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.
74 Responses to “A Dangerous Order”
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.
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.
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:
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.
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.
Kevin H,
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?
OK. But can you give me a little further information about the safeguards you’d like to put in place?
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!
“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.
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?
This sums it up in my view.
Mikkel,
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.
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?
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.
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.
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.
To me it isn’t that difficult. Americans are Americans are Americans. Constitutional protections to Americans apply. The Constitution is the final arbiter.
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.
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.
“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.
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!
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.
Rambie,
I’m almost certain that AustinRoth’s comment was satirical.
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.
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.
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.