Steve Chapman in the Chicago Tribune regarding Boumediene v. Bush (Guantanamo and the limits of power) wrote:
The administration asserted that in time of war, even an unconventional war against a shadowy foe, the executive branch has the power to capture a foreigner abroad and hold him for the rest of his life, without any independent review by the courts
Short of claiming the right to do that to an American citizen arrested on U.S. soil—a claim the administration had also made, only to see it repudiated by the courts—that’s about as vast and dangerous a power as you could find. So it is not surprising that the Supreme Court balked.
This is why claims (made by people like Scott Johnson at Powerline) that we “give al Qaeda more rights than German POW’s during World War II” are absurd. First, we did not claim the right to hold German POW’s for the the rest of their lives. Second, and more to the point, not everyone in our custody is a member of al Qaeda and therefore it is not unreasonable for detainees to have the right to challenge their captivity. Too many in the administration and too many of their defenders have bought into the poisonous notion that the United States only capture the guilty, which is manifestly not the case.
I noted yesterday the case of Nazar Chaman Gul, who was imprisoned both in Afghansitan and at Guantanamo. There is also the case of Murat Kurnaz, who was rounded up during a security check in Pakistan at the age of 19, and turned over to the US, which held him as a prisoner for almost five years. Several other examples are noted in a post today by Glenn Greenwald, including al Jazeera camerman Sami al-Haj, who spent years in captivity. It is worth noting that neither man was captured in combat. Gul was arrested in a private residence based on a tip (that proved to be false) that he was a terriorist and al-Haj was detained as part of a customs check. Yet both where treated to the “enemy combatant” routine.
Indeed, the aforementioned Kurnaz was held despite any evidence as to his guilt (source: a WaPo story at the time of his release):
Declassified records in his case made public last year show that he was kept behind bars and designated an enemy combatant even though U.S. military intelligence and German law enforcement officials had largely concluded that there was no information tying him to al-Qaeda or terrorist activities.
Since it is clearly possible for US forces to have arrested the wrong people, I cannot see how it is an abuse for SCOTUS to decide that those in captivity should have the right to question their detention.
It is incredibly selfish and myopic to take the attitude that because foreigners are being detained that it somehow doesn’t matter that innocent people are being caught up in the dragnet.
To put it another way, when the FARC kidnaps someone for political reasons and holds them without chance of release simply because they believe they have the right to do so within the context of a self-defined cause, we all find that to be an abomination. Why is it is any different if the US government engages in the same activity?
This is frightening power to give to any human being, and yet it seems that some believe that that power ought to reside, unchallenged, in the hands of the President of the United States. No wonder the GOP “brand” is so tarnished at the moment.
I will also reiterate a point I made yesterday: this type of behavior is allegedly about making us safe, but the arrest and detention of innocents will not make people love us, it will make them hate us. How that makes us “safe” is beyond me.
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June 17th, 2008 at 1:40 pm
Here here. Well put. Thank you.
I do think, however, that the authoritarian minded amoung us –the John Yoo’s and the Scott Johnsons and the Newt Gingrich’s of the world, for example– will not even understand the logic behind this commentary at all. I think their world is ordered such that safety and morality stem only from a singular, unfettered authority. Without that singular authority for them there is no safety or morality. The actions of that authority are not material to any argument except insofar as they reinforce that authority or not, in which case they are central. All else, for them, is noise. Reasoning with them seems pointless to me, for their arguments are emotional as much as anything.
June 17th, 2008 at 3:01 pm
Congress passed, and the president signed into law, statutes which provide for an elaborate two-step process by which the government has to prove the guilt of everyone detained at Guantanamo, or else release them. Those are what were at issue in Boumentiene last week.
You’re stuck on the issues as they existed in 2003. The facts have changed; so, too, have the issues.
Unless and until you admit that, you’re hopelessly out of touch. A post that doesn’t mention CSRTs, the DTA, or the MCA even indirectly — as this one doesn’t — is more than likely the result of total cluelessness.
June 17th, 2008 at 3:36 pm
Why is it is any different if the US government engages in the same activity?
Certainly the US government, or the French or British, etc etc, are a bit different than FARC.
Nevertheless, I think that your point re: the fallacy that the US government only capture the guilty is spot on. I suspect that the many miscarriages of justice by the government is what swung Kennedy to decide this case as he did.
As Dennis Miller once observed, it is insanity that we grant members of al Qaeda access to the same court system that has OJ golfing in Florida. But given this administration’s mismanagement of the issue, I’m not sure there is any alternative.
June 17th, 2008 at 3:59 pm
Oh indeed, because as we all know, judicial process in the United States never results in incarceration of the innocent.
June 17th, 2008 at 4:03 pm
As Dennis Miller once observed, it is insanity that we grant members of al Qaeda access to the same court system that has OJ golfing in Florida. But given this administration’s mismanagement of the issue, I’m not sure there is any alternative.
Of course Dennis is missing the point that all the detainees are not members of Al Quada. He’s assuming they’re guilty before they’ve had a chance to prove they’re innocent. It has been demonstrated over and over again that there are plenty of innocent men at Guantanamo.
And of course, Dennis Miller and his ilk have no qualms with the same court system that let OJ off sentence others to death.
June 17th, 2008 at 4:26 pm
bakum’s point in the first comment is interesting … Richard Dawkins made a similar point about the belief among theists that morality was dependent on a belief in god, as opposed to an inherent attribute ingrained in most individuals DNA …
It has truly puzzled me how small government conservatives have been such adherents to the belief that the government, while not being trustworth to run amtrak, social security, schools, etc, must inherently be trusted with unlimited powers in war, surveilance and detention policies …
It would appear, however, that these conservatives have not truly been distrustful of government in general, but of the legislature, and instead have a strong belief in authority in general, be it god or the executive …
These beliefs seem to me to be anathema to the defining attributes of our great country.
June 17th, 2008 at 4:27 pm
Well, the Military Commissions Act has its own problems. Section 7 of it was ruled unconstitutional on June 12; other components of it are on thin ice as well.
The Detainee Treatment Act and Combatant Status Review Tribunals were steps in the right direction, but have serious problems in terms of solutions to the human rights problems Dr. Taylor raises. The most glaring problem is that while these laws create some review process for detainees, it is a non-judicial process that is not open to public or even congressional scrutiny; there is also little included in either law in terms of timelines for rendering decisions about detainees or letting them go; because of this, they tend to languish.
I’ve actually been on both sides of this issue over the last couple of years. On the one hand I helped round some of the prisoners that are being detained up, and because of this I know that some of them are legitimate baddies and some of them probably just got caught in the wrong place at the wrong time. From the raider’s point of view, everyone looks the same.
But, I have had a problem with the administration’s failure to “spit or get off the pot” on some of these detainees. I don’t have a problem with us collecting up a certain amount of people who turn out to be innocent, AS LONG AS THOSE PEOPLE ARE TREATED HUMANELY AND IN ACCORDANCE WITH THE RULES I WAS TAUGHT TO UPHOLD AS AN AMERICAN SOLDIER, AND WE HAVE A PROCESS IN PLACE TO STRAIGTEN OUT WHO DID WHAT AND RELEASE THE INNOCENT IN A TIMELY MANNER.
I do know a little about the CSRT from personal experience. I wish I could elaborate but let’s just say I was a “witness” during a proceeding. Imagine the difficulty in getting clear memories from soldiers on the scene when you are conducting a review a couple of years later, when that soldier has had many more engagements, lots more combatants - maybe he’s not even in the army any more and has done his best to forget about the specifics of some of what he participated in. This is the position I was put in, not fair for me, not fair for the detainee - not fair all around.
It is completely unacceptable for a guy I captured more than four years ago to be just recently released, the government having finally got around to deciding that he was just caught in a crossfire and had nothing to do with the ambush that we busted.
I served for more than ten years as an infantry and special forces officer in campaigns all over the world. I learned a lot about unconventional warfare during this time and tend to agree with Dr. Taylor, in that every guy that gets arrested for no reason and held for a ridiculous amount of time, while possibly being subject to inhumane treatment becomes a source of motivation for our enemies. WE NEED TO GET THESE GUYS QUICKLY THROUGH THE SYSTEM AND RELEASED WITH APOLOGY, AND POSSIBLY COMPENSATION, FROM OUR GOVERMENT. Not doing so, we not only trample on people’s rights, but we make the war harder to fight.
The “War on Terror” has, on many levels, been fought in fundamentally flawed ways. I could talk all day about that, but will save it for another post; the issue at hand is what happened to all those guys that I and other commanders on the ground took into custody after they were neutralized as a threat. THE ADMINISTRATION ENTERED THIS CONFLICT WITH NO CLEAR PLAN AS TO WHAT SHOULD BE DONE WITH THESE PEOPLE. I find lack of forethought and experience fighting unconventional wars a plausible explanation for this; the president and the congress had not thought about it before they gave us orders to round people up, and after they had a bunch of people at Gitmo and other detention facilities, it became very unclear who was there for what reason because NO PROCESS EXISTED FOR RAPIDLY PROCESSING ASSUMED ENEMY COMBATANTS TO DETERMINE THEIR RIGHTFUL DISPOSITION. As more and more detainees accumulated, it became even less clear who did what, and the idea that many simply fell through the cracks or were forgotten is quite easy for me to believe; I in fact find this much more plausible than the idea that George Bush deliberately set out to squash people’s rights. Laziness, incompetence, and lack of forethought are far more common than active malice, but can frequently produce the same black product.
It was only after the number of detainees climbed to a certain level that the public decided to question their lawmakers about what was happening with these people; and then all of a sudden, the lawmakers, the courts, and the administration realized there was a problem, and all responded differently. Some saw it as an opportunity to attack the Bush administration; the administration dug in its heals; the issue became politicized, and as a consequence of this, we can’t agree about how to process these guys, and are trying to determine years after the fact who is a combatant and who is not.
This is not the way you win hearts and minds, and Dr. Taylor is spot on in his criticism of the system. It is not just that it is a human rights problem; it is DIRECTLY MAKING THE WAR HARDER TO FIGHT by providing motivation to an enemy who already believes we are a satanic force. Our detainee problem is reinforcing this idea. The Imams and radical clerics teaching in schools and mosques around the world are using our failure to provide rapid justice to the innocent as fuel to motivate young people into joining insurgencies and going jihad.
Unless and until our government gets it in its head that this is NOT a fight we can win with brute force short of annihilating the muslim population of the world (which would be one solution, albeit an unacceptable one), but that it must be won by offering a better message to the youths in the places that are generating insurgents than the message they are getting from the radical mosques and schools, we will not be able to “win”. All we can do is try to plug up the holes in the dyke, which will constantly be springing new leaks and demanding resources that, to be blunt, we are simply running out of.
Dr. Taylor’s criticism of the detention system brushes up against some much larger issues about our stategic policies. Again, I could go all day about it - but the long and short is that even I can see that something has to be done about the detention system, and that right soon. And I was one of the trigger-pullers.
I do not think it appropriate that detainees receive the same access to our courts as any common criminal caught on US soil (although I think if they are caught on US soil this should be the case); but some access to the judiciary must be implemented, at the very least as an oversight measure for the Tribunal Review process. Otherwise it is too easy for detainees to fall through the cracks.
While the Bush administration is clearly to blame for making the rules the way they are, I feel congress and the judiciary failed in a smaller way by NOT DOING ANYTHING when we got into the business of rounding up “enemy combatants” in the opening rounds of Afghanistan.
WE SHOULD HAVE BEGUN THESE CONFLICTS WITH ALL OF THIS ALREADY THOUGHT OUT.
Not meaning to minimize the role of the Bush administration (it happened on his watch and there’s no getting around that), but I feel that all of us - all americans - failed on this issue, because we did nothing then, in 2001, when I and my fellow warriors were sent overseas to kill, and, when possible, capture those responsible for the 9/11 attacks. We had a plan for the killing part but not the capture part.
And now here we are, arguing about it while guys still languish in detention camps.
We should all be ashamed of ourselves. For my part - I am sorry, and I am.
June 17th, 2008 at 4:42 pm
Isn’t it interesting that the central point of Habeus — the ability to contest an automatic assumption of guilt, is lost on these authoritarian cretins, who make the nakedly fallacious (and quite frightening) assumption that the government not only tells us the truth, but that it DOESN’T MAKE MISTAKES?! How ironic for this to be coming from “conservatives” who supposedly don’t trust government to administer the most basic domestic programs, and yet give it the widest birth in areas of war and administration of justice.
Like I heard somewhere: Thank goodness the founders created a criminal justice system, neglecting the cries that they wanted to protect the rights of “rapists and murderers”
The problem is, if you have the “GWOT” mentality, questions of innocence or guilt–considerations of criminality, don’t apply, since all “combatants” captured on the “battlefield” are assumed to be the enemy, and therefore guilty by default–when this is so far from reality its laughable. Again, it requires the scary suppositions that the govt. is competant, doesn’t lie and doesn’t screw up, EVER.
June 17th, 2008 at 6:00 pm
Oh indeed, because as we all know, judicial process in the United States never results in incarceration of the innocent.
Yes, but the point is that one can challenge one’s detention in that context. That is no trivial distinction.
June 17th, 2008 at 6:09 pm
It has truly puzzled me how small government conservatives have been such adherents to the belief that the government, while not being trustworth to run amtrak, social security, schools, etc, must inherently be trusted with unlimited powers in war, surveilance and detention policies …
It puzzles me greatly.
June 17th, 2008 at 6:34 pm
Dr. Taylor at 9:
And the detainees could have challenged their detention under the procedures mandated by Congress, too. But the Court trashed those procedures without ever even giving them a chance to work.
As William Dyer noted in a comment to this post, you seem unaware of the legal issues presented by this case.
I recommend that you read not only the Court’s opinion, but also the dissents by Chief Justice Roberts and Justice Scalia. You will find them informative.
June 17th, 2008 at 6:34 pm
Beldar (#2),
You are free to accuse me of cluelessness, but the fact of the matter is that the fundamental situation has not changed. We still lack a functional process for dealing with detainees and ultimately we still assert the right to detain whomever we please for as long as we wish.
We certainly are utterly failing to make the world think that American democracy and freedom equates to justice.
June 17th, 2008 at 7:06 pm
Pixwhite — dude, where have you been? Small Government types have not been influential in the Republican Party since Reagan left office. Ron Paul tried to bring them back, but you saw how well THAT worked out. So don’t blame libertarians on this one buddy, this is all the neo-Wilsonian ex-Democrat bastards that took over the Republican party and kicked our asses out.
June 17th, 2008 at 7:57 pm
Beldar, perhaps you missed the portion of Kennedy’s opinion for the Court where he discusses the alternative to habeas set up by Congress, and finds it woefully inadequate?
The Soviets granted lots of rights in their system — they just turned out to be hollow in practice. Ditto any “alternative to habeas” in the MCA.
June 17th, 2008 at 10:06 pm
The “The administration asserted … the power to capture a foreigner abroad and hold him for the rest of his life” statement is over-the-top silly. The Administration has only ever asserted the power to hold these detainees “until the cessation of hostilities,” unless the detainee has been found guilty of war crimes in a military tribunal, in which case he would be held for a specific prison term. Both cases are well-settled under international law, and were well-settled under US law on September 10, 2001.
The question, of course, is when hostilities will cease. For some reason the use of the phrase “War on Terror” in speeches has convinced some people, including five members of the Supreme Court, that “cessation of hostilities” refers to the end of the War on Terror and not the end of action in Afghanistan (for detainees captured in Afghanistan) and the end of action in Iraq (for detainees captured in Iraq). The Supreme Court’s opinion appears to try to pre-emptively solve this.
Normally, however, the courts wouldn’t get involved until the Administration actually refused to release an Afghani prisoner after the cessation of hostilities in Afghanistan. That is, usually the courts don’t intervene because of something somebody might possibly do in the future, assuming they are still in office at that undetermined point.
In 1944 the US held several German POWs without knowing when exactly those POWs would be released. If WWII had turned into another Hundred Years War, most of them would have — legally — been held for the rest of their lives (assuming no prisoner trading took place). But that is explicitly allowed in the Geneva Conventions.
We know that the detainees will be released after the fighting in Afghanistan is over, but we can’t say what exact day that will be. Does that justify making such ridiculous statements as “The administration asserted … the power to capture a foreigner abroad and hold him for the rest of his life”?
June 17th, 2008 at 10:12 pm
A separate comment for a separate issue: the two examples cited in the original post refer to people the US released because the military has been reviewing cases to see if people may have been caught in a dragnet. The military has no desire to spend time, money, or effort looking after people who aren’t a threat.
Additionally, as already noted, Congress passed a law allowing those who the military did not spontaneously release to challenge their detention. The Court struck that law down because the challenges were limited. On the other hand the opinion admits that the habeas corpus review in ex parte Quirin—one of the cases used to show that the DTA was unconstitutional—was also limited. When I compare the limits from the two I’m not able to find any meaningful difference (DTA: “The CSRTs … gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention.” [Roberts dissent, page 10]; ex parte Quirin: “In re Yamashita, … and Ex parte Quirin, … for example, this Court limited its review to determining whether the Executive had legal authority to try the petitioners by military commission.” [Majority opinion, page 57]). If anything, Quirin entailed a habeas review even more limited than the DTA permitted.
If Quirin were Constitutionally acceptable (and this opinion does not appear to overturn Quirin), I can’t imagine how the DTA was unconstitutional.
June 18th, 2008 at 6:56 am
[...] did in his rather well-written column today defending habeas corpus, conservative Steven Taylor articulates very well why the type of lawless detention advocated by the Right is so dangerous, destructive and [...]
June 18th, 2008 at 12:24 pm
I am bemused by this uproar over the very sensible restatement of the fundamental nature of some rights, in the face of a vile attempt to arrogate imperial authority to the Executive.
The US Constitution does not say that only US citizens were endowed by the creator with unalienable rights - the rights exist a priori in all humans. Depriving any man - citizen or not - of his UNALIENABLE right to life and liberty without due process, is a vile departure from constitutional government.
Several other posters have mentioned the stunning dichotomy in soi-disant ‘conservative’ belief - that the government can’t be trusted to run a health care system, but that we must breathlessly stand in awe of the word of a bunch of political parasites when they decide to bomb someone else’s children. Bizarre.
I speak as a committed anarchist - a firm believer that given the track record of the State throughout history, life could not possibly be more violent after its abolition (it would by no means be perfect, but fewer foreign children would be killed by hired goons).
So at the very least I am consistent - I would not trust a politician or their factota under ANY circumstances, so I am always on safe ground. Now if I could just get their parasitic paws out of my wallet, bank account and so forth…
Cheerio
GT
France (the land of “Tsar-koszy” Nikolai the hooked nosed fascist dwarf)
June 18th, 2008 at 2:30 pm
pixwhite
“It has truly puzzled me how small government conservatives have been such adherents to the belief that the government, while not being trustworth to run amtrak, social security, schools, etc, must inherently be trusted with unlimited powers in war, surveilance and detention policies …”
Your mistake is in assuming they are “small government conservatives.” Neocons are anything but. The NON-DEFENSE budget has grown drastically under GWB and the GOP congress.
Ron Paul, a true “small government conservative,” was and is the most vocal and consistent critic of this administration’s abuse of power. Bob Barr left the GOP in large part because of its abandonment of the principles of limited government, civil liberties and the rule of law. (Not shilling for RP or Barr, just pointing this out.)
June 19th, 2008 at 1:41 pm
[...] More on Boumediene Dr. Steven Taylor, PoliBlog 6/17 [...]
June 20th, 2008 at 9:32 pm
[...] conservatives coming out against this sort of thing. In addition to George Will, there’s Steven Taylor, who eviscerates the neo-con hacks at Powerline and elsewhere: This is why claims (made by people [...]
June 21st, 2008 at 8:55 am
[...] to Americans, it was a statement of universal rights. I will end this tirade with an excerpt from a comment on the subject at Poliblog by “Captain D,” presumably an officer in the U.S. Army (#7:) I’ve actually been on both sides of this issue over [...]