Too Depressing

by Jon Mandle on October 12, 2004

This is just too depressing. It’s really amazing – and doubly depressing – that this kind of thing isn’t even surprising anymore. Can anybody plausibly say, “No, it’s just not credible that the US would do that“?

{ 81 comments }

1

lemuel pitkin 10.12.04 at 3:45 pm

I’m tempted to quote the famous Niemoller lines: “First they came for…”

But then I recall the US Holocaust Museum, where they are emblazoned prominently — minus “they came for the Communsists,” which is present in every quoted version. Apparently coming for the Communists was OK. So one of the most powerful indictments of indifference to the fate of others has become an excercise in indifference to the fate of others.

In short, language is powerless here. There’s nothing to say…..

2

Giles 10.12.04 at 3:58 pm

err jon if you read the article you’ll see that they’ve “disappeared”, not disappeared.

Tanks for the worries though.

3

Giles 10.12.04 at 3:58 pm

err jon if you read the article you’ll see that they’ve “disappeared”, not disappeared.

Tanks for the worries though.

4

Steve Carr 10.12.04 at 4:04 pm

Are you seriously drawing an analogy between the secret imprisonment of the man who was responsible for the 9/11 attacks and the Nazi war on the Jews? With all due respect, give me a fucking break.

5

Stacy 10.12.04 at 4:13 pm

Where do you draw the line? If it’s ok to disappear the architect of the 9/11 attacks, and it’s ok to disappear a man who would have been one of the hijackers, is it ok to disappear someone who might have been considered as a hijacker at one point? How about someone who wanted to hijack a plane but wasn’t allowed to? How about someone who grew up next door to a hijacker? How about someone who thinks that terrorism is wrong, but sympathizes with some of the terrorists’ grievances?

6

Ken C. 10.12.04 at 4:19 pm

“Are you seriously drawing an analogy between the secret imprisonment of the man who was responsible for the 9/11 attacks and the Nazi war on the Jews? With all due respect, give me a fucking break.”

Since Niemoller dares to mention “coming for” Communists, Catholics, and Protestants in parallel with “coming for” Jews, perhaps it’s Niemoller who should give you a fucking break.

7

Steve Carr 10.12.04 at 4:24 pm

Ken, maybe I missed something. What is it that being a Communist, Catholic, or Protestant has in common with being someone who orchestrated the murder of 3,000 people?

8

Katherine 10.12.04 at 4:25 pm

“But then I recall the US Holocaust Museum, where they are emblazoned prominently — minus “they came for the Communsists,””

seriously? Jesus.

Niemoller’s quote does not begin with “first they came for the mass murderers”, but we have already disappeared low level terrorists as well as high level and innocent men as well as guilty.

9

roger 10.12.04 at 4:26 pm

Steve, apparently you haven’t heard of the Reichstag fire. A terrorist attack on a great German institution. And we know those institutions had to be protected with extraordinary measures. After all, the Reich was falling apart, there were riots in the streets, and it was surrounded by a global enemy…

But of course, we can’t compare such obviously spurious rhetoric with the selective tortures managed by our own much more humane government officials. One of whom, in 1985, felt moved to shake the hand of Saddam Hussein and offer him an American alliance on the same day that the news of the first gassing of the Kurds emerged. And one of whom has written in praise of the greatness of Suharto, the Indonesian dictator who disposed of around 600,000 people in Indonesia in the sixties.

10

Steve Carr 10.12.04 at 4:29 pm

Katherine, is that true? (The Gitmo prisoners were/are not disappeared in any sense — we knew where they were, and more than a few have already been released via judicial or other proceedings.) The HRW report that Jon links to says there are eleven detainees who are being held in secret, and that “Almost all are allegedly leading members of al-Qaeda.”

As you suggest, the Niemoller quote reads rather differently if it starts, “First they came for the fanatical, mass-murdering terrorists, and I said nothing.”

11

Katherine 10.12.04 at 4:30 pm

I’m not sure the Niemoller quote is offensive, but comparing 9/11 to the Reichstag fire definitely is.

Who’s praised Suharto?

12

Steve Carr 10.12.04 at 4:33 pm

Roger, so you’re seriously drawing an analogy between shaking Saddam Hussein’s hand and what the Nazis did? That’s some class-A thinking.

13

lemuel pitkin 10.12.04 at 4:38 pm

Niemoller quote reads rather differently if it starts, “First they came for the fanatical, mass-murdering terrorists, and I said nothing.”

Depends what you think of Communists. For plenty of folks in 1930s Germany — and not a few today — I think that’s how the quote does read….

14

des von bladet 10.12.04 at 4:39 pm

Can anybody plausibly say, “No, it’s just not credible that the US would do that“?

Sorry, we’re fresh out of “No, it’s just not credible that the US would do that“?

But we’ve got a special offer on “Big frigging deal; it’s no more than they deserve!”

15

Ray 10.12.04 at 4:39 pm

“As you suggest, the Niemoller quote reads rather differently if it starts, “First they came for the fanatical, mass-murdering terrorists, and I said nothing.””

How about “First they came for people WHO ARE ALLEGED TO BE fanatical mass-murdering terrorists, and I said “Well, if you say they’re mass-murdering fanatics, who am I to argue?”

Anyway, I thought the US had already ‘disappeared’ Iraqi scientists and high-ranking officials – denying that they were held, denying anybody access, etc, etc?

16

Katherine 10.12.04 at 4:40 pm

I’m referring to “extraordinary rendition” which I’ve gone on about in excruciating detail elsewhere–I don’t really know which post to start with anymore but this one might serve.

17

ian 10.12.04 at 4:51 pm

If we have reached the point where detaining uncharged suspects in secret locations, whatever their possible crime, is acceptable to even a significant minority of US citizens, then we really need to start worrying.

And yes – supporting Saddam and Suharto is on a par with supporting the Nazis.

18

GMT 10.12.04 at 5:25 pm

Yup. Taught them Latin American ever-thang they know about leadershipin’!

19

Reimer Behrends 10.12.04 at 5:25 pm

Steve, I think you are reading too much into the analogy; what most people here seem to be worried about is the appearance that parts of the US government consider the fifth, sixth, and eighth amendment to be entirely optional parts of the US constitution.

20

Steve Carr 10.12.04 at 5:45 pm

If I had my druthers, the ghost detainees would not be held in secret. But I’m mystified by the idea that Khalid Sheikh-Muhammad, et.al., are guaranteed the same rights as an American citizen — as Reimer’s reference to the fifth, sixth, and eighth amendments suggests. Would you have argued that German SS members be tried individually for their crimes rather than held as POWs until after hostilities ceased?

21

lemuel pitkin 10.12.04 at 6:02 pm

Steve, the Bill of Rights makes no reference to American citizens. E.g. the 6th: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

22

bob mcmanus 10.12.04 at 6:03 pm

“No, it’s just not credible that the US would do that”?

I beg your pardon, but I have not done that, nor do I approve of it. Most private citizens and employees of the US gov’t also cannot be held directly responsible for such actions. To the degree I am indirectly responsible, I exercise that responsibility in part by asking you to be more specific as to the parties that are more directly responsible.

As a citizen, I also believe that to the degree my gov’t or portions of it are responsible for such behavior, it comes very close to losing its legitimacy and claims upon my loyalty, and any special protections. A regime or temporary tyranny that abandons allegiance to the rule of law can claim no protection for itself or himself in the law, nor demand that those it tyrannizes are bound by the law it so demonstrates contempt for.

23

lemuel pitkin 10.12.04 at 6:05 pm

Oops, 5th I mean.

The larger point is that any restriction on civil liberties will begin with those least likely to receive public sympathy. So yes, it’s preceisely the treatment of Khalid Sheikh Mohammed we should be woried about….

24

thm 10.12.04 at 6:20 pm

Isn’t everyone forgetting to use the word “suspects”?

25

Matt McGrattan 10.12.04 at 6:38 pm

I thought the basic point here wasn’t about the US constitution. It may be debatable — as a point of legal principle — whether rights specifically enshrined in the US constitution apply to non-US citizens (when within US jurisdiction).

Rather the point was that in holding these detainees without trial and in secret locations they are acting in violation of any number of international treaties and agreements which the US has ratified. And those rights – as specified in those treaties – DO apply to non US citizens.

The fact that these people are supposedly guilty of some heinous crime ought to make no difference in these cases. Especially when we are merely told they are guilty with little evidence made available and with no public hearing.

They may well be guilty and in which case they ought to be prosecuted and convicted and then punished according to law. Prior to such a trial they are as entitled to protection under the various international treaties which govern such a process as anyone else.

26

bob mcmanus 10.12.04 at 6:45 pm

I grow tired of discussing torture.

There be political scientists nearby, who, while avoiding the specific merits of a particular situation, might be able to help me understand the theorey and philosophical history involved in my second paragraph above.

Are there precedents that grant my formulation any justification? I thank you in advance. :)

27

bryan 10.12.04 at 6:54 pm

first they came for the people that everyone agreed they should come for and I said “YAY!”, then they missed some of the people everyone agreed they should come for and i said “oh well can’t win them all”, then they came for a bunch more people and said these are people we should come for and i figured “well they probably know what they’re doing”, then they came for some people that had names like the names of people who said don’t come for those people and I said “dumbasses”, and then they came for some people who had pissed them off one time back when they all used to be friends and i said “well those are bad people too, let’s get em” and then they came for a bunch of people that didn’t like the people that they came for before and were supposed to be throwing roses at us and had nasty unwanted sex with them and took homemade porno movies and also killed some and I said “that’s fucking nasty dude” then they came for some people that they said they should have come for earlier so is it okay if we come for them now, but they wouldn’t tell me who they were coming for or if they indeed had come for them and I did the crossword cause this shit is weird, and then they came for the people who wouldn’t help them come for people because coming for people was immoral and I said “hah hah, you’re all gonna die now, schadenfreude makes me feel good” and then they came for somebody who’d seen them coming for all those other people and had the time to build some really cool weapons and they got their asses handed them on a plate. no wait, that’s a preview.

28

Walt Pohl 10.12.04 at 7:03 pm

Steve, and other apologists for this current disgrace: We have an excellent method for dealing with Kalid Mohammed and others of his ilk — it’s called the rule of law.

29

Kieran Healy 10.12.04 at 7:12 pm

Would you have argued that German SS members be tried individually for their crimes rather than held as POWs until after hostilities ceased?

Eugene Volokh “released that canard”:http://www.crookedtimber.org/archives/002092.html into the wild.

30

bob mcmanus 10.12.04 at 7:35 pm

“First they came for KSM, and I…”

OK. I might be in the grip of delusion and hyperbole. I mean no harm to come anyone’s way. So I will ask it this way.

1)Are we so far removed from the conditions of my 6:03 post that is silly and ridiculous to discuss it?

2) Are we near enough the conditions of my 6:03 post that it is actually dangerous to discuss it?

I would presume a mere response of “2nd” would put no-one in jeopardy.

I myself don’t know all the specific provisions of the various Patriot acts, but would not be shocked to hear a knock on my door.

31

Steve Carr 10.12.04 at 7:39 pm

Kieran, what’s the answer to the question? Your post about Volokh’s comment contains zero substantive commentary, merely an ad hominem attack which I think is supposed to refute his argument.

The question is a simple one: Do you think SS soldiers should have been put on trial for their crimes before the end of hostilities? Answer it. Don’t link to a previous post of your own which adds nothing to the discussion.

And by the way, I am absolutely opposed to the use of torture against anyone, including KSM, not because it will lead us down some Niemollerian slippery slope — it won’t — but because it’s wrong. But that’s completely separate from the question of whether we need, as HRW and others here seem to be suggesting, to treat al-Qaeda leaders as criminal defendants who should be allowed to communicate with their lawyers.

32

Niemoeller quote 10.12.04 at 7:47 pm

FWIW, there does not seem to be an authoritative version of the Niemoeller quote, rather it evolved through several versions that converged in form to something similar to the most often heard version. Harold Marcuse has all of the gritty details; in brief, the order ought to reflect the historical norder that the Nazis came for the groups, and it certainly should include the Communists and exclude the Roman Catholics.

33

Katherine 10.12.04 at 7:48 pm

Most of the Bill of Rights apply not only to Americans, but do apply only on U.S. soil. There is a dispute about what counts as U.S. soil. For some purposes, airports before you clear immigration don’t count. The government argues that Guantanamo counts. Even if Guantanamo counts it’s not clear whether, say CIA interrogation facilities abroad, or U.S. planes and ships, count.

I want some law to apply. I think international law is a lot more workable than the full protection of the Bill of Rights; I think we need to be able to interrogate terrorists and also imprison them afterwards. But torture, indefinite detention without a hearing, disappearances…these are not acceptable to me. Unlimited executive power, unbound by law, over any person is not acceptable to me.

34

Katherine 10.12.04 at 7:51 pm

steve carr–the President has said that only he has the power to determine when this war ends, and it may never end. He also does not want to treat captured Al Qaeda members as POWs, and would prefer not to have to obey the Convention Against Torture.

35

Uncle Kvetch 10.12.04 at 7:53 pm

The question is a simple one: Do you think SS soldiers should have been put on trial for their crimes before the end of hostilities?

Steve, what specific event would constitute the “end of hostilities” in the context of the War on Terror? Assuming that “Terror” is not going to emerge from its hole waving a white flag, how will we know when it’s safe to stop “disappearing” suspected terrorists?

36

Katherine 10.12.04 at 7:57 pm

and if you can disappear people, deny them any hearing or any recourse to the courts, deny them a lawyer, and hide from the Red Cross, and authorize “coercive interrogation techniques” such as temperature extremes, “stress positions”, “waterboarding”, sleep deprivation, selective administration of medical care, the use of dogs for intimidation, etc. Even if none of the above counts as torture there is nothing to prevent them from being tortured. It may be government policy or it may bethe misconduct of a few rogue “bad apple” interrogators when they are given absolute power over prisoners, but it is a completely predictable outcome.

37

Kieran Healy 10.12.04 at 8:03 pm

Kieran, what’s the answer to the question? Your post about Volokh’s comment contains zero substantive commentary, merely an ad hominem attack which I think is supposed to refute his argument.

Volokh’s “argument” is absurd on its face — the kind of ridiculous hypothetical that, coming from someone like him in the context of actual efforts to practice and legitimize torture within the U.S. state, just undermines his status as an authoritative voice on the relationship between law and personal freedoms.

The question is a simple one: Do you think SS soldiers should have been put on trial for their crimes before the end of hostilities? Answer it.

No. SS leaders were prisoners of war, subject to well-established legal conventions for the treatment of military prisoners and put through a legal process following the end of the war. The U.S. is not treating the Al-Qaeda suspects it has detained as criminal defendants. But they are not treating them as POWs, either. Instead, they have invented by fiat the category of “Enemy Combatant” and asserted that anyone whom they label as such — even U.S. citizens — can be deprived of all their legal rights without appeal and — before the ‘extraordinary rendition’ bill rand into trouble — shipped if needed offshore to be tortured. If that doesn’t bother you, you have _vastly_ more confidence than any reasonable person should have in the ability of the U.S. state to identify real terrorists without error. Just look at the disastrous outcome of the “Yaser Hamdi”:http://slate.msn.com/id/2107114/ case. Held in solitary confinement for over _two years_, and denied legal representation on the strength of a two-page list of assertions by a government bureaucrat who had never met him.

38

Katherine 10.12.04 at 8:11 pm

“Enemy Combatant” and asserted that anyone whom they label as uch — even U.S. citizens — can be deprived of all their legal rights without appeal and — before the ‘extraordinary rendition’ bill ran into trouble — shipped if needed offshore to be tortured”

Oh, they still can! (Not U.S. citizens though.) The bill would have made it DEFINITELY legal, but the administration will certainly still argue that it’s legal anyway, as long as they can get a “promise” from Syria or Egypt not to torture the suspect–even if it’s perfectly clear that promise is false. And the administration will continue to do it.

U.S. citizens cannot be “rendered” though.

39

tim 10.12.04 at 8:37 pm

First they came for the terrorists, and I said nothing.
Then they came for the convicted murderers, and I said nothing.
Then they came for the convicted thieves, and I said nothing.
Then they came for the suspects and alleged criminals, and still I said nothing.
Then I tripped and slid to the bottom of that damn slippery slope, and broke my leg, and sat there wishing someone would come for me.

40

y81 10.12.04 at 8:39 pm

1. This isn’t really news, is it? I mean, Khalid Shaikh Muhammad was arrested some time ago, and I haven’t seen any press releases from anyone claiming to be his lawyer, or any news articles describing his captivity, or been able to google his current location, so I for one knew all along that he was being held at an undisclosed location. (My guess is Diego Garcia, but it’s just a guess.)

2. Is it the theory of Katherine, Kieran et al. that KSM was entitled, immediately upon coming into U.S. custody, to meet with a lawyer, to communicate with his family and friends etc.? That doesn’t seem like a good plan to me. You seem to think that he is entitled to be treated better than a POW would be. I admit that the Supreme Court may well agree with you, but they haven’t been very definite, and I certainly don’t agree.

3. I don’t get this “indefinite” thing. All wars are indefinite in duration. KSM has been held for much less time than, say John McCain, or Gary Powers, or lots of people. Perhaps Jon Mandle was concerned about them at the time, but somehow I doubt it.

41

robbo 10.12.04 at 8:50 pm

Let me help clear up “the ‘indefinite’ thing” for you y81:

The “War on Terror/al Quaeda/Ayrabs” will never end. Nor will the “War on Drugs.”

World War II ended. Get it now?

42

jif 10.12.04 at 9:08 pm

How about the same rights as a POW?

All wars are indefinite, yes. However, a war between states has a more easily imaginable end than a war against a tool (terrorism).

43

Steve Carr 10.12.04 at 9:15 pm

Robbo, let’s say we went for a decade without an Islamist terrorist attack against Americans — at home or abroad. I’d say that that would mean that this “War on Terror” had ended. Is that outcome utterly improbable? I don’t think so, even if I don’t think it’s likely. So why pronounce with such definitiveness that the War on Terror will never end?

As far as the POW question goes, are non-signatories to the Geneva Convention assured of the protections of the Geneva Convention?

44

Paul 10.12.04 at 9:19 pm

KSM has been held for much less time than, say John McCain, or Gary Powers, or lots of people.

Thanks anonymous idiot, but most Anglo/Euro/Americans don’t want to model our laws on North Vietnam or North Korea. I think that’s what your missing.

45

jet 10.12.04 at 9:33 pm

I see you haven’t been reading your Machiavelli. If giving more international aid, stopping more wars, and saving Muslims in Europe from Christian aggressors hasn’t earned us any points with potential terrorists, then maybe scarring them with torture will. Ask Jordon or Syria if they’ve had any uprisings lately. Has Turkey had to put down any rebellions recently?

These people aren’t just like Americans. They have different goals, drives, and values. They compete for world resources as do we. We think we are being mostly fair, they want to blow up our children and wives. We want a dialogue, they want to shoot bullets.

Machiavelli has the answer and its that maybe making some truly bad guys “disappear” isn’t such a bad idea.

46

Steve Carr 10.12.04 at 9:39 pm

I believe KSM, et.al., should be treated as POWs, and that the Red Cross should be allowed access to them. But that’s a long way from what HRW is arguing in the piece Jon linked to, where it calls for Al Qaeda members to be brought to trial, and terms their deeds “serious crimes” rather than acts of war.

47

Uncle Kvetch 10.12.04 at 9:49 pm

Robbo, let’s say we went for a decade without an Islamist terrorist attack against Americans — at home or abroad. I’d say that that would mean that this “War on Terror” had ended.

And a lot of other people might say no, we have to wait 5 more years…or 10, or 25, or 50. Who decides, Steve? You? The President? John Ashcroft? We’re talking about the indefinite detention of suspects here, and you pull a number out of thin air to suggest that when this “war” is over, somehow we’ll all know it. That is absolutely senseless–and given that we’re talking about potentially innocent people “disappearing” forever, it’s positively chilling.

48

Robin Green 10.12.04 at 9:57 pm

Machiavelli has the answer and its that maybe making some truly bad guys “disappear” isn’t such a bad idea.

Aside from the rest of your frankly disgusting post, jet, how do you know these people that have been disappeared are all “truly bad guys”? Do you propose to trust Bush because he hears voices in his head which he attributes to God?

49

abb1 10.12.04 at 10:08 pm

Any one of you here – including Steve Carr and Y81 – can be declared a terrorist, mass-murderer, illegal combatant, Christian babies blood sucker or whatever evildoing is fashionable at the moment.

All it takes under certain circumstances is, probably, one anonymous phone call.

Then you – that’s you Steve Car – will be disappeared.

Is this really so difficult to understand?

50

HP 10.12.04 at 10:11 pm

Has anyone here seen Takeshi Miike’s Ichi the Killer? A cowardly, emotionally stunted man is armed to the teeth and then manipulated into believing that rival yakuza are schoolyard bullies who won’t stop picking on him. Carnage ensues. It suddenly seems relevant.

51

Dan Hardie 10.12.04 at 11:05 pm

‘Has Turkey had to put down any rebellions recently?’

Yes it has, you howling cretin, and rather a big one too. I seem to remember it lasted several decades, torture and ‘disappearances’ notwithstanding, and may have involved people called ‘Kurds’.

52

Dan Simon 10.13.04 at 12:14 am

There’s a point that I think is being missed here: believe it or not, the government institutions engaged in these actions do not have as their sole object the protection of the civil liberties of all the world’s citizens from said institutions’ own depradations. They are also–when they are finished justifying their deeds to critics on Crooked Timber and elsewhere–responsible for actually protecting the public.

And time and time and time again, the rules that have been imposed upon them in the name of civil liberties have proven devastatingly effective at preventing them from doing the task they were put in office to do.

Personally, I would prefer that the process of defining procedures for the authorities to follow in the US were more responsive to circumstances and to the public’s wishes, so that they could be made effective without completely escaping the constraints of law and society. But the ugly truth is that if the government can’t protect its citizens by following the rules as they are defined, it will inevitably attempt to bend those rules–and the results are bound to be the worst of both worlds.

So far, all I’ve heard from the folks at Crooked Timber is, “there are established standards for dealing with criminals or POWs, and the US government is not adhering to them.” Well, I’m afraid that if those standards end up facilitating the operations of terrorist groups against US citizens (as they appear already to have done), then those standards will be flouted. Your only question should be whether you’d rather have some lower standard applied, or none at all.

53

san dimon 10.13.04 at 12:58 am

ds, You’re pulling no one’s leg but your own. The self-serving (literally) links you provide do nothing to demonstrate that “standards” of commitment to civil liberties have in any way harmed US security.

54

Katherine 10.13.04 at 1:00 am

Here is the minimum standard of liberty I think:
1. No torture.
2. People cannot be detained indefinitely or executed without some genuine right to contest their guilt and/or their status as an Afghani POW instead of an “enemy combatant”–a hearing before a neutral factfinder of some sort, with an ability to confront the evidence against you and some power to produce evidence.
3. Some way of verifying 1 & 2.
4. It’s no good farming out torture to other countries either.

Here is the minimum standard of safety:
1. No right to remain silent–we need to be able to interrogate without forfeiting the right to imprison someone even if he turns out to be guilty.

All of this is for non-citizens outside the U.S. Inside the U.S. the Constitution applies fully unless Congress votes to suspend the writ of habeas corpus.

Right now there are effectively no legal limits, and we simply don’t know what the practical limits have been but the evidence is not encouraging. People who argue that suspending the law will cause severe human rights abuses and do severe harm to the world’s opinion of the U.S. have produced more evidence than people who argue that suspending the law is the only way to save lives.

55

y81 10.13.04 at 1:04 am

abb1, as I sit in my office on a high floor in a Manhattan office building, it isn’t John Ashcroft I worry about. When I send my daughter off to a Manhattan school, and my wife goes off to another office building a few blocks from Ground Zero, it really isn’t John Ashcroft who may prevent their coming home. My policy preferences, and my voting behavior, will reflect those rather simple facts.

Paul: (i) actually, Gary Powers was held by the Soviet Union; quite a few European intellectuals and academics wanted to have laws modelled on those of the USSR; and (ii) do you find that calling people “idiot” tends to make them more likely to agree with you, or less?

56

katherine 10.13.04 at 1:09 am

But I see from your links that there’s no point in arguing with you. I mean, anyone who would write the sentence…””After all, among feared enemies threatening to destroy America’s armed forces, the Taliban have nothing on the US Supreme Court.”
” Citing cases where the courts did not let the Bush administration do whatever it wanted does not prove anything about whether those court decisions hurt our security.

Our system treats people differently when they are not mentally competent. You think this is a bad idea? Okay, but it’s not like Moussaoui was released to kill again.

There is a very simple solution to Moussaoui’s attempt to subpoena testimony: you instruct the jury to assume that the witnesses would confirm his story. Since the testimony of Khalid Sheikh Mohammed or whoever will not be convincing at all to any American jury, this should not be fatal to the prosecution.

Yasser Hamdi’s case would not have been treated as a normal criminal case. It was only held that indefinite imprisonment based on a two page summary from a government bureaucrat who never met him was not compatible with the Due Process clause of the Constitution.

Is that the best you’ve got? Because I’ve got evidence of people tortured in Syria and Egypt, at least of one of whom was probably innocent. If that’s not “no rights” what is?

57

bob mcmanus 10.13.04 at 2:04 am

“Here is the minimum standard of safety:
1. No right to remain silent—we need to be able to interrogate without forfeiting the right to imprison someone even if he turns out to be guilty.”

Katherine, I would prefer that stated as “maximum allowable abrogation of rights” or something. I am fairly sure what you intended, but the words are unclear.

And I am not sure I could agree on even that provision. Several years ago, I argued with you in that whatever principles might be involved, the actual numbers of abuses did not warrant undue concern in times of war.

I no longer worry about incremental loss of protections, or slippery slope arguments. I see a bright line that may not be crossed, for no gov’t once it decides it is not constrained by the rule of law can or will put those shackles on again. Save for temporary expediency. They certainly cannot be trusted in any other aspect of governance, especially their willingness to have their legitimacy determined by the people.

58

Badtux 10.13.04 at 2:32 am

“Those people….”

Whenever I see a sentence start with those two words, I immediately tune out, because I know what’s going to follow: a racist screed claiming that “those people” are not people like you and I, are not human, do not have the same human desires for food and shelter and clothing and warmth and love, are not worthy of the simplest of human rights that we Americans take for granted… in short, are untermenschen, mud people, not REAL like you and I.

I would have pity on those who start sentences with “Those people”, except that I know better. People who start sentences with “Those people” have been responsible for every genocide, every mass murder, every atrocity against innocents ever perpetrated on this planet, and at the very least deserve immediate rebuke and scorn.

– Badtux the Libertarian Penguin

59

Dan Simon 10.13.04 at 2:39 am

Actually, Katherine, I agree with you that it is worrisome that “Right now there are effectively no legal limits, and we simply don’t know what the practical limits have been”. My point was that this state of affairs isn’t the product of random chance, or even authoritarian malice–rather, it’s the result of a system whose “legal limits” have in several cases prevented the US government from taking utterly obvious, perfectly reasonable precautions to protect the safety of American citizens.

In the Moussaoui case, judges have required that a confessed al Qaeda member be able to obtain summaries of the interrogations of, and ask direct questions to, several captured high-level Al Qaeda leaders. In the Hamdi case, the courts required that a Taliban prisoner captured in combat stand trial and be proven beyond a reasonable doubt to have been in fact fighting against US troops. And although it could have been a simple mistake, it seems likely that the release from Guantanamo of the Taliban leader who was later killed fighting US forces in Afghanistan was at least partly a sop to those jurists demanding trials (or even immediate release) for all the Guantanamo detainees.

Now, you may believe that keeping Taliban or Al Qaeda prisoners away from each other, not revealing the information gleaned from their interrogations, not having to prove them guilty beyond a reasonable doubt before detaining them, and not releasing them while combat is still going on in Afghanistan, are horribly draconian steps. But if you agree with me that they are in fact quite reasonable and necessary, then perhaps you will begin to understand why the authorities have started circumventing the system, rather than choosing to play by its ludicrous rules.

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Katherine 10.13.04 at 2:50 am

The Bush administration has not been forced into anything. The Red Cross, if allowed to visit prisoners, was not going to smuggle them into the U.S. for a standard jury trial complete with Miranda, the exclusionary rule, and everything else. The court probably would have deferred to the administration if they’d made any sort of good faith attempt to protect the innocent from indefinite detention and even the guilty from torture. Instead they argued, basically “we can do whatever the hell we want,” and did–not the worst things possible I guess, but it was quite bad enough. If you’re arguing “trust us” you have to prove yourself trustworthy; they have done the opposite from day 1 when it comes to these issues. From the Brooklyn MDC, to Guantanamo, to the torture memos, to Abu Ghraib, to Bagram, to the other CIA facilities, to the Gulfstream jets we use to send suspects to Egypt, Syria and Jordan for interrogation–they have shown nothing but bad faith.

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krkrjak 10.13.04 at 4:00 am

What a crock of crap!!! Have most of you people already forgotten that 3000 innocent human beings “disappeared” on 9-11, and hundreds more have been scarred and maimed for life? And you fools are having this idiotic debate about those psychopaths civil rights. My god, get your heads out that orifice located half way between your head and feet.I would much rather have a million of those scum bags “disappear than have my body scattered all over a couple of city blocks and have to be picked up with a sponge…Jeezz!!!

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Steve Carr 10.13.04 at 4:05 am

Katherine, your conditions seem pretty reasonable to me. But they seem a ways away from requiring the government to convict Al Qaeda members in open trial, while the “no right to remain silent” provision I think contradicts the Geneva Convention. If the neutral factfinder can have its hearings in secret, and if the standard is not “beyond a reasonable doubt” but rather by the “preponderance of the evidence,” then I don’t see any real objection. I also don’t think this standard would satisfy those here who somehow think America would be better off if William Kunstler’s ghost were representing Khalid Muhammad in open court.

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abb1 10.13.04 at 8:44 am

abb1, as I sit in my office on a high floor in a Manhattan office building, it isn’t John Ashcroft I worry about. When I send my daughter off to a Manhattan school, and my wife goes off to another office building a few blocks from Ground Zero, it really isn’t John Ashcroft who may prevent their coming home. My policy preferences, and my voting behavior, will reflect those rather simple facts.

See, I think this is more like a hysterical reaction exemplified by krkrjak above than a reflection of facts.

Ashcroft hasn’t convicted a single terrorist so far, so Ashcroft’s methods virtually guarantee that you will never know the facts, you just have to trust Ashcroft. This is not a rational behavior, IMO.

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ruralsaturday 10.13.04 at 9:56 am

The best laws, those that exist to protect the human family and its continuance through generations, are a kind of idealization of moral character.
They are the codified template of an ideal, and generally non-existent, moral decision-maker. In order to guard against the moral failings and short-sighted greed of individuals and groups in the body politic we have laws that respect us, all of us, as equals.
Guantanamo and the other circles of hell the shadow government has created are an assumption of moral superiority, the moral character of the architects being superior to that idealized in the laws of the country.
But it’s just the opposite. As some of the posts here make all too clear, these are the actions of immoral cowards who are fighting for their own survival and nothing more.
Most of us think of cowards as being weak and ineffectual and off to the side of things, but a coward with a gun, with power, becomes a bully, and central to his victims; and as we can see in the world now, a critical mass of cowards with enough weapons can bully entire peoples, and entire nations, and become central to all our lives.
John Negroponte is in Iraq as the Ambassador of the United States. A man whose shoes are filled with blood.
It might be time to stop debating the symptoms, and confront the disease.

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jet 10.13.04 at 1:27 pm

Dan Hardie,
So aside from your ad hominem, you are siding with the Kurds on that issue? Given that the Kurds were perpetuating Palestinian style bombings against soft targets, how would you propose they could have solved their dilemma in a more positive manner? Perhaps bringing in the UN? Maybe the Belgians could protect their people from armed bands of Kurds. Well probably not, but the thought is pleasant.

I think through the lens of RealPolitik, Turkey had little recourse but to implement a proven strategy.

And my point about Turkey is that after they adopted their brutal method of fighting terrorism, the terrorism ceased. Although it did appear to take them a while to up the amount inhuman cruelty to a high enough pitch that it made terrorism too expensive. Just another notch on the belt of the policy of brutally confronting terrorism.

And I’m not saying this is how the US should resolve its problem. Just pointing out that a knee jerk reaction to torture is okay, we are talking about torture here. But not taking an honest look at its possible benefits is to rule out a proven tool.

But since this is such a touchy subject, I’ll throw in my personal solution. All the money on the war should have went into solar and nuclear research. Make oil obsolete and the middle-east is forced into a paradigm shift larger than any in history. And the “extra” funds for promoting international terrorism dry up. We’re left with Columbian style narco-terrorist more interested in profits than ideology.

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No Preference 10.13.04 at 1:37 pm

These people aren’t just like Americans. They have different goals, drives, and values. They compete for world resources as do we. We think we are being mostly fair, they want to blow up our children and wives. We want a dialogue, they want to shoot bullets.

Similar arguments were made about the Japanese during World War II, to justify both the bombing of Japanese cities and the internment of Japanese Americans.

By the way, the “world resources” for which the US is “competing” do not belong to us. Let’s try to keep that in mind, shall we?

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Uncle Kvetch 10.13.04 at 3:09 pm

abb1, as I sit in my office on a high floor in a Manhattan office building, it isn’t John Ashcroft I worry about.

Y81, not that it really matters, but I also happen to work on a high floor (the 42nd, to be exact) in an office building in Midtown Manhattan. And I do fear John Ashcroft and the Bush Administration, because (1) I believe that their policies have made us far more vulnerable to a terrorist attack, and (2) their contempt for due process and the rule of law puts everyone at risk. My point is merely that being a New Yorker after 9/11 does not give you (or me) some kind of special insight into these matters.

On a related note: krkrjak, the suggestion that anyone who disagrees with you must have “forgotten” what happened on 9/11 is positively grotesque. You should be ashamed of yourself. If you find the debate here “idiotic,” no one is forcing you to read it.

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Matt McGrattan 10.13.04 at 3:49 pm

The whole point of laws, treaties and conventions is that they hold even when it might be convenient to ignore them.

The fact that it might be expedient to violate any number of treaties and agreements in order to pursue national security (or partisan political advantage) is neither here nor there.

One of the things that distinguishes the ‘good guys’ from the ‘bad guys’ is precisely the fact that the ‘good guys’ are prepared to maintain the rule of law even in cases where it may to their advantage to violate those laws. That’s like, what laws are, dude…

All the hysterical ranting by a minority of the commentators above about how this stuff is ‘necessary’ for national security is irrelevant. I happen to think it’s unlikely that these policies genuinely enhance national security but even if they did enhance security that wouldn’t make them legal or right.

I know there are many (and some of the commentators above exemplify this) who’d like to think the US is some kind of sui generis state that can do whatever it wants whenever it wants in the pursuit of its own national interest and who think that crying ‘national security’ somehow excuses the breaking of international law. It is not and should not.

The current US regime can either continue behaving as it does and increasingly be seen as a rogue state which does not act in good faith as a member of the international community or it can stick to its legal and moral obligations under international law.

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y81 10.13.04 at 5:13 pm

Uncle Kvetch, I was responding to those who, invoking Niemoller, claimed to be personally scared that they themselves might be indefinitely detained by the U.S. government. Since they invoked their (alleged) personal fear of being at risk, I pointed out my own personal view. I frankly don’t believe that the average American is at risk of arbitrary indefinite detention, or fears that he or she is. It’s rather dishonest rhetoric.

I agree that one’s personal status is not particularly relevant to the status of one’s political judgment. Most New Yorkers are going to vote for Kerry, but most soldiers in Iraq are going to vote for Bush, so go figure.

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Uncle Kvetch 10.13.04 at 5:23 pm

I frankly don’t believe that the average American is at risk of arbitrary indefinite detention, or fears that he or she is. It’s rather dishonest rhetoric.

Apparently you feel that those who were invoking Niemoller were somehow overstating the case. I would argue that in the process of responding to them, you gave us a first class example of just what Niemoller was talking about.

More specifically, the notion that the “average” American has nothing to fear, and that it’s only those who are somehow “exceptional” or “out of the mainstream” who are at risk (and therefore, implicitly, that it’s really no big deal) is precisely the kind of thinking that Niemoller was addressing.

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krkrjak 10.13.04 at 6:08 pm

I have nothing but pity for those among you who would go so willingly to the sacrificial alter without so much as a whimper. Your intellect is far beyond my comprehension, but you should be forgiven for your ignorance.

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Katherine 10.13.04 at 8:24 pm

“Katherine, your conditions seem pretty reasonable to me. But they seem a ways away from requiring the government to convict Al Qaeda members in open trial, while the “no right to remain silent” provision I think contradicts the Geneva Convention. If the neutral factfinder can have its hearings in secret, and if the standard is not “beyond a reasonable doubt” but rather by the “preponderance of the evidence,” then I don’t see any real objection. I also don’t think this standard would satisfy those here who somehow think America would be better off if William Kunstler’s ghost were representing Khalid Muhammad in open court.”

Who cares if it would satisfy me, Human Rights Watch, the ACLU, or anyone else on this board? We’re not exactly setting policy on these issues right now, in case you hadn’t noticed. We’re not even setting the Democratic party’s position; with a few exceptions they have been silent. If those are steps you would support, you should support them, and not give a knee jerk defense of the administration just because others give what you see as a knee jerk attack. Even if you don’t agree with the solution Human Rights Watch gives they identify a real problem. (Though I think you know less about their solution than you may think; not all “trials” are alike. A lot of people have talked about JAG-style military trials as a middle ground between a military tribunal that could too easily be a show trial, and the full protections of domestic courts. I do not have a well developed position on what the solution is, because there’s never been a real debate about it & right now I’m focused on convincing people that the status quo is not acceptable.)

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Dan Hardie 10.13.04 at 8:39 pm

A short summary of my discussion with Jet:
Jet: ‘Has Turkey had to put down any rebellions recently?’
Me: yes.
Jet: Christ, I’ve lost this argument, let’s rant for absolutely ages.

And Jet, it’s odd that you’re tough enough to advocate torture and the ‘disappearance’ of opponents, but you’re deeply hurt when I call you a ‘howling cretin’. I’ll admit that I don’t know for sure that you howl.

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Katherine 10.13.04 at 8:42 pm

“I have nothing but pity for those among you who would go so willingly to the sacrificial alter without so much as a whimper. Your intellect is far beyond my comprehension, but you should be forgiven for your ignorance.”

I didn’t know which side of the spectrum this comment was coming from, until I read your first comment.

Look. Most of my family lives in New York. I will hopefully live there next year, and right now I live in another city that is a likely target. I’ve seen the maps of the blast zones if a nuclear weapon is exploded in Manhattan. It is almost impossible to find a location in Manhattan where a nuclear weapon could go off without killing a close friend or family member of mine, not to mention destroying a large part of the city where I was born. I would do almost anything to prevent that from happening. Really, do you think I’m stupid or crazy?

It is very, very unlikely that disappearing and enabling the torture of suspects would do anything to prevent it. What could prevent is:
1) getting serious about securing Russia’s nuclear weapons and nuclear fuel, and highly enriched uranium used for fuel in other countries,
2) getting a real handle on just what the hell has been going on with Pakistan’s nuclear program, and making sure that their “nuclear Wal Mart” is really shut down and that Islamist soldiers and scientists cannot provide nuclear materials or weapons to Al Qaeda.
3) figuring out a policy that will get rid of North Korea’s nuclear weapons
4) prevent Iran from obtaining them.
5) installing radiation detectors to scan trucks at the border
6) inspecting shipping containers

We haven’t done ANY of that–even the easy, obvious steps have been deemed too expensive.

Meanwhile, it is now clear that we have tortured people or sent them to be tortured–and as I said: low level as well as high level Al Qaeda people; the innocent as well as the guilty. It is clear that prisoners have died of injuries they suffered during interrogation It is clear that this has hurt our standing in the Arab world a great deal. It is pretty clear that Abu Ghraib hurt our efforts in Iraq and won recruits for anti-American terrorists. It is not at all clear that dismantling the laws protecting suspects has done anything to prevent a terrorist attack.

You call me ignorant. Well, I am very, very confident that I know more and have thought more carefully about this subject than you.

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jet 10.13.04 at 9:24 pm

Dan Hardie,

Always amusing, thanks for the laugh and making my day a little less boring.

I knew I could prod someone out of the woodwork to play.

Sucka

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Dan Hardie 10.13.04 at 9:58 pm

Oh Jet, is your life really that empty?

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krkrjak 10.14.04 at 2:22 am

“I know more and have thought more carefully about this subject than you”
Re: post by Katherine
That comment would of course be your assessment predicated on your perceived superior intellegence. I am however in complete agreement with your six points. And what a wonderful world we would have if only a magic wand could be waived and have all you suggest come true over night.But right here, right now we all know that isn’t going to happen. And right here right now there are a very lot of very evil people plotting to kill you, and will do so at the first available opportunity. What neither you or I know is how many american lives may have already been saved by information obtained from those who “disappeared”.
I will futher agree with you on the Abu Ghraib affair.That was most definitely letting the world see the USA at it’s ugliest, and harmed our image immeasurably.
Please indulge me for a moment in a bit of role playing if you don’t mind. Imagine if you will that your husband or son has been captured by someone like the Baghdad butcher. I mean, really think,your husband or son. Now imagine that you were told by a high level government official that a member of the group holding your husband or son had been captured, knew where your loved one was being held but wouldn’t talk. But that they, the interrogators had ways to make him talk. Now Katherine, you don’t have to give me your answer but in your own mind how far would you want the interrogators to go if it meant saving your loved ones life? Please be totally honest with your answer.

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Robin Green 10.14.04 at 3:24 am

krkrjak – Let’s try a different role play scenario. Suppose you’re the person who is suspected by the government of having information they want to know. Suppose you are in fact innocent, and don’t have that information.

Would you mind being spirited away to an undisclosed location, without any legal protections whatsoever?

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krkrjak 10.14.04 at 4:44 am

Robin Green:
Let me see if I can address your question with this true story.
I recently had a conversation with a neighbor down my street. Just a casual chat about nothing in particular until the election was brought up. He said he would vote for Bush were it not for the patriot act. I inquired what the patriot act had to do with his decision. His reply,”I don’t want the cops kicking down my door and dragging me off in the middle of the night”. Frankly I was surprised at his answer. I said to him, why george, are you conspiring to over throw the government? A. No. Well are you planning to blow up any buildings and kill a bunch of people? A. No. Well Are you building any bombs down there in your garage? A. No. Well are you a member of any terrorist group that want to blow things up and kill people? A. No. Well George, have you robbed any banks, molested any children, been beating your wife? A. Well hell no I haven’t done any of that. Then I said to George, well why are you worried the cops are coming to kick down your door and haul you away? George suddenly remembered he had something to do at home.

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Uncle Kvetch 10.14.04 at 2:59 pm

Then I said to George, well why are you worried the cops are coming to kick down your door and haul you away?

The Red Cross estimated that 70 to 90 percent of the detainees at Abu Ghraib at the time of the “unpleasantness” there were totally innocent of any wrongdoing.

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krkrjak 10.14.04 at 7:58 pm

uncle k…
I wouldn’t argue the numbers in your comment, however to keep a little perspective on the issue please keep in mind that at the time many of those were “detained” there was one hell of a lot of chaos engulfing the entire region.Today most if not all those wrongly detained have been released. It is obvious to me that much of the discussion on this topic is related to the patriot act. Well, will one of you out there please tell me when the last mass grave bearing the dead bodies of thousands of men, women, and children was found in this country, the USA? Hmmm, can’t tell me? Well I suppose that’s because some of you believe they just haven’t been located yet.

And someone on this thread called me “hysterical”. Wow!

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