Magna Carta Trashed

And my allegedly Democratic senator voted for this shit.

Jet, You are a bad person.

and kip, call your Senator monday! There’s an amendment seeking to undo this.

Actually, torture requires good medical knowledge and care. I suspect they’re quite proficient these days – one can’t push too far, nor let people die too quickly.

Good lord. What is it, in plain, simple words, that we’re supposedly defending, again?

Sigh, and what is the standard that will govern their habeas corpus review? The full panopoly of consitutional rights given to criminal defendants
in the American courts? So we’ll apply the US laws of evidence to miliary operations in the Hindu Kush? Does this also mean that every detainee in Iraq or Afghanistan gets a right to habeas corpus review in American courts? If not, what’s to stop the logical movement of just transferring them all overseas? Integrating Gitmo prisoners into the criminal justice system is the quickest way I can think of to make the “ghost” prisons abroad even fuller, and to speed up the subcontracting of imprisoning these people to dictatorial regimes.

Rather than simply dismiss Graham’s move as evil,
people concerned with actually make things better would try to improve upon it. Just allowing habeas corpus review without deciding anything else isn’t appropriate for these prisoners, who fit the mold of neither POWs nor ordinary criminal defendants. It would amount to Congress abdicating its authority and basically telling the courts to legislate new rules for this new situation. Rather, Congress should use its constitutional authority to “define and punish …offences against the Law of Nations” to design an appropriate regime governing both their treatment while held (McCain amendment), and the the due process for determining their final status. This will amount to something less than a full blown trial in an an American civilian court, but it can certainly be more than just ratifying the current review panel system.

Something like this might actually pass and be workable, but it appears the bulk of Dems just want to say “let the courts figure it out.” That’s a disaster, both as policy and politics.

I think I remember something introduced by Adam Schiff (D,Cal) a while back that seemed like it was going in the right direction. But whatever the case, the thing for the Dems to realize is that, properly regulated, Gitmo is the solution, not the problem. They should be calling for everybody, Khalid Sheikh Mohammed, Hambali, etc, held incognito abroad to be brought to Gitmo under clear, Congressionally mandated rules for their treatment and for hearings on their final status, probably something between the current tribunals and full blown court martials. To fight for having
the status of everybody at Gitmo to be fought out willy nilly in multiple courts across the nation for a period of years is the most certain method
imaginable to entrench ghost prisons and make the preferrable Gitmo alternative nonviable.

What prevents Congress from stripping jurisdiction? Nothing. They have the power under the Constitution. The question is how this power is used. Nobody as far as I can see has seriously suggested that Congres strip Padilla or any other US citizens on American soil, despite the Administration’s ambitions his case goes forward and would not be affected by Graham’s amendment. The question is about what regime is appropriate for foreign detainees captured during the efforts against Al-Queada. I think it entirely appropriate for Congress to “strip” in the sense of defining the treatment and process due for these detainees, as opposed to just leaving it to the courts. Something like the McCain amendment coupled with a an altered Graham amendment providing a better hearing process would just about do the trick. Its arguably not even stripping, since the onstitution grants Congress the power to “define and punish Piracies..and other crimes agaisnt the Law of Nations.”

The alternative of treating them as ordinary criminal defendants is going to run up against insuperable difficulties of applying US rules of criminal procedure to military and intelligence missions. You recognize this for at least battlefield situations. But what about Khalid Sheikh Mohammed and Hambali, captured off the battlefield in cooperation with Pakistan, and, I think, Thai intelligence respectively? Do they get full blown civilian trials? In any case, what’s wrong with Congress deciding, and not the courts?

Finally, as for Winston Churchill, recent developments suggest he wasn’t immune to authorizing a little wet work himself”
http://www.guardian.co.uk/secondworldwar/story/0,14058,1640957,00.html

I point this not to urge emulation, but just to
caution against viewing the contemporary situtation as somehow unprecedented or uniquely depraved.

Nobody as far as I can see has seriously suggested that Congres strip Padilla or any other US citizens on American soil…

Ahem, get up to speed with the program rd, here:

http://talkleft.com/new_archives/013079.html

Saint McCain voted ‘Yea’ on this Nazi thing. That’s your next president, folks.

‘The power of the executive to cast a man in prison without formulating any charge known to the law and particularly to deny him the judgment of his peers is in the highest degree odious and is the foundation of all totalitarian government, whether Nazi or Communist.’

Winston Churchill, telegram of 21 November 1943.

Something like the McCain amendment coupled with a an altered Graham amendment providing a better hearing process would just about do the trick.

We’re in agreement on this. I don’t think anyone is arguing that each prisoner is entitled to a criminal trial in a US court. They are entitled to a fair process, with collateral review to ensure its fairness. The question is how to satisfy Geneva and the Constitution — and the latter requires due process and confrontation, but not necessarily trial in an Article III court.

Graham does not provide this now, but may cut off the pending cases in the Supreme Court (and DC Circuit) that would define the scope of the prisoner’s substantive rights, wherever it is that Congress ultimately decides to try them.

One has also to recognize the difference between this war and those prior. We are not at war with a nation. We say we are at war with an idea, but in practical effect, we are at war with individuals who have (or have had) the idea. WRT WWII, it’s safe to say that we were not at war with individual German soldiers. Once they surrender, we could hold them until the nation formally surrendered, then let them go home. Here, there’s no one who can formally surrender, and there’s certainly no obvious point at which these guys can be sent home.

They’re not members of a national force, not professional employees (or draftees) without personal stake. Instead, those who are not innocent bystanders, are individuals who themselves decided to be at war. For a we-hold-POWs-to-the-end-of-the-war perspective, this has a real consequence: the end of this war comes when no such people are at large. There’s no other way it ends. But once you release them, people who share the idea are at large again. Because of this relationship, we’re not really holding people until the end of some war. We are holding people until they are rehabilitated* (and we are making no effort of any kind to rehabilitate them — quite the contrary).

There’s another way to look at it, of course. The bulk of captives — excluding again the innocent bystanders — chose to engage in the Afghan civil war, quite apart from and having nothing to do with AQ’s efforts against the US. That Afghan civil war is over. Or as over as it’s going to get. Indeed, we’ve been sending Afghans home, as a way to bolster Karzai’s standing. Why not send the Yemenis who went to fight in Afghanistan home too. It’s not like any of them are going to be going back to Afghanistan.

* One thing that really rankles prisoners there is that releases up to now are clearly and strongly based on the US political needs vis-a-vis the prisoners’ home countries. A guy who rattles his cage every day and swears vengeance gets to go home if his government makes a big enough stink, while an innocent bystander who sits quietly gets to wait until the end of time if he’s from the wrong country. Or no country in the case of the Saudi-born Chinese-descended fellow who was serving time in a Taliban prison for attempting to assassinate bin Laden.

“Just allowing habeas corpus review without deciding anything else isn’t appropriate for these prisoners, who fit the mold of neither POWs nor ordinary criminal defendants.”

I don’t understand why not, unless you want to torture them or something. Someone in civies who steals your gasoline or takes a potshot at you is a civil criminal. IIRC, in most cases Vietcong and unknowns were turned over to the Vietnamese. As an occupier, we were supposed to create some decent civil justice system in Afghanistan and Iraq as quickly as possible, or more quickly than we did, seeing as how anarchy suited our purposes for a while.

KSM was a prisoner of war, and in no way deserved to be treated immeasureably worse than Goebbels or Goering. Jesus help us.

It’s a consistency thing. If women don’t own their bodies, then neither should foreigners.

I’ve decided to redefine the liquor store down the street as an “unlawful property holder” so that later today I can “remedy its maldistribution.” I’m sure the police will understand that the quaint standards of so-called “robbery laws” clearly do not apply in my situation.

This has gone far enough now. The US Government is denying habeus corpus, due process, NGO supervision, and any benefit of legal protection to an entire class of very vaguely defined and delimited persons. I cannot, viewing the examples Katherine and hilzoy have listed, find anyone who may not be included in their definition. (The little old lady contributor).

If this is not plain enough for you, I will provide an extreme example. If the Gov’t were to legislate mandatory “open season” shoot-on-sight laws against Muslims. I would morally not only be expected to disobey that law; prevent other citizens from shooting random Muslims as much as I am possible; but likely also try to my best ability ensure that gov’t could not pass and enforce any further such laws.

I ask lawyers, political scientists, and ethicists for assistance. What moral obligations do I have confronted with a tyranny? Under Int’l law, what assistance can I request from outside my borders?

Could we simply stop talking about battlefield captures? This is what they are claiming:

Captured

“Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.

“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her…”

“Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “Al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.””

One of the problems I have arguing with people who call themselves conservatives or (right) libertarians is that they won’t let me assume anything — you have to start every argument from scratch. So if I refer to a concept like habeus corpus, or conflict of interest, or checks and balances, hoping to develop my argument from there, they’ll start “thinking outside the box” on me: “Is habeus corpus really that big a deal?”

Often enough I have to ask myself whether they had ever even heard of the idea. The younger sort of “movement conservative”, especially, seems to be a pure political operative, guided entirely by partisanship and the slogans and the issues of the moment, whose only goal is to win.

Bush has no significant conservative opposition. His corrupt, profligate, opportunistic, adevnturist, demagogic regime can hardly be called conservative, so the significance of this lack of opposition is that American conservativism is extinct.

Bob — agreed that she makes a good hypothetical example; but if you want to connect your argument a little more to the present, you might want to bring up the example of Sami al-Laithi, whose case is examined in Hilzoy’s and Katherine’s postings. His foreigh-sounding name to the contrary, he is a very good example of how the Bush administration’s (and Republican congressional majority’s) policies are causing harm to innocent civilians, and to the concepts of liberty and justice, right now.

Lieberman appears beautiful on the outside?

Lieberman appears beautiful on the outside?

I don’t know about beautiful, but like God’s son said – he outwardly appears righteous.

‘“Trust us, we wouldn’t do that.” is not an argument.’

it’s especially not an argument if they specifically say that she does fit the bill of someone they would do that to.

As for not trying Bush as a war criminal until hanging is brought back the U.S could always try him as a traitor and hang him then. Actually I think that’s the only way the rest of the world will trust them again.

So in short, I think U.S credibility is shot forever.

Charlycarp, your theory about Nazi prisoners is simply wrong: “WRT WWII, it’s safe to say that we were not at war with individual German soldiers. Once they surrender, we could hold them until the nation formally surrendered, then let them go home.” In fact, they were held in camps as part of the De-nazification process. And that process was subject to the dictates of cold war politics, so that many Nazis actually escaped, via so called “ratlines,” with the U.S. turning a blind eye. These escapees did not then live in peace and harmony, but were very active in, say, Bolivia and Argentina — the tactics of the Argentine military during the dirty war used, the advice of retired fascists, and the case of Barbie in Bolivia is well known.

The use of law to process prisoners actually prevents this kind of thing — the use of prisoners at the whim of the political designs of their secret captors. The idea that the CIA is going to keep all terrorists forever in dark holes goes against everything we know about the CIA, which has a solid 50 year history of using terrorists. Among other things, 9/11 was blowback from such uses. The same people who thought they “controlled” the jihadists in the eighties should certainly not be given control over the jihadists of the 00s. It is pretty simple. Secret procedures will always lead to less national security, instead of more. Habeus corpus not only protects our rights, it is also the best method of national security ever devised. The worst method? Leaving juridical decisions in the hand of secret intelligence, led by a crewe of incompetents.

Charleycarp, we’re moving towards agreement here. My problem is that if you agree that a full blown civilian trial is not appropriate, it makes no sense to punt to the courts. Congress should define a fair procedure and then let the courts review that it was followed, not open up the possibility of courts imposing either full civilian trials or some creeping ad hoc approximation thereof arrived at after years of uncertainty. This isn’t Congress interfering with the courts; its Congress doing its job.

bob mcmanus, see the comments by charleycarp and others for why treating Al Queda detainees as neither POWS nor ordinary criminal defendants has a far stronger grounding than wanting to “torture them or something.” If they’re POWS, we hold them forever, since the war on terror never ends. If they’re ordinary criminal defendants, as we going to apply American search and seizure rules to intelligence operations in Pakistan? More fundamentally, treating them as criminal defendants would almost always mean we’d have to wait for some overt act or specific provable conspiracy against Americans to act against them. This was the reasoning of the Clinton administration in not wanting to take custody of Bin Laden when the Sudanese offered in 1996. It was a perfectly valid decision under a anti-terror regime based on criminal law. Is that the regime we want to go back to?

For the foreseeable future we’re going to be coming across Al-Queada suspects in variety of contexts in a variety of contexts overseas, from the battlefield to the streets of Peshawar. Do we:
1. Let them walk free if there’s not enough for a
criminal indictment in American courts. 2. Ask the local dictatorial regime to detain and “question” them? 3. Detain themselves ourselves at Gitmo under clear Congressionally defined rules and procedures that provide some fairness while falling short of a full civilian trial? I would suggest that if we don’t go for option 3, an intensification of option 2 is far more likely than option 1. I repeat, Gitmo is ultimately the solution, not the problem. End the ghost prisons, end extraordinary rendition, bring everybody to Gitmo under clear rules.

Also, I was accused by somebody upthread of pushing a false dichotomy: either full civilian trials or unlimited executive power. As I’ve tried to make clear, that’s exactly what I want to avoid by having Congress devise procedures that amount to a middle ground. But its exactly what a lot of people seem to be falling into: any deviation from ordinary criminal trials counts as “Nazi” tactics. That line of argument will entrench current practices: if people believe our only options against terrorists overseas are an unworkable extension of american criminal law
or arbitrary executive discretion, which do you think they’ll choose? That’s why you *want* Congress involved. A confrontation between the exec and the courts alone is the most likely way to reproduce the dichotomy: the Pres will claim absolute discretion, the courts without Congressional guidance will drift towards the domestic trial framework. Even if horrors of horrors the Graham amendment passes unaltered, there’s nothing at all to prevent Congress going back and making the procedures better. Dems should be taking this approach *now*, rather than an all or nothing approach. I bet Graham would be happy to deal to build up a big, veto proof majority.

Right, but what’s to prevent it becoming one, or something close to one? As it stands, without Congressional standards letting habeas petitions go forward is just an invitation for the courts to either apply ordinary constitutional standards or to just make something up short of them. The second option is properly Congress’ job.

Rd, what would be wrong with your number 1 – let them walk free if there’s not enough for a criminal indictment in American courts? I don’t understand, could you elaborate, please.

So, you suspect someone of planning a terrorist act, you put him under surveillance, you tap his phone, etc, once you have enough evidence you get him arrested, indicted, extradited and put on trial. Same as with, say, the Mafia. What’s the difference?

If this other approach you advocating is better, why shouldn’t we apply it to the domestic bank robbers, rapists, etc?

Thanks.

I think “little old lady in Switzerland” is rather unlikely to become a victim of this thing. What’s likely to come out of it is the typical totalitarian mechanism (also used by HUAC in the 50s) – they grab someone (a real terrorist, perhaps) and force him to name names, then they grab people he named and force them to name names, grab them, etc. This will grow like a snowball (probably has grown already). In their mind they’re perfectly justified to detain, interrogate and hold all these people – there’s a reason, they all have been named by somebody.

I’ve read the post and all the comments and I still can’t quite hook it back to the Magna Carta.

Is there something in Magna Carta that gave, say, Frenchmen rights against the British crown? A novel interpretation, all these years later. (So that was the significance! I pity the poor high school students getting all of this third-hand.)

But fully consistent with the rest of the foolishness posted around this subject, especially in the comments here. Almost all of them are founded in a mindset that I find almost incomprehensible. What on earth would cause one to think that every detained enemy combatant, whether in this war or any other, should have access to the US civilian court system, with the right to bring a habeas petition?

And not a mention of the fact that such a right would be unprecedented. And of course not a mention of the incentives that this gives to those faced with a choice between killing and capturing (and given the realities of modern warfare, one may almost always permissibly choose to kill rathern to to capture, simply by choosing to engage in a manner that doesn’t permit a later choice).

And then there’s this: “also, if you invade some country and people there shoot at you, even though it’s been months and months since you invaded, they are commonly known as “the enemy”, aka, people subject to the geneva conventions.” Minor details–such as the actual sovereignty of the country in question–are pushed to the side. To actually engage in the debate is demeaning, apparently–engaging with apologists for imperialism or terror or whatnot. Or perhaps the prospect of an actual debate, complete with details and legal principles is too threatening, particularly for those who haven’t a clue what the Geneva Conventions say. In any event, I do hope that the good people of Iraq and Afghanistan aren’t insulted by belle’s mistaken assumption that they haven’t sovereignty to exercise, or her overlooking of that fact in her eagerness to make a point, as confused as it might be.

adam, I do love that you have a platonic idea of “war”, and an insistence on measuring supposed “wars” against it. The pragmatism of the left, combined with sophistication in all things, is really a marvel. I’m now of the opinion that there were never wars before there were theorists, because how could there be a war if it weren’t properly conceptualized?

Rd, then maybe the right solution is to try to establish some kind of universal standards for law enforcement and intelligence world-wide.

Here is a link to the Geneva Conventions, available in full text and fully indexed. This way I can join the rest of my Leftist colleagues in overcoming our congenital laziness and gaining the detailed knowledge of said conventions that Thomas himself surely has — doubtless as deep and broad as his detailed familiarity with the Magna Carta, which was just illustrated.

Yet even in the humiliation associated with my profound ignorance and knee-jerk jingoism, I somehow find myself doubting that the Geneva Conventions would divide the world into “citizens of one’s own nation” and “vermin with no rights,” given that they were formulated in the aftermath of the Nazi regime. Thomas and rd both seem to assume that those are the preexisting categories, and rd is arguing that barring congressional oversight, the vermin will inevitably be treated as the equivalent of citizens — one of the most bizarre deployments of the slippery slope argument that I have ever witnessed.

So you want to apply the full Geneva conventions? OK, they’re now POWs and we get to keep them until the war on terror is over, which is forever.
(Or, they get some kind of unspecified military trial immediately after we pick them up.)

Second, my argument is that letting habeas petitions go forward without congressional standards leads to either 1. something approaching civilian trials 2. courts making something else up on the fly. #2 is properly a legislative function and should be performed by Congress. If its a “bizarre” and thus presumably undesirable outcome to arrive at full civilian trials, why not have Congress specify something else in advance?

47. “I would suggest that if we don’t go for option 3, an intensification of option 2 is far more likely than option 1.”

As I understand it, options 1 and 2 are the law.
The fact is, this is in no way, contra it would appear both Charleycarp and Katherine, not an American decision to make. We are signatories to many Int’l treaties (Geneva, Hague, Torture) that are not irrelevant to the discussion.

America does not get to make its own “rules of war.”, as it goes along. War, is like, international by its nature.

KSM was a POW or a criminal. The tiny loophole in the relevant conventions that has been horribly abused should have been adjucated in Brussels or the UN or wherever, if needed. I do not think it was needed. We could have handled KSM in the criminal justice system. We tough, we big & bad. I am not scared of the law.

And for a “three’s a charm” finale:

Josh Marshall

“What this country will end up needing is something like a Truth and Reconciliation Commission because what the country needs is not so much for particular people to go to jail but for the lies and the lies to cover up earlier lies to stop. The country can’t get past what has happened or move forward until we can get the truth on the table, deal with it and move on.”

The worst of crimes the Bush administration has committed were not perpetrated on Americans, and you can shove your T & R Commission up your ass. Fuck you, Marshall.

“bob, “the law” isn’t given to us in unalterable form by God”

No, we wrote it in the late forties in response to abuses of the Axis Powers.
…
In case anyone thinks I am being harsh on Marshall, Atrios is jumping on the T & R commission bandwagon. I have noticed Steve Clemons hinting at a similar idea. This is “beltway” stuff. They lunch with these people, send their kids to the same schools, join in mutually profitable business deals. Goodness, we Democrats don’t really want anyone to go to jail. They’re our friends.

Cowards. The Iraqis will not be comforted by your national therapy session and group hug. The proper precedents will not be set, so that future abuses will be avoided. Democrats, Democrats are trying to avoid their reponsibility for allowing this monstrousness to occur, and are avoiding their responsibility to pay the high cost of cleaning up the mess.

Josh, you need to do what is necessary to send Cheney/Bush/Rumsfeld to prison. Deal with it.

John, I have to disagree that that cited provision grants any rights to French merchants, or merchants of any other nationality. Note that the merchants wouldn’t have any remedy available to them at all. They may properly be thought of as 3rd party beneficiaries of Magna Charta, and better off for it, but not because of any rights they posssess by reason of Magna Charta.

Adam, would that you read them, now that you’ve linked. You may rest assured that I have, and though I can’t claim to be expert, I do know more than you, and thus needn’t guess as to what they say.

Since the discussion thus far has been largely centred on the effect of this policy on US perceptions of its own safety, can I ask a question from the perspective of someone from that little place known as “not the USA”: am I correct in understanding that, via the little old lady principle, the US is now claiming the right to waltz into any old country on earth and arrest anyone at all?

I realize that I don’t have a vote in your country, but if “no taxation without representation” is sufficient cause to start a rebellion, where does this fit in? It’s an interesting interpretation of sovereignty, to say the least.

But why not just have Congress craft the procedures rather than having things ping pong back and forth between the executive branch and the judiciary for years? Why does the judiciary get the essentially legislative task of making them up? Surely in a democratic republic the popularly elected legislature has the task of making new law?

And what is the source of the “minimal standards”? The Constitution? If so, what determines how much of the constitutional trial process applies? The constitution isn’t designed to be some kind of a la carte menu, applied as judges see fit to situations it wasn’t designed for. Its an abdication of public responsibility to proceed this way. Congress is given the power; Congress should exercise it and produce certainty. I’m less optimistic than you that we won’t move crabwise towards something like civilian trials. The point is, if everybody agrees we need something new, shouldn’t we craft that process with full democratic debate, as opposed to just telling unaccountable courts to fix it as best they can.

Rd, you are a moral monster posing as a reasonable person. Who cares if we move crabwise towards civilian trials (as unlikely as that seems)? We are discussing the besmirching of America’s honor, and the only thing you’re worried about is whether we accidentally give prisoners too many rights.

We are not moving, crabwise or otherwise, towards civilian court trials. Really. There is Zero Possibility of this. Really. Zero. Nor are we moving to a situation where the courts design the procedures. No one is asking them to do that, and it wouldn’t make sense to do so.

I can’t believe you don’t understand this, because it the same way everything else gets done in our system.

Congress empowers Executive to create a system. Executive creates it. Prisoner thinks the system has flaws, that are so serious that his fundamental rights are being violated. Complains to Court about flaws, Court tells Executive ‘this system isn’t good enough because you don’t make adequate provision for X’ Executive/Congress designs system that provides for X. Or Court tells prisoner ‘this is as good as a person in your position is entitled to get.’

Does the added legitimacy of having an independent system deliver the latter mesdsage escape you?

This is the American way of dealing with problems that have to do with life. liberty, and property. It’s not perfect, but it’s better than any system anyone else has ever developed. It preserves a balance of power, which is the secret to preserving liberties. You understand this, right?

Obviously, the best solution is for DOD to adopt a set of procedures that will draw the ‘it’s good enough’ answer from the Supreme Court, and from world public opinion (which matters in this case, because we are trying to get people to buy into our value set). Instead of doing so, the Executive is stuck on its position of macho posturing, to the point that the Vice President has recently been on the Hill embarrassing all of us. And to save the embarrassment, Congress, instead of actually fixing the problem, proposes to make it worse?

Someone said Sen Graham was on the side of the angels, but you know if he’s got a good idea for reestructuring the thing, maybe he ought to present it in the form of a bill, where hearings can be held, and a solution crafted that moves the ball downfield in the right direction. Instead of a last minute half solution, sold with exaggerations and misleading half-truths.

How in God’s name does the Court determine which rights are “fundamental” for the detainees and which are not? For you and me, we know the answer: we have all the due process and criminal procedure rights fairly interpreted as being in the Constitution. You assure me that *of course* the detainees won’t get that full set, they’ll just get…some. Under what legal rule are the courts authorized to craft an entire new set of partial rights for detainees? What provision in the Constitution allows it? What structures their discretion? The answer is nothing. The task is legislative, not judicial. The detainees are properly seen as being in Congress’ jurisdiction, under its explicit constitutional authority to define and punish offences against the law of nations. Rasul was based on an interpretation of Congressional statutory law. Its Congress’ job to define the detainees’ regime. Your comment about Congress having neither “the will nor the capacity” to intervene is a self fulfilling prophecy. Rather than fight a winnable battle to devise a workable and fair system, Dems seem content to abandon the notion of democratic responsibility and just hope the courts will make things OK. The result would be years of confusion and quite possibly an end result of basically unchecked executive power.

The Executive has to create the actual procedures. Congress can do no more than provide broad guidance — as in paragraph b of the Graham Amendment — and cannot micro-manage.

I wouldn’t envision any role for the courts other than to look at the thing, and decide whether it’s good enough. As for deciding what rights prisoners are to have, there’s some law: Constitution — of which some provisions apply to persons, and others to citizens — the Geneva Conventions, the laws of war.

What you are arguing against is how things work in this country. Florida designs a system for punishing misdemeanors. Some prisoner thinks it not up to constitutional snuff, and files a challenge in federal court. The federal court decides whether the Florida system at issue is compliant. It doesn’t redesign the Florida system, usually, it says ‘not good enough because you don’t have X.’ This doesn’t mean that Florida misdemeanors get tried in federal court — or that anyone is moving crabwise towards having Florida misdemeanors tried in federal court. It means that Florida needs to fix its system, or face orders releasing prisoners. And guess what: Florida fixes its system.

Congress and the Executive get to have their say about how the prisoners are to be treated, but whatever they come up with has to be legal. (Obviously, Geneva and the Constitution are different in this regard. Congress can abrogate Geneva, it cannot abrogate the Constitution.) Graham is nowhere near sufficient to provide sufficient definition to justify cutting off judicial review. Have you read the Graham Amendment? It doesn’t define procedures, except in one small particular. It doesn’t even mandate that the procedure in which that particular is imposed be conducted. I understand your point about replacing judicial review with a system. I don’t see why you don’t understand mine that the purpose of the court actions is to seek a fair system (by declaring the current patchwork system unfair). In any event, Graham is not proposing an actual system for dealing with prisoners. He is proposing a method for preventing the Courts from doing their job, which is to say what rights (if any) the prisoners have under Geneva and the Constitution. Nothing really any more than that.

Katherine, in addition I’m saying that under Graham DOD will be required to present some procedures to Congress some time in 2006. Some senators have been saying that they expect to fix the problems with the Gitmo system at that point, but I think this is naive. They’re not going to have the votes to do anything but rubber stamp, and anyway, this involves policymaking at a level of detail for which Congress isn’t that well suited.

You’re not going to get what you say you want, rd, without a court telling the Executive how the procedures (old or new) are defective.

You can’t blame Dems for this at all. The Dem position is that comprehensive legislation ought to come up through the regular process, rather than make important policy through riders on one hour of debate. The Rep position is that they have the votes to prevent the Supreme Court from considering whether Gitmo prisoners are entitled to protections of the Geneva Convention, and also to stop anyone from hearing any more stories of abuse at Gitmo.

Come argue for Congress stepping up to create a real system when Congress is stepping up to create a real system.

Let me ask you, RD, does Congress have the power to order that any aliens that come into its custody who are members of a particular religious group can be simply killed — so long as they have never been in the United States? Could we invade a country — let’s just pick the Ukraine — and order every member of an ethnic/religious group — let’s say, for purposes of the question, Jews — and take them to camps in some third country — how about Poland — work them as slaves, then kill them when they become inconvenient?

If not, why not?

I’m not saying that this is what you have been advocating. I’m asking you whether you think there is, in our system, any restraint on Congress’ right to set up such a system.

Item: Al Qaeda “barber” arrested in Iraq. “Barber” simply means ‘barber’:

‘The Barber’s’ duties included altering senior al Qaeda in Iraq members’ appearances by dying hair color, altering hairstyles and changing facial hair in their efforts to evade capture,” the military said in the statement.

I remember reading a book (could’ve been Gulag Archipelago or some other memoir) where this exactly kind of incident was presented as an example of the most outrageous totalitarian repression: someone in Soviet Russia was arrested and sent to Gulag for being a barber of some high-ranking Soviet official turned enemy of the people.

Now you get these things all the time: Al Qaeda’s barber, bin Laden’s driver, what have you. They don’t even bother to argue that these guys were somehow involved in terrorism. Al Qaeda’s drycleaner? Off to Gitmo.

1. I’m not arguing the Graham amendment is adequate; as I’ve said repeatedly I’ve argued that the right thing to do is to try to improve the procedures it offers, rather than opposing it full stop in the hopes that the courts will create some magic solution short of a civilian trial, not quite imaginable to us now, composed from a cocktail of various partial versions of constitutional rights and random bits of the Geneva convention. Its an entirely appropriate use of Congress’ power of the purse to do this as amendments to funding measures rather than as stand alone bills.

2. I’m fine for Congress having the courts enforce what procedures its specifies; not with Congress basically asking the courts to make up procedures.

3. Congress and the President can do all kinds of awful things overseas which would be evil and wrong but which have no constitutional remedy in US court. If the Constitution applied full stop to our actions everywhere, you could see Syria trying to sue for some sort of equal protection injunction on the grounds that the pressure it’s under is part of a suspect pattern of bullying Arab, or Muslim, nations in a discriminatory way. Some people might like this, but of course its ludicrous.

Two parts of a continuing discussion at BOPNews about the strategic political value of Impeachment.

Re-Alignment not Impeachment

Impeachment in Seven Reasons

OTOH, when the President is bottoming out in the polls, the Republican Party is reeling and collapsing from its internal contradictions, investigations are finally gaining momentum, externalities in Iraq and the economy are damaging the opposition, that prominent liberal bloggers would pre-emptively initiate an amnesty mechanism for Republican war-criminals is utterly incomprehensible to me.
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GF at 87:Thomas Disch at one point said a science fiction fan was most often a case of arrested development who was unable to maturely understand that reason and logic do not rule human affairs.

Why would he think that?

Thomas Disch at one point said a science fiction fan was most often a case of arrested development who was unable to maturely understand that reason and logic do not rule human affairs.

Yeah well, Tom Disch couldn’t get his basic historical, easily-checked facts straight when doing published research on said science fiction, so I’m not terribly impressed by his opinions about us, either.

I could say something equally snarky about pseudo-academics with more arrogance than intellect, who think that public acclaim entitles them to make generalizations without doing their homework myself – but nobody would know if I was talking about Disch or David Brooks. (Or their fans, for that matters.)

Following the links in the update, we find a bit I can agree with:

“…the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad. While this crude formulation may hardly be equal to the scholarship the issue demands, it is hard to brush the conclusion off inelegantly though it may have been stated.”

what Gary Farber said. The noise to signal ratio of the political blogosphere is roughly equivalent to the intellect to fluff ratio of local TV news

Disappointing. He seemed like such a nice man on Frasier.

I have read through this and I must just be appallingly stupid, so forgive this question:

Why are Americans against the Gitmo detainees having full civilian trials? What is wrong with this?

Sorry. Again, I just must be very stupid, but I do not see why anyone would be opposed to giving the same rights to these detainees we give to American citizen serial killers and terrorists such as Timothy McVeigh.

So, why, RD and others, are you against this?