Whatever: Another Good Day for the Rule of Law

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June 11, 2007

Another Good Day for the Rule of Law

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”

Rock. If the fellow in question really is a terrorist, let's put him on trial, and then if he's guilty, let's lock him up for a nice long time. But this stuffing someone down a hole purely at the pleasure of the president crap is nonsense.

Don't know about anyone else, but I'm liking the idea that the Dubya years are looking more like a cautionary abberation than a model of things to come. I'd still like some more reassurance of that, of course.

Posted by john at June 11, 2007 02:27 PM

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Phil-Z | June 11, 2007 02:54 PM

I realize it's the trite response, but if he was as evil as you portray him, you'd be disappeared by now.

John Scalzi | June 11, 2007 02:58 PM

I invite you to show where I have ever called him "evil," Phil-Z. I think he's lazy, incompetent, incurious and willing to elevate his gut over the Constitution, to the detriment of both. But evil? No.

Also, if you realize it's the trite response -- and, of course, you're right about that -- why even make it?

Lou Anders | June 11, 2007 03:16 PM

file under more reassurance: NPR's running a piece today on how republican's are losing confidence in rural america. 800 farmers polled and only 50% are still voting republican. Most cite dissatisfaction with the war as the cause.

Steve Buchheit | June 11, 2007 03:19 PM

So, how soon will we hear the pedagree of the two judges that voted to end his military confinement? My guess is before the 6 o'clock news time (4:30pm, after that they're working on the copy) if we haven't seen it already.

Steve Buchheit | June 11, 2007 03:21 PM

Or what news event will knock this out of the cycle.

Oh, look, Paris Hilton is out again (that's my guess).

cathy | June 11, 2007 03:29 PM

Steve: Judge Diana Gribbon Motz is a Clinton appointee, FWIW. She received her J.D. from UVa Law School.

Skip | June 11, 2007 03:42 PM

Just judging by dates, a quick look shows that the 2 judges on the opinion were Clinton nominees, and the dissenting judge was a Bush nominee.

I haven't actually read the decision yet, and I'd guess that, based on previous history, there's less than a 50% chance that the press reports will actually get the specifics of the decision right. But I'm going to assume that they did, in this case. If that's, in fact the case, I expect the decision to be upheld in part, and overturned in part.

The idea that enemy combatants can't be held, and submitted to military justice just because they managed to get into the country is pretty much unprecedented in the us history. We certainly had no such restrictions in prior wars, up to, for certain, World War 2.

Now, as to whether or not this particular guy is, in fact, an enemy combatant is a different question. The way the articles read make that fairly shaky, but once again, my guess is that there's less than a 50% chance that the articles are correct, or at least complete in their facts.

A consequence of this decision would be that if a foreign government sent a squad, in or out of uniform, to attack a government or military installation inside the US, they couldn't be held as combatants. Maybe you think that's OK. I certainly don't.

strugglingwriter | June 11, 2007 03:46 PM

I'm cautiously reassured by this decision but I could just see this being appealed by Bush to the Supreme Court which of course would side with Bush.

I really hope I'm wrong, though.

John Scalzi | June 11, 2007 03:51 PM

Skip:

The issue isn't whether or not enemy combatants can be held; the issue is whether this particular fellow is an enemy combatant at all. The Court's ruling, as far as I understand it, is that the government has not made a compelling argument in that direction.

Of course, don't just read the news reports; here's the actual ruling. (Note: .pdf link)

Strugglingwriter:

The court has not generally been very friendly to the Administration on these sorts of cases before.

Pablo Defendini | June 11, 2007 03:56 PM

"Don't know about anyone else, but I'm liking the idea that the Dubya years are looking more like a cautionary abberation than a model of things to come. I'd still like some more reassurance of that, of course."

I'd like to think so too, but for me it's still waaay too early to tell, and there's still two long years to go (1.5 yrs, really, I guess).... if Dubya even steps down willingly, that is ;)

Jeremiah | June 11, 2007 04:08 PM

Ditto what Scalzi has said. If anyone is POSSIBLY a terrorist, or enemy combatant, put them in jail. But then put them on TRIAL. Don't just lock them away. We're supposed to be the "land of the free" and "innocent until proven guilty".

Christian | June 11, 2007 04:45 PM

Or in the lovely case of Jose Padilla, they held him for so long with no due process, that he's now unfit to stand trial.

He's probably guilty, but we'll never know for sure now, will we?

Midwestern Progressive | June 11, 2007 04:48 PM

Jeremiah:

"If anyone is POSSIBLY a terrorist....put them in jail.

Possibly? I don't think that's what Scalzi said, and for my own part, I'd rather have some certainty, not "possibility."

A nice adversarial trial with both sides represented competently would suffice.

John H | June 11, 2007 04:49 PM

I'll be reassured when Bush hands over the keys to the White House and hauls his smirky little ass back to Crawford...

Terry Austin | June 11, 2007 05:11 PM

The argument in favor of indefinite detentions is that it is impossible to hold a trial, and not have evidence leak out to the public. And the mere existence of (some kinds of) evidence can compromise ongoing intelligence operations. There's some merit to the argument - as far as it goes. I don't really agree with it, but it's internally coherent enough you can't just ignore it.

The problem is, as soon as you can lock someone up without a trial, indefinitely, that will quickly become the only reason given for locking anyone up, especially those who are inconvenient to the powers that be. Such abuse is inevitable.

There are hazards both ways. Giving these people a trial can damage our security today. Not doing so can damage our entire system of government forever.

(BTW, I'm not really surprised this went the way it did. The US courts have a long, long history of doing this sort of thing during the middle and later stages of wartime. It's good to know we haven't lost it.)

Jim Wright | June 11, 2007 05:11 PM

I was in the shop listened to NPR when I heard this. I yelled "It's about Goddammed time!" so loud that the neighbors (the good neighbors, not the jackass neighbor on the other side) came over to find out if I was OK.

4 fucking years to figure out that the POTUS is not a King and doesn't have the sole authority over life and death in these United States. Exactly as the Constitution says. Exactly as the founding fathers intended. I said it this morning and I'll say it again - It's about Goddammed time.

Skip | June 11, 2007 05:17 PM

Thanks for the link. OK, I've skimmed it, but not read it in detail. I think it will be partially affirmed and partially overturned, either in the en-banc rehearing or at the supreme court.

The first issue was whether or not the courts even had jurisdiction here. The Government had argued that the Federal Court System didn't even have jurisdiction, and the lower court had agreed. The appeals court ruled that it did, in fact, have jurisdiction. I expect this to be upheld. Making no judgement on the correctness of this - by their very nature courts are loathe to give up jurisdiction on anything.

So then the question becomes whether or not the guy was, in fact, an enemy combatant. And here things get a little more vague. It's basically unquestioned that the guy was associated with Al Qaeda for all sorts of bad stuff. So how did he get to be declared an enemy combatant? By executive order.

Now, I'm not necessarily very comfortable with this myself, but there is at least some precedent for this in the past. So I'd guess that there's at least some chance that this will be overturned on the en-banc hearing. I know there's at least one vote for this because that's essentially what the (short) dissent said.

But there's another thing here. The decision essentially said that there's no possible way for the defendant to be declared an enemy combatant at all. If the case gets to the Supreme Court I expect this to be overruled, and some sort of a process laid out. The circuit court probably won't do that though. They typically leave things like that to SCOTUS.

DISCLAIMER: IANAL, nor do I play one on TV. But I (strangely) do enjoy reading court decisions, at least on interesting topics.

Chris Gerrib | June 11, 2007 05:25 PM

I skimmed the opinion, and I'm not a lawyer, so take all that follows with a grain of salt.

This opinion is by the same court that upheld the holding of Padilla as an enemy combatant. They cite the case repeatedly, and make a clear distinction between Padilla and this case. Basically, the distinction is that the government showed Padilla was in Afghanistan during the fighting. This guy wasn't.

There are still signs of life in the US Constitution.

Chris Gerrib | June 11, 2007 05:31 PM

Skip - I think you misread the opinion. It didn't say that there was no way to make the "enemy combatant" call, it said that the Government hadn't followed the procedures to do so. It also said that based on the evidence presented by the Government, defendant didn't meet the specifications Congress gave for being a combatant.

Daniel B. | June 11, 2007 05:31 PM

I wouldn't be able to give any reassurance myself, I'm afraid, John.

There's a lot of complacency due to favorable polls right now, but its waaaay early. Don't underestimate the party of Karl Rove and Lee Atwater...they're holding back for now.

When the general election campaign kicks in, and the Republican smear machine turns its eyes towards the other party instead of inward, the swift boating will start like never before. And unfortunately, both Clinton and/or Obama lend themselves to those kind of tactics quite well. (In fact, I have a sinking feeling that the Republicans are rubbing their hands with anticipation at seeing the Dems choices, simply because they have pasts and superficial traits that will lend themselves extremely well to slander and ridicule--Dukakis in a tank, Willie Horton, et al.)

You think Kerry was an easy target? Once the primaries are done, expect months of commercials showing black and white, ominous pictures of Hillary in her student protest days, juxtaposed with unflattering snippets of the most nasally speeches they can dig up, while of course linking her to all kinds of wingnut Clinton paranoia....or....if Obama gets the nod, there's the youthful drug use he's admitted to in his book (remember that?) It's not an issue in the primaries, but that's because the Republicans are just licking their chops and laying low for now. We'll see Obama juxtaposed over bags of cocaine, while the latest drug murder news story scrolls across the bottom of the screen. They'll dredge up people who say their best friends cousin's hairdresser knew him when he went to all those drugged out orgies and shot at cops. They'll probably even "blacken" up his image like Time did with OJ.

Right now, the Democratic prospects are looking good precisely because the Republicans are busy, and strategically its not the time to kick in to smear mode.

But's its coming... And I hate to say it, but I fear it will be like shooting fish in a barrel.

Andrew Janssen | June 11, 2007 05:54 PM

"So I'd guess that there's at least some chance that this will be overturned on the en-banc hearing. I know there's at least one vote for this because that's essentially what the (short) dissent said."

However, the dissenter was a District Court Judge sitting on the panel by designation. If I remember the way that works correctly, I think if the case goes en banc, he has the right to sit in, but he's not obligated to. Still, given that the 4th Circuit tends to the pro-administration position, I wouldn't be surprised if you're right about a partial reversal. However, if the 4th doesn't take this en banc, I think Supreme Court review is unlikely. It only takes four Justices to grant cert, but in a case like this, unless one side or the other is sure of at least five votes, they probably won't touch it.

Skip | June 11, 2007 06:24 PM

Chris - if you read the section starting around page 15, you'll see that they address whether or not a military tribunal could declare him an enemy combatant. Paraphrasing, it basically says that it would have held that they couldn't, except that they didn't need to make that holding.

So I think that if a higher review reverses this,they'll likely have to explicitly handle that even though it's not specifically part of the holdings.

Ric Locke | June 11, 2007 06:35 PM

::shrug::

It simply means that in the future, we'll go back to the old, tried and true way of doing it: drumhead "trial", cap to the forehead, two yards of 50" canvas, twenty pounds of quicklime. Nobody other than the participants will ever hear about any of it, so no challenges from the ACLU.

And, of course, out in the field it's possible to deal with the waste of time and materials represented by trial, canvas, and quicklime. Buzzards do a fine job, as noted elsewhere on this very site.

One of the reasons Bush "doesn't pay attention" is this sort of thing. When the Administration brought people to Guantanamo they expected to be congratulated for humanitarianism, as compared to blowing the nagoes away on-site and not bothering to detail a PFC to dig a hole. There haven't been any illegal combatants added recently. Do you really suppose there are none showing up? How much "due process" do you suppose they get?

Regards,
Ric

Randomscrub | June 11, 2007 07:08 PM

Part of the reason this is such a touchy subject is that it really is hard to tell a decent terrorist apart from a civilian.

In wartime, governments are traditionally accorded the power (and rightly so) to detain enemy combatants for the duration of the conflict. Those calling for trials tend make one of two mistakes: (1) treat this as a policing problem rather than a military one (e.g. Jeremiah above "If anyone is POSSIBLY a terrorist, or enemy combatant, put them in jail. But then put them on TRIAL. Don't just lock them away. We're supposed to be the "land of the free" and "innocent until proven guilty".") or (2) forgetting that looking like a civilian does not make someone a civilian - such combatants do everything they can to disguise their status as a combatant. The quote in the original post about "indefinitely detain[ing] civilians" makes this mistake, forgetting that it is precisely the civilian status that is disputed.

On the other hand, those who support indefinite detention tend to overlook the fact that if you do it on Presidential (or some other executive's) authority, you open up the system to simple and easy abuse (or at least the likely prospect of detaining some innocents, even if it is not malicious).

I'd say that this ruling is value neutral, because it hasn't solved the problem of coming up with a way to establish combatant status for terrorist agents. I'll admit that the current method was lousy, but I'm not sure that a world where it is treated as a purely law-enforcement problem is preferable.

F-L | June 11, 2007 07:10 PM

I don't know if I'm reassured, but I'm hopeful.

Janiece | June 11, 2007 07:17 PM

Ric,

I would really, really like to tell you that your scenario couldn't POSSIBLY happen in the Land of the Free and Home of the Brave...but I can't. And that scares me more than almost anything I can think of.

Ric Locke | June 11, 2007 08:16 PM

Janiece,

::shrug:: again.

If you won't give credit where credit is due, that's what you get.

Suggesting that those guys didn't get due process is an insult to our troops, plus a confession of ignorance of Army paperwork. They got a hearing on the spot, with witnesses intimately familiar with the situation; it took place on the hood of a Humvee, the judge was in camo and body armor, and friend-of-the-court briefs from the ACLU were notably absent, but it did happen. They got a judicial review every time custody was transferred, because no officer is going to accept a prisoner whose status is questionable -- it's worth his bars and a spell in Leavenworth. There can be few prisoners anywhere in the world who have received more "process". You're just saying that our guys are careless, criminal assholes, and if that's what they are regardless of what they actually do then that's what you're eventually gonna get.

Take the guy prisoner, and expect to be Monday-morning quarterbacked by the hostile and ignorant for the rest of your life. Or -- "Pvt. Snuffy, expend one round." Your pick.

Regards,
Ric

Steve Buchheit | June 11, 2007 08:58 PM

Ric, well, one, the person in question with this suit wasn't taken on the battlefield but from Peoria. So, bravado here isn't called for.

While I'll agree that you shoot terrorists when you can, once they're in custody, they are given the full process, not "disappeared." In the former case, we'll win this war. In the latter our democracy is in serious trouble. Also, such action would be a case where people lose their bars and go to Leavenworth. I have more respect for the professionalism of those in uniform than to hold this as true.

As for the process and "review," as you said in your first sentence, this is mostly to see if the paperwork is in order. There is no "judgement" rendered on guilt or culpability. Considering the JAG and other legal officer staff was reduced under Rumsfeld's reign, I would blame most of what happened on poor advice by politically appointed civilians, some of whom had other issues and priorities than following the Code of Conduct. The JAG seem to have worked their way back in prominence, which is why you see less of the idiocy that was in play earlier.

Also, you seem to hold the belief that all in Gitmo are from the battlefield. This has been discussed here before. And you need to get over your fixation on the ACLU.

CaseyL | June 11, 2007 09:18 PM

I, too, would like to see the Bush Adminstration as an anomaly, but I don't think it is.

It's more of a logical extension of the Nixon and Reagan-Bush I regimes, all of which were rogue Administrations, and all of which presided over secretive, illegal action abroad coupled with transforming federal agencies into partisan hack shops. (Albert Gonzales is another political hack Attorney General in the "tradition" of John MItchell and Ed Meese.)

What astonished me about the Bush Administration was how quickly it overturned and sabotaged the government, and how little outcry there was as it did so. This upset me more than anything else, because it showed how fragile our democratic institutions are, and how much "Americanism" depends on the electorate being aware, informed and involved in protecting our Constitution rather than cheering on its destruction.

What all that says to me is, a Bush-style regime can happen again, and will happen again. Because people just don't learn from the past - not when they can barely be bothered to remember what happened 4 years ago.

Ric Locke | June 11, 2007 10:44 PM

Steve,

I'm not particularly fixated on the ACLU. Thirty years ago I was a contributor and supporter; nowadays I merely hold them in contempt for pusillanimity. They're just one of a fairly large group of unaccountable NGOs whose self-assumption of absolute sanctity is not supported by the available evidence.

Define "battlefield". Every prisoner at Guantanamo represents the judgment of some lieutenant or captain, based on the situation and evidence before him, that that person should be taken, and if you don't think the reviews as prisoners are passed up the chain are substantive as well as procedural your understanding is deficient. But I must agree with you about the JAGs, since the present wisdom apparently requires three per soldier -- one to prosecute the target, one to defend, and a judge to rule on each round expended. Too bad Clinton (not Bush/Rumsfeld) reduced their numbers and training as part of the "peace dividend." As expressed above, I'm a good deal less sanguine than you are about the effect they are having.

The accusation "fixated on the ACLU" can fairly be turned back on your good self, since you and your fellows seem to feel that no trial is valid without an ACLU brief, to be taken as true and valid on the same level as the laws of thermodynamics, declaring the defendant both utterly innocent and heroically justified in his actions, his accusers bald-faced liars except where culpable error can be established, and the entire justice system so rotten it must be destroyed and begun again starting with the impeachment of George W. Bush -- unless, of course, the defendant is an American accused of defending himself, in which case the states of "innocence" and "lying" are reversed.

People apprehended in the United States deserve a trial. Where you and I disagree is in whether or not the trial is valid if it is not a media extravaganza designed to sell brassiere (print) or Depends (TV) ads and provide the defendant with a pulpit for polemic. If suspected spies get the same tender concern for civil rights, lack of self-incrimination, etc. that the typical father receives at child-custody hearings I would be satisfied. A low bar, admittedly, but then I'm a bit cynical about such matters, as you may have noted.

Regards,
Ric

Jim Wright | June 11, 2007 11:03 PM

Steve Buchheit, Well said and exactly correct. Either we are a nation of laws and principles, or we are not. Period. There is no gray area. Once you suspend due process, once you start "disappearing" people (citizens or otherwise), once you decide that secret prisons and torture are acceptable, once you start monitoring your own citizens, and once you place the power of life and death solely in the hands of one man - then that man is de facto a king, you are no longer free, and this is no longer the United States.

Ric Locke: you've watched too many WWII/Vietnam movies. I helped capture some of the prisoners held in this so called war on terrorism, never, not once, did any of my team ever consider ourselves judge, jury, and executioner. As the Officer in Charge, I would never have let it happen. I fought in the early months of the conflict and many of our prisoners were grateful to be captured by Americans, because they knew we were a nation of laws, a nation that didn't torture people or just make them disappear. I loose no sleep over those that may have died by my actions (you don't want to die, then don't shoot at me) but I do wake up some times and wonder what happened to those men I helped capture. The ones that trusted me, the ones that even though they were my enemy, believed in America. Steve's words above are correct and true, and I fear that we are sliding down a very slippery slope and may have passed the point of no return. I can still see the trust in those Iraqi's eyes - and it makes me ashamed.

Phillip J. Birmingham | June 11, 2007 11:36 PM

Meanwhile, back on planet Earth, what we really want is for these decisions to be made partially outside the executive branch of government. Not a lot to ask, you think?

Ric Locke | June 11, 2007 11:53 PM

Jim,

First, thank you for your service. Mine was long enough ago that it is not directly relevant.

My family have traditionally been Intelligence -- Dad was Signal Corps in the Pacific, his brother and two of Mother's sibling-close first cousins were OSS, I was Navy, my son is following the tradition in the AZ National Guard. If you don't think spies, saboteurs, and people carrying arms without benefit of "distinctive insignia" have been disappeared without ceremony in every Administration back to Geo. Washington, you are sadly deluded. And if you feel that the abuses of the Bush Administration threaten the Republic, but shooting an unarmed woman with a babe in arms and promoting the sniper and his supervisor is not, nor is a full-on paramilitary assault on American soil against a religious "cult" that was already negotiating with the local Sheriff, resulting in burning living babies to death, then the question is moot. When you and your fellows insist on Federal involvement in every phase of Americans' lifestyles from reproductive decisions to permissible gasoline formulations, I fail to be impressed when you get bitterly accusatory over use of those same powers for purposes not contemplated by your particular ideology.

My concern about the military is the same as yours, but reversed. I have always been a trifle apprehensive about the all-volunteer Army, because I feel it likely that it could tend toward an "us vs. them" attitude between the military and civilians. American tradition is strong enough, so far, to prevent serious bad effects. I'm not sure how long that will continue in an atmosphere where every accusation made by a prisoner is taken as Gospel and every statement made by an American is assumed to be a lie unless it accuses other Americans of sufficient vileness.

Regards,
Ric

Ric Locke | June 12, 2007 12:10 AM

...what we really want is for these decisions to be made partially outside the executive branch of government. Not a lot to ask, you think?

If I didn't think you were a cynical liar your request would be reasonable and moderate, yes. David Koresh received no such consideration.

What I have seen and heard convinces me that what you really want is for such cases to be tried by a panel selected from the Democratic National Committee, the American Press Association, and a convocation of tenure committees, with Chomsky presiding and the traditional invocation replaced by a Two Minute Hate directed at an image of Bush. 24/7 teevee coverage, of course. It does not leave me confident of your bona fides.

Regards,
Ric

Jim Wright | June 12, 2007 01:36 AM

Ric Locke: Are you off your medication or just trolling?

For a guy that implies experience in the intelligence field you sure jump to conclusions with zero hard data. How exactly did you deduce that I have no knowledge of military history or that I, in any way, support the events of Ruby Ridge or Waco? (or did you not expect me to get the reference?) Specifically, what exactly leads you to the conclusion that I "insist on Federal involvement in every phase of Americans' lifestyles from reproductive decisions to permissible gasoline formulations?" Site the evidence please, be specific, because I'm fairly sure that I stated precisely the opposite, and on more than one occasion around here.

See, I actually am a Navy Intelligence Officer. A Chief Warrant Officer specializing in tactical IW, to be specific, with over 24 years experience in 2 wars and numerous other operations short of war. I've seen plenty of bullshit "intelligence" over the last two decades, based on crap deductions like yours above. I spent years risking my life correcting that situation. Of the 13 personal decorations I wear, I am most proud of the one that was awarded for saving the lives of 43 Iraqis - mostly by correcting bad intelligence labeling them as combatants, they weren't, and I proved it at some significant risk to myself, and I did it without torture or pissing on the Constitution. Nowadays I teach military history and the history of intelligence to the next generation. Frankly, Ric, you can kiss my ass, read what I actually said before you accuse me of something.

As to your concerns regarding "us vs them" mentality of the volunteer military - right, because that never happens with conscripts - or the Branch Davidians that you seem to hold in such high regard. And I'm not sure what, exactly, this has to do with the subject at hand. Please, by all means, explain the connection.

One last thing: don't think thanking me for my service in anyway makes you less of an jackass, if anything it makes you a bigger one.

Scott | June 12, 2007 01:42 AM

Summarily, in response to Ric Locke.

I defer to one of the most eminent security specialists when I say, "The way to handle terrorism is as a police matter, not a military one." My authority has more degrees than yours. Feel free to poke around his material, he writes a lot. Terrorists are found by the methods used by police (viz. police-work). So there's your meaningless appeal to authority. As for actual personal argument, it's just these 2 things:

The fact that "detained without trial" is less abonimable than "executed without trial" doesn't make "detained without trial" an acceptable practice (to freedom loving people).

The legality and morality of warfare with a well-defined, uniformed enemy is complicated (the Geneva conventions aren't old-established wisdom based on publically shared common-sense, they're a bargain). People who are working under the morality of warfare are not the people you want as police. Western civilization has known this for something like 2400 years. It has deviated from this knowledge several times, to the detriment of the policed.

John Scalzi | June 12, 2007 02:02 AM

Ric Locke:

You may have noticed that when you resort to ad hominem attacks, and specious leaps of logic, you get authoritatively stomped. Please do try to refrain from them, and stick to the facts, and what you do know. Then everyone can get along and play nice. Thanks.

Steve Buchheit | June 12, 2007 08:07 AM

Wow, I didn't know I had "fellows." I learn something new everyday.

Ric, as former Air Force, I did have fellows at one time. If you had been under my command, I know exactly what paperwork I would have needed to file to transfer you out of my company and would have done so with haste.

Also, since you don't know me, I'll ignore your ignorance of my actual positions on subjects.

I, however, have researched yours on other sites. You'll find, that as John said above, the discourse is on a higher level here. That's while you'll find people like Jim Wright, Old Jarhead, and David Klecha (I know I'm forgeting about a dozen other names)commenting here.

Steve Buchheit | June 12, 2007 08:16 AM

(those names I listed were specific to former military, no offense or slight was meant to the other great commentors here).

ucfengr | June 12, 2007 08:47 AM

What I object to is the intellectual cowardice of people who are objectively and to some extent emotionally pro-Fascist, but who don’t care to say so and take refuge behind the formula ‘I am just as anti-fascist as anyone, but—’. The result of this is that so-called peace propaganda is just as dishonest and intellectually disgusting as war propaganda. Like war propaganda, it concentrates on putting forward a ‘case’, obscuring the opponent’s point of view and avoiding awkward questions. The line normally followed is ‘Those who fight against Fascism go Fascist themselves.’ In order to evade the quite obvious objections that can be raised to this, the following propaganda-tricks are used:

1. The Fascizing processes occurring in Britain as a result of war are systematically exaggerated.
2. The actual record of Fascism, especially its pre-war history, is ignored or pooh-poohed as ‘propaganda’. Discussion of what the world would actually be like if the Axis dominated it is evaded.
3. Those who want to struggle against Fascism are accused of being wholehearted defenders of capitalist ‘democracy’. The fact that the rich everywhere tend to be pro-Fascist and the working class are nearly always anti-Fascist is hushed up.
4. It is tacitly pretended that the war is only between Britain and Germany. Mention of Russia and China, and their fate if Fascism is permitted to win, is avoided. (You won’t find one word about Russia or China in the three letters you sent to me.)--George Orwell, "Pacifism and the War", 1942.

Orwell could just as easily have been talking about the modern anti-war movement (and probably would of if he were still alive). The exaggerating of the loss of freedom in the US, while ignoring the actual record of our terrorist enemies. The accusation that those who want to fight Islamic terror groups are really only after oil or US hegemony or whatever. The pretending that this war is only between the US or even Bush and Bin Laden with no mention of the fate of the Iraqi people or the stability of the wider Middle East and even Muslim world should the Islamicists win.

Jim | June 12, 2007 09:07 AM

In my opnion what a lot of Americans fail to grasp is that our current conflict canno be won by force of arms. There is simply no way we can physically or morally go out and kill everyone who hates us. The more we try, the larger the number grows.

On the other hand they also cannot win by force of arms. At most they will cause the death of a small portion of the population and some property damage. Both of which are tragic but easily overcome.

So what are their real goals? Who are we really helping when we give in to fear and anger?

Phillip J. Birmingham | June 12, 2007 09:14 AM

If I didn't think you were a cynical liar your request would be reasonable and moderate, yes. David Koresh received no such consideration.

Huh. I should update my resume, because I have no memory of being involved in the events at Waco. I *thought* I was in graduate school then. Silly me.

Or are you mad because people don't tack "David Koresh was MURDERED" at the end of each sentence like a modern-day "Cartago delenda est?"

Sam Taylor | June 12, 2007 09:28 AM

Once something has been done once (seizure of citizens, as an example) it becomes more reasonable to repeat at a later time. And on a larger scale. People become desensitized. Eventually, all powers granted to a government are misused. Look at the FBI scandal. Power corrupts, and related clichés. Thus the old “slippery slope” argument.

I hope it’s an aberration too. But I doubt it. One day a cult of personality will hit, and bye bye republic.

Slightly off-topic:
My wife told me that he just signed an executive order that says if there is another terrorist disaster, the current constitutional government will stay in place indefinitely. Is this an urban legend, or for real? (Has anyone snopes-ed it?)

Phillip J. Birmingham | June 12, 2007 09:34 AM

ucfengr:

If Orwell were alive today, he'd be saying "Help! I'm buried alive!!!!"

I think that's about all we can know about what Orwell would be saying.

Chris Gerrib | June 12, 2007 09:52 AM

Ric Locke - I am also ex-military (Navy, 1989-1994) and I find your arguments illogical at best. I took an oath to protect the Constitution, and I would like it interpreted and enforced as per the plain letter of the document, for persons legally in the United States. Gitmo is an entirely different story, and simply not relevant to this discussion.

ucfengr - I do actually agree that some elements of the anti-war crowd are, well, overwrought. However, Al-Marri (the subject of this ruling) was awaiting trial in a civilian jail. It wasn't until his lawyers filed a motion to suppress evidence (which has not been ruled on) that he was declared a combatant. It certainly seems fishy, but without some kind of hearing, how would we know?

Ric Locke | June 12, 2007 09:55 AM

John, I shall keep in mind that ad hominem is only permitted when directed against your political opponents.

Steve and Scott, I shall also be mindful in future that the level of discourse here is sufficiently elevated that "has happened, is happening, and will happen in future" is synonymous with "approves", but only if you don't like the poster.

Steve, had you been contemporaneous you would have had no reason to boot me out of your unit. At the time I had never voted for a non-member of the Democratic Party, held a fine and fashionable contempt for Richard Nixon, and was otherwise entirely politically correct as it is today defined. My collection of decorations doesn't come anywhere near yours, but then I was only in for four years and was enlisted to boot. I voted for Jimmy Carter.

Everyone: George W. Bush is a lightweight who should never have been permitted to occupy a high office. Unfortunately that is also true of a proportion approaching 100% of the people occupying and seeking office in our fair land, and singling him out for criticism while ignoring or even complimenting equal or worse behavior is hypocrisy, rising to bigotry when the criticism is directed toward his religious faith, his personal appearance, and/or his adoptive membership in a subethnic group you don't approve of.

And Bush does, in fact, listen to criticism. He just doesn't listen to criticism from people who have already demonstrated bad faith. High on that list are people who adamantly declare that exposing documented past behavior constitutes "smearing", whereas (e.g.) it is simple justice to hold that there must of necessity have been, in 1972, a machine assigned only to one second-line reserve unit, upon which a known anal-retentive keyboard-phobic could and did personally compose a missive, using the wrong headers, the wrong footers, the wrong date format, and the wrong forms of address, demanding punishment of a Reservist who failed to show up for an assignment that would have cost the unit a budgetary assessment without returning any benefit whatever on Mother's Day weekend, and that the document, when scanned after thirty years' storage under unknown conditions, would match pixel-for-pixel with one produced using the default settings of Microsoft Word. Of course it's valid! It criticizes George Bush!

As it happens, I am by chance acquainted with some of the situations and bit players in pertinent events of the past; and, as a result, I am aware that much of what purports to be criticism of Bush's character is based on things ranging from the soreheaded misapprehensions of people with personal grudges to bald-faced lies. The situation you are currently directing your ire against may very well constitute a valid objection, but the boy who cried "wolf!" was not taken seriously later, and from my point of view many of you find yourselves in much the same situation.

Regards,
Ric

Jeremiah | June 12, 2007 10:45 AM

Ric Locke- Since you brought up Pres Bush's past military service, and mentioned smearing, I would like to know your thoughts on the Swift Boat persons vs Sen Kerry.

Steve Buchheit | June 12, 2007 10:45 AM

Ric Locke, "Steve, had you been contemporaneous you would have had no reason to boot me out of your unit. At the time I had never voted for a non-member of the Democratic Party."

You have no clue. It's because of that, I wouldn't want you anywhere near me in a position that I would have to trust you with a loaded weapon. Politics be damned, your judgement and cognitive abilities are impaired. For that alone, I would have transfered you as far away and into a slot I wouldn't have to depend on as humanly possible. I served with many that we dissagreed about politics, and you know what? It didn't matter at all to our ability to be a team.

Also, my board has few ribbons. You're confusing me with Jim Wright. Jim is his own person. You'll find that, unlike other sites you're used to, sock-puppetry is not well received here.

As for the boy who cried "wolf" I'm willing to call a troll a troll.

Luke | June 12, 2007 10:46 AM

Ric: I find it strange to close with 'regards' when you clearly hold none at all. I only know one other person who closes with that, and he only uses it with the implication of utter contempt.

And considering the completely off-the-wall opening to the above post, I do believe that contempt is misplaced.

Ric Locke | June 12, 2007 11:16 AM

Luke: "Regards" is a tic, which I have been using for quite a long time. You may judge for yourself what adjective should be applied, but in fact I do hold our host and many of the commenters here in good regard. If I did not, I would not attempt to explicate my objections; I do not, for instance, try anything like that at Daily Kos.

Jeremiah: I am by chance slightly acquainted with some of the principals of the Swift Boat Veterans, including John O'Neil. (I encountered the latter at a fundraiser, partly organized by him, for the benefit of the primary campaign of Howard Dean, so one of the things I know is that characterizing him as a "Republican Operative" is a bald-faced lie.)

The most outstanding feature of that controversy, to me, is that of the entire roster of surviving people entitled to call themselves "Swift Boat Veterans" fewer than ten were unwilling to go on public record with their opinions and observations, and of the remainder, all but five were willing to declare John Kerry an asshole unfit for public office and maintain that assertion in the face of a storm of calumny. That's a moderately impressive "poll result," and declaring that the vast majority can only be engaged in a "smear campaign," whereas the minority constitute the Only True Observers™, is at minimum a curiously eccentric use of the word "democratic."

Regards,
Ric

James Nicoll | June 12, 2007 11:36 AM

"As for the boy who cried "wolf" I'm willing to call a troll a troll."

Actually, I think Ric is just a small-l libertarian of some kind.

Steve Buchheit | June 12, 2007 12:02 PM

James Nicoll, I'm willing to give Ric Locke the benefit of the doubt on that (and in the end, for posting here, it would be Scalzi's call anyway). However from his statements here (and I was serious about looking at his statements elsewhere) I have an idea where his politics lay, but he can define them if he wishes. I have no problem with his politics (i.e. he's free to hold his ideals, now matter what they are), as long as he argues his points well.

Unfortunately most of his posts have included wide ranging "you folks" type statements (only the last of which seemed to be in direct response to Jeremiah and kept fairly well to the issue he was addressing) which are not only off topic, made up of his own facts, but were complete non-sequiturs.

In other words, he's planted a whole field of strawmen. If he returns to them is his own baileywick.

Scott | June 12, 2007 12:05 PM

James Nicoll, I find calling Ric "small minded" to be misleading. He has a giant mind, in which all sorts of conversations are taking place, none of which are happening here... or if the conversation here has found some place in the vast geography of Ric's mind, he's not demonstrating it by responding to what people are writing.

Rule #[foo] of Trolling, actually responding to people is a waste of time, putting dumb words in their mouths is much better, becaues then, not only do they want to fight the fight, they also feel the need to explain that it's not what they said...

I don't know if there's a Troll's Handbook, but that one should be added. I also don't know if Ric Locke is sincere or a troll, but I'm increasingly leaning to the latter. Not the least because his tone of voice has been monotonically inflating.

Scott | June 12, 2007 12:06 PM

How the heck did I read "small-l" as "small minded"?

Never mind!

Luke | June 12, 2007 12:16 PM

Ric:

in reference to 'regards': good.

in reference to the SBVFT: what you said did not even constrain the number of Kerry's detractors to be positive. How many swift boat veterans were there?
Also, can you source that?

Jeremiah | June 12, 2007 12:17 PM

Yeah, I pulled the conversation off topic. Sorry bout that :)

James Nicoll | June 12, 2007 12:26 PM

"How the heck did I read "small-l" as "small minded"?"

Extensive experience with libertarians?

Oops, did I say that out loud?

John Scalzi | June 12, 2007 12:37 PM

Ric Locke:

"John, I shall keep in mind that ad hominem is only permitted when directed against your political opponents."

Nonsense. I generally avoid making any sort of idiotic statement about the people who are making damn fool arguments; I prefer to save my contempt for the damn fool arguments themselves. Do the same, you'll be fine.

Otherwise, what you should "keep in mind" is that you're on my site and you'll play by my rules or you won't play at all. I hope that's clear enough for you.

Seth Breidbart | June 12, 2007 12:41 PM

James, libertarians don't believe that the government should be allowed to imprison people arbitrarily, as Ric apparently does.

He also doesn't seem to grasp that O'Hare Airport, for instance (while I'd be among the first to admit it's not exactly where I'd choose to spend an afternoon) is not actually a war zone.

John Scalzi | June 12, 2007 12:46 PM

Seth:

Unless I missed something, I don't think Ric was saying the government should be allowed to imprison people arbitrarily, just that he believes the alternative (which he sees as a cap in the head) will be worse.

James Nicoll | June 12, 2007 01:01 PM

James, libertarians don't believe that the government should be allowed to imprison people arbitrarily

How hard do you think it would be for me to find self-identified libertarians who do? Any harder than finding one who thinks women shouldn't have the vote, you think?

Steve Buchheit | June 12, 2007 01:26 PM

ucfengr, and when was his trial to determine the veracity of these charges? I think I missed that one. Heck, the charges of credit card fraud and lying to federal agents are still open. So, until he's convicted, while you may think he is guilty, and you're welcome to that opinion, there are those that will dispute those claims.

I don't think you hear many voices (and I don't remember anybody here) saying he should be freed, only that he needs to be processed and given a trial and/or deported, held legally, or if the charges are are found to be without merit, released.

Jim Wright | June 12, 2007 01:28 PM

Well, al-Marri himself disputes it. I, personally, have no knowledge of his guilt or lack thereof. Which is exactly the point - we are a nation of constitutional law, by which he is entitled to a hearing. If there is sufficient evidence, then he will be charged and tried. If not, then he should be released. Being held without charges for years, essentially dropped into a hole, is not constitutional. Give him a lawyer, charge him, if guilty give him a fair trail and a fine hanging. Or release him. And spare me the bullshit of claiming the evidence is classified or a threat to national security. That's a cop out. This guy was imprisoned in the panicked days right after 911, much of the "intel" from that time has turned out to be hysteria. And I suspect that the evidence against al-Marri will be the same. Embarrassing? You bet. But that is no reason to act against our principles and law.

We are supposed to be the good guys, this kind of nonsense is costing us more than 911 ever did.

ucfengr | June 12, 2007 01:29 PM

Ali Saleh Kalah al-Marri is an al-Qaeda-trained terrorist from Qatar. He was embedded here by al-Qaeda prior to 9/11, as a “sleeper” operative to commit acts of terrorism against the United States. None of this is in dispute. So what you have is a bunch of seemingly reasonable people giving each other high-fives because a US Court has conferred full Constitutional Rights on a non-US citizen, member of al-Qaeda (in other words, an enemy combatant) sent here to commit acts of terrorism and sabotage. In essence what you are celebrating is a court giving al-Qaeda access to US intelligence and intelligence gathering methods, perhaps including information on intelligence operatives (through the discovery process).

John Scalzi | June 12, 2007 01:34 PM

Housecleaning: ucfengr posted twice, both with the same first couple of sentences and the second with some more information. I deleted the first, which is why it looks like some folks are responding to it before it's even posted.

Also, what Jim Wright said.

Ric Locke | June 12, 2007 01:39 PM

I don't see myself as a "troll". YMMV, and almost certainly does -- for one thing, that might be considered #(foo+1) of the Rules for Effective Trolling.

No, I don't think people should be imprisoned arbitrarily, nor do I think the only likely alternative is a cap to the head. But I do think that the terms in which the debate is being framed have the (damned unfortunate, or so it seems to me) effect of pushing the behavior of the guys in the field toward the latter alternative. In particular, I very strongly do not agree that the simple fact that George Bush did it makes it "arbitrary" -- at least not at the level of confidence exhibited here, which would put that assumption as approximately Euclid's Sixth Postulate. If you cannot even permit, let alone entertain, the possibility that both the imprisonment and the subsequent lack of explanation are for motives the man at least holds in good faith, you have left the realm of "reasonable debate" entirely and are firmly ensconced in the land of bigotry.

Which is what I am complaining about -- a bigoted double standard that renders even valid complaints and criticisms ineffective by swamping them in a morass of smirking (!) innuendo, scurrilous anecdote, malicious misinterpretation, and the occasional outright, blatant lie. I responded to Jeremiah because, to me, the Bush AWOL/Swift Boats matters, taken together, make a near-canonical example of that.

And no, I'm not a libertarian regardless of case. After considerable experimentation with both viewpoints, I have come to the conclusion that libertarianism and communism are simply mirror images of one another, and the resulting constructs have roughly equal validity. It is sometimes useful, even illuminating, to employ libertarian concepts as a tool for analysis; one could say the same about Kapital. That doesn't make either a valid basis for governance, especially in their pure or canonical forms.

Regards,
Ric

ucfengr | June 12, 2007 01:44 PM

Well, al-Marri himself disputes it.

Where?

ucfengr, and when was his trial to determine the veracity of these charges? ?

Enemy combatants (aka Prisoners of War) are not entitled to trials. They can be held without trial through the duration of the conflict. This was confirmed in the 2004 Hamdi decision. They can be subject to a trial for war crimes, but this is not a necessary for their detention.

Again, what you are celebrating is the conferring of Constitutional rights on non-US citizens who are coming into this country for the purpose of committing acts of sabotage and terrorism. Maybe the courts could award them Social Security and Medicare benefits; then you could break out the champagne.

Jim Wright | June 12, 2007 01:51 PM

...So what you have is a bunch of seemingly reasonable people giving each other high-fives because a US Court has conferred full Constitutional Rights on a non-US citizen, member of al-Qaeda (in other words, an enemy combatant) sent here to commit acts of terrorism and sabotage.

Yes, exactly. Ucfengr, that is exactly the point. In America, all people are entitled to certain inalienable rights. That is the whole dammed point. Allow me to point out that Charlie Manson, Jeffry Dalmer, and numerous other mass murderers had lawyers, trials, and went off to jail - and they killed a whole lot more Americans (and in the case of Dalmer, ate them) than al-Marri did, in fact al-Marri didn't kill anybody at all.

In essence what you are celebrating is a court giving al-Qaeda access to US intelligence and intelligence gathering methods, perhaps including information on intelligence operatives (through the discovery process).

Again, a complete load of crap. This is a cop out. I am an Intelligence professional and have been for over 2 decades. There are instruments in place to allow for this exact situation. How do you think we bring standard criminals, such as drug kingpins and mafia, to trial without compromising FBI or other law enforcement methodology? Since 911, "National Security" has become an excuse to sack the Constitution, and it's about time Americans called bullshit on it.

John Scalzi | June 12, 2007 01:56 PM

Ucfengr:

"Enemy combatants (aka Prisoners of War) are not entitled to trials. They can be held without trial through the duration of the conflict. This was confirmed in the 2004 Hamdi decision. They can be subject to a trial for war crimes, but this is not a necessary for their detention."

Your only problem here is that the court appears to disagree with you regarding this fellow's status:

Unlike the men held at Guantánamo Bay, Cuba, Mr. Marri has not yet received even the cursory review of his designation as enemy combatant, performed by a military panel known as a combatant status review tribunal. The Military Commissions Act, Judge Motz concluded, “was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States.”

Moreover:

Because Mr. Marri was not alleged to have fought with the Taliban or the armed forces of any enemy nation or to have engaged in combat with United States forces, Judge Motz wrote, Mr. Bush was powerless to have the military detain Mr. Marri any more than he could have ordered the military detentions of “the Unabomber or the perpetrators of the Oklahoma City bombing.”

An Eric | June 12, 2007 02:03 PM

Possibly? I don't think that's what Scalzi said, and for my own part, I'd rather have some certainty [about the grounds for pretrial detention], not "possibility."

A nice adversarial trial with both sides represented competently would suffice.

Heck, at the arrest stage I'd settle for some likelihood that the accused had committed a crime, some reason or cause to think a crime probably had occurred. What on earth could such a standard for arrest be called, I wonder? If only there were some guidance on the matter in the Constitution! If necessary, perhaps we should go forth and amend the Constitution so that future generations know when government is allowed to search and seize persons! Oh, ignore me, I'm being foolish, aren't I?

An Eric | June 12, 2007 02:04 PM

Possibly? I don't think that's what Scalzi said, and for my own part, I'd rather have some certainty [about the grounds for pretrial detention], not "possibility."

A nice adversarial trial with both sides represented competently would suffice.

An Eric | June 12, 2007 02:05 PM

(Sorry for the double post, internet problems: John, please delete this and the other if you're bored, and my apologies for the inconvenience.)

Jeremiah | June 12, 2007 02:06 PM

Well I figure I'll post again...even though I'll prolly swing off topic a bit again :)

Ric- You said "motives the man at least holds in good faith". I assume you meant President Bush. I understand your point. I, however, have lost any faith in our current president. He has said "trust him" many times. And in the end, we see that he lied. Many times. So, yes, by now I do not trust him with anything. Even though he is the President. He has done nothing to prove my former trust, or regain my trust.

ucfengr- My first thought is, the current US government does detain *US citizens* who are terrorist suspects. Without trial. That's just flat out wrong.

But more to your point: Yes, enemy combatants who are not US citizens do not automatically get US constitutional rights. The Geneva convention ambiguously lets a government keep it's captured enemies until the war is over. Or something like that.

But if the "war on terror" is never over, then we hold these people, without trial, without any reasonable hearing, indefinitely. And I personally do not like that. I do not think that is fair or right. If they're terrible people, it should not be too hard for the government to prove that they are. And then sentence them.

Phillip J. Birmingham | June 12, 2007 02:17 PM

ucfengr:

The Administration has made it clear that it does not consider "enemy combatants" prisoners of war. This is why the term "enemy combatant" is so in vogue right now -- it is a legal limbo where one is not due the obligations of a POW, nor the rights one would receive in the US justice system.

No, what we are celebrating is the confirmation of the Constitutional rights of persons who are residing in the US legally, and are arrested in the US. The government alleges that he is here to commit acts of terrorism. Let them prove it, the same way they would have to prove similar charges against me -- in court.

We can worry about his Social Security and Medicare benefits later.

Jon Marcus | June 12, 2007 02:37 PM

ucfengr

Enemy combatants (aka Prisoners of War) are not entitled to trials.

But how do you know if a detainee is an enemy combatant? This guy was captured in Peoria. The only way we know he's a combatant is that the administration claims he is. If he can be dragged off the street with no recourse based on executive decision, what's to keep them from doing the same to thee or me?

Sam Taylor

My wife told me that he just signed an executive order that says if there is another terrorist disaster, the current constitutional government will stay in place indefinitely. Is this an urban legend, or for real? (Has anyone snopes-ed it?)

Meh. It sounds (and has been described as being) much scarier than it is. There's always been a "Catastrophic Emergency" plan. It used to envision what'd happen in case of a nuclear war. Bush updated that to deal with a terrorist threat.

In the words of Charlie Savage at the Boston Globe:

"The new policy focuses on a worst-case scenario in which a terrorist nuclear bomb explodes without warning and wipes out much of the nation's top leadership. Older plans were instead premised on a Cold War-era long-range missile attack, presuming it would be detected in enough time to evacuate the president and other top government officials."

Savage got a Pulitzer for letting us know about the BS Bush was slipping into his signing statements, so I'm inclined to trust him that this is not Bush's cunning plan for dictatorship.

ucfengr | June 12, 2007 02:48 PM

In America, all people are entitled to certain inalienable rights. That is the whole dammed point. Allow me to point out that Charlie Manson, Jeffry Dalmer,

One of these things is not like the other, let's see...oh yeah Dalmer and Manson are/were citizens of the US, al Marri is a citizen of Qatar. Just crossing the border doesn't make you an American and it doesn't entitle you to all the rights of one.

Your only problem here is that the court appears to disagree with you regarding this fellow's status:

Wow, a big time author responding to my post, I'm all tingly. Seriously, my wife and I loved the Old Man trilogy.

Anyway, the 3-person panel that ruled on the case disagrees with me, it remains to be seen whether that changes on appeal. The government could request an en banc hearing with the entire 4th Circuit Court of Appeals and/or appeal to the Supreme Court if necessary. That does beg the question, if the ruling is overturned on appeal, will you be celebrating it as "another good day for the rule of law" or in dismay about our slow steady slide to a Bush-Cheney autocracy.

John Scalzi | June 12, 2007 02:53 PM

Ucfengr:

Don't be too surprised that I respond to comments on my own blog, Ucfengr. That's one of the reasons I have comments at all.

"That does beg the question, if the ruling is overturned on appeal, will you be celebrating it as 'another good day for the rule of law' or in dismay about our slow steady slide to a Bush-Cheney autocracy."

Well, the government has indeed requested the full 4th hear the case; I'll be interested to see where it goes with that, as I'm not terribly familiar with the 4th. Given the Supreme Court's Hamdi ruling (which this ruling references) and its general set of rulings on cases similar to this, I suspect there will be little joy for the Bush administration if it makes it that far.

Re: "Just crossing the border doesn't make you an American and it doesn't entitle you to all the rights of one."

Well, this fellow didn't just cross the border; as I understand it it he was a legal resident of the US. Legal residents of the US have a very wide range of rights, and there's a long legal precedent of US residents being protected by the Constitution.

Are you making an argument that only US citizens have Constitutional rights?

Jon Marcus | June 12, 2007 02:54 PM

ucfengr

Just crossing the border doesn't make you an American and it doesn't entitle you to all the rights of one.

Nope, so they don't that social security you were talking about. But being a legal resident does (and should) entitle you to a few rights. Like the right not to be disappeared.

Do you think it'd be fine for Qatar to grab a visiting US citizen and detain them indefinitely with no chance to defend themselves?

ucfengr | June 12, 2007 03:00 PM

Also a cursory reading of the Constitution will show that the Court overstepped it bounds by interfering in this matter. The Constitution grants the President power as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". It grants Congress power to:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

But the Constitution grants no war making or oversight powers to the judiciary. The proper decision would have been for the courts to decline to hear the case as outside its Constitutional authority.

Steve Buchheit | June 12, 2007 03:05 PM

ucfengr, "Just crossing the border doesn't make you an American and it doesn't entitle you to all the rights of one."

Well, hell, let's just declare it open season, then.

Actually, crossing the border does give you most rights and obligations, but not all privledges. He is also subject to our laws. Considering he was in the country legally (with a valid visa) at the time, yeah, he gets the rights.

Jon Marcus | June 12, 2007 03:06 PM

ucfengr, you're getting a little silly there. Congress did make such rules. And the judiciary interprets them. (Since Marbury v. Madison, anyway)

And the guy was held in civilian court for two years. He was clearly under the jurisdiction of the courts at that point. So Clause 3 of Article III would seem to apply:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Did the executive have the right to arbitrarily transfer him to military control and deny due process? Seems like a legit case for the judiciary to decide.

John Scalzi | June 12, 2007 03:08 PM

Ucfengr:

"But the Constitution grants no war making or oversight powers to the judiciary. The proper decision would have been for the courts to decline to hear the case as outside its Constitutional authority."

I would be utterly delighted for the Bush administration to make this argument in a court of law. I suspect the court would bounce this fairly easily, citing dozens of cases beginning with Marbury v. Madison.

I suspect that even the Bush Administration would recognize that this line of legal reasoning would not be profitable for them.

Steve Buchheit | June 12, 2007 03:18 PM

ucfengr, Title 3 is pretty short. You could probably read the whole thing in one sitting.

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, ... to Controversies to which the United States shall be a Party;... or the Citizens thereof, and foreign States, Citizens or Subjects.

ucfengr | June 12, 2007 03:34 PM

Well, this fellow didn't just cross the border; as I understand it it he was a legal resident of the US.

He was in the US on a student-visa, like Mohammed Atta, who also wouldn't meet the definition of "enemy combatant" according to the courts ruling. I don't know if that makes him a "legal resident".

Legal residents of the US have a very wide range of rights, and there's a long legal precedent of US residents being protected by the Constitution.

People who are members of foreign terrorist groups that have declared war on the US don't.

Just as an aside, the reason the Bush administration is calling the enemy combatants instead of POWs, is because POW's
follow the Laws of War i.e. they don't specifically target civilians, they treat prisoners well, they wear uniforms, etc. Members of al Qaeda, while at war with the US, don't honor those rules. "Enemy combatant" could be classified as a subset of POW's that have committed war crimes. That they have committed war crimes does entitle them to a trial regarding those crimes, but that trial can be held after hostilities cease, so they are still subject to being held for the duration of the war.

As to al Marri "being disappeared", can we dispense with the cheesy spy novel lingo? The guy has gotten an open hearing in a US Court and has been on CNN more then Scalzi, we all know where the heck he is.

gerrymander | June 12, 2007 03:46 PM

I suspect that even the Bush Administration would recognize that this line of legal reasoning would not be profitable for them.

Of course they would. A much more reasonable line of legal reasoning comes from the Authorization for Use of Military Force passed 09/18/2001, which expressly states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

John Scalzi | June 12, 2007 03:47 PM

Ucfengr:

"He was in the US on a student-visa, like Mohammed Atta, who also wouldn't meet the definition of 'enemy combatant' according to the courts ruling. I don't know if that makes him a 'legal resident'."

You'll need to explain to me why what you think on this particular matter has any legal relevance; otherwise, what is relevant is the fellow's status under the law. It's pretty clear that under the law, he was a legal resident.

"People who are members of foreign terrorist groups that have declared war on the US don't."

You know, you can say that all you want, but there's an actual legal ruling that says this fellow has Constitutional rights under the law. So either a) he is not a member of a foreign terrorist group that has declared war on the US (or at the very least, such has not been proven beyond doubt), or b) your above statement is incorrect.

Jon Marcus | June 12, 2007 03:59 PM

ucfengr & gerrymander:

Basically you (and the administration) are running up against this bit:

"No person...be deprived of life, liberty, or property, without due process of law"

Having the president unilaterally imprison him doesn't count as due process.

(And note that it says "No person" not "No Citizen.")

ucfengr | June 12, 2007 04:01 PM

Just for the sake of argument let's say the Court got it right. Let's look at a hypothetical, say a group of al Qaeda members managed to get in the US on student visa or some sort of other legal mechanism. Let's further hypothesize that they are able to smuggle in a "dirty bomb" or a couple of vials of VX nerve gas. Now let's say they get caught with bomb and the gas and video tapes of their plan and their allegiance to al Qaeda. Okay, their guilty, no doubt. They go to trial, the judge suppresses the evidence due to a problem with the search. They go free. Is that an acceptable outcome; because a 3-group panel of the 4th Circuit Court of Appeals just said it is.

Getting back to the actual case, from the 1942 Quirin decision:

“ …the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Jon Marcus | June 12, 2007 04:01 PM

Erg! "...shall be deprived..." Sorry!

PeterP | June 12, 2007 04:15 PM

ucfengr,

I was unfamiliar with Quirin and so went to look it up: http://en.wikipedia.org/wiki/Quirin

There is an interesting passage from the American Bar Association here:
http://en.wikipedia.org/wiki/Quirin#Guantanamo_Bay_Cases

It reads, in part "Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all."

You might want to read it over before you attempt to use Quirin to justify your position, as it does not appear, from my admittedly brief reading, to agree with you.

Stephen Granade | June 12, 2007 04:16 PM

ucfengr: Protection from illegal search and seizure is right there in the Constitution, so yeah, it's an acceptable though bad outcome. Your hypothetical situation is like those posited on the TV show 24: wonderfully clear in a way that never happens in real life. It's also focused on the terrorists and not the idiots who performed an illegal search in the first place when they certainly should have known better. Authorities not doing what they should is no reason to take a black magic marker and scribble out the Fourth Amendment.

Chris Gerrib | June 12, 2007 04:16 PM

ucfengr - yes, holding a student visa does make one a legal resident. And per the opinion, no, Atta would not be an enemy combatant. That's probably the weakest part of the ruling. The strongest part of the ruling is the fact that the military didn't follow it's own rules for determining if Al-Marri is an enemy combatant.

Also, ucrengr, the Constitution has long recognized limits on the President's war power. For example, the Uniform Code of Military Justice, under which I did my hitch, was written by Congress.

Gerrymander - the Authorization for Military Force is expressly cited in the opinion. You might want to review the court's logic.

John Scalzi | June 12, 2007 04:18 PM

Ucfengr:

"Just for the sake of argument let's say the Court got it right."

Why "for the sake of argument"? Unless you can show that there was malfeasance in the adjucation of the case, the court did get it right; unless and until the ruling is overturned on appeal the ruling is entirely legal.

"They go to trial, the judge suppresses the evidence due to a problem with the search. They go free."

Why didn't the government, in what was clearly a sensitive case, take due care in executing the search?

In any event, it seems doubtful that it would get as far as you seem to think it would -- as I understand it FISA allows the government to file warrants up to 72 hours after exigent circumstances, and it seems highly unlikely that warrants and permissions would not be ordered in the scenario you specify. So in order for things to go down as you suggest they would the government would have to either monumentally screw things up or proceed on a legal theory not in evidence because it didn't want to be bothered to actually follow the law. And of course we know that would never happen.

Midwestern Progressive | June 12, 2007 04:31 PM

Just for the sake of argument let's say the Court got it right. Let's look at a hypothetical....blah blah blah.....judge suppresses the evidence due to a problem with the search. They go free. Is that an acceptable outcome....

Look, the famous Ticking Bomb Case!

To answer your question, is that in acceptable outcome?

Yes.

America is a nation of laws.

Period.

Don't like it? Tough.

gerrymander | June 12, 2007 04:43 PM

Jon Marcus: Basically you (and the administration) are running up against this bit:

"No person...be deprived of life, liberty, or property, without due process of law"

You're assuming "due process" means "all the 4th Amendment rights of citizens". The only due process which need apply is a hearing to determine if al-Marri qualifies as a member or associate of one of the groups the AUMF addresses. If that answer is "yes," then further jurisdictional claims are invalid; disposition of al-Marri becomes an Executive branch issue. A "no" answer, conversely, would then grant al-Marri all the traditional protections of citizens.

As the opinion's dissent notes, such a hearing did take place, after a fashion:

The district court in this case credited the Declaration of [Jeffrey N. Rapp, Director, Joint
Intelligence Task Force for Combating Terrorism], which was unrebutted, and found by a preponderance of the evidence, that al-Marri had been properly classified and detained as an enemy combatant. See Al-Marri v. Wright, 443 F. Supp. 2d 774, 784 (D.S.C. 2006).

Said declaration may not be deemed sufficient upon further consideration, but the failure to even address this declaration in the majority opinion points to a deficiency in that ruling.

An Eric | June 12, 2007 04:46 PM

For all those who can't seem to get their heads around the fact that a lawful resident alien is protected by the Constitution, here's Kwong Hai Chew v. Colding, 344 U.S. 590:

It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law.

It is well settled that any defendant, whether here legally or no, is entitled to the protections of the Fifth, Sixth and Fourteenth Amendments (which extend protections to persons). So, while ucrengr is technically correct insofar as all Constitutional protections are concerned, the relevant Constitutional rights are protected as soon as you sneak over the imaginary line in the dirt: an illegal alien may not possess full First Amendment rights, for instance (United States ex rel. Turner v. Williams, 194 U.S. 279, 292), but he does have the right to due process and trial by jury

In fact, as others have already noted, al Marri was a legal resident, and entitled to even greater protections under American law as it's previously been understood.

(Oh, and for whatever bits of paper from a law school and State Bar are worth: I am a lawyer, and play one in real life. Thphhbbbt.)

Chris Gerrib | June 12, 2007 04:47 PM

ucfengr & gerrymander:

Go read Quirin. The relevant bits are:

1) Illegal entry into the US = illegal combantant. secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... Ellipsis in original, summarizing stipulation.

2) US resident in State with functioning court = not subject to law of war. Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. Milligan was a Civil War era habeas case.

An assertion by an Executive branch official is not a hearing.

Chris Gerrib | June 12, 2007 04:52 PM

Sorry, bad link. Quirin.

Jeremiah | June 12, 2007 04:55 PM

ucfengr:

With that hypothetical, you change who you trust. Which changes everything.

If you are correct, that the government can detain people whenever they want, you trust the government to DO so honestly and with little to no error.

And yet, when you put forth your hypothetical, you say there was an error in gathering evidence.

Do you trust local, state, and federal authorities or don't you? If you DO, then trust that they'll get the bad guys and procure evidence correctly. If you don't, then don't trust that they won't get JUST the bad guys.

I, for one, don't think they're 100% accurate. Which makes your hypothetical scary. Yes. BUT it makes what you believe even MORE scary. If you're right, then the government can detain anyone it wants, for as long as it wants. And that's scary stuff man.

An Eric | June 12, 2007 04:56 PM

Looking at the quote from Kwong Hai Chew, I am sure that there are those who would nitpick over the word "permanent." It should be emphasized that the point that Kwong Hai Chew and other cases make is that legal rights attach based on the degree of connection to the United States: an illegal alien has some rights that accrue to any person (e.g. Fifth Amendment due process), while a full citizen has the additional rights that accrue to "the People" (e.g. Second Amendment right to bear arms). Between those two points there appears to be a continuum that encompasses temporary legal residents like al Marri.

The right to due process is a Fifth Amendment right, not a Fourth Amendment right, and it applies to "persons," an interpretation that has been given a very broad interpretation.

It should also be noted that while a prisoner-of-war may not possess full Constitutional rights, POWs are accorded rights under international treaties that the U.S. is signatory to. This is why the Bush Administration has made a point of creating a new class of people, "unlawful combatants": before 2002, a person in custody had the benefits of the Constitution or Geneva or both--the Bush administration has attempted to strip those rights away with semantics.

gerrymander | June 12, 2007 05:18 PM

Chris Gerrib, you're drawing a distinction which isn't actually in Quirin. Quirin addresses the appropriate disposition of active enemy military (as prisoners of war) and unmarked spies and saboteurs (relegated to military tribunal). Al-Marri's entire cases turns on whether he was unmarked because he's a civilian, or unmarked because he's a saboteur.

An assertion by an Executive branch official is not a hearing.

Well, yes. That's pretty much what I said.

Watchman | June 12, 2007 05:34 PM

The problem with citing Milligan as precedent is that at the time of the Civil War, there were no AUMF or MCA laws, passed by Congress, in place. Now there are. The rules have changed. You may not like the new rules (apparently these two judges don't) but they are there. As the dissenting judge pointed out--as cited above--they completely ignored the fact that this guy had indeed been judged an enemy combatant in their ruling.

What went on here is pretty simple. The two most liberal judges on the 4th, both appointed by Clinton (yes, I know Gregory was put in full time by Bush as part of a package deal, but he was recess appointed by Clinton first) took the opportunity to slap the Bush Administration down. The chances of this ruling, which reversed the lower court, standing up to en banc review are pretty slim.

And I wouldn't bet on the Supremes agreeing with these two either. It would be a close call, and between Hamdi and Hamdan and Padilla, you can probably argue some members to vote either way. But when push comes to shove, the judiciary has traditionally (and I'd argue rightly) given the Commander in Chief considerable deference in wartime decisions.

Chris Gerrib | June 12, 2007 05:37 PM

gerrymander - the defendants in Quirin ADMITTED that they were German soldiers. That's what a stipulation is. Al-Marri is disputing whether or not he's a soldier.

The point about illegal entry was quite relevant. If the Germans had shot their way across the Mexican border and stayed in uniform going north, they would have been POWs.

The majority opinion did in fact address the district court and Rapp's report. It said that, even if Rapp was correct, that didn't make Al-Marri a combatant. That may be the weakest part of the opinion.

Chris Gerrib | June 12, 2007 05:46 PM

Watchman - so the AUMF voided the 4th and 5th Amendments? The AUMF just authorizes force against any terrorist.

If that's the case, then we don't even need to hold trials against terrorists. The military can simply shoot them in the streets.

I'm sorry, I have a big Constitutional problem with a law like that.

I'd also like to point out that an appeals court can decide that a district court made the wrong dtermination as to the facts. They didn't ignore the Rapp statement in the District court, they specifically said it wasn't enough, thus apparently voiding the District court finding.

Watchman | June 12, 2007 05:59 PM

No, the AUMF gives the government a means by which they can hold illegal combatants as well as the means by which they can so designate people. If the ruling here was that the designation of Al-Marri was inaccurate, that would be one thing, but that's not what they're saying--or at least not what I read them to be saying. I read it as they're saying that such a ruling cannot be made of a person in Al-Marri's circumstances. Which is an entirely different kettle of fish.

gerrymander | June 12, 2007 06:01 PM

Chris Gerrib: Al-Marri is disputing whether or not he's a soldier.

Again, yes. That's what I said: "Al-Marri's entire cases turns on whether he was unmarked because he's a civilian, or unmarked because he's a saboteur."

Al-Marri asserts that he is legally in the country on a student visa. The government asserts that al-Marri entered the US under false pretenses. The majority opinion above seems to suggest that unless al-Marri wrote on his visa application "I am an al-Qaeda sleeper operative," he must be treated as though he's a civilian. As you say, it's a weak argument.

Chris Gerrib | June 12, 2007 06:13 PM

Watchman - I don't know how to say this without sounding insulting, but I'll try. Please accept my apologies if I fail.

I think you're operating as if this case occurs in a vacuum. Other recent Supreme Court cases said that the Bush Administration couldn't try combatants without getting Congressional authorization. The AUMF was NOT such an authorization, according to the rulings. (BTW, this was not needed in Quirin because the laws then governing the Army gave specific authority to try war criminals.)

The Al-Marri ruling is saying that, pursuant to these subsequent laws, Al-Marri is not an enemy combatant. More importantly (which is why it's discussed first) the military did not follow the rules set out by Congress for enemy combatants.

Finally, they are saying that, since the only justification for using the AUMF voids the Constitution, obviously the AUMF doesn't apply.

This is in part because the AUMF doesn't say (so far as I can find) anything about holding anybody. It authorizes "military force." I understand "military force" to mean "commence firing," based on my (admittedly limited) military experience.

Chris Gerrib | June 12, 2007 06:22 PM

Gerrymander - the way I read the opinion is "the Government claims X, Al-Marri claims Y. He is entitled to a hearing by a neutral party to sort these claims out. Since he wasn't captured on a battlefield, the hearing must be in civilian court."

No it's not a weak argument. It goes to the very core of the United States Constitution. The people who wrote the Constitution had just fought a war against a dictator (their words) who argued that he had the right to arrest anybody he wanted to.

Watchman | June 12, 2007 06:28 PM

I don't think this case occurs in a vaccuum, I think this case undoes the judicial groundwork that has been laid in previous cases. YMMV.

Yes, they did say, as you note, that Al-Marri is not an enemy combatant. I think they did so wrongly, both on the face of the facts revealed so far, and on the basis of existing law. I'm not sure why you think they AUMF doesn't apply when it says "The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Force is not just killing, it includes jailing as well, unless you think killing is the only "necessary and appropriate" response to "prevent future attacks".

And certainly under the MCA if not AUMF, the military system seems to be the place for these cases. The civil courts are poorly suited for trying wartime cases. That's why historically military courts and tribunals have been used.

And you weren't insulting at all. Thanks.

Buck | June 12, 2007 06:34 PM

OK- I've had a long day of work and only scanned some of the very well researched and explained positions here.

I'll chime in here as an immigration attorney:

A person in the US on a student visa is not a "lawful permanent resident," which is a legal term of art in immigration law.

Students, visitors, temporary workers, etc. are nonimmigrants and can be described as "having been inspected upon entry," "with lawful presence" or "with lawful status."

Certain acts in violation of their visas (working without authorization) or criminal acts automatically negate their lawful status. The same crimes committed by a lawful permanent resident ("green card" holder) would not result in removal from the US.

Certain criminal acts by a lawful permanent resident (such as conviction for domestic violence) can result in the stripping of the permanent residency and removal. These same acts done by a naturalized US citizen have no immigration impact.

However, naturalized citizenship may be stripped and the alien removed after the commission of certain acts (such as treason).

All immigration status, from lawfully admitted student through naturalized citizenship, may be stripped if it turns out that the alien received an immigration benefit via material misrepresentation. When applying for every nonimmigrant (student, visitor, temporary work) visa and every immigrant (permanent residency) visa, the alien is asked whether or not he/she intends on entering the US for a whole list of illegal activities, including terrorist activities and attempts to overturn the US government or its system via violence. So, if you mark on the form that you're not a terrorist but later get caught doing terrorist activities, you're put into removal.

That being said- historically, it had been determined that once a person had been admitted to the US, he/she had all the same Constitutional protections granted to citizens in terms of such things as due process, etc. This grew to include those who had entered illegally.

John Scalzi | June 12, 2007 06:37 PM

Oooooh. Expert commentary!

Euan H. | June 12, 2007 07:46 PM

I was typing up a comment on residency, had just finished . . . and then reload and see Buck's comment above. Just to add my 2c then:

Like Buck says, permanent residency is a separate status from, frex, legally being in the country on a student visa.

For example, I live and work in Thailand. My visa is a non-immigrant B, which gives me the right to stay and work within the Kingdom of Thailand for a period of 365 days, after which it needs to be renewed. I don't have the rights of a Thai citizen (no voting, I can't own a business, etc.) but in general, the laws of the Kingdom apply to me in the same manner as they would to a Thai citizen. Frex, the police can't hold me without trial, they can't arbitrarily confiscate my property, etc. So, I don't have the same rights as a Thai citizen, but I do get the same protection from the law.

If I applied for resident status, I would no longer have to renew my visa every year, and I would also gain some additional rights (business ownership, I believe). However, I still wouldn't have all the rights of a Thai citizen (still no voting).

If Al-Marri was on a student visa, then he wasn't a permanent resident. But really that's irrelevant. The question is: Are foreigners legally present in a country entitled to the same legal protections as citizens of that country? In many other countries (like Thailand), the answer is 'yes'. What's it going to be for the U.S.?

ucfengr | June 12, 2007 08:11 PM

One thing folks, myself included, is that granting constitutional rights to al Qaeda members actually rewards bad behavior. If al Qaeda was a uniformed military force, any members we captured would be held in some prison facility for the duration of the conflict, with no access to the US Courts and no expectation of any rights outside those granted by the applicable Geneva Conventions. But al Qaeda members by disregarding the rules of war i.e. specifically targeting civilians and not wearing uniforms are rewarded by being granted full Constitutional rights. Future enemies should note this, if you want your captured soldiers to be treated really well, plus be a potential source on US intelligence gathering methods and target strong points, sneak them in the country on student visas and make sure to only target non-military targets. Heck, prominent American writers may even take up your case.

ucfengr | June 12, 2007 08:15 PM

First sentence should have read: One thing folks, myself included are overlooking...

Also a lot of folks seem to be having problems separating their hatred for Bush from this discussion. It's not hard to imagine them being quite a bit more sanguine under a President Clinton or Obama. They are also forgetting Robert Jackson's (Attorney General under FDR and chief judge at Nuremburg) exhortation that "the Constitution is not a suicide pact."

stevem | June 12, 2007 08:18 PM

My limited recollection from law school generally agrees with Buck. The short hand that I remember is the protections of the U.S. Constitution only kick in in the face of government (not private) action and if the government action is directed to a U.S. citizen (wherever that citizen may be located) or non-citizen, at least in part, and only of the non-citizen is within the borders of the U.S.

Scenario 1: Non-citizen and/or citizen siezed within U.S. by government. Constitutional protections apply.

Scenario 2: Citizen siezed outside U.S. by government. Constitutional protections apply. John Walker is an example of this.

Scenario 3: Non-citizen siezed outside U.S. by government. Constitutional protections DO NOT apply. Note that once brought into the U.S., Constitutional protections would apply (which explains why the U.S. holds the detainees in Guantanamo)

Scenario 4: Private citizen siezes citizens and non-citizens both within and without U.S. Constitutional protections DO NOT apply as there is no government action. Note the citizen may violate the criminal and civil code, exposing himself to liability, but there is no bar to the U.S. using the information obtained as a result of, by example, torture, as it was not the government which employed the torture.

Having said all that, I think Ric has at least one legitimate concern. While I don't think the military would adopt the bullet in the head alternative, paramilitary forces, "contractors" (i.e. mercenaries), and allies who might otherwise turn prisoners over to us (or which we might otherwise willing to take off their hands) might well decide to do so.

Chris Gerrib | June 12, 2007 09:39 PM

Watchman - I don't think you and I are reading the same court cases, so our mileage does vary. A big part of my argument with the AUMF is whether or not it overrides the Constitution. If the AUMF does grant the President the rights you claim, then he could just as easily decide it was "necessary and appropriate" to summarily execute suspected terrorists.

ucfengr - I don't want to extend Constitutional protections to Al Queda. I do want Constitutional protections applied to US residents. Until somebody proves that Al-Marri is part of Al Queda, he gets the benefit of the doubt.

Although I am not a fan of President Bush, I don't care who's President. A country in which we can lock people up forever on the President's say-so is a dictatorship. Period.

I agree, the Constitution is not a suicide pact. However, Al-Marri was residing in a civilian jail awaiting trial. Considering he was not able to harm anybody and could be deported on a whim, I hardly see how letting the trial play out is suicidal.

I'm not sure how I won the election (or who I pissed off) to become the resident defender of the Constitution, but I am begining to think that I am wasting my time with this debate.

CaseyL | June 12, 2007 09:48 PM

While I don't think the military would adopt the bullet in the head alternative, paramilitary forces, "contractors" (i.e. mercenaries), and allies who might otherwise turn prisoners over to us (or which we might otherwise willing to take off their hands) might well decide to do so.

Constitutional law limits what the government can do, not what private enterprise can do. Mercs aren't part of the regular armed forces: they're privately hired and paid. It could be argued that Constitutional - and, in fact, the military code - doesn't apply to them. Is that an accurate reading? Or, if the mercs are employed by the government, or by an agent of the government, do the military code and Constitutional limits apply to them?

Is there a verifiable record of mercs or allied forces shooting prisoners instead of handing them over to US forces? If they've done so in the past, I'm not sure that US policy forbidding it has ever made a difference. If they haven't, I'm not sure why thinking a prisoner might get a trial would be an impetus for them do start doing so - any more than cops starting shooting a lot more suspects than they had previously just because of the Miranda and Gideon decisions.

Advocates for keeping suspected illegal enemy combatants in indefinite detention without charges or counsel say they fear that giving such combatants any right to trial will wind up acquitting the accused, or that convictions will be overturned on a technicality.

I realize the "walks free on a technicality" is a long-established bete noir for law-n-order conservatives (unless it's one of their own in the dock), but how often does it actually happen? To violent offenders, that is: I'm not talking about white collar felons, but the kind of offenders that give people nightmares. How many convicted murderers, esp. mass murderers, have gotten loose due to a technicality?

If there's going to be any error, historically it's more likely to be on the side of conviction. We have many more instances of people wrongly convicted of murder than we do of wrongful acquittals.

McVeigh was convicted. Sheik Omar was convicted. The accused in the Kenyan bombings were convicted. Our record on trying accused terrorists is pretty good, actually.

James B Franks | June 12, 2007 09:49 PM

ucfengr, how does extending our constitutional rights to rights to al Qaeda members actually reward bad behavior? If anything it would anger them further. Remember their goal is to change the behavior of the United States.

Steve Buchheit | June 12, 2007 09:51 PM

ucfengr "Also a lot of folks seem to be having problems separating their hatred for Bush from this discussion."

And some of those who are Bush Apologists are having the same problem in reverse.

You keep saying he's Al Qaeda. Please show your proof and evidence. If all you have is the Justice Department saying he is, that's pretty weak, which is why he should be given a trial to test the veracity of the charges. Until that happens, the best you have is he's accused. Just like Tom Delay, he's accused of crimes. There's a trial to determine the veracity of the claims (some of which have been dismissed, some of which are proceeding).

gerrymander | June 12, 2007 10:48 PM

Steve Buchheit:You keep saying he's Al Qaeda. Please show your proof and evidence. If all you have is the Justice Department saying he is, that's pretty weak, which is why he should be given a trial to test the veracity of the charges.

Technically, we have the Justice Department saying al-Murri is part of al-Qaeda, and (this is the key bit) a lower court concurring with that opinion. In other words, the veracity trial has already occurred. The ruling above is from an appeal court.

An Eric | June 12, 2007 11:53 PM

The claim that granting Constitutional rights to someone who is accused of a crime "rewards bad behavior" if the person happens (in fact) to be a member of a terrorist organization is inapposite. It is a fundamental premise of our system of government that the State, to act against persons under its jurisdiction or against the People, bears the burden of proving the necessity of that action. The limits imposed on government by the Constitution carry risks, but the founders considered such risks preferable to the alternatives.

A better question that should be asked by those who believe Congress granted the President the authority to ignore Judicial precedent when "necessary" is what kind of procedural safeguards would they want in place if they were mistakenly accused of being terrorists?

Jon Marcus | June 13, 2007 02:40 AM

Re "rewards bad behavior"

By your standard, giving criminals the right to trial by jury rewards bad behavior too. Yet you wouldn't argue (I hope) that we should stop doing that.

Gerrymander

The DoJ claimed that the President calling him an enemy combatant was all that was necessary to hold him. The lower court agreed with that. The veracity of that claim has never been tested.

In fact he was transfered to military court specificaly to avoid that claim being tested in civilian court.

ucfengr | June 13, 2007 06:47 AM

ucfengr, how does extending our constitutional rights to rights to al Qaeda members actually reward bad behavior?

By giving more legal benefits to people who violate the Laws of War than those who obey them. Okay one more time

1. uniformed soldier strictly obeying the Laws of War--held in confinement until the end of hostilities with no access to US legal system.

2. unlawful enemy combatant targeting civilians--given full access to free legal council, the possibility of bail, given full access to the press, loved and honored by hoards of Bush haters, and defended by prominent writers.

Which would you rather be?

And some of those who are Bush Apologists are having the same problem in reverse.

Funny how it it takes to be labeled a Bush apologist is to not believe he is the second coming of Hitler.

By your standard, giving criminals the right to trial by jury rewards bad behavior too.

No, it doesn't. Giving unlawful combatants better treatment and more rights than uniformed soldiers following the Laws of War does.

Of course everybody knows that prior to 9/11, we had one of the conspirators in custody. Law enforcement was scrupulous about making sure the conspirator's rights were observed and that no mistakes were made. The result is that we had information that could have been used to stop 9/11, but we couldn't use it. That made sense in a pre-9/11 world, now it doesn't. When the next attack succeeds and if a similar situation occurs, nobody he is going to accept the explanation that we had information but we couldn't access it because we had to observe this al Qaeda member's rights.

Scott | June 13, 2007 07:16 AM

ucfengr:
Uniformed soldiers without access to trials and lawyers, and possibilities of bail are also covered by the U.S.A.s adherence to the Geneva conventions. Those people that aren't official P.O.W.s are protected by NOTHINGsatisfying to say that they shouldn't be protected by anything because they're the bad guys... well, that's fine, but it's also exactly what J.Scalzi is happy isn't happening.

"Another good day for the rule of law." That's not "another good day for the expedient punishment of criminals, terrorists and threats to U.S. Security."

Steve Buchheit | June 13, 2007 07:40 AM

ucfengr "Funny how it it takes to be labeled a Bush apologist is to not believe he is the second coming of Hitler."

Funny how it takes to be labeled a Bush Hater is to disagree with him.

Considering you started the "Bush Hater" rhetoric, I'm comfortable labeling you an apologist.

Luke | June 13, 2007 11:08 AM

ucfengr: "unlawful enemy combatant targeting civilians--given full access to free legal council, the possibility of bail, given full access to the press, loved and honored by hoards of Bush haters, and defended by prominent writers."

Declaring that someone should be given a fair trial is not the same as being loved an honored.

Perhaps one is not executing such an entirely dispassionate reading of the opposing arguments as one thought?

Luke | June 13, 2007 11:08 AM

Declaring that someone should be given a fair trial is not the same as loving and honoring that person.

Perhaps one is not executing such an entirely dispassionate reading of the opposing arguments as one thought?

ucfengr | June 13, 2007 12:29 PM

Uniformed soldiers without access to trials and lawyers, and possibilities of bail are also covered by the U.S.A.s adherence to the Geneva conventions. Those people that aren't official P.O.W.s are protected by NOTHING

According to the laws and customs of war enemy soldiers operating behind enemy lines, without uniforms, and engaging in sabotage and terrorist attacks against civilians have very minimal rights. As I have explained the reason for this is to encourage soldiers to obey the laws and customs of war. If you give people who ignore the laws and customs of war rights that you don't give people who honor them, you incentivize people to ignore the laws and customs of war. Essentially you encourage countries and organization to engage in terrorist activities because there is no penalty for doing so, in fact they are rewarded by being given rights not given ordinary soldiers.

Funny how it takes to be labeled a Bush Hater is to disagree with him.

Not every one who disagrees with Bush is a Bush-hater, but from the comments at this string, (http://www.scalzi.com/whatever/005176.html#comments) it is probably safe to say that a few reside here.

Perhaps one is not executing such an entirely dispassionate reading of the opposing arguments as one thought?

If I was dispassionate about this subject I wouldn't have taken the time to make a dozen or so posts on the thread.

I am willing to concede that the treatment of al Marri and his cohorts may not be strictly Constitutional, but al Qaeda and its affiliates have succeeded in killing thousands of civilians and would be happy to kill hundreds of thousands. This is not some group that is trying to shake down a candy store or Chinese restaurant. When dealing with groups like this, the stakes are so high that you sometimes have to be willing to work outside the Constitution to safeguard the nation and its people, and even the Constitution. That was the meaning of Robert Jackson's statement that "the Constitution is not a suicide pact". Sometimes we need to be willing to accept relatively minor and temporary restrictions on freedom to ultimately preserve that freedom. What would happen to our freedoms if al Qaeda successfully launched a nuclear attack on the US or even a European nation? I suspect we would look back longingly on days when only a few non-US citizens who happened to have innocently contacted al Qaeda paymasters had to relinquish some of their rights.

Chris Gerrib | June 13, 2007 12:55 PM

ucfengr - apparently the truth comes out that you don't particularly care about Constitutional freedoms. Ben Franklin, who knew a thing or two about "temporary restrictions on freedom, "said," those who would sacrifice freedom for safety deserve neither."

I am not arguing here that we not go forth and hunt Al Queda, using whatever military force is appropriate. Nor am I arguing that Al Queda is not a threat - they are. Their goals are to wipe out the United States, and we are at war.

But this is not the first time we have faced enemies determined to wipe us out, including via nuclear weapons. We were able then to conduct the war in accordance with the Constitution.

There are many ways to commit suicide. One of them would be to allow the United States to become a dictatorship. And that's exactly what you get if the President can imprison somebody forever on his say-so.

John Scalzi | June 13, 2007 01:00 PM

Ucfengr:

"I am willing to concede that the treatment of al Marri and his cohorts may not be strictly Constitutional"

Excellent. We're done here, then.

As for the rest of that paragraph, please. Leaving aside the hyperbole, the issue here is not that the Constitution is not robust enough to handle this threat; the issue is that this administration didn't even bother to see whether the Constitutional processes in place were adequate before embarking on a series of extra-Constitutional maneuvers. Before we go chucking the Constitution overboard, let's see if we can actually do what we need to do within its framework.

The Constitution is not a suicide pact, but that's not a reason to shoot it through the head at the earliest possible moment, either.

To put it another way, if you would like to waive your right to Constitutional protection under the law, I won't stop you. I won't waive mine, however, and I don't approve of anyone else trying to waive them for me.

ucfengr | June 13, 2007 01:28 PM

"I am willing to concede that the treatment of al Marri and his cohorts may not be strictly Constitutional"

May is an awfully big word, the issue is obviously not decided yet, but I am willing to admit I may be wrong. Apparently you are not.

As for the rest of that paragraph, please. Leaving aside the hyperbole, the issue here is not that the Constitution is not robust enough to handle this threat; the issue is that this administration didn't even bother to see whether the Constitutional processes in place were adequate before embarking on a series of extra-Constitutional maneuvers. Before we go chucking the Constitution overboard, let's see if we can actually do what we need to do within its framework.

Speaking of hyperbole, sheesh. You make it sound like the Bush administration just decided to round up folks. They didn't. Just because a 3-member panel didn't agree with the process they had in place doesn't mean that they didn't do a significant amount of research on the issue. Let's not forget, the decision was a 2-1 majority, so apparently the Bush administration was able to convince at least one member of the 4th Circuit Court of Appeals that their position is correct. If the case is heard en banc, they may yet convince a majority and there is always the Supreme Court.

The Constitution is not a suicide pact, but that's not a reason to shoot it through the head at the earliest possible moment, either.

Again the hyperbole. Please, not granting "unlawful combatants" full Constitutional protections is not the beginning of a police state.

What you are unwilling to consider is that it is very easy to imagine circumstances where our Constitutional protections could be significantly more restricted than you imagine they are being now. It the situation arises, you won't have the option of waiving your rights.

Steve Buchheit | June 13, 2007 01:35 PM

ucfengr, "When dealing with groups like this, the stakes are so high that you sometimes have to be willing to work outside the Constitution to safeguard the nation and its people, and even the Constitution."

Never. Because that's exactly what the terrorists are hoping you will do. Seriously. It's part of their plan to show how hollow the ideals of their target government is that they would so willingly chuck them. This is because the terrorists want the overthrow of the government. The easiest way to do this is to attack the basic governed/government pact. I posted a while back on another thread how this works and included some non-classified material to support the military's position on this, sorry you weren't here for the lesson, ucfengr, but I have little patience for going over it again.

Stop giving the terrorist freebies.

"What would happen to our freedoms if al Qaeda successfully launched a nuclear attack on the US or even a European nation?"

Absolutely nothing. See above. Except we may nuke some country off the face of the earth to get "even" for all our dead. But I would still be as free.

"I suspect we would look back longingly on days when only a few non-US citizens who happened to have innocently contacted al Qaeda paymasters had to relinquish some of their rights."

Again, you profess knowledge of his guilt, yet provide no evidence.

Stop giving the enemy points.

ucfengr | June 13, 2007 01:37 PM

Ben Franklin, who knew a thing or two about "temporary restrictions on freedom, "said," those who would sacrifice freedom for safety deserve neither."

Somehow the nation survived temporary restrictions on freedom during the Civil War, WW2, and other less notable times.

I don't recall a war where enemy combatants or even POW's were accorded full rights under the Constitution.

But this is not the first time we have faced enemies determined to wipe us out, including via nuclear weapons. We were able then to conduct the war in accordance with the Constitution.

During all the wars in our history, we had to endure temporary restrictions on our Constitutional rights; much more serious restrictions than you imagine we are undergoing now. This is not some evil Bush innovation.

There are many ways to commit suicide. One of them would be to allow the United States to become a dictatorship.

Yeah, not granting full Constitutional rights to foreign born terrorists is the same as establishing an unconstitutional dictatorship; again, sheesh.

Steve Buchheit | June 13, 2007 01:41 PM

ucfengr, "It the situation arises, you won't have the option of waiving your rights."

Then, I'll have died free, or my conscious will nag me about the oath I swore as a young man (and reaffirmed 5 years ago when I took office), until I defend my Country and Constitution against all enemies, foreign and domestic.

Either works for me.

John Scalzi | June 13, 2007 01:50 PM

Ucfengr:

You seem to be skipping over of all the other extra-constitutional maneuvers this particular Administration has performed during its tenure, including the unconstitutional detention of an American citizen. I understand why you would want to view this particular case in isolation of all these other things, but I prefer not to.

You're also once again ignoring the fact that, unless and until an appeal is granted and the decision is reversed, as a matter of law the treatment of al Marri is unconstitutional, no may about it. There are other issues where one may say that something may be unconsitutional or not, because they have not been yet adjudicated. This is not one of them.

"What you are unwilling to consider is that it is very easy to imagine circumstances where our Constitutional protections could be significantly more restricted than you imagine they are being now."

And? It's also very easy to imagine circumstances where we enjoy even more Constitutional protections than we have now and still fight these people competently and completely, and protect our country and our way of life doing it, which appears to be what you are unwilling to consider. Hypotheticals are hypotheticals. In the real world, I prefer to keep all my rights where they are, because I think I need them, and I don't think I need to cast them aside to root out these people and squash them like bugs.

In short, it appears I have rather more faith in the Constitution and what is possible with it in full force than you do. Which, of course, makes me feel shiny.

ucfengr | June 13, 2007 01:55 PM

Big talk, Bubba; I hope you never have to back it up. Though I do find the implication that Bush is a domestic enemy but al Marri isn't amusing.

ucfengr | June 13, 2007 02:02 PM

John, you seem to be ignoring the fact that there have been several times in our nation's history when we have had to live through temporary restrictions on our rights. We survived them. You seem to be operating from the impression that the slightest restriction will be fatal to all the others. From where I stand it is I who has more faith in the durability of our Constitution.

Steve Buchheit | June 13, 2007 02:08 PM

ucfengr, I already have worn the uniform of my country, you sniveling coward. I have already made that choice.

Considering your ignorance, which seems to be wide ranging, I;ll only point out what I've said in the past. Try al-Marri. If you're so damn convinced of his guilt, surely a trial isn't a big thing. Have you read me typing that al-Marri is innocent? No, but you've heard it in your mind.

Are you afraid, ucfengr? If you are, that's exactly what the terrorists want. They've defeated you. Do me a favor, if you are a US Citizen, please leave the country you seem to have abandoned already.

Also, big talk from someone that used a pseudonym, troll.

Chris Gerrib | June 13, 2007 02:18 PM

ucfengr - your last comment is quite insulting. Several individuals on this blog, including myself, served in the military. We made the "would I really die for my country" decision. Although none of us is in a hurry to do so, we're not just talking.

I note that you've positioned yourself as an expert on illegal combatants. I also note that you have not mentioned any military experience. Did you serve, or are you just a chicken-hawk?

ucfengr | June 13, 2007 02:36 PM

ucfengr, I already have worn the uniform of my country, you sniveling coward. I have already made that choice.

My honor had been besmirched; I demand satisfaction. Pistols at dawn, varlet. A tad overwrough, aren't we, Steve. No offense, Bubba, but you ain't the only one to wear his country's uniform. My clothes were U.S. Army green for 8 years, so "at ease" on the coward talk, there.

Are you afraid, ucfengr? If you are, that's exactly what the terrorists want. They've defeated you. Do me a favor, if you are a US Citizen, please leave the country you seem to have abandoned already.

This whole coward meme is a bit tiresome. I work on a US Navy base and every day I have to pass armed guards to get to my office. Does that mean that the US Navy and Marine Corps is a bunch of cowards? Or does it mean that they understand the threat and are prepared to confront it?

John Scalzi | June 13, 2007 02:42 PM

Ucfengr:

"You seem to be operating from the impression that the slightest restriction will be fatal to all the others."

Not at all. However, as I noted before, the issue here is that it seems amply evident that this administration didn't bother to try to work within the Constitutional framework before it started to work outside of it. I happen to be a big believer in doing the former as much as possible before galloping headlong toward the latter; this administration didn't, and has consistently suffered the consequences for it, as have we all.

"Surviving" extra-Constitutional times is well and good; I am unconvinced that this is one of those extra constitutional time, nor that the manner in which the Constitution has been insulted in these specific cases were at all necessary. Exhortations that sometimes it has to be done don't count as evidence; make the case based on fact. The administration in this case came nowhere close to that.

ucfengr | June 13, 2007 02:43 PM

Also, big talk from someone that used a pseudonym, troll.

Bubba, my name is Robert Smith and I live in Southern Maryland. If you ever feel like coming down to try to kick my cowardly behind, feel free. I use the "ucfengr" not because of fear, but because it is an interesting play on the college I attended (University of Central Florida) and my major (Computer Engineering).

John Scalzi | June 13, 2007 02:51 PM

All right, everyone. Down with the knives. Throwing elbows now and then is fine, but we're all grownups here and should know when we're crossing the line.

Ucfengr has views that oppose mine on this subject, clearly. However, I don't doubt that he has the interests of the country at heart or that he is a perfectly decent human being.

So take a deep breath, hit the reset button and start again. Treat Ucfengr as my guest here, because that's what he is, and I'm happy to have him here.

Ucfengr, likewise keep your head (I liked the pistols at down touch), but don't doubt you are welcome to express your views here.

ucfengr | June 13, 2007 02:55 PM

Ucfengr, likewise keep your head (I liked the pistols at down touch), but don't doubt you are welcome to express your views here.

Praise from the master. Much obliged.

ucfengr | June 13, 2007 02:57 PM

My apologies for any offense. My frustration from re-wiring my basement (yes, I am multi-tasking) may be carrying over to my comments.

Steve Buchheit | June 13, 2007 02:59 PM

To all the posters, I apologize for my last comment. I allowed myself to get drug down in the rhetoric and I realized after I posted that my comments could have drug the conversation farther down. As my wife tells me, sometimes I need to walk away. Smart woman she is.

ucfengr, since you still work on a Navy base, my suggestion is to request briefings on terrorism, if you can. There is a wonderful pamphlet I quoted in an earlier thread, that accompanied a top/executive level briefing on terrorism that included the motivation and strategy of terrorist (as I remember it was the first terrorism brief I attended), their psychological makeup and goals. A quick search through the Whatever and I couldn't find it, and it is now packed away in deep storage or I would have given you the publication number when I got home. One of their goals is to provoke an reaction from the target government so that they toss out any pretense of law and order. This strikes at the very heart of the contract between the governed and the government. In this way, the terrorists hope to show the target populace that they can't trust their government. From here they hope to ignite a revolution. It's more drawn out that this, and there's a whole passel of psychology and history to back it up.

So violating our laws, suspending Consitutional protections and oversite, all play to the terrorists. Stop giving them freebies. As someone who was in uniform you should know that freedom and liberty is hard work.

My guess is the guys with the guns understand the threat and where it's comming from. I am still unconvinced that you do.

al_Marri is in custody. He isn't going anywhere. Try him under our laws. If it's such a slam-dunk case, he'll be going to jail. Even if it's a weak case, we can deport him and his family. But dropping him down a hole, "dissapearing" him (which is the correct term, see Argentina history, not "spy movie talk"), isn't an option. And that's what this court decision was about.

Hooray for the rule of law.

John Scalzi | June 13, 2007 02:59 PM

No worries, Ucfengr. It's a contentious topic that people feel passionate about. I'm happy I've had to do as little moderation as I've had to do. Also, of course, re-wiring is a pain in the ass, so you have my sympathy.

ucfengr | June 13, 2007 03:06 PM

One of their goals is to provoke an reaction from the target government so that they toss out any pretense of law and order.

It is a pretty big step from not conferring full Constitutional rights on illegal enemy combatants to tossing aside any pretense of law and order. I don't think the latter necessarily follows the former.

So violating our laws, suspending Consitutional protections and oversite, all play to the terrorists.

Again, there are historical precedents for curtailing certain Constitutional rights during a time of war (note: I am not conceding that this is necessarily the case in this circumstance). The Republic survived and will continue to survive as long as we all keep our heads.

ucfengr | June 13, 2007 03:14 PM

And I just connected power back to the basement without electrocuting myself. Hoo-ah! Now you all get the benefit/curse of my wisdom for a while longer. Felicitations or condolences as the case may be.

Steve Buchheit | June 13, 2007 03:27 PM

ucfengr, as has been shown above, and confirmed by 2 of 3 judges, in this case the government did suspend the rights of this individual and directed the lower court to issue a writ of habeas corpus. Suspension of basic rights is a goal of the terrorists. Please, stop giving them freebies.

A war against terrorism, as we've all been told, is fundementally different that other wars (and I wish we would fight it as such). So past precedent doesn't apply.

This is a war about who we are, not who the terrorists are. We have a chance to win it, and can win it handely, but only if we follow our own laws. As you have seen in Iraq, when we ignore our own principles, laws, and the treaties we've signed, things go very badly for us. When we follow them, uphold our principles, enforce the law, things go well for us. The military new this back in the 80s when I was in. My guess is the people in uniform still understand this.

If we have the evidence to convict this person and justify keeping him in jail, let's do it. Try him, find him guilty, and then hold him in humanitarian condictions or if the law allows, kill him. If not, convict him on the minor charges and throw him out of the country. If you can't do either, that we have to take that risk he may, or may not, represent. My guess is no matter what his beliefs were before, he's now not so disposed toward favoring the US.

ucfengr | June 13, 2007 03:34 PM

Steve, I think the freebie is when you give foreign terrorists full Constitutional protections, more protections then they would have had they followed the Laws of War. 2 out of 3 judges on the 4th District Court of Appeals may disagree, but that doesn't make them right.

Chris Gerrib | June 13, 2007 03:49 PM

ucfengr - not entirely sure I'm ready to make nice (to steal a phrase) but I withdraw my chickenhawk comment.

Here's my fundamental argument. Who decides when somebody is an illegal combatant? Everything I read, such as the Naval Institute's excellent magazine "Proceedings" (I'm sure you can find a copy on the base) suggests we'll be at this "War on Terror" (better term = "War on Islamic Extremism") for decades. Therefore, whatever structure we come up with to make that call needs to reflect that timeframe. Suspending civil rights for 4 or 5 years in a war with a clear ending is an entirely different kettle of fish then suspending them for decades based on some vague criteria of victory.

ucfengr | June 13, 2007 03:54 PM

Here's my fundamental argument. Who decides when somebody is an illegal combatant?

From what I have read there appears to be enough evidence tying him to al Qaeda to keep him locked up for the duration. A military tribunal should determine his status as a legal or illegal combatant, but even if he is determined to be legal he is still subject to detention for the duration of the conflict. I do understand that the duration of this conflict may be more open ended than previous ones (though that is open to argument), but that really doesn't change my opinion.

John H | June 13, 2007 04:47 PM

ucfengr: They go to trial, the judge suppresses the evidence due to a problem with the search. They go free.

I realize I'm late to this discussion, but one point that needs to be made -- assuming everything you outlined comes to pass, you don't seem to care about what would most likely occur after that. They may 'go free', but not here. They would almost certainly have their student visas voided and would be deported on the next flight out. They would then face the possibility of arrest in their home country for their actions here.

So yeah, I have no problem with your little scenario, however far-fetched it may be...

Chris Gerrib | June 13, 2007 05:03 PM

ucfengr - you said, From what I have read there appears to be enough evidence tying him to al Qaeda to keep him locked up for the duration..

From what I read, there seemed to be enough evidence to convict three Duke lacrosse players of rape. Then their lawyers got access to the evidence and suddenly we have the state Attorney General saying "innocent."

The whole point of the American judicial system is to have adversarial hearings. Hearings where the accused gets to say, "but I couldn't be at X, I was in Y." Or whatever their argument is.

I don't know that Al-Marri is innocent. In fact, he's probably at least guilty of credit-card fraud, which is what he was initially charged with. This fraud may even be for Al Queda's benefit.

The point is, unless he is given an opportunity to present his side of the case, we'll never know.

An Eric | June 13, 2007 05:08 PM

I feel obligated to say something about this, since it's an argument that has been repeated, unchallenged, and since it seems to be a common default cover position.

It is true that the United States has faced Constitutional crises of one kind or another before, and survived. And it there is a good chance that the Constitution may survive the current Constitutional crisis. But these two statements are completely irrelevant.

First, there's a kind of drunk driver fallacy at play: just because an alcoholic motorist made it home safely from the bar the last nine times he was on a binge, doesn't mean he's okay the tenth time, too. You only have to fail to recover once for a tragedy to have occurred.

Secondly, part of the concern is with the erosion of the Constitution's protections. There is an unfortunate tendency for minor allowances to become precedent for further minor allowances, until a freedom has become meaningless. Call it a subset of "bad cases making bad law," if you want. The idea, for instance, that a car is mobile and its owner allegedly has a "diminished expectation or privacy" evolves into a general principle that vehicles are subject to warrantless searches even if the vehicle in question is completely immobilized by the police (Cooper v. California 386 US 58) or is actually a motor home someone is living out of (California v. Carney 471 US 386). The spring loses a little elasticity and never quite returns to its original state.

Thirdly, the usefulness of the precedents is insufficiently questioned. The Constitution survived putting Japanese-Americans into camps--but our nation was shamed and we apologized for it. Yes, Lincoln suspended habeas--and many historians now view it as a blemish on his presidency (and even those who defend his decision don't boast of it). I would rather, if possible, do things right from the start instead of having something to apologize for later, I would rather act with pride than do something shameful.

In short, this particular meme is one that I would like to see die quickly and painfully.

John Scalzi | June 13, 2007 05:17 PM

I was hoping someone would do that heavy lifting. Thanks, an Eric.

John H | June 13, 2007 05:33 PM

ucfeng: John, you seem to be ignoring the fact that there have been several times in our nation's history when we have had to live through temporary restrictions on our rights. We survived them.

The fact you seem to ignore is that, in virtually all of those cases we have looked back with alarm and regret because we realized our government had overreacted.

John H | June 13, 2007 05:42 PM

And of course I posted my last response before reading to the end of the thread. An Eric made the point much better than I did...

ucfengr | June 13, 2007 05:52 PM

I don't ever recall there being enough evidence to convict the Duke lacrosse players, but that is irrelevant to the discussion. The laws regarding enemy combatants, whether legal or not are different from those covering criminal cases.

It is true that the United States has faced Constitutional crises of one kind or another before, and survived. And it there is a good chance that the Constitution may survive the current Constitutional crisis. But these two statements are completely irrelevant.

I have been arguing a lot of different points and some of them can get a little mixed up at times so allow me to clarify my position; I don't think that enemy combatants, whether legal or not have Constitutional rights, so I don't think the al Marri case is one of restricting Constitutional rights. I think the court has made a big mistake by attempting to award rights to unlawful combatants that they don't merit, either under the Constitution or under any of the Geneva Conventions. Even if I am wrong, I think this is a very minor curtailment of rights, certainly not rising to the level of the Japanese internment, and justified by our current state of war.

ucfengr | June 13, 2007 06:15 PM

One thing that a lot of folks don't understand is that until al Marri, there has never been a precedent granting habeas corpus to enemy combatants (legal or not). So the Japanese internment is really not a very good comparison. In essence what you have to argue is not the Constitutionality of the Japanese internment, but the Constitutionality of the internment of tens of thousands of German and Italian prisoners in the US without habeas corpus during WW2.

John Scalzi | June 13, 2007 06:39 PM

Ucfengr:

However, the POWs in WW2 were covered by the Geneva Conventions, which unless I am mistaken the Bush administration is arguing that current combatants are not. If you want to make the argument that al Marri ought to be protected under the Geneva Conventions rather than under the US Constitution, then by all means that's a discussion worth having; saying that he is protected under neither is problematic, however, and it would appear the 4th would agree with that.

Allow me to suggest that at the root of this is all is the simple fact the Bush administration is essentially arguing that there is a class of combatant who has no rights whatsoever other than those which the President chooses to provide them. This is, as far as I can recall, an unprecedented claim of executive privilege, and so the results of such a claim would be equally unprecedented.

Jim Wright (off storming da castle) | June 13, 2007 06:41 PM

Holy Crap! I ducked out of this conversation when the lawyers started talking (grin), and just now glanced back at it. My eyes are bleeding.

I can see your point, ucfengr, but I don't think anybody said "full Constitutional Rights." I had to go back a skim the thread (ugh!), and I know I didn't say "full" Constitutional rights (though I may have implied it).

My concern is this: What protections does the prisoner (illegal combatant, honored enemy, domestic terrorist, whatever) have? If we are not bound by either the Constitution or Geneva, then can we just take them out back and cap their ass as our buddy Ric Locke said somewhere above? I'm not trying to be an ass here, fengr, but what governs our treatment of these men, other than the autocratic word of one man, and one man only? And are you willing to put total faith in that man's ability to rule wisely and humanly? The founding fathers sure as hell weren't that trusting, they wanted to make dammed sure that no single individual ever had that kind of power in the United States when they penned the Constitution. You once swore an oath to support and defend those principles - and swore an oath to uphold the Geneva Conventions, "I am an American Fighting Man..." Remember? Are you comfortable with this situation?

2nd concern: Perception of the United States as a nation who only lives up to her word when it suits her. Secret prisons, snatching foreigners off the street, dumping people into limbo without trial or recourse, state sanctioned torture, no UN or Red Cross access to EPW's or prisoners. We're loosing friends, old friends - and new ones - over this kind of nonsense. Anybody think we can go it alone in the world? Anybody want to try? Or are we going to adopt the pre-WWI policy of Isolationism again? We, the United States, used to be the Good Guys, people wanted to come here. Now? I don't know what we are.

ucfengr | June 13, 2007 07:14 PM

I am unclear what exact rights unlawful combatants have under the Geneva Conventions, but they do have limited rights (less than lawful combatants). There is some dispute over the interpretation what those rights are but I don't think the Bush administration is arguing that they have no rights whatsoever. As to what the 4th said, I don't think that they said that as long as Bush complies with the Geneva Conventions (even a relatively restrictive interpretation) they are okay, but I could be wrong. I don't have the legal training or inclination to read the opinion (I have read some opinions on the majority opinion specifically Andy McCarthy at National Review), but I would be happy to be proven wrong on that point.

ucfengr | June 13, 2007 07:16 PM

Just to clarify, I don't think I ever said or meant to imply that unlawful combatants have no rights, only that they have no Constitutional rights. They do have some rights under the Geneva Conventions, but there is some dispute over how encompassing those rights are.

ucfengr | June 13, 2007 07:18 PM

Nor do I think the Bush administration position is that unlawful combatants have no rights.

John Scalzi | June 13, 2007 07:28 PM

Ucfengr:

"Nor do I think the Bush administration position is that unlawful combatants have no rights."

I didn't say "no rights," I said "no rights whatsoever other than those which the President chooses to provide them." In these particular cases, the rights they have are fewer than they have under either the US Constitution or Geneva Conventions, and unlike in those cases, and as I understand it, there is no law or treaty that keeps the President from changing the level of protections they have.

ucfengr | June 13, 2007 07:39 PM

I didn't say "no rights," I said "no rights whatsoever other than those which the President chooses to provide them."

From the limited reading I have done, I don't think this is the Bush administration position, but if you or someone else can cite something in the legal briefs they submitted supporting the assertion, I will be happy to concede the point.

Chris Gerrib | June 13, 2007 08:49 PM

ucfengr - my point on the Duke lacrosse case was that just because somebody makes a claim, that doesn't make it true. You claim that Al-Marri is an illegal combatant. He claims he's not. Until we have an unbiased hearing, we don't know.

As per the Congressional laws on illegal combatants, Al-Marri is entitled to a Combatant Status Review Tribunal (CSRT). He has not had one. Since he hasn't had a hearing as to the merits in court, all you have is a claim that he's an illegal combatant.

I suspect you will come up with five posts between now and tomorrow twisting, ignoring or otherwise not responding to this post. I will therefore stop attempting to communicate with you, and we can agree to disagree.

stevem | June 14, 2007 12:27 AM

I'm sorry. I cannot resist. I've read far too many American military men on this thread state that putting on the uniform is proof of a willingness to die for the U.S. I'm not claiming any special prowess or knowledge (in fact, the exact opposite) but I tend to recall from my Marine days that the purpose of military service, if called upon to fight, is to make the other guy die for his country, not you for yours. Its certainly in keeping with my personal philosophy. As a former Marine, I am still perfectly willing to fight for my country, even kill for my country [though my current piss poor physical condition would impair my ability to do so (damn the remote, Doritos, beer, the couch and my innate laziness all, not necessarily in that order), though I am fairly certain that my rifle skills are still up to snuff] but dying for my country is not in the game plan or even to be considered. Besides, if you visualize bad things they will happen. So visualize good things such as a pile of enemy corpses, a ticker tape parade and a movie career similar to Audie Murphy's.

And military service does not vest anyone with any special status rendering his (or her) opinion more valuable on the issue of what rights to grant or not grant terrorists. Likewise, lack of military service is no way implies cowardice or undermines a non-veteran's opinion on how the Constitution should be applied or interpreted. Any American's (heck, foreigners too, its not like I can stop them) opinion on the issue is entitled to equal weight.

I also think ucfengr has a good point, in that the a foreign nation's spies captured in time of war can be summarily tried and executed by military tribunals, but terrorists or illegal combatants, appear to assert that they are entitled to more rights than a war-time spy. At least that's the perception, if not the reality. This creates the appearance of less risk, if captured, to a terrorist as compared to an enemy nation's spy.

Btw, I don't think terrorists have (or will ultimately have) more rights than a spy. Ultimately, I suspect the opposite will be true, if it isn’t already. But we are still establishing the "rules" in light of the new style of war and new type of enemy, the conflict between treating terrorism as a criminal justice matter or a war matter, etc. It'll take some time and some litigation before the dust settles.

Also, I could be wrong, but the allegations of Bush acting un-Constitutionally are being over-hyped. There have been a handful of cases, such as a resident terrorist and an American citizen terrorist, were the administration tested the waters in the Court system. Considering the vast expanse of grey area on the issue, I can't blame the government for taking a hardline approach. Only if the Courts tell Bush to back off, once the case has run its course, and he fails to do so will a problem be evident. To date, I am not aware that the administration has improperly failed to abide by a Court order. Correct me if I am wrong.

Finally, keep in mind the Constitution only applies overseas in very limited circumstances. For example, Bush ordering an assassination of a non-American located outside the country is perfectly Constitutional. The only thing making that decision unlawful is an Executive Order that he can lawfully rescind at any time. In light of what he could lawfully do, he has been remarkably restrained.

Just my two cents.

ucfengr | June 14, 2007 06:35 AM

Chris, I don't think I claimed that al Marri specifically is an "illegal enemy combatant", but that there is enough evidence (at least from what I can determine from the news stories) to have him detained as an "enemy combatant". You are correct that his ultimate status as legal or illegal will have to be determined by a military tribunal, but just status as an "enemy combatant" (whether legal or not) is enough to detain the person for the duration of the conflict. The criteria for declaring someone an enemy combatant is quite a bit less strenuous than for convicting someone of a crime in a civilian court.

For a while I seemed to be the only person defending the position that enemy combatants are not entitled to Constitutional protections so I was responding to a lot of posts; my apologies if you you feel I was neglecting you.

Steve Buchheit | June 14, 2007 08:27 AM

Stevem, putting on the uniform is proof that I was willing to go, "the full measure." It doesn't mean I would intentionally and without advantage throw my life away. Actually, putting on the uniform showed my willingness to make the trade-offs to get scholarship monies. It was at the time, however, brought to my full attention exactly what putting on the uniform and accepting the charge meant, and that I should be serious about what I was doing or I should get lost.

I've made the comment elsewhere that if you could ask all those who gave "the last full measure" if they would rather be alive and kicking or under a marker, they would choose the alive and kicking option every time.

However, if the choice is an enfeebled Constitution or the risk that I might die because some wacko decides that the building I'm in blocks their view of paradise, I would hope the law could get them before the action occurs (withstanding the theater cases of recent history, the FBI has been very good at diffusing domestic radicals for the past half century and we should go after terrorist), but I'm willing to take that risk. It's much less than the risk I had putting on the uniform, which could have also been viewed as painting a target on my back. Our laws aren't meant to make us "perfectly safe." Our laws are a balance meant to give us as much safety and liberty as possible and to ensure that other person's safety and liberty as well (this statement could have whole libraries filled with argument and counter argument).

So yes, given the choice, I'd rather live in the land of the free. Understand that as the conditional it is.

As for spies, Hansen and Ames got a trials, and they were heinous fu$%s who caused actual deaths and severely weakened our security. And no matter how much I personally would like to have seen them dance on air, I accept the law.

Al-Marri is charged with crimes, and suspected of being a terrorist. Right now only the executive branch has examined that. Put those charges to the test in front of a judge (and if the law requires, a jury) and if they stand, put him away for a long time or put him to death if the law allows. If those charges and evidence don't stand the test, then we as a society need accept the risk. As a people, we have more to fear from the drunk-driver down the road. The alternative, where the Executive claims the power to determine residents and citizens "enemies" and to hold them indefinitely without review, IMHO, isn't a republic or society I wish to live in.

With this ruling, the Judiciary is asserting their proper role, and they are asking the Executive to prove their claims. The Executive is being reigned in by the system of checks and balances. Our Constitution lives, which makes it a good day.

John Scalzi | June 14, 2007 08:28 AM

Stevem:

"Also, I could be wrong, but the allegations of Bush acting un-Constitutionally are being over-hyped."

They're not allegations; the Court ruled that he was, in fact, acting in an unconstitutional manner. From the ruling:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such revolutionary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution."

Now, of course, one may agree or disagree with the ruling, but the ruling is legal, so until and unless the government's appeal of the ruling is granted (and then the ruling subsequently overturned), Bush's acting unconstitutionally are not allegations, they're fact.

ucfengr | June 14, 2007 09:04 AM

Hansen and Ames are citizens of the US, al Marri is not. You seem to want to gloss over this difference. al Marri is a member of al Qaeda (As far as I can determine he has not disputed this), this alone should be enough to label him an enemy combatant and thus subject to detention for the duration of the war.

What this question boils down to is your view of al Qaeda. Are we at war with al Qaeda are they merely an international criminal organization, like the Mafia albeit with slightly different aims? If the latter, our entire policy, starting with Afghanistan has been wrong; you don't send military forces to deal with criminals. The proper response would have been a continuation of the Clinton policy, where the extradition of OBL was refused because of fears of putting him on trial. If the former, then members of al Qaeda and its affiliated groups are enemy combatants, not criminals and as such are not covered by the Constitution but by international treaties. Then the argument becomes one of what rights do illegal enemy combatants have (because the Geneva Conventions are somewhat vague) and what is the proper venue for determining that status.

ucfengr | June 14, 2007 09:31 AM

Regarding the 4th Circuit court, it should be noted that a 3-member panel of the Court ruled that Jose Padilla, a US citizen member of al Qaeda apprehended in the US, could be held indefinitely as an enemy combatant. The court cited the Hamdi decision and the Authorization for Use of Military Force Against Terrorists to support the ruling. It is hard to imagine the "en banc" court or the Supreme Court upholding a system where US citizens declared enemy combatants can be held indefinitely but foreign citizens can't. Expect this one to be reviewed.

ucfengr | June 14, 2007 09:33 AM

BTW--The Supreme Court declined to hear an appeal on Padilla.

John Scalzi | June 14, 2007 09:34 AM

Ucfengr:

Inasmuch as the government as already filed such a request, I don't expect anyone expects it not to be reviewed.

Also, re Padilla: Oddly enough, he's being tried in a federal court now, isn't he.

Steve Buchheit | June 14, 2007 09:58 AM

ucfengr, let me see, nope, I've never stated, that I remember, in a court that I am not and have never been a member of al Qaeda.

Does that make me an enemy combatant?

For that matter, I've never testified before a Committee of Congress if I've ever been a member of the Communist Party.

And Jose Padilla was finally given a trial, not held indefinately. The trial was messy, but he was found guilty of some charges (notably not the "he's going to set off a dirty bomb, run!" charges) and is now serving (if memory serves) his life in jail. I believe that he is filling appeals. They don't seem to be going very far, though.

Gee, no reason to keep him held without charges. The law worked (although slowly). There was no reason to have handled the case they way the Executive Branch did.

"the Clinton policy, where the extradition of OBL was refused because of fears of putting him on trial."

This was debunked long ago.

ucfengr | June 14, 2007 10:15 AM

Also, re Padilla: Oddly enough, he's being tried in a federal court now, isn't he.

How is that relevant? It doesn't change the fact that the 4th Circuit Court of Appeals ruled that a US citizen member of al Qaeda, apprehended in the US can be held indefinitely as an enemy combatant.

ucfengr, let me see, nope, I've never stated, that I remember, in a court that I am not and have never been a member of al Qaeda.

Does that make me an enemy combatant?

Have you been accused of it? If you are, will you deny it? al Marri has been and, so far as I can determine hasn't. I have not read (nor do I intend to) all the documentation regarding this case, but my understanding is that al Marri's association with al Qaeda is not in dispute. What is in dispute is the President's authority to hold him as an enemy combatant.

And Jose Padilla was finally given a trial, not held indefinately.

That he wasn't held indefinitely makes no impact on the Courts ruling that he could be.

Luke | June 14, 2007 10:16 AM

ucfengr: where do you get the odd idea that al-Mirri has [i]not[/i] contested the claim that he is in Al-Qaeda?

Certainly he has not done so in an official court proceeding, because the case under discussion is where he is [i]petitioning for the ability to do so[/i].

As for the 'not dispassionate' comment... dispassionate reading does not mean lack of interest. It means that you make sure that the meaning that makes it into your head is the one that is actually on the page (or the screen, in this case). If you have not been doing that, I recommend it. Communication ensues.

Luke | June 14, 2007 10:18 AM

DOH! too used to BBCode, I forgot this is HTML.

Steve Buchheit | June 14, 2007 10:36 AM

ucfengr "al Marri has been and, so far as I can determine hasn't. "

al Marri has been and then was stuffed down a hole. It appears that there is enough evidence to convict him of being a member of al Qaeda and having planned and conspired to commit acts of terrorism, although that evidence is now only "believe us we have this and it says this" (by the Executive Branch). Let's have the trial, examine the evidence, if it's worthy find al Marri guilty and put him away. Then we can celebrate that our free society works and will be victorious.

stevem | June 14, 2007 10:57 AM

Steve Buchheit- I hope you interpreted my response to the "willing to die for my country" comment as being tongue in cheek. When I read it I had a flashback to my drill instructors, who addressed this thinking in no uncertain terms. First, its the other guy's job to die for his country; we kill for ours. Second, you never say (or think) "I'm willing to die for my country". They gave several reasons, some ridiculous (part of the brainwashing program) and some not. Then they inflicted pain upon whomever violated their gentle admonishments.

So my response was based upon surprise at seeing the comment from a serviceman, not on any doubt you would risk your life if called upon to serve. A person's decision to put on the uniform has the undeniable potential consequence of death or bodily harm. No arguments there.

Of course, the same holds true of jaywalking. And before you get bent out of shape, that's a joke.

John Scalzi- You are correct that the 4th Circuit ruled Bush acted outside his constitutional power. However, prior to the ruling it was not clear whether his conduct was unconstitutional or not. That's why we have Courts.

And if my limited appellate knowledge is accurate (and it may not be), in addition to a possible stay pending appeal, the Al-Marri decision only controls in the 4th Circuit and only in relation to the administration's conduct as to Al-Marri (if not reversed on appeal). Other circuits are free to disagree and the administration is free to try other cases, in other circuits, on similar facts in an effort to obtain a different result. Until the Supremes speak, the issue is still be open to interpretation. For example, whether the 2d amendment is an individual or collective right is still being debated 200+ years after adoption for this very reason.

Finally, as ucfengr pointed out, Ames and Hansen are very different from the Al-Marri case. Both were American citizens and, if I recall correctly, they weren't spying for the enemy in a time of war. In Al-Marri's case, all Bush need to do is convene a military tribunal, and have him declared either an enemy combatant or illegal enemy combatant (is alternative pleading allowed before militray tribunals?). This is so obvious it makes me think the administration was treating Al-Marri as a test case.

Disclaimer: I do not practice in federal court, nor do I have military tribunal experience. I am merely a lazy guy whose half baked opinion's carry no special weight.

Steve Buchheit | June 14, 2007 11:23 AM

stevem, yep, that was there in training. My job was to inflict as much harm as possible on the enemy. Being dead only meant some other poor shmuck would have to drag my dead ass back. And if we were under fire, they'd probably have to stand in line to get a medal for it as well. So it would be damn inconvenient all around for me to die.

And while the Cold War with Russia didn't look like a shooting war to most people, that didn't mean people didn't die (or be wounded) fighting it. Yes, Hansen and Ames are US Citizens, but their actual actions caused more harm to our cause than al Marri was able to make. Their trials threatened to expose more of the covert nature of the government than the al Marri trial could be. My guess is Hansen and Ames could provide more intel about the "enemy" than al Marri could. Yet we put Hansen and Ames on trial and locked them away.

ucfengr | June 14, 2007 01:37 PM

Yet we put Hansen and Ames on trial and locked them away.

No, they never went on trial. They both accepted plea bargains. I suspect the deals were offered at least in part to avoid the types of disclosures that would have come out in a trial.

But as an enemy combatant he is not entitled to a trial in the civilian courts. Enemy combatants are subject to detention for the duration of the conflict. A military tribunal determines their legal status, but even if a tribunal rules that they are legal or even if one is never convened, they are still subject to detention for the duration of the conflict.

If you want to make the case that we are not at war with al Qaeda, then you position is tenable, but if you believe we are at war with al Qaeda, it just isn't. What you are doing is setting a precedent for all future presidents. At some point in the future we will be at war again; perhaps this time an enemy that we can't defeat in a 2 month campaign. At that time we may have a large number of captured enemy combatants and this future president is going to have to decide what to do with them. When considering that, he is going to have to remember that there is a legal precedent (assuming al Marri withstands scrutiny) for granting "habeas corpus" rights to captured enemy combatants. Granted al Marri does not currently apply to uniformed combatants, since there are none in our conflict with al Qaeda, but why would a court not grant rights to legal combatants that they already grant to illegal ones?

John Scalzi | June 14, 2007 02:07 PM

Ucfengr:

"But as an enemy combatant he is not entitled to a trial in the civilian courts."

Ucfengr, a relevant portion of the ruling for you:

“We have found no authority for holding that the evidence offered by the government affords a basis for treating Al-Marri as an enemy combatant, or as anything other than a civilian.”

Which is to say that your line of reasoning here is moot; he's not an enemy combatant.

ucfengr | June 14, 2007 02:27 PM

Which is to say that your line of reasoning here is moot; he's not an enemy combatant.

So it is your position that if the "en banc" court or Supreme Court overturns the decision he then magically becomes a enemy combatant?

ucfengr | June 14, 2007 02:39 PM

Headline--"12th Circuit Court of Appeals rules Creationism True"

John Scalzi says "If a 2 out of 3 judges say its so, it must be. I guess I'm off to the Creationist Museum."

John Scalzi | June 14, 2007 02:44 PM

Ucfengr:

My position is that I'll be interested to see where the case goes from here; it's also that unless and until the ruling is overturned, this fellow is not an enemy combatant. Don't blame me; I didn't make the ruling.

Therefore, if you want to make a cogent argument regarding his status, you need to factor in that bit of information. And as long as you're counting your judicial chickens before they hatch, remember there's no guarantee that the 4th will hear the case en banc, or that if they do, that they will reverse it, or if they do not reverse it that the SCOTUS will hear or reverse it either.

Re: 2-1 "Creationism is true" bit -- Eh. Seems unlikely a court would so obviously flout the Establishment clause. Your hypotheticals are getting worse.

Steve Buchheit | June 14, 2007 02:56 PM

ucfengr, "No, they never went on trial. They both accepted plea bargains."

You might want to research how plea bargains are enacted. It involves a judge and a court room where the plead guilty to the charges (this is a trial, a quick one, but a trial). As I remember (IANAL), evidence and statements are entered (but not challenged). A judge precides over the action who can revoke the plea if they think that either side acted improperly.

al Marri hasn't even been given the chance (in court) to plead guilty to the charge of being an agent of al Qaeda. He hasn't even been given the chance to plead that to a military judge.

ucfengr | June 14, 2007 03:30 PM

Re: 2-1 "Creationism is true" bit -- Eh. Seems unlikely a court would so obviously flout the Establishment clause. Your hypotheticals are getting worse.

Did your dog eat your sense of humor? It was a joke, son; not a hypothetical.

I'll be interested to see the case play out as well. Regarding his status, all we can say is that his legal status as an enemy combatant is in dispute. The 3 judge panel does not have the final say on the matter. My calling him a enemy combatant may be a little premature but I don't think it has much impact on my line of reasoning.

al Marri hasn't even been given the chance (in court) to plead guilty to the charge of being an agent of al Qaeda.

Is just being a member of al Qaeda a crime? Under what statute? Were captured German or Italian soldiers given a chance to "plead guilty" before being subject to detention? In prior posts you have referred to our conflict with al Qaeda as a war; do you really believe it is? Our nation has separate legal systems for dealing with civilian and military matters. If we are at war, then the military part of our judicial system comes into play and the standards are quite a bit different. You've served in the military so you should know this. What this means is that members of al Qaeda are subject to detention for the duration of the conflict, regardless of their status as legal or illegal combatants, just like captured combatants in all our prior wars. US officers did not have to appear before a judge to offer proof that captured Germans were in fact members of the German army in order to detain them.

John Scalzi | June 14, 2007 03:35 PM

Ucfengr:

"Did your dog eat your sense of humor? It was a joke, son; not a hypothetical."

Yeah, sorry -- I realized that after I sent the comment and then felt a little dumb. I was being distracted by child at the same time. That's my excuse, and I'm sticking with it.

Steve Buchheit | June 14, 2007 04:38 PM

Ucfengr "Is just being a member of al Qaeda a crime? Under what statute? In prior posts you have referred to our conflict with al Qaeda as a war; do you really believe it is?"

What, are we playing "Rabbit Season/Duck Season" here? These are your arguments. My comment was that al Marri hasn't even been given the chance to declare or refute. As the Padilla case shows, just declaring yourself a member of al Qaeda isn't a crime, as you have argued. However, al Marri stands accused of conspiracy to commit acts of terrorism (among other things, including credit card fraud), which, if memory serves, is a crime.

"Were captured German or Italian soldiers given a chance to 'plead guilty' before being subject to detention?"

As I remember, those captured on the field of battle were given a review for processing. We didn't just round them up and stick them in a camp. We knew their name, their rank and serial numbers and registered them with the Red Cross. With that review, it was self evident that they were members of the German or Italian Armies. There was also a review to see if they were wanted for war crimes or other crimes before they were sent into the general camp population. They could then (where permissible and under review) receive packages and send letters. Those that were wanted for crimes were sorted out and held separately until we could hold trials. I also seem to remember that those Germans captured in the US did have a military trial.

Are you arguing here that the whole of the US is a battlefield, subject to military policing and jurisdiction and we should toss posse comitatus out the window?

Jonathan Vos Post | June 14, 2007 08:47 PM

http://adbusters.org/the_magazine/71/The_American_Lefts_Silly_Victim_Complex.html

"... What makes the American left silly? Things that in a vacuum should be logical impossibilities are frighteningly common in lefty political scenes. The word “oppression” escaping, for any reason, the mouths of kids whose parents are paying 20 grand for them to go to private colleges. Academics in Priuses using the word “Amerika.” Ebonics, Fanetiks, and other such insane institutional manifestations of white guilt. Combat berets. Combat berets in conjunction with designer coffees. Combat berets in conjunction with designer coffees consumed at leisure in between conversational comparisons of America to Nazi Germany."

"... The post-sixties dogma that everyone’s viewpoint is legitimate, everyone‘s choice about anything (lifestyle, gender, ethnicity, even class) is valid, that’s now so totally ingrained that at every single meeting, every time some yutz gets up and starts rambling about anything, no matter how ridiculous, no one ever tells him to shut the fuck up. Next thing you know, you’ve got guys on stilts wearing mime makeup and Cat-in-the-Hat striped top-hats leading a half-million people at an anti-war rally. Why is that guy there? Because no one told him that war is a matter of life and death and that he should leave his fucking stilts at home...."

ucfengr | June 15, 2007 01:07 PM

I was being distracted by child at the same time. That's my excuse, and I'm sticking with it.

Happens to me all the time.

Yes, they were given a review by the Executive Branch, just like in the al Marri case. I am beginning to wonder if your problem isn't with the process, but with the executive executing it.

ucfengr | June 15, 2007 01:11 PM

However, al Marri stands accused of conspiracy to commit acts of terrorism (among other things, including credit card fraud), which, if memory serves, is a crime.

The issue isn't whether or not al Marri is accused of committing a crime, the issue is over jurisdiction. If we are at war with al Qaeda then the executive branch has jurisdiction over the case because it is a military matter, if we are not the judicial branch has it. So again, in your opinion, are we at war with al Qaeda or not?

Luke | June 15, 2007 02:06 PM

The question is not just jurisdiction, it is who determines the jurisdiction.

They didn't say, "give him a civilian trial", they said, "If he isn't a civilian, you haven't shown it. Show us the evidence that he's an enemy combatant, and then you can stuff him in a hole if you want."

This 'showing' does not need to be a trial, let alone a public one. It just needs to be evidence-based and judicial. What we got is an executive fiat.

Steve Buchheit | June 15, 2007 03:33 PM

ucfengr, "I am beginning to wonder if your problem isn't with the process, but with the executive executing it... are we at war with al Qaeda or not?"

And full circle, we've come around again. The first is a weak argument and a poor refuge. The second we've already answered.

Let's be clear about this, when the executive has the sole authority to declare someone an Enemy of the State, have them arrested and placed incommunicado, we are exisitng in a totalitarianism. Is that the kind of Presidency you want, ucfengr? I know with your politics you see that question as a "Do you trust Bush" but this is a general question. Do you wish to see the Exectuive have that power no matter who is currently butt-in-chair? I don't want to live in that society.

As to being at war, again, you have answered my question, do you see the entire US (or globe for that matter) as the field of battle and are willing to toss posse comitatus out or simply declare martial law?

As for any statement of "we're only giving up a little, and we will go back to where we were before," understand that statement for the complete BS it is. Also, as I've stated above, the removal of rights, acting in a draconian manner (such as dropping people down a hole, virtual or not) are exactly how the terrorists wish their targets to respond. Stop giving them points.

Or do you wish to live in a society that has police chiefs who "round up the usual suspects" whever anything needs investigating? That's the position you're arguing from, can't you see that?

June 11, 2007

Another Good Day for the Rule of Law

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