A Dangerous Order

A must read editorial at The New York Times regarding the new law on military tribunals. I do not always (and that’s putting it mildly) agree with the editorials at the NYT, but this truly is a magnificent one.

Once President Bush signed the new law on military tribunals, administration officials and Republican leaders in Congress wasted no time giving Americans a taste of the new order created by this unconstitutional act.

Within hours, Justice Department lawyers notified the federal courts that they no longer had the authority to hear pending lawsuits filed by attorneys on behalf of inmates of the penal camp at Guantánamo Bay. They cited passages in the bill that suspend the fundamental principle of habeas corpus, making Mr. Bush the first president since the Civil War to take that undemocratic step.

Not satisfied with having won the vote, Dennis Hastert, the speaker of the House, quickly issued a statement accusing Democrats who opposed the Military Commissions Act of 2006 of putting “their liberal agenda ahead of the security of America.� He said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives� and create “new rights for terrorists.�
[...]
In the short run, voters should see through the fog created by the Republican campaign machine. It will be up to the courts to repair the harm this law has done to the Constitution.

New rights for terrorists? Am I missing something here? They had me thinking that the ones actually changing the law are those who supported this dreadful bill as opposed to those opposing it.

I already spend some attention to this law today, so I will not write more about it here; I just wanted to encourage you all to read this editorial.

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Author: michaelvdg

  • Randal

    Im scared, MvdG can i come live with you in holland?

    randal

  • http://www.themoderatevoice.com Michael van der Galien

    LOL!

  • AustinRoth

    I have previously stated my objections to this law, and still think it is one of the worst Congressional actions ever, but for those who wish to at least read a coherent rationalization in favor (by the infamous John Yoo, no less), this link provides some good discussion points:

    Sending a Message

    I also wonder if this initial reaction by the Justice Department, along with other potential follow-ups driven by this law, are the basis of the October Surpise hinted at by Rove.

  • Captain Comeback

    How does John Yoo sleep at night?

  • Rubyeyes

    I feel safer already?

  • Jon

    Not satisfied with having won the vote, Dennis Hastert, the speaker of the House, quickly issued a statement accusing Democrats who opposed the Military Commissions Act of 2006 of putting “their liberal agenda ahead of the security of America.� He said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives� and create “new rights for terrorists.�

    Well, if they are terrorists, then put them on trial. then we wouldnt have to worry about pampering them with silly fundamentals like habeus corpus or right to trial. I thought all civilized people had at least agreed upon that in social contracts.

    Just because we may view terrorists as uncivilized, doesn’t mean that we get to have different set of rules for “civilized” and “uncivilized” people. In fact, it might be considered “uncivilized” to seperate people in that manner.

  • C Stanley

    I hate to agree with Yoo, but I do think he makes some good points: mainly, on his argument that the decision about giving rights to habaeus corpus to detainees should be made by the Exec and Legislative branches, not the Judicial. My opinion is that the bill is bad and that they made the wrong decision, but I do think the decision should have been theirs and not the court’s.

    I also think that the historical precedents are largely ignored in the current debate (that combatants were never seen as having these rights before). That doesn’t mean that they shouldn’t, but it is still true that we haven’t overturned precedent, just failed to correct it.

  • Truflo

    From reading a transcript of Bush’s interview with Bill O’Reilly, he still insists that those held in GITMO were taken from the battlefield.

    As we now know, and have done for some time, the vast majority of those being held were handed over to American soldiers on foot of a bounty being paid.

    That someone this delusional now has the power to label anyone anywhere an enemy combatant, is truly scary.

    That their are respected commentators willing to justify this, is beyond explanation.

  • C Stanley

    As we now know, and have done for some time, the vast majority of those being held were handed over to American soldiers on foot of a bounty being paid.

    That someone this delusional now has the power to label anyone anywhere an enemy combatant, is truly scary.

    Truflo,
    This is the part that I find most disturbing, too. If it were just about the known combatants being denied rights, I still wouldn’t agree but I would at least feel that this was in keeping with historical precedent and I can see some logic/justification to it. But knowing the circumstances of how the detainees were captured is very disturbing and puts a whole other dimension on it.

  • Truflo

    C Stanley,

    Its bizarre isn’t it- those on the right defend the bill on the grounds that it will help protect citizens and will only ever be used against terrorists (Oh, and by the way, we get to say who is or isn’t a terrorist. Did we mention that?).

    The similarities between Bush’s Detainee Bill of 2006 and Hitler’s Enabling Act of 1933 are extraordinary and frightening. Once a system of justice is compromised, those administering it can never be trusted again.

  • Kim Ritter

    That their are respected commentators willing to justify this, is beyond explanation.

    Truflo- I guess that would be true if you considered Bill O a respected commentator. I left the “No Spin Zone” a long time ago when it became apparent that that definition did not fit. If American viewers truly want a nonpartisan approach try Lou Dobbs-he fits the definition so much better than O’ Reilly and his war on Christmas!

  • AustinRoth

    Truflo – you bring up my biggest fear about this bill.

    Never, in the history of law or governance, have laws or powers NOT been expanded beyond their original intent to be applied to the maximum number of circumstances imaginable.

    We need only look to recent history with RICO, asset forfitures, even supposedly benign things like traffic flow cameras, to see examples of prosecutors and elected official twisting ideas to be used specifically where it was said they never would be when initially introduced.

    It is unfortunate to bring up any analogies to Nazi Germany, both because of Godwin’s Law and the reflexive reactions that cuases, but the statement in another thread about this relating to the appeasement and inaction of the masses leading to totaltarion powers is a historically correct one.

  • AustinRoth

    Correction – it is no longer a bill. It is now the law of the land.

  • Sylny

    Here’s another point to keep us awake at night:
    The NY Times editorial says the law doesn’t apply to American citizens, but Jonathan Turley, a constitutional law professor at George Washington University, said something very different a couple of nights ago on MSNBC:

    Keith Olbermann: The act lists one of the definitions of an unlawful enemy combatant as “a person who, before, on, or aftgr the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a combatant status review tribunal or another competent tribunal established under the authority of the president or the sectretary of defense.”

    Does that not bsaically mean that if Mr. Bush or Mr. Rumsfeld say so, anybody in this country, citizen or not, innocent or not, can end up being an unlawful enemy combatant?

    Turley: It certainly does. In fact, later on, it says that if you even give material support to an organization that the president deems connected to one of these groups, you too can be an enemy combatant.

    So which is it? Can I, a native-born American citizen be disappeared without due process, or can’t I?

    And isn’t it troubling that this is all so ambiguous?

  • Ryan

    Kim, to some, Bill O is still a respected commentator. Just because you don’t respect him doesn’t mean there aren’t a lot of people out there who do respect him.

    I’d take Sylny’s comment one step further. Haven’t we already had at least a couple of cases of citizens being named enemy combatants? If this applies to all enemy combatants, as I understand it does, then we already have the precedent to show it can and probably will be used against citizens.

    Heck, with the knowledge that enemy combatants are being secretly detained, how are we possibly supposed to know that there aren’t citizens right now being subjected to this new law?

    This law frankly scares me. It seems to me that it flagrantly violates the Constitution itself but, even more scary, the potential for abuse that would be unknown to all but a few people is extremely high.

  • http://www.themoderatevoice.com Michael van der Galien

    Ryan: great comment.

  • BeYourGuest

    If you look at the signing statements–tired rhetoric about putting “their liberal agenda ahead of the security of Americaâ€?–it’s obvious that this whole folly is intended to serve short-term political goals, because they’ve got nothing else to take to the voters.

    Good-bye Magna Carta, hello election we can, at best, barely win. And if they lose anyway and the other side tries to repeal this they’ll have an issue to spin.

    That’s what gets me.

  • Tommy

    All right libs. Stop the complaining and tell me what you would do with the Gitmo detainees.

  • Kim Ritter

    Kim, to some, Bill O is still a respected commentator. Just because you don’t respect him doesn’t mean there aren’t a lot of people out there who do respect him.

    Ryan- Yes, there probably still are those who respect him-but if he publicly approves of this type of legislation-won’t that call that respect into question? Just as many are questioning a lot of what Republicans and their supporters have been feeding us for the last six years.

  • Elais

    Tommy,

    How about this? Actual trials. The detainees would get to challenge their imprisoment and have the means to prove themselves innocent.

    The innocent get set free, the guilty go to jail.

    Justice for all, what a concept? Too bad Bush doesn’t believe it anymore and convinced his lickspittle republicans to believe him.

    You give the impression that libs want to free all the detainees, give them a thousand bucks apiece and a free trip to the country of their choosing.

    Get a grip, man. Liberals want JUSTICE, not the kangaroo court Bush seems to think is hunky dory.

  • Pug

    I think a lot of people don’t yet realize that this law gives the President of the United States the right, with the rubber stamp approval of some of his subordinates, the right to lock up an American citizen without access to a lawyer, a hearing in court or contact with the outside world. It is almost sure to be abused, if not by this president then a future president.

    It amazes me that so many are so willing to meekly give up their most basic right because they are scared little weenies. In America, no man should have the power to lock away another citizen. Conservatives will rue the day they supported this law.

  • AustinRoth

    A good response to the John Yoo article I linked earlier (hat tip – Volokh.
    John Yoo on Court-Stripping

  • AustinRoth

    And Tommy – I am anything but a lib on national security issues, but this goes so far above and beyond.

    Have you seen the movie ‘V for Vendetta’? You do not give up your basic personal freedoms for security without destroying the bedrock principles of our society, and you do not deliver the tools of oppression to ANY government without maintaining complete, independant oversight. Unfortuntely, we have just done that.

  • Tommy

    AustinRoth,

    A good response to the John Yoo article I linked earlier (hat tip – Volokh.

    OK. More criticism of Bush. Nothing that I haven’t heard before. Now exactly what do you want to do about terrorist detainees?

    Have you seen the movie ‘V for Vendetta’? You do not give up your basic personal freedoms for security without destroying the bedrock principles of our society, and you do not deliver the tools of oppression to ANY government without maintaining complete, independant oversight. Unfortuntely, we have just done that.

    I’m not into movies that glorify terrorism, thank you.

  • Tommy

    What would happen if we treated terrorist detainees like ordinary criminal suspects?

    The accused in U.S. criminal courts have the ability to call anybody involved in the handling of the evidence of their case before the court. There are no real secrets about how that evidence is gathered once the case goes to trial. A forensic investigator cannot conceal the methods they used in analyzing evidence, a detective cannot refuse to explain how he or she gathered their evidence, and an undercover agent must reveal everything that is relevant in regards to gathering evidence as well as revealing their identity. At least, not if they want a conviction. A suspect in such a case can gain full knowledge as to the whens, wheres, and hows of the evidence against them. The suspect can question all those people involved in the investigation of their case as to the nature, reliability, methodology and circumstances of the evidence that implicates them.

    In major undercover investigations, such as the “Donnie Brasco” case, once the cover of the officer(s) is blown, he or she cannot participate in future operations. In fact, that agent is generally placed in the witness protection program indefinitely for their own safety. The undercover officer cannot involve him- or herself in other operations while criminal cases are ongoing. Court cases are time consuming, meaning the agent in question won’t be doing much of anything while the trial proceeds.

    To give that same right to terrorist detainees would mean that CIA case officers, foreign citizens employed by the CIA, military intelligence personnel, and others would have to testify against detainees in court and answer questions about the methods and tools they used to gather the intelligence that implicates a terrorist suspect.

    Once the identity of the people involved in an operation is revealed, their cover is blown, and they cannot engage in future intelligence operations. Since the CIA is far more secretive than the FBI, this would mean many more personnel would have to be removed from service in the event that terrorist suspects were called into court. During the proceedings, most of these personnel would not be able to handle any other duties. In fact, they would have to be removed entirely from the countries they ordinarily operate in to attend a court case in the United States. If those CIA operatives were involved in other operations, such operations would likely have to be aborted.

    The methodology and technologies used in domestic undercover operations are well-known. There is nothing particularly secret about the tools used to gather evidence in a domestic criminal case, only in how they are employed in the particular instance. We all know that, in addition to using police posing as criminals, police also employ audio and video surveillance with bugs, wiretaps, and hidden cameras. In the case of the CIA, the technologies employed are frequently secret. Compromising those technologies even a single time can have substantial implications in all operations where those technologies are employed around the globe.

    Since we exchange intelligence with other agencies, and since there isn’t a snowball’s chance in hell that those agencies will allow their personnel to testify in U.S. courts, undoubtedly quite a bit of evidence against many terrorists would be either inadmissible or simply not very convincing to a jury in a U.S. court.

    Also, many foreign nationals are employed by the CIA in gathering intelligence. Since their identity would become known in court they would be put at risk. The United States would have to provide for their removal from the countries they live in. Such individuals would not only be at risk from local terrorists, but would be at risk from their own national intelligence agencies. Most foreign intelligence agencies don’t like the idea of our CIA recruiting from their population and it doesn’t take much imagination to figure out what the consequences might be for a Pakistani national and his family if Taliban and al-Qaeda sympathizers in the ISI discovered his identity. Also, any individual who was providing information on a continuous basis would be of no future intelligence value from that point forward.

    Needless to say, the knowledge that a suspect would either have to risk endangering his or her family’s lives or relocate to the United States abandoning their extended family and friends to move to an entirely new country will also seriously dampen our recruitment efforts in that area.

    Perhaps some people think that rules could be put in place allowing for secret trials during which the CIA personnel testified under assumed names. However, it seems almost certain that indirect information about such individuals’ identities would be revealed in court once lawyers got to questioning CIA officials. The only way to prevent such information from leaking out of the courtroom would be for terrorist suspects (whether convicted or not) never to talk to anyone who might pass that information along to the wrong people. It would demand absolute integrity from all lawyers in the case. Integrity from lawyers? Don’t bank on it. The jurors also could not reveal such information to anyone. If a foreign intelligence agency got wind of such information, they might very well be able to identify the agent in question and that might put lives in danger. Needless to say, our CIA was designed to gather foreign intelligence, not to work inside our domestic justice system. Having CIA personnel going to court constantly would seriously diminish our ability to gather intelligence.

    What you have is effectively a recipe for entirely destroying the human intelligence component of the CIA at a time when we are in greater need of such intelligence more than ever. The destruction of our human intelligence component in the post-Cold War world will already probably require another decade or two to fully recover from. Yet, I don’t hear the Dems proposing many other alternatives to tribunals other than proposing we treat terrorists like ordinary criminal suspects. I guess the Dems really do view this entire issue as a matter of law enforcement. Not a very bright approach, in my opinion.

  • Ryan

    Yes, there probably still are those who respect him-but if he publicly approves of this type of legislation-won’t that call that respect into question?

    Kim, see the reply directly above yours. Especially where I live, one of the most Republican counties in the country, I see plenty of opinions like Tommy’s.

    Tommy, is there a reason you’re opposed to even a basic trial and the opportunity for an accused person to prove their innocence? Nobody is saying set terrorists free, what we are saying is that any accused person should have the right to prove their innocence before being locked up for life. Believe it or not, we have captured innocent people. One was even a United States citizen captured within the United States based on a mistaken identity. What if he would have been locked up secretly and never been given the opportunity to prove his innocence? He would have spent the rest of his life in Gitmo because he was guilty of nothing more than having a name that resembles that of a terrorist.

  • Tommy

    Ryan,

    Tommy, is there a reason you’re opposed to even a basic trial and the opportunity for an accused person to prove their innocence? Nobody is saying set terrorists free, what we are saying is that any accused person should have the right to prove their innocence before being locked up for life.

    Did you bother reading my last post and do you have any solutions for the problems I presented? What do you mean a “basic trial?” You’ve got trials and you’ve got tribunals. Is this “basic trial” you are proposing some sort of debased version of a regular trial? What is the nature of this “basic trial?”

  • Ryan

    Tommy, so the answer is to not allow any opportunity to prove their innocence? The answer isn’t to establish rules different than those of the domestic court system but to rule out any opportunity for a wrongly accused individual to refute the evidence against him or her and prove his or her innocence?

  • Tommy

    Nobody is saying set terrorists free,

    That is the meme you all keep repeating, but you’ve all so far failed to answer the question of how you win convictions while not compromising our foreign intelligence services.

    Are we going to allow “because the CIA says so” as valid evidence in a “basic trial?” Are you going to make it so the suspect won’t get to inquire any further into the intelligence implicating him and call that “fair” instead? And if they do get to question the CIA, how are you going to shield the CIA and allow them to do their job while allowing for such trials?

    Do you people ever give any thought to how such trials will proceed when much of the evidence is gathered from our intelligence services who can’t afford to be dragged down in court battles? Doesn’t seem like it.

  • Tommy

    Tommy, so the answer is to not allow any opportunity to prove their innocence? The answer isn’t to establish rules different than those of the domestic court system but to rule out any opportunity for a wrongly accused individual to refute the evidence against him or her and prove his or her innocence?

    I thought Nuremburg was just and I believe tribunals in this case are just. I guess you would have the CIA do exactly what I outlined? You basically believe the CIA should act like a law enforcement agency? Do you understand that we will not have a functioning CIA if that occurs?

    Why can’t anyone here answer my questions directly?

  • Mikkel

    Tommy a couple things. First of all I admit I am ignorant about this, but I do know that there are some mechanisms for addressing your concerns. After all, we’ve been using CIA related evidence in trials for decades. However I can see the validity of your points. The problem is that suspects have absolutely no recourse in a civilian court. Pre-trial rules are extremely different than during the actual trial. For these the defense has an opportunity to convince the judge that the evidence is so lacking there is no possible reason to have a trial in the first place. I’m not oppossed to military tribunals where the proceedings are secret and that have different rules about facing your accuser, etc. However, as the law is currently written, it’s possible for the suspect to not even know what evidence is being presented at all. The least they could do is submit the evidence against the suspect (without anything about how it was collected/who collected it) and let the defense attempt to refute it. This would be similar to the pre-trial in a regular court.

    If a civilian judge was convinced the evidence was good enough, then he would send it to a military tribunal and let them run it.

    You’re also missing the point of the current bill. The Supreme Court has never required access to the domestic legal system for the trials, they said the tribunals sufficed. What the lawsuits are about is detainee mistreatment and that the suspects have no way to challenge the evidence presented against them (specifically “evidence” obtained under “interrogation”). The Administration is scared that in a civilian court, the interrogation methods exposed will break national/international laws and the suspects will be able to seek legal recourse. That is entirely what the bill is about — hiding the actions of the Executive.

    How would a judge getting a summary of the evidence and letting the defense attempt to refute it before making his decision hurt anything?

  • Kim Ritter

    Ryan- Yes, Well maybe you’re right. My brother-in-law thinks he walks on water, because he excoriates liberal judges and academics on his show. He’s Jewish, but he even argued in favor of O’Reilly’s ridiculous war on Christmas! Luckily we don’t go up there that often, LOL!

  • Tommy

    The problem is that suspects have absolutely no recourse in a civilian court.

    Which, for non-citizen terrorists, is the way it should be.

    Pre-trial rules are extremely different than during the actual trial. For these the defense has an opportunity to convince the judge that the evidence is so lacking there is no possible reason to have a trial in the first place.

    I’m curious as to what Dems would say if they got their way and mistakes concerning the release of information are made. What will happen when we inevitably wind up compromising our CIA personnel overseas in this way? What will happen when we wake up one morning to discover that a bunch of our people have been arrested in Pakistan for spying for the CIA because some dumbass bureaucrat at the CIA or court judge made a bad call and let the wrong information leak out. I’m the son of an engineer and like most engineers, when it comes to reliability, I generally prefer solutions that are safe and simple to implement. I don’t like solutions that have too many moving parts.

    I think few liberals understand just how difficult intelligence work is and how long it really takes to rebuild our human intel overseas when we take a hit. I think they believe that if we just throw more money at the problem and somehow things will work out and work out in a timely fashion. They don’t fully comprehend how irreplacable are intelligence assets overseas are and that if we take a serious hit our intelligence in a particular country can be seriously weakened for decades.

    With ordinary trials there will be hundreds, if not thousands, of opportunities for our intelligence agencies to take those hits. One mistake could spell disaster for our people. So many Dems apparently don’t give a damn. I’d prefer to keep our CIA well insulated from the domestic legal system when it comes to matters of foreign intelligence gathering. Doubly so in an era with so many politically active moonbat judges.

    The least they could do is submit the evidence against the suspect

    What is evidence? Often the evidence itself says something about how it was gathered, who gathered it, and what technology and methods were employed to obtain it. Again, court evidence is of minimal value if its reliability cannot be investigated. Allowing terrorist suspects to investigate the reliability of evidence brings us back to the problem of how you manage to insulate the CIA while dragging them into court at the same time.

    Besides, anything less than full disclosure will not shut most of the critics up. Secret evidence laws in effect now, applied in much more limited circumstances (and usually concerning evidence from the FBI’s domestic counterintelligence wing rather than foreign CIA), have come in for all the same criticism from the same people angered by tribunals.

  • Randal

    OMG tommy for once i agree with you. Honestly i dont believe in giving foriengners any rights inside the constitution mainly because they arent citizens. I mean i believe in geneva convention and all but for christ sake im not going to treat someone who hates america, never payed american taxes, and arent citizen the same as tax paying citizens law abiding or not. Now heres where i disagree.

    Bush’s new law has now made it so any american CITIZEN can be detained without the rights GRANTED and GUARENTEED to him/her by the CONSTITUTION that PROTECTS them FROM GOVERNMENT.

    So to recap: I do not think non-U.S. citizens should be given the same luxuary of wasting court time and money and investigation time and money that they dont even pay for in taxes. But i also do not believe that an american citizen can be treated in anyway but described by the constitution. If an american citizen commits “terrorism” against america, he/she is guilty of treason. You wont give any international secreats or opratives away because its against the CIA and other intelligence agencies charters to operate inside the united states. So if it takes a CIA spie to put you behind bars, then the CIA just over stepped its bounds and you should be tried in the first place.

    I will never put any foriegner (sorry MvdG :-P) above a citizen when it comes to rights inside american boarders. Im a nationalist but not an extremist. I dont believe in the american empire or imperialist goals, i just simply love my country and i hate to see the people which embody this great country suffer the tyranny of government. And thats exactly what this bill is, and ill be the first to call it that.

    THE BUSH ADMINISTRATION HAS NOW SIGNED INTO LAW THE TRYANNICAL STATE OF BUSH. congratulations tommy, you have your dictator.

    always a student,
    randal

  • Ryan

    Tommy, Mikkel hits on the points very well.

    The problem now is that accusers never have the opportunity to even know what evidence is being used against them and refute it. To take the mistaken identity example, the government said the guy was in Jordan meeting with a terrorist when he was really in Oregon. If the “evidence” against him is that he was in Jordan but he can prove he’s in Oregon, he needs to know nothing about how the evidence was obtained or even who obtained that evidence. All he needs to know is what it is so he can prove that it is false.

    The issue isn’t that they aren’t receiving civil trials. The issue is that they have no rights at all. It’s within the bounds of this law that they could be held with no opportunity to learn what basis they are being held on and with no opportunity to refute it. If you are picked up off the street tomorrow, not only can’t you learn how the CIA gathered evidence against you, you can’t even learn what evidence it is. If they are “nice” enough to tell you what the evidence is, say they tell you that you were in Pakistan meeting with OBL today, you are not only not given the right to know how they obtained that information, which I understand and agree should not be given to just anybody, but you aren’t even given the right to prove that you were at work posting on TMV and couldn’t have possibly been in Pakistan.

    Set more strict standards. Say they don’t have the right to obtain information on who obtained the evidence or how it was obtained. However, don’t take away anyone’s right to know what they are being held on and why they are being held. Most importantly, don’t take away any innocent person’s right to prove that they are innocent.

  • Mikkel

    So what? Because a CIA source might be blown, we just let the government do whatever it wants? The whole foundation of our legal system — nay the whole foundation of the rights laid down by the Founding Fathers — is that it is far better to risk death from external forces than it is to let the government go rampant. We have military lawyers at all levels complaining about the injustices that are being committed, whether it’s the interrogations or the tribunals. Our country is being a collective Sunshine Patriot, we’re turning away from values millions of people have died for because we’re scared. The worst part is that the government is saying that no one has a right to even know what’s going on for our own “safety.” To say this is the favorite tool of despots throughout history is an understatement. I guarantee you that if the government started declassifying everything and told the citizens that it would try to do everything to keep us safe, but be completely open, the tens (or hundreds) of millions of people around the world that care about freedom could pour over all the documents and have a lot better chance of figuring out weaknesses and plots than the current system. Also I find the whole citizen/non-citizen thing complete BS morally speaking (also notice Tommy said “non-citizen terrorists,” the proof someone is a terrorist is that they are being tried in the first place) because of the line “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Once someone is in the care of the United States, these values should apply.

  • Ryan

    Randal, great point. The rules can and even should be different for foreign terrorists. My main concern is that these rules now put forth can and do apply to United States citizens, even those captured within our borders.

    Even if the individual is a United States citizen, I’d say special rules may apply if there is ample evidence that they are involved in terrorism. However, to capture a United States citizen within our borders and secretly imprison this citizen without giving them the opportunity to know what they are accused of or prove their innocence? That is not what the United States is supposed to be about.

  • Ryan

    Mikkel, I’m actually somewhat on the fence when it comes to the citizen/non-citizen issue. Citizens should always be granted the rights of the Constitution, this should not even be an issue. Non-citizens deserve some rights, no doubt. Basically, what I like to consider the rights associated with human decency. However, I think it would be fair to treat a foreign terrorist captured in Iraq or Afghanistan differently than an American citizen captured in Detroit or Seattle. That doesn’t mean we should be able to hold them indefinitely in secrecy without telling them what they are being held for and offering them some potentially limited opportunity to prove their innocence. It does mean we may have the right to be a little more cautious with things like rules of discovery and other such rules that could expose classified information or information critical to the fight against terrorists.

  • BeYourGuest

    Tommy–

    How long should anyone have to rot in jail without a trial?

  • Tommy

    The problem now is that accusers never have the opportunity to even know what evidence is being used against them and refute it. To take the mistaken identity example, the government said the guy was in Jordan meeting with a terrorist when he was really in Oregon. If the “evidence” against him is that he was in Jordan but he can prove he’s in Oregon, he needs to know nothing about how the evidence was obtained or even who obtained that evidence. All he needs to know is what it is so he can prove that it is false.

    Again, seeing there is a problem is different from offering a solution. I can’t imagine a perfect system, but I’m not prepared to go down the road that leads all Gitmo detainees, who will say or do practically anything including claiming they were all brutally tortured, to have their day in a regular American court.

    In the Brian Mayfield case that you mention, the individual was a domestic U.S. citizen. I do oppose any and all provisions of this bill which allow for U.S. citizens to be deprived of their constitutional rights, however, most of the opponents of this bill don’t care exclusively about the rights of U.S. citizens that might be endangered by this bill. In the case of Mayfield, he was released after Spanish intelligence and the FBI determined that the fingerprints on the bag likely belonged to a different suspect.

    Imagine though, that our CIA nabbed the individual who’s fingerprints were on that bag from the Madrid bombings and was holding them in Gitmo. Imagine also that our CIA had gathered the fingerprints and that we were going to try him on some other terrorist incident rather than turn him over to Spain. Would you allow the suspect in question to ask when, where, and who gathered the prints? How much information are you going to allow them to have about the internals of intelligence work?

  • C Stanley

    Ryan,
    I’ve always had a hard time with those arguments though; you wouldn’t actually propose that in a war, combatants who are captured rather than killed in battle should be given a civil trial, would you? I mean at some point, detainees who are caught while engaging in hostile acts shouldn’t receive any presumption of innocence. I am totally opposed to applying those rules under the current circumstances where we have many detainees who were picked up for interrogation when they weren’t “caught in the act” but I do think it’s important to make that distinction and I think that is one point that makes it hard for some people to see the logic of giving any due process rights to the detainees.

  • BeYourGuest

    Tommy is moving the goalposts.

  • Tommy

    BeYourGuest,

    How long should anyone have to rot in jail without a trial?

    Under the Geneva Conventions, if you want to apply such rules to terrorists, they can be held for the duration of the conflict. Given the fact that our war with al-Qaeda will likely be going on for years or decades to come, they could be conceivably held for a very, very long time.

    A tribunal would be much better than allowing them to “rot” (actually they are not so much “rotting” as “bloating” due to being overfed in Gitmo) and if you don’t like the tribunal idea then you’d better come up with a good trial solution that doesn’t compromise our intelligence agencies.

  • Mikkel

    Ryan I agree that they aren’t necessarily obligated to ALL the rights of citizens, but I consider the ability to petition a civilian court — especially about possible human rights violations — “human decency” (for both us and them). Needing a warrant to arrest someone in Iraq or Afghanistan? Not inalienable. Holding someone as a POW for duration of hostilities (as long as the hostilities will “end” i.e. be enforceable through a peace treaty or other set measurement)? That’s OK too. Detaining someone forever without right to have some non-military opinion? That crosses the line in my book.

  • Ryan

    Again, seeing there is a problem is different from offering a solution. I can’t imagine a perfect system, but I’m not prepared to go down the road that leads all Gitmo detainees, who will say or do practically anything including claiming they were all brutally tortured, to have their day in a regular American court.

    And you will note that I never suggested they should have their day in a regular American court. However, they should have the right to prove their innocence in some setting.

    Would you allow the suspect in question to ask when, where, and who gathered the prints? How much information are you going to allow them to have about the internals of intelligence work?

    For the moment, I’ll assume you have yet to see my responses above that address these questions.

  • Tommy

    C Stanley,

    I am totally opposed to applying those rules under the current circumstances where we have many detainees who were picked up for interrogation when they weren’t “caught in the act”

    I could agree with that. I would like to see a separation between those who were captured on the battlefield and those who are being held because they’ve been handed over to us by people in the ISI, for example. I wouldn’t want those in the latter category to get a full criminal trial either, but I would favor more checks and balances to ensure that they aren’t being unnecessarily detained.

    Of course, for those caught on the battlefield, there is always good old “Geneva certified” summary executions….

  • Ryan

    C Stanley, I’ll assume you were typing your response while I offered my take on that. I most definitely agree with you. I’m not saying a terrorist caught in Iraq or Afghanistan should have access to a civil trial in an American court, I’m saying they should have some avenue available to learn what they are being held for and offer proof of their innocence.

    As for an individual being captured in the battlefield, assuming they were captured while fighting and not caught in the crossfire, that person is a prisoner of war, which would make them subject to a different set of rules.

  • Tommy

    Ryan,

    And you will note that I never suggested they should have their day in a regular American court. However, they should have the right to prove their innocence in some setting.

    Some setting, huh? There is a solution if I ever heard of one.

  • Mikkel

    Tommy you can’t execute someone under the Geneva conventions unless they are convicted by a tribunal or are in the act of pretending like they are part of your troops (like spies).

  • BeYourGuest

    Tommy–

    Explain how these tribunals work. I’d especially be interested in standards of evidence.

  • Tommy

    So what? Because a CIA source might be blown, we just let the government do whatever it wants? The whole foundation of our legal system — nay the whole foundation of the rights laid down by the Founding Fathers — is that it is far better to risk death from external forces than it is to let the government go rampant

    Yeah, so what? No biggie if we have no intelligence assets directed against terrorists and who cares if your CIA agents end up being killed in the line of duty. So what? You are a perfect example of the non-seriousness of the other side of the debate when it comes to dealing with terrorists.

    The Founding Fathers did not write our Constitution to protect foreign terrorists but rather to protect American citizens. Again, I oppose this bill to the extent that it involves American citizens, but the complaints from the other side aren’t going to let up because we exclude American citizens.

  • Ryan

    Tommy, some setting allows leeway for others with more knowledge than any of us here to come up with the right answer. Maybe it’s a military tribunal, maybe an international court, maybe something completely new with specific rules to offer the accused the opportunity to prove innocence but also to protect intelligence gathering agencies. Whatever it is, it should be something. Anything. Just locking someone up without any chance to prove their innocence or even telling them what they are locked up for goes against what this country is supposed to stand for.

  • Kevin H

    However, as the law is currently written, it’s possible for the suspect to not even know what evidence is being presented at all.

    Or more crucially, their Lawyers. I agree that this is a serious abuse, probably even worse than the suspension of Habeas.

    Perhaps there is a compromise that Tommy would be willing to agree to. Give all, or pretty much all, of the rights usually afforded to a defendant to their appointed JAG lawyer instead, and make it illegal for the lawyer to share any info deemed classified. The concerns of leaking intelligence is limited severely if you give American JAG officers access to the info, yet at the same time a compotent legal professional is able to make arguments and point out when there is a glaring lack of real evidence.

    As to the Suspension of rights for US citizens… First Habeas. Aritcle 9 section 2 of the Constitution states:

    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.

    This implies that an administration could suspend habeas. However, any instance I can find of when the writ has been suspended has been contested. Since it is contested, it then becomes a consitutional question, which is then open to Judicial review. This would act kind of like a defacto-habeas because your case is still presented before a judge. Now if the Supreme Court when along with one instance of habeas suspension, the question of what would happen to subsequent habeas appeals, I’m not sure.

    Everything else would seem to me to be covered under the “due process” condition of the 5th Amendment, and therefore couldn’t be removed unless the constitution was amended.

    A possible end run around these protections might be some way of revokeing US Citizenship from say, someone who wasn’t born here.

  • Tommy

    Explain how these tribunals work. I’d especially be interested in standards of evidence.

    There are plenty of historical precedents for tribunals. You can read about those conducted by the U.S. military against German POWs and saboteurs during World War II if you are interested.

  • Tommy

    Kevin H,

    Give all, or pretty much all, of the rights usually afforded to a defendant to their appointed JAG lawyer instead, and make it illegal for the lawyer to share any info deemed classified.

    Sounds like a better idea, but how is a JAG lawyer going to challenge such evidence without bringing it up in court? What happens if the suspect walks afterwards? How do you prevent that classified information from being compromised in that event?

  • Tommy

    Tommy, some setting allows leeway for others with more knowledge than any of us here to come up with the right answer. Maybe it’s a military tribunal, maybe an international court, maybe something completely new with specific rules to offer the accused the opportunity to prove innocence but also to protect intelligence gathering agencies. Whatever it is, it should be something. Anything. Just locking someone up without any chance to prove their innocence or even telling them what they are locked up for goes against what this country is supposed to stand for.

    OK. But can you give me a little further information about the safeguards you’d like to put in place?

  • BeYourGuest

    Tommy–

    How many times have you complained in this thread alone that people refuse to answer your questions.

    Of course, I ask you merely to define your terms and you tell me to go do my own research–that’s your idea of an adequate answer to a serious question!

    Sheesh!

  • Mikkel

    “Yeah, so what? No biggie if we have no intelligence assets directed against terrorists and who cares if your CIA agents end up being killed in the line of duty. So what? You are a perfect example of the non-seriousness of the other side of the debate when it comes to dealing with terrorists.”

    OK yeah so I’m unserious about terrorists. We have 16k+ murders each year in the US. We have survived the Revolution, Civil War, WWII (WWI didn’t really threaten us), The Cold War and all its underpinnings. In most places in the world they lost massive amounts (20%+) of their population in wars during the 20th century, and more civilians are dying in Iraq per every two months than Americans that have ever died from terrorist attacks. You have Israel that was under continual threat from suicide bombers, but still tried their terrorists. Explain to me exactly how the terrorist threat is so grave that we need to act radically different than during all the other dangers to our society that exist? Even better yet, explain how we are going to not go down the road that numerous other societies go down when they do whatever is necessary to kill their terrorists. Many of the countries that we are so concerned about are ruled by regimes where they use “terrorist threat” to justify their iron fist. But we won’t, because we’re someone intrinsically better than them? Personally I think if you’re not willing to die for the country you shouldn’t work for the CIA. If we as citizens aren’t willing to risk our necks for freedoms (including trying to figure out who’s innocent and not and possibly releasing some bad guys) then we don’t deserve them.

  • Tommy

    What can we all agree on here?

    1) I think most of us have indicated we don’t want to see American citizens put before tribunals. U.S. citizens are entitled to full Constitutional protections. Does anyone disagree with this? Should American citizens, regardless of where they are captured, should be tried under domestic laws.

    2) At least a few of us, including myself, would like to see a distinction drawn between those captured on the battlefield and those who are detained on the word of foreign intelligence agencies. Does anyone disagree with this notion?

  • Mikkel
  • Tommy

    Mikkel,

    Explain to me exactly how the terrorist threat is so grave that we need to act radically different than during all the other dangers to our society that exist?

    Ummm…HELLLOOOO! Anyone there? We had tribunals during World War II. We are still a democracy, believe it or not. We had much more serious infringement our Constitutional rights during the Civil War (and for Japanese citizens during World War II also). We survived. If 9/11 wasn’t a grave threat, then I suppose Pearl Harbor wasn’t either. After all, the Japanese weren’t really serious about wanting to destroy the United States, they just wanted us out of their way in the Pacific. I suppose they weren’t a grave threat, either.

  • Mikkel

    Tommy when you state it like that I agree with both those points. But I have two questions

    1) Once American citizens are accused of being terrorists (they will and they have, both correctly and not) all of the issues you’ve been arguing will come into play, but even more so if they have “full Constitutional protections.” (I’m especially thinking of people charged domestically.) How will we prevent a redrawing of the line once this starts happening? If you can’t accept foreigners being able to challenge evidence at all, how will we be able to secure full impartial jury, face your accuser style trials for citizens?

    2) The era of terrorism is stating that anyplace on earth is the battlefield because terrorism can occur anywhere. Catching someone “on the battlefield” only makes sense if you’re fighting an organized force that will be defeated/have a treaty. For example, the Taliban caught fighting US troops should be detained, but once the Taliban fell the war was over. Then it becomes a non-war issue. How do you define battlefield especially since so many people at Gitmo were handed to us?

  • Tommy

    This sums it up in my view.

    404 – Page not found

    I guess that really does sum up your view. Lol. (I’m tesaing, of course.)

    That is OK. I can see it was a link to something written by Glenn Greenwald (or maybe one of his many sock puppets). With Greenwald it is always the same 10,000 word essay regurgitated hundreds of times over. I know Greenwald’s basic argument.

  • Mikkel

    Gah Tommy there hasn’t been one person here that hasn’t said we can’t have tribunals. I’m saying that they should at least know the outline of evidence presented against them at the tribunal and should be able to petition some civilian authority to at least rule if there is possible abuse from that tribunal — specifically if the only evidence was obtained under interrogation taht could be construed as torture.

  • Mikkel

    Haha that was pretty good.
    You might not read it cause it is the basic argument over again, but still in case anyone else doesn’t know it.

  • Tommy

    Once American citizens are accused of being terrorists (they will and they have, both correctly and not) all of the issues you’ve been arguing will come into play, but even more so if they have “full Constitutional protections.” (I’m especially thinking of people charged domestically.) How will we prevent a redrawing of the line once this starts happening? If you can’t accept foreigners being able to challenge evidence at all, how will we be able to secure full impartial jury, face your accuser style trials for citizens?

    To me it isn’t that difficult. Americans are Americans are Americans. Constitutional protections to Americans apply. The Constitution is the final arbiter.

    The era of terrorism is stating that anyplace on earth is the battlefield because terrorism can occur anywhere. Catching someone “on the battlefield” only makes sense if you’re fighting an organized force that will be defeated/have a treaty. For example, the Taliban caught fighting US troops should be detained, but once the Taliban fell the war was over. Then it becomes a non-war issue. How do you define battlefield especially since so many people at Gitmo were handed to us?

    If they were detained by U.S. soldiers during the course of an operation then I would treat them as battlefield detainees. If they were handed over to us by ISI or captured by our intelligence services with the assistance of foreign intelligence, I would treat them as non-battlefield detainees.

  • Tommy

    Perhaps a point system could be established. The more points you have, the less legal protections we give you as a foreign terrorist.

    You “earn” points for things like being detained on the battlefield, being a pre-identified suspect (like being KSM versus some reputed low-level al-Qaeda guy we’ve never heard of being handed over to us by ISI), etc.

  • Mikkel

    “To me it isn’t that difficult. Americans are Americans are Americans. Constitutional protections to Americans apply. The Constitution is the final arbiter.”

    This might hold true legally, but the reasons why you think the bill is OK has everything to do with life-or-death emotion. Bush said at the signing ceremony “Over the past few months the debate over this bill has been heated, and the questions raised can seem complex.Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?” I put special emphasis on “did we do what it takes” because once there is another terrorist attack I think you can throw the current rulebook out the window. Having that mindset that Bush said to me says that no one’s rights are safe in the long term. Even having a point system like you suggested (that was reviewed by a FISA type panel) would do a lot to curb this mindset, but that’s not what I’m seeing.

  • AustinRoth

    I think if the President declares someone an enemy combatant, Christ, that is good enough for me, and should be for any American. Hell, he is protecting us.

    We also need to monitor all communications, and identify anyone thinking about helping terrorists, or having any anti-American thoughts or plotting activities against the government (you could almost say as the Democrats want to take over Congrees and impeach the President, they may just qualify too).

    Round all the scum that would destroy our country up, take to a remote camp, torture them for any information they have, then put a bullet in the back of their heads. No courts, no tribunals, and especially no lawyers, judges or ACLU.

    GOD BLESS AMERICA!

  • Rambie

    I think if the President declares someone an enemy combatant, Christ, that is good enough for me, and should be for any American. Hell, he is protecting us.

    I hope you’re being snarky. Would you be so quick to defend this law if the President is a Democrat? As I said before, I’m not afraid of GWB abusing this law. It’s two or three Presidents, or even terrorist attacks, down the line I’m thinking about.

  • C Stanley

    Rambie,
    I’m almost certain that AustinRoth’s comment was satirical.

  • Ryan

    OK. But can you give me a little further information about the safeguards you’d like to put in place?

    Well, first, I like the idea of a JAG type lawyer. Let a military officer cleared to view classified information handle the case. The lawyer can see the evidence but can not share anything but the basics of what the evidence is (“They have evidence that you were meeting with OBL in Pakistan on 2/18/06 and that you called him on 10/8/05″) with the client. This gives the lawyer the opportunity, in closed session with only the military judge/tribunal and prosecutor present, to dispute the gathering of the information but it gives the accused the opportunity to refute the underlying information by proving that he was in San Diego all day on 2/18/06 and has an alibi and that he was unable to use a phone at the date and time of the supposed phone call because he was in a meeting at work.

    This idea would allow a cleared military official the opportunity to dispute the gathering of the data without letting the accused know anything about what was gathered. It would also let the accused know the basics about what the accusation was and give the accused the opportunity to offer evidence to refute the accusation. It would finally prevent anyone accused, guilty or innocent, from knowing anything about the specifics of any investigation beyond the basics of the findings. Again, this would be limited to what the government says the accused was doing, where and when.

  • AustinRoth

    CS – I am truly hurt. ‘Almost certain’?

    I hope to God (the one I don’t believe in) that the overall body of my posts here wouldn’t lead ANY of the rational regulars (like you) to think that could have been anything but satire, pointed at few people who are too quick to give up their freedoms (IMHO).

    I guess things that seem obvious and funny in the middle of the night aren’t always. I had a couple last night that seem to have backfired.

  • C Stanley

    LOL, AR, no offense intended. I only included the “almost” because I never feel that I can definitively interpret someone else’s statements without any margin of error. I really didn’t have any doubt in my mind of what you meant but didn’t feel it was my place to state it without a slight equivocation.