"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, June 29, 2006

Court Goes to Bat for Al-Qaeda

Here it is, and what's noteworthy is how the majority seems to bend over backwards to nullify the military commissions established to try the Gitmo prisoners and to hamstring any process against Hamdan. Thus, the Court rules that the military commissions are not authorized by Congress and therefore are invalid. Case over, right?

No, JP and the majority go on to make specific holdings about what charges the government can and cannot lodge against these prisoners (invalidating Hamdan's conspiracy charge), what evidentiary procedures can and cannot be used (even though, as Justice Kennedy points out, such a determination is premature), and worst of all, the uneccessary-to-deciding-the-case-at-hand assertion that the Gitmo people are subject to Geneva convention protections!

The dissent, by our chameleon-like Scalia, puts the issue succinctly:
On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.
(Hmmm... maybe the majority was just taking a page out of Nino's playbook).
I recommend especially Justice Thomas' well-reasoned, common sense dissent, wherein he eviscerates the majority's contention that "conspiracy to massacre innocent civilians does not violate the laws of war."

Perhaps the solution is suggested by the majority itself when it admits:
that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm.

Of course, we're only one ACLU suit and five justices away from such a "challenge" to his indefinite detention and subsequent ruling ordering his release. If the judiciary does not stop its unprecedented intereference in the conduct of this war, endangering the security of the country, the temptation will be great to start conducting summary hearings in the field (which would minimally comply with due process) and executing our enemies, particularly since Al Qaeda is not a signatory to the Geneva Convention and its members are unlawful combatants.

As the saying goes, the Constitution is not a suicide pact.


Anonymous said...

Tom, you really amaze me. In particular, I am amazed at how much you hate military lawyers. This suit was initially brought by a military lawyer. Read the initial petition. (You also ignore the fact that Scalia sided against the government in Hamdi, and Hamdi was a much bigger danger, I think, than this guy.)

This suit isn’t about terrorists. But about separation of power, and about the degree to which we must trust a mostly unelected and mostly unaccountable executive. Hamdan is still safely locked away, where his driving skills can’t harm anyone.

To begin. you are taking the “suicide pact” language out of context, but no matter. In the original wording, taken in context, the court was saying that the constitution, no matter what is not a “suicide” pact. We don’t need judicial activists like you ignoring parts of it because it would be inconvenient. (If it were up to me, all my enemies would be accorded no procedural rights, because to do so, I would claim, would be “suicide.”)

Second of all, there is nothing per se wrong with such commissions, except that the President must get approval from Congress first. Not a big deal. You seem to want to cut the elected representatives of the people out of it. Indeed, you seem to even be against serious Congressional deliberations on the nature and scope of such commissions, most of which would consist of testimony from retired solders. (I understand your need to feel superior to the people, as I do, too. Every talk to the people? Waste of time.)

Third, I doubt you read the whole opinion, since you provide little analysis of the issue of whether someone can really be charged militarily for transactions that happened before the start of hostilities. If Americans do anything right we read opinions. Indeed, by not addressing this issue, but by condemning “the majority” you probably have helped the terrorists, who would rather people just shout slogans.

Fourth, Americans have an interest in knowing the truth about our enemy. So far, we have gotten very very little. We don’t know what a typical non-crazy AQ member is like. The lack of trials of any mid-level or higher operatives allows Americans to formulate crazy ideas (based on little facts or testimony) about what exactly our enemy is. Unlike prior wars where Americans had contact with, say, Italians, British, or Germans, to most Americans the enemy is a mystery. Shining sunshine into the way we treat them would help Americans to formulate wiser policy choices regarding the war on terror, rather than just rely on what the mostly unelected executive says. (I know this means showing prosecutors doing their work, but some prosecutors are quite good at their job and are not afraid of open trials.)

Fifth, there is no colorable claim that a military prosecution would inherently jeopardize national security. If there really was, we could deal with those matters on a case-by-case basis. Courtrooms could be briefly closed. Evidence could be stipulated to. Indeed, courts-martials now can be closed to hear some evidence. It isn’t that big a deal.

Sixth, None of this really helps the terrorists. They are not getting out. At best, they will get a trial, which, because they will be defended by an American (likely a military lawyer – you know, the ones you hate) it will not become a show trial. They will be able to enter pleas, perhaps in exchange for testimony, which would only show the world how dirty and evil the terrorists are. Prior to Hamdan we just had the executive standing foot-pounding and scaring people.

Seventh, if there really is evidence that would require keeping these people in jail, it can be easily shown.

Tom McKenna said...

Wow, how many non-sequitors can you can pack into a comment? I hate military lawyers because a SCOTUS majority issued a crappy decision?

I don't think it's a stretch to see that without a way of dealing with these terrorists short of full blown trials, we will end up with them back on the streets, courtesy of their clever court appointed lawyers.

We cannot simply hold them without trial, since the ACLU and the SCOTUS will undoubtedly conclude that such detentions would be unconstitutional.

It is clear that we are facing a hybrid enemy that does not correspond with our prior categories of enemies, nor with the categories of the Geneva Convention. The SCOTUS is shockingly ignorant in trying to shoehorn these terrorists into the Geneva framework.

I would have no problem simply holding them without trial indefinitely as prisoners of war, but again, your friends in the ACLU and the federal judiciary will not countenance that solution. That leaves few options, such as summary trial and executions in the field, or handing them over to "friendly" governments that are not afraid to deal with them.

We keep treating this situation as a law enforcement problem, not a military problem. Once the courts and lawyers become involved, it's finished and we may as well just let them all go, because few if any are going to be guilty beyond a reasonable doubt in a traditional courtroom setting. That's why I think it's commiting suicide to deal with these guys according to a crimlaw framework-- once we accept that framework, the conclusion is foreordained.

Which is exactly why the people who want us not to prosecute this war want to use that framework... it benefits their friends and hurts their enemies.

Anonymous said...


This is funny. First you say the administration is right. Then you say you want to keep the detainees as POWs. (A point the administration disagrees with and has fought at every corner, because.) Then you said the Geneva Conventions don’t apply, but “Prisoner of War” is a status under the Geneva Convention which DOES allow for indefinite detention. Also, the ACLU has argued for POW status. So if anyone is pro-ACLU, and anti-administration, it is you. Moreoever, the court actually did specifically provided for indefinite POW detention in Hamdan. But 1) you didn’t read it; 2) you side with the ACLU; 3) you side against the administration.

First of all, the court didn’t say that a “full-blown trial” was necessary. I don’t know where you get the idea that courts appointed lawyers. They did not. Lt. Cmdr. Swift was ordered to do his job by the Pentagon. Not a court.

Since your ire is directed at the victorious parties in this lawsuit, and Swift was the original petitioner, I conclude that you hate military lawyers.

Considering that the ACLU and the SCOTUS are different entities, it is difficult to see how you figure that they will agree on everything. To become a member of the ACLU, one need only send in money (sort of like becoming a member of the Federalist Society.) To become a member of the Supreme Court one must suck up to a lot of people, be nominated by the president and confirmed by Congress. ACLU membership expires after a year. SCOTUS membership does not. ACLU membership comes with pamphlets and requests for more money. SCOTUS membership does not.

The Supreme Court did not hold that detainees cannot be held indefinitely. They might have said in dicta that they can’t be held past the end of hostilities. However, there have been some statements by the government that indicate that they do wish to provide everyone with some form of trial.

It is not clear that we are facing a “hybrid” enemy. First of all, there are likely two enemies: AQ and the Taliban. The Taliban as the government Afghanistan actually was probably a signatory to the GC. (There are some technicalities here regarding whether they were a militia or not, but I don’t think you are interested. Second of all, there doesn’t seem to be too many members of AQ that actually committed crimes that would divest them of coverage by the GC (I would probably agree that certain forms of direct harm to US soldiers falls into this category). Though under GC3 and GC4, everyone is entitled to a presumption of coverage under the GC. Whether AQ or the Talliaban “abided” by the GC is irrelevant, unless an individual’s actions could be shown to divest them of coverage under the GC.

Finally, the administration, not the ACLU, has suggested indictments. Indeed, the solution urged by the petitioners is to treat this as a military problem, and allow the system of military justice, and the law of war to take its course. The solution urged by the administration was to treat it as a political problem.

In short, Tom, except for your irrational hatred of military lawyers, your positions are consistently pro-ACLU, anti-administration, and somewhat anti-law-of-war.

(I would urge you to actually read the opinion, and, if necessary, any statutes, including the UCMJ, as well as Army Regs. before commenting on this further. Oh, and before saying that the ACLU takes a position, you might want to read their briefs. Otherwise, people will think you are making it up as you go along.)

Tom McKenna said...

Hey genius, did you read my posting which cites from the case? I wonder, because although you claim I must not have read the decision because my view differs from yours, if you looked at my post it would have been clear that I read the opinion.

I'd like to see where the ACLU has argued that these terrorists should be indefinitely detained without trial. If that's their position, then yes, I'm with them! But I'll believe it when I see it. They may want POW status for them under the GC, but only because it advances their goal of affording these monsters enforceable rights under the GC.

I don't care what the administration wants to do, I only care about the safety of our country. I would not have sought even the level of due process the admin. gave these creeps.

As for my use of the term POW, I was speaking colloquially. They are NOT technically POWs under the GC understanding of that term because they are not lawful combatants under the Convention-- the ACLU might want them to be seen as such because it wants the GC to apply to them because that favors the jihadis-- indeed, the whole point about this case is that the SCOTUS is dead wrong in ruling that the GC applies to them in any sense.

And if you read the opinion, you will note the court did not provide for indefinite detention-- it said it was not ruling on that issue in this case. The implication is that they would rule on that issue when litigated. Will the ACLU really argue that indefinite detention without GC coverage is the answer?

If you can't see that the end game for the left is to give these guys full trials complete with all our "due process" protections (as you note, Congress will be the place this fight occurs), then I apologize for assuming you were a wilfull apologist for these jihadi slime, instead of realizing that you're just naive.

Anonymous said...

Tom, Before stating the ACLU’s position in the case, you can read it here. http://www.aclu.org/scotus/2005/hamdanv.rumsfeld05184/23395lgl20060104.html
The ACLU’s position only relates to the validity of the commission system. Not to the ability to detain indefinitely. To the extent that you think the ACLU took any other position, you made it up.

The ACLU never argued that the these people (some of whom might be terrorists) SHOULD be detained without trial as POWs. This obviously is a military decision which the courts have no part in. So, it is ridiculous to state that the ACLU argued that the military SHOULD do something. Instead, the ACLU’s position, as I understand it, is that if they are detained until the end of the “conflict” it would be pursuant to GC3. This position is untenable to the administration, because they want some show trials for activities undertaken before 9/11. As a personal matter, I think that show trials are worse than no trials, because they serve absolutely no purpose: they don’t determine truth and they don’t protect rights. Indeed, in most states it is probably unethical for a lawyer to be involved in them (and some military lawyers have expressed such reservations).

If they were detained as POWs – as you suggested – they would only be subject to commissions for activities undertaken under the conflict, or perhaps while in custody. They would also have access to the mails, and such. Anyway, you seem to want the ACLU’s position two ways: 1) in favor of POW status; and 2) against POW status. Either way, you pointed to no brief of the ACLU that states that this is their position. You could have. But you did not. Instead, your argument is essentially “They never said it, but they were thinking it.” I understand that using “telepathic briefs” is the practice in some states” but in my state, unfortunately, if you are to attack one side’s brief, you need to cite to at the very least, a page number. You did not.

Then you decide that now they are not POWs, but yet they can be held indefinitely. This seems a little strange to me, and you give me yet another argument that you think the ACLU made. (In fact, I don’t think the ACLU made any such argument here, and after reading their briefs I see no such argument.)

Indeed, the court didn’t rule on the issue of indefinite detention. The ACLU didn’t raise it (though they are an amici). Whether it will need to be “fully litigated” or not remains to be seen. The administration, I think, received bad legal advice in going down the “commissions” road, and indicating that it would perform some adjudications, but did not want to fully comply with its treaty obligations. Instead, they wanted interrogations, show trials, and confessions. But, now that they rung that bell, it can’t be unrung.

Whether or not I am naïve is another question. You might be naïve, too. That isn’t how we interpret the constitution. (And why I can stand Scalia’s schizophrenia, without hating him.) Whether I am more or less patriotic than you is another question (I don’t flaunt my time in the service).

But, let me tell you what I think will happen. After some hemming and hawing, after the next election, the military will propose a set of rules (modeled on the current UCMJ). Either Congress will explicitly adopt it (depending on whether some in the WH are out of a job by then), or Congress will authorize the president to adopt it. (Following the model proposed by those commies at the National Institute for Military Justice http://www.nimj.org/display.aspx?base=MilitaryCommissions&ID=127 ) These rules will be pretty similar to the rules for courts-martials. They will make allowances for evidentiary problems found in collecting evidence during a war, and some (but not all) hearsay exceptions may be relaxed. There will be a statutory appeal procedure either to the DC Circuit or CAAF. The administration will decide to try some people in civilian courts under “conspiracy” theories. The glamour of prosecutions and defense in this area will wane, as actual trials get underway, and the facts become more important than the law. Detainees will be represented by either military counsel, or private counsel who has complete access to the evidence (this doesn’t raise too many problems, as in DC pretty much every lawyers has a security clearance, it seem). Most challenges to based on the constitutionality or treaty-compliance of the rules will not succeed on appeal. Only blatant errors by judges (unlikely) or prosecutorial misconduct will result in reversals. Finally, the administration will simply let about 30% of the detainees either go, or decide that they can’t be released to their home country (because of torture concerns), and this issue will be litigated. (Likely, the administration will find a 3d country to send them to.)

One added effect will be that there will be a number of plea bargains. Detainees will plead to ten years or so, and quickly testify against their fellow detainees. Hopefully, this will be on live TV, so the world can watch how these people will betray their own quite quickly, the world can see the way terrorists think and operate (and not the crazy retards like ZM), and the world can see that these people were afforded a rather fair trial.

If this happens, my guess is that there will never be a slapping from the SCOTUS again.

Tom McKenna said...

I hate to nit pick, but I didn't accuse the ACLU of having a position on detentions, other than to predict that they would likely come down against detentions unless GC coverage as full-blown POW status were given them. Not a far-fetched reading of the ACLU, I think. YOU informed ME in your second response that, "Also, the ACLU has argued for POW status."

I fully agree with your take on the admin wanting to have some show trials. This is why I said I do not support the admin on this, because I believe they are too responsive to the pro-jihadi leftist legal/MSM establishment. They are, as usual, temporizing by trying to buy good will with the wrong people in a way that will never be acknowledged or rewarded by them. Why they bother is beyond me.

Hence, my bottom line: detain the buggers w/o granting them POW status (and the concomitant rights and privileges which accompany it), which arguably they do not merit under applicable law, since they are neither lawful combatants nor signatories to any treaty. It is this indefinite detention that I would forsee the ACLU and their ilk getting their shorts wadded up over.

You may be (and probably are, given the gutlessness of the admin)right on the final outcome of this, but I hope not, since it would, again, put these guys in the court system (and ultimately the civil court system) where they do not belong.

Anonymous said...

Okay, so let’s see where we agree.
ACLU hasn’t taken a position on indefinite detention. (You say, “but they were thinking, and they probably will.” I say, “They probably won’t, but for strategic reasons, and because someone else will.”)
Show trials are bad for political and legal reasons.

We disagree on, essentially, whether the “civilian” courts should have jurisdiction over direct appeals from military courts (as they do under the UCMJ).

But, the initial trials just about every scenario would be before military courts. The only impact that a “civilian” court would have (and this includes the CAAF, retired military-types, anyway), would be to review legal determinations, and perhaps remand to do something procedurally right. The Supreme Court has already said that they would probably bless anything that followed a statute. Who would this hurt? They likely wouldn’t even personally appear in court? At most, there would be oral arguments between two military officers (civilian counsel will probably lose interest in these matters by the end of the year), as actually arguing cases under the UCMJ isn’t nearly as interesting as testing presidential powers under Youngstown (if it was, I would still be in the Air Force).

I am straining my brain to see who this would hurt. The trial level commissions would have guidance as to what “the law” is. The procedures would become normalized. (Indeed, the first attempt at commissions degenerated into a circus.) Indeed, it might even be possible to actually designate someone as an enemy combatant, but government would have to prove its case, not just pound the table, which is what they have been doing in some cases. Doing so would take this process away from bureaucrats in Washington (most of who are not even in the military because they are not of the class that joins the military, or they dropped out of the Naval Academy), and actually rechannel the process back into the military. By “bureaucrats” I don’t mean “career bureaucrats” I am referring to political appointees, who make decisions based on how it will look to the masses, and have taken careful only pick on the politically unpopular so far.

I don’t think we can agree or disagree over whether the should be collateral review over such commissions, because, collateral attacks are a fact of life, and generally cannot be used to litigated the underlying issues in the First place. (Though the SCOTUS hinted in Hamdi, that a civilian courts could provide the initial hearings required by the GC, if the military refused to provide them.)