Balkinization: The Strangest (and Perhaps Most Revealing) Sentence in Justice Scalia's Boumediene Dissent

Comments:

Colbert must be bucking for a Supreme Court appointment.

# posted by

Anonymous : 1:51 PM

Colbert's show is brilliant.

# posted by

Bartbuster : 2:09 PM

As Marty and everyone here knows, many of the detainees were picked up on evidence provided by other nationals some of whom were indulging grudges or doing paybacks on earlier, pre-war differences.

I would conjecture that the information provided on such "referrals", was of very dubious quality.

But in criminal justice traditions here in the US, informers have a special place and are given credibility often long after their testimony has been impeached.

And so in Iraq and Afghanistan or other points around the world where we picked up people on the strength of informer tips.

So we have a huge mass of un-uniformed captives, detained on very low quality information and then tortured to boot.

Scalia, if he wants to give his imprimatur to such an arrangement, is actually bucking for a placement in the Worst Justices of All Time rogues gallery.

# posted by

Michael Sweney : 2:45 PM

Army Major Kyndra Rotunda was a legal adviser in Gitmo, a prosecutor at the Office of Military Commissions, and is the author of "Honor Bound: Inside the Guantanamo Trials." Major Rotunda offers these observations from a lawyer on the front lines concerning the decision of the Boumediene Five:

The court has decided to grant constitutional rights to detainees held in Guantanamo Bay. Now detainees can challenge their detention before U.S. judges in U.S. courts. Because Kennedy says so, military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground—in a faraway land during a battle—were justified. Kennedy admits that the court has not done this before and that there is no case precedent...

[T]he court has no reason to step in. Under current rules, detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions. Roberts, in his dissent, called existing military procedures "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses—and the conditions at Guantanamo Bay—firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative...

The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.

The problem isn't that the U.S. is releasing too few detainees—it is releasing too many.

# posted by

Bart DePalma : 2:55 PM

Justice Scalia: "[M]ost tragically, [the Court] sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner."

Scalia is almost certainly correct.

Unless the courts are going to establish strticter standards than the military, it is certain that the courts will continue to mistakenly release at least the 5-10% of captured enemy the military currently does. However, given that Kennedy made it very clear that the habeas courts are to adopt more lenient standards than the military, one can reasonably expect more terrorists to be released under this novel regime to return to the battlefield and continue to murder our soldiers and our allies.

# posted by

Bart DePalma : 3:00 PM

The problem isn't that the U.S. is releasing too few detainees—it is releasing too many.

# posted by Bart DePalma : 2:55 PM

More likely we are finding out what happens when you torture innocent people.

# posted by

Bartbuster : 3:02 PM

Oh this is no mystery, it's the logical outcome of the one percent doctrine: the only way you can ever be sure you're safe from attack is to exterminate the entire human race, so what's the big deal about locking them all up instead?

# posted by

Charles Gittings : 4:13 PM

DC Circuit rules on Chinese Uighur case.

http://www.law.com/jsp/article.jsp?id=1202422475875

"Parhat never fought against the United States and the government concedes there's no evidence he ever intended to."

Court overturns his designation as an enemy combatant.

Now what will happen? Good question. One that someone should have thought of before using sweeps and human trafficking transactions in lieu of facts and evidence as a basis for detention of non-battlefield detainees.

So if he was never an enemy combatant, what about the Article 49 violation of transporting him out of country? A "serious breach" of the GC - hmm, don't we have a domestic criminal statute about material breaches of the GCs?

# posted by

Mary : 4:24 PM

I think it is revealing. It's redolent of fighting this war blind and half deaf.

How many native speakers in the NSA for the relevant languages? How many tapes have gone unheard and untranslated?

How many top US officials unable to say
whether al Qaeda is Sunni or Shiite?

The Scalia solution is amazing: if you're too dumb to tell whether the traffic light is green or red, lock up all the traffic lights.

This is an administration that has had little regard or reward for competence, and it shows. Turns out there's a down side to that.

# posted by

jpk : 4:57 PM

"mistakenly release at least the 5-10% of captured enemy the military currently does."

Ok, Bart, I'm puzzled: You've exhaustingly reviewed the records on that 5-10%, and confirmed that they were mistakenly released? This seems somewhat more than improbable, so what is your basis for that "mistakenly"?

"each and every enemy prisoner."

Impossible?! I rather doubt it. Indeed, it will be surprising if the habeas courts do not rule in the government's favor in a majority of the 100 or so petitions that might be resolved on the merits."

What part of "each and every" didn't you understand? Scalia is almost certainly correct: It will be impossible for the military commanders to prove to a civilian court that every last prisoner is justifiably held. Mind, I can't see why this is a problem, the military commanders are probably WRONG to hold at least a few of those people.

# posted by

Brett : 5:26 PM

That's a good one jpk.

You don't even have to lock up the traffic lights, you can just switch off the power -- or better yet:

Wear a blindfold, on the theory that the only way you can steer the car is not to look since you can't be sure that the road isn't mined.

# posted by

Charles Gittings : 6:13 PM

Of course it's impossible to provide evidence supporting the confinement of each and every prisoner. For a lot of prisoners, there is no evidence. So providing evidence in these cases is impossible.

# posted by

NAL : 6:22 PM

brett said...

BD: "mistakenly release at least the 5-10% of captured enemy the military currently does."

Ok, Bart, I'm puzzled: You've exhaustingly reviewed the records on that 5-10%, and confirmed that they were mistakenly released? This seems somewhat more than improbable, so what is your basis for that "mistakenly"?

The personal knowledge of Major Kyndra Rotunda, to whose article I linked in my first post.

# posted by

Bart DePalma : 6:42 PM

This comment has been removed by the author.

# posted by

Unknown : 7:52 PM

I am ordering the Major's book and looking forward to the read. I have heard that McCain and Graham are going to submit new legislation as early as this week (though I suspect they will try to do it next week after the Supreme Court session ends or - alternatively - as soon as possible after the August recess) to respond to Boumediene. I see the Major as being a witness before Congress to push for a vote before the elections. John Yoo's piece in the WSJ of June 17, 2008 and the quote are eerily similar - like a talking point. They appear to be pulling their arguments from the Scalia dissent.

I ask will Boumediene change much on the battlefield? I would say that the possibility of capture of a person on the battlefield - not the case of the petitioners in Boumediene - makes it more probable that those kinds of persons even with habeas review will continue to be held. Swift habeas review - habeas review coming from them not being given POW status.

The ones that I think the case is more focused on is on persons who are sold to the US like Uighurs (as Parhat shows today) or picked up on a bus (like Muraz Kurnaf) in Pakistan or places away from battlefields in Iraq and Afghanistan. In those cases, the persons are not being picked up in the heat of a battle but are being picked up in other circumstances. Obviously, if a person pulled a gun the police officer or military would shoot them. But, if they act peaceably they will be detained as security detainees without being shot on the spot. Even in the shadow of Boumediene, the basic doctine that someone hors combat is not to be murdered remains part of the core training of the UCMJ.

Obviously, I am not an expert on this, but I think that Boumediene is standing for the principal that every Middle - Eastern person can not be thought of as some kind of towelhead or PUC that can get the shit beat out of him/her.

In that sense, Boumediene is about these persons not being ciphers but actually someone for whom particularlized information has to be provided for why they are being detained. That means resources have to be put into bringing that information together - one more way that it is not possible to do a war on the cheap like Rumsfeld set us up.

I believe that the Parhat decision came down so quickly by the judiciary to send a message to all concerned about how the courts can handle these cases - at least the easy cases.

The government is now constrained to not just blow smoke about someone to have them held.

Best,
Ben

# posted by

Benjamin Davis : 8:02 PM

Bart,

Who has suggested that we release more prisoners just for the sake of releasing prisoners, as the Major's final sentence implies?

Nothing in your excerpt states that the prisoners were released as a mistake.

If someone, who we have no evidence or reason to believe has committed an act of terrorism, is released and subsequently commits acts of terrorism, are we allowed to hold similarly situated prisoners indefinitely even in the absence of evidence?

# posted by

Unknown : 8:07 PM

The personal knowledge of Major Kyndra Rotunda, to whose article I linked in my first post.

But who knows if that is true.

Look, I am going to make an observation that I hope cuts through some of the politics of this issue. And that is this: the Bush Administration has, rightly or wrongly, classified a whole lot of what we would need to know to really evaluate who is right here. Those on Bart's side of the debate can point to statements by people who have seen some of the classified information and claim it supports their side; those on my side of the debate can point to statements by people who have seen some of the classified information and claim it supports our side. But none of us really know who is telling the truth, or if the truth lies somewhere in between, or what the answer is.

What we do know is our ideological principles. A lot of us on the left are horrified that we could be imprisoning people based on sketchy information and it is very difficult for innocent non-dangerous people to secure release. And we don't trust the Bush Administration to make the right calls and release everyone who is innocent.

A lot of people on the right are horrified that some actual terrorist or enemy that we don't have sufficient information on gets released because we gave him or her too much due process.

But nobody knows for sure whether their ideological predispositions are correct, because we can't see the evidence and have to rely on the statements of people who have and who may or may not be telling the truth or the full truth.

# posted by

Dilan : 8:09 PM

Battlefield, terrorist, POW, etc.

Seemingly these terms are used to blur the distinguishing characteristics of the many different types of people we have in custody.

Is the guy at home with an AK in his closet on a battlefield justifying his detention in GITMO? Is he a terrorist? Is he a POW?

What about the American Citizens picked up in an airport. Is he now an enemy combatant because the executive branch has so declared?

The language used in this debate is hopelessly conjoined to ideology, conflated with a Colbert like knowing-ness.

# posted by

Politically Lost : 8:14 PM

Mike:

If someone, who we have no evidence or reason to believe has committed an act of terrorism, is released and subsequently commits acts of terrorism, are we allowed to hold similarly situated prisoners indefinitely even in the absence of evidence?

Hey, it works wonderfully for those suspected of being criminally inclined ... oh ... wait .....

Cheers,

# posted by

Arne Langsetmo : 8:48 PM

The one thing Dilan leaves out is that we do know that there is evidence that prisoners have not been allowed to review, which casts doubt on the quote that Bart posted:

"The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them.

Not only that, but we also know that witnesses have been denied to the prisoners, so I'm not sure what parts of Major Rotunda's statement are supposed to be true.

# posted by

Eric : 9:27 PM

mike said...

If someone, who we have no evidence or reason to believe has committed an act of terrorism, is released and subsequently commits acts of terrorism, are we allowed to hold similarly situated prisoners indefinitely even in the absence of evidence?

To start, I doubt that there is a complete absence of evidence against any capture who gets beyond the initial processing by military intelligence in the combat zone. This doubt is far greater in the case of the hundred or so challenging their detention, not including those who the military wants to release, but whose home countries are considered dangerous to them. The military has released hundreds of their comrades because they are no longer considered dangers, but has kept them after multiple status reviews.

Consequently, what we are talking about where to draw the line along a continuum of evidence. The Court obviously wants to draw that line more permissively in favor of release or the Boumediene Five would not have replaced the military status process with civilian courts.

In any case, your post begs an exploration of the distinction between criminal convicts and prisoners of war.

In criminal law, detention is meant to punish a criminal for a past act.

In warfare, detention is not to punish the POW for past acts, but rather serves the remedial purpose of preventing the POW from returning to the battlefield to kill in the future.

The criminal justice paradigm is that it is better to decline to punish ten guilty men than to wrongfully imprison one innocent man. This lopsided calculus is justified because the downside of releasing a civilian criminal is not great.

However, the criminal justice paradigm does not work in the case of prisoners of war because the ten men being released are duty bound to return to the battlefield and kill others. Thus, the balance needs to be tilted back towards detention because the prevention of future deaths is more important that mistakenly detaining some innocents for a few years.

The life and death question is whether civilian criminal courts steeped in the criminal justice calculus understand the difference between criminal justice and war. There are lives in the balance if the courts fail to understand this difference.

# posted by

Bart DePalma : 9:28 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:31 PM

The recent request by the Bush Administration to rewrite the evidence that prisoners were kept on for many years suggests that Kyndra Rotunda is giving us the Administration "line."
My own suspicion is that the people overseeing the detention of all these folks probably have more in common with the Al-Hurra Network, the place where the American in charge doesn't even speak Arabic, then they do with a proper, organized, professional camp.

# posted by

Rich Gardner : 10:08 PM

dilan said...

BD: The personal knowledge of Major Kyndra Rotunda, to whose article I linked in my first post.

But who knows if that is true.

When given the choice between believing an Army officer and a probable al Qaeda trained as all soldiers are to lie about their status, I will give the benefit of the doubt to the the officer.

# posted by

Bart DePalma : 10:32 PM

What I took away from Scalia's penultimate sentence was the phrase "under whatever standards this Court devises in the future."

I'm far from being a lawywer, but isn't he saying that the Court can never set a bar low enough (forget about stricter standards for a second)to allow any adjudication of the military's detainee policy?

This goes beyond a legal "check and balance" argument, it even surpasses a "nature of truth" approach to the law -- Scalia ends up finding that the truth is irrelevant. What kind of judge is he?

# posted by

karlG : 11:42 PM

# posted by

karlG : 11:42 PM

My post begs nothing of the sort. Geez Bart, pick your preferred definitions, I'll play along. Would you prefer that I called them illegal enemy combatants? POWs? What? The question remains: if we have no credible substantiation that someone is a terrorist/illegal enemy combatant/actively hostile towards the US, can we hold them indefinitely on the basis that a few others that were similarly situated committed acts of terrorism after their release?

# posted by

Unknown : 11:43 PM

# posted by

karlG : 11:45 PM

Well, I for one have doubts about Maj. Rotunda's credibility.

She says "The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them."

I believe this is highly misleading, given that evidently the goverment rarely if ever uses witnesses to make its case in the CSRTs. (see http://www.brennancenter.org/page/-/d/download_file_47036.pdf at p. 15). How many such cross-examinations did she observe, I wonder?

And the ability to call witnesses? How many witnesses were called by detainees, and what assistance did they receive in getting them to GTMO?

# posted by

Steve : 12:04 AM

"When given the choice between believing an Army officer and a probable al Qaeda trained as all soldiers are to lie about their status, I will give the benefit of the doubt to the the officer."

Lisa's bro seems to be a believer in rank having privilege. Why not? Who is more rank than Lisa's bro. Lisa'a bro also seems to be suggesting that U.S. soldiers may be trained "to lie about their status" as all soldiers, according to him, are so trained. Yes, rank may have its privilege, but keep the AirWick handy.

# posted by

Shag from Brookline : 4:39 AM

Not for the first time, Neocon Bart, posts the same thing on two different threads.

So, I would just point out that the "expert" military prosecutor upon whose opinion he relies seems to be rather less of an expert than he asserts and not exactly ever on the "front lines".

The lady in question is the wife of Professor Ronald Rotunda of George Mason University, now a GW Bush nominee to some commission or other. She was also at George Mason, but apparently resigned in circumstances which were less than happy according to an issue of:
The Docket.

She now has her own website, Kyndra Rotunda, Esquire and Author where she gives this summary of her expertise:-

“Rotunda is very familiar with the law that protects troops, and their families. Her expertise includes the Service Member Civil Relief Act (SCRA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Uniformed Services Former Spouses Protection Act (USFSPA), and the Traumatic Service Group Life Insurance (TSGLI) program. She is also familiar with military administrative and medical law. Rotunda has helped countless military families and troops with civil legal disputes including landlord tenant disputes, negotiating cell phone contract disputes, and various consumer protection matters.”

That does not exactly sound like a prosecutorial specialisation.

Notwithstanding this background, she was, apparently, assigned to GITMO as a prosecutor and she is now promoting a book on the subject, “Honor Bound - Inside the Guantanamo Trials” with the assistance of the Republican National Lawyers’ Association.

I query how a prosecutor can write anything meaningful about trials which have not happened yet, so it seems that she is writing about the combat status review procedures – which the Supreme Court expressly found wanting and on which the military prosecutors have now asked the DC Circuit for time and permission substantially to amend before they are judicially reviewed.

Major Mrs Rotunda USA (Reserves), Esquire and Author asserts:

”The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process.”

Goody, goody gum-drops!

Major Rotunda, was of course not the only GITMO JAG Reserve officer who was assigned to duty at GITMO. There was also Professor David Frakt who was an active duty JAG officer for over 9 years before returning to the teaching of law. The closing statement he made in a real CSRT case is informative:
Major David J. R. Frakt's Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad a then 17 year old detained on the basis of evidence allegedly obtained by torture in Afghanistan.

The closing statement also has something to say about GITMO:-

“The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment.

Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days.

While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.”

Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia.

The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives.

Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

So why is Major Mrs Rotunda USA (Reserves), Esquire and Author suggesting that all was honour and justice, sweetness and light in the prosecution process in GITMO? Who benefits from this “apologia” ?

Unfortunately for this lady Esquire and Author it seems that the truth may now come out and the public will learn that beneath the Hollywood-style image of a clean and fresh Clairol-tinted image of "Justice at GITMO", there was a battered old hag, so riddled with fatal disease that the make-up artists (of whom Mrs Rotunda is surely one) had to begin the process with a foundation composed of liberal applications of Polyfilla.

# posted by

Mourad : 5:41 AM

Mourad's sound advice to Lisa's bro, reading between the lines, seems to be:

"LIE DOWN WITH DOGS AND GET UP WITH FLEAS."

# posted by

Shag from Brookline : 6:16 AM

steve:

Major Rotunda does not claim that the military is granting captures full blown trials. Rather, her point is that the military is providing far more due process than the brief status hearing which is required by the GCs.

# posted by

Bart DePalma : 8:15 AM

mourad:

Once again, you appear to be reduced to offering red herrings - Maj. Rotunda's husband, her specialties as a now civilian lawyer or Maj. Frakt's unrelated closing argument. Indeed, the Maj. Frakt's closing actually confirms Maj. Rotunda's point about the extent of due process provided by the military for the captures.

Then there is the old guilt by association fallacy of suggesting that Maj. Rotunda might be a :::gasp::: Republican. As I noted in the thread below, it would be surprising if Maj. Rotunda was not a Republican given that around 80% of the military votes for the party of the military. Given the Dem penchant for denigrating the service and honesty of military members displayed here, it is instead surprising when a military member not seeking political favor ever votes Dem.

# posted by

Bart DePalma : 8:39 AM

The thing that's really funny here is that the government has announced that there is one task that is truly beyond its abilities: it can't assemble the record on review as ordered in Bismullah. That is, it can't do it's part in the sham procedure touted by the Chief Justice as the latest and greatest.

No matter: they've relieved the government of having to do so (with yesterday's GVR), at the very moment the government was asking for every one of the cases to be suspended.

# posted by

CharleyCarp : 9:28 AM

Maj. Rotunda would win some major credibility if she could name a prisoner who was allowed to cross examine an adverse witness.

# posted by

CharleyCarp : 9:30 AM

In the CSRTs I've read, by the way, the prisoners called for witnesses -- some in US custody -- but none were ever allowed to testify.

But then none of those were captured on a battlefield, so the comparison with GC field procedure is a little misleading.

# posted by

CharleyCarp : 9:35 AM

As we can see from Mourad's piece, Maj Rotunda offers a considerably less impressive resume than we were at first told she had. Sorry to say this, but a Bush Administration defender, in my book and in the view of many millions of other skeptical Americans, has a very, very steep hill to climb when they want to establish themselves as credible witnesses. It's really awful that a terrorist suspect has more presumptive credibility than an American military officer does, but I think we all remember when attractive young women had more credibility than the President of the US did. Paula Jones, Monica Lewinsky, etc., vs Bill Clinton.
My point about the Al-Hurra Network was that the Bush Administration placed a person in charge of that network who was listening to the network all day and, as he didn't speak Arabic, didn't understand what was being said. My immediate suspicion, which appears confirmed, was that this Maj Rotunda wasn't terribly credible, either.

# posted by

Rich Gardner : 9:49 AM

Bart-

My point was simply that Maj. Rotunda authored an Op-Ed piece in which she touted detainees' ability to call and cross-examine witnesses. The evidence I am aware of strongly suggests that these purported rights are, as a practical matter, essentially unavailable. This, in my view, makes her newspaper piece dishonest.

I would be pleased to hear any response you may have to the substance of this comment.

As for denigrating the honesty of service members (I have not denigrated anyone's service), I call them as I see them. Just like the rest of us, some service members are more honest than others.

# posted by

Steve : 10:28 AM

My dear loathsome spotted reptile, Bart:

Firstly, I do not agree with your thesis that any of the detainees are necessarily prisoners of war, or unlawful combatants, or anything else. At present they are purely and simply persons who have been detained at the behest of your President.

Given the circumstances in which many were apprehended, the cursory form of enquiry under the kangaroo-style CRST procedures is not “due process” by any generally accepted definition of that term and well you should know it. If you do not, then you are no lawyer.

What Professor Laft’s address principally exposes is the inhuman and degrading treatment detainees at Guantanamo Bay received at the hands of their jailers. Now you tell me, are you saying that the Prosecutor’s Office at Guantanamo Bay was not fully aware of these very grave allegations made by Counsel of some considerable distinction?

On this blog I have made clear, time after time, that various professionals in the JAG Corps of the different services have behaved as I would have expected honourable officers to behave, none better than the Brigadier General and two Rear Admirals who filed this 2004 brief in Rasul –v- Bush:-
Supreme Court Amicus Brief

Or that of the National Institute of Military Justice filed in the Boumediene case.
NIMJ Amicus Brief

Or that of Colonel Davis recently on this very blog. Hardly a "loony leftie", but outraged by the conduct he encountered as Prosecutor - and rightly so.

As the testimony in the recent Congressional hearings made clear, all this came about because the seasoned impartial and professional advice of the service lawyers in the Pentagon was discarded and discounted in favour of the views of a collection of “loathsome spotted reptile” lawyers of the Neoconservative persuasion.

It seems that loathsome spotted reptiles, like birds of a feather, stick together because here you are, still seeking to defend the indefensible.

But being the shill you are for the pro-torture lobby, you are of course anxious to see that the detainees do not get any “due process”. Well, I’m sorry, the Supreme Court was against you on that.

Now the Supreme Court has spoken, the “magnum opus” your lady Esquire and Author friend seems to me to merit transposition to the booksellers' fiction shelves and prompt remaindering.

I note what you say about the voting propensities of the US military. I know not where you get your figures from, nor how accurate they may be. I do, however, permit myself to wonder whether the percentages will remain the same this November.

As for you, to paraphrase Peter Cook: ”People may choose, if they wish, to believe the transparent tissue of odious lies which stream on and on from your disgusting, greedy, slavering lips. That is entirely a matter for them.”.

For my part I choose to disbelieve.

BTW: any progress on working out the approximate quantum of damages per person for unlawful arrest and wrongful detention in Guantanamo Bay for six years (a) with torture or (b) with inhuman and degrading treatment thrown in ?

# posted by

Mourad : 10:40 AM

Steve:

Major Rotunda is correct that the detainee's representative can cross examine witnesses called by the military. The privilege (not constitutional right) to cross examination the military has extended to foreign detainees which is not required by the GCs does not extend to a prohibition of hearsay evidence on confrontation grounds. However, the detainees' representatives can and have successfully challenged the reliability of hearsay evidence.

Folks, status hearings have traditionally been very brief affairs in front of a battlefield officer where the capturing soldiers tell the officer what they know, the officer asks the capture for his version of events and then the officer makes a determination. The United States has never previously extended anything close to the due process extended al Qaeda and the Taliban.

# posted by

Bart DePalma : 10:48 AM

mourad:

For my part I choose to disbelieve.

You could have saved us the time plowing through all of the logical fallacies and simply posted this admission.

I assure you that this is not a particularly effective technique to cross examine evidence and reveals a disturbing lack of intellectual curiosity for an attorney. However, I suppose it is more comfortable to avoid having one's preconceptions challenged by remaining in a state of willful ignorance.

# posted by

Bart DePalma : 11:02 AM

And we note, in passing, a classic case of the psychological phenomenon known as projection in Bart's reply to you, Mourad.

# posted by

C2H50H : 11:39 AM

Bart,

I note that you have not responded to my question, which, I believe goes to one of the core issues involved:

If we don't have evidence to substantiate an indefinite detention, are we justified in nevertheless keeping someone locked away at GTMO because other similarly situated individuals committed acts of terrorism after their release?

Stated otherwise, are we justified in holding someone indefinitely, irrespective of evidence, on the grounds that doing so is the only way to be sure that those people do not attack US interests?

Assuming for a second that your answer is no, why, exactly are against habeus review (other than the obvious that Bush is against it)? If the CSRT's are already occurring and are already making mistakes, why is granting habeus any more problemmatic? Why are federal judges more incompetent in determining whether someone is being detained appropriately than the military?

# posted by

Unknown : 12:02 PM

mike said...

If we don't have evidence to substantiate an indefinite detention, are we justified in nevertheless keeping someone locked away at GTMO because other similarly situated individuals committed acts of terrorism after their release?

If we do not have any evidence to substantiate a prisoner's status as a member of al Qaeda or its allies, than we should not detain the prisoner as a POW for the duration of the conflict - period.

There is no proof that we are detaining anyone without evidence, though. Rather, the issue is what constitutes sufficient evidence to detain.

Assuming for a second that your answer is no, why, exactly are against habeus review?

1) The civilian courts have no military experience and are incompetent to make findings on the status of enemy combatants trained to conceal their identities. At best, it will take hours of testimony by military intelligence officers to educate the civilian judges on the facts of life on the ground in wartime just to get them close to the level already attained by the military judges who have been running status hearings for years now.

2) The civilian courts are likely to apply more permissive civilian criminal punishment standards to the remedial detention of POWs.

In criminal law, detention is meant to punish a criminal for a past act.

In warfare, detention is not to punish the POW for past acts, but rather serves the remedial purpose of preventing the POW from returning to the battlefield to kill in the future.

The criminal justice paradigm is that it is better to decline to punish ten guilty men than to wrongfully imprison one innocent man. This lopsided calculus is justified because the downside of releasing a civilian criminal is not great.

However, the criminal justice paradigm does not work in the case of prisoners of war because the ten men being released are duty bound to return to the battlefield and kill others. Thus, the balance needs to be tilted back towards detention because the prevention of future deaths is more important that mistakenly detaining some innocents for a few years.

# posted by

Bart DePalma : 12:45 PM

Bart De Palma wrote:-

“You could have saved us the time plowing through all of the logical fallacies and simply posted this admission.

I assure that this is not a particularly effective technique to cross examine evidence and reveals a disturbing lack of intellectual curiosity for an attorney. However, I suppose it is more comfortable to avoid having one's preconceptions challenged by remaining in a state of willful [sic] ignorance.

My dear, loathsome spotted reptile, Bart:

Which statement of mine are you saying contains a “logical fallacy” ?

Apart from the observation that one does not “cross-examine evidence”, one cross-examines witnesses, about the evidence they have given on direct or (these days, in English civil trials) by way of written witness statement, I can only say that I would dearly love to have you on the stand one day.

I think I expressed the view on another thread that in general lawyers make rotten witnesses because they try to think past the question to the possible consequences of the answer – and this makes even honest lawyers look shifty. Your intellectual dishonesty should make you a piece of cake.

The only problem is that, given the nature of your practice, I can’t really imagine you ever being involved in a matter serious enough to bring you to London to warrant my attention and billing rate.

However, those who read your rubbish might enjoy this by way of light relief:-

Magistrates’ Court – somewhere in Inner London – Hearing a Road Traffic Offences List

Police Officer: “I swear by Almighty God, that the evidence I shall give to this Court will be the truth, the whole truth and nothing but the truth. Police Constable X attached to Y Division, Metropolitan Police”

Bored Stipendiary Magistrate: “Yes, Officer, and I suppose we will be hearing in due course that that was the first lie you’ve told!”

PS Have you worked out the likely quantum of damages yet?

# posted by

Mourad : 12:50 PM

As I noted in the thread below, it would be surprising if Maj. Rotunda was not a Republican given that around 80% of the military votes for the party of the military.

Old data! This statement makes it uber-obvious you were an officer when you did your stint in Shield/Storm!

For some more up-to-date numbers, try this poll by the Military Times.

For the hyperlinkaphobes: In the three previous polls, nearly 60 percent of the respondents identi fied themselves as Republicans, which is about double the popula tion as a whole. But in this year’s poll, only 46 percent of the military respondents said they were Republicans.

That doesn't mean that 54% are Democrats, obviously, (the number is ~16% according to the poll) but it surely means that the 80% number is a statistical survival from a different age and/or military class.

Back in the 1992 election, I had the honor of having the Sgt. Maj. of the Marine Corps all but tell us to vote Republican at a massive muster. It was all about keeping the gays out of the military back then, if you recall. Most of our officers toed the line, as well--there's no question that the institution lends itself to supporting conservatives who like to spend lots of money on the military. (Interesting sidenote: one A-6 Intruder, in unit cost alone, could pay for the federal government's budget for gifted and talented education seven times over.)

I remember the cheers in the barracks when Clinton was elected--I was on duty that night, and had to break up drunken election parties. I myself had crossed party lines to vote for Clinton, and was rather happy with the results. (Indeed, I made the transition permanently). Certainly there were glum faces, but definitely not 80% of the troops.

I wonder how much the 80% "statistic" is a desperate attempt to create a self-fulfilling prophecy?

# posted by

PMS_CC : 12:52 PM

Bart says:

1) The civilian courts have no military experience and are incompetent to make findings on the status of enemy combatants trained to conceal their identities. At best, it will take hours of testimony by military intelligence officers to educate the civilian judges on the facts of life on the ground in wartime just to get them close to the level already attained by the military judges who have been running status hearings for years now.

2) The civilian courts are likely to apply more permissive civilian criminal punishment standards to the remedial detention of POWs.

To borrow an Arne-ism--objection, assumes facts not in evidence. Where does the Boumediene opinion discuss having to use "more permissive" civilian criminal standards? The idea that it will take "hours" of testimony to educate a judge on the "realities" of war is laughable, especially when someone is not caught on the battlefield.

You think a military background is needed to understand "this individual was caught with an AK-47and was witnessed firing said weapon at US troops? Or that a judge can't understand if someone was apprehended with missiles in his trunk? Or specs for EID's?

And if the military is releasing people they shouldn't, what grounds to we have to place such tremendous faith in them?

# posted by

Unknown : 1:54 PM

My own experience with Clinton's election in 1992 while I was in the military was that a shipmate of mine expressed dismay that (The elder) Bush had lost. I asked her: "What has Bush done since the Gulf War?"
She fell quiet with that and didn't say another word on the subject.

# posted by

Rich Gardner : 1:58 PM

PMS:

I discussed how the military votes, not with which party they self identify. The Military Times poll results are not all that surprising:

46 percent of the military respondents said they were Republicans. However, there was not a big gain in those identifying themselves as Democrats — a figure that consistently hovers around 16 percent. The big gain came among people who said they were independents.

The military prides itself on remaining non-partisan and pushes its officers and to a lesser extent its troops not to openly support a party.

However, both parties are well aware of how the troops vote. This is why the Dem Congress is currently opposing a GOP bill accelerating shipping of ballots from war zones to ensure they are submitted within local time limits.

# posted by

Bart DePalma : 2:00 PM

Folks, status hearings have traditionally been very brief affairs in front of a battlefield officer where the capturing soldiers tell the officer what they know, the officer asks the capture for his version of events and then the officer makes a determination. The United States has never previously extended anything close to the due process extended al Qaeda and the Taliban.

Um, yes, status hearing of this sort usually involve soldiers taken in actual combat, so status is straightforward. Most GTMO detainees were taken under far more ambiguous circumstances. It is not unreasonable, once the exigencies of combat no longer apply, it is not unreasonable to ask for something a little more thorough than that to determine whether they are, in fact, Al-Qaeda/Taliban or not.

Furthermore, captured soldiers are not usually disappeared into a legal black hole where -- well, see Mourad's post at 5:41. When abuses of this type take place, it is a strong sign that some sort of outside authority needs to intervene and impose some sort of accountability.

# posted by

Essayist-Laywer : 2:22 PM

Dear Mike, Bart gave you some answers - of a kind.

The logical fallacy in Bart’s argument is that it begins with the proposition that those detained were lawfully detained as combatants on a battlefield.

Unfortunately, quite a number were not detained on any battlefield, but elsewhere. So the first premise is not fulfilled in a number of cases.

These persons were very arguably unlawfully detained. For example in the particular case of Bomediene, I recollect that he was detained in Bosnia, investigated and ordered by a court to be released and in defiance of a specific order of the Bosnian Court spirited out of the country illegally. In other words kidnapped. That makes his kidnappers and those who ordered it criminally liable if not in the USA then certainly in Bosnia.

Similar circumstances apply in the cases of other detainees.

So the logic of an argument that a civilian judge, should be any less well placed to decide the legality of the detention of a detainee taken off the field of battle than a collection of non-expert army officers rather escapes me.

Secondly, in the case of peace enforcement operations under UN auspices, such as are now taking place in both Afghanistan and Iraq, the UN customarily includes in the authorising resolutions a process of administrative internment on the basis that if the situation is insecure enough to require the presence of the soldiery to keep the peace, they might also need to detain the hot-heads until things die down.

In the case of Iraq, for example, British (and presumably US) forces have UN authority to detain people humanely for the duration of the emergency, subject to being satisfied on six monthly review that they represent a severe danger to the peace and security of Iraq. That can go on for as long as the UN mandate for Iraq lasts. Thus the English Court of Appeal on a habeas application by a person with dual British-Iraqi citizenship, concluded that he was lawfully interned, based on the evidence from the military that he was taken into custody in Iraq under that mandate.

There seems to be no good reason why the need to detain persons in-country for the reason of securing peace in Afghanistan or Iraq should not be recognised by a reviewing habeas Court in the USA. So why should there be any problem with that degree of review?

But why should the USA have the power to arrogate to itself the decision that a person in Bosnia or Italy or the Gambia should be illegally brought to the USA to be detained there?

Suppose the British Government decided that some person, say Bart De Palma, represented a threat to the peace and security of the United Kingdom because he was an advocate of Neoconservatism (a philosophy at least as much a threat to international peace as many others) and the Secret Service arranged for our local James Bond types to kidnap him in Colorado and spirit him to some dependency (say, the Island of Sark) and detain him there without trial on the footing of an administrative certificate. Do you not imagine that Bart once he had come round from the sedation, would be yelling ‘Habeas corpus’ and demanding to telephone the US Consul. Do you not suppose that the US government would not insist he be given “due process” before a habeas review court?

Well, perhaps not, in Bart’s case, but in the case of someone more normal – of course it would. And why should the review process not be before a proper superior court, trained to evaluate evidence?

Then there are people to be charged with the commission of serious criminal offences. Why should these not be charged, and pursued in the ordinary way before the ordinary Courts – civil or military as the case may be? The only reason for advocating some other process is that the evidence might not pass muster applying proper standards – and that is not a good reason.

Finally, there is a possible category of persons against whom there is no evidence of wrong doing but where there is a suspicion that they might be so dangerous as to represent a threat. At present there is no legal basis in US law for detaining such persons. There may one day have to be such legislation, but that would be a matter for the Congress, not the President acting alone, since it would involve the suspension of habeas corpus. And even then, there might still have to be some review to ascertain whether the opinion the executive formed in any particular case was reached on reasonable grounds.

Bart is bitching and whining, because the Supreme Court has rightly decided that the President is not above the law and does not have the power to detain any person outside the law without judicial review of the decision.

That upsets him, but then 'loathsome spotted reptiles' don't always think like people like us.

PS - Sark is a pretty strange jurisdiction - see Re Sark

# posted by

Mourad : 2:24 PM

mike:

Let me give you a hypothetical:

"Al Qaeda Khalid" is a Saudi citizen who attended a madrassa in Pakistan and then was captured in Afghanistan by our Afghan Northern Alliance militia allies.

"Al Qaeda Khalid" was captured in the company of two Taliban in a car with firearms and explosives in the trunk.

The Afghans turned "Al Qaeda Khalid" over to the SF or CIA and provided an oral statement which was documented by the Americans.

The capturing Afghans did not collect physical evidence and are not available to testify in an American court because they went back home to their villages after the liberation.

"Al Qaeda Khalid" gives the Americans a cover story that he came to Afghanistan as part of a charity mission to give relief to Afghan civilians injured by American bombs and he denies any ties to the Taliban or al Qaeda.

Eventually, "Al Qaeda Khalid" makes various admissions under interrogation about training with al Qaeda in Afghanistan.

As he has been trained, "Al Qaeda Khalid" tells the status hearing board that he was tortured by the military and he recants everything he admitted.

If this were a civilian criminal case, the statements by the capturing Afghans would be inadmissible hearsay and the admissions would be inadmissible as coerced. The judge would ask why the weapons were not preserved as evidence. All that would be left is the cover story and a ticket back to the battlefield.

However, under the law of war, the military is allowed to consider the facts that the Saudis in Afghanistan were overwhelmingly al Qaeda, the usual route for al Qaeda to travel to Pakistan was via the radical madrases in Pakistan, that Saudis in cars with armed Taliban are even more likely to al Qaeda and the military knows that they did not torture "Al Qaeda Khalid." Common sense would dictate that Khalid is indeed al Qaeda.

The question is whether a civilian judge can put aside his or her years of experience applying criminal justice burdens and instead apply his or her common sense after being briefed by military intelligence on how al Qaeda and the Taliban operates and the need to keep them from returning to the battlefield to resume killing.

I am less than confident the civilian courts can make that transition given the utter credulity of many lawyers and law professors here in accepting without question even the most incredible cover stories provided by the detainees.

# posted by

Bart DePalma : 2:29 PM

enlightened layperson said...

Folks, status hearings have traditionally been very brief affairs in front of a battlefield officer where the capturing soldiers tell the officer what they know, the officer asks the capture for his version of events and then the officer makes a determination. The United States has never previously extended anything close to the due process extended al Qaeda and the Taliban.

Um, yes, status hearing of this sort usually involve soldiers taken in actual combat, so status is straightforward.

Not really. Status hearings are only given if there is some doubt as the combatant status of the capture. The United States performed them for commandoes, irregular forces and spies since at least the Civil War up through Vietnam.

# posted by

Bart DePalma : 2:34 PM

mourad:

1) The battlefield is anywhere the enemy combatant is at the time. There is no "get out of POW camp for free" card if one is captured in a location without an active firefight going on.

2) Our forces are at war pursuant to the constitutional authority of our Congress, not on a peace keeping mission for the UN looking for "hotheads." It may have escaped you, but both our and your troops are in real life, people dying, shooting wars in Iraq and Afghanistan.

# posted by

Bart DePalma : 2:42 PM

Bart,

Interesting hypothetical, which of course, answers none of my questions, to say nothing of the fact that you nor I have any idea whether your hypothetical even comes close to approximating reality.

But here's a counter-hypothetical:

"Innocent Ibrahim" is an Afghan goatherder and a devout Muslim. One day, he takes his goats through a village patrolled by US forces.

"Innocent Ibrahim" passes by a mosque at prayer time. He knows little about the mosque, but it is prayer time, so he enters to pray. There is a small group of individuals apparently praying nearby. Suddenly, SF Forces enter from all sides, detaining all within the mosque, including "Innocent Ibrahim", who protests his innocence.

Unbeknownst to "Innocent Ibrahim", this mosque is affiliated with a radical madrassa. He is promptly transported to GTMO where he explains that he was merely passing through.

The military, relying on "conventional wisdom", doesn't believe "Innocent Ibrahim" and proceeds to torture him, during which he admits to anything and everything to make the process stop.

He appeals his detention. At the CSRT, he is denied the opprtunity to call witnesses on his behalf, all document relating to his capture are classified and unavailable for review; no meaingful cross examination is permitted.

The hearing officer presiding over the CSRT, relying on "common sense", finds his detention is "lawful" and orders him to be detained indefinitely.

Which would be perfectly acceptable under your theory.

You state:

"The question is whether a civilian judge can put aside his or her years of experience applying criminal justice burdens and instead apply his or her common sense after being briefed by military intelligence on how al Qaeda and the Taliban operates and the need to keep them from returning to the battlefield to resume killing.

I am less than confident the civilian courts can make that transition given the utter credulity of many lawyers and law professors here in accepting without question even the most incredible cover stories provided by the detainees."

And apparently, the military has the exact same "credulity problem" based on the allegations that significant numbers of individuals are being mistakenly released, so once again, why, other than partisanship, would we continue to place such great faith in the "common sense" of the military? And this is not to denigrate anyone, just merely highlight the substantial holes in the arguments.

# posted by

Unknown : 3:09 PM

as an aside .. i believe the politicizing of the military is one of the greatest sins of the modern american political right ..

during twelve years of active service with the USMC ending in the mid-70's i served with many fine officers without ever learning either their political or religious preferences .. such topics .. in a professional-duty setting were considered by all to be improper .. we were scrupously trained and advised to avoid all trappings of either politics or religion ..

the officer corps of old .. prior to the inception of the all-volunteer-forces was apolitical and areligious ..

the modern attempts at politication of the armed forces ..as if it were the private domain of conservatives .. imo .. a great danger to the services themselves and does a disservice to the military-at-large as it impinges on the professionalism of the members and erects a social structure which is anathema to the keeping of good order and discipline .. it creates as a by product the us-vs.-them mindset which is detrimental to the cohesion of the force...

we did a much better job of preventing this in the old days ..imo .. when the forces were drawn from a broad cross-section of the population by the military draft .. but the modern conception of the military as a private conservative force is a myth.. imo ..

the attempts to lay political claim to ownership of the armed forces by one camp or another harms the underlying unity required of a fighting force in the field... and needs to stop.

imo .. when serving military officers wear their politics on their sleeves they compromise their essential integrity .. conservatism and liberalism are both compatible with service to the fundamentals of the constitution ..

as a further aside .. as the modern armed forces are the single most integrated .. colorblind .. ethnically neutral .. merit-only liberal-based closed-society on the face of the planet ..

one can't help but wonder why modern conservatives .. who can't seem to keep themselves from dividing the world into opposing camps of us-vs.-them in almost all areas of endeavor would be attracted to service in such a force based on so contrary a philosophy to their fundamental mental and political make up ..

# posted by

Jkat : 3:13 PM

Mike, I'm pretty sure there is no such thing as an innocent Ibrahim in Baghdad Bart's world.

# posted by

Bartbuster : 3:22 PM

mike said...

Interesting hypothetical, which of course, answers none of my questions, to say nothing of the fact that you nor I have any idea whether your hypothetical even comes close to approximating reality

Actually, I borrowed elements of my hypo from the various unclassified portions of detainee status hearings. You can google "CSRT transcripts" and find these documents easily.

But here's a counter-hypothetical...

If you can find a detainee who was captured and held simply for attending a mosque, we can talk about your hypo.

# posted by

Bart DePalma : 3:29 PM

Neocon Bart said:-

1) The battlefield is anywhere the enemy combatant is at the time. There is no "get out of POW camp for free" card if one is captured in a location without an active firefight going on.

2) Our forces are at war pursuant to the constitutional authority of our Congress, not on a peace keeping mission for the UN looking for "hotheads." It may have escaped you, but both our and your troops are in real life, people dying, shooting wars in Iraq and Afghanistan.

Our troops are in Afghanistan as part of ISAF pursuant to a UN Resolution which gives them their authority to be there. That is the case for all other ISAF forces.

Blair having made the mistake of allying our country to the unlawful invasion of Iraq, that war is now over, and legality has been re-established by a UN resolution.

Since Afghanistan and Iraq both now have sovereign governments which both our countries recognise, there is no state of war with either country.

Unless of course Congress has just declared war on Afghanistan and Iraq - but I think that might have been on the news, don't you ?

Failing that, there is no state of war in either country - assistance is being provided to the sovereign governments of two friendly states.

I've always thought you must be a rotten lawyer.

Q.E.D.

# posted by

Mourad : 3:30 PM

jkat:

It may surprise you that I am also concerned that the military has almost become the sole preserve of conservatives and the GOP. Indeed, we are developing a professional military caste as the military more and more obtains its volunteers from families like mine while tens of thousands of other families do not even know a military member nevertheless have members of their family serving in the military.

This is an exceedingly unhealthy development for a Republic and contributed to the transition of Rome from a Republic to an Empire.

However, I would suggest that much of this problem arises from the fact that the left largely checked out of military service after Vietnam and engages in almost reflexive attacks on the integrity and accomplishments of the military as a matter of course.

Marine, read through the posts just on this thread. With the exception of my posts and those of a couple others, they are almost non-stop attacks on the integrity and work of the military. How do you expect your fellow Marines, my fellow soldiers and the sailors and air force in my family to react to this bile? By voting for those attacking them?

Prior to Vietnam, service in the military was diverse and our political differences stopped at the shore in order to provide nearly universal support for the troops in harm's way.

No longer.

Sen. Durbin compared our troops to Nazis and Soviets.

Sen. Kerry claimed our troops were terrorizing Iraqi women and children.

Rep. Murtha called the Haditha Marines cold blooded murderers without evidence and refuses to apologize to the 7 of 8 who have been acquitted.

Sen. Reid called the war in which our troops were fighting "lost" and refuses to admit to the troops who have won it that he was wrong.

I would suggest that until the left starts joining the military again and stops its slanders of the armed forces, the fact that the military has become the preserve of conservatives is unlikely to change.

Semper fi.

# posted by

Bart DePalma : 3:53 PM

read through the posts just on this thread. With the exception of my posts and those of a couple others, they are almost non-stop attacks on the integrity and work of the military

That is a complete load of crap. There are non-stop attacks on YOU, not the military. And there is good reason for that. YOU are an asshole.

# posted by

Bartbuster : 4:06 PM

the left largely checked out of military service after Vietnam

You might want to cite some evidence for such an assertion.

Otherwise we might get the idea that the
evidence suggests otherwise.

# posted by

jpk : 4:09 PM

"Bart" DeDicta:

In criminal law, detention is meant to punish a criminal for a past act.

In warfare, detention is not to punish the POW for past acts, but rather serves the remedial purpose of preventing the POW from returning to the battlefield to kill in the future.

The criminal justice paradigm is that it is better to decline to punish ten guilty men than to wrongfully imprison one innocent man. This lopsided calculus is justified because the downside of releasing a civilian criminal is not great.

Which is why it's so 'useful' to have a preznit declare wars without end on nouns, said nouns providing universal 'jurisdiction' for the Yoo Ess of Aye to police the whole freakin' world (which they have done). I notice the courts told the maladministration to FOAD on the detention of the Uighurs. The Boumediene petitioners as well were supposedly grabbed for alleged Terra-ism far from any battlefield the U.S. is in (and in fact on Bosnian sovereign territory, where the Bosnian courts had ordered them released).

"Bart"'s idea that we can grab anyone anywhere and render them to Gitmo or worse, on no competent evidence, on the preznit's say-so, is so unspeakably un-American as to be vomit-inducing ... but that's what comes of RWA thinking.

Cheers,

# posted by

Arne Langsetmo : 4:17 PM

Wow, Bart...you mean it might take WHOLE HOURS to get judges up to speed on issues?

Where do you practice where every frickin' judge in your jurisdiction is omnipotent?

It's called the bathtub theory, if you ever clerked for the Feds, which I have. They deal with incredibly complex cases and legal concepts and it requires a lot of thought and very little reflexivity. In other words, you fill the mental bathtub with as much information as humanly possibly to 'get up to speed', make informed decisions (remember, that's the whole point of experts...to aid the trier of fact), then move along.

That's not a travesty; that's the legal system.

And, FYI, Semper Fi, Bart. I say that not to demean our Corps, but to absolutely, fundamentally refute your ridiculous notion that somehow people of liberal convictions, such as myself (how do you think I paid for college), cannot love and serve our nation. See e.g., Pres. Kennedy (D); Sen. Kerry (D-MA); Sen. Gore (D-Tenn); Rep. Murtha (D-PA), and to you neocons' EVER-FUCKING-DISGRACE, Sen. Max Cleland (D-GA).

# posted by

Der Schatten : 4:23 PM

jpk:

What part of "the left largely checked out of military service after Vietnam" did you miss? Look at the dates of service of the pols to which you linked.

There are libs who still volunteer to serve. Some post here. But they are far and few between.

# posted by

Bart DePalma : 4:25 PM

You parsed your hypothetical together from more than one CSRT hearing? So your hypothetical has about as much relation to reality as movies "inspired by real events"?

# posted by

Unknown : 4:31 PM

karl:

Scalia ends up finding that the truth is irrelevant.

IIRC, Scalia has expressed similar inclinations in habeas hearings WRT "actual innocence", etc. As long as you got "due process" and there's no obvious (read: "glaring") error in your conviction, actual proof of innocence need not enter the equation. You are entitled to just a 'fair trial', not to release if you actually are innocent. To allow that would play havoc with the court system (and DA offices across the country), you see....

Cheers,

# posted by

Arne Langsetmo : 4:32 PM

Selective scotoma:

["Bart" DePalma]: Indeed, the Maj. Frakt's closing actually confirms Maj. Rotunda's point about the extent of due process provided by the military for the captures.

[Maj. Frakt]: The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

So, "Bart" DeTorquemada needs to amend his statement thusly: "Maj. Frakt's closing actually confirms Maj. Rotunda's point about the extent of sheer, unabashed, unburnished, pointless torture provided by the military for the captures."

Cheers,

# posted by

Arne Langsetmo : 4:44 PM

Unfortunately, Bart's world-view is curiously divorced from relaity.

Madrassas as institutions of learning have existed in the Muslim world since about the 11th Century.

Historically, Muslim communities have always regarded it as their duty to provide for the education of the young. As soon as a mosque was built it would have a madrassa ("school") attached which would meet in the mosque itself or in rooms within the precincts of the mosque. Teachers would be appointed and paid by the community.

The madrassas attached to the great mosques in urban centres became the great universities, in villages they fulfilled the function of the local school. Pious Muslims who had the means would establish a trust (a "wakf") which would often have as its object the advancement of education. Islamic schools and universities, particularly those in Muslim Andalusia in modern Spain, preserved and developed for the use of the western European renaissance the culture, philosophy and science of the Hellenistic world.

That glorious past and tradition notwithstanding, the Madrassas or Koranic Schools of Pakistan, and in particular of the North West Frontier and the Federally Administered Tribal Areas, pose a particular problem in the context of islamist groups and terrorism.

The historical context leading up to the foundation of Pakistan as a Muslim state at the demise of the British raj included the following factors:-

the desperate conflict within the new state of Pakistan between those who wished a western style democracy and those who wished an islamist state;

the grinding poverty of the masses and the wealth of the few;

the troubled constitutional history of the state and the special role of the army.

In the Indian sub-continent, the Muslims (in large parts of the country in a minority) held onto their faith and at partition endured incredible hardships to regroup and found Pakistan as a Muslim state.

In the grinding poverty of the villages of the Northwest Frontier and Tribal areas, the mosque, the mullahs and the teachers have been the only source of any education at all and the social structures have been akin to those of the European Middle Ages. It is worth pointing out that insofar as there is any education at all among the tribes in Afghanistan, it tends to consist of sending the sons to residential Madrassas in the FATA of Pakistan.

This is part of a print out of World Bank Seminar on the Madrassa problem in Pakistan from April 2002:-

Professor Mumtaz Ahmad of Hampton University said madrassas have long been centers for classical Islam study, and guardians of Muslim orthodoxy. They are by nature conservative since they were established to preserve traditions. The ullamahs, who manage the madrassas, are concerned about their institution's integrity within the religious community. They insure the madrassas provide classical Islamic teachings, preserve family law and religious ritual, and disseminate of Islamic sciences.

Professor Ahmad believes the madrassas constitute the core of the cultural-religious complex of Islam in south Asian societies. Estimates of the number range from 6,000 to 10,000 madrassas. The model for the modern madrassas developed in India during the 19th century. The structure of madrassas throughout the region are homogenous in what they teach and text they read. Teachings are divided into two categories: transmitted sciences and rational sciences. Rational sciences, the majority of what is taught, includes logic, philosophy, rhetoric, dialectical reasoning, mathematics, Arabic and Persian grammar and literature, and traditional medicine. Many of the texts are from the 13th and 14th centuries. There are three levels of education. First is elementary where reading the Koran is the major task. The second level looks at selected texts, and the highest level is where the complete curriculum is taught.

The number of students in Pakistan is 600,000, for India it 1.5 million, and in Bangladesh there are 3 million students. They generally come from poor families who cannot send their children to modern schools. For many families, it is the only educational opportunity for their children.

Madrassas are not funded by the state, but rather the community, so the government has little authority over them.

Madrassas traditionally served as an institution that groomed civil servants and judicial officials for governments across the Islamic world. For centuries, the emphasis of the curriculum stressed law. The Indian model shifted this emphasis to theology. Professor Ahmad believes one of most interesting phenomena of madrassas is students don't read the actual text of the Koran. Rather their education emphasizes reading scholarly commentary of the text. He said he has met many ullamahs, considered experts on the Koran, whom have never read the text of the entire Koran. Madrassas produce the religious functionaries that administer ceremonies in the mosques. Madrassas also serve as a mechanism for the poor to move up in social society.

Professor Ahmad said since the 1950's, small businessmen have been increasingly the financial backbone of the madrassas system. Madrassas have also expanded their financial base by moving to industrial cities. Funding sources became internationalized following the Iranian revolution and the invasion of Afghanistan by the Soviet Union.

He said most of the madrassas associated with militancy were established in 1980's. He believes those madrassas associated with terrorism were in fact terrorist camps that used madrassas style education as a cover for their actual activities. He noted the infrastructure created by the Afghan jihad against the Soviets served as the basis for a second jihad in Kashmir. Islamic militancy linked with sectarian strife in the region. Currently, he said, the agenda of Pakistani authorities is to push the madrassas to adhere to their traditional mandate of teaching the Koran.

This is a clipping I have from the Asia Times:-

Medievalism and Pakistan's Madrassas - Nadeem Iqbal - 29 August 2002
To win the favor of heaven, 45-year-old Muhammad Mazhar, a taxi driver, enrolled his youngest son in a religious seminary, or madrassa, and his eldest in a secular school. Today, Mazhar's eldest son, 20, is in the first year of a chartered accountancy course, considered a good career in this South Asian country. His youngest son, 15, is learning the Koran by rote.

By sending at least one male child to religious education, Mazhar is following a rural tradition prevalent among poor families and earning the blessing of Allah. Also, room and board at the madrassa is free, an important consideration. But is Mazhar doing the right thing by his son?

That is a question that has taken on new importance as Pakistan grapples with the meaning of religious identity and education in the aftermath of September 11. Part of that self-examination process has taken the form of a movement aimed at reforming the madrassa tradition of religious education. It is time, say some officials and experts, to improve both the quality of education at madrassas and to encourage more enrollment in the mainstream schools.

But reforming religious education is far from a simple matter. Currently there are some one million to 1.7 million students enrolled in madrassas in Pakistan, most of them between the ages of five to 18 and from poor families. Some students are eager to learn more subjects. Fourteen-year-old Abdul Ghafar, who goes to the Shah Faisal Jamai Islamia madrassa here, says he is studying how to interpret the Koran and use it in everyday problems. But "a student must also be studying English and science", he says.

In fact, for the country's top poet Ahmad Faraz, many madrassas are beyond reform. "These madrassa should be abolished and an option be given to students in the secular schools that whoever wants to get special Islamic education could opt for those subjects," says Faraz, who also heads the National Book Foundation that prepares textbooks. So far, the government's most recent effort, over more than eight months, to make the teaching methods in some 10,000 Islamic schools "market intensive" flopped.

This from Newsweek in 2003:-

War on Terror: Holy War 101 - Ron Moreau, Sami Yousafzai and Zahid Hussein - 1st December 2003

Abdul Bari's school day begins at 4 a.m. The freckle-faced, outgoing 9-year-old, an Afghan poppy farmer's son, wakes up on the tile floor he shares with four dozen other students at the Jamia Uloom Islamia religious academy, in the untamed mountains of Pakistan's tribal areas. After morning prayer services, he fixes tea for the older boys and himself, eating a bit of bread before classes start at daybreak. Students spend most of the day reciting the Qur'an; memorizing every one of its 6,666 verses is the main requirement for graduation. Still, this madrassa is the only formal schooling most of these boys will ever have. So they learn civics from a white-bearded scholar named Amanullah, 65, who teaches them about the Taliban. "There was a real Islamic regime," the old man says. "They fixed 25 years of problems in no time, using Islamic laws."...

Even among senior Bush aides, concern is rising over the mess that festered in Afghanistan while the White House fixated on Iraq. The war's No. 1 target, Osama bin Laden, is still in business. His Taliban friends have regrouped and are doing their best to sabotage the reconstruction. Two weeks ago, in the old Taliban stronghold of Spin Buldak, a new audiotape was released, purportedly of the group's leader, Mullah Mohammad Omar, rallying his followers. "If you claim to be among the faithful, why can't you be ready for sacrifice?" the voice on the tape demands.

Abdul hears such calls to arms incessantly. Hardscrabble madrassas like his, in the north Waziristan town of Mirali, are where many Taliban leaders got their start two decades ago during the CIA's war against the Soviets in Afghanistan. Today, those jihad academies continue to indoctrinate new generations of holy warriors, passionately loyal to the banner of radical Islam and inured to lives of hardship. Such schools pose a grave challenge to the Bush administration's plans for the region. "How do we stop those who are financing the radical madrassa schools?" asked Defense Secretary Donald Rumsfeld in a recently leaked memo. "Is our current situation such that 'the harder we work, the behinder we get?'

More than a year ago Pakistan's leader, Gen. Pervez Musharraf, promised to defang the madrassas. Instead, he formed a political alliance with the schools' radical Islamist supporters against the mainstream secular opposition. "Musharraf talks a lot, but nothing happens," says Maulana Abdul Qadr, principal of the Darul Uloom Zuberia madrassa, near Peshawar.....

Musharraf's job often seems hopeless. Not even the mullahs know how many madrassas Pakistan has. The government's latest guess is 27,000 or more. Many are peaceable institutions wishing only to train devout Muslims, not warriors or terrorists. But others steep their students in the doctrine of holy war and function openly as jihad enlistment centers. Many youngsters take inspiration from older schoolmates. Zahidullah, 31, a grad student in Islamic law at the Bahrul Uloom madrassa in Pakistan's northern mountains, boasts of how many recruits he has gained for the outlawed Kashmiri guerrilla force Harkatul Mujahedin: "Many youths here are anxious to join the jihad when I tell them stories of our heroic Islamic resistance against Indian aggression."

Some schools provide far more than recruitment services, providing safe havens, supply depots and clandestine meeting sites. Last summer, according to Pakistani intelligence sources, a group of senior Taliban leaders secretly gathered to discuss strategy at a madrassa some 20 miles south of Peshawar. The Afghans told their local contacts that Mullah Omar was calling for new recruits to intensify the war against America.

In September Pakistani security forces raided another madrassa in Karachi, hauling in more than a dozen Indonesian and Malaysian students, including Rusman Gunawan, younger brother of the notorious Qaeda lieutenant Hambali. Gunawan remains in custody without charges under Pakistan's antiterror laws.

In recent months, thousands of young Afghan men have swarmed to madrassas just inside Pakistan. In Baluchistan's Chaman district, directly across the border from the Taliban's home province of Kandahar, at least 300 madrassas are filled to bursting. Pakistan's Army has lined the desolate frontier with high earthen berms, concertina-wire fences and watchtowers, but nothing stops the traffic of fighting-age Afghans--in either direction. "There is a constant stream of them," says Hafiz Hameedullah, head of a seminary in the town of Chaman, right on the border. "It's hard to find accommodations for all the newcomers." On the Afghan side, meanwhile, the influx of madrassa students and graduates has helped to produce Taliban battle units as large as 100 fighters, where a year ago the guerrillas were mustering squads of barely a half-dozen men....

Any effort to combat radical teachings is complicated by the fact that Pakistan desperately needs its madrassas. Without them, an estimated 1.5 million young Pakistanis would get no formal education at all. According to a recent analysis by the U.S. Agency for International Development, Pakistan spends only 2.2 percent of its GDP on public education, the tiniest share for any country in South or Southeast Asia.

And Pakistan's jihadis are more than ready for a fight. "If Musharraf tries to crack down on madrassas, there will be a flood of blood in the streets," says Maulana Anwar Ali Shah, principal of one of Pakistan's biggest schools, the Jamia Islamia Taalemulqiran madrassa in Peshawar.

What people like Bart do not understand is that the scale of the Madrassa problem can be illustrated by the fact that the private income of the Madrassas coming from islamist and Wahhabi sources outside Pakistan is estimated to be equivalent to the entire national tax revenue raised by the Pakistan Government.

Reagan supported a rabid islamist Zia-ul-Haq who islamised the Army and particularly its Security Service, the ISA. That was bad enough, Bush 2, supported Musharraf who has been unable to reverse the trend. Neither US president arranged to ensure anything significant was spent on Pakistan’s schools.

Anybody who know anything about Afghanistan could have told the Neocons that intervention in Afghanistan without also getting to grips with Pakistan and the madrassas was doomed to failure.

Likewise the idiotic decision to support the Northern Alliance, – the bloodthirstiest band of opportunist brigands outside of the Bush White House. Thus far the only measurable effect of that particular decision has been to vastly increase the flow of heroin to Europe, to destabilise the central government and complicate the ISAF efforts to win over the Pushtuns, who will get on with the brigands of the NA when hell freezes over.

US and indeed world attention has been diverted from Afghanistan by the ill-advised sideshow in Iraq.

Meanwhile, the reality of the situation on the ground is that the situation is teetering on the brink. If the USA/UK can get out of Iraq and reinforce Afghanistan, some stability may be achieved.
“May”, not “will”.

Unless there are sufficient means to deal with all the potential new recruits to the cause now being indoctrinated in Pakistan, I would not be too sanguine about the eventual outcome.

Moreover, I wonder whether the general public has the will for long-term involvement of the kind which will be necessary to keep matters under control while a 25 year plan to turn around much of the education system of half a sub-continent is put in place.

# posted by

Mourad : 5:06 PM

bart ... i honestly think one can be critical of individual unlawful actions by members of the military without demeaning the military at large .. to equate one as the other is to create a useless canard.

the current and ongoing proceedings concerning haditha are a bad example .. there is incontravertable evidence that the marines at haditha did in fact gun down at least 28 civilians .. among them childern as young as three and four-years-old .. the fact that we are seeing dismissals of charges in this incident in no way erases the fact the incident occurred .. nor does it speak to anything other than the courts martial board members actually acting in some form of jury nullification ..

it is unfortunate ..imo .. that even though 28 people died .. including children .. no one has as yet been held to account ..

that fact doesn't speak to the issue of justice imo .. but points up yet another facet of combat service.. that those who have been enveloped in the fog of war understand best the sometimes rage which can lead to atrocities on the battlefield.. and are perhaps more inclined to excuse it's excesses than a civilian jury ..

that's not exoneration by any means ... even if all parties involved walk away clean .. it
won't mean the events didn't happen .. but that the evidence is too convoluted to assign specific responsibility ..

this episode certainly isn't one of the Corps shining moments in history .. imo .. you may however make what you will of it ..

FWIW my oldest son is currently a serving colonel of marines.. and was just as incensed as Col. Murtha was concerning the incident .. his take was "Marines take bullets for civilians .. we don't pump bullets into them .. "

haditha isn't a good example of anything .. imo ..

# posted by

Jkat : 5:23 PM

What part of "the left largely checked out of military service after Vietnam" did you miss?

The part where you furnished evidence of same.

But do please feel free to bash others as if that were a substitute for evidence.

# posted by

jpk : 5:38 PM

jkat:

You may want to do some more current reading about Haditha. Many of the alleged civilians were in fact combatants and the defense ripped up the so called eye witnesses. The military judge has dismissed every substantive charge apart from the remaining counts of voluntary manslaughter against the squad leader because the evidence was completely non credible.

JAGC prosecutions are the nearest thing to a slam dunk in criminal prosecutions, but the JAGC prosecutor for Haditha has seen his prosecutions for 7 of 8 defendant thrown out or result in acquittals with half of the charges thrown out in the remaining case.

I can understand why you would be furious as Marines when you read the unsubstantiated claims of a massacre from our credulous press. However, the charges appear to be largely lawfare propaganda by the enemy against your fellow Marines.

The alleged witnesses from an insurgent town claimed that there was no firefight with insurgents and that the Marines simply rounded up and executed civilians. That claim started to fall apart when the defense obtained tape from a drone and he radio traffic indicating an extended firefight was occurring. Then the rest of the case largely fell apart when the alleged witness accounts did not jive with the physical evidence.

It is my understanding that all that is left of the case of "cold blooded murder" are voluntary manslaughter charges against the squad leader for allegedly not following the rules of engagement resulting in the deaths of some civilians. It will be interesting to see if the prosecution has enough evidence left to prove even these reduced charges.

In wars like this where the enemy is engaged in a very active propaganda campaign making false claims of war crimes against our troops, it is always the better practice to wait until the actual facts come in.

By the time the Haditha claims against the Marines surfaced, the several Army soldiers had already been through this wringer and been acquitted in courts martials here in Ft Carson. The first thing I wanted to know is where was the actual evidence against the Marines. It turns out there was very little.

# posted by

Bart DePalma : 5:46 PM

Moreover, I wonder whether the general public has the will for long-term involvement of the kind which will be necessary to keep matters under control while a 25 year plan to turn around much of the education system of half a sub-continent is put in place.

# posted by Mourad : 5:06 PM

the chances are somewhere betwen slim and none.. imo .. m. morad .. most of my countrymen lack the patience for the type of attention span it takes to actually bother themselves to learn something constructive about the situation .. sound bite politics and stereotyping being more palpable to the masses. sadly so .. i might add ..

# posted by

Jkat : 5:48 PM

i had an excellent source of on-the-ground-in-theater information at the time of the incident bart .. and all i arrived at was what i told you .. "it isn't one of the Corps most shining moments in history" .. i'm perfectly willing to live with the results of the inquiry and the outcomes of the CM's ..

i would never apply the term "cold-blooded-murder" in this incident .. but from what i have been personally informed of the facts of the matter .. a "failure to maintain effective contol of the force" was a factor ..

neither the head nor the tail of this particular critter is a shining example in the annals of the Corps..suffice it to say .. it won't ever get incorporated into a verse in the MC Hymn ..

# posted by

Jkat : 6:02 PM

jkat:

There is very little about the day to day horror of war which should be set to music. Haditha is no different.

However, with the Marines fine victory in the Sunni Triangle (with more than a little assistance from the Army) and imminent handover of Anbar to the Iraqis, perhaps the Marine Corps hymn could include a line about Mesopotamia.

# posted by

Bart DePalma : 6:33 PM

Bart asks:

"read through the posts just on this thread. With the exception of my posts and those of a couple others, they are almost non-stop attacks on the integrity and work of the military."

Nonsense. I just read the posts, Bart, and I utterly disagree with your characterization. My posts were among the strongest, and these focused on the credibility of one reservist as demonstrated in her one-sided op-ed piece. One-sidedness is a perfectly fine quality for op-ed pieces, of course, but one shouldn't expect everyone else to take the assertions therein as gospel.

# posted by

Steve : 9:40 PM

Bart,

You're wasting keystrokes on left-wing Euros intertwined with misguided pacifists and apologists who have already accepted their demise to the hands of Islam. Fortunately for the cause of true homeland security, Americans are heavily armed and will never have to deal with a similar fate.

Keep fighting the good fight. The misguided will always be amongst us.

Johnny

# posted by

John Rocker : 12:02 AM

Wow. Interesting how a post on the situation of prisoners at Guantanamo came to focus, in the comments, on the plight of (some) US soldiers. Just sayin ...

One practical way the US could get out of the problem of having all these "enemy combatants" (tricky cowardly euphemism) would be to stop fighting with them over in Iraq and Afghanistan. Just sayin ...

I'd like to ask y'all a question. I'm a Canadian. I was just amazed and appalled when I saw Scalia on Charlie Rose the other day, attacking the members of his own Court who dissented in Boumediene, attacking earlier decision of his Court by "activist" judges (as if he ISN'T an activist, but for a different purpose)and repeating the comments he apparently made in the case about how many people are gonna get killed as a result of the majority decision. There was more but I just couldn't listen. What I want to know is, do SCOTUS justices behave this way often? I haven't ever heard a Canadian SC Justice do this kind of political campaigning. I do believe there would be hell to pay. As in censure. As in, removal ...

hysperia
http://alterwords.wordpress.com

# posted by

Honour : 12:20 AM

John Rocker:

You're wasting keystrokes on left-wing Euros intertwined with misguided pacifists and apologists who have already accepted their demise to the hands of Islam. Fortunately for the cause of True Homeland Security, Americans are heavily armed and will never have to deal with a similar fate.

And these "heavily armed" 'Merkuns will take care of Obama if he gets to be too much of a risk, eh?

Keep fighting the good fight. The misguided will always be amongst us.

That's been our complaint for a couple of years here. Go back to Freeperland or LittleFreepGoofballs, please.

Thanks in advance. And change your Depends™; it's getting to smell a little ripe in here.

Betcha you'd have loved this little escapade, where tough guys like you found a way to "fight Islam" at little cost to yourself. You're in the wrong millennium, my friend.

Cheers,

# posted by

Arne Langsetmo : 12:31 AM

Dear Arne Langsetmo,

The most severely misguided people in the U.S. are in the the bay area of California. This region should have been sold to the French decades ago. Tis the militant Muslims living in the wrong millennium. Hélas, au revoir l'Europe.

# posted by

John Rocker : 12:59 AM

This can occur in London and in the Bay Area of California. So very progressive . . .

Religion of Peace

Give peace a chance.
War is not the answer.
War is terrorism with a bigger budget.

You left wing pacifists will not reap the peace and freedom that you purport to sew. You dwell in delusion, traveling a path of self destruction.

Johnny

# posted by

John Rocker : 1:25 AM

Here's the punchline of an old Miami Beach retirement community joke, the response of an elderly wife to a friend critical of the former's elderly husband ogling women, young and old, as they pass by, expressing her lack of concern:

"Dogs chase cars, but they never catch them."

Lisa's bro can keep rockin' away.

# posted by

Shag from Brookline : 4:43 AM

Afghanistan is sufficiently recognised as a problem that a total of 40 countries (35 or so from Europe) contribute troops to the ISAF force. The UK contribution alone is set to rise shortly to 8,000 troops. As of 24th June 2008, the number of fatalities were: United States: 525, Europe: 241 (108 British), Canada: 85, South Korea: 1

So I'm not entirely taken with the idea of "left-wing Euros".

ISAF is a separate concept from the US “Enduring Freedom” operation, because that was commenced without UN Authority which would have impeded many ISAF contributing nations from participating.

However, “Enduring Freedom” continues as a separate exercise to that of ISAF with a different philosophy and command - a well-tested formula for working at cross-purposes in a single theatre of operations.

Speaking about the UK ISAF commitment yesterday, Air Chief Marshal Sir Jock Stirrup, the Chief of the Defence Staff, told reporters that Sir Jock said the West is trying to solve "a mammoth problem in Afghanistan." He said: "This is not something that could be done in one, two or three years because we are talking about a country that is essentially medieval, that has very little in the way of infrastructure, very little in the way of human resource, that has an endemic culture of corruption." He added: "In terms of developing the country from an almost medieval status, that has to be an enterprise of decades." (Daily Telegraph: 25-06-88)

Sir Jock was using very measured words.

This was the view of the Brookings Institution Fellow, Colonel Thomas Lynch USA - in May/June 2008:

“In mid-January, Defense Secretary Robert Gates approved an order to send an additional 3,000 U.S. marines into Afghanistan in anticipation of the now annual Taliban spring offensive. It was the right thing to do, but such a temporary force increase falls far short of what is needed. U.S. military policy is still stumbling toward failure in Afghanistan—a failure that will likely have dire consequences beyond South Asia

Let’s be clear: The mission in Afghanistan is not in jeopardy mainly because NATO members refuse to provide sufficient troops or appropriate engagement protocols for the International Security and Assistance Force (ISAF). Neither is the mission in jeopardy because of any deficiency inherent in U.S. or Coalition counterinsurgency doctrine. The problem goes deeper, into the underlying political context of Coalition military operations. The real issue is the transitory and uncertain U.S. military posture in Afghanistan (and, by implication, across South Asia), which undermines the necessary link between relevant military security operations and positive political consequences.

Our uncertain commitment to Afghanistan has the effect of bolstering Taliban propaganda, which threatens to punish anyone cooperating with Coalition efforts. This intimidation of critical local U.S. allies, fueled by a credible fear that the United States will leave them in the lurch, is shaping conditions for a major failure in our counterinsurgency and counter-terror programs.

Our unwillingness to commit ourselves for the long haul also provides incentives for Pakistan to hedge its bets. The U.S. government has urged the Pakistani government to act decisively to deal with its side of the Afghan-Pakistan border to dry up support for the Taliban effort in Afghanistan. But doing so entails significant risk for Pakistan, both internally and regionally. No Pakistani government, military or civilian led, will take those risks unless it knows U.S. power will remain engaged to backstop the effort.

The only way to change the poisonous regional security dynamic that keeps Pakistan a safe haven for terrorists and jeopardizes Afghanistan’s future is to alter fundamentally the convoluted U.S. political strategy that has gone unchallenged over the past six years.

There are understandable reasons for portraying the U.S. presence in Afghanistan as temporary, and for mixing into ISAF as many non-U.S. contributions as possible. The United States is not an imperial power and does not wish to be perceived as such in a region justifiably allergic to European colonial legacies.

Nevertheless, those reasons do not outweigh the liabilities that the present policy brings. We must eliminate the uncertainty about U.S. staying power by strengthening and institutionalizing the U.S. security commitment to the region.

The next administration, if not the present one, has a difficult but necessary choice to make that has been ducked for far too long.
….
The stakes are high, and time is short. The growing number of major terrorist attacks in Afghanistan and Pakistan during late last year and the anticipated Taliban offensive this year show that the U.S.-led Coalition is not winning this war. Short-term military policy tweaks won’t be enough to achieve victory.

Now is the time to make a fundamental correction to long-term U.S. military policy in South Asia. It is the only way to ensure the defeat of the Taliban and al-Qaeda in Afghanistan and Pakistan, while setting the conditions for a subsequent diplomatic efforts to bring peace and stability to all of South Asia.“
Full Article

For the reasons set out in my previous post, the stablisation of Afghanistan cannot be achieved without fundamental reform in Pakistan and Pakistan will not in the short-term change its policy towards the Taliban and the Madrassas without a great deal of difficulty.

In a very real sense ISAF is trying to pick up the pieces of (i) the Reagan Administration funding of the Mujahiddin and support for Zia ul-Haq in Pakistan as well as (ii) the ill-conceived Bush2 “Enduring Freedom” operation which failed to take the Pakistan/Madrassa dimension into proper account and this while Enduring Freedom continues to bumble on often at cross-purposes with the ISAF mission.

People who thought that stabilisation of Afghanistan and Pakistan was going to be a “piece of cake” because these were (in Bart’s words on a previous thread) “ragged-ass Taliban” forget that these were the people who fought the Soviet army and effectively won and who are motivated by the power of religion and the willingness to be martyred with an almost limitless pool of potential recruits.

To succeed, there first has to be a common philosophy as to what has to be achieved. That is a political question as between the USA and the ISAF contributing countries which will be impossible to resolve so long as the present Administration continues and it unlikely to be achievable under a putative McSame Administration. At least in speeches the Obama campaign seems better to understand the nature of the problem and in particular why the distraction of the “Enterprise of Iraq” was so ill-advised.

Then there has to be a common philosophy as to how the goals are to be achieved. This will not be a quick-in and out, but as the UK CDS has stated a commitment lasting decades – a struggle for hearts and minds which will involve not just military expenditure but VERY significant reconstruction and development aid over two decades or more. A secular school system has to be built up in both Afghanistan and Pakistan.

Hearts and minds means (i) no torture or ill treatment; (ii) respect for Islam and its institutions (iii) respect for villages, places of worship, homes. Scrupulous respect for personal dignity. No offensive slogans on vehicles, no disrespectful speech or gestures, an understanding that we must adapt to their culture and not vice versa. It means accepting a certain level of risk in force protection, eg foot patrols rather than vehicles in urban areas as soon as possible. Mixed police/milita/force patrols as soon as possible. It’s hard to walk around in a soft beret knowing there may a sniper near, as anyone who served in Northern Ireland can testify. But the less one looks like an occupying force, the less the resentment.

And yes, it is likely, that internment or detention may be necessary. But we have to make sure that it is humane and purposeful. Sensibly done, it can be a way of deprogramming as well as a security measure.

That is what US policy on detentions has thus far conspicuously failed to achieve. Guantanamo Bay has been a huge self-inflicted propaganda victory

# posted by

Mourad : 9:03 AM

mourad:

Are you actually arguing for a long term US presence in Afghanistan?

Apart from the obligatory shots at the GOP and the US, I agree with almost everything you posted.

Col. Lynch is essentially arguing the Pereuas counter insurgency strategy which worked in Iraq and is being implemented in Afghanistan now that he is CENTCOM commander.

In Iraq, the Sunni had to be assured we were staying to help them before they would stop their insurgency and take up arms against al Qeada in the Anbar Awakening. Petreaus based troops directly in their neighborhoods to rout out the al Qaeda and the Awakening Council militias did the rest.

The problem in Afghanistan is that ISAF apart from the English and Canadians are unwilling to deploy into the field to fight. As usual, it appears to be up to the US and UK to send in reinforcements and do the heavy lifting.

# posted by

Bart DePalma : 10:11 AM

Bart,

Re: Afghanistan

I am firmly convinced – as is HM Government and the Army – that the only way to stabilise Afghanistan is to deal with Afghanistan and Pakistan together. It will have to be a long term commitment, my best guess is at least 25 years in duration. Not necessarily that long in terms of boots on the ground, but certainly that long in terms of development and reconstruction aid, forces training, police, civil service, and judicial training, and above all, educational reform, secular schools and much work in the field of religious studies.

We are talking about dragging people out of the 16th Century into the 21st. In effect, nation building because the concept of the nation state itself is alien in Afghanistan and the FATA territories.

See this from Professor Larry Goodson's work "Afghanistan's Endless War - State Failure, Regional Politics, and the Rise of the Taliban" pub 2001 - University of Washington Press about the tribes and the subdivisions:-

“These tribes are the largest permanent political and social units in Afghanistan, but they are further divided into lineages or subtribes, known as khels, and still further subdivided into extended family groups or clans, called khol or kor. The allegiance of the individual almost never goes beyond the tribal unit. These relationships were outlined more clearly after the Durrani Pushtuns acquired power in Afghanistan. With the rise of the Pushtuns to prominence, their tribal code (known as the Pushtunwali) took the place of a legal system in the settling of disputes.

Afghanistan’s ethnic groups emphasize loyalty to the local social group, which may be defined in several ways, rather than to the state. The core of the social system is the qawm, which may be any communal group, including village, extended family, tribe, or ethnic group. In rural Afghan society virtually all meaningful social relations occur within the qawm, which is typically governed by the jirga or shura (which also means a council or assembly of elder males).

If the government attempts to impose laws alien to the social codes of the qawm, especially if the religious hierarchy also objects, then there is a strong likelihood of violence in response. To mediate with the state, qawm elders select from among their ranks maliks or arbabs (local leaders) to serve as intermediaries. Other significant local actors are the khans, who are large landowners with local or regional power aside from their relationship to the state. In traditional Afghanistan the larger khans were often the most powerful people in society. Their power was tenuous, however, because it was tied directly to their ongoing patronage efforts. The government established strong relations with the khans, whose power grew with the growth of the state. Nonetheless, the khan’s position ultimately depended on the support of the qawm jirga.

The resulting socioeconomic structure, exacerbated by deep ethnolinguistic and tribal cleavages, clearly divided state from society. Loyalty of the individual was to or within the qawm, which was governed by the jirga. The only force that could bring together people from different qawms was an outside threat, and the unity produced was always short-lived”

It’s a mammoth task.

There will have to be political agreement as to objectives and how to achieve them. “Enduring Freedom” as a concept is politically unacceptable in Europe, it will have to be integrated into ISAF. There will have to be one doctrine, one set of ROE, one integrated command. If that is achieved, I think the French and other EU nations who well know the security implications of a terrorism factory in the region will stump up for ISAF.

Thus far the problem has been the deep European conviction that the Bush Administration has been making things worse and not better – and I’m sorry but I believe they are right based on my own knowledge as a secular British Muslim of the impact on Muslims in this country, in France and in a number of other countries.

I agree with Colonel Lynch’s analysis of the military problem. I totally disagree with his proposed solution – essentially a bilateral US-Afghanistan defence treaty akin to the defence treaty/agreement being proposed for Iraq. Neither is feasible in the Muslim world, particularly in the Afghan/Pak areas, so long as the Palestinian question is unresolved.

So the USA is going to have to get with the UN Charter again, and help make it work not sabotage it.
UN/ISAF type operations are the only acceptable way for now – nothing bilateral – the concept of the US as “the Great Satan” is going to be with us for some time. In Iraq, the Arab street name for US forces is “the Jews”.

And BTW, I have my doubts about Petraeus – but then he’s been given an impossible job with insufficient resources to do a proper one. I don’t believe the situation in Iraq is anywhere near as rosy as the Administration is painting it. But that’s been true since it was announced that the DoD expected the troops to be greeted as “liberators”.

Whoever sold the Administration that particular pup has a lot to answer for.

# posted by

Mourad : 11:41 AM

mourad:

We need to decouple establishing security with attempting to compel the Iraqis and Afghans to adopt our political wish lists. Moreover, the internal fighting in these countries has nothing at all to do with the Israelis and Palestinians.

Even though the Iraqis have not implemented Congress' wish list of "political reforms," the Iraqis are doing quite well reestablishing security around the country and have now taken over the supposedly intractable Sunni Triangle.

There is no need to bring the Afghans into the 21st Century to defeat the Taliban. Rather, we need to help the Afghans establish their own security forces and doctrine as we did in Iraq.

The problem in Afghanistan which is not present in Iraq is that the enemy can flee across the border into Pakistan to refit in safety. In Iraq, al Qaeda and the Mahdi Army have no safe place to run.

We faced and never resolved the enemy sanctuary problem in Vietnam and lost the war because the enemy simply waited us out. Folks around here will not like to hear this, but the solution for Afghanistan may be a ground campaign to clean out the Pakistan border areas to deny the enemy any sanctuary. The Afghanis are already pushing for this.

# posted by

Bart DePalma : 11:59 AM

Bart,

You still haven’t a clue, have you ?

An “Afghani” is a unit of currency or an Arab “mujahiddin” who returned from Afghanistan to North Africa.

The people of Afghanistan are “Afghans”.

If the USA wants to add every 18+ year old in a Madrassa in Pakistan to the Taliban cause instanter, then by all means cross into Pakistan. That may be as many as 500,000 new recruits to contend with plus the foreigners who will ‘join the caravan’ as they did against the Soviets.

What is it with you Neocons?

Just because your country was late joining the 1914-18 war and the 1939-45 war, there is no need to be so eager to spark off World War III.

No wonder both “Enduring Freedom” and the “Enterprise of Iraq” are both turning out to be such expensive disasters.

# posted by

Mourad : 1:17 PM

A Prayer for the 2008 US Election
[Revised and Extended]

Be merciful, spare us, O Lord. Be merciful, graciously hear us, O Lord.

From all evil, O Lord, deliver us. From all sin, deliver us. From your wrath, deliver us. From sudden and unprovided death, deliver us. From the snares of the devil, deliver us. From anger, and hatred, and all ill-will, deliver us. From the spirit of fornication, deliver us. From lightning and tempest, deliver us. From the scourge of earthquake and tsunami, deliver us. From plague, famine and war, deliver us. From loathsome spotted reptiles, deliver us, From everlasting death, deliver us.

From the foreign policy of the George W. Bush Administration, deliver us.

From George Bush, Richard Cheney, Donald Rumsfeld, Condoleeza Rice, Alberto Gonzalez, Richard Armitage, Paul Wolfowitz, Douglas Feith, John Bolton, Stephen Cambone, Dov Zakheim, Lewis Libby, Eliot Cohen, Elliott Abrahams, David Addington, John Yoo, Steven Bybee, John Negroponte, Richard Perle and all Neoconservative judges, politicians and lawyers deliver us.

From the Heritage Foundation, the American Enterprise Institute, the Project for the New American Century and the Federalist Society deliver us.

From state sponsored torture, executive detention, corrupt contractors and misfeasance by public officials, deliver us.

From John 'McSame', deliver us.

Deign, O Lord, to rescue us; O Lord, make haste to help us, Let them be put to shame and confounded who seek our lives. Let them be turned back in disgrace who desire our ruin.

But may all who seek You exult and be glad in You, And may those who love Your salvation say ever, "God be glorified!"

But we are afflicted and poor; O Lord, hasten to us! You are our help and our deliverer; O Lord, hold not back!

# posted by

Mourad : 1:21 PM

Mourad:

Why do you reflexively assume that the United States needs to be the country to defeat the Taliban in Pakistan? I posted no such thing. It sounds like you have become far too used to the United States always playing the role of the adult and have dependency issues.

In fact, it would be preferable for the Pakistani Army to clean up its own mess on the border and in the madrassas. The Pakistanis were in the process of doing just that before the change in government. The new government needs to be educated in their responsibilities.

BTW, citizens of Afghanistan are also called Afghanis. I prefer Afghanis to Afghans because, in the States, Afghans more commonly refer to rugs.

# posted by

Bart DePalma : 1:36 PM

Lisa's bro seems to be in competition with Linus from Peanuts, with his own security-Afghan. Afghan, Afghani, let's call the whole thing off. Besides, we'll need more poppies for Veterans' Day.

# posted by

Shag from Brookline : 2:37 PM

perhaps the Marine Corps hymn could include a line about Mesopotamia.

# posted by Bart DePalma : 6:33 PM

They will probably add something about a bunch of people getting killed for nothing. The phrase "echoes of My Lai" should definitely be part of the new lyrics.

# posted by

Bartbuster : 4:02 PM

This comment has been removed by the author.

# posted by

Mourad : 4:24 PM

Bart:

Well, I don't thing you could sell that strategy for more than 35 puls on the Afghani - so let's drop that issue and get back to the unlawful detention question - have you yet reached a view on the ballpark figure for damages for 6 years' unlawful detention in GITMO ?

# posted by

Mourad : 4:30 PM

mourad:

A free flight home to the custody of their home country's law enforcement officers?

# posted by

Bart DePalma : 4:43 PM

when thinking of the value for illegal detention, let's think about of the story of Murat Kurnaz, as told by Seth Waxman in rebuttal during Boumediene:

WAXMAN: ... Mr. Kurnaz ... was a petitioner in this court, but he has since been released by the government because of the fact that he had what the CSRTs [the military tribunals] won't give him, which is a lawyer. He was told, two years after he was detained—he's a German permanent resident—he was told at his CSRT, as many of these individuals were not, that he was being held because he associated with a known terrorist. And he was told the name.

He was told that he associated with somebody called Selcook Bilgen who, the government contended, was ... a terrorist, who was—had blown himself up while Mr. Kurnaz was in detention ... and in a suicide bombing; and all that Mr. Kurnaz could say at his CSRT where he had no lawyer and had no access to information was, 'I never had any reason to suspect he was a terrorist.'

Well, when the government, in the habeas proceedings [which the government believed should not have been allowed], filed its factual return in Judge Green's court, it filed as its factual return the CSRT record.

His counsel saw that accusation. Within 24 hours, his counsel had affidavits not only from the German prosecutor but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden never involved in terrorism and fully getting on with his life.

That's what—and that evidence would not have been allowed in under DTA review [the procedure at issue in the Supreme Court case]. It wouldn't have been in the CSRT, and it won't come in under DTA review.

And that's why it is inadequate.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Waxman.

Mr. Kurnaz was imprisoned five years, and could have been for the rest of his life if not for Hamdi, Hamdan, and a few executive branch mistakes (actually telling him the evidence against him). how much is his five years worth? How many Mr. Kurnazes are out there?

PS Kurnaz was arrested in Pakistan, away from any battlefield.

# posted by

nerpzillicus : 5:23 PM

nerpzillicus:

In his CSRT, Mr. Kurnaz was provided with a personal representative who did indeed have the authority to check out Mr. Kurnaz's defense and present it to the tribunal.

The fact that the personal representative neglected to do so is no more an indictment of the CRSTs than the all too frequent failure of defense attorneys to fully investigate their clients' cases is an indictment of the civilian courts who will be conducting these novel habeas reviews.

# posted by

Bart DePalma : 5:55 PM

well fortunately . with the recent USSC ruling behind us .. we wont have to worry quite so much concerning any of the deficiencies prior-extant in the process .. eh ??

[2] Deign, O Lord, to rescue us; O Lord, make haste to help us, Let them be put to shame and confounded who seek our lives. Let them be turned back in disgrace who desire our ruin.

But may all who seek You exult and be glad in You, And may those who love Your salvation say ever, "God be glorified!"

But we are afflicted and poor; O Lord, hasten to us! You are our help and our deliverer; O Lord, hold not back!

amen .. m. mourad .. Amen ...

# posted by

Jkat : 6:16 PM

Bart:

"The fact that the personal representative neglected to [check out Mr. Kurnaz's defense and present it to the tribunal] is no more an indictment of the CRSTs than the all too frequent failure of defense attorneys to fully investigate their clients' cases is an indictment of the civilian courts who will be conducting these novel habeas reviews."

On the contrary, the notion that the Personal Representative, who is not chosen by the detainee, who expressly will neither act as an advocate nor keep consultations in confidence, and whose resources, abilities and motivations are at best unclear, will fail to provide reasonable representation to the detainee strikes me as predictable. I would call this a potent indictment of the CSRT system.

# posted by

Steve : 11:41 PM

Neocon Bart is defending the indefensible again.

For an exhaustive treatment of the rigging of the CSRT Rules see Professor Foley’s Article in the
Journal of Criminal Law and Criminology Vol 97 No 4 Guantanamo and Beyond: Dangers of Rigging the Rules.

As for describing habeas review as "novel" - that takes some cheek. The writ has been in use since 1305, so rather than "novel", I would describe the procedure as one of some antiquity.

Indeed, the reason it guaranteed in your Constitution is that the Founding Fathers knew it to be an efficacious guarantee of due process as opposed to arbitrary executive detention.

# posted by

Mourad : 2:57 AM

The title of Lisa's bro's next novel may be "Habeas Corpus Delicti."

# posted by

Shag from Brookline : 4:43 AM

I am glad to see you quoting from the outstanding Stephen Colbert Report show. The line I liked the best was Colbert (in mock outrage) exclaiming "Where does the Constitution get off telling the U.S. Government what it can and cannot do?"

# posted by

Terry Hildebrand : 4:58 AM

steve said...

On the contrary, the notion that the Personal Representative, who is not chosen by the detainee, who expressly will neither act as an advocate nor keep consultations in confidence, and whose resources, abilities and motivations are at best unclear, will fail to provide reasonable representation to the detainee strikes me as predictable. I would call this a potent indictment of the CSRT system.

The personal representative is analogous to a public defender in nearly all of your points and does act as an advocate. The only real difference is that the personal representative is not always an attorney and the capture has no right to silence or confidentiality.

It is unnecessary for the personal representative to be an attorney because there is no law to navigate through. The capture is not being tried for a crime and has no legal defenses.

Rather, a combatant status hearing has a very simple fact finding task - to determine by a preponderance of the evidence whether the capture is “part of or supporting Taliban or Al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.”

The capture has no right to silence to avoid incriminating himself. Rather, the capture has the right to present evidence that he is instead a civilian. As the Kurnaz case showed, this is often very simple and well within the capabilities of a personal representative.

# posted by

Bart DePalma : 9:43 AM

mourad said...

As for describing habeas review as "novel" - that takes some cheek. The writ has been in use since 1305, so rather than "novel", I would describe the procedure as one of some antiquity.

Can you post without offering a red herring?

As you well know, I was referring to the completely novel holding that habeas corpus extends to foreign POWs, not the age of the writ itself.

# posted by

Bart DePalma : 9:46 AM

The personal representative is directed to inform the detainee that "I am [not] your advocate."

see http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf at p. 17 of 30.

The resources and abilities of a public defender are known and are required by law to be sufficient to provide competent representation.

I assert we can generally have confidence that public defenders' motivations - both personal and institutional - are consistent with providing competent representation.

If a defender were to blow a case as badly as in the Kurnaz case the attorney could be culpable of malpractice, his boss would be unfavorably impressed, and the system would have failed to uphold the defendant's constitutional rights.

The comparison to Personal Representatives strikes me as very weak.

# posted by

Steve : 12:59 PM

Mr. DePalma,

Whether the fact that the personal representative failed to investigate the defense as thoroughly as he or she should have is an indictment of any system is, as you accuse others of using, a red herring. the fact is, because of Mr. Kurnaz's ability to file an application for a writ of habeas corpus, an innocent man was freed from what could have been a legal black hole. This is a fact, and it is undisputed. Had he not had such an opportunity, he may have still been sitting in a cell in Gitmo, perhaps, as he alleges, being tortured. The writ of habeas corpus (or at least the threat of it) returned this man, who had never taken up arms against the US, nor committed any crime against this nation, home. How anyone cannot look at this case, and see the inherent flaws in the system, is beyond me.

Mr. Kurnaz, under the theories you have put forth, was a POW who was not entitled to a habeas petition. In reality, where he and the rest of us reside, he was just some guy picked up by the Pakistanis so they could collect the bounty. Then, the US government took him away, held him in extrajudicial detention, and were reticent to do much more. Until he was able to have a Court look at the evidence against him, and have an actual advocate for him present irrefutable evidence in his favor to the Court, he was going to be imprisoned, with no trial or charges, for no reason whatsoever, ostensibly for the rest of his life. Don't try to spin this situation into some kind of derision of the Boumediene holding - this innocent man, if he can recover emotionally to the point he can rationally think again, will thank the five brave souls on the Supreme Court, who stood up for the rule of law, for the rest of his days. He may have lost five years, but it could have been much, much worse.

And when a public defender or defense attorney fails to properly investigate his defenses, what does that prisoner do? he files an application for a writ of habeas corpus, claiming ineffective assistance of counsel. So, even in your the civil context, while we know the failure of counsel to properly defend an accused can happen, we place checks against it, so that any mistakes that occur on the first level will hopefully be caught on the second. Your analogy actually supports the cause for habeas for alleged unlawful enemy combatants. And in the civil context, the attorneys who have failed to provide effective counsel are ethical bound to zealously defend and advocate for their clients - a duty that is clearly missing from the "personal representatives." now, there were some honorable personal representatives, who did their best to see that the proceedings were fair, but they came away with the reality that the CSRTs were a sham.

see http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-csrt-officers/index

# posted by

nerpzillicus : 2:31 PM

Did anyone catch the House Judiciary Committee hearings today – Addington and Yoo?

I said in an earlier post that in my experience lawyers generally make rotten witnesses. Making all due allowances for that, from their demeanour and answers, did these witnesses strike you as credible, honest persons, who should be acquitted of any misconduct, or as loathsome spotted reptiles ?

Quid Vobis Videtur ?

# posted by

Mourad : 2:47 PM

Oh ya, I watched it. Here are my notes...

1) Prospective necessity defense. Defense operates to nullify the statute.

2) We need a transcript of this hearing.

3) They are questioning backwards, through the wrong end of the telescope -- they should start with the 2001.09.25 Yoo memo on presidential authority in the GWOT and the 2002.02.07 Bush order on 'humane treatment' of detainees.

4) What Mark Danner said (during Pacifica Radio's live coverage): the narrative.

# posted by

Charles Gittings : 3:14 PM

i watched the hearing .. i think addington should be run out of town on a rail .. and yoo should be waterboarded to see what he really knows ..

i thought it most curious that addington testified that the VP is neither "of the legislative" ..nor "of the executive" ..

then i realized he's right .. Cheney is really a "loathsome spotted reptile" .. :)

# posted by

Jkat : 4:04 PM