The Real Miscarriage of Justice

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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6 Responses

  1. Avatar Bill Kilgore says:

    I agree with your point 2, but I don’t think you’ve completely answered the concern in point 1 assuming that point 1 doesn’t only deal with what was articulated at Powerline.

    Taking a broader view of the issue, there is no real debate that certain individuals, who are outside of the US, are interested in attacking civilians inside (and outside) the US. Many of these individuals are currently in Afghanistan and Pakistan and are in areas of those countries where civilian law enforcement (whether US or Af/Pak) cannot reach them. Accordingly, we are confronted with a scenario where people who endeavor to attack US civilians are being captured by members of the US military (or members the Af/Pak military) who are not, as a practical matter, in a position to insure that civilian standards of detention are followed with respect to captured individuals. The notion, which some seem to accept as a given, that such persons are appropriate for Article III courts is not clear. There are substantial dangers to using Art3 courts in this fashion.

    Either we agree that we will allow for Art3 courts to accept substantial deviations from typically acceptable state conduct and still allow the state to prosecute those individuals- an uncomfortable precedent at best- or we simply accept that we try these individuals in a venue that increases the likelihood that substantial evidence will be excluded. Even when torture is not implicated in any way. It is not clear that such is a sound effort and it is completely unclear why should we simply accept that it is.

    I’m not about to articulate a complete policy in these matters (and I’ll admit I’d have trouble doing so) but being very uncomfortable with the “have the military scoop them up and bring them in for a civilian trial” is a completely reasonable and defensible position, irrespective of how poorly it may be articulated in certain quarters. And the people who are advocating for that policy have, IMO, done a very poor job of dealing with its practical problems.

    Obviously, because torture was implicated here, we can point to that and ignore the larger inquiry. Additionally, your precise point that this specific trial does not foreclose using Art3 courts in these matters is sound. But on the larger point, I don’t think the answers have been provided by those who advocate for this course and this seems like a perfectly reasonable time for those who oppose this course to ask for those answers.Report

    • I agree that the issue here more generally is fairly complicated, and there are a lot of vagaries that exist thanks to Congress’ failure to act in the wake of SCOTUS precedent that (correctly IMHO) overruled much of the original regime. I’ve criticized that failure to act in the past, and think it’s a particularly inexcusable abdication of responsibility on Congress’ part.

      In terms of an actual legal regime, one of the primary problems we seem to have is this gray area between the Geneva conventions and US law, which is exacerbated even more by the fact that we aren’t in a conflict with a cognizable legal entity. In the absence of Constitutionally valid procedures set up by Congress, we’re basically forced to fall back on what we’ve got, which is essentially the Article III courts.

      But whatever system we put in place, the cornerstone has to be that we are only detaining people captured abroad for any significant length of time after we have been able to demonstrate to a legal certainty that they are in fact a threat to the United States or guilty of some crime properly within the jursidiction of the United States.

      I have some thoughts on what kinds of systems I think might work better, but don’t have time to write them out right now.Report

      • Avatar Koz in reply to Mark Thompson says:

        “But whatever system we put in place, the cornerstone has to be that we are only detaining people captured abroad for any significant length of time after we have been able to demonstrate to a legal certainty that they are in fact a threat to the United States or guilty of some crime properly within the jursidiction of the United States.”

        Here’s something I don’t get about the whole subject. Some of the controversy over detainees has to do with supposed misclassification of enemy combatants. But not most of it, and not here (or with KSM for that matter).

        So why do we need to try them at all? They may be POWs or some lesser status but they don’t have to be guilty of any crime, either a civilian crime or war crime. They are combatants for the other team so under any formulation of the laws of war they can be held until the war is over. If this is right (and I think it is) how do trials in the civilian justice system help us?Report

  2. Avatar Bill Kilgore says:

    While there is some support for your argument Koz, the primary problem with it is that it assumes that our President can hold people indefinitely and that such people have substantially no recourse to challenge that detention. For obvious reasons- even if legally permissible- that solution is problematic. The need to try them ultimately is for our own benefit- it has substantially nothing to do with KSM or his concerns.

    Where I disagree with Mark is that we did have a pretty reasonable framework for working these things out in the 2006 MCA. It was hardly perfect of course, but it did offer some predictability and provide for some level of a check on the President. And, most importantly, it followed, in many respects, the framework laid out in Ex Parte Quirin. Now, I take no issue with those who still had concerns with the MCA, but certain of the arguments against it (particularly SCOTUS’s efforts in Boumidienne) are woeful.

    The real problem here that I see is that we are faced with individuals who are clearly not “typically” civilian in nature, nor are they clearly military for Geneva purposes. Accordingly, they are a third class and must be treated in such a way so as to provide for reasonable national defense, but not in a way that jeopardizes how we deal with the other two classes. To my mind Quirin (and the MCA) strike the best balance on that score. Now, it may be that people reject that balance based on policy grounds. But the lack of specific engagement on some very basic questions on this issue lead me to conclude that a substantial number of people rejected the the Quirin/MCA approach because of “Bush” and little besides (that is not an indictment of this post’s author.) Not only is that disappointing, it makes it substantially impossible to resolve the issue. Particularly if (in what would be very unusual) Bush stumbled upon the best of a bunch of bad options in this matter.Report

    • Avatar Koz in reply to Bill Kilgore says:

      “While there is some support for your argument Koz, the primary problem with it is that it assumes that our President can hold people indefinitely and that such people have substantially no recourse to challenge that detention. For obvious reasons- even if legally permissible- that solution is problematic. The need to try them ultimately is for our own benefit- it has substantially nothing to do with KSM or his concerns.”

      Why is that, what do we get out of (successfully) trying KSM? Btw, speaking for myself at least I don’t have any problems with detainees challenging their detention. The point being that they are being detained as being enemy combatants so the substance of the challenge is that they’re not. For most of them, that’s not really an issue anyway.Report

      • Avatar DensityDuck in reply to Koz says:

        “what do we get out of (successfully) trying KSM?”

        Well, the intent was to set a legal precedent that detainees could be held as criminals without needing to use the “enemy combatants” dodge (or invent a “third class” as Kilgore suggests.)Report

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