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July 11, 2006

Two Points About Gitmo

Two things about today's White House decision to, what the heck, give Gitmo detainees protections under the Geneva Conventions:

1. Real shame that it only took a Supreme Court ruling to get to this point.

2. The decision should give comfort to everyone convinced that Bush was going to go completely off the farm and tell the Supreme Court to take a hike because he was going to do it his own way. I've noted before that the Bush administration's thing was to be seen as legitimate, and ignoring the Supreme Court does not exactly scream "legitimate power." So two cheers for the rule of law! No third cheer, of course, because we needed the Supreme Court to get to this point. But what are you going to do.

Posted by john at July 11, 2006 05:28 PM

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Jon Marcus | July 11, 2006 06:03 PM

I'd be happier if I were sure it was on the level, and not a scheme to get Haynes on the bench. (http://balkin.blogspot.com/2006/07/newsflash-pentagon-agrees-to-abide-by.html)

Mary Robinette Kowal | July 11, 2006 06:15 PM

Thank God. Though, I remain stunned by the Bush administration's ability to claim any action as sticking to the original plan.

"Snow insisted that all U.S. detainees have been treated humanely. Still, he said, 'We want to get it right.'

"'It's not really a reversal of policy,' Snow asserted, calling the Supreme Court decision 'complex.'"

Not a reversal of policy...hm.

John Scalzi | July 11, 2006 06:19 PM

It's the "I meant to do that" defense, previously employed by children falling off their bikes.

Jim Winter | July 11, 2006 07:01 PM

I'm disappointed. I was so looking forward to Denny Hastert's Gerald Ford imitation.

Scorpio | July 11, 2006 07:06 PM

Now if only he doesn't choose rendition as his universal solution.

Bill Marcy | July 11, 2006 07:40 PM

Uh, isn't the checks and balances sorta what our system is based on?

Now if only congress would get off their asses and do some checking and balancing to our activists courts.

John Scalzi | July 11, 2006 07:46 PM

You know, Bill, using the phrase "activist courts" seriously is a sign you need to stop letting other people do your thinking for you.

Also, I'd love to see the construction that sees this ruling as a sign of an "activist court" but sees Bush v. Gore as a model of non-activist jurisprudence. I suspect it comes down to "It's not activist if Scalia signs on to it," which, if true, would be a line of thinking that would require my brain stem to bleed in self-defense.

Seriously, though. "Activist Courts." It makes you look silly. Stop using it. Or at the very least, stop using it here.

Michael Patty | July 11, 2006 08:19 PM

I'm going to go out on a limb here and play the devil's advocate. I seriously doubt that there was any dark and sinister plot to assume absolute power here. They just thought they were in the legal right. That's what Bush's legal counsel advised him, and he rolled with it. He should have sought a second opinion.

Summation: Villainous ettempt to take usurp authority? Doubtful. Sheer stupidity? Right on the nose! Them's your tax dollars at work.

Jon Marcus | July 11, 2006 08:20 PM

Yeah, those damn "activists courts." Now they're going claiming that "...judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..."

If only we could get rid of that pesky Constitution, we could really put those courts back where our forefathers (like King John) intended!

John Scalzi | July 11, 2006 08:26 PM

Michael Patty:

"I seriously doubt that there was any dark and sinister plot to assume absolute power here."

Seriously? I don't think there was a dark and sinister plot, either. I do suspect, however, that policy followed on and was dictated by the administration's tendency to see Congress, et al as an obstruction and a waster of time, and one way to get around that would be to posit, as this administration did, that the executive branch had certain powers which we have now confirmed it does not.

What matters at this point is how the administration responds to that news, and the response -- which so far is to follow the ruling of the Court -- is a positive thing. We'll see if it continues so, but my own suspicion is that it will.

Jason Broander | July 11, 2006 11:51 PM

So, if Geneva Convention protections are now being given to combatants that don't follow the stipulations of the Geneva convention (such as wearing uniforms, or more importantly, not gratuitously blowing up civilians), than what was the whole point of the carrot and stick approach that the Geneva convention was founded upon? Was the last fifty years interpreting it (and the writing of the document itself) all a horrible mistake?

Really, if combatants, no matter how ruthless, are going to be treated the same as those that try to fight a cleaner war (yes, that is somewhat oxymoronic, but you know what I mean by that), how just or intelligent is such a policy?

Also, when did the Supreme Court get the power to interpret treaties, which up until this point has been reserved for the chief diplomat (ie POTUS)? Oh, wait, just now.

John Scalzi | July 12, 2006 12:08 AM

Jason Broander:

"Also, when did the Supreme Court get the power to interpret treaties, which up until this point has been reserved for the chief diplomat (ie POTUS)? Oh, wait, just now."

Or, alternately, in 1789, when the Constitution of the United State was ratified, per Article III, Section 2:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party...."

The Constitution. What a great document! Pity so many people don't seem to bother to read it.

Jon Marcus | July 12, 2006 01:36 AM

Jason, did you take my snarky comment seriously, or not realize what I was quoting? (I'd've thought the "this Constitution" bit would be a dead giveaway.

Okay, maybe you just ignored it, but my fragile self-esteem won't allow me to seriously consider that possiblity.

RE why Geneva a few reasons spring to mind. First, ugly as Al Qaeda is, there're at most a few hundred of them. But there are thousands (millions?) of regular soldiers serving in the armed forces of other countries that are signatories to Geneva. Those are a lot of good reasons not to abrogate.

Then there's the fact that many or most of the men and boys imprisoned at Gitmo weren't wearing uniforms or carrying weapons because the really were civilians. (I'm starting to feel like a broken record on this...) So we should treat innocent civilians well in the hopes that other regular armed forces will treat our civilians well.

Then there's the "hearts and minds" argument. We are not going to defeat Al Qaeda by killing them all, or locking them all up. The only way we're going to be able to break them is by convincing people that we're the good guys. It worked in the Cold War.

Admittedly we were much less than perfect in the Cold War, but we still had a good reputation up until very recently. For instance, one of the innocent guys who was at Gitmo (he's since been released) was nervous when he was captured by Pakistani's, but he was very relieved to be turned over to the American. He figured everything was going to be fine, because he knew he was innocent, and American's are good guys, right? Hah, the joke was on him! But it shouldn't have been.

Finally, there's the moral argument. Even if 100% of our enemies aren't going to fight a "cleaner war" it's still a good thing for us to do so.

Wickedpinto | July 12, 2006 02:50 AM

No Treaty applies to anyone signatory of the treaty if the PEOPLE being held, are not signatory's.

I think we should treat all contained prinsoners with reasonable decency, but they are NOT members/signatory's of the TREATY.

The problem is that these half assed treaties are supplanting individual sovereignty.

Jacob | July 12, 2006 03:27 AM

Except for this is just damage control. This does not apply to people in non-military custody, e.g. at a CIA secret prison.

Raphael | July 12, 2006 03:55 AM

"Really, if combatants, no matter how ruthless, are going to be treated the same as those that try to fight a cleaner war (yes, that is somewhat oxymoronic, but you know what I mean by that), how just or intelligent is such a policy?"

That would be a good question if the people in question really were combattants, rather than people with angry neighbours who needed the money.

I might get some people angry by saying this, but, frankly, I don't really have that much of a problem with torturing terrorists. I just have a problem with letting people like Bush, his cronies, his supporters and the like decide who is or isn't a terrorist.

Any defense of the torturing of US prisoners that starts out with the assumption that these people are all or mostly terrorists is based on a fallacy. Once such an article starts to talk a lot about how horrible the terrorists and their actions are, you can savely stop reading.

CoolBlue | July 12, 2006 08:16 AM

Um, so what precisely will be different?

Everytime the Red Cross as visited there (as is mandated by the Geneva Coventions) they have been satisfied.

Of course, such an announcement does not lend itself to supporting a King Bush argument. But hey

John Scalzi

I do suspect, however, that policy followed on and was dictated by the administration's tendency to see Congress, et al as an obstruction and a waster of time and one way to get around that would be to posit, as this administration did, that the executive branch had certain powers which we have now confirmed it does not.

Except that the Detainee Treatment Act of 2005 expressly gave the Administration permission to modify Military Commisions as it saw fit.

Which it did.

The problem with giving detainees full rights under the UCMJ is that under certain circumastances you will have to supply the defense with classified information.

It's bad enough the New York Times gets that, I'm pretty sure I don't want OBL's driver getting it.

Especially if it means that if we won't give it to him, he gets off.

So things will have to be modified.

Of course getting Congress to agree about this probably means a de facto life sentence for each of these guys. And you won't be able to blame Bush for that.

Which is OK with me....

Dal Jeanis | July 12, 2006 08:44 AM

Well, the Geneva Conventions still allow you to execute any combatant who does not wear an identifiable uniform, so so what?

Jon Marcus | July 12, 2006 08:52 AM

Cool Blue

"Except that the Detainee Treatment Act of 2005 expressly gave the Administration permission to modify Military Commisions as it saw fit."

Can you show me where? By my quick "gotta get to work" read of the act, it looks like it's saying that the Defense Department sets up the tribunals, but I don't see anything overriding previous laws.

It's kinda like a legislature telling a gambling commission to set up rules for casinos. That doesn't mean the commission can tell casinos to kneecap deadbeats. They still have to go by existing law.

Or am I missing something more definite?

Phillip J. Birmingham | July 12, 2006 09:06 AM

Cool Blue

Everytime the Red Cross as visited there (as is mandated by the Geneva Coventions) they have been satisfied.

Funny, a quick Google search on "red cross guantanamo" suggests otherwise.

John Scalzi | July 12, 2006 09:45 AM

Wickedpinto:

"The problem is that these half assed treaties are supplanting individual sovereignty."

By all means, Wickedpinto, convince your representatives that we need to withdraw from our treaties. Until that time, however, we are obliged by them.

CoolBlue:

"Except that the Detainee Treatment Act of 2005 expressly gave the Administration permission to modify Military Commisions as it saw fit."

Unfortunately for the Detainee Treatment Act of 2005, the Supreme Court ruled that for various reasons it did not apply in this case. So from a legal point of view, this has nothing to do with anything.

Of course, the administration has the position that it was always complying with the Geneva Conventions anyway, so, of course, now following them as a directive won't be a problem. So that's nice.

darren | July 12, 2006 10:15 AM

"Funny, a quick Google search on "red cross guantanamo" suggests otherwise."

Dude, if you're going to be any kind of an effective arguer and patriotic American you really have to stop letting such trivial things as facts guide your reasoning.

Something I believe needs to be considered with this SCOTUS ruling is the mind of the Dufuss-in-Chief. He's either an idiot, a criminal, or a child (or all three) and as such his willingness to abide by the ruling needs to be responded to with a squinty eye, cocked head, and pursed lips. Morons, criminals, and childish minds tell you they've learned their lesson when they're caught with their hand in the cookie jar, but what they've really learned is to try harder to not get caught. It never occurs to them to correct the bad behavior.

CoolBlue | July 12, 2006 10:44 AM

Jon Marcus

Can you show me where? By my quick "gotta get to work" read of the act, it looks like it's saying that the Defense Department sets up the tribunals, but I don't see anything overriding previous laws.

Yes, it says that the DoD sets up the tribunals and the only caveat is that they inform Congress of any changes they make.

...(c) Report on Modification of Procedures- The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect....

Congress did place some specfic constraints on what the procedures had to contain but the Presidential or SecDef appointee could construct the tribunal procedures any way they saw fit.

Phillip J. Birmingham

Funny, a quick Google search on "red cross guantanamo" suggests otherwise.

That's because you are "quickly" see news reports about what the Red Cross may be thinking. One quote that stands out is


In Geneva, the ICRC said it would neither confirm nor deny the New York Times report

Which is typical. Try going to the ICRC site and find it's page on Guantanamo where it says

The ICRC's main concern today is that the US authorities have placed the internees in Guantanamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism.

If that's their main concern, then humane treatment isn't a concern. And regardless of the Court, the Detainee Act has a specific section on humane treatment of detainees.

John Scalzi

Unfortunately for the Detainee Treatment Act of 2005, the Supreme Court ruled that for various reasons it did not apply in this case. So from a legal point of view, this has nothing to do with anything.

The court basically said that Congress failed in that it should have approved the changes by codifying it into law. So to a great extent, the Court was criticizing Congress not the Administration in practice if not in sentiment.

And my only point was that Bush et al was in fact a partner with Congress in this in that it was following what Congress set forth. And the SCotUS affirmed this.

Of course, the administration has the position that it was always complying with the Geneva Conventions anyway, so, of course, now following them as a directive won't be a problem. So that's nice.

And, as I showed above, the ICRC has said the same.

Buck | July 12, 2006 11:38 AM

As to Michael Patty's comment about Bush just going with his legal advice: I'm just a penny-ante immigration attorney and I can tell you that 1) the lawyer is paid to find a way to support your argument, not for the "truth" or "facts;" 2) the clear reading from the outset has been that what's been going on at Guantanamo has been extrajudicial; 3) there has been a NeoCon plan to disrupt the tripartite balance of power in favor of the Executive since the late '60s. When W 'won' in 2000, they rolled the stone back from Nixon's crypt and Cheney, Rumsfeld and all the other barrow wights picked up where they left off in the mid-70s, their limited successes at undermining the Judiciary and Legislative branches under Reagan and GHWB nothing compared to their overreaching during the last five years.

Phillip J. Birmingham | July 12, 2006 11:51 AM

CoolBlue

That's because you are "quickly" see news reports about what the Red Cross may be thinking.

Actually, if you, shall I say, read a little deeper, you will see that the Pentagon acknowledges that the ICRC has expressed these concerns. As a matter of policy, the ICRC does not confirm or deny these reports:

Wherever the ICRC visits places of detention, its findings and observations about the conditions of detention and the treatment of detainees are discussed directly and confidentially with the authorities in charge. Bagram, Guantanamo Bay and Charleston are no exceptions. The ICRC's lack of public comment on the conditions of detention and the treatment of detainees in the nearly 80 countries where it visits places of detention must therefore not be interpreted to mean that it has no concerns.

CoolBlue | July 12, 2006 12:10 PM

Phillip J. Birmingham

As a matter of policy, the ICRC does not confirm or deny these reports

So then it is reasonable to only use the statements officially released by the ICRC, which I have done, and it supports the contention that the ICRC has been a regular visitor and apparently has no major concerns with regards to humane treatment of detainees.

Phillip J. Birmingham | July 12, 2006 12:27 PM

So then it is reasonable to only use the statements officially released by the ICRC, which I have done, and it supports the contention that the ICRC has been a regular visitor and apparently has no major concerns with regards to humane treatment of detainees.

Actually, where I quoted says pretty specifically that it is not reasonable to assume that:

The ICRC's lack of public comment on the conditions of detention and the treatment of detainees in the nearly 80 countries where it visits places of detention must therefore not be interpreted to mean that it has no concerns.

So you are drawing conclusions from what the ICRC hasn't said, when the ICRC has specifically said not to draw those sorts of conclusions.

CoolBlue | July 12, 2006 12:47 PM

Phillip J. Birmingham

So you are drawing conclusions from what the ICRC hasn't said, when the ICRC has specifically said not to draw those sorts of conclusions.

Except, that on that page they specifically state their major concern (which I pointed out above) and list other concerns such as the fact that they think Guantanamo is not age appropriate for youngsters.

But folks can read their statement and decide for themselves.

The fact is that those visits by the Red Cross is per the Geneva Convention.

Did the ICRC get to visit Nick Berg?

It is unreasonable to believe, though, that there won't be disagreements. As they state

The ICRC's dialogue with the US on the conditions of internment and the treatment of internees remains frank and open. Nonetheless, serious divergences of opinion persist on a number of crucial issues.

And it is also true that we have not ceded authority of running the camp to the ICRC.

But if you persist in saying that we can know nothing about the humane treatment of detainees with regards to the ICRC, then we should take them off the table.

And that would include quick Google searches that suggest otherwise.

I would also note in passing that members of Congress, of both parties, have visited Gitmo as well.

Phillip J. Birmingham | July 12, 2006 01:09 PM

CoolBlue

Except, that on that page they specifically state their major concern (which I pointed out above) and list other concerns such as the fact that they think Guantanamo is not age appropriate for youngsters.

Actually, your link was broken and I couldn't initially find the page you were talking about. The page I pointed to is a newer one (May 2006 -- yours is over two years old) which says different stuff, including the following:

The ICRC has also repeatedly appealed to the US authorities for access to people detained in undisclosed locations.

Did the ICRC get to visit Nick Berg?

Noted without comment in light of the "undisclosed locations" issue.

But if you persist in saying that we can know nothing about the humane treatment of detainees with regards to the ICRC, then we should take them off the table.

And that would include quick Google searches that suggest otherwise.

Hey, you dragged the Red Cross into this with your misinterpretations of its silence, so spare me the clucking.

Michael Patty | July 12, 2006 01:55 PM

Boy, John. You sure know how to start a debate! I'm just waiting for people to start whippin' out the shootin' irons and get this party started right! :p

John Scalzi | July 12, 2006 02:35 PM

Hey, now. CoolBlue and PJB are debating back and forth intelligently and civilly -- I'm enjoying this.

Jon Marcus | July 12, 2006 02:59 PM

Cool Blue

So I read the DTA correctly. It says that DoD should set up the tribunals. That's very unremarkable. It certainly doesn't give DoD license to ignore legal and treaty obligations.

Re detainee treatment, are you saying that "forced nudity" (one of Rumsfeld's recommended treatments) wouldn't qualify as "Outrages upon personal dignity, in particular, humiliating and degrading treatment" (prohibited by the Conventions)?

Maybe they're going to do things right now. But straining to misinterpret the ICRC isn't going to convince anyone that they've been following the Conventions all along. They've been pretty clear that they believed Geneva was "quaint" and didn't apply there. To pretend that's not the case is ridiculous.

Michael Patty | July 12, 2006 04:22 PM

John Scalzi:

"Hey, now. CoolBlue and PJB are debating back and forth intelligently and civilly -- I'm enjoying this."


Well, Alexander Hamilton and Aaron Burr were probably arguing relatively civilly...right up until Hamilton ended up dead from a dueling pistol round.

I take your point, though. It is kind of fun watching them go at it. It's like a spectator sport. Hmmm... I’m going to go get some pop-corn for the show.

Lenny Bailes | July 12, 2006 04:33 PM

OK. But can we watch out for the same specious Mickey Finn being sprinkled into the drink?

CoolBlue: The court basically said that Congress failed in that it should have approved the changes by codifying it into law. So to a great extent, the Court was criticizing Congress not the Administration in practice if not in sentiment.

The Court ruled that the military tribunals appointed by Bush and Cheney are not legitimate, duly-constituted courts. Therefore those tribunals *cannot* be used to try detainees, whether or not your Detainee Act says they can.

The Court also ruled that, as a signatory to the Geneva Convention, the United States agrees the rules of "humane treatment" apply to *all* prisoners. (No waterboarding, sexual humiliation, electroshock, etc., applied to "probable bad guys" in order to extract "vital" information that will "save lives" and "avert future attacks.")

As far as I can see, your "Court basically said" paragraph is personal speculation about secret metatext. If you want to cite actual text from the decision to support your conjecture, I'm willing to read your arguments (as a non-attorney). So far, I still buy into the analysis by Glen Greenwald (who is an articulate attorney and, as we learned in the other Hamden thread, also once defended the First Amendment rights of an unattractive bigot). I recommend reading any and all of the last six or seven entries on Greenwald's blog, BTW, if you're interested in the Hamdan case. You'll see him answering wingnut calls to hang journalists and Supreme Court Justices as traitors, debating David Horowitz on Fox News, and offering pages of lawyerly analysis on other ramifications of the Hamdan decision (ie, in re NSA and FISA).

Josh Jasper | July 12, 2006 09:25 PM

Raphael

I might get some people angry by saying this, but, frankly, I don't really have that much of a problem with torturing terrorists. I just have a problem with letting people like Bush, his cronies, his supporters and the like decide who is or isn't a terrorist.

I have a problem with it, and if you understood much about it, you would too. If you'd been over on Making Light during the early debates there, you'd know that a professional trained interrogator frequents that blog, and has stated, as a matter of professional knowledge, that torture produces notoriously unreliable intel, and that it produced myriad problems for future interrogations.

It's a piss-poor way to get information.

Unless information isn't what you're after. Torture is a particularly well known and effective means for tyrants to maintain social control. It's also a good way for people who're angry to feel that justice has been done, or revenge has been had.

I suspect you're in the wanting-to-torture-for-revenge camp.

Jon Marcus | July 13, 2006 11:58 AM

Well, it was nice for a day or two:

http://www.nytimes.com/2006/07/13/washington/13gitmo.html?ei=5094&en=bcab8dcbbad5f3fc&hp=&ex=1152849600&partner=homepage&pagewanted=print

"A day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees."

The thing is, a few years ago I would've completely agreed with this move. But today, it seems pretty clear that they're trying to do an end-run around our treaty obligations.

Jon h | July 13, 2006 12:28 PM

"It's a piss-poor way to get information."

Or, to put it another way, it's a great way to find witches.

Which ought to be a big clue as to why we shouldn't use torture.

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