence Wright speculates those two were not picked up, because they were considered
potential recruits by the I-4 team;However, they never made a move toward them.

[Sue]

I posted this in another thread.

I know Andy McCarthy isn't that popular around here, but I think he hits a home run with this one.

[Sue]

This really bugs me. Two pictures. One of a thoughtful candidate. The other an angry candidate. I have come to detest Drudge.

[Jane]

Obama's position is a GREAT strategy for terrorists!

No wonder some think of him as a Manchurian candidate.

[cathyf]

Giving these people a right to a hearing...

They already had a right to a hearing, and have had that right all along. The Supreme Court gave them a right to a habeas corpus hearing in a US federal court. "These people" are 1) not US citizens 2) in a prison outside of the US for 3) war crimes that they committed outside of the US.

So, TT -- where does it stop? Does every human being on the planet have the right to a habeas corpus hearing in a US federal court? Why stop at humans?

[clarice]

Rasmussen:
"Tuesday, June 17, 2008 Email to a FriendAdvertisement
Most voters favor the resumption of offshore drilling in the United States and expect it to lower prices at the pump, even as John McCain has announced his support for states that want to explore for oil and gas off their coasts.

A new Rasmussen Reports telephone survey—conducted before McCain announced his intentions on the issue--finds that 67% of voters believe that drilling should be allowed off the coasts of California, Florida and other states. Only 18% disagree and 15% are undecided. Conservative and moderate voters strongly support this approach, while liberals are more evenly divided (46% of liberals favor drilling, 37% oppose).

Sixty-four percent (64%) of voters believe it is at least somewhat likely that gas prices will go down if offshore oil drilling is allowed, although 27% don’t believe it. Seventy-eight percent (78%) of conservatives say offshore drilling is at least somewhat likely to drive prices down. That view is shared by 57% of moderates and 50% of liberal voters. "

You see-how McCain skirted the issue of Fla and Calif voter opposition? By sticking to his states rights argument.

[Rick Ballard]

"that leads me to believe that most U.S. citizens are now too stupid for this nation to long survive."

GB,

"Most" of the Great Muddle are always within 1 SD of the mean so "too stupid" just won't work. Statistically, anyway. The question is whether the educrats have succeeded in their quest to keep them more ignorant than they may have been in the past.

I have doubts about that. Once the muddle is released from the educrats indoctrination camps, "life education" begins and even the dullest notes the difference between the indoctrination and reality. The current polling on drilling points up the fact that the Greenie Watermelon piety, so heavily imbued with holiness by the educrats, lasts only until touched by the reality of the gas pump.

The Pod of Pustules Gitmo decision is going to be greeted with the same enthusiasm as additional drilling restrictions, once it sinks in.

The court has managed to once again diminish its undeserved stature as an arbiter. That's not a bad thing, per se.

[Pofarmer]

we were able to arrest those responsible, put them on trial.

Uhmmm, yeah, sorta, but you generally don't get the planners. Khalid Sheik Mohammed comes to mind. Arresting folks and trying them after they murder a few thousand folks is kinda pointless, wouldn't you agree?

And, the detainees at Gitmo have all had hearing in front of a military tribunal. Bringing them into the federal justice system is insanity.

[cboldt]

In comments at Beldar's blog, I speculate generally that the Boumediene fallout isn't as "dire" as popular belief. SCOTUS sits at the top of a Court system that has much flexibility.

[Bill in AZ]

narciso illustrates the single thing that most pisses me off about the autistic Fitz and his prosecution of Libby. Fitz knew who we were dealing with during his work at SDNY. He even interviewed Ali Mohammed ("scariest guy he ever met" hmmm... I presume he must not have ever met Scary Larry) and let him go. Yet he created perjury for Libby long after he knew there was no case, and thoroughly disrupted operation of the government during a time of war. Libby was one of the few voices properly defining what we were up against, along with Feith and a few others.
Thanks Fitz - I can see the supreme court for you under Obama.

[Neo]

All the children sing
All the birds are chirping harmony
The scent of love is in the air
Sunset on the sea
The angel of the lord
Just declared we arent worth a thing
The galaxy is null and void
All the children sing

[sbw]

Sue: I have come to detest Drudge.

Some of us had little regard for him from the start.

[sbw]

You cannot have expected the Supreme Court to cut itself off from the opportunity to intervene. You cannot expect the Supreme Court to tolerate a glut that paralyses the court system. This will work out.

[sbw]

H/T Instapundit: JOHN YOO on the Supreme Court's Boumediene decision. "Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court."

[Thomas Collins]

So B57O belives that terrorist recruitment is increased because the US doesn't provide enough rights for terrorist suspects? This man is truly clueless. This man is 10 Jimmy Carters on the clueless scale. What was B57O and his Columbia International Relations compatriots smoking back in the day?

[Sue]

Thomas,

The entire pharleftistan believes that. That Obama does too is not shocking.

[Danube of Thought]

I'm outta here--it's all too depressing. Off to Florence, Sorrento and Rome.

Ciao.

[Ranger]

This really bugs me. Two pictures. One of a thoughtful candidate. The other an angry candidate. I have come to detest Drudge.

Posted by: Sue | June 17, 2008 at 10:43 AM

Sue, Drudge is just following his own self interest here. He knows that an Obama administration would be full of stupid mistakes, just like the Clinton administration was. A McCain administration would probably be pretty boring. Obama is better for his trafic meter (and thus ad revinue).

[Pofarmer]

SCOTUS sits at the top of a Court system that has much flexibility.

And that is supposed to somehow make me feel better? Somehow, flexibility in the body that interprets our laws seems more like a bug than a feature.

[narciso]

I should point out, that because of Ali Mohammed's experience with SDNY, he probably directed some of the preliminary scouting for the WTC attack before 1998.
Yet Fizgerald has done his best to be the Lawrence Walsh of this generation; going
after Libby, during a time of war, indicting
and removing one of the clearest proponents of military and intellectual approaches against terrorism (Conrad Black)while basically going soft against a real corrupter on several continents (Rezko,
& by extension Auchi and Alsammarai; who he probably hasn't given a jay walking ticket to. Auchi, who bribed Italian politicians with money that was meant to feed Iraqi children, Alsammarai, who ripped off the electricity grid, and now calls for the death of more Americans & Iraqis on off all things, Radio Sawa; which is supposed to be the RFL/RFE for the Middle East. Yet Gore's
'courageous' endorsement of Obama, magnitudes of stupidity greater than Kerry's endorsement of Obama, after the Massachussett's primary, McCain's old,did we mention he's old; Obama's signing up Patti Solis, & Stephanie Cutter; this is like getting the crew of the Titanic to steer the California and other ephemera will probably be the talk of the day. By the way. that way of the "Pooh" quote by Danzig, is priceless. Next, Goldilocks comments on real estate volatility and oil futures.

By the way, here's a minor issue, but where are the telethons and concerts for the Nation's breadbasket? We can do without jazz, but we can't do with bread or corn for long;(damm the carbs)Maybe this is the way to solve childhood obesity; I somehow doubt it. What happened to the levee boards in Cedar Rapids, are there levee boards in Cedar Rapids?

[clarice]

DoT Have fun you miserable bastard. We'll miss you.

[MayBee]

Oh please oh please oh please.

I just know that somewhere out there is a pre-Afghanistan invasion speech from Obama in which he calls for treating it as a police, not military, action.

Even in his famous post-invasion, pre-Iraq speech, he ambiguously says he supported "going after those" that committed the terrorist act. To my mind, that is code speak for not bombing the country itself.

Everything about this guy makes me know he did not support the kind of miliatry action that took place in Afghanistan post-9/11. Now we see a hint of it.
Someone with skills, please find a post-9/11, pre-Iraq speech by Obama for me!

[Jane]

Dot,

Don't forget to come back. I don't want to have to drag you - again. Have a wonderful time!

[Anita]

"Look, this is how the United States treats Muslims." - Obama.

Hmm, Why is it bothering Obama?

[TexasToast]

So, TT -- where does it stop?

At the end of that loooooong very slipppppppery slope?

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

-- Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions

So Cathy --- where does it stop?

[cboldt]

-- And that is supposed to somehow make me feel better? --

No. But perhaps you misunderstand the observation I was summarizing. The Court system has a wide range of procedure, and isn't limited to CrimPro. Scan a few of the habeas cases that are cited in Eisentrager. See the FISA Court (granted, it's specialized, but it's not CrimPro). The Court system has at least a finger on the UCMJ, etc.

The common reaction injects conclusions that flow from an assumption that the GTMO detainees now get benefits that match (or at least mostly match) CrimPro. I don't think that's a good or valid assumption.

[GMax]

Why isn't ANWR a states right argument? Alaska would approve drilling in a heartbeat if allowed to vote.

[JM Hanes]

Sue:

Thanks for linking to the McCarthy column. I'd forgotten that bin Laden has been under indictment since 1998! McCain should pointedly remind Obama of that fact -- in their first nationally televised debate.

I've been surprised at how little attention has been paid to the central defect in taking a law enforcement approach to terrorists: You can't arrest them till they've actually committed a crime. To have any hope of incarcerating potential perpetrators before they kill people, you will inevitably end up passing what is essentially a body of thought crime legislation, chilling communications and eroding privacy, one database at a time. Ultimately, that approach will intrude on civil liberties more thoroughly than any possible pre-Boumediene Gitmo effect.

Preventative law enforcement (with its necessary emphasis on preventative law) is an entirely different beast than the punitive ex post facto enforcement which constitutes the "rule of law" as we know it. There has been far too little explicit recognition of that fundamental fact in public dialogue.

[Pofarmer]

UHmmm, TT, I beleive they have already released some Gitmo inmates, and it seems like a pretty high percentage of them have shown back up on the battle field. If you release somebody who's guilty in a pursesnatching case, he may go clean, may snatch again. If you inadvertently release the wrong character from Gitmo, somebody, and maybe a lot of somebodies, are probably gonna die. They weren't just snatched from their job at a daycare.

[cboldt]

Just to pick one "procedural facet," Senator Graham stated, in a recent speech in NJ, that the GTMO detainees will now be able to forum shop for a sympathetic judge. In CrimPro, a defendant DOES get some ability to challenge the forum, e.g., locals are biased, can't seat an impartial jury, and other assorted excuses.

Eventually we will see if the Senator's statement, that the detainees have obtained the right to forum shop, bears out in fact.

[sbw]

GMax: Why isn't ANWR a states right argument?

Lefts don't believe in states rights. They believe in CONTROL!

[Pofarmer]

to have any hope of incarcerating potential perpetrators before they kill people, you will inevitably end up passing what is essentially a body of thought crime legislation, chilling communications and eroding privacy, one database at a time.

You just made Tommy Franks argument for taking the fight to the enemy.

[BobS]

I agree with Matthew, but am willing to wait and see what the fallout for be. But I love to use one of my liberal friends favorite expressions in that Boumediene is potentially......chilling.

[Pofarmer]

Eventually we will see if the Senator's statement, that the detainees have obtained the right to forum shop, bears out in fact.

And if it does?

This whole thing is being turned into a gigantic cluster f##k for no good reason.

[cboldt]

-- This whole thing is being turned into a gigantic cluster f##k for no good reason. --

Of course involving the courts complicates affairs. But the government wasn't getting its way in the Bismullah case (where the DC Circuit seemed to take as given, that the statutory review scheme passed constitutional muster), meaning that it's a gigantic cluster f##k no matter which way it's sliced.

There are places the courts won't go (see Hirota -- and recent tangential decisions), but I think there is good reason, in the general sense, to HAVE the third independent branch (even intruding to some wartime disputes), rather than NOT have it, or have it act as a "yes man."

[Thomas Collins]

I've never seen the term "pharleftistan" before, Sue, but I love it. Because I live and work in the Boston area, I'll have plenty of chances to use it.

[cathyf]

'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'

That's just fatuous. Over half of the people ever held there have already been released. Thirty-some have been killed or captured on the battlefield after their release. (Whether that's a large or small percentage is based upon such questions as how many released prisoners are back on the battlefield undetected, and how many are unable to return to the battlefield because they are in custody somewhere else.)

If these guys had really been held for five years without any hearings, then it would be significant if we don't find any innocent people in the bunch. But every single one of them has had a status hearing in front of a military tribunal. This group has already been substantially culled, and by a process that made a significant number of errors in the direction of releasing the guilty.

The Geneva Convention requires that unlawful combatants be given a hearing before a "competent tribunal." That is the basic right in question. All of these prisoners had that right under the original procedure set up by the Executive Branch, and all of them have had hearings under that procedure. Then the Judicial Branch ruled that this was inadequate, and that the Legislative Branch had to enact a system for hearings explicitly by law, which the Legislative Branch did, and the Executive signed. Now the Judicial Branch has said that they were just kidding in their last ruling. It's not just that the prisoners must have access to a "competent tribunal" (basic human right), and not just that they must have access to tribunals set up by duly-enacted federal law passed through both houses of congress and signed by the president (which SCOTUS said was their constitutional right the last time around), but, instead, they are entitled quite specifically to habeas corpus rights in US federal courts (or, at least that's the rule until they change their minds again -- maybe the next version will be that each gitmo prisoner will be entitled to a bill of impeachment in the House and a trial in the Senate?)

[cboldt]

I linked to the wrong phase of Hirota above. I meant to link to Hirota v. General of the Army MacArthur, 338 U.S. 197 (1948).

The punchline that I took away was this:

The conclusion is therefore plain that the Tokyo Tribunal acted as an instrument of military power of the Executive branch of government. ... It was solely an instrument of political power. Insofar as American participation is concerned, there is no constitutional objection to that action. For the capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say.

[Thomas Collins]

The ironic thing about the Boumediene case is that it is largely a result of GWB's success in protecting the homeland. The more secure we Americans feel, the more likely we are to view fighting Jihadism as a police issue. Let's hope it doesn't take a suitcase nuke explosion to change our attitude.

[narciso]

Appeals Court Cotelly as well as thatSupreme
Court decision, relied on irrelevant cases like the Councilman case (involved enlisted
navy personnel in a courtmartial) Hirota was an appeal after a war crimes prosecution
(that Justice Jackson presided over)Quirin was an oversight, we had alreafy hung everyone but Dasch by the time the decision came out. We haven't even had theg@#$@#$@#$ trial/ tribunal, yet nearly 7 years after September 11th! mostly because the ACLU, Amnesty International, want to litigate every single word. It's become almost as bad as the Hague tribunal against Milosevic, where despite the mountain of evidence; they ultimately had to acquit him. You want an example of the "Chicago Way" of jurisprudence, consider the Saddam
trial, from capture to execution in three
years; We don't ever do it that way. they didn't give a carp about civil liberties in that deal, although they did give thedefense
too much leeway to filibuster. That's why that fellow Munaf is probably 'doing the
Brown Note' if you get the meaning about his fate.

By the way, on the way of the Pooh, when 3,000 American citizens either suffocate, are incinerated, or suffocate, that's when it becomes too painful, and it's time to try something new.