Balkinization: In the Penal Colony

Scott,

Thank you, again, and again, and again, for speaking so openly and passionately. By doing so you "promote the view in the world that my nation has and pursues a just cause, and treats those in its power with justice, though the justice be severe." Your example is especially heartening for this 2l.

# posted by

Robert Link : 2:52 PM

Mr. Horton:

This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights."

Really? That is quite a charge to be making against your country to a foreign audience. I hope you can back it up.

It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees.

To the contrary, the MCA is filled with pages of procedural rights which alien unlawful enemy combatants have never been previously granted under US laws.

It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws.

This also is incorrect. Pursuant to its plenary Article I power to set the rules for Captures, Congress defined the requirements of the Geneva Conventions for the courts. These are requirements which may be enforced by the courts. They may not be the requirements you wished for, but to claim that there are no requirements is worng.

The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic.

This is misleading. You cannot abolish something which never existed in the first place. In over 500 years of its existence, the Great Writ was never extended in Britain or the US to alien enemy combatants to contest their detention for the duration of hostilities. In the Rasul decision, five members of the Supreme Court rewrote half a millennium of precedent in the US habeas statute to extend this right for the first time. Congress corrected this misinterpretation of their law twice in the DTA and the MSA.

It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions. The CSRT complies with the Geneva Conventions requirement to hold a status hearing to determine whether the detainee falls under the definitions of lawful combatant or civilian with the protections which accrue to those persons.

Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys.

This is misleading. A group of civilian attorneys demanded access to Majid Kahn and to the classified information to which he is allegedly privy. The Government is opposing allowing these attorneys access to Kahn, not all attorneys. If Kahn is tried by a military commission for war crimes, the MCA requires that he be provided with two attorneys, presumably with the proper security clearances.

I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations.

Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.

Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures.

Please. Hussein was disseminating enemy propaganda, was captured consorting with two enemy combatants in an apartment with bomb making materials.

The photographs were not news, they were propaganda meant to spread terror. Hussein took photographs with the obvious consent of the enemy of terrorists committing war crimes by executing poll workers and other civilians. These photos were permitted by the enemy to spread fear in the population.

This is the equivalent of a German photographer taking photographs of SS executions of French civilians to be given to AP for dissemination in the world media to serve as an example of what happens to those who aid the French resistance.

In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort.

This report was drafted by people who have no access to the classified intelligence used to make the determination. All they have access to is the heavily redacted portions of hearing minutes and documents which have been declassified.

The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants.

http://fpc.state.gov/fpc/61444.htm

At least ten of these released detainees returned to fighting our troops in Afghanistan.

http://www.washingtonpost.com/wp-dyn/
articles/A52670-2004Oct21.html

It is also very telling that the EU countries which lecture us on the need to close Gitmo and release its detainees refuse to take into their own countries the detainees which our CSRT wants to release. They do not want to take the risk which they urge upon us.

Therefore, the status hearings are arguably too permissive rather than too strict and are releasing enemy back to the battlefield.

The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony.

Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing. The CSRT hearings are far more elaborate affairs.

I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice.

That is a distinction without a difference. You appear to be arguing for criminal standard of proof and procedures in status hearings for enemy combatants for the first time in history. Obviously, this would lead to the release of far more enemy combatants to return to the battlefield to kill our soldiers than is currently the case.

# posted by

Bart DePalma : 5:33 PM

Bart:

Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing.

We've been over this so many times we are going round and round in circles. You refer to what was permitted as a matter of battlefield exigency in the case of enemies captured in actual combat (very strong evidence that they were actual combatants).

In this case we are dealing mostly either with arrests (some of them far from the actual theater of combat) or with people handed over to us by local warlords. The exigencies of combat do not apply.

# posted by

Essayist-Laywer : 7:03 PM

@bart: or what, or you are going to say that Horton is a taitor?

# posted by

Anne : 7:06 PM

I'm crossposting this question to humblelawstudent from another post because (in my arrogance) I believe this is a point of discussion worth pursuing.

@humblelaswstudent: so we agree on the basics. A president and congress have warpowers. They shouldn't use these powers unless there is a war.

You said congress cannot declare a war without an enemy although it might authorise the use of force.

Let's suppose that Congress and the President legally cannot start a war "without an enemy" ie cannot start a war on drugs (you said "should not" I added "legally cannot"). If we take this assumption there is a scale between a legal war (for example WOII) and un illegal war (hypo: war on drugs). Now we would have to find where the war on terror would fit in.

Personally I would argue that the war on terror is like the war on drugs. There is not one clear enemy (there is a combination of enemies we call terrorists) let allone a state to wage war on. There is not a clear battlefield because the "enemy" is not one actor but a bundle of actors. I would say that war on terror is remarkably similar to the war on drugs. The only constant factor is the U.S.'s use of force.

On our hypothetical scale between a legal and a illegal war the war on terror would as close to the war on drugs (the predefined illegal war) as a war could be.

This is not to say that the use of force against terrorists is or should be illegal. I would say that there is a struggle (to avoid the use of the word war) against terrorism. Certain battles in this struggles could be considered legal wars on the hypothetical scales, other battles we are fighting because we were asked to help by a governemt.

In Afghanistan and in Iraq there were wars. We attacked and invaded another State and took away their sovereignty. Both ended being wars when the soverignty was transferred back to the newly installed governments. From that time on there is no longer a war, but the US is asssisting sovereign governments in more or less internal strifes.

In the same sense we cannot say that the US fought a war against communism. The us fought wars in Vietnam and Korea (we can argue about the last one because there was somewhat of an invitation), but not against "communism".

As soon as we take the "war" out of the war against terrorism the whole use of the war powers collapses.

# posted by

Anne : 7:08 PM

If I may address one of the snotty remonstrances of Mr. DePalma - the Geneva Conventions, in addition to torture, prohibit "cruel treatment … outrages upon personal dignity, in particular, humiliating and degrading treatment". Anyone able to convene a court of common sense would agree that "waterboarding, long-time standing and the coldcell or hypothermia" are prohibited by the Geneva Conventions.

I have no adequate way to thank you Mr. Horton, for your passion in pursuit of a world that is kinder and more just.

# posted by

Anonymous : 7:09 PM

@Bonnie: Bart would say it's all a matter of jury selection. And believe me, he is a picky selector (because hardly anybody agrees with him anymore)

# posted by

Anne : 7:11 PM

Anne:

I think your analogy between the "War on Terror" and the "War on Drugs" is a useful comparison. In both cases, as you say, we are dealing with something that is really not big enough to be a belligerent. Your proposal is to treat it as a criminal matter.

But I would say that some of these drug cartels, though not big enough to be belligerents in a war, are too large to be mere criminals. You need only look at major drug growing countries -- aerial defoliation of coca fields, rival drug lords battling for power, alliances between drug dealers and rebel groups financed by drug profits -- to see that "war" was more than just a metaphore. Even some U.S. inner cities had rival drug guns fighting for control with military-style weapons.

But certainly none of this justfies invading Colombia to suppress drug traffic, or declaring our inner cities war zones and sending in the Marines Fallujah style.

I believe much of our problem is that we are dealing with something too big to be crime and not big enough to be war. We don't really have any laws or procedures for dealing with that. Looking at how we deal with another intermediate enemy (like drug cartels) can be a valuable source of guidance.

# posted by

Essayist-Laywer : 9:07 PM

Interesting that bush the Sr. sought to address a social ill with a 'war', and his son followed in his footsteps. The elder wanted to tackle a very difficult problem by mustering resources using the rhetoric of war. How is it that we think that war is a source of power? It has power to be sure. Peace has more power, though. Its about solving problems, war is about replacing one set of problems with a bigger set of problems in all but the rare case.

Peace has more power than war.

# posted by

John : 12:05 AM

Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.

Bart and everyone please look at Evan Wallach's draft (soon to be published at Columbia) at the link below entitled Drop by Drop: Forgetting the History of Water Torture in U.S. Courts

http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf

Please stop being in denial about waterboarding being torture. It really gets boring.

Best,
Ben

# posted by

Benjamin Davis : 1:21 AM

@enlightenedlayperson: What I am saying is that Bush picks and chose between the crime and war paradigm. The gobal war on terror lacks defining caracteristics that make a war.

Maybe if I do have to choose between war and crime I would choose crime, because than I would be able to fight terrorism as a conspiracy to terrorize. I would use the intelligence services because this conspiracy threatens the safety of people.

I liked my analogy to Communism better. Communism is a ideology, just as terrorism, we cannot fight an ideology with guns.

# posted by

Anne : 2:37 AM

Scott:
It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

Bart responds with:
You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions.

The MCA does define lawful and lawful combatants, and it does refer to the pre-existing CSRTs, but it does NOT preclude the President or the Secretary of Defense from deciding status outside of the CSRTs.

Unlawful enemy combatant status is assigned when either 1) the person has openly engaged in hostilities, but fails to meet the criteria of a lawful enemy combatant; or 2) the person is determined to be an unlawful enemy combatant by "a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Note the distinct absence of an "and" between those criteria.

Elsewhere, Bart dismisses Scott's claim that the MCA "demands that no litigant cite or ask a court to take notice of the Geneva Conventions."

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."

# posted by

PMS_CC : 2:41 AM

Just for Bart's amusement . Remember those good ol' days when Bart used to argue that there was a clear definition of enemy combatants and that the review tribunal actually cared? Well they care so much that they never heard a witness from outside of guantanamo... Sleep well Bart, Bush will protect you.

# posted by

Anne : 2:01 PM

Enlightened Layperson said...

Bart: Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing.

We've been over this so many times we are going round and round in circles. You refer to what was permitted as a matter of battlefield exigency in the case of enemies captured in actual combat (very strong evidence that they were actual combatants).

In this case we are dealing mostly either with arrests (some of them far from the actual theater of combat) or with people handed over to us by local warlords. The exigencies of combat do not apply.

1) These are not arrests by civil authorities, these are captures of enemy combatants by the military.

2) The execution rather than the detention of unlawful enemy combatants has nothing to do with the exigencies of combat. Unlawful enemy combatants who endanger civilians or our troops by disguising as civilians or our troops have been executed throughout our history.

# posted by

Bart DePalma : 2:46 PM

Anne said...

@bart: or what, or you are going to say that Horton is a taitor?

I never said this. Why does it leap to your mind that Mr. Horton is engaging in treason?

Treason is giving aid and comfort to the enemy. Mr. Horton is not spreading enemy propaganda, so I would not call him a traitor.

If these are knowing falsehoods slandering the government, you could make an argument for sedition, but not treason.

# posted by

Bart DePalma : 2:50 PM

Katherine said...

"The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants."

False. The number is 38.

I am not aware of any reports of any of those 38 being recaptured fighting in Afghanistan. (Two or three are still being held it Guantanamo.) (The CSRT was not the only mechanism by which people got out of GTMO--people were released before and after...

It is possible that the military released many of the 200 in initial reviews prior to a formal CSRT status conference. I do not have that information. However, the end result is the same. The military conducted status hearings released 200 and some came back to fight us again.

# posted by

Bart DePalma : 2:57 PM

PMS_Chicago said...

Scott: It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

Bart responds with: You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions.

pms: The MCA does define lawful and lawful combatants, and it does refer to the pre-existing CSRTs, but it does NOT preclude the President or the Secretary of Defense from deciding status outside of the CSRTs.

Scott claims that the MCA grants the President the right to declare anyone he wants at an unlawful enemy combatant.

You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

I presume that it is theoretically possible that the President or SecDef could apply the MCA definitions under the President's Article II power, but they have not done so and the MCA is silent on that issue.

Elsewhere, Bart dismisses Scott's claim that the MCA "demands that no litigant cite or ask a court to take notice of the Geneva Conventions."

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."

I never denied this.

The rights granted by the Geneva Conventions are often vague to the point of uselessness.

The Congress has the plenary right under Article I to set the rules for Captures which would include defining the Geneva Convention rights which US law will apply. They did so under the MCA and denied the courts the right to redefine those rights any other way.

# posted by

Bart DePalma : 3:07 PM

I'll just have to wait if other commenters will take your bait and repeat you. can't hear you

# posted by

Anne : 3:51 PM

@bullsmith: I think a lot of us reckognize that Bart "arguments" and "debating techniques" are disingenuous. We all respond differently. Some (try to) ignore him, but some decide to take him on. Not because it will be an honest debate, but because his nonsense cannot be left undisputed. In this days of spin it happens too often that the person most ardent about his truth is perceived as right (I guess Colbert would call it thruthiness).

In a weird kind of way I think it is important to have Bart around. Not only to play with, but because he represents the true believers in the Bush doctrine: all the powers to the president regardless of the consequenses. It is good to get to hear this point of view because there are to many people buying in to it. At blogs like this one, people tend to forget this reality. Bart makes us remember who we are really arguing against.

# posted by

Anne : 5:24 PM

You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

Not quite. I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.

This is what gives people like Robert and me such heartburn: with no firm idea of what constitutes competence, it is open for abuse by the executive.

# posted by

PMS_CC : 5:48 PM

@pms: and we know how these tribunals should be viewed. new report just released. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases. All requests by detainees for witnesses not already detained in Guantánamo were denied. And the list goes on. Read the thing it is quite damming.

Darned liberals again.

# posted by

Anne : 6:01 PM

Wow, Anne, thanks for that link.

One part really jumped out at me: In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no-longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened
which then found the detainee to be an enemy combatant.

I only hope the government had the common playground courtesy to yell "Do over!" before ordering the new tribunals.

# posted by

PMS_CC : 7:57 PM

Bart: ...the rules for Captures...

There's that capital C again. ;)

Anderson, you're spot on, both in your analysis of what's important and the illegitimacy of Bart's methods and the clued-in nature of certain regulars. The best bet is still to not feed the troll, but it's human nature to get a guilty kick out of baiting the bear.

btw, Bart, did you ever find that passage in the text of the MCA that lets your family prove your citizenship when you they pick you up, wrongfully, as an AUEC? Still no? Pity.

# posted by

Robert Link : 9:52 PM

PMS_Chicago said...

BD: You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

Not quite. I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.

:::sigh:::

Exactly why were the definitions included in the statute if Congress did not mean them to be followed?

# posted by

Bart DePalma : 10:31 PM

Anne said...

@pms: and we know how these tribunals should be viewed. new report just released. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases.

So what? Once again, status hearings are not trials. They are simply reviews by the military of evidence concerning the status of the detainee.

We have never provided trials for enemy combatants to challenge the evidence underlying their detentions. Never. There is absolutely no reason to start now.

Every detainee has been interrogated extensively. He had every opportunity to inform the interrogator of his life story. These statements can be and are checked out. 200 detainees have been released because their stories checked out.

Indeed, a detainee has no right to silence as to his status. Even you folks should know the obligation to give name, rank and serial number from the movies. The purpose of that required information is so the capturing military can verify your status under the Geneva Conventions.

# posted by

Bart DePalma : 10:52 PM

Robert Link said...

Bart: ...the rules for Captures...

There's that capital C again. ;)

Since I have to keep referring back to the Constitutional language to remind you folks of Congress' plenary authority to set rules in this matter, I have taken to using the archaic term "Captures," which is capitalized in Article I.

Anderson, you're spot on, both in your analysis of what's important and the illegitimacy of Bart's methods and the clued-in nature of certain regulars. The best bet is still to not feed the troll...

That would save me time responding to you.

I visit about a half dozen blogs and reply to interesting posts by the bloggers. Then, I try to be polite and reply to posts directed to me by other readers of that blog.

If you do not care to engage in a debate, do not respond to my posts.

# posted by

Bart DePalma : 10:58 PM

@Bart: So what if these tribunals amount to nothing? The "low ranking" detainees can be held forever without a trial, but you don't care about teh tribunals? Remember, you said that the tribunals would save you when you would be wrongly detained as an enemy combatant.

We have never provided trials for enemy combatants to challenge the evidence underlying their detentions. Never. There is absolutely no reason to start now. That is disingenuous. We did provide trials to people who claimed to be either POW's or innocent civilians all together. Let's quote the Geneva Conventions on that one:
"A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."

# posted by

Anne : 2:57 AM

Every detainee has been interrogated extensively. He had every opportunity to inform the interrogator of his life story

Oh Bart, you are cracking me up. If only all those people would have chatted nicely with there interrogator pals, everyting would be alright! Then again your interrogator buddy just might no believe you...

I'm quite sure you won't read it, because you have have a dozen blog to read but please go and read about your cherished tribunal. Don't say you never said they were important: you said that if you would be detained (wrongly) as an enemy combantant these, the tribunals would set you free.

# posted by

Anne : 3:07 AM

[PMS Chicago] I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.

[Bart]
:::sigh:::

Exactly why were the definitions included in the statute if Congress did not mean them to be followed?

:::sigh:::

A right without a remedy is barren. That's the whole fault with the MCA in a nutshell.

# posted by

Essayist-Laywer : 3:09 AM

Yes, why would that be? Would it like making a law authorizing to build a fence, but not relocating money to actually build it?

Or would it be more like the argument the administration is now using in the padilla case: we didn't torture but even if we did, you cannot hold it against us.

Of course it is true that they are saying "you cannot hold it against us... in this criminal law case". But in a civil law suit they would invoke the executive privilege, thus barring any enforcement.

But it is good to see that Bart is beginning to ask the tough questions and this one bears repeating: Exactly why were the definitions included in the statute if Congress did not mean them to be followed?

# posted by

Anne : 9:35 AM

Bart: If you do not care to engage in a debate, do not respond to my posts.

So that's still a "no such provisions in the MCA" with regards to my question about how your family gets to prove your citizenship when you get wrongfully picked up as an AUEC? Strange that you can whine about other parts of my post, even whine that I'm not "engaging you" and yet you can't answer this simple question. Could it be you just don't like the answer you'd have to give? Be clear that your failure/inablity/refusal to answer this one simple question really puts the lie to your protestations of "politeness". Folks who know you from other venues have warned us, and you never once have acted in a fashion to gainsay those warnings. Pity.

# posted by

Robert Link : 12:10 PM

But don't you see Robert, Bart is way to busy commenting on half a dozen other blogs to engage with us in a civilized debate in which one gives an answer to the actual question posed.

Bart is not engaging in debate. He is making statements and proclamations.

# posted by

Anne : 12:16 PM

Indeed, a detainee has no right to silence as to his status. Even you folks should know the obligation to give name, rank and serial number from the movies. The purpose of that required information is so the capturing military can verify your status under the Geneva Conventions.

Name and rank (and later, number and date of birth) was required so that you could be treated bureaucratically according to your status as an officer or an enlisted soldier, e.g. differential pay rates for labor. If captured soldiers failed or refused to provide their information, it did not remove their POW designation:

If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

In the classic WWII movies, you saw the name, rank, and serial number thing a lot not because it was an obligation of the Hague Conventions, but because it was a common rule of thumb placed upon the information that a captured soldier could give to the enemy. The idea wasn't so much to ensure good treatment as a POW of correctly identified status (officer vs. enlisted), but to avoid "spilling your guts" to the enemy.

While most soldiers weren't put into that position, all of them had the practice drilled into their heads by training. (Later it was hardwired into the US Military Code of Conduct). After the war, GIs returned home, and the WWII war movie genre took off soon thereafter. Any POW scene therefore would have to include the "name, rank, and serial number" bit as quite a bit of the audience was expecting it.

For WWII buffs, there's a couple of neat issues of Intelligence Bulletin available concerning the efficacy of name, rank, and number in resisting interrogation:

http://www.lonesentry.com/articles/priswar/index.html
http://www.lonesentry.com/articles/namerank/index.html

# posted by

PMS_CC : 12:32 PM

As usual, a miasma of factual and logical errors by "Bart" DePalma:

[Scott Horton]: This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights."

["Bart"]: Really? That is quite a charge to be making against your country to a foreign audience. I hope you can back it up.

He did. See below (and elsewhere). But it's hardly a charge against the country. Scott was explicit in charging the maladministration and the Republican-controlled Congress (i.e., the gummint). But "Bart" is hard of reading.

[Scott Horton]: It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees.

["Bart"]: To the contrary, the MCA is filled with pages of procedural rights which alien unlawful enemy combatants have never been previously granted under US laws.

Nonsense. "Bart" is trying to claim that the Dubya maladministration is the ACLU's best buddy, and was trying to give rights to detainees. "Bart" conveniently forgets that it was the Rasul and Hamdan decisions which decided the law as it existed, which forced the maladministration to push for the MCA to enable its desired treatment of detainees (and even there, the courts managed to force the gummint's hand andget the gummint to at least provide the hearings that they had previously said they didn't need to provide. The U.S. Supreme Court slapped the gummint's hand, and said what it was doing was wrong. "Bart" is free to disagree with the court, but he's not free to pretend that what the court decided was not settled law.

[Scott Horton]: It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws.

["Bart"]: This also is incorrect. Pursuant to its plenary Article I power to set the rules for Captures, Congress defined the requirements of the Geneva Conventions for the courts. These are requirements which may be enforced by the courts. They may not be the requirements you wished for, but to claim that there are no requirements is worng.

The question of what happens when Congress acts in direct contravention of a lawfully passed treaty has not been addressed yet. Congress may "interpret" a treaty, but it's not quite clear they may disregard it. Whether they have done so may end up in court again.

[Scott Horton]: The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic.

["Bart"]: This is misleading. You cannot abolish something which never existed in the first place. In over 500 years of its existence, the Great Writ was never extended in Britain or the US to alien enemy combatants to contest their detention for the duration of hostilities. In the Rasul decision, five members of the Supreme Court rewrote half a millennium of precedent in the US habeas statute to extend this right for the first time. Congress corrected this misinterpretation of their law twice in the DTA and the MSA.

"Bart" can cite to no such precedent. Because it doesn't exist. In fact, even the Ex Parte Quirincase recognised that at least on some matters, undisputed "alien enemy combatants" have a right to habeas corpus. Ex Parte Quirin rejected the Quirin petitioner's petition on the merits.

[Scott Horton]: It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

["Bart"]: You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions. The CSRT complies with the Geneva Conventions requirement to hold a status hearing to determine whether the detainee falls under the definitions of lawful combatant or civilian with the protections which accrue to those persons.

Non-responsive to the point. As has been pointed out previously by many, even the CSRT is not guaranteed. But that's a far cry from being given "protection of the law" when the person is indefinitely detained either way, but just being given soldier's pay in one case, along with a few other amenities and perqs. The fact that people far from any battlefield, in the midst of an open-ended and ill-defined "war on a noun", can be held as "enemy combatants" makes this all the more disturbing to those who believe in the rule of law. "Bart" talks below of 'battlefield determinations', but the exigencies of such are not on us for people that have been held for five years in a place half a world away from where they were taken into custody.

[Scott Horton]: Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys.

["Bart"]: This is misleading. A group of civilian attorneys demanded access to Majid Kahn and to the classified information to which he is allegedly privy. The Government is opposing allowing these attorneys access to Kahn, not all attorneys. If Kahn is tried by a military commission for war crimes, the MCA requires that he be provided with two attorneys, presumably with the proper security clearances.

"Bart" thinks it's just great that the 'prosecution' should be able to provide the attorneys for the defence (I'd note that the Third Geneva Convention requires that those charged with crimes be given the lawyer of their choice). The brave (but now shunned) Lt. Cmdr. Charles Swift took Hamdan's case. But the military poobahs told Swift they wanted him to get Hamdan to plead guilty. Swift didn't do that, so now they forced Swift out of the Navy.

Perhaps if the Colorado prosecutors took the Dubya maladministration's tack, they'd get gummint appointed lawyers to plead all "Bart"'s DUI defendants guilty, and "Bart" would be out of a job....

[Scott Horton]: I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations.

["Bart"]: Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.

"Bart" lies. The U.N. Convention Against Torture prohibits intentional infliction of "severe pain or suffering" (also "whether physical or mental", just so we don't let "Bart" pretend or suggest by omission that only physical pain is covered). I'd note that the gummint has bragged that the waterboarding got Khalid Shaikh Mohammed to come through in three minutes and that he supposedly was one of the ones that lasted longest. The Spanish Inquisition would stand in awe, I'm sure.

[Scott Horton]: Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures.

["Bart"]: Please. Hussein was disseminating enemy propaganda, was captured consorting with two enemy combatants in an apartment with bomb making materials.

["Bart"]: The photographs were not news, they were propaganda meant to spread terror. Hussein took photographs with the obvious consent of the enemy of terrorists committing war crimes by executing poll workers and other civilians. These photos were permitted by the enemy to spread fear in the population.

["Bart"]: This is the equivalent of a German photographer taking photographs of SS executions of French civilians to be given to AP for dissemination in the world media to serve as an example of what happens to those who aid the French resistance.

If the gummint thinks he's aided Terra-ists, they should charge him (and lay out their evidence). That's all the AP has asked. That he's been essentially "disappeared" for the supposed 'crimes' of bomb-making and producing "enemy propaganda" but hasn't been charged or given an opportunity to defend himself is what the sane people are complaining about. The fact that he has been detained but hasn't been charged is just prima facie evidence that what the gummint is doing does not comprt with any notions of fairness or due process.

[Scott Horton]: In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort.

["Bart"]: This report was drafted by people who have no access to the classified intelligence used to make the determination. All they have access to is the heavily redacted portions of hearing minutes and documents which have been declassified.

"Bart" presumes to tell others what they do and do not know. My rebuttal here is easy: "Bart": What access do you have to the materials gone over by the Seton Hall Law students so that you can claim what they do and do not know? C'mon, "Bart", tell us: They let you into their workshop to poke around and look at the sufficiency of their research, right?!?!? If not, perhaps you'll excuse us if we say your claim is full'o'sh*te.....

["Bart"]: The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants.

Until people started complaining, they weren't releasing anyone.

http://fpc.state.gov/fpc/61444.htm

["Bart"]: At least ten of these released detainees returned to fighting our troops in Afghanistan.

"S'pprrraaahhzz, s'pprrraaahhzz!" As Mike Royko put it when describing the South African foreman who, while
beating the workers with the butt of his shotgun, manage to discharge his gun and kill himself: Those ingrates didn't even start singing "Massa's In De Cold Cold Ground"....

http://www.washingtonpost.com/wp-dyn/
articles/A52670-2004Oct21.html

["Bart"]: It is also very telling that the EU countries which lecture us on the need to close Gitmo and release its detainees refuse to take into their own countries the detainees which our CSRT wants to release. They do not want to take the risk which they urge upon us.

No one has insisted that the U.S take these detainees in even if it releases them. So "Bart"'s claim that "[t]hey do not want to take the risk which they urge upon us" isn't true even if it were true that these countries (which "Bart" doesn't bother to document) refused to take them and furthermore for the reasons that "Bart" claims.

["Bart"]: Therefore, the status hearings are arguably too permissive rather than too strict and are releasing enemy back to the battlefield.

"[A]rguable". Perhaps. But "Bart" has made no such plausible argument.

[Scott Horton]: The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony.

["Bart"]: Status hearings are not and never have been trials for criminal acts....

Oh, quite true, quite true. In fact, as alluded to above, they just determine whether the person is a POW or a civilian. What is in fact needed is a determination of whether there's a reason for holding someone at all, not whether they're a POW or civilian. And, though "Bart" may not quite grasp the concept, that's kind of what a habeas corpus petition is all about.....

... They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing....

"Bart" keeps repeating this nonsense. Such a "summary execution" would be a war crime.

... The CSRT hearings are far more elaborate affairs.

As well they should be. But a hearing as to whether a person is a POW or just a civilian misses the point considerably, when the detainees are held in a secure location halfway around the world in an ill-defined and potentially endless "war on a noun", and particularly when such appellation and treatment is bestowed on U.S. citizens arriving on airplanes at O'Hare airport....

"Bart" seems to have missed the commentary where various people (including U.S. Supreme Court justices) have stated that the exigencies of the battlefield, whathever they are, must make way for the rule of law when these exigencies no longer pertain (or, if fact, never existed).

[Scott Horton]: I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice.

["Bart"]: That is a distinction without a difference. You appear to be arguing for criminal standard of proof and procedures in status hearings for enemy combatants for the first time in history. Obviously, this would lead to the release of far more enemy combatants to return to the battlefield to kill our soldiers than is currently the case.

Not at all "obvious". Of course, "Bart"'s 'solution' might "obviously" lead to imprisonment of far many more detainees than are actually dangerous or guilty of some crime. Someone needs to tell "Bart"'s DUI clients that he thinks that they should be locked up just for good measure, even if they just 'had a few' (or even hadn't touched a drop that night as long as someone else said they did)..... Safer for eveyone, just to be sure, you know....

Cheers,

# posted by

Anonymous : 2:27 AM

pms_chicago:

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."

Translated from Dubyaesque into English (and reality):

"The only rights under the Geneva Convention you have are the ones that we say you have. We don't heeeeaaaaaarrrrr you. Nya-nya-NYA!!!!"

Cheers,

# posted by

Anonymous : 2:38 AM

"Bart" DePalma:

If these are knowing falsehoods slandering the government, you could make an argument for sedition, but not treason.

Ahhhhh. "Bart" loves the crime of "sedition" as well....

"Bart" DePalma, meet Thomas Jefferson. Thomas Jefferson, mee... -- umm, put down the stick now, Tom, "Bart"'s just a little confoozed and unedjoomakated, that's all.....

Cheers,

# posted by

Anonymous : 2:45 AM

"Bart" DePalma:

The rights granted by the Geneva Conventions are often vague to the point of uselessness....

Rrrrrriiigggghhht. All 100 or so articles of the Third and Fourth Geneva Conventions are "vague". "Bart" obviously hasn't read them.

By that standard, the Bill of Rights is just idle musings on a summer's day, and anyone who cites said "rights" ought to be laughed out of court ... or better yet, prevented from even mentioning such idle musings by statute....

Cheers,

# posted by

Anonymous : 2:51 AM

"Bart" DePalma:

If you do not care to engage in a debate, do not respond to my posts.

Judging from the fact "Bart" ignores my critiques of his posts and 'logic', what can we infer from this? Yes, you in the back with your hand waving madly.... Oh. Yes. You're right. We covered that last semester; that's old news....

Cheers,

# posted by

Anonymous : 3:02 AM

Arne: ...an ill-defined and potentially endless "war on a noun"...

Brilliant! I'm gonna steal that one.

# posted by

Robert Link : 3:28 PM

@robert: read catch 22. It is actually a gem of Joseph Heller.

Oh, by the way, no one referenced to catch-22 with regards to the detainment. I'm pretty sure Joseph Heller invented the phrase "to dissapear someone"

# posted by

Anne : 5:13 PM

Anne: It is actually a gem of Joseph Heller.

How embarrassing. Read that in High School, 1982. The comments about the feel of fresh tomatoes was the most memorable bit for me. Thanks for the proper attribution, but still, props to you for giving it currency.

# posted by

Robert Link : 6:51 PM

@Robert: well that was Arne.

If I remember correctly you Heller mentiond plum tomatoes and likened them to women's breasts.

# posted by

Anne : 9:20 AM

Anne: @Robert: well that was Arne.

Bloody san-serif rendering. Bloody dyslexia. Bloody. Apologies to you both, although I can't imagine either of you being offended. You're both bloody sharp.

Not a woman's breasts, but rather I recall the simile being "like the breasts of a young girl." The twist, of course, being how a padre would know such things.

We're getting quite a distance from the topic to which these notes are appended. Can we justify it on the similarities between Heller and Kafka?

# posted by

Robert Link : 11:54 AM