Supreme Court Ruling - Gitmo detainees can appeal to U.S. court system
 

Can't believe there's no thread on this yet!

http://www.cnn.com/2008/US/06/12/scotus/index.html



Discuss!

Tough call. On a micro level, I can get with all of the "respect that individuals under American control have rights....blah, blah, blah" However, on a macro level, the "Living Constitution" argument (i.e. Constitution evolves with time) is getting a little scary.

However, the decision today was not too surprising considering the trend of Court thinking towards these issues.

Inevitable, but really, really bizzare. Our Supreme Court just gave Habeas Corpus rights to our enemies in an ongoing war. They're asking the militiary to publically provide wartime intelligence to justify detaining war prisoners.

The result will be more terrorists running around. Scalia pointed out how many freed Gitmo detainees have gone on to commit terrorist acts - these are guys the government released on their own terms, based on the current standards, before this legal hurdle.

I don't get it. It's dangerous stuff. I don't know how a military conducts its duties while trying to build habeas defeneses and criminal cases at the same time. They'd have to fly military personnel back and forth for court appearances. But they won't do that. The long term solution is to hand the prisoners to a regional ally. They'll wish they were at Gitmo.

Al-Qaeda must find this hillarious. They're probably scrambling to get Westlaw accounts to see what other constitutional rights they have.

I am no fan of the Bush administration, but this decision makes me physically ill. I served in the Navy and thus maybe I am somewhat biased, but I just don't understand how any self-respecting American citizen can allow our enemies the same rights that we have as citizens. Would they give us the same treatment? Of course not. They kill us on sight.

I am becoming more and more worried for my children's future.

I'm sure some people have some sypmathy for the detainees at Gitmo and I understand that to a degree. But providing Constitutional rights is not the right remedy.

I guess I don't understand how these guys aren't considered POWs. If we had declared war on someone they would be. The problem is we don't have a country to declare war against.

I have no sympathy for those who seek to kill my family and destroy my way of life. For those who do, please move to the middle east, I am sure they will welcome you with open arms. Abusing someone just for the sake of abuse is of course wrong, but detaining someone because they are a threat to your existence is completely different.

I agree with you, this is not the right remedy. I could go on and on about this type of stuff, the entire state of the world right now frustrates me. But I will spare all of you that lecture.:(

Well, what they would say is, "you don't know who's a terrorist and who isn't, you might have innocent people locked up there". Which is true. But that's kind of Scalia's point - that's exactly why it's impossible to prosecute/defend habeas actions. I have zero problem with some amount of "collateral incarceration" if it exists. All the more incentive to stay away from trouble.

The ruling in no way gives them the same rights as an American citizen. The ruling was limited to habeas corpus petitions. The administration painted themselves into a corner with their actions. They were hellbent to create a legal limbo, where no laws at all applied. If they are so certain these people are dangerous and deserve to be locked up, a habeas corpus petition sets a pretty low bar to keep people in custody. Based on what we've been told about these people, the habeas corpus hearing should be a slam dunk for the government. Prove there is a reason you are keeping them in custody. If they would have just held these people under the Geneva Convention, instead of insisting the detainees were not eligible, then there would have been no review possible by the Supreme Court.

What if that's sensitive information?

Though I'm sure if it's too sensitive they'll just hide him away where he doesn't have access to the courts.

It's kind of surreal to see old guys in robes telling the miltary what to do. It's actually pretty cool that our country is that strong.

The fact that Bush said that Geneva didnt necessary apply because their not soldiers but enemy combatants seemed to me to be the start of skirting the laws as they stood. So now it seems that is catching up to them. They couldve held them for as long as the "war on terror" was going on but had to follow the Geneva Conventions but they chose the other card to play.

no one ever claimed the admin were legal geniuses they just needed to be able to delay decisions for 8 years.

Then the courts must treat it as such, as they do in other habeas corpus hearings that involve ongoing investigations.

Under no fair reading of the opinion are any of these statements true.

I have no doubts about your legal expertease (and would love to hear you elaborate), but I wonder about the practicalities of war and how the supreme court can undertand them.

I haven't read the whole opinion yet - went right to the dissent :)

But that's the thing. By excluding the coverage of the Geneva Convention, the administration took the wartime considerations out of play.

All I can say is: It's about time.

That's not really true, either. The declaration of war actually has little to do with this case. Instead, the basic question is whether habeas corpus applies to persons held in territory over which the US has de facto sovereignty. It has no application to the battlefield or battlefield prisons. It might have relevance to a few other odd places (like US embassies, places like the Panama Canal when the US had control, etc.). The question had never been addressed by the court. If Congress and the President disagree with the decision, they are free to pass a law "suspending" habeas corpus for those persons in the prison under the Suspension Clause of the Constitution. To do so would require that a declaration that the US is under invasion or rebellion, but if they did, I doubt the Supreme Court would intervene.

And for those who are Scalia fans and believe that judicial activism is some horrible thing plaguing our country, then Scalia's dissent presents a problem. This was a par of the beginning of his dissent:

America is at war with radical Islamists.... The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Yeah, that has a lot to do with the law.

So the only real effect may be that Gitmo gets shut down and prisoners are kept under less favorable conditions closer to the battlefield?

To be fair, he's not making law in a dissent. He just loves to be quoted in newspapers.

Gotcha. I wasn't looking at it from that angle, and I see your point.

If they had put the prisoners in Afghanistan or Iraq to begin with, the opinion today wouldn't apply. However, now that they are in Gitmo, they probably can't be moved until they get to exercise their habeas rights. The administration this problem by putting them at the Cuba base. It won't matter anyway if McCain or Obama are true to their word - they both say they will close down Gitmo and move the prisoners to the U.S.

but if they did that they couldn't have their fun with waterboarding, etc

A lot.

What are the alternatives? Putting legal roadblocks in place that make war itself more difficult? That's not what this case is about, but is that what public support for these kinds of decisions is about? We don't like the war so we want to try to help the other side where we can? (Again, that's not what today's decision is about, but I think that vibe from ultra-liberals sometimes.) Certainly if this was a popular war/president the public opinion would be different.

You could vote for another president. But once they're there, they need power.

I like how they interjected (which I can't find now) Lincoln and his battles with the Peace Democrats regarding his suspension of the Great Writ and other unconstitutional acts. Those were "extraordinary times", were they not?

The war has been going on for decades and some would argue centuries. Lately though, only one side was fighting. The other side just sat around and took it on the chin over and over.

I think Bush screwed up from the start by creating a unique status for those people and then housing them at GTMO. I think we should have treated them like POWs, with all the rights afforded POWs, from the start, even if you want to argue that technically they are not POWs. I think that would have placed us in a better position internationally and morally and legally.

Yes, those were extraordinary times, but the reason habeas corpus was suspended then was to stifle political dissent, because Lincoln didn't think that the civil courts in certain locations would convict the war protesters. When one of them, (I want to say Merriman) was arrested by the military, the Chief Justice at the time issued the habeas corpus writ that Lincoln and the military ignored. Afterwards, the court ruled that military trials were illegal in places where the civil courts were able to operate.

+1

I applaud this ruling and, really, it's nobody's fault but the administration's. They wanted to create this legal limbo, so they wouldn't have to protect the prisoners under the Geneva Convention and do all sorts of shady crap (ie, torture). Now, the Supreme Court has stepped in and said, bull, if they are on US territory, they need some legal status, whether that be POW status or have the right for habeus petitions to determine if they should be there in the first place (I know if I was just some goat hearder who got snapped up and haven't been charged in 6 years, I may want to prove that fact).

I do agree that the lifespan of Guantanamo is pretty much done. Relatively little information can be gleaned anymore from these unlawful combatants.

As for giving them POW status from the start, that would have been a huge mistake. A number of additional terrorists were picked up because of the information we obtained from them. Being a POW means you don't have to say shit.

Also, it would have been a huge mistake to leave these traitors in the hands of their local host nations. They would all have been tried and shot by now.

They dont have to say shit anyways, and it's been proven that under duress people will say anything, truth or lies, to stop the torture. Some of these airstrikes int he wilderness that we have to apologize for later when the "target" wasnt there and we killed a family couldve come from some BS info. Shit, you dont even have to be under duress to tell a lie, see: Ahmed Chalabi.

It's taken longer to bring Khalid Sheik Mohammad to trial than R. Kelly. The mind just boggles.

Interrogation teams are collecting a TON of information that has proven to be extremely reliable. And they aren't torturing anybody, most is done by or under the care and guidance of the regular US Military. What has been proven is that a lot of bad guys aren't going to do what they wanted to do because of information we received from other bad guys.

It will never be 100% perfect, it's an inexact science, but I'm always so impressed by our military. It's not fair to make parallels to things like domestic criminal prosecutions or incarcerations, which more and more people do as these issues come up.

People always want to cite the mistakes in intelligence or anything that's less than 100% efficient and then at the same time want to complicate matters by involving civilian courts where ANYTHING can happen.

Kelly won't be executed after his trial's over, and he can't give us any useful information before then.

Mohammed is a worse villain than Bin Ladin. Some have argued for a civilian trial for him, which boggles my mind.

I have no doubt that information is gleaned, some good some bad but to use Waterboarding (which we admitted in a slip of the tongue) or other techniques that we agreed to label as torture when we signed on to Geneva, is wrong because we signed that. Waterboarding in and of itself, I haave no problem with it's usage or any other technique for that matter (results of info left out of the equation) but the hypocrisy of signing on to Geneva and then the debacle of denying than admitting, then mislabeling than miscategorizing said techniques is deplorable.

Unfortunately when you talk about results and the actions taken due to them you get mixed results. I agree and am sure that some events have been stopped due to some info but I am also sure that entire families of innocents worldwide have been eradicated due to misinformation on top of those that have been utter mistakes and bad aim.

How many families are expendable in the war on terror? That I dont know, and that number probably varies depending on who you ask.

Which is really a shame.

That really wasn't my point, though.

KSM's trial should be open-and-shut easy. He both admits guilt and isn't interested in an insanity plea. Plus he's about as "high-value" as they come. There should be mountains of evidence on him, if Intelligence are doing their job.

I don't know where you're going with "getting useful information". You can still interrogate someone after they've been convicted. Just don't kill him. And anyway, we shouldn't be giving KSM the death penalty anyway since it's his stated aim to become a martyr. The worst possible punishment for him is life imprisonment.

So try him, convict him, and sentence him to life and continue to pump him for information (though I'm skeptical as to how much relevant information he has at this point).

To me, it doesn't seem to be rocket science.

I don't understand the military prosecution process as well as our own system. I know that it's completely different and it's not particularly meaningful to draw paralells.

So I don't understand why it takes so long to try a KSM, but I'm certainly not concerned about it and assume there's a damn good reason for it. I don't doubt that it can take years to prepare for a "trial" that involves hundreds of charges and thousands of victims. I would assume that the families of every single one of those victims have to be involved/informed to some capacity. Are you assuming that there's some kind of unjust motive? If not, what difference does it make? Why are you concerned about it? He's never going to be a free man again, under any scenerio.

While I agree with what you are saying, I am hoping that we all remember the thousands of people that died on 9/11. They were also innocent people, and their families today are still suffering I am sure. My question is really this: why do some people here and in other "free" countries continue to believe that somehow the innocent Americans that die in terrorist attacks are less important than the innocent people that die in Iraq, Afghanistan, Jordan, Syria, etc..etc..? Not to mention the belief that our military personnel are monsters, yet when compared to the Islamic extremists, Vietcong, and North Koreans (amongst others), our soldiers actually show compassion. It just boggles my mind. :confused:

Hey, dumbass, the US Military follows the US Army manual for interrogation. Guess what's not listed as a viable method of extracting information? That's right. Waterboarding.

The CIA uses waterboarding as method, but he was talking about the CIA. Work on that reading comprehension problem. k bye

duckman, Im sorry, when the military guys stand at the back of the room, hold prisoners in Military prisons but call in CIA interrogators to do the torturing (by their own definition), they're complicit. Just as if I send my son into the store to steal, I am too. Just as if one of my subs building a house screws up, it's on me to take responsibility for it. I am certain that that manual stopped the guy from torturing the puppy and kept Abu Gharaib from happening, or the thousands of other things that happen outside of training manuals in everything from corporations to military, oh wait.

Your boy Bush painted himself into this corner, no one but himself and Rumsfeld and the other idiots who played fast and loose with the law. I mean what moron calls on his own admin lawyer's to come up with interpretations of a law to get to the result he wants instead of relying on the law to craft the policy?

In regards to Roma's point above about the 9/11 families I agree that innocents dying is bad anywhere however I'd be willing to bet that in most wars each side considers themselves the victims and has the right to retaliate. That's probably why you'll always hear people say, "theyve been fighting for thousands of years." Neither side is right or wrong unless youre on one of the sides...then your side is right. The atrocities certainly happen on both sides but we shine a spotlight on our own when we use the term "good vs. evil" and "moral right" etc. I am an American so I want us to win the War on Terror just as bad as the next guy but I hope when it's all said and done we can say that we held the moral high ground.....unless of course their is a change in doctrine that says "fuck 'em all. We're going to kill 'em all and let god sort 'em out." Then if you support that, you support that and that's your right too.

I too am not interested in drawing parallels. My point is that any of the high-value targets should be such slam-dunk cases that they could have been turfed to even the stupidest civilian court ages ago and we still would have had convictions and by now have these turkeys wasting away at ADX Florence.


I can't imagine it's more complex than something like the Enron trial, not to mention that KSM and his co-conspirators admit guilt.


Why? And besides, if the U.S. military can inform and involve the families of over 4000 deceased soldiers in return & burial services over the past five years I'd imagine they (or some similar organization) can do the same for the families of the roughly 3000 9/11 victims in the same time frame (or less).


The best I can come up with is that Bush and his advisors didn't trust the court system to do their jobs and decided to try to make up their own court system from scratch. They also didn't trust Congress to work with them (although, ironically, Congress did work with them and has also gotten slapped down by the Supreme Court) to develop new procedures to deal with the issues raised by capturing and holding terrorists, so they just decided to ignore the Constitution.

Basically you have a small cabal of people deciding what's best for the country against the wishes of the other two branches of government (one of which is directly elected by citizens). And this isn't a slight difference of opinion, it's a complete 180.


This is what Bush should have done:

"Look, KSM and these other guys aren't like Timothy McVeigh or the Unabomber. They're connected to a large international network of terrorists. In the interest of national security, we need two outcomes that aren't necessarily afforded by normal criminal proceedings. One, we need to have a time period, post-capture, when we can interrogate these individuals to inform current intelligence, and we need to be able to continue these interrogations as necessary. Two, we need to make sure that these individuals are not inadvertently released from a maximum secure custody during and after their criminal trials. My administration plans to work closely with leaders in Congress and representatives from the Supreme Court over the next few weeks to work out a framework that will ensure these objectives but not compromise the fundamental principles upon which this country was founded."

If Bush had approached this problem this way, I'd be very surprised if a workable solution wasn't quickly developed and the last 7 years of wrangling was far behind us.


Let's be clear: I could not care less what happens to KSM and his cronies. My recommendation is that they not get the death penalty solely because that's exactly what they want and what their supporters worldwide want. Let them rot in prison.

I have two concerns:

One, Bush created a stupid legal mess where one didn't need to be created. As a yardstick for how off-base Bush and his legal team were, remember that even Antonin Scalia disagreed with them (in Hamdi vs. Rumsfeld). Dude, when even Antonin Scalia disagrees with a Conservative President, that President is just plain wrong.

Two, as we know now, the vast majority of Gitmo detainees were taxi drivers, farmers, or whatever - guys who had the misfortune to be brown and in the wrong place at the wrong time. As this Souter states most specifically in this decision, it's simply inexcusable to lock people up like this for this amount of time with absolutely no movement towards dispositioning them.

A vast majority of the people detained from Iraq and Afghanistan are brown? Are you fucking kidding me? Really? No way I vote for Bush had I realized this kind of shit was going on.

I think you focused on the wrong part of the sentence, Dutch.

Very AP of you, to be honest. :p

Not to pick on you, but this seems to be part of the same argument Scalia makes.

My response if that if we could try and convict Aldrich Ames, Robert Hanssen and other Cold War spies without giving up national secrets, I'm sure we'll be able to do the same with these guys.

Heck one spy, Clyde Lee Conrad, was even convicted in a German court without further detriment to national security secrets.

It's not our secrets we should be worried about. When we convicted those clowns, we dimed out the Soviets. It was pretty obvious who they worked for and it was also pretty obvious we couldn't really do anything about it.

We are in a different situation where information we get now can be relayed back to the war zone to help us find the enemy and capture or kill him. My concern is that this goes away in a public setting.

But anyway, the reality is that I think the folks remaining at Gitmo don't provide any more value and they should be tried and convicted as being unlawful combatants in a battlefield. Or set free and returned to their host country and let their governments be the judge of them.

I'm sorry, but that particular turn of phrase is the biggest load of bullshit I have ever heard.

"Unlawful combatants"? Please. The only things the Geneva Convention denies that status for are mercenaries and children.

Sure, Congress passed a law defining "unlawful combatants" in 2006, but y'know, unless I'm mistaken, the Iraq and Afghanistan conficts had been underway for sometime by then. The Constitution, in the clause immediately following that of Habeas Corpus, says that no ex post facto law shall be passed. Unlike the habeas clause, the ex post facto clause includes no exceptions. No law may be passed which retroactively criminalizes an action.

So even under the most generous interpretation of the status of the detainees, none detained prior to 2006 can Constitutionally be considered as "unlawful combatants."

Even leaving that aside, it's either a battlefield, or it's not. If it's a battlefield, and they're raising arms against you, how in the hell is that "unlawful combatants"? Either you're fighting a war, in which case they're lawful combatants and should be treated as such, pursuant to the Geneva Convention, or you're prosecuting a police action, in which case there's no damn battlefield, and standard criminal procedures ought to apply.

McCain attacks Guantanamo ruling, calling it "one of the worst decisions in the history of the country"

One of the worst decisions in the history of the country? Really?

Full Text:
McCain attacks Guantánamo ruling
By Andrew Ward and Demetri Sevastopulo in Washington
Published: June 13 2008 21:44 | Last updated: June 13 2008 21:44

John McCain on Friday described the decision by the Supreme Court to allow Guantánamo Bay prisoners to challenge their detention in US courts as “one of the worst decisions in the history of this country”.

The Republican presidential candidate said he agreed with the four dissenting justices on the nine-member court that foreign fighters held at the detention camp were not entitled to the rights of US citizens.

He criticised Barack Obama, his Democratic opponent, for supporting the decision and said it highlighted the importance of nominating conservative judges to the Supreme Court. His remarks represented a hardening of his position from his more moderate initial response to the ruling on Thursday, signalling a strategic decision by the McCain campaign to make it an election issue.

Mr McCain’s stance appeared designed to demonstrate his toughness on national security, while casting Mr Obama as soft on terrorists. It also looked calculated to spark debate on the future of the Supreme Court – one of the most important election issues for many conservative voters.

But his support for President George W. Bush’s position on Guantánamo risked undermining his appeal among moderates and reinforcing his association with the unpopular president.

Mr McCain, who spent five years as a prisoner of war in Vietnam, had previously sought to distance himself from Mr Bush on the treatment of detainees, arguing for Guantánamo to be closed and torture to be banned. He said he stood by those positions on Friday but insisted the Supreme Court ruling would weaken national security. “These are enemy combatants, these are people who are not citizens, they are not and never have been given the rights that the citizens of this country have,” he said. “Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that.”

The debate surrounding Guantánamo has been a complex issue for Mr McCain, a former navy pilot tortured as a prisoner of war in Vietnam. While Mr McCain has been one of the loudest critics of the Bush administration over interrogation policies, he has supported legislation that stripped prisoners at Guantánamo of habeas corpus, the right to challenge their detention in federal court.

Tom Malinowski, Washington advocacy director at Human Rights Watch, said the Arizona senator’s willingness to support the legislation contradicts his overall position on Guantánamo.

“To this day, he strongly believes Guantánamo has hurt the US and should be closed,” said Mr Malinowski. “And yet he has not been able to distance himself from the principle [of] detention without charge.”

Not to get sidetracked but I think this decision by McCain, if signalling the direction his camp intends to take, will spark the demise of any real shot he had at contending for the Presidency. He is just making it so easy for Obama's camp to lump him in with Bush that it's unreal.

Yeah, standing for something even though you know people will "lump you in with Bush" is bad. He should've taken the Obama approach and stood for nothing but some nebulous "change".

/threadjack

If McCain had been so philosophical about immoral incarceration of national enemies when he was a POW, he could have saved himself a *ton* of post-traumatic stress treatment.

I'm positive that our country doesn't need another president whose understanding of American history is so ignorant as to declare this one of the worst decisions in history.

I'll bet a big chunk of his potential conservative supporters don't even view this as the worst SC decision of the decade. Kelo, for instance, springs to mind.

Unquestionably. Bush v. Gore was striking as well (though certainly not poorly viewed by his supporters).

because unwavering ingnorant steadfastness has served our country so well.

Here is an interesting case from 1942.

http://caselaw.lp.findlaw.com/script...vol=317&page=1

The entire ruling is quite amazing and with much history and thought put into it. Here are some notable parts, but I encourage you or anybody to read the entire ruling.


This court decision was based not upon precedent either, but previous rulings (1914?).

The ruling effectively overturns FDR (WWII) and Woodrow Wilson (WWI) as well.

I haven't seen what Obama's reaction was. What were his comments?

OpEd from one of the largest libertarian papers:

I have no problem with things changing over time. Flip flop to me can mean results from further analysis and critical thinking.

From: Obama, McCain Respond to Guantanamo Bay Ruling by Michael D. Shear on the Washington Post website.

I am more interested with the charge that President Bush based his ruling out of thin air with no precedent. Seems if we hate people misleading, we shouldn't practice it ourselves.

From '01, Bush knew, KNEW, he was skirting. He was absolutely not relying on precedent but was crafting some halfbaked interpretation of "war-time". The "war" I believe we're in is incomparable to the war's in the past that have been cited. The scary part is that if found innocent the administration has stated it doesnt have to release the innocent.


...and it wasn't by following a law or following a Congressional declaration of war, but by Executive Order. How does one of the people prove or disprove "Ties" when it's a secret military tribunal.

further down the article:

So Bush threw a blanket over millions of people....horrible decision that of course would backfire, and has.


Congress didn't declare war but gave Bush specific authority to react to the 9/11 events. Here we are many years later with people picked up in all parts of the world with no way of showing that they dont even meet the standards set by that which you cite as precedent. Luckily the courts agree that making a person disappear forever without proof or action is against our standing.

From a different article in 2002, editorial:

And liberals have known, KNOWN, that the terrorists are killing civilians and abusing the laws of war as defined by the Geneva Conventions and the liberals have known, KNOWN, that takes away their rights to be prisoners of war. Yet to fight the President, they deliberately skirt this issue with some half-baked idea that these people are lawful fighters that respect the international agreements of warfare. The scary part is that civilian courts want to release these killers and their associates just to snub our President.

Sorry to parrot your argument, but you get my drift.

This is a ridiculous assertion.

Dutch, the case you quote has to do with the domestic distinction between unlawful and lawful combatants. It has nothing to do with the Bush administration's interpretation of the Geneva Convention (which is really indefensible). Nothing the Court said in the recent decision contradicts the holding in Ex Parte Quirin. Plenty of prisoners in the present war can still be tried in military tribunals (in fact all of them can be if the administration handles it right). You just can't relocate prisoners to territory where the U.S. has de facto or de jure sovereignty and then deny habeas rights. The attempt by the Bush administration to create a land without law has, thankfully, failed.

I do, but I dont think Al Qaeda or it's cohorts have claimed to have signed on to the Geneva Conventions. We wouldnt be having this argument if the admin wouldve or would just say We are not following the Geneva Conventions with these people but when pressed on it they said, they didnt have to but will. That was a mistake IMO. They shouldve said, we're fighting a gang and Geneva wont apply, IMO.

and then, "What John said." not JonIMGA either, that guy's cukoo. ;)

The problem is that the Geneva Conventions apply in ALL war scenarios. There are varying degrees of protection (with groups like Al Qaeda receiving the lowest level of protection). And the Geneva Conventions have been used repeatedly in occasions with irregular, non-uniformed armies (usually in civil wars or border wars). The Bush Adminstration argued that this conflict wasn't covered by the Geneva Conventions, but that was just plain wrong. Al Qaeda prisoners are not entitled to POW status, but they are entitled to minimal, irregular army protections.

However, all of the talk of Geneva Conventions really has no relevance to the Court's recent decision. This was just a straight constitutional ruling regarding the scope of habeas rights.

I'm going to have to argue your wording. Bush has never said the war doesn't have to follow Geneva Conventions. US Soldiers follow the rules of the Geneva Convention and the Laws of War as explicitly as possible. What Bush has argued is that the enemy refuses to follow the laws of war and their continued targetting of civilians highlights the claim.


Well, I think we can agree that the Geneva Conventions don't really give a strong interpretation of where Al Qaeda and the Taliban fighters fall in the spectrum. It really only goes so far as to say what they are not (neither lawful combatants nor non-combatants).

I think you're going to have to define "enemy"


Another problem arises because Bush has painted, it would seem, a lot of our "enemies" as either Al Qaeda or their sympathizers whether applicable or not.

And to further clarify why the Taliban fighters ultimately end up in the same boat as the Al Qaeda (and just another reason why those scumbags couldn't get any legitimate nation on this Earth to recognize them).

http://archives.cnn.com/2002/US/02/0...ush.detainees/

Ok, so Geneva doesnt apply to them either? Flip flop from the Admin? Im fine with that but if theyre not POW then the ruling on this court case is exactly correct by the Supreme court that they should be tried in Civilian courts under the writ. I agree with you that Al Qaeda, The Taliban and many others are the scum of the earth but I see a lot of hyperbole, misinformation, and general bias of interpretation (let's call it) to get to the ends desired.

So as you said, in this case we don't have to follow Geneva but I can show you a ton of statements where the administration says we will and are, so which is the statement that is true as compared to how we are truly going to act?

oh, and I think youre confusing me.

As opposed to conservatives, who dig to the deepest, darkest recesses of judicial precedent to come up with a shred of justification for the kangaroo courts set up by their hero Bush.

One way makes a mockery of American "justice" and makes KSM a martyr to his supporters. The other executes a slam-dunk criminal case and locks KSM away in Max-Secure for the rest of his life where he fades from popular remembrance.


Prove it.

Actually, based on their obsessive, almost illogical hatred of Bush (much like the right's feelings toward Clinton), I think it is pretty spot on. The left seems willing to do anything they can to thwart or claim victory over Bush policy, regardless of whether it makes sense or not concerning U.S. national security

will the cycle ever end? Only when the Religious Right are firmly in power?

I know it's a hijack of the thread but it's silly to think that the two sides, right and left will fight forever where each side, every 8 or so years, uses the same argument to claim victim that they used to create the victim just a few years before. no?

Like it or not, that has been the pattern for the past 20 years, and I see no signs of it changing in the near future.

I don't see why people think this is some liberal plot to slap Bush down and will result in terrorist going free and hurting intel or something. Are we that obsessed with fear tatics? Maybe I'm just rational and normal, but doesn't this just mean the government has to go in front of a judge and give the tiniest shred of evidence that the person needs to be detained?

I just don't get the whole...OMG LIBERALZ HATE BUSH AND WANT TERRORISTS FREE TO SPITE HIM. THEY R MAKING UR COUNTRY UNSFAE OMG!!!11!11

but there is a large swell of those, well, people who buy into that crap and therefore will vote accordingly. Some of them are on here. But they are consistent: anyone who is against Bush, even those that were once a part of his innercircle, become untrustworthy liars the minute they leave. Anyone Pro-choice is also Pro-Death. Anyone against Bush doesnt love America. anyone who doesn't vote Republican is voting for Al Qaeda. etc. etc. etc.

Except for the fact that neither you nor Dutch have cited a single liberal who wants KSM or his cohorts to go free to "spite" Bush.

On the other hand, I can cite many conservative commentators who advocate or have advocated actions born out of illogical hatred. For instance, one encouraged people to shoot federal agents in the head during the Clinton Administration (G. Gordon Liddy). Another advocated the poisoning of moderate or liberal Supreme Court justices (Ann Coulter).

How about you provide some evidence?


You keep repeating this meme, hoping that with repetition it'll become true. Faux News would be proud of you.

Ironically, of course, it's the policies of the Bush Administration, not random liberals, that have compromised national security.


But maybe you know better than the sum total of U.S. intelligence agencies.

That wasn't my point.

A key problem conservatives are fond of bringing up is this falsehood that you can't convict someone in a civilian court where significant pieces of evidence are Top Secret. If this was true, we never would have been able to try and convict the various Cold War spies.

I'd just like to point out that three Republican appointees made up the 5 person majority in this case.

Kindof scary that the two most recent are so far to the right that they were abandoned by previous conservatives.

SI

I'm certain (as many conservatives and liberals alike are) that the civilian court system has done a pretty good job of convicting lots of folks. Check our prison over-population if you need clarification. So we are tied, that's not my point either.

This is a cool little chart that provides some clarity. I'm sure the chips don't always fall this way, but they sure did this time. :)

http://en.wikipedia.org/wiki/Segal-Cover_score

that's pretty cool. History geek in me wants to look at the pdf chart in there

what I find interesting in the current list and the list of past (back to 1937) is how many of them were relatively "unqualified" - it's kind of scary

The chart is interesting because it's based on editorials during their confirmations. There has certainly been some jockeying around since then. For example, there is no way Kennedy is more liberal than Souter and Stevens, and also Thomas is definitely the most conservative of the bunch.

If he gets the same calibre of lawyers O.J. had, who knows...


Oh, please, I've seen equal vitriol toward Bush.

http://www.thisislondon.co.uk/news/article-23365246-details/President+Bush+'assassinated'+in+new+TV+docudrama/article.do
Assassination of a President "Docu-Drama," The Bush-hating crowd's wet dream.

Leading up to the 2004 election, Laurie David (wife of "Seinfeld" creator Larry David) hosted an event in La-La Land called "Hate Bush 12/2."

The president "is not the orator that Hitler was," acknowledged leftist commentator Dave Lindorff at Counterpunch.org. "But comparisons of the Bush administration's fearmongering tactics to those practiced so successfully and with such terrible results by Hitler and Goebbels . . . are not at all out of line."

Left-wing activist and writer Fran Lebowitz said that the Bush administration is a "criminal enterprise, pure and simple."

Sandra Bernhard, the wannabe actress and comedienne, was asked during an online Washington Post chat for her thoughts on terrorism. "The real terrorist threats are George W. Bush and his band of brown-shirted thugs."

Michael Moore has accused Bush of being in cahoots with Osama bin Laden. George Soros said the president's policies reminded him of the Nazis. Cameron Diaz warned that if Bush was reelected in 2004, rape would become legal. Randi Rhodes told her radio audience that Bush, like Fredo in "The Godfather," should be taken out and shot (can't say I've ever read a story where Rush Limbaugh or any other conservative talk show host has advocated the same for a Democrat). Whoopi Goldberg headlined a New York fund-raiser in which Bush was called a "thug" and a "killer." Howard Dean speculated publicly about the "interesting theory" that Bush knew what was going to happen on Sept. 11 but kept silent.

So, please, be careful about casting stones in a glass house.

The Segal Cover scores are interesting, but have some major limitations. First, they give no historical context. This means a Court could be radically liberal, but the least liberal judge will still appear conservative. Second, there are some major scoring difficulties. A lot of cases don't bring up a clear liberal or conservative position. In fact, it can be argued that most of the docket has no clear political bent. Scores from hot-button political issues can show greater polarization.

The scores do highlight the ridiculous notion that Justice Stevens is some crazy liberal. Throughout his career, he has been one of the most conservative justices on certain issues. Ginsburg isn't even that liberal by historical standards.

A recent book by Posner discussing past research (including Sunstein's interesting study) provides a lot better understanding of our modern court trends, IMO.

JG, wouldn't that argument (historical perspective) imply that the index for conservatism and liberalism be somewhat constant? Or would it be era-adjusted?

The commonly cited support of this decision in this thread and this thread and elsehwere is essentially "Bush deserved it because of how he screwed this whole thing up". Maybe I'm cynical, but I really don't think most people give a shit about the plight of a handful of "innocent" Afghans. Many more than that have suffered much worse around the globe in places where nobody's yelling to get involved. The real energy in support of the decision is that it goes against Bush.

The other support is that "a habeas defense requires only a shred of evidence". That's not true, but if people think that, why are they so fired up about this decision? What difference will it make?

Bush has been an awful president. The trendy hate though is way over the top and not at all productive in either a discussion or in a practical sense. I don't think this backlash was the basis of the decision itself, and I don't think anti-Bush folk in courts will actually conspire to set anyone free (though anything can happen in front of a single federal judge on a habeas case). But civilians court are wildly unpredictable, and they has no expertease or perspective of international and military law.

There are a few problems. First, cases are not random and consistent over time. Parties decide to appeal certain issues based upon how they think the Court will decide. The Court often only takes cases when a split between circuits develop. Also, case decisions are built on prior cases so law has an evolutionary quality. And the issues being litigated today are not the same as those being litigated years ago. An example to illustrate many of the problems would be in analyzing exclusionary rule cases. The exclusionary rule didn't exist until the middle of the 20th Century. The finding that illegally seized evidence should be excluded was considered a "liberal decision." However, how do you deal with the numerous decisions since? There may be a conservative and liberal outcome relatively. However, all of those decisions fundamentally accept a liberal exclusionary rule. Most every area of law operates that way. And most exclusionary rule decisions never reach the Supreme Court because the Court doesn't grant cert.

It is extremely difficult to analyze legal holdings via politics over any lengthy time frame. Going back to early 20th Century or before is virtually impossible as you really have an apples and oranges comparison.

Where is there any evidence of this? In the criminal law context, habeas petitions fail at an unbelievable rate (even excluding all of the horrible jail house lawyer petitions). A large majority of the federal judiciary is composed of Republican appointees. Every decision to grant a habeas petition is subject to appeal so there is no risk that a "single federal judge" can make a maverick decision without review. Federal courts have proven extremely hostile to habeas petitions outside of the terrorism context - what possible reason is there to think they will be friendlier to Gitmo detainees?

This decision was merely about access to federal courts. I don't think that these petitions will have much success. But this access is extremely important. In an Afghanistan prison, the prisoners will have whatever habeas rights that the Afghani government chooses to provide. Same for Iraq. And same for every other country in the world. That is why Gitmo was scary. The US denied that prisoners had rights to petition the Cuban government (which is fine), but wouldn't give access to any US court. That is about creating a land without law. And that is something that should scare everyone.

I don't really care what most people think. The constitution doesn't change based on what most people think unless a long amendment process is followed, which hasn't happened here.


Yeah, I don't see that at all. I think it's more like people that don't like Bush are more likely to support this decision. Hating Bush and praising the decision is just a win-win situation.


You don't understand. I think most people in Guantanamo probably deserve to be there (or in captivity somewhere). For those, I want them to have their habeas petition reviewed and denied. If there's one person in custody that doesn't deserve to be there, then I think it's worth it.


I've hated Bush for a long time because I think his policies are destroying this country, not because it's trendy. Do you think there are people in this thread that just suddenly started hating Bush because it's trendy? If so, then please point those people out, because I'm tired of this random grouping of people to make an argument.

There you go. Trendy does not necessarily mean "suddenly" but aslo an irrational hyperbole. But we've seen this before and will see this again.

I've never heard it defined that way before, but I'll admit that "destroying" is too strong. I do think Bush's presidency has seriously hurt this country, and alot of the damage will take a long time to repair.

Bucc, I know you were the guy who actually held John Hancock's pen after he signed the Declaration of Independence so you've seen a lot. It always seems like your perspective on these things is that this is no different than it's always been and it's the 357th verse, same as the first. And maybe that's right.

But you can at least see where we are coming from, right? I mean, Bush I was disliked for "Read my lips, no new taxes", having an idiot for a Vice President, and throwing up on the Japanese Prime Minister. Clinton, well, I think we know too much about Willie's willie, as well as Whitewater and failed health care legislation. This Bush is most disliked for abuse of power- lying to start a war and strongly abrogating individual rights as well as not being very bright and being in bed with big oil. Of the three, it seems the two most dangerous of any of the allegations to the state as a whole come from the current president.

SI

SI, several off-the-cuff responses. 1) Lying to start a war has been done (e.g., LBJ) but that doesn't excuse him from stupidly going into Iraq and to even more stupidly prosecute the post-war. But I will still contend that in the future, the Iraq mess will be insignificant compared to much more serious problems that will develop. 2) As far as abrogating individual rights, it's what the federal govt has done and will continue to do. It probably has accelerated after 9/11 but that's what the general public wanted and still wants. Many people have not realized the powers they allowed Washington to take over the years because they demanded them to "do something" instead of taking more personal responsibilities locally. It will only get worse because that's what we want and expect. 3) Not being very bright. That's certainly true but in a matter of perspective, neither were many other presidents. All this means that he has to delegate more. One can argue, as with any leadership position, where's the line between mindless delegation and self-centered wonking. 4) Ah. The Big [Fill-in-the-blank] argument. Every president in our lifetimes have been in bed with a number of Bigs. Is one worse than the other? We all demand oil and energy and its products and we never seemed to care to look ahead, whether alternatives or domestic production. Every analysis I've read suggests multiple reasons for the situation now, many outside the control of a president who alledgedly controls the world's oil markets. But like I said, it always has to be Big Something - that's the power we have given to Washington, to allow all of these special interests to act on our behalf.

So as a matter of perpsective, yes, I have seen many examples of irrational hatred solely because of what the person looks like, whom he is associated with, how he got elected and plain opposition just for the hell of it. It happened with JFK and LBJ, as I have studied, and experienced it with Nixon, Carter, Reagan and Clinton. It's part of the partisan nature that always have been there and now with the ever-increasing power of the federal govt that we demand, the stakes will be higher and thus, the partisanship will be even greater here on out.

CAVEAT: Irrational partisans will believe that if you don't hate person A, then you must love him. For me, it is neither. I don't like Bush2, the neo-cons, etc. But I don't like its opposition either. Too many people believe that if we keep swinging the pendelum from one extreme to the other and back again, that somehow each swing will make things better. It doesn't, it makes things worse because "fixing" things entails more powers taken as expectations for them to do rise.

Well, this is why I made the comment mentioning "the two most dangerous"- these two are kindof small potatoes. They aren't but they are in the grand scheme of things.


Well, and this is why I phrased it the way I did. I know you don't have much love for the guy (tho I will argue that you're more partisan than you want to let on) and I got the answers I was curious about.

SI