Magna Carta Trashed

by Belle Waring on November 12, 2005

Hilzoy and Katherine’s new posts at Obsidian Wings (just keep scrolling) on Lindsey Graham’s despicable move to strip non-citizens of habeas corpus rights are must reads. I warn you, though, they will turn your stomach. The details of the allegedly frivolous malpractice suits brought by Guantanamo detainees are sickening.

UPDATE: Glenn Reynolds asks “Has the senate suspended the writ of Habeas Corpus?” Yes, it has! Thanks for asking!



Kip Manley 11.12.05 at 9:51 pm

And my allegedly Democratic senator voted for this shit.


jet 11.12.05 at 9:55 pm

It must be true because all US interrogators would say “Muslim blood is worth nothing”.


Adam Kotsko 11.12.05 at 10:13 pm

Jet, You are a bad person.


Katherine 11.12.05 at 10:26 pm

Note that you don’t have be certain all the charges are true, to think maybe you’d like a court to be able to do in camera review of those medical records.


Katherine 11.12.05 at 10:27 pm

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


eudoxis 11.12.05 at 10:32 pm

The military is not actually in the business of providing medical care. They provide death, or, under less favorable circumstances, torture.


Dog help us 11.13.05 at 12:17 am

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?


yoyo 11.13.05 at 1:12 am

when american citizens don’t even have the right to medical care….


Belle Waring 11.13.05 at 2:18 am

yoyo, american citizens who have been either accused of or convicted of a crime do, in fact, have a right to medical treatment while in jail. also, american citizens have the right not to have the shit beaten out of them so bad they are at risk of permanant paralysis. in principle. alternatively, american citizens who accuse their prison guards of beating them or withholding needed care have the right that some outside force, sometime, will make a cursory check into the validity of their claim. I’m not asking for an Islamic theme park with fun rides and hot veiled chicks here.


Belle Waring 11.13.05 at 2:21 am

also, my ironic “in principle” remark is not meant to imply that I think serving time in a US jail is as bad as having your head sawn off by Islamist fanatics. just, you know, clarifying. when the great bell tolls and representatives of the current US government are up against representatives of al-Qaeda in Iraq, we are going to totally kick ass. they bring the Dalai Lama up and all bets are off, though.


rd 11.13.05 at 2:21 am

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.


Katherine 11.13.05 at 2:33 am

Actually, I’m pretty sure the Democrats have introduced bills on this subject, which have gotten exactly nowhere. Granted there hasn’t been a sustained effort by the leadership.


rd 11.13.05 at 2:41 am

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.


Belle Waring 11.13.05 at 2:45 am

given Padilla’s current status, rd, what exactly is it that you think will prevent future members of congress from stripping habeas corpus rights from US citizens tout court? as for positive proposals, I by no means suggest that people captured during open warfare recieve the same status as US citizens arrested on suspicion of burglary. I feel certain that review of charges and complaints in a military court, with US servicemen and women given security clearances to serve as jury, and JAGs as public defenders, under actually existing rules (not some ex post bs, thanks) would be orders of magnitude better than “the CIA waved its magic guilty-of-terrorism wand”, which appears to be the current notion. 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. seriously, if it was good enough for imaginary right blogosphere godfather Winston Churchill, it’s good enough for you guys.


rd 11.13.05 at 3:13 am

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”,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.


bad Jim 11.13.05 at 4:26 am

Actually, the U.S. Constitution is reasonably clear on the subject, as are any number of laws and treaties. Given America’s dabblings in imperialism over the last century, it’s entirely unclear why special legislation is required, since the present situation is hardly unprecedented.

Would our courts be overwhelmed by the problem of military detainees? Unlikely, given the number of people we process daily. Neither the nature of the alleged crimes nor the number of suspects would present an insuperable difficulty.

The assumption that providing prisoners due process would be such a burden that American forces would simply have to ignore it, is, on its face, a hair’s-breadth away from tolerating a police state.


Barry Freed 11.13.05 at 4:46 am

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:


rajH 11.13.05 at 5:12 am

You state, repeatedly, an all-or-nothing dichotomy: aliens held abroad either get the exact same rights as US citizens (including rules of evidence, access to civilian courts etc.), or they get nothing (presumably besides the current Status review Tribunals). Wouldn’t it be possible for habeas reviews by a military tribunal? Of course, as bad jim points out, your assertion that granting habeas review would gridlock the US criminal justice system is itself dubious.

when the great bell tolls and representatives of the current US government are up against representatives of al-Qaeda in Iraq, we are going to totally kick ass. they bring the Dalai Lama up and all bets are off, though.

Sadly, you wouldn’t have to bring out the A-list to beat the current White House bunch at The Final Reckoning®. Somebody like Ken Lay would do just fine.


abb1 11.13.05 at 6:53 am

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


abb1 11.13.05 at 7:00 am

Oh, Mr. Lieberman did too, I see. Great mitzvah, rabbi, ‘never again’ indeed.


Dan Hardie 11.13.05 at 7:59 am

‘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.


CharleyCarp 11.13.05 at 8:19 am

RD, the cases are not pending all over the country. They’re all in DC. They are all stayed pending resolution of two cases — 1 now in the Supreme Court, the other now in the DC Circuit, destined for the Supreme Court — that will define conclusively what rights (if any) these men have under the Constitution and the Geneva Conventions. Don’t you think it would be a good idea to have these issues determined by the Supreme Court? (Congress has plenary power over a lot of things, but it does not have the final say over what either the Constitution or the Geneva Conventions mean — since Marbury, that power has been understood by all to reside in the Supreme Court).

The remedy sought is not a criminal trial in the US. It is a fair trial, maybe in Gitmo, with the protections of the UCMJ.

For prisoners taken by US forces on a battlefield, like after a firefight, you’d have the problem you outline of how the get US soldiers’ testimony. I think the bulk of Gitmo prisoners are not at all US captures on a battlefield. They’re people picked up in places like Pakistan, by Pakistani authorities, on a tip from someone paid a bounty to make the tip.

We know that there are people in Gitmo who were not combatants.

Don’t you think we ought to have a fair process to determine whether there are others?

And, acknowledging that everyone there is going to be released someday — the bulk within 5 years — don’t you think we’d be doing ourselves a big favor if we treated them in a way that no reasonable person could claim was unfair?


CharleyCarp 11.13.05 at 8:40 am

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.


Adam Kotsko 11.13.05 at 9:22 am

If the Nazis were good enough to be covered by the Geneva conventions, then so are these expected terrorists.

The only reason that they “don’t fall into existing categories” is because we arbitrarily decided to act like they don’t. In fact, arguably even the whole “War on Terror is a different kind of war” thing doesn’t really apply on an empirical level, because so far all we’re doing is attacking and conquering traditional sovereign nations — so again, these new standards are supposed to apply simply because we decide they don’t. If I remember correctly — and it’s been a while, so forgive me if I mess this up — that’s not actually how this “rule of law” thing is supposed to work.


bob mcmanus 11.13.05 at 9:28 am

“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.


bob mcmanus 11.13.05 at 9:35 am

Compare how the Israelis treated Eichmann with how we treated KSM.

As far as I am concerned both the Executive and Legislative Branches of the US Government have turned outlaw and tyrannical. They no longer have legitimacy, deserve any form of allegiance, and are in no way, as individuals or organizations, protected by the rule of law.


theogon 11.13.05 at 9:35 am

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


theogon 11.13.05 at 9:37 am

Yes, I realize that last comment was pure snark and contributed nothing to the debate. Like this is a complex issue?


Adam Kotsko 11.13.05 at 9:45 am

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.


Belle Waring 11.13.05 at 9:59 am

in light of your local liquor store’s blatant local monopoly on 40 oz’s, I think you’d be entirely justified in eliding these “quaint” property rights distinctions. after all, the drunkeness capability of the entire kotsko household is at stake. if you can’t get hella wasted, the terrorists will have won. also, pour out a little on the curb for me and tupac.


bob mcmanus 11.13.05 at 10:08 am

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?


jet 11.13.05 at 10:30 am

Belle’s solution in 13 was pretty good, and while as perfect a solution as both sides could compromise on, still open for large abuses. The two main problems are battlefields are not great places to collect evidence or subpoena witnesses, and making requirements for good evidence for later trials would grind the military efforts to a halt. But on the other hand, soldiers on juries will almost never be fair in a he said she said where one party is wearing a US flag on their shoulder accusing the other of Bad Things. So a balance must be found for preserving inalienable rights and stopping, err what was the Iraqi civilian body of innocents lately? Belle’s sounds better than anyone else’s I’ve heard (although she gets no points for out thinking the military on this one as they used to drop prisoners out of helicopters).


bob mcmanus 11.13.05 at 11:19 am

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


“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.””


Fergal 11.13.05 at 12:31 pm

Oh, Mr. Lieberman did too, I see. Great mitzvah, rabbi, ‘never again’ indeed.

Cherchez les juifs, eh Abb1?


John Emerson 11.13.05 at 12:34 pm

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 mcmanus 11.13.05 at 1:09 pm

“Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody”

One last time, to make it perfectly clear, to readers, people around the world, and any defenders of Bush and/or the Republican Party…and when the Republican Senate is nearly unanimous I think it is safe to say the Party has some responsibility.

The Bush administration is claiming they can kidnap the little old lady who inadvertently and unintentionally help finance al Qaeda from Switzerland. They can then take her to Poland, waterboard her within an inch of her life, lock her away and throw away the key until she dies. She is allowed no recourse or review external to the Executive branch. Olympia Snow and John McCain are codifying this policy into law.

“Trust us, we wouldn’t do that.” is not an argument. Things like this have been done. Innocent people have been grabbed, detained, tortured, maimed, and killed. And in any case, the administration and the Senate are claiming, whether or not particular actions are taken, that they have the legal right and the power to grab that lady.

Any further discussion of these issues and participants and supporters are most useful if the example of the Swiss lady is used. Carry on.


Jeremy Osner 11.13.05 at 1:20 pm

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.


abb1 11.13.05 at 1:28 pm

Pharisees, Fergal, pharisees of all persuasions.

Our Lord Jesus Christ said:
Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men’s bones, and of all uncleanness. Even so ye also outwardly appear righteous unto men, but within ye are full of hypocrisy and iniquity.

And more to the point:
Let them alone: they be blind leaders of the blind. And if the blind lead the blind, both shall fall into the ditch.


Adam Kotsko 11.13.05 at 1:38 pm

Lieberman appears beautiful on the outside?


Walt Pohl 11.13.05 at 1:53 pm

I think the only question remaining is this. Do we ship Bush, Cheney, et al to the International Criminal Court at the first opportunity, or do we hold out until they bring back hanging?


abb1 11.13.05 at 2:08 pm

Lieberman appears beautiful on the outside?

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


abb1 11.13.05 at 2:12 pm

And so do McCain, Hatch, Grassley and a few others.

Those who don’t bullshit much I don’t mind that much.


bryan 11.13.05 at 2:33 pm

‘“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.


bob mcmanus 11.13.05 at 2:35 pm

“but if you want to connect your argument a little more to the present”

Agreed that actual examples are useful, but if I might speculate a little on Judge Green:

1) She was seeking to make the threat more universal, in that many of us have sent checks to apparently benign charities or have relationships with people of ME descent.

2) There is a trap I think Green had in mind, in which I hope I might catch Republican (I do not say conservative) commenters, should any bother to appear. They should understand that silence is construed as assent.

Someone, like Boyle, might say:”Not the Swiss lady!” At which point I extend the chain to a Saudi Princeling writing checks from Monaco or a Bahrain bank manager. If the latter fall into the policy, but not the Swiss lady, then the policy is arbitrary. At the President’s discretion, will, and whim. Thus Boyle did have extend the chain as far as he did.

The bottomline and ultimate point, of course, is that if the Swiss lady has any institutional protections, then Khalid Sheik Mohammed is protected. And if KSM (or Padilla) has absolutely no external protections, then none of us have any legal protections. That is tyranny, lawlessness, and war crimes.


roger 11.13.05 at 2:39 pm

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.


Iron Lungfish 11.13.05 at 2:41 pm

McCain, Lieberman, Hagel, Snowe, and the rest of the purported moderates who voted for this abomination while trading on their humility and bipartisan courage to bolster their own popularity – all of them are complete frauds. The Inflatable Saint Caucus, indeed.


rd 11.13.05 at 2:42 pm

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.


Adam Kotsko 11.13.05 at 3:06 pm

Basing any decision on the existence of the “War on Terror” is sheer idiocy. A war with no territorial limits and no conceivable standard of victory is not a war at all. The “War on Terror” is a rhetorical device in Bush’s speeches, nothing more.

In point of fact, however, we have gone to war against Afghanistan and Iraq. We could release Afghanistan-related people once the war in Afghanistan was over, and the same with Iraq. Simple. This would of course involve admitting that 9/11 was not an epoch-changing event in world politics that rendered all previous conceptions of law and justice obselete, so I doubt we’re going to get this common-sense approach.


rd 11.13.05 at 3:12 pm

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.


Katherine 11.13.05 at 3:14 pm

Habeas is not a civilian criminal trial. Habeas is not a civilian criminal trial. Habeas is not a civilian criminal trial.


rd 11.13.05 at 3:21 pm

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.


Jeremy Osner 11.13.05 at 3:22 pm

I bet Graham would be happy to deal to build up a big, veto proof majority.

This would not be in line with the tactics of the Republican congressional minority to date. Why do you think so?


abb1 11.13.05 at 3:22 pm

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?



Tom T. 11.13.05 at 3:50 pm

Guantanamo has been a bipartisan dumping ground for a long time. The Bush I and Clinton administrations warehoused Haitian boat people there indefinitely, without access to counsel, habeas corpus, or asylum. That’s why there are legislators on both sides voting for this measure; a little extra-constitutional redoubt is beneficial to whomever happens to be in power.


abb1 11.13.05 at 4:05 pm

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.


rd 11.13.05 at 4:40 pm

abb1, the key word in your post is “domestic.” Its possible to uniformly apply the ordinary law enforcement model on domestic soil where civilian enforcement agencies have full control and the ability to establish a full provenance and chain of possession for all evidence. To extend that model to all anti-terror efforts overseas is much more problematic, either because of battlefield conditions or the necessity of working off the efforts of law enforcement and intelligence in other countries. In those circumstances, we can either: 1. accept and then cut loose any detainees offered us that wouldn’t be likely criminal convictions in US courts. 2. tell the country where they’re first detained to keep them and “let us know what they find.” 3. Detain themselves ourselves under a modified Gitmo regime. Without option 3, what do you think is the most likely outcome? Is that a “win” for human rights?

I return to the refusal to take Bin Laden into custody in 1996. Again, its a perfectly understandable and defensible decision under a law enforcement model of anti-terror. But is it what we want to go back to? The Clinton administration itself wouldn’t go back to it: That’s why they pioneered extraordinary rendition in the late 90s after embassies started exploding as a way to act against overseas terrorists without the heavy burden of trying to apply US criminal law to shadowy terrorist conspiracies in Southeast Asia.
We can all agree that rendition has been a human rights disaster, a way around existing rules that leads to hell. Lets end it, create a new clear system of rules and have everything under bright light at Gitmo. Attempting to enforce the full law enforcement model everywhere will just lead to new disastrous ways to avoid it.


Thomas 11.13.05 at 4:58 pm

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?


John Quiggin 11.13.05 at 5:24 pm

Thomas, Magna Carta does in fact give such rights, though conditional on the enemy country’s observing them also.

“41. All merchants shall have safe and secure exit from England, and entry toEngland, with the right to tarry there and to move about as well by land as bywater, for buying and selling by the ancient and right customs, quit from allevil tolls, except (in time of war) such merchants as are of the land at warwith us. And if such are found in our land at the beginning of teh war, theyshall be deltained, without injury to their bodies or goods, until informationbe received by us, or by our chief justiciar, how the merchants of our landfound in the land at war with us are treated; and if our men are safe there,the others shall be safe in our land.”

The thinking behind this is substantially in advance of the “anything goes” position you appear to be defending.


abb1 11.13.05 at 5:39 pm

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


Jeremy Osner 11.13.05 at 5:45 pm

Eh, “minority” in 52 s/b “majority” of course.


Adam Kotsko 11.13.05 at 5:48 pm

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.


rd 11.13.05 at 5:52 pm

Jeremy, I didn’t reply to your earlier question:
I think Graham might be willing to forge a bipartisan bill based on the experience with the McCain amendment, which built a veto proof 90-9 majority. Keep in mind that Graham is a former JAG and seems generally to have been on the side of the angels in all this.


rd 11.13.05 at 6:01 pm

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?


russell 11.13.05 at 6:17 pm

what in the world do people like rd mean when they speak of that abstraction, “the war on terror”? How are we even supposed to know that the detainees are guilty of anything but–in the cases in which they are guilty of something–resisting the occupation, sympathizing with terrorists, and taking arms against their ideological enemy? Are these people charged with acts of terrorism, perhaps?

At any rate, when people like rd and Mr. Cheney (and Sen. Graham, who has begun losing the respect he had earned from me) argue that foreigners ought not to have similar rights as Americans, it gets really personal for me. I am not an American citizen, and the day I become one, I shall remember the moral pusillanimity of the Republican party and its nationalistic supporters.


bob mcmanus 11.13.05 at 6:21 pm

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.


bob mcmanus 11.13.05 at 6:31 pm

The fact is, all thi boils down to the most essential of Republican characteristics:


They wanted to do this war on the cheap. They needed shortcuts, work-arounds, and finally outright illegalities because they did not want to pay the financial, personnel, political, and diplomatic costs that their ambitions, honestly admitted, would entail. They still don’t, and have destroyed the nation and damaged the world and freedom with their grubby little fingers massaging their purses.


bob mcmanus 11.13.05 at 6:35 pm

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.


rd 11.13.05 at 6:47 pm

bob, “the law” isn’t given to us in unalterable form by God. We can create new rules for new situations, particularly when current law creates a perverse incentive to subcontract out our antiterror efforts to fairly vicious regimes (option 2) as you seem to admit. I want new law to end all the workarounds and shortcuts you complain of. It wasn’t Republican stinginess that started that either. Clinton began extraordinary rendition in earnest. A new congressionally defined regime is the way to put an end to it.

Notice on the one hand I’m accused by adam klotsko and others of being hysterical by thinking that habeas petitions without new standards will lead to full blown civilian trials for foreign detainees. On the other hand, I’m accused by russell and others of insufferable American arrogance and tyrannical beliefs for arguing full blown civilian trials are a bad idea.


bob mcmanus 11.13.05 at 7:12 pm

“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.


Teddy 11.13.05 at 7:12 pm


you use some strong words like “sickening” and “turn your stomach” but before having such an emotional reaction you should have made some effort to check whether what you are reacting to is really true. After all, your source is a motion filed by the detainee’s lawyer, hardly to be treated immediately as an unalloyed truth. I bet that if you had only a report of the American military about this case, you would take it with a large helping of salt. Doesn’t that show someting like, shall we say, bias on your part?


Thomas 11.13.05 at 7:25 pm

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.


Adam Kotsko 11.13.05 at 7:46 pm

Teddy, Since we know that abuse is widespread in Gitmo, no particular story of abuse and/or neglect is prima facie implausible. Since the military and the civilian administration have routinely lied about such matters, they should be viewed with suspicion. It’s not bias — it’s a reasonable reaction to the factual story as it has unfolded in real life.

rd, Even if we leave this decision to some court, rather than to Congress, it still seems very unlikely that the Gitmo people will advance to anywhere close to the full rights and dignity of an American citizen, starting from their apparent current status of “worthless vermin” in the eyes of their captors. You seem to be arguing that if we go the court route, we’ll be going to the full civilian trial thing. I also get the impression that you think such an outcome would be undesirable; I think it’s so thoroughly implausible that it’s not even worth having an opinion of its desirability.

I’d just as soon have them all shipped back to the place where we found them, with $1000 in their pocket and our best wishes. Surely four years of detention and, in many cases, torture is punishment enough for whatever crime some of them are supposed to have committed. Or if you really want to know what I would want, I’d want Gore to have been president on 9/11 so that we would have had a reasonable reaction to it, rather than the unmitigated disaster (including such dangerous made-up idiocies as “The War on Terror” and “unlawful combattants”) that we actually had. Or failing that, I’d like Bush, Cheney, et al. to spend the rest of their lives in jail, starting tomorrow.

And a pony, since this post is by Belle.


Andrew 11.13.05 at 8:08 pm

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.


CharleyCarp 11.13.05 at 8:16 pm

RD, the relief sought in the habeas petitions is a fair and reviewable adjudication. The cases are all pending in the same district, and the DOD will react to a loss in Al Odah and Hamdan the same way it reacted to a loss in Rasul: it will craft procedures that meet the minimum standards set forth. This is why it is important that Al Odah and Hamdan be allowed to play out.

There is no chance, ever, of criminal trials in the civilian court system. Prisoners aren’t seeking it, and can’t seek it. It’s a total red herring.

What they are seeking, and can seek, is fair procedures by the military. Graham adds a missing element of fairness, but does not go nearly far enough, and makes any other elements unattainable. I know that some senators think they will be able to fix the procedures, but this is totally unrealistic, for a number of reasons.

The system is not broken. There are fewer than 200 cases, pending in a single court, consolidated before a single magistrate for minor issues, stayed as to major issues. The Supreme Court is going to answer the big questions about what rights the prisoners have, and DOD will honor those rulings — probably with new tribunals (which would be ordered). Congress is free to define procedures, and the McCain Amd is a good thing. But the Congress should not act to completely prevent judicial review of evidentiary rulings, legal rulings, and the like. This only encourages the DOD to cut corners . . .


rd 11.13.05 at 8:35 pm

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.


bob mcmanus 11.13.05 at 8:53 pm


Josh Marshall:Welcome to the hearing Mister X. You understand we are only trying to discover the truth today, and that your testimony will not be used against you in a court of law. With that in mind, would you please tell us of youe experience with, umm, “Prisoner Q”?

X: Yessir. Prisoner Q arrived at the facility in March. For three days we waterboarded him, for two days we ran electrical current through his testicles, and finally we beat him to death with a ballpeen hammer.

Duncan Hunter: Well, that is terrible, but knowing the truth relieves a great burden from the nation’s shoulders. Of course, the pre-agreed guidelines prevent us from asking from whom you recieved your orders, in order to decrease the rancor. So I ask you, Mr X, are you sorry, and will you do such things again?

Mr X: I am indeed sorry, Mr Hunter, and I promise never to torture anyone again. In fact, after my promotion and bonus, I am retiring from my service, and running for Congress.

Steve Clemons: Well, I am sure the screen and disguised voice will help out there. (All laugh). You are herewith granted amnesty, and I want to thank you for helping us get the horrible exceptional episode behind us. I don’t know what your party affiliation is, as per the agreed rules, but I wish you luck anyway. If you should lose the campaign, with your experience you might try the State Department. I look forward in any case toward a warm and productive working relationship.


Walt Pohl 11.13.05 at 8:57 pm

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.


rd 11.13.05 at 9:06 pm

Yet again, note the different wings of criticism. On the one hand, I’m paranoid to think we could ever arrive at full blown civilian trials. On the other, I’m a “moral monster” for thinking that’s a bad idea. If a substantial body of opinion holds the second view, why exactly am I foolish to think an openended series of habeas petitions might land us in untenable territory? Apparently lots of people think only Nazis would object to having to Mirandize everybody we capture in the Hindu Kush.


CharleyCarp 11.13.05 at 11:25 pm

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.


CharleyCarp 11.13.05 at 11:40 pm

When I say last minute half solution, I am not merely referring to the Amendment as a whole, although this is an apt description. I am referring the the highly truncated DC Circuit review which was added to the Amendment at the last minute when it was clear that opponents of the Amendment had the votes to beat it. Some few votes were peeled off by this thing — you have to give Graham and his people their due for bringing folks along with such thin gruel.

On the other hand, this kind of thing would never have emerged from committee hearings. Instead, you’d get a structure that made internal sense, and made sense for the mission. The right answer is a bill, hearings with testimony from military lawyers, people running the camps, human rights groups. Careful consideration of all the angles. And the possibility of deferential judicial review, at the end of the day, just to keep everyone honest.

Instead, Graham is sending the problem off-stage, where Congress will not deal with it competently, where DOD will continue to impose views as to the rights of prisoners that are at odds with the values of the civilized world, and where any possibility of real solution is precluded.

The problem with the current system isn’t that it lacks certainty. It is that it lacks fairness. Congress is not going to force the Executive to be fair; it has neither the will nor the capacity. Only court review would do this.


rd 11.14.05 at 12:10 am

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.


Katherine 11.14.05 at 12:32 am

No rd, I think all he’s saying is that Congress can’t issue direct orders to the executive enforceable via the contempt power.


CharleyCarp 11.14.05 at 1:01 am

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.


Scott LaRock 11.14.05 at 1:04 am

There are many reasons captured terroists should not be granted the protections of the Geneva Conventions, not least the fact that the terrorists have not sought Geneva protections themselves. There is nothing preventing them from wearing uniforms, having an acknowledged chain of command, and formally applying to acquire Geneva recognition. They have not done so – by choice. And if you want Nazi comparisons, ater the Battle of the Bulge the US stopped taking SS prisoners alive.


CharleyCarp 11.14.05 at 1:12 am

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.


Walt Pohl 11.14.05 at 2:07 am

You’re a moral monster because, when faced with a bill that strips people of their habeas corpas rights, all you’re worried about is the imaginary alternative of full civilian trials. It shows a basic defect in your character.


abb1 11.14.05 at 3:07 am

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.


Gary Farber 11.14.05 at 4:27 am

“You’re a moral monster because, when faced with a bill that strips people of their habeas corpas rights, all you’re worried about is the imaginary alternative of full civilian trials. It shows a basic defect in your character.”

Apropos of nothing else in this thread, I have to wonder what people think they are accomplishing with this sort of rhetoric, other than making themselves feel morally righteous. It’s certainly not going to persuade the person so labeled of anything. Neither is it revealing any non-obvious insights into the labeled person for any of us third parties. It seems solely a product of a desire to pin a scarlet letter of evilness on someone else (how accurately or not is a separate question). But have I learned anything new from said labeling? Has it shown me something I’ve not previously noticed? No.

Maybe that’s just me, though, and what the interwub needs more of is righteous moral indignation and absolutist statements about people whom we know nothing about other than a few dozen words. That’s probably it.


rd 11.14.05 at 4:43 am

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.


Walt Pohl 11.14.05 at 5:00 am

Gary: We’re beyond any sort of rational argument here. I doubt rd can be reasoned with any more than Osama bin Laden can be. All we can hope for is that shaming works.


bob mcmanus 11.14.05 at 5:01 am

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.

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.


Christopher M 11.14.05 at 5:16 am

RD oughtn’t think that Walt Pohl speaks for all RD’s opponents in this argument when he labels RD a “moral monster.”


Walt Pohl 11.14.05 at 5:29 am

Why would he think that?


bad Jim 11.14.05 at 5:53 am

Actually, it would be pretty cool to see Bush and Cheney in the dock in an international war crimes trial. The appeal of a spectacle of that sort makes the idea of living to a drooling old age seem downright appealing.


bellatrys 11.14.05 at 6:26 am

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.)


a 11.14.05 at 7:33 am

I think the terrorists have won the war and we’re just too far into the trees to realize it. They hated us because they hated our freedoms; well they’ve succeeded in destroying our freedoms, by creating a grey zone which can be used against us all in the future.

“I think the only question remaining is this. Do we ship Bush, Cheney, et al to the International Criminal Court at the first opportunity, or do we hold out until they bring back hanging?”

The last disjunction (“or do we hold out…”) makes this question sound facetious, which is a great pity. Sure, we’re all wondering how to fix a broke system, but there has to be some punishment for those who created this system. Torturing is unacceptable, period. Saying, “Sorry, my fault” is unacceptable, period. Bush, Cheney, and Rumsfeld are responsible, period. Sending them to the ICC is too good for them, because the wishy-washy Europeans, who don’t have a death penalty, are likely to give them 6 months of probation. Either Americans decide to punish this lot or they lose what little moral standing they have left in the world, which is approaching 0.
Period. And this is not a joke.


Thomas 11.14.05 at 11:33 am

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.”


dave heasman 11.14.05 at 12:31 pm

Thomas, you missed a bit out : –

“…the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners who sometimes cut the hair of those we are in combat with”


thibaud 11.14.05 at 1:06 pm

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


thibaud 11.14.05 at 1:07 pm

reverse the terms of last phrase. Ploitical blogosphere’s noise:signal ratio = TV news’ fluff:intellect ratio


tps12 11.14.05 at 1:22 pm

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


thibaud 11.14.05 at 1:33 pm

“nice man” – tee hee! you real funny, tps12


Anna in Cairo 11.15.05 at 3:39 am

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?

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