Balkinization  

Saturday, July 07, 2007

Because There Are No Sharks in Kansas

Marty Lederman

That's why we should not close Guantanamo.

Well, that and the fact that the Constitution would apparently prevent us from blasting "Dani California" during interrogation sessions on the mainland, and, as it happens, the Red Hot Chili Peppers are the key to our success at defeating Al Qaeda.

P.S. For those who have not been following discussion of this topic here: Apart from international relations and optics (no small things, to be sure), the real issue is not where the detainees are held but instead whether the Administration will be able to continue pressing (and acting on) its argument that the detainees have no habeas or due process rights . . . an argument that is unlikely to survive Supreme Court review next Term anyway, whether GTMO is closed or not.

Comments:

Because There Are No Sharks in Kansas

Alcatraz is still available....
 

Those who falsely claim that Gitmo is some sort of Gulag with torture rooms have successfully given a propaganda victory to the enemy and made it politically unlikely that Gitmo can remain open.

The EU left who condemn Gitmo as imprisoning "innocents" are unwilling to take those "innocents" into their own countries to join the other jihadis already murdering people in the EU.

Professor Lederman has pointed out that if Gitmo is closed, future detainees will be kept close to the battlefield in Iraq or Afghanistan and out of the reach of a domestic judiciary arrogating to itself the military function of determining the status of battlefield captures.

In reality, this future started long ago. No new captures have been sent to Gitmo for months if not years. Our military is not that brain dead. To the extent that the military is not killing them outright on the battlefield rather than taking them prisoner, al Qaeda and Taliban are generally being sent to local prisons technically under Iraqi and Afghan sovereign control while high value targets are shipped to secret CIA prisons.

The fact that these measures are necessary to keep lawyers and our clueless judiciary from releasing unlawful enemy combatants during a war unless they are extended constitutional rights and given civilian trials for the first time in US history is nothing less than insane.
 

Battlefield. bat-tle-field [bat-L-feeld] noun 1. Earth. 2. the field or ground upon which a battle is fought. 3. an area of contention, conflict, or hostile opposition.
 

Yeah, Bart...secret prisons are REALLY necessary.
 

Bart,

Sorry to be stalking you, but after you moved on from the last thread on this subject, I had asked one more question

You expressly stated that:

(1) If Congress had not passed the DTA and MCA, any overseas "Capture" found to be a terrorist by military status review would be outside the law and could be subject to battlefield execution.

(2) If Congress had not passed the Patriot Act requiring terrorists taken in the US to be criminally charged, they would have no more rights than terrorist taken outside the US.

(3) Absent that provision, al-Marri would be subject to the same military status review as overseas "Captures." (You did not dispute the term "quickie.")

If would logically seem to follow that if Congress had not passed these three laws then, if the military hearing found al-Marri to be a terrorist, he would then be outside the law and could be executed with no further ado.

So answer the question you dodged last time. Absent these three laws, would summary "battlefield" executions be lawful, even in the US?
 

Der Schatten said...

Yeah, Bart...secret prisons are REALLY necessary.

You tell me.

Would we have gained this intelligence if KSM and his merry band of mass murderers were brought to the US and extended a constitutional due process right to silence that most here think is his due?

Second, interrogating those at Gitmo has yielded priceless intelligence that has foiled conspiracies to murder innocent men, women, and children. Al Qaeda bigwig Abu Zubaydah kept mum until American officers played him the Red Hot Chili Peppers — at high volume. After they turned down the stereo, Zubaydah unmasked al Qaeda agents Omar al-Faruq, Rahim al-Nashiri, and Ramzi bin al-Shibh. After questioning, they, in turn, exposed more terrorist scum.

Khalid Sheik Mohammed’s lips were sealed until he experienced a few minutes of unpleasant but non-fatal waterboarding. Then he wouldn’t shut up. With his guidance, counterterrorists nabbed accused Islamo-butchers Majid Khan, Bali bomber Hambali, Rusman “Gun Gun” Gunawan, Yazid Suffat, Jose “Dirty Bomber” Padilla, and Iyman Faris, who plotted to plunge the Brooklyn Bridge into the East River.


You tell me if we could protect KSM and his merry band of mass murderers from a prison break if we disclosed their location to al Qaeda and tossed them in the county jail or whether a trial beyond a reasonable doubt would have not ended up releasing far more than we have already released under the current interrogation rules:

Keeping Muslim radicals under U.S. supervision will prevent the outrage whereby at least 157 convicted or accused Islamic terrorists have engineered at least 17 escapes from custody since September 11 in Afghanistan, Bosnia, Iraq, Jordan, Pakistan, the Philippines, Russia, and Yemen. These murderers, most of whom remain at large, collectively have killed at least 328 individuals and wounded 518 more.

In June, Jordanian Maath Braizat and Iraqi Saad Nuaimat slipped Jordan’s Juweida prison. Braizat was serving ten years for endeavoring to kill Iraqi police trainees. Nuaimat was doing life for attempting to bomb Jordan’s Queen Alia International Airport.

“The scale and frequency of these escapes reveal a dangerous weakness in the ability of foreign states to detain terrorists securely,” says Bryan Hill, research associate at the Center for Security Policy, who helped marshal this evidence. “We have a vital, vested interest in making sure these figures cannot break free and continue their menacing, violent behavior.”

The Bush administration also should stop releasing detainees from Gitmo.

“Reports indicate that at least 30 former Guantanamo detainees have taken part in anti-coalition militant activities after leaving U.S. detention,” Pentagon spokesman Navy Commander J.D. Gordon tells me. “Some have subsequently been killed in combat in Afghanistan.”


You tell me how granting these scum constitutional rights is anything less than pure madness.

This is not some G_d damned legal game. This is life and death serious.

We do not lower ourselves to al Qaeda's level by treating them as what they are - unlawful enemy combatants who have forfeited all but the most basic right to a status hearing through their own refusal to follow even the most basic rules of civilization.

al Qaeda's level is blowing up women and children at weddings and funerals.

al Qaeda's level is beheading an entire village in Iraq for daring to cooperate with its own elected government.

al Qaeda's level is beating, dragging, dismembering and burning alive our soldiers which they capture.

al Qaeda's level is doctors attempting to burn alive hundreds of people coming out of London night clubs with a fuel bomb. Doctors for heaven's sake!

While you and too many in our legal community may not take this seriously, I guarantee you that they do.

This enemy wants to murder you, your family and your friends in the most heinous way possible for imagined insults to their mad death cult faith.

Perhaps it will take another 9/11 mass murder or three to wake you up? Perhaps a nuke, nerve gas or a biological attack on your city? An appeal to history or even basic common sense does not seem to work. I am afraid than many more people will have to needlessly die before the message gets through. We have been lulled to sleep by our own success to date, a success which you want to reverse.
 

el:

So answer the question you dodged last time. Absent these three laws, would summary "battlefield" executions be lawful, even in the US?

Yes. We did so under Presidential order during the Civil War to Confederate unlawful enemy combatants who were our own citizens. Exactly why would the this basic rule change for foreign unlawful enemy combatants?

The basic principle here is simple.

During wartime, our military can legally kill the enemy on sight. We suspend that rule for wounded or surrendering enemy combatants when the enemy does the same for our wounded or surrendering troops. If the enemy does not reciprocate, then the default rule of killing the enemy on sight is reinstated.

In order to encourage surrenders or to encourage the enemy to treat our troops well in the future, we have on some occasions unilaterally suspended the default rule of war for enemies which torture or kill our captured troops. This encouragement never really worked in Korea or Vietnam and sure as hell is not working against al Qaeda when enacted the DTA and the MCA.
 

Thank you for your honest, Bart. On our last thread you pointed out that the battlefield is inherently unlawful. All the more reason, IMO, for limiting the rules of the battlefield to zones of active combat and not treating, say, the federal prison where al-Marri was being held, as part of the "battlefield."

One final note. I remember well the debates over the Patriot Act with one side denouncing it as a threat to civil liberty and the other defending it as necessary to protect us from terror. What I do not recall is anyone, anyone, saying that the Patriot Act was a radical departure from established laws of war or that, in its absence, summary "battlefield" executions would be lawful in the US. (This was, of course, well before the DTA or MCA). So far as I know, not even David Addington or John Yoo have ever made such a claim.
 

Enlightened Layperson said...

One final note. I remember well the debates over the Patriot Act with one side denouncing it as a threat to civil liberty and the other defending it as necessary to protect us from terror. What I do not recall is anyone, anyone, saying that the Patriot Act was a radical departure from established laws of war or that, in its absence, summary "battlefield" executions would be lawful in the US. (This was, of course, well before the DTA or MCA). So far as I know, not even David Addington or John Yoo have ever made such a claim.

My friend, I am arguing that extending the constitutional rights of civilian criminal defendants to enemy combatants is a radical departure from the laws of war.

As I discussed above, we have voluntarily extended some or all POW rights to unlawful enemy combatants on a few occasions in the past. I am not arguing that this is a radical departure from past practice. Rather, I do argue for the reasons I gave in my rather heated response to schatten above that this would be an exceedingly unwise practice against al Qaeda.
 

My friend, I am arguing that extending the constitutional rights of civilian criminal defendants to enemy combatants is a radical departure from the laws of war.

My friend, feel free to point out anyone (Addington and Yoo included) who made this argument when we first adopted the Patriot Act provision requiring terrorist arrested in the US to be criminally charged.
 

EL:

My friend, I am arguing that extending the constitutional rights of civilian criminal defendants to enemy combatants is a radical departure from the laws of war.

My friend, feel free to point out anyone (Addington and Yoo included) who made this argument when we first adopted the Patriot Act provision requiring terrorist arrested in the US to be criminally charged.


I never said they did.

I wonder if these attorneys were even aware of the provision of the Patriot Act which gives the AG the power to try or deport foreign terrorists. Given their view points, I tend to think not. I admit that I had never heard of this provision until al Marri successfully used it.

Does anyone know the legislative history of this provision?

In any case, I was only trying to distinguish between the two concurrent arguments I was making here - (1) Foreign unlawful enemy combatants do not have constitutional rights and to hold so is a radical departure from the laws of war, and (2) Foreign unlawful enemy combatants have been extended POW rights in the past, so this is not a radical departure from the laws of war, but the law of war does not compel this result and such an approach would be bad policy.
 

This comment has been removed by the author.
 

Bart, you could really benefit from a little more skepticism about the government, its motives, and what it tells you and doesn't tell you about its secret activities.

In short, just because the government claims that it doesn't torture anyone doesn't mean the claim is true. Just because the government claims that it's "enhanced interrogation techniques" led to information that prevented terrorist attacks doesn't mean it is true. And just because the government denies that the abuses that have been detected in our detention system are the result of a few bad apples and had nothing to do with its authorized policies doesn't mean it's true.

Really, your 6:49 p.m. post, above, is based on a bunch of factual assertions the veracity of which you have no idea.

The truth is, experience has taught us that secrecy, while important to some governmental activities, will always be used to cover up abuses and embarrasing information that may contradict Administration spin. That is simply a necessary biproduct of such secrecy.

And yet you, presumably an intelligent individual well studied on these legal questions (though coming to conclusions I find, in many cases, to be unreasonable), seem to take everything the Administration tells you about the War on Terror at face value.

Has it ever even occurred to you that some, most, or all of what the Bush Administration says about the results of its various detention and interrogation policies may be overstated or fabricated?
 

Those who falsely claim that Gitmo is some sort of Gulag with torture rooms have successfully given a propaganda victory to the enemy and made it politically unlikely that Gitmo can remain open.

# posted by Bart DePalma : 6:49 PM

Those who in fact imposed the torture on the Iraqi people at Abu Ghraib, under US administration, voluntarily handed Osama bin Laden a moral victory, and undermined US national security by creating even more enemies of the US.

At the top of that chain of command is Bushit.

By contrast, the war crime that is torture cannot be made legal, even by means of "signing statement".

You are so easy that were you a female you'd be known as "Spread-Legs Sally" -- er, "Bart".
 

Bart, you could really benefit from a little more skepticism about the government, its motives, and what it tells you and doesn't tell you about its secret activities.

# posted by Dilan : 7:14 PM

He is that when it is Democratic, and law-abiding. "Bart" doesn't believe in the rule of law; or ends and means. He believes in bullies who have the fake courage to actually carry out -- through distant proxies who actually wear uniforms -- the fantasies he hasn't the courage to act upon himself.
 

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