We Are All Enemy Belligerents Now

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Chris Dierkes says:

    God (if there is one or ones) help us.Report

  2. Avatar BCChase says:

    As small as the audience for cable news is, I keep coming back to this counterfactual: would there be such value in grandstanding bills that make us “tougher” on terrorism at the expense of liberty if there wasn’t a cable-news noise machine to echo the talking points that support it? Would the internet alone be able to bring in the cache that I think drives these kinds of bills? I’m probably overestimating it, but I can’t say “yes” to those questions, either.Report

    • Avatar ThatPirateGuy says:

      This is the kind of law where you consider leaving the country if it passes. I don’t want to see the wreckage of a President Palin/(Suitably similar substitute) with that kind of power.Report

  3. Avatar North says:

    If Obama tries to do his soft shoe compromise dance on this abomination I am done with him. Thankfully this monstrosity shouldn’t have a snowball’s chance in hell of getting out of committee let along getting voted on or passed.Report

    • Avatar Jaybird says:

      Fun thing to watch for: People making qualified defenses of the intent behind the bill if Obama happens to make noises supporting it.

      “Well, you have to understand… there are people out there who want to kill our children…”Report

      • Avatar North says:

        Forget it, if Obama even inches toward supporting it I’ll write him off and anyone in the party that supports it too. I’ll leave supporting imbecilic leaders through thick and thin to the Republicans.Report

      • Avatar Freddie says:

        Glad to know partisanship trumps all.Report

        • Avatar Jaybird says:

          Not exactly.

          It’s fun to watch who will start making such statements because *THAT* will tell you who out there is having partisanship trump all… and, after that, who in the future can be avoided when they start appealing to your principles.Report

          • Avatar Mike Schilling says:

            It is interesting to see all the criticism of Obama for maybe possibly not opposing the bill, and none of the guy whom he prevented from becoming president that just introduced it.Report

            • Avatar Jaybird says:

              My criticisms of Obama, to this point, revolve around stuff like Iraq, Afghanistan, and his choices regarding the DEA.

              My original criticism was not of Obama (indeed, I will be neither surprised nor disappointed if he sees this particular power as something that he would trust himself with as a regrettable, but necessary, tool whereby those who want to kill our children might best be fought) but against the so-called “Liberaltarians” who would suddenly and surprisingly start explaining how, seriously, there *ARE* right-wing fundamentalists out there who want to kill women and homosexuals and tools like this are necessary for us to maintain our liberties without the chilling effects of insufficently addressed violence against minorities that turns into de facto endorsement of same.

              You don’t effectively endorse gay bashing, do you?

              It’s a simple question, after all.Report

              • Avatar Mike Schilling says:

                Honestly, what bullshit. The responsibility for this goes directly to McCain and Lieberman, and indirectly to Bush, Cheney, and the other creators of the national security state. Anyone who voted Republican to save on taxes, be glad you lost.Report

              • Avatar Freddie says:

                I think Mike has a point, Jay. Here’s a good opportunity for you to reveal yourself not to be just an anti-leftist.Report

              • Avatar Jaybird says:

                Freddie, I’m anti-the people who have *POWER*.

                I’m not anti-“leftist”. I almost prefer “leftists” because they have principles.

                My problem is people who support the unprincipled parties who have power.

                Out of curiosity, would you consider someone who defended Obama if he happened to support this bill to be “leftist”?

                Because *THAT* person was the person I was criticizing.

                Hell, I’d wonder if you even consider Obama to be “leftist”.

                Do you?Report

              • Avatar Koz says:

                Anti-leftist would be a significant step up from where he is now.Report

              • Avatar North says:

                Jay me lad, I think Koz just read you out of the right wing. Coming on top of Obama getting his HCR across the finish line this has to be a heavy blow for you. If you need someone to hold your hair while you throw up I’m here for ya.Report

              • Avatar Koz says:

                “Jay me lad, I think Koz just read you out of the right wing. “

                No, just straight up what I said. He’s a typical libertarian with typical libertarian faults. We’d all be better off if Jaybird were actually guilty of what Freddie is accusing him of being.Report

              • Avatar Jaybird says:

                I’m a crazy third party voter, thank you. My one “real party” person that I voted for in a Presidential election was in 1992 (Clinton… wanna hear why? Women’s issues and I thought we needed a less belligerent foreign policy.)

                Since then I’ve voted third party, with the exception of Joel Hefley, who got my vote when his office helped me with Maribou’s immigration process (seriously, the immigration process is byzantine).

                Other than that, I’m pretty much of the opinion that everyone in Washington is deserving of a good tarring/feathering.Report

              • Avatar Jaybird says:

                Stuff like this:

                http://www.politico.com/news/stories/0310/34529.html

                When it comes to, say, health care reform, my criticisms are not of Obama. They’re of stuff like “the plan won’t work and here’s why”. It’s not personal, it’s policy.

                When I read stuff like this:
                http://reason.com/blog/2010/03/03/decriminalize-double-seizures

                My criticisms start being of Obama.

                I know he’s not good at the stuff I wish he were good at. He’s a Democrat, not a crazy Libertarian.

                The problem comes that he’s not good at stuff that Democrats are supposed to be good at… and, after that, that his defenders explain slowly and carefully why I need to be more realistic in my expectations.Report

            • Avatar Jason Kuznicki says:

              It is interesting to see all the criticism of Obama for maybe possibly not opposing the bill, and none of the guy whom he prevented from becoming president that just introduced it.

              I didn’t expect much better than this from McCain or Lieberman. I find it almost unsurprising from them. But if I had believed Obama’s campaign promises more thoroughly, I might have reason to be disappointed by now in the area of civil liberties. And I’d have reason to be really disappointed if he signed this bill.

              Which is not to say that Obama deserves any blame here at all yet. Clearly he doesn’t.Report

              • Avatar Rufus F. says:

                I didn’t believe his campaign promises at all and I’m still disappointed. Or maybe annoyed. There’s a difference between dropping a promise quietly and dropping it while saying you’d really like to keep it, but well, you know (while pointing at Republicans with your thumb).

                To that end, if he does support this, I guarantee we’ll hear Democrats on CNN saying, “The President is not a strong supporter of this measure, but what can he do? Republicans are so mighty!”Report

            • Avatar North says:

              Lieberman and McCain are already written off in my books. The former is just a Petulant squish the latter seems to have sold every principle he has in persuit of the presidency via his Party. With my opinion of them at the level it is at I further expressions of dislike/disdain/disapproval would just be me repeating myself.

              Obama on the other had currently enjoys my firm (though not passionate) support. I was a strong Hillary supporter but I obligingly knocked on doors, signed checks and dialed phones for Obama once he won the nomination. My opinion of him has lots and lot of room to fall.Report

  4. Avatar Mike Schilling says:

    I hope Obama (and the Democratic leadership) have the integrity to kill this kill as quickly and efficiently as possible. I truly do.

    But if they do, it’ll be in the teeth of Fox News, Limbaugh, the Weekly Standard, the National Review, and the rest of the right-wing media calling them pro-terrorist traitors, and the David Brooks’s of the world making judicious-sounding noises about how “traitor” might be too strong, but they’re clearly out of touch with the American public.Report

    • Avatar North says:

      Let them. Let the right double down on this. Just let them lay it out that baldly for history to judge. In the words of President Shrub “Bring it on”.Report

  5. Avatar Kyle says:

    Meh. If it makes it out of Judiciary, I’ll be concerned but plenty of blatantly unconstitutional bills get referred to committee and go nowhere.

    Not that it excuses how facially ridiculous this is and accordingly our outsized fear of terrorism, but still at this point I don’t know why Lieberman doesn’t just officially become a Republican.Report

  6. Avatar Katherine says:

    The frightening thing is that, if they’re doing this now, with a Democratic majority and a Democratic president, even if it’s defeated now something of this sort is virtually assured to be passed once there’s a Republican comeback.

    The Constitution was set up so the different branches of government would contend with each other for power; I doubt the US founders ever expected a Congress would try to force extensive new powers on the Presidency. Things have gotten crazy when you can’t even trust self-interest.Report

    • Avatar BCChase says:

      Behold the power of fear, and political power derived from fear.Report

    • Avatar kenB says:

      something of this sort is virtually assured to be passed once there’s a Republican comeback.

      I wouldn’t be so sure. They could’ve done this anytime since 9/11 — why wait till now, when it has no chance of passing? Reeks of political stunt rather than serious proposal.Report

      • Avatar North says:

        It had never occurred to the peeps in the Bush echo chamber that anyone beyond the distant left fringe would object to the power they de-facto seized. A congressional endorsement of that madness wasn’t even considered necessary until they lost the elections.Report

  7. Avatar Wayne says:

    “far beyond the horrific, habeas-abolishing Military Commissions Act.”
    The only problem is that neither unlawful enemy combatants nor POW’s ever had habeas before Hamden, so the MCA didn’t abolish anything of the sort.Report

    • neither unlawful enemy combatants nor POW’s ever had habeas before Hamden [sic], so the MCA didn’t abolish anything of the sort.

      The U.S. Supreme Court disagreed, of course, in Boumediene v. Bush. Moreover, it has never been the claim of any U.S. administration that the detainees at Guantanamo were prisoners of war in the legal sense. If they were POWs, they would not get trials, because legitimate POWs are not suspected of any crime. They are also released after the hostilities end.

      Further, under the Geneva Conventions, even unlawful enemy combatants are still to be given regular, domestic trials, exactly as though they were common civilian criminals. In our system, that includes habeas. You can’t just toss them in a hole and wait for them to die.Report

      • Avatar Dave says:

        There was also the 2004 ruling in Rasul v Bush, which established that the federal judiciary had jurisdiction over Guantanamo Bay. Per the habeas statute, certain detainees did have a right to challenge their detentions. Now, that was removed in both the Detainee Treatment Act and the Military Commissions Act but the notion that unlawful enemy combatants had no habeas rights is, I think, incorrect.

        Further, under the Geneva Conventions, even unlawful enemy combatants are still to be given regular, domestic trials, exactly as though they were common civilian criminals. In our system, that includes habeas. You can’t just toss them in a hole and wait for them to die.

        In our system, assuming that the military is able to provide an adequate substitute to a habeas hearing in a federal court, it will not run afoul of the Suspension Clause. Also, I’m not sure that the GC is that demanding in its requirements for trying unlawful enemy combatants. I don’t recall that a criminal courts equivalent is necessary.Report

        • My understanding is that the Geneva Conventions as a whole establish two basic classes of persons — those who fight lawfully, and those who fight unlawfully. When captured, the former are POWs. The latter are criminals, and they are to be tried in a regularly constituted court.

          A militia does not need to have ratified the Geneva Conventions, nor even be recognized as legitimate, for its members to qualify for lawful POW status. It does, however, have to comport to the very minimal standards of military conduct laid out in the Conventions.

          Al Qaeda flunks these. Hard. This makes them “unlawful,” but being unlawful doesn’t mean that we throw out all of our laws or treat you however we feel like. Instead, you are to be treated as a criminal, and you are held accountable for all “wartime” acts as if they were committed during peacetime, in a regularly constituted court.

          My own understanding is that it strains the meaning of “regular” to set up a new court system merely to try a handful of people we especially dislike. If that’s a “regular” court, what’s an irregular court?Report

      • Avatar Wayne says:

        I have to agree with Scalia’s dissent in Boumediene:

        “Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
        The Nation will live to regret what the Court has done today. I
        dissent.”
        And to quote Scalia again from Hamdi v Rumsfeld:
        “Today, for the first time in our Nation’s history,” he dissented, “the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
        Are you saying that Scalia was wrong about the lack of precedent?

        “Further, under the Geneva Conventions, even unlawful enemy combatants are still to be given regular, domestic trials, exactly as though they were common civilian criminals”

        That is blatantly untrue, there is no provision for civilian trials in Geneva for unlawful enemy combatants, unlawful enemy combatants by definition are not covered by Common Article three (no uniform, no country, etc) and even if they were, there is no provision calling for civilian criminal trials. As you correctly noted, governments are expressly prohibited from subjecting regular POWs to trials. War criminals are a different matter, the Nuremberg trials were in fact Military tribunals.Report

        • there is no provision for civilian trials in Geneva for unlawful enemy combatants,

          Irrelevant. The Conventions declare what is lawful combat. Those who don’t fall within the definitions are unlawful. It is stated that those who conduct themselves otherwise are to be treated as criminals.

          unlawful enemy combatants by definition are not covered by Common Article three (no uniform, no country, etc) and even if they were, there is no provision calling for civilian criminal trials.

          First Geneva Convention, Chapter 1, Article 3 states:

          In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…

          Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention… shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

          To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons…

          (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

          The petition of habeas corpus is one judicial guarantee that our legal tradition views as indispensable.Report

        • Avatar Dave says:

          Wayne,

          I do not agree with Scalia.

          First of all, Guantanamo Bay is not extraterritorial. It is, for all practical purposes, the sovereign territory of the United States since the US exercises total control over it. This was hashed out in Rasul.

          Second, I wish Scalia and like-minded conservatives would cool-it on the Eisentrager precedent. It does NOT apply to Guantanamo Bay nor does it apply to situations where the status of alleged unlawful enemy combatants is in question.

          On both these points, I refer you to Justice Kennedy’s concurring opinion in Rasul.

          http://www.law.cornell.edu/supct/html/03-334.ZC.html

          I would also say that Scalia is probably wrong about a lack of precedent since the majority opinion did cite Ireland as an example where habeas corpus review applied in what was de facto sovereign territory.Report

          • Avatar Wayne says:

            “I would also say that Scalia is probably wrong about a lack of precedent”

            Ok, so name for me a time when a US constitutional right to habeas corpus was conferred on alien enemies detained abroad by our military forces in the course of an ongoing war. (And Scalia addressed the supposed Irish example, read it yourself as it’s too involved to go into here.)

            “The petition of habeas corpus is one judicial guarantee that our legal tradition views as indispensable.”

            The German saboteurs caught in the US during WWII (see operation Pastorius) were not afforded habeas; are you saying that FDR was in conflict with “indispensable legal traditions”?Report

            • Avatar Dave says:

              Ok, so name for me a time when a US constitutional right to habeas corpus was conferred on alien enemies detained abroad by our military forces in the course of an ongoing war.

              You refer to them as “the enemy”, but are they? Isn’t that the legal question that we are trying to determine? We do know that there are people that are (or were) detained at Guantanamo who were not directly detained by U.S. forces and captured while engaging in direct hostilities with said forces but handed over to the U.S. by third parties such as the Northern Alliance or found in areas far removed from direct combat zones. As such, it does raise questions about the circumstances of capture.

              Second, your use of the term “abroad” is incorrect, as we are dealing with Guantanamo Bay. The United States exercises complete control over the land and it is in the U.S.’s sole discretion as to when it decides to return the land to Cuba. It is U.S. jurisdiction located a short boat ride off the coast of Florida. We’re not talking about Bagram.

              Therefore, to your question, when a person whose combatant status is known to the point where we can consider him an unlawful enemy combatant is detained outside of U.S. jurisdiction perhaps close to a combat zone can can file a habeas petition to seek relief in our courts, I’ll let you know. Gitmo does not match your description.

              I have a question for you:

              Can you think of a time where unlawful enemy combatants were allowed to languish in a jail cell for years without ever being tried? I look at the Nazi saboteur case and I see that they were tried and summarily executed. I think historically, that is more the rule and Gitmo is more the exception.

              The German saboteurs caught in the US during WWII (see operation Pastorius) were not afforded habeas; are you saying that FDR was in conflict with “indispensable legal traditions”?

              I don’t think FDR was in conflict at all. While Quirin rightly answered the question of who has jurisdiction over those deemed unlawful combatants who have violated the laws of war, but let’s not jump to conclusions and assume all of those detainees qualify. Remember, a key distinguishing feature between the WWII detainee cases and today’s cases is that in the WWII cases, the questions of one’s status was not the issue like it is today. This is significant and a lot of people seem to overlook it.Report

              • Avatar Wayne says:

                “You refer to them as “the enemy”, but are they? Isn’t that the legal question that we are trying to determine? We do know that there are people that are (or were) detained at Guantanamo who were not directly detained by U.S. forces and captured while engaging in direct hostilities with said forces but handed over to the U.S. by third parties such as the Northern Alliance or found in areas far removed from direct combat zones. As such, it does raise questions about the circumstances of capture.”

                They do, in fact get a review every year and so far the reviews have only been 80% accurate, as 20% or so of them have gone back to the battlefield. I wonder what you will say when the day comes (and it likely will) that one of these former detainees manages to kill hundreds or thousands of innocents. What happened to their rights? (the same thing that happens to the rights of the unborn, I’ll wager: sacrificed on the altar of “civil liberties”)

                ” Second, your use of the term “abroad” is incorrect”

                The original capture and detentions were in fact abroad, unless you think there were terrorists cells operating in Guantanamo Bay.
                Why not just remove all pretense and advocate for habeas hearings run by Amnesty International or HRW? I mean that’s what you really want, isn’t it? Detainee reviews and military commissions and the due process they require isn’t and won’t be good enough for those like you who are civil libertarian absolutists to the point of near insanity. As one SC jurist once put it, the US Constitution is not a suicide pact, (despite the wishes of so many on the left that it were.)
                “I don’t think FDR was in conflict at all. While Quirin rightly answered the question of who has jurisdiction over those deemed unlawful combatant…”
                Yes but that “deeming” wasn’t accomplished by an appearance in US federal court, was it? So it was ok for FDR to deny habeas to suspected terrorists but not Bush, I got it. (and Bush used Quirin as a model, by the way. And the SCOTUS has now pretty much struck down Ex Parte Quirin, anyway)
                Do you think that FDR was also operating within the “fine legal tradition” you espouse when he rounded up and incarcerated American citizens for the crime of being of Japanese descent with no due process at all, much less habeas?Report

              • Avatar Dave says:

                They do, in fact get a review every year and so far the reviews have only been 80% accurate, as 20% or so of them have gone back to the battlefield.

                Please cite a source on recidivism.

                Per Boumediene, the reviews were deemed unconstitutional due to not being an adequate habeas substitute. I’m sure the government can provide enough information at a habeas hearing to demonstrate that they have enough of a reason to hold someone. In fact, I agree with the general theme in the Hamdi ruling that the government should be accorded the highest standard of deference, even going so far as to introduce evidence that may not be admissable in a formal trial proceeding.

                It is not, nor ever has been, my goal to use habeas corpus to get those who are likely guilty released. Those who do not belong should not be there. Period. Those who do should be tried, a verdict should be handed down and the punishments should be meted out if a guilty verdict is reached.

                I wonder what you will say when the day comes (and it likely will) that one of these former detainees manages to kill hundreds or thousands of innocents.

                Nice to see you thinking of me…anyway…

                The original capture and detentions were in fact abroad, unless you think there were terrorists cells operating in Guantanamo Bay.

                You miss the point. I’m not concerned about their point of capture. I’m concerned about where they are being held. Had the prisoners been held near a location where direct hostilities were taking place, I would agree that the federal courts have no jurisdiction there (assuming its not US jurisdiction). However, they were taken into U.S. jurisdiction in an area far removed from hostilities. Furthermore, given the nature of the cases, we were dealing with civilians accused of being unlawful combatants.

                Why not just remove all pretense and advocate for habeas hearings run by Amnesty International or HRW? I mean that’s what you really want, isn’t it?

                Can Hamas do it? Pretty please?

                Detainee reviews and military commissions and the due process they require isn’t and won’t be good enough for those like you who are civil libertarian absolutists to the point of near insanity.

                Now now…please note that my insanity has nothing to do with my libertarian views and my near absolutist view that we interpret the text of the Constitution to the text’s meaning. I been a little loopy long before I graced the blogosphere with my presence.

                So far, you have done absolutely nothing to challenge the premise of my arguments and done a masterful job of strawmanning me. I’m starting to feel like the Scarecrow in the Wizard of Oz, which is fitting since I’m a moron compared to some of the others here.

                http://www.youtube.com/watch?v=wOKK8mAkiUI

                As one SC jurist once put it, the US Constitution is not a suicide pact, (despite the wishes of so many on the left that it were.)

                The general gist of that overused rhetoric is to afford government the ability to address urgencies as they arise, but 8 years after 9/11, while addressing terrorist threats is an important national security concern, the idea that our government has to set aside the Constitution for an emergency does not seem that pressing.

                Justice Jackson’s use of the term is interesting since he was advocating for the censorship of speech using the background of the Cold War. It was a repulsive dissent.

                Yes but that “deeming” wasn’t accomplished by an appearance in US federal court, was it?

                It never had to get to that point. Two of the saboteurs went to the FBI and assisted them in the capture of the others. Besides, Quirin wasn’t an issue about challenging the basis of their detentions but rather a jurisdictional question of military courts vs. civilian courts.

                So it was ok for FDR to deny habeas to suspected terrorists but not Bush, I got it. (and Bush used Quirin as a model, by the way. And the SCOTUS has now pretty much struck down Ex Parte Quirin, anyway)

                No, you don’t “get it”. The habeas issue was not one of the saboteurs claiming they are wrongly held but one of general jurisdiction. The habeas challenge was an attempt to get the civilian courts to hear the case, a challenge that was rightly rejected.

                Quirin was not struck down. However, the courts have determined that Quirin is an insufficient basis to argue that the President alone can establish military tribunals.

                Your partisan sniping is not winning you any points here. Just because I disagree with you doesn’t mean I’m a liberal or think it’s bad if a R does it but ok if a D does it. I have no patience for that bullshit and find it to be a useful tactic against those who are either intellectually lazy or simply can’t respond to my points. For now, I’ll assume you’re the latter.

                Do you think that FDR was also operating within the “fine legal tradition” you espouse when he rounded up and incarcerated American citizens for the crime of being of Japanese descent with no due process at all, much less habeas?

                It was a hideous infringement on the constitutional rights of those who were detained. It is one of the more reprehensible decisions handed down by our Supreme Court. Unless you’re Michelle Malkin, who idiotically defended the decision in a book, I think the overwhelming majority of people view Korematsu v United States a travesty of a decision.Report

              • Avatar Wayne says:

                “However, the courts have determined that Quirin is an insufficient basis to argue that the President alone can establish military tribunals.”

                Though that is exactly what FDR did in fact do. Interesting.Report

              • Avatar Wayne says:

                “Please cite a source on recidivism.”

                Here’s your citation:
                http://blogs.abcnews.com/politicalpunch/2010/01/gitmo-recidivism-rate-rises-to-20-percent-confirmed-to-abc.html

                ABC News’ Luis Martinez reports: A new Pentagon analysis shows the number of former Guantanamo detainees that it says have returned to the fight has continued to rise to 20 percent, up from the 14 percent recidivism rate released last spring. The latest increase continues the upward trend from the two previous reports.Report

              • Avatar Wayne says:

                “the idea that our government has to set aside the Constitution for an emergency does not seem that pressing.”
                At least until the next 9/11 (or worse) presumably.
                So just let the innocents die if it that is the price for affording full constitutional rights for unlawful combatants in civilian criminal court with all the same protections and rules of evidence that citizens get–no military commissions–it just isn’t good enough for suspected terrorists. (though there is absolutely no precedence for such madness) That is your position, is it not?Report

  8. Avatar Mike Farmer says:

    For God’s sake, let’s get back to the business of America — making widgets, making love, buying shit and betting on sports games.Report

    • Avatar Will says:

      Hear fucking hear.Report

    • Avatar Scott says:

      Funny, I thought that is what we in the US were doing on 9/11. Are you saying we should forget about 9/11?Report

      • I think he’s saying that we should remember everything else.Report

        • Avatar Scott says:

          Remember everything else? The only thing we need to remember is that we are at war and that every day Americans are fighting and dying. Maybe if more people had a stake in the conflict, people won’t be so absorbed by their bread and circuses.Report

          • Very well. If that’s how we must have it, I’d sooner you raised taxes to pay for the war than take away our civil liberties. Taking away civil liberties doesn’t give me a “stake” in the conflict. It makes me less inclined to support the government, not more.Report

            • Avatar Scott says:

              Just because I’m criticizing Mike’s position that we should “get back to the business of America” doesn’t mean I support curtailing civil liberties for American citizens. Our current conflict has gotten to be like the Korean War, it is there in the background but not really a part of people’s everyday life.Report

  9. Avatar Wayne says:

    And I wouldn’t hang my hat on Greenwald opinions, especially not after his being pwned by Paterico so often.Report

  10. Avatar Wayne says:

    James
    Geneva does not require (though it does not prohibit them either) civilian trials and your quotation does not support your contention.

    “To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons…

    (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    Simple detention is not ” the passing of sentences “, so the entire passage is not applicable to those detained at Gitmo. And beyond that, military tribunals or commissions fulfills the requirements set forth by the article.Report

    • Avatar Jason Kuznicki says:

      Simple detention is not ” the passing of sentences “, so the entire passage is not applicable to those detained at Gitmo.

      And simple murder is not “execution,” so by the same logic it would be fine to just kill them all.

      The problem is that our system doesn’t countenance “simple detention” without sentence. We don’t do that. We’re the United States. You have to be detained for a reason. We also have a way of determining whether that reason is a good one… it’s called the writ of habeas corpus.Report

      • Avatar Scott says:

        Jason:

        I thought you could detain POWs for the duration of the conflict?Report

      • Avatar Wayne says:

        “And simple murder is not “execution,” so by the same logic it would be fine to just kill them all.”

        As a matter of fact, spies caught behind enemy lines can be (and have been) summarily shot without violating Geneva.
        “We also have a way of determining whether that reason is a good one… it’s called the writ of habeas corpus”
        Which has never been applied to unlawful combatants captured on a foreign battlefield. Never. Not once. This is brand new. Applying civilian constitutional protections (as opposed to the rules of warfare, including military tribunals or commission to those accused of violating those rules) to unlawful combatants has never been done.Report

        • Avatar Wayne says:

          “so by the same logic it would be fine to just kill them all.”

          That appears to be the strategy of the Obama administration, as least insofar as Taliban and Al Qaeda still at large are concerned. Look at the large increase in number of UAV strikes since Obama came to power. These attacks do kill the targets (and anyone else who happens to be in the immediate vicinity) but they do not net more detainees that the administration currently has no idea what to do with. (and no actionable intel either, but then how much can you get when you Mirandize them anyway, right?)
          So what’s a human rights warrior/Obama supporter to do?Report

          • Avatar Jason Kuznicki says:

            On a battlefield, it’s completely, entirely fine to just kill all enemy combatants. Once you’ve detained them, it’s another question entirely.

            As to UAV’s, the problem is certainly not that they kill enemy combatants. It’s that they kill innocent civilians, and this violates a different subset of the laws of war.

            Incidentally, do not infer from anything I’ve said that I am an “Obama supporter.” I am no such thing.Report

            • Avatar Wayne says:

              So can I assume you think it is legitimate to consider Pakistan a legitimate battlefield?

              “this violates a different subset of the laws of war.”
              Are you ready then to designate Obama a “war criminal” as so many were so willing to brand his predecessor? If not, why not?

              “Incidentally, do not infer from anything I’ve said that I am an “Obama supporter.” I am no such thing.”
              Unlike Mr. Greenwald, who is nothing if not an Obama sycophant. Interesting.
              That you also agree that Fox News “has churned out years worth of pro-torture “news” advocacy”, a contention that Greenwald can no more support than one that the earth is flat is interesting. Did you give any thought at all to the ridiculous nature of Greenwald’s moronic babblings before decidng that you agreed with “every word of it”?Report

              • Avatar Jason Kuznicki says:

                Are you ready then to designate Obama a “war criminal” as so many were so willing to brand his predecessor? If not, why not?

                As I understand it, yes, I am willing. We employ tactics that I don’t think are permissible under the Geneva Conventions, not just with regard to detainee treatment, but also with regard to weapons and tactics of war.

                And it is entirely apparent to me that Fox News has been a pack of torture-apologists from the moment the allegations were made public. I agree with this claim entirely. I don’t see how anyone can disagree.

                Do I agree with everything else that Greenwald has ever written? No. My claim covered just this one post.Report

              • Avatar Jason Kuznicki says:

                I’d also add, after some thought and puzzlement, that you need to read Greenwald more often. It boggles my mind that he could be called an Obama supporter after the last half a year or so. He’s repeatedly, loudly, and harshly denounced Obama, again and again, for basically continuing everything that was bad about Bush’s civil liberties record. If he counts as an Obama sycophant, then I’m at a loss to understand what an Obama opponent might look like.Report

              • Avatar Wayne says:

                “And it is entirely apparent to me that Fox News has been a pack of torture-apologists from the moment the allegations were made public.”
                So, as you see it, anyone who allows both sides of an argument to be heard, anyone who allows someone like, say, John Yoo to express his point of view are apologists for torture. I got it. Thanks for allowing us readers to see just how expansive your point of view really is…this will come in handy in evaluating your missives in the future.
                ” He’s repeatedly, loudly, and harshly denounced Obama, again and again, for basically continuing everything that was bad…”
                Yes, just like every other far left kook fringe pundit. Anyone to the right of Fidel Castro would come up short in his eyes. I was referring to Greenwald’s stance during the election and immediately afterward. I doubt you find him saying anything negative about Obama’s obvious quest to subsume the private sector with g the federal government and it’s implications for civil liberties, and I doubt he cares all that much about the at least one civil liberty (the right to life) in certain circumstances, either.
                I usually only read his so-called arguments second hand when someone like Paterico demolishes them.Report

              • Avatar Jason Kuznicki says:

                So, as you see it, anyone who allows both sides of an argument to be heard, anyone who allows someone like, say, John Yoo to express his point of view are apologists for torture. I got it.

                Anyone who treats John Yoo as a serious legal scholar, rather than as a shoddy apologist for an obviously illegal policy, is biased. I’ve got no problem at all with that.

                [Greenwald] Yes, just like every other far left kook fringe pundit. Anyone to the right of Fidel Castro would come up short in his eyes.

                You’d be interested, then, in reading what he had to say about Citizens United.

                I was referring to Greenwald’s stance during the election and immediately afterward.

                That’s because Obama promised many things in the area of civil liberties. He failed to deliver, so Greenwald changed his mind. I was never quite as trusting of Obama, personally. Greenwald’s change of tone here is not in doubt, but it isn’t hypocritical or incoherent. He believed a set of promises and was disappointed.Report

            • Avatar Dave says:

              As to UAV’s, the problem is certainly not that they kill enemy combatants. It’s that they kill innocent civilians, and this violates a different subset of the laws of war.

              It may not although I don’t recall the Obama Administration putting forth a legal justification for the strikes. There has been some pushback from left leaning law scholars claiming that they are illegal. It’d be nice if the Administration’s lawyers got off their butts and defended this program. This is what the OLC should be doing.Report

              • Avatar Scott says:

                Firebombing and nukes didn’t bother us during us during WW2 so I fail to see why the US should get it’s panties in a knot over UAV’sReport

              • Avatar Scott says:

                UAVs killing a few people.Report

              • Avatar Jason Kuznicki says:

                I’m sorry that I failed to condemn a couple of obvious violations of the laws of war, committed decades before I was born. I hadn’t realized it was required.

                By the same token, I hereby discount everything you’ve said, too, because Andrew Jackson committed genocide against the Native Americans. And not a peep out of you, Scott. For same!Report

              • Avatar Jason Kuznicki says:

                err, for shame!Report

              • Avatar Scott says:

                Jason:

                You are the one complaining about violations of the Geneva Convention, not me.Report

              • Avatar Jason Kuznicki says:

                Sorry, if you don’t condemn Andrew Jackson, I’m going to have to assume that you supported him. I’m just concerned for consistency, that’s all.

                Really, bringing up World War II is a pure red herring, nothing more. It’s every bit as irrelevant as Jackson. If drone warfare is killing civilians in a way that more conventional tactics would do better at minimizing, then it is a likely violation of the laws of war. Simple as that.Report

        • Avatar Dave says:

          As a matter of fact, spies caught behind enemy lines can be (and have been) summarily shot without violating Geneva.

          No dispute there.

          Which has never been applied to unlawful combatants captured on a foreign battlefield. Never. Not once. This is brand new. Applying civilian constitutional protections (as opposed to the rules of warfare, including military tribunals or commission to those accused of violating those rules) to unlawful combatants has never been done.

          In my previous post, I explain how this statement as it applies to the legal issues surrounding the detainee cases is misleading.Report

          • Avatar Wayne says:

            “Anyone who treats John Yoo as a serious legal scholar, rather than as a shoddy apologist for an obviously illegal policy, is biased.”

            So anyone who treats John Yoo in a manner that conflicts with the point of view of the likes of you, Seymour Hersh and Rachel Maddow is biased. Got it. Thanks for that flesh out.Report

            • Avatar Wayne says:

              And if the congress could bring themselves to write clear and unambiguous laws it wouldn’t have been a problem in the first place. The statute concerning torture was unforgivably vague and ambiguous. When the lives of so many innocents depend on you, I’d wager you’d have a different point of view. It’s easy to armchair quarterback after the fact and with nothing at stake, isn’t it?Report

              • Avatar Jason Kuznicki says:

                The statute concerning torture was unforgivably vague and ambiguous.

                Nonsense. Our laws and international agreements against torture were precise and unambiguous enough to let us condemn the Soviet Union with a clear conscience back in the 1980s. They also allowed us a distinct strategic advantage: enemies knew that if they were captured, they would be treated humanely. This made them more likely to surrender rather than fight to the death.

                Now we’ve been caught doing nearly all of the exact same things that the Soviets routinely did to their dissidents — things like waterboarding, hypothermia, sleep deprivation, mock executions, and stress positions. These are acts we had no problem calling torture before. Because obviously they were. Read your Solzhenitsyn if you doubt me; he discusses how the more dramatic tactics — things like electrocution, burning, and needles under the fingernails — were totally unnecessary, because with the “milder” techniques, you could get anyone to sign any false confession in the world.

                The only difference here is that we imagine we can get actionable intelligence. Even the Cheka didn’t believe that. They just had a quota to fill.Report

              • Avatar Wayne says:

                “The only difference here is that we imagine we can get actionable intelligence.”
                Oh but EITs did in fact yield actionable intelligence (and prevented attacks), according to both Mukasey and Tenet among others Let me guess, they’re part of the conspiracy too, right?
                It always amazes me how so many can offer opinions without having the slightest clue how professional interrogations of that sort are actually performed, clinging to the notion that we are “seeking confessions” and causing pain and discomfort to satisfy some twisted sadism on the part of interrogators. (sometimes I think it is a case of projection on the left in that that is how they would treat a conservative had they the chance)Report

              • Avatar Jason Kuznicki says:

                So you agree, then, that we used the same torture methods as the Soviets? Interesting shift there, isn’t it?Report

              • Avatar Wayne says:

                While there may be some superficial similarities, anyone who thinks they are the same (and done for similar purposes) isn’t to be taken seriously. Unfortunately, you appear to fall into that camp. Unserious.Report

              • Avatar Jason Kuznicki says:

                While there may be some superficial similarities, anyone who thinks they are the same (and done for similar purposes) isn’t to be taken seriously. Unfortunately, you appear to fall into that camp. Unserious.

                Care to explain why it’s different for us to force someone to stay awake for days on end? Is it the color of the uniform that makes it okay? The Chekists wore a uniform with sky blue piping, that must be the problem.

                Also, if I’m unserious, then don’t bother with me. I hadn’t realized I was wasting my time with someone who doesn’t take me seriously. (Believe me, any future comments will be judged in light of your expressed view here.)Report

              • Avatar Wayne says:

                “Anyone who treats John Yoo as a serious legal scholar, rather than as a shoddy apologist for an obviously illegal policy, is biased.”

                You mean like Richard Epstein? I recently heard a debate between he and John Yoo in which Mr. Epstein afforded Mr. Yoo every courtesy and didn’t call him a single name, though he did think Yoo was wrong, of course, in his interpretation of the 1993 law against torture. It’s only wild-eyed unhinged leftists like yourself who conduct themselves in that manner. BTW, how exactly do your qualifications stack up against Mr. Yoo’s?Report

  11. Avatar Dave says:

    (sometimes I think it is a case of projection on the left in that that is how they would treat a conservative had they the chance)

    Are you a real-life comedian?Report

    • Avatar Dave says:

      It always amazes me how so many can offer opinions without having the slightest clue how professional interrogations of that sort are actually performed, clinging to the notion that we are “seeking confessions” and causing pain and discomfort to satisfy some twisted sadism on the part of interrogators.

      The strawman commethReport

      • Avatar Wayne says:

        Perhaps you should direct your straw man accusation at those who compare our behavior with that of the Soviets during the cold war…but that would require consistency…wouldn’t it?Report

        • Avatar Wayne says:

          Above comment was in response to:
          “Are you a real-life comedian?”Report

        • Avatar Dave says:

          Perhaps you should direct your straw man accusation at those who compare our behavior with that of the Soviets during the cold war…but that would require consistency…wouldn’t it?

          I guess the answer to my last question is “Yes”Report

          • Avatar Wayne says:

            Not at all. It isn’t a straw man in the least and if you think it is you haven’t been paying attention. Leftists have been caterwauling about so- called torture in the most extreme and over the top terms ever since the OLC memos were released, if not before.Report

            • Avatar Dave says:

              Though that is exactly what FDR did in fact do. Interesting.

              Even if FDR did unilaterally establish military commissions, the question the Court answered in Quirin was that the military is the proper jurisdiction to try unlawful enemy combatants. This has never been an issue in this discussion. You and I do not disagree on this.

              Quirin never reached the conclusion that FDR’s actions in unilaterally establishing military commissions were constitutional (that in of itself is highly questionable since I think that is a power shared with Congress per Article I) although Justice Jackson did mention it in a concurring opinion. Quirin only answered the question of appropriate jurisdiction. I don’t dispute that.

              Louis Fisher’s work in this area is worth reading. You can peruse this interview where he explains why Quirin is not that applicable to the situation faced by the Bush Administration. He is also quite critical of FDR.

              Quirin distinguished Milligan but does not overturn it. In this situation, Milligan applies.

              http://www.duncanentertainment.com/interview_fisher.php

              So just let the innocents die if it that is the price for affording full constitutional rights for unlawful combatants in civilian criminal court with all the same protections and rules of evidence that citizens get–no military commissions–it just isn’t good enough for suspected terrorists. (though there is absolutely no precedence for such madness) That is your position, is it not?

              Since when does challenging one’s detention in a federal court amount to full constitutional rights. What an absurd thing to say, moreso since nothing I’ve written can be read to understood that.Report

              • Avatar Wayne says:

                “nothing I’ve written can be read to understood that.”

                Well that’s good to know; perhaps I’ve confused your opinion with that of the author and no doubt quite a few (I’d say nine or so) currently employed by the DOJ whose salaries you and I pay. I assume you also disagree with the majority on the court who have granted detainees full access to federal courts and left the details for the lower courts to figure out.
                Thanks for the link and the info.Report

              • Avatar Dave says:

                Access to the courts to challenge their detention should not be construed as full access to the courts since if the government should in fact demonstrate that they have the right person (and the courts, per Hamdi, should provide the government with the widest measure of latitude), then the jurisdiction question is answered. If someone is deemed an unlawful enemy combatant and will be charged with violating the laws of war, the military has jurisdiction.

                Whatever the case, I disagree with your assessments and even if I don’t see completely eye-to-eye with some liberals and libertarians on this issue, they are far closer to being right than the boilerplate conservative view, especially if they haphazardly rely on the opinions of a John Yoo, Dick Cheney or similar ilk who belief that the Commander in Chief Clause embodies the President the ability to change the legal relationship between Congress and the Executive Branch, which would represent a radical departure from the separation of powers principle that is the backbone of our Constitution. If you read the OLC memos redacting Yoo’s positions, he does just that.Report

    • Avatar Wayne says:

      No, I’ve just seen the unhinged rantings of the left.Report

  12. Avatar Wayne says:

    “Also, if I’m unserious, then don’t bother with me.”
    No problem. Consider it done.Report

    • Avatar Wayne says:

      “Care to explain why it’s different for us to force someone to stay awake for days on end?”
      Poor babies, made to go without sleep. Would you like to personally tuck their little terrorist asses in?
      How much sleep do you suppose the families of those killed by some of these madmen have lost? I know, not important, at least not to you.Report

      • Avatar Jaybird says:

        When I argue with a nice (pinko) couple at work, the husband always uses an argument of this form.

        “The system we have now results in (bad thing) and you’re okay with that.”

        I’m the guy who says stuff like “This is legislation written by special interests and won’t actually help”, you see.

        He moves from that to “you’re okay with (bad thing).”

        It generally drives me up the wall, because he’s usually exceptionally wrong about what I am or am not okay with. I’m usually saying “I’d rather make this tradeoff than that one.”

        For the record, you remind me of him.Report

      • Avatar Jason Kuznicki says:

        So…. I’m really just trying to figure this out… sleep deprivation was torture when the Soviets did it, and it’s perfectly fine when we do it.

        Anything else you want to put in that category?Report

        • Avatar Wayne says:

          If the Soviets had done it only under certain conditions to a very select few and for the purpose of preventing a mass casualty attack on their innocents it wouldn’t have qualified as torture then either. But then if a frog had wings he wouldn’t bump his ass so much, would he? You appear to be bereft of any ability to discriminate or apply context in any meaningful way on moral issues, but then you’re a leftist masquerading as a libertarian so I shouldn’t be surprised. Evan Sayet is right. See http://www.youtube.com/watch?v=eaE98w1KZ-cReport

          • “but then you’re a leftist masquerading as a libertarian so I shouldn’t be surprised.”

            It is always amusing to me when conservatives try to define libertarians out of the libertarian movement.Report

            • Avatar Wayne says:

              “It is always amusing to me when conservatives try to define libertarians out of the libertarian movement.”

              Under your apparent definition the likes of Saul Alinsky, Noam Chomsky and Howard Zinn would also qualify as libertarians…not to mention William Kunstler…Report

              • Avatar Wayne says:

                What do you mean, “how so”? You characterize the author as libertarian and disagree with my assessment. From what I’ve read so far, his view of the world differs little from a William Kunstler or a Michael Ratner; for more on Ratner see this piece: http://www.weeklystandard.com/print/articles/dean-gitmo-barReport

              • Avatar Dave says:

                By Wayne’s logic, because I believe that unlawful belligerents should be tried by a military commission, I’m a conservative masquerading as a libertarian.

                Imagine people with different general political viewpoints agreeing on specific issues. I have NEVER seen anything like this happen, certainly not with the early fusionists.Report

              • I didn’t realize that I said that views on one issue were sufficient to make one a libertarian. If, on the other hand, you’re suggesting that by my definition those folks are libertarian on the specific issues of criminal procedure and the War on Terror….well, yeah.Report

              • Avatar Wayne says:

                ” By Wayne’s logic, because I believe that unlawful belligerents should be tried by a military commission, I’m a conservative masquerading as a libertarian.”
                That isn’t true. My comment was concerning Mr. Kuznicki and Mr. Greenwald, not you, Dave. I believe we agree more than disagree on this issue. Sure, there are left-leaning libertarians and I often wonder how they reconcile their leftist/statist views with their libertarianism. I consider myself a strong national defense-libertarian, which differs from say, a Ron Paul, who appears to be living in late nineteenth or early twentieth century at best in matters of national security and free trade. As I see it the values of a Kuznicki or a Greenwald, (or a Kunstler or a Ratner) if put into practice would in fact spell defeat for the West in it’s struggle against radical Islam.Report

              • Avatar Wayne says:

                ” If, on the other hand, you’re suggesting that by my definition those folks are libertarian on the specific issues of criminal procedure and the War on Terror….well, yeah.”
                That would depend on what informs those beliefs, the idea that the constitution should apply to everyone, everywhere (wrong, but somewhat understandable) or a hatred for America itself, which does appear to inform the beliefs of those I’ve mentioned.Report

              • Ah, that old saw. I didn’t realize that Jason’s beliefs were informed by a hatred of America itself rather than merely a belief in limited government and constitutionalism and a belief that the American government should be criticized when it deviates from those norms. This will, I’m sure, be news to Jason. I’m sure you know better than he what informs his beliefs (and better than I what informs mine).Report

  13. Avatar Jaybird says:

    As I see it the values of a Kuznicki or a Greenwald, (or a Kunstler or a Ratner) if put into practice would in fact spell defeat for the West in it’s struggle against radical Islam.

    I can appreciate what you see as your struggle, Wayne.

    I’m of the opinion that iPods, Levis, and lipstick would be able to topple Islam in less than one-tenth the time and with fewer than one-tenthousandth the amount of casualties… but, of course, that would involve not telling other people how to live their lives at the point of a gun.Report

    • Avatar Wayne says:

      “I’m of the opinion that iPods, Levis, and lipstick would be able to topple Islam in less than one-tenth the time and with fewer than one-tenthousandth [sic] the amount of casualties…
      The issue then, taking your statement at face value, is Islam’s recalcitrant and belligerent rejection of modernity; that is something you need to take up with them.
      ” that would involve not telling other people how to live their lives at the point of a gun.”
      That not standing for the wanton killing of our people by the thousands is “telling others how to live” in your view is instructive. I suspect you think that 9/11 was actually our fault , right?Report

  14. Avatar Wayne says:

    ” Ah, that old saw. I didn’t realize that Jason’s beliefs were informed by a hatred of America itself rather than merely a belief in limited government and constitutionalism and a belief that the American government should be criticized when it deviates from those norms. This will, I’m sure, be news to Jason. I’m sure you know better than he what informs his beliefs (and better than I what informs mine).”
    My comment was measured and careful; I did not presume to know what informs you or Jason’s beliefs; maybe if you didn’t often sound so much like Kunstler, Chomsky, et al, there would be less confusion.Report