Lindsay And Hillary

Lindsay Graham has opposed the Bush Administration on its legal approach to the Gitmo detainees; today the Times delivers a "strange bedfellows" update:

Senator Lindsey Graham of South Carolina often plays the contrarian, the conservative Republican willing to poke a stick in the eye of the White House.

Now Mr. Graham is playing an even higher-profile variant of that role, as the Senate’s foremost expert on military law in the midst of the emotional debate over what rights to provide to terror suspects.

A former military lawyer who is also a reserve judge on the Air Force Court of Criminal Appeals, his influence is shaping up to be pivotal in forming the Congressional response to the Supreme Court ruling striking down the White House’s plan for bringing terror detainees to trial.

...

His views are shaped not only by his understanding of the law, but also by his respect for an institution he credits with changing his life, by shaping his career and allowing him to support his 13-year-old sister after his parents died when he was in college. His belief in the integrity of the military code has repeatedly led him to resist the White House when it comes to defining the treatment of people accused of being terrorists.

Last year, against the wishes of the Bush administration, he was one of the key forces in helping pass a ban on torture.

...

Administration lawyers have argued for Congress simply to ratify the tribunals that the Supreme Court ruled that the president could not set up on his own.

Mr. Graham has fought back in his hyperkinetic, folksy way. Challenging the lawyers this week, he bounced in his chair, rolled his eyes, shook his head and raised his voice, warning at one point that if they pushed the president’s approach, “It’s going to be a long hot summer.”

“I’m a big fan of the Geneva Conventions,” he declared.

At a hearing last week, Mr. Graham backed up Senator Hillary Rodham Clinton, Democrat of New York, as she prodded military lawyers to refute the claim of some Republicans that providing legal rights to terror suspects was tantamount to setting them free.

“Isn’t it correct,” Mr. Graham asked the panel, after making a polite interruption, “that you could be acquitted in a military commission and still be held as an enemy combatant — even if you’re acquitted?”

Nodding at Mrs. Clinton, he explained: “It goes to your point. You’re absolutely right.”

In an interview later, Mrs. Clinton called Mr. Graham’s position “a perfect example of when someone’s experience can be used to inform an issue.”

“He comes to it from his own experience and deeply held convictions about the importance of our military code of justice,” she said, “and an understanding as to the damage that has been done to our standing in general and the potential dangers in particular to our men and women in uniform.”

Mrs. Clinton  said, “There isn’t anyone else in the Congress who can speak with such experience and authority.”

I'm sure no one has forgotten this, but just in case:

Mr. Graham was elected to the House in 1994, where he became widely known for his role as a manager of the impeachment proceedings against President Bill Clinton. He was elected to the Senate in 2002.

I also found Lindsay Graham's bio to be quite the Horatio Alger story:

Mr. Graham, who turned 51 last week, grew up in the rooms behind the bar and liquor store his parents owned in Central, S.C., a textile town . The first in his family to go to college, he joined R.O.T.C. and wanted to fly but was disqualified by what he calls “lack of math ability and bad hearing.”

When his mother died when he was 21, the Air Force allowed him to continue his education instead of going into the service, so he could stay home. When his father died 15 months later, the service said he could attend law school in South Carolina so he could stay with his sister, and when he finished, the service posted him as a defense counsel to South Carolina so he could adopt her. After she went to college, he went to Europe as a military prosecutor.

“It changed my life,” he said of the military legal corps. “It exposed me to things. I got to spend four years in Europe. I was thrown into court as a young defense attorney doing things, with responsibilities you’d never have in the civilian world as a lawyer.”

Here is his website bio;  this article on Graham's "desertion" of the President a year ago tells us he is not a Presidential candidate in 2008.  Really?  Apparently he is McCain guy and a VP possible.

Comments

[Jane]

“a perfect example of when someone’s experience can be used to inform an issue.”

Too bad we didn't have more people in Congress who could "inform an issue". Hillary for one.

[SmokeVanThorn]

Before you get too excited about Graham, take a look at "Jim Haynes and Lindsey Graham -- setting the record straight" at www.powerlineblog.com.

[Rick Ballard]

He does exude the folksy charm and wit that made Edwards' total vacuity seem so innocuous. I'd like to see him in a measured footrace with Chuck Schumer to see who gets in front of a TV camera first before commenting on his future political aspirations. I know he'll say anything for attention - but does he have that "fire in the gut" that would allow him to trip Chuck at the gun?

[Gary Maxwell]

A big supporter of McCain, who is not a favorite of mine. If we have to put a moderate on the ticket, why not Guiliani who is much more likable.

[Rick Ballard]

Gary,

Who sez there's gonna be any moderates on the ticket?

[Huggy]

Dick and Milt 2008

[Lew Clark]

Maybe he's a Hillary fan and a VP candidate in 2008?

[Gary Maxwell]

Rick

Do notice I did say "if". I dont want a moderate, but if its down to The Straight Talker ( out of both sides of his mouth ) or Rudy, you can put me in the latter's camp.

[Forbes]

Yeah, he grew up behind--though the story I heard Graham tell in a stump speech, was upstairs over--the pool hall his father also owned. So his father was a capitalist in a South Carolina mill town, where a lot of discretionary spending was done at the liquor store, bar, and pool hall.

It's unfortunate his parents died at a young age, but Graham leaves you with the impression that he grew up in poverty, when in fact, his father owned three, (likely) quite lucrative, businesses.

[ed]

Hmmm.

Frankly I still think Graham is a twit.

[jr]

I hated when he attacked John Dean

[narciso]

and what exactly does this have to do with the validity of the use of military
tribunals through out history (re ex parte Merryman, Milligan, Qurin, Eisentrager et al)court martials, last time I checked applied to US citizens and military
personnel; not unlawful combatants (that was one of the flaws in Hamdan; relying on Councilman to reach that result. In part,
I do blame Scalia for part of this; since in Hamdi; he chose to distinguish Qurin apart from Merryman; a result he dissented
again when Kennedy, Stevens et al; used this tactic to totally obliterate this concept. Sadly, such decisions will lead
us one day to reexamine the application
of Korematsu; or other more draconian
measures

[Dave]

Graham has always been the media vice president to McCain's media presidency.

[cathyf]

Sadly, such decisions will lead us one day...

Sadly, where it's most likely to lead us is to more summary executions of unlawful combatants on the battlefield. Which is sad, because applying more deliberation allowed us to identify the occasional unlucky innocent among the detainees.

Ever notice how the same people screeching loudest about how the death penalty should be eliminated because some innocent person might get executed are working very diligently to assure that innocent people confused with unlawful combatants in the fog of war will get executed rather than detained and sorted out?

cathy :-)

[Syl]

Lindsay Graham is simply arguing his point of view. Hillary and the New York Times agree with him.

So that makes it okay to attack his character?

He's not 'conservative' enough. Well, boo-hoo.

Address his argument. All this ad hominem sh*t makes you sound like moonbats.

[SteveMG]

A little Sidney Hook is warranted:

Before impugning an opponent's motives, even when they legitimately may be impugned, answer his arguments.

I'm with Syl (who beat me by 5 minutes).

Point out where Graham is wrong. Then you can impugn his motives.

SMG

[Cecil Turner]

and what exactly does this have to do with the validity of the use of military tribunals through out history (re ex parte Merryman, Milligan, Qurin, Eisentrager et al)

You are exactly correct . . . and Graham is out to lunch on this one. The laughable conclusion to this line of reasoning is that a captured spy would require a court-martial conviction--with all rules of evidence and due process safeguards allowed for in the Constitution--prior to punishment. Also concur that Scalia lost it in Hamdi. But that's obviously a lost cause, since only Thomas held to the "good faith" determination standard:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision.

Seems to me that's the obvious right answer, and it only got one vote. The upshot of the current trend is to provide unlawful combatants with all the privileges of lawful ones. The obvious result is to remove any incentive for our enemies to follow the laws of war (like that long bit in the Geneva Conventions describing the requirements for combatant status). That obviously doesn't serve to uphold the Geneva Conventions, and any operator with a smidgen of common sense can figure it out in a minute. Why it's apparently beyond our astute legal beagles is a mystery.

[maryrose]

Ever since Graham led the impeachment movement in the House against Clinton[ a risky thing to do for someone who wanted to become a senator} he is ok with me. He's also a member of the Gang of 14 and tries to work across party lines. Having also had to take responsibility in my own house at the age of 12 I can relate to his raising his sister{a tremendous achievement in itself and for realizing the importance of family. He is a man of principle, a rare find these days,Hillary is not a product of the school of hard knocks. She leads the{I'll get ahead on the coat-tails of others} kind of life.

[maryrose]

I'm also in agreement with Syl and SteveMg on this one. Though I'm against the death penalty{I'm in the minority on that one} I don't want any terrorists released.
OT -Saw some of Tony Snow's presser today and Helen Thomas belongs on the most-addled journalist list. At one point after she appeared uninformed and just flat out wrong-Tony who was the picture of patience said"You are hectoring me now"

[Sue]

Hillary and the NYTs? Hmmm...

[Sue]

He's also a member of the Gang of 14

A point against him, as far as I'm concerned. The constitution doesn't provide for a gang of 14 to decide who should or shouldn't be considered for judges.

[Terrye]

I agree with Syl also.

And besides, people can say he deserted Bush on tribunals, but the truth is I can remember Graham being treated like hell by some people on the right because he tried to back Bush on Miers. So I gess deserting Bush is ok, just so long as you go right to do it.

[cathyf]

Point out where Graham is wrong. Then you can impugn his motives.

It seems to me that is what narciso, cecil and I have done. Do you want to address our arguments or just whine that we have dared to criticize him?

cathy :-)

[Cecil Turner]

So I gess deserting Bush is ok, just so long as you go right to do it.

If you use "right" as in "correct," I'm with you. But Bush is right on this one, and Graham is wrong. (I also think a Senator acting as a judge is an unacceptable conflict of interest, but it's a relatively minor issue in this case.)

The point of the laws of war is to reduce the severity of war and its impact on nonparticipants. Toward that end, combatants are required to target only other combatants, wear distinguishing signs, obey laws of war, etc. But obviously it confers an advantage to hide amongst civilians (even though it causes more civilian casualties), and terror tactics can be effective. There is a need to provide a disincentive to deter these acts.

There is a long history of military commissions to punish law of war violations, as Narcisco pointed out above, dating from before the Revolution. The Bush proposal mirrors the one in Quirin, which is well within the traditional law of war. Rules of evidence are necessarily somewhat relaxed, and the punishments a bit harsh. The alternative is the ridiculous result of having a perfidious attack that kills thousands of civilians, and the one captured perpetrator being given a prison sentence after a long expensive trial . . . instead of the hanging he so richly deserved. Further, concur with cathyf's assessment of where it's likely to lead: more summary executions (or just excessive force) by front-line troops who decline to put themselves at risk by accepting surrenders.

[NCC]

I have read elsewhere that Graham might be a VP candidate for McCain.

But if you're McCain, what exactly is it that Graham brings to the table?

All I ever hear him saying (explicitly or implicitly)is "Yes, John, you're right."

Oh, wait a minute....

[SteveMG]

Cathyf:
It seems to me that is what narciso, cecil and I have done. Do you want to address our arguments or just whine that we have dared to criticize him?

Some of those posts came after my post about personal attacks. And if you addressed his arguments, then my post doesn't apply to you.

Criticism is fine. And attacking his motives is fine (if you re-read the Hook quote fully).

But personal attacks - or attacking his motives without also addressing his arguments doesn't get us anywhere.

SMG

[vnjagvet]

I respect Lindsey Graham. He is a principled, pragmatic politician who has had real world experience in military justice.

He understands that the UCMJ of 1968 is one of the most important military justice advances in history. It codified many of the Supreme Court opinions on criminal law, and provided competent legal counsel to all accused of crimes that could result in imprisonment for 6 months or more.

He also understands that contrary to the vehement objections of many combat officers, these reforms had a positive effect on discipline, and did not materially increase the number of accused found not guilty.

A Court Martial tribunal is different from a trial jury. It is generally made up of seasoned and conscientious officers. Seldom do the guilty go free.

I am speaking as one who has participated in several hundred such trials in wartime.

[cathyf]

The point of the laws of war is to reduce the severity of war and its impact on nonparticipants.

A more subtle effect on non-combatants is that if our government goes rewarding war criminals for war crimes, then non-combatants will end up taking things into their own hands, and accelerate a whole spiral into broader practice of barbarism. For example, a war criminal breaks into a family's house so he can use it to ambush lawful combatants. Instead of cowering the the corner, the family's dad plunges a butcher knife in the war criminal's back while he is facing out the window waiting to shoot at the lawful combatants. So the next time around the war criminals just mow down the whole family before setting up the ambush. Breakdown of law causes vigilantism, and increasing vigilantism increases the bad guy's perceptions that non-participants must be brutalized to prevent them from converting suddenly into participants.

This is very much the problem of "defining deviance down." The Law of Unintended Consequences is alive and well, and it is very clear that people like Graham are ignoring tens of thousands of years of human experience with the dangers of subverting the Rule of Law.

cathy :-)

[davod]

This argument is ridiculous. I have contempt for Graham because of his experience.

This guy is a military judge. He should know the law.

Especially the Geneva Convention. Article four defines who is covered by Article three. Non uniformed combatants are not covered. Nor are those who deliberatly hide among and target civilians.

He and his ilk have purposely distorted the conventions for what ends I find difficult to fathom.

Graham and the SCOTUS have emasculated the intent of the conventions.

[vnjagvet]

Cathyf:

Respectfully, I do not believe that is Graham's goal, nor do I believe that what he is seeking will produce that result.

Generally, combat military, naval, marine or airforce officers will be appointed to whatever "commission", "tribunal",or Court Martial ends up as the body to hear war crime case.

In the past, a very small percentage of war prisoners were tried as war criminals. This was true from the Civil War to Vietnam.

One of the points Graham is making is that all those who are confined are not going to be tried as war criminals. Those who are should be given counsel and tried with basic due process.

Keep in mind that even Qurin, Yamashita, Eisentrager, etc., had skilled counsel that took their cases all the way to the Supreme Court.

[JM Hanes]

cathyf:

"So the next time around the war criminals just mow down the whole family before setting up the ambush."

That would rather defeat the purpose of hiding among civilians, now wouldn't it? The argument that Graham's approach will subvert the Rule if Law is certainly imaginative though!

[Cecil Turner]

A Court Martial tribunal is different from a trial jury. It is generally made up of seasoned and conscientious officers. Seldom do the guilty go free.

Generally when one uses "tribunal" it is to specify a military commission (to distinguish it from a court martial). In any event, a court martial is not the traditional remedy for spies, saboteurs, or other unlawful combatants. Per Quirin:

Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who though combatants do not wear 'fixed and distinctive emblems'. And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to 'the law of war'.

Obviously Article 15 is no longer applicable . . . but IMO the correct course of action is to pass comparable legislation rather than to attempt to use courts martial for the purpose.

Especially the Geneva Convention. Article four defines who is covered by Article three. Non uniformed combatants are not covered. Nor are those who deliberatly hide among and target civilians.

I agree. And by pretending they are, we are ensuring these practices will spread.

[vnjagvet]

Cecil:

I think you are putting form over substance here.

There is no magic to what you call the body which hears evidence. Even if you call it a court martial, you can give that court martial specific jurisdiction over spies and non-uniformed war criminals or combatants with special procedures to follow in such instances.

So long as the process works and metes out appropriate justice, I do not see nomenclature as a significant problem.

[davis]

Military experience counts for very little when an elected representative is on the wrong side of an issue, even a military issue. Just think of former Senator Cleland and Representative Murtha.

Sen. Graham risks the fate of Sen. Cleland. And there will never be a Sen. Webb from Virginia.

[owl]

Wrote one of my 5 page rants and erased. Since I use to like Graham, I have watched.

I would not trust him today to polish the silver. Personal...probably. And yes, McCain replaced Hagel with Graham.

[davis]

Sen. Graham might as well be a Democrat, even though he did vote correctly on stem cell so-called research, unlike many of his colleagues.

[cathyf]

The fundamental flaw in the position of Graham and all of his predecessors in granting Article 3 privileges to unlawful combatants is that they treat the Geneva Convention as being an agreement among combatants. But non-combatants are also parties to the treaty -- in exchange for combatants agreeing to eschew certain devastating-to-civilans battle practices, non-combabtants agree to give up certain privileges that they have had for time-immemorial. The right to loot the dead and dying on the battlefield. The right to torture and/or kill enemy combatants whenever they happen to fall under the power of civilians.

If Graham succeeds in restoring the rights of unlawful combatants to commit war crimes without punishment, then I want to reclaim my rights as a civilian. If all us civilians are regaining our natural-law rights to torture and kill the denizens of Gitmo, then here's what I want: Every week, a prisoner gets chosen. He is stripped naked, hogtied so he can't even wriggle, dropped in the blazing hot sun on a fire ant hill. There he is left to die, slowly, in agony, of thirst and exposure. All on pay-per-view.

The Geneva Convention isn't just about protecting civilians from combatants. It's about protecting combatants from bloodthirsty, revenge-minded civilians. The 519 guys in Gitmo don't just represent 519 individual bilateral disputes each between one guy and the US government. Each one of them is guilty of crimes against all of humanity, and Lindsay Graham and the US Government have no right to be magnanimous in granting them Article 3 privileges without my consent and the consent of every single one of the other 6 billion people who are the victims of their crimes.

Before allowing unlawful combatants to "go medieval" without penalty, you better realize that once you have done that you have no more moral claim to prevent the other ~6 billion of us from "going medieval" too.

cathy :-)

[Sue]

Graham and the SCOTUS have emasculated the intent of the conventions.

One that was rejected by Reagan and every president since. And the NYTs and WaPo applauded his decision at the time. Go figure. ::grin::

[JM Hanes]

vnjagvet:

I've liked Graham since the impeachment days myself. He was one of the few people involved -- on either side of the official debate -- who never stooped to the kind of personal and political mudslinging that characterized the lion's share of public dialogue at the time.

I'm also glad to have your take on the alternative Graham is pursuing. I was disturbed by the President's initial executive order on special tribunals. I realize it was later refined -- as it decidedly needed to be -- although the very fact that a President could make such substantive changes at will is, in itself, worth contemplation. I'm still uneasy about allowing the President, on his sole authority, and on nothing more than his personal say so, to designate someone for the tribunal track. I was certainly not encouraged by the Padilla case, when, as few seem to recall, the White House originally asserted that extraordinary provisions would not apply to US citizens.

In most of the cases that are conceived as illustrations, I expect the President would be relying on recommendations from the military, in the first place. While I see no reason to mainstream combatants into US Courtrooms, I haven't heard anyone really explain why Military Justice, as already conceieved, is insufficient to deal with captured combatants. If the Uniform Code is, in fact, deficient in some respect, then we should be addressing the Code itself.

I personally suspect, however, that the Executive was actually anticipating needing or wanting to handle terrorists who were not, in fact, captured on the battlefield or in the course of military operations, but brought in by a variety of law enforcement and, perhaps, intelligence officials. This aspect of the issue has received almost no discussion at all.

We're talking about a war that is going to continue for a very long time, through multiple administrations, and I believe we would all be wise to press for as much clarity -- and explicit codification -- as possible. Our legal system was designed primarily for the discovery and punishment of malefactors. We have now tasked it with the prevention of serious crimes, and while the (controversial) Patriot Act has expanded the range of tools available for doing so, many of us have yet to realize the enormity of change that shift in purpose represents.

[JM Hanes]

davis:

"Sen. Graham might as well be a Democrat, even though he did vote correctly on stem cell so-called research, unlike many of his colleagues."

Then you'll be pleased to learn that Graham is also one of a handful of lawmakers who has been quietly pushing legislation, at both state & federal levels, which incrementally establishes the unborn as legally recognized entities apart from their mothers -- in anticipation of a challenge to Roe v Wade, of course. It's one of the things I like least about his particular agenda, but it's certainly not something you'd find even a closet Demorat undertaking.

[Terrye]

Cecil:

I meant right as in politics. I have no problem with taking those terrorists out and shooting them myself, but it seems to me that Graham is sincere here. It also seems to me that a lot of conservatives have had no problem at all deserting Bush when it suited them to do so. So why give Graham a hard time about that?

Read the original post, there was a reference to deserting Bush. That was what I was responding to.

I think that some people are making this worse than it is. So far as I know, no one is talking about turning anyone lose here.

[Sue]

Terrye,

In your original post, you painted with a broad brush. You don't know which way those making comments today swung when Miers was the issue.

[Cecil Turner]

I think you are putting form over substance here.

I disagree completely. A quick perusal of Quirin and Yamashita demonstrates a tribunal differs from courts martial in the applicable rules of evidence, treaty requirements under Geneva, some due process considerations, and safeguards for the accused in regards to sentencing and review. Further, it is exactly those considerations that lead proponents to prefer the court martial approach. Graham:

“Do they deserve, the bad ones, all the rights that are afforded? No. But are we required to do it because of what we believe? Yes.”

These are practical, and substantive, issues. Not form.

Even if you call it a court martial, you can give that court martial specific jurisdiction over spies and non-uniformed war criminals or combatants with special procedures to follow in such instances.

This is true, but my reading of the arguments suggest the driver toward court martial jurisdiction is precisely to adopt standard court martial procedures that afford greater--and undeserved--protections for the accused. And in particular, that is Graham's argument in a nutshell. If you want to limit protections (counsel, etc.) to those congruent with Quirin, Yamashita, et al, we are in complete agreement . . . with the Administration. If we're talking about changing the system, I think the proponents have the burden of demonstrating the need, and so far I find the arguments underwhelming.

I meant right as in politics.

I know. That was an attempt at being facetious.

Read the original post, there was a reference to deserting Bush.

Those references, as the "resisting Bush" in the current piece, are from the usual liberal journalist sources. If there's a conservative cabal trying to punish Graham's free thought, I'm not seeing it. And frankly, my support for Bush is mainly based on defense strategy. If he'd embraced courts martial for unlawful combatants or status tribunals prior to detention, I'd be just as critical of him.

[Rick Ballard]

I doubt that I'll ever agree with John Dean again, but his assessment of Graham's game concerning the legislation that should have kept Hamdan from the Supreme's hands has a ring of veracity. He is a very, very flexible politician. One of only a few who voted for and against impeachment. He does project his principles with utmost sincerity, there is no question about that.

[vnjagvet]

If Dean's recitation of the facts is accurate, I will have to reevaluate my opinion of both Senators Graham and Kyle.

[maryrose]

JMHANES;
I agree wholeheartedly with the legislation Graham is working on at the state level..it's going to resolve this dilemma ultimately.
I'm grateful for Graham's timely question during the Alito hearings..it won the day and put Schumer and Kennedy on notice.

[Rick Ballard]

Vnjagvet,

Dean makes clear that he's just 'revising and extending' remarks made by Emily Bazelon in Slate - she has a link to the C-Span tape. I don't consider the inserion in the Record to be a big deal but crossing your fingers when you sign off on an amicus brief to the SC seems a little much.

He really does project sincerity very well. I've seen very few do it better.

[JAZ]

I thought the whole reason why military commissions had to be formed was because the SCOTUS held that we could not hold enemy combatants indefinitely.

The whole concept that someone could be found not guilty in a military commission and could still be held indefinitely seems ludicrous to me.

I have a hard time imagining President Hillary Clinton explaining to President Chirac or her fans in Europe or Amnesty International that notwithstanding a not guilty verdict from a military commission or a court's martial, it is okay to hold someone for ten years while the GWOT goes on. It's so unrealistic, simply stated it ain't gonna happen.

And for that, I'm totally aggravated at Graham for even thinking of putting terrorists who don't wear the uniform on an equal footing with our soldiers who do, and for playing patsy to the Clinton's and Schumer's who are looking for an easy out on this one.

Am I wrong here?

[Cecil Turner]

Am I wrong here?

Depends on whether SCOTUS goes farther off the deep end in future cases. </snark> But the current state of the law is that a combatant can be detained until the end of active hostilities. And again, Quirin is the most definitive:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Hence if a detainee was tried by tribunal for being an unlawful combatant, and found not guilty, it'd in effect raise his status to "lawful combatant" and he'd still be subject to detention for the duration (and entitled to POW status). On that narrow point, Graham is on fairly firm ground.

[fishbane]

OMG. When can we start Sullivan him? He's so not one of us. I'm so totally not linking to him. And invites? sha.

[Bruce Hayden]

Most of the Gitmo detainees will never be tried. They are still there because we don't know what to do with them. We aren't going to release them, just for them to show back up on the battlefield, and for many of them, their native countries are known for human rights violationis (whatever that means).

But the obvious solution is to ship them back to Afganistan, because that is where they were mostly found. And then, let the Afgani government do what it wants with them - which in some cases might not be very pretty.

The difference between when we seized them and now, is that there is now a fairly stable government in that country, that we can trust with detainees, and they have the same incentives that we do that any released detainees not show back up on the battle field.

There are those detainees who most likely are war criminals, and they need to be tried. But again, we don't have to be the ones doing it.

Indeed, if the President wants to light a fire under Congress and get legislation he can live with, he just has to start serious talks with the Afgani government about this. This will so panic Congress, and, in particular, the libs there, that he will most likely get whatever he wants.

And the logic is inescapble - who better to try guys caught fighting us in Afganistan than the Afganis?

[Rick Ballard]

There is always the option of paroling them to their home countries wearing tracking devices. That, or releasing them a few at a time, with ceremonies involving handing over $5,000 in cash and very vocal thanks for all their cooperation.

I favor the second option. Let al Queada take care of its own.

[owl]

Graham... Will let Powerline do my talking on this one. They have a cartoon up today.

My disgust with Graham was cemented at the Abu Graib Hearings. Only one hero emerged from that fiasco....Sen. Inhofe.

If I want 'touchy, feely', I go to the master....Bill Clinton.

[John Loki]

I thought the article was going to be about Lindsay Lohan and Hillary Duff.

[cathyf]

There are those detainees who most likely are war criminals, and they need to be tried.

Given the almost 6 year process that has been going on, the group at Gitmo are probably almost all war criminals. First of all, there are the UCs picked up on the battlefield in Afghanistan. They have been through a sorting-out process there before they ever got on an airplane. In the first months of the Afghan campaign there were lots of prisoners and the need to get them out of the theatre of operations, so there were some significant "fog of war" problems. But that was years ago -- more recently the only prisoners moved out of Afghanistan have been the ones that we had pretty high confidence that they were high-value war criminals. And then there are the individual terrorist high muckety-mucks that the CIA has picked up by the ones and twos all over the world. We know exactly who those guys are and what they did. And then there is the interrogation and weeding-out process that has happened, at some leisure, at Gitmo itself.

The detainees are not just some random sample of guys detained in battle. They have been scrutinized and sorted over long periods of time. Hundreds have been released because we decided that we had the wrong guys. And we're obviously using a somewhat risky standard, because some of the guys we've let go have shown up back on the battlefield.

No, this crowd has been extensively winnowed and culled. Certainly humans make mistakes, and there may be some handful of non-war-criminals among the 500-odd detainees. But most of them are guilty, and should be tried by Quirin-style military tribunals, and then executed. A few may be found to be lawful combatants, and another few found to be non-combatants. The lawful combatants (POWs) should be moved to where the other POWs of their country are being held, and released whenever they are released. The non-combatants should be released immediately.

One of the reasons that terrorism works is that we get all squishy on punishing individual war criminals once that individual war criminal is no longer an immediate and direct threat. We've got to get it together as a society and start ruthlessly disposing of the war criminals. Sure, we need to make sure that they are really unlawful combatants, but once we are sure, we need to execute them and get on with it.

cathy :-)

[Cecil Turner]

There are those detainees who most likely are war criminals, and they need to be tried.

Any of the persons who've participated in combat operations without complying with the appropriate Geneva requirements (which AFAICT includes all Al Qaeda members and pretty much anyone who fits the criteria for Gitmo detainees) are unlawful combatants, which is synonymous with "war criminals."

And the logic is inescapble - who better to try guys caught fighting us in Afganistan than the Afganis?

If this were a common criminal matter, that would be correct. However, if the assertion is that these individuals have violated the law of war whilst fighting the US, the offended party is us, and the appropriate venue is a US military commission. Again from Quirin:

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.

And again, this sort of thing has literally centuries of precedent. I'm not sure why we need to reinvent the wheel in an effort to avoid our perfectly legitimate wartime responsibilities.

[SmokeVanThorn]

If Dean is correct, why was there any need for the majority's toe dance on Supreme Court jurisdcition over the case?

[steve]

I can see only two important operational issues here: 1) Are we legally allowed to interrogate prisoners? and 2) Does the military have unfettered discretion about when to release any given prisoner?

If the answer to these two questions is yes, then I would advocate holding these guys for as long as we want and never bringing them to trial. It was never clear to me why the Administration wants to try them in the first place.

If there is interference with either of these two propositions, then we have a big problem. Currently, we let people go whenever we feel like it, based on some administrative process. No trials necessary. But if some bad guy gets to demand a trial to get released, and that trial uses court martial standards to determine the validity of confinement, I get very nervous.

[Dave]

Point out where Graham is wrong. Then you can impugn his motives.

All right, fine. The idea that enemy combatants should be subject to our military code of justice is absolutely asinine. It confers rights upon them that they do not deserve and are absolutely not entitled to. On top of that, Graham's argument that it's going to impact how the enemy treats our soldiers when they're captured adds a whole new level of asininity. Does he actually think that terrorists that capture American troops are going to say, "Wait a minute now, they're treating our guys under the military code of justice, we can't just saw his head off! We'll have a fair and just trial under the rules of the Koran. Let's see...he's an infidel. Now we saw his head off!" We're fighting a war with an enemy with zero regard for the rules of war and yet we're supposed to act like we're still marching two armies up to each other so they can fire muskets in each others' faces. It's great Graham has all this UCMJ experience, but it hasn't helped his common sense one bit.

[p.moreau]

I don't agree with his party affiliation and some of his policies but Graham is principled and will go beyond partisan politics. This is an important guy to watch as his continues his political career.

[Judy]

Graham is principled on this issue of the tribunals. His experience as a military lawyer and judge is why I trust him.

He has taken hits for his principled position on tribunals and other matters.

As to the comments inserted in the record, I do not think what he did was anymore of a problem than when anyone else does it because everyone submits comments to the record. Carl Levin's comments were also inserted. The only reason we kick Graham is because his reading of the law was different than everyone elses. They agreed on language and not necessarily interpretation.