A short time ago (but it feels very much longer than that), I wrote an essay for a journal called Global Dialogue about the African Union, the New Partnership for African Development (NEPAD) and Thabo Mbeki’s “African renaissance”. One of the things I argued in the essay is that Mbeki and NEPAD’s ostensible willingness to concede the failures of postcolonial African leadership can’t be taken too seriously because Mbeki continues to see the African state as unconstrained in its power. It isn’t clear what Mbeki or his fellow AU leaders think structurally caused “bad leadership” after independence, or what has systematically changed to make “good leadership” possible.
My argument, in part, was that if the AU really wants to change things, it needs to move towards a conception of the limited state along the lines of the U.S. Constitution, that universal human rights precede and trump the potential authority of the state, and that the state may not claim other than those powers which are not specifically given to the state and defined in constrained terms.
For years, one of the most powerful arguments you could make about a lot of misguided, failed or actively dictatorial regimes and political actions would be to point to some of the guiding political ideals and official practices of the United States. When the Soviet Union or other adversaries might point to alleged abuses of human rights within the United States (say, in U.S. prisons), a lot of us could take observe in reply that the abuses described were unofficial, or in spite of the law.
That’s all changed now.
When I say in the future, “Government which bows to the universal rights of human beings”, I can’t really say any longer, “Like in the United States”.
When I say in the future, “Nations of laws, not men; power granted will eventually be abused if it is not constrained, because that is how human beings are,” I can’t say any longer, “A founding insight and guiding principle of the United States”.
When I protest in the future against another government which holds prisoners in secret, does not permit them to see the evidence against them, denies them a right to a fair trial, and tortures them to obtain confessions which will then be used to justify their imprisonment, I won’t have an answer when that government says, “But your government does that, too.”
If I criticize when an authoritarian ruler attempts to exempt himself from all future consequences of his misdeeds by changing the laws or constitutions of his nation, he will be able to say, “But your President did that, too.”
The only thing that our official representatives will be able to say at these and many other such moments in the future will be, “It is ok for us to do these things, or reject these ideals, but not you. We are allowed to torture. You are not. We are allowed to hold people in secret, you are not. We are allowed to give the executive unrestrained authority not subject to judicial or legislative overview. You are not.”
Our answer to a variety of injustices and failures in the world is now hopelessly parochial rather than resolutely principled. It’s the new American exceptionalism. Other states from Kazakhstan to Zimbabwe, from China to Iran, often say they must do what they do, whether beatings or political imprisonment or censorship, to ensure their own integrity and security. Our only reply now: but you’re not us.
“Government which bows to the universal rights of human beings.â€
Of course we do. We simply don’t accept your oddly expansive definition of human rights.
“Nations of laws, not men; power granted will eventually be abused if it is not constrained, because that is how human beings are.â€
The power granted is constrained. It is more power than I would grant in peacetime, but war forces unpleasant, marginal shifts.
“When I protest in the future against another government which holds prisoners in secret, does not permit them to see the evidence against them, denies them a right to a fair trial, and tortures them to obtain confessions which will then be used to justify their imprisonment, I won’t have an answer when that government says, “But your government does that, too.â€
Prisoners of war. They are not entitled to the protections given to citizens in peacetime. And again, your definition of torture is impermissibly expansive; and your definition of “fair trial†I suspect is tendentious.
“If I criticize when an authoritarian ruler attempts to exempt himself from all future consequences of his misdeeds by changing the laws or constitutions of his nation, he will be able to say, “But your President did that, too.â€â€
Pres. Bush acceded to the wishes of the judiciary, and has persuaded a lawfully elected, democratic legislature to change the law. You must distinguish between lawful and democratic changes, and impositions without the sanction of law and democracy.
Whatever strength there might be in your argument is gravely weakened by your loose and tendentious rhetoric. (And doubtless you think the same of me; nevertheless, I put it to you that I do not think you are arguing your position as well as you could.)
Incidentally the NRO has been having a long thread saying that this claim that habeus corpus is being gotten rid of is bunkum. You might take a look, to see if you buy the evidence presented.
I think having to answer with this kind of word-mincing precision in reply to these kinds of challenges is itself a pretty good demonstration of the problem I’m pointing to. If I’m talking to a representative of Zimbabwe’s government, I think I’m at a relative loss today as compared to six years ago if I have to say, “Oh, well, the details of the differences are important, let’s define the term ‘prisoner’, let’s distinguish between lawful and democratic changes, and what exactly do you mean by ‘torture’?”. Mugabe has changed the Zimbabwean constitution quite lawfully a number of times: it doesn’t make him any less the authoritarian. He’d be perfectly happy with your hair-splitting, though: it makes him look completely comparable to the American case. A lot of the abuses that have happened in Zimbabwean jails have been to people defined as “prisoners of war”, or as “terrorists”, by perfectly precise definitions of terrorism. (Some of them borrowed directly from the Rhodesians.)
Your distinctions don’t make for much of an answer to authoritarians that stands ringingly on principles.
Plus, yes, I think you’re being tendentious. And that NRO’s reading of what has happened to habeas in this bill is the bunkum, not the other way around.
Please provide references for your last statement; the NRO has provided lengthy extracts pro and con, including the argument that non-habeal detention applies only to non-citizens, by clear and explicit language in the proposed bills. This argument needs to be refuted.
I very clearly said lawful and democratic. Mugabe’s government obviously fails to meet the standards of democracy.
I think word-mincing precision is, actually, very much in order. The broad principles of American freedom find their expression in word-mincing law and precedent; and to disregard the precisions of words and law is, in its way, a betrayal of the principles you advocate. Now, let me go through your points again, in reverse order:
4) You are least persuasive when you use the phrase “changing the laws or constitutions,” since you fail to discriminate between changes legal and democratic, and changes illegal and tyrannical.
3) The whole question of prisoners and torture does turn very much on the prisoner-of-war/imprisoned citizen distinction. There are two bases of critique–civil rights and human rights–and a prisoner-of-war does not have any civil rights. (And, when not fighting according to the laws of war, no protection by them either.) The question is then one of the human rights of enemy soldiers–including, very notably, the rights of enemy soldiers attempting to do harm to us by witholding information. There is a case of basic principle to be made there, but it needs to be defined very closely. And I do think that the historical definition of torture has not included what the various critics of American policy are now claiming: if that is the case, then your critique must again be based on transcendant principle, not on traditional understanding. In the meanwhile, yes, one does need to be careful about the definitions–and I take it as an ethical injunction, since too-soft treatment of the enemy may result in the deaths of many, many Americans.
3) I do agree that all delegations of power to government are a risk, and wartime delegations more so. But there are necessary risks–and the act of constituting a government means accepting some risk of the abuse of governmental power. You cannot simply make the sweeping statement: you must address the contingencies of the political moment.
4) I am, I suppose, ambivalent about “universal human rights.” (Me and Tony Judt, it seems.) Do you have a right, as absolute and inviolable right, not to be tortured when you are trying to nuke a city? I do think the right not to be nuked does override your right not to be tortured–and once that situation is accepted, it’s hard to be categorical in one’s human rights imperatives. You can, I suppose, maintain the position as an absolute principle, regardless of contingency or competing ethical demands.
Now, the concept of “war” really matters. We criticize Zimbabwe, China, the USSR, etc, because they are making undemocratic war on their own citizens; the comparison, surely, has to be our critiques toward governments faced with genuine external enemies, and genuinely evil terror movements at home. I confess I am unfamiliar with our precedents. How harshly have we condemned the UK for anti-IRA suppression tactics? India for dealing with its own terrorists? Sri Lanka for fighting the Tamil Tigers by rough methods? Italy and Germany suppressing the Red Brigades and the Red Army Faction? I suspect we discriminated between the United Kingdom and Zimbabwe in our critiques before, and with good reason, even when the UK has swerved from the highest niceties of peacetime practice.
Tim,
Rise to this. Make good arguments rather than mouthing Dem talking points. Shrug off the BDS and reason in good faith because this is a potentially fruitful discussion beyond the run-of-the-blog crap we get at political blogs (twistySticks and such as you frequently cite). I’d do it myself if I had the wherewith to do with. You have a worthy opponent here.
I’m going to chime in and agree with back40; thinking this through, carefully, would help me.
Traditionally (in my mind) there are three categories of prisoners:
1) Traditional criminals, who get criminal law protections (of which habeas corpus is part).
2) Prisoners of war, part of an opposing uniformed army, who get Geneva III protections; they can’t be interrogated, must be treated humanely, but don’t have habeas corpus rights and can be detained indefinitely without any trial.
3) Guerillas/spies/saboteurs, who can be executed on the battlefield with minimal process (a “drumhead court-martial”). (Sam Davis is a reasonable example.)
Back40, thank you for the compliment.
I pause for commercial advertizement: Thomas Farrell, Norms of Rhetorical Culture, is an excellent book. Everyone should read it.
Meh. It’s kind of the whole point of Tim’s post is that we shouldn’t be anywhere close to this kind of tendentious parsing of available rights; that we are is itself evidence of failure.
That is indeed my point: that we have to parse this so carefully robs us of an incredibly powerful tool in the larger world. If I have to sit down and provide a lengthy bill of particulars about how we’re only disposing of habeas for non-citizens, that we’re only allowing some interrogation techniques which fall short of “torture” in the eye-gouging, genital-shocking sense, that this is only about wartime provisions (in an undeclared permanent war against non-state enemies who in some measure cannot ever be viewed as permanently defeated), before I engage in criticism of illiberal states elsewhere, I will justifiably be met by smirks and eye-rolling from the ministers of propaganda and internal security staring at me across the table.
This is precisely the kind of carping argument that someone like Mugabe has done ever since he got in power. Withywindle blithely assumes he is “non-democratic”in his holding of power. Not so: he and his party have stood for election a number of times. Yes, they’ve cheated, but there is at least a credible accusation that something similar happened in Florida in 2000. Yes, they’ve misused their control of the exchequer to dominate the media and control their critics through selective dispensing of governmental assistance. Again, hardly the thing on which we can make a categorical distinction. ZANU-PF’s alterations of its constitution have followed legal and political procedures. Even his dictatorical actions have legislative backing: Mugabe has ruled under a permanent “emergency” since taking office, an extension of the emergency regulations created by the Rhodesians, and is authorized under that emergency to do many of the things he has done.
So tell me again the difference? The difference is that they are them and we are us. Since we are us, it is ok; since they are them, it is dictatorship. Yes, yes, there are degrees of difference, and crudities of power in Zimbabwe that we have gotten nowhere near here yet. Yet. But again, by delegating power in the manner that we have, the main thing which now keeps us from achieving that is the discretion and character of the executive. Withywindle professes that it is worth considering carefully the delegation of power in wartime (and I continue to insist that the war in this case has been so ill-defined that it is foolish from the outset to regard this as a war like any other, and thus open to such delegation), but where is his careful consideration? For him, the only careful consideration is whether we have yet gone far enough in an all-out civilizational war.
Withywindle does raise the question of other protracted struggles against insurgencies, and there are some interesting things to look at in those. Do “rough tactics” insure success? There is at least some reasonable evidence that in many cases in the developing world over the last forty years, the move to “rough tactics” leads to the ascendancy of military and security elements over civilian rulers, encourages and protects corruption within the executive branch, fuels the insurgency or divides the nation further, and adds to rather than subtracts from general security.
There are some important counterexamples on some aspects of these patterns. Peru against the Shining Path, perhaps–though clearly that also did help protect corrupt executives and corrupt bureaucratic practices in a way that has proven difficult to undo. The UK vs. the IRA is a more complicated case. I don’t think there’s much evidence that the most openly brutal phases of the UK’s counterattack on the IRA were helpful; some of the earlier highly brutal phases of the long UK-Irish struggle clearly made the IRA more powerful, determined and deeply rooted. More helpful by far was their steady, slow infiltration of the IRA, which I agree comes with an ethical pricetag. As did the false imprisonment of a number of suspects. But the key thing here is that for the most part, the UK’s struggle against the IRA didn’t lead to widespread, sweeping and permanent institutional changes in domestic civil liberties. Moreover, notably, it concluded in a recognition that some kind of negotiated settlement was the only thing that ultimately could end the struggle.
Sam, the problem with 2) and this context is that we’re detaining people in various “war” situations where there is no certainty of their involvement in that war, where they are being held on what resemble criminal charges. In a conventional battlefield, there generally isn’t much doubt when you overrun an enemy position who the enemy soldiers are. If, on the other hand, we’re going to break down a door in Iraq or Afghanistan, haul a sleeping man out of bed based on accusations against him which may come from questionable or dubious sources, and throw him into a secret prison with no habeas rights whatsoever, that’s a very different kind of thing than holding uniformed soldiers in a conventional war. Removing oversight, removing habeas protections, and so on, leaves such people intensely vulnerable to the whim of their captors. If a few U.S. soldiers screw up and take the wrong man, but want to cover their error, all they have to do is swear the guy was a terrorist, and bang, he’s sitting in a little dark cell for the rest of his life. We’ve already seen some cases of American forces (or political officials) trying to cover their asses in precisely this manner. That’s WHY you don’t remove habeas protections or judicial oversight. It’s what oversight is for.
Rights aren’t unlimited. That’s why I have no objections if US soldiers kill insurgents in battle, or if we kill Osama bin Laden if he happens to fall within the sight of a Predator drone. And I readily acknowledge that under cover of darkness, in dire circumstances, sometimes people are going to do things that they deem necessary in the moment, and sometimes I’d probably judge them to have done the right thing. All of that is radically different than bringing the sometimes brutal expediency of war into the space of our statutes and Constitutions and international treaties and saying, “Fine, fine: you go and do that. Here’s a blank check for you, in fact”.
I’m out of patience for discussions where that difference is nibbled away, I think. If that dissatisfies you, Gary, then head off to whatever pastures you deem best, because as far as I’m concerned, this week is a week for drawing some lines in the sand.
Sands shift … that metaphor, I don’t think it means what you think it mean.
1) You really are conflating different categories: on torture, obviously, being all definitional is parsing. (I think the parsing matters, but it obviously is parsing.) On the question of habeus corpus, the question as to which category of law applies (civil, international, military) is really quite major, and not one of parsing. Your unwillingness to separate out these different categories reduces your strongest arguments to the status of your weakest arguments.
2) Ministers of propaganda and security always smirk. Their smirking is not, in itself, a sign of the moral stature of the United States. Your proper audience is their subjects. Do the Zimbabweans no longer believe in freedom and democracy because the Senate has defined torture in a way you consider unacceptable? Do they want the US to stop speaking out against Mugabe? If they say that the overthrow of Mugabe has been delayed because America is no longer as persuasive, due to its policies, that is a severe critique. But the people, not the regime, are what matter here.
But in any case, I trust that you, Timothy Burke, will continue to speak out both for the people of Zimbabwe and for what you believe to be correct American policy; the first rhetorical act will reinforce the persuasiveness of the second; and the second, I hope, will do no harm to the first.
3) Unless the New York Times is a long-term liar, Mugabe has used massive amounts of force to maintain his brutal dictatorship, from the very beginning. He does not even have the plebiscitary authority of a Bonaparte; rather, he is one of our latter-day Mussolinis. I confess I do not find the Florida 2000 crisis to be remotely credible as a comparison: like Calderon in Mexico, the lawfully elected party beat back an attempt to steal power. But even if I were to accept the comparison as remotely acceptable, I find the comparison remote indeed–wholesale violence against lawyering of chads. (I know, you can bring up other accusations. We are probably simply going to disagree on facts.)
4) We would, of course, prefer to be facing uniformed enemies. They are not in uniform. Simply saying that every un-uniformed person in every war zone around the world is entitled to full American civil rights is untenable. Our enemies have created the nature of this war.
5) Your bit about preferring necessity to writing out our policies does play straight into an NRO talking point: it wasn’t the choice of the administration to do this, it was forced upon it by the Supreme Court, which reduced the alternatives to the abandonment of coercive interrogation, or spelling out their nature. Very good; now it’s been spelled out. And with full legislative and executive approval, the stamps of democratic and legal authority.
6) I find the distinctions between de Valera’s clerical democracy and Salazar’s clerical dictatorship astonishing subtle on occasion; yet the difference, ultimately, was profound. Sometimes lines are fine, but still valid and of great importance.
“If that dissatisfies you, Gary, then head off”
Wise words.
it was forced upon it by the Supreme Court, which reduced the alternatives to the abandonment of coercive interrogation, or spelling out their nature. Very good; now it’s been spelled out. Alas, it has not been spelled out. Senator McCain has said openly and repeatedly that he does not know what interrogation techniques are currently in use; Senator Sessions says that he doesn’t know and adds that he’s glad he doesn’t know. The law prohibits “cruel and inhuman” treatment and gives many examples — rape, causing permanent bodily injury, etc. — but leaves the determination of what meets the criteria, and the enforcement of the criteria, solely in the hands of the President. (“The President shall take appropriate action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.”) Any and all forms of judicial or legislative interference are explicitly ruled out. This means that the President need tell us only what he wants to about the techniques actually used; and it also means that the President will himself only know what he is told, from people who cannot be observed or interfered with in any way. The people of this country simply must take it on trust that what is actually done in interrogations meets the criteria laid out by the law; every mechanism of oversight or challenge is clearly and purposefully disabled.
Moreover, as a number of commentators from the whole political spectrum have acknowledged, nothing in this law says that citizens of the U.S. are exempt from its provisions. The question is whether other, related laws are adequate to do the exempting. Right now the determination fo exempt citizens is a matter of policy, not law.
I agree completely with withywindle that this has all been done perfectly legally, with the full cooperation of the legislative branch (though it remains to be seen whether the law will survive judicial challenge). In fact, that is what most disturbs me: that people elected as our representatives so cheerfully give away their power to check and balance. I have always thought that one of the core principles of conservatism — one of the reasons I have always caled myself a conservative — is limitation on the powers of government, because freedoms once given away are not easily re-taken. Yet today people caling themselves conservatives are cheerleading for an astonishing expansion of governmental powers. Perhaps they have not considered that this law could very well still be in effect when a different party is in power and has a different list of state enemies.
Despite my misgivings I just spent some time reading through the NRO postings (of user emails deemed to be “persuasive” by non-experts) and I have little idea why withywindle finds them such compelling reading. The last post, in fact, asserts that American citizens cannot be willy-nilly declared enemy combatants because of ‘controlling” Geneva Convention authority. If, in other words, the Bush administration complies with the letter and the spirit of the Conventions, then both American citizens and foreign nationals will be fine. This is a rather thin reed upon which to hang the argument.
I see no reason to respond extensively to the rest of the posts. If Tim wants to indulge, he surely can. Let me simply point out one of many fallacies: it does, in fact, matter what elites believe. Subjects of states are often not the most important audiences for US pronouncements.
Brief addendum: I agree with the commentators who have said that the definitions of what counts as torture and what counts as allowable “coercive interrogation” must be “parsed,” that is, worked through carefully and in detail. There are real hard cases here, as long as we agree that (a) the American government needs to be able to fight effectively against terrorism and (b) the American government needs to avoid treating any human being cruelly and inhumanely. (If you only believe in one of those you don’t have serious problems in this controversy.) But working through these issues in a serious way is precisely what this law forecloses: interrogation teams responsible to the President and the President alone will do what they do, and since we don’t know in any detail what that is, we can’t very well have an effective public debate about its proper limits.
Again from the NRO:
****************************************************
But the claims that House bill allows Mil. Commissions to declare US citizens unlawful enemy combatants fails simply by looking at the jurisdiction of the commissions:
`Sec. 948c. Persons subject to military commissions
`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter
`Sec. 948d. Jurisdiction of military commissions
`(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
If you are an alien, you may be subject to the Mil Comm’n. If you’re not an alien, you can’t be. While the commision can find that one is an unlawful combatant, they can’t make a finding re: their status as an “alien.” If they are a citizen, the Comm’n has no jurisdiction.
**************************************************
If this is true, then the “number of commentators from the whole political spectrum [who] have acknowledged, nothing in this law says that citizens of the U.S. are exempt from its provisions are simply wrong on the facts.
Furthermore, the bill also establishes that permitted interrogation techniques will be published in the Federal Register. This was inserted by Sen. McCain et al, so that they *will* know what is being done. It would seem to me that you are confusing Sen. McCain’s comments about what he knows now, and what he will know when the bill passes.
If in point of fact this bill applies only to non-citizens, then balance of power arguments do not enter into it–or to a far lesser extent. The point of balance of power is in reference to government power vis a vis American citizens, not government power vis a vis foreigners. In foreign affairs and war, the executive is traditionally granted much greater leeway.
Even if the law only applies to non-citizens, it is still morally offensive and inconsistent with governing international law.
I’m afraid I cannot parse your last paragraph, as it appears to be a non-sequitor. Alan rightly notes that the legislation gives the Executive carte blanche as the sole authority to interpret international legal obligations — the same administration that has shown contempt for those obligations — and therefore precludes any meaningful public debate over what activities constitute torture. You respond with reference to Executive Commander-in-Chief powers. What gives? Are we in “unitary executive” territory?
A few more points in response to withywindle. I speak for myself, of course, not Tim.
1. you’ve done nothing to address the empirical point Tim makes: the vast, vast majority of people who will be tortured, held indefinitely with no effective legal recourse, disappeared under this law will not be enemy soldiers, in or out of uniform. They will not be enemies of any sort. They will be, like most of those now held at Guantanamo and Bagram and our other foreign prisons, 100% innocent. They’ll be ordinary people who get informed on by someone who wants to settle a score, or are in the wrong place at the wrong time. And they will have no way to clear their names because they will be deprived of habeas corpus and of the essential procedural safeguards of a civilian trial. This law is a license to disappear and abuse thousands of innocent people. We know it will be used to do so because its architects have already done so *without* the fig leaf it gives.
2. the statement that it would be “untenable” to give the people the US has detained civilian trials is totally unsupported and indeed unsupportable. It’s a mere propaganda slogan, just like “our enemies have created the nature of this war”. It bears no relation to reality. It is certainly tenable to give all our detainees civilian trials, and it is our solemn obligation to do so. The cost of doing so would be trivial compared to, say, the cost of maintaining the occupation force in Iraq. Who among the proponents of this law believes that cost to be “untenable”?
3. The bit about “traditionally granted much greater leeway” is a nice evasion of the essential problem. Our wartime Presidents have been a nasty bunch, as all wartime executives everywhere have been and probably always will be. They have usually tried to do horrible, tyrannical things, and they have often gotten away with it. Many, indeed, have gotten away with much worse abuses than this law permits; in time some, though never all, of their abuses have been rectified, and they now receive the exculpatory judgment of the court historians. Nonetheless they were tyrants and what they did was wrong. The “traditional” and the legitimate are not the same, and a long history of “traditional” crime is not an excuse for further crime.
4. if the people promulgating this law do not intend to construe it to apply to US citizens, how do you explain what they did to Padilla and Hamdi?
5. if you don’t believe that the “coercive interrogation” techniques legalized here, the techniques we know the CIA has practiced over the past five years, amount to torture, you’re not only wrong but evil. Waterboarding, for example, is inarguably torture, and no one has the moral right to use it for interrogatory or any other purposes. A democratic majority that supports the legalization of such techniques is an evil majority and deserves to have its votes repudiated. A legal government that permits them is an evil government and deserves to be overthrown.
1) Morally offensive is a narrower bailiwick on which to stand on.
2) Inconsistent with governing international law must be established.
3) You assume the point at issue when you say the administration has shown contempt for its international obligations. If it has not before, there is no reason to think that it will now.
4) I’m not comitted to opposition to the unitary executive theory, as I understand it; nor am I committed to its support. I gather its opponents caricature it to an extent; but I’m not sufficiently up on the legal theory details.
5) As for executive interpretation: who governs our NAFTA obligations? Or our NATO ones? are they not largely or wholly the bailiwick of the executive? What is the role of the House and the Senate in overseeing NAFTA? Can they “interpret” NAFTA in a sense different from the executive? Could the Senate “interpret” NATO to say we don’t have to defend Estonia from a Russian attack? How actually does foreign policy function with multiple interpreters of treaty obligations?
Well, I read the bill. I think withywindle is right that the military commission provisions are not intended to apply to US citizens.
As best I can tell, the ambiguity stems from the following sections:
‘‘§948d. Jurisdiction of military commissions 21
‘‘(a) JURISDICTION.—A military commission under 22
this chapter shall have jurisdiction to try any offense made 23
punishable by this chapter or the law of war when com-24
mitted by an alien unlawful enemy combatant before, on, 1
or after September 11, 2001. 2
The bill is fairly consistent in its useful of the phrase “alien unlawful enemy combatant” until a few paragraphs later:
‘‘(c) DETERMINATIONOFUNLAWFULENEMYCOM-BATANT STATUS DISPOSITIVE.—A finding, whether be-11
fore, on, or after the date of the enactment of the Military 12
Commissions Act of 2006, by a Combatant Status Review 13
Tribunal or another competent tribunal established under 14
the authority of the President or the Secretary of Defense 15
that a person is an unlawful enemy combatant is disposi-16
tive for purposes of jurisdiction for trial by military com-17
mission under this chapter. 18
I think that this is supposed to mean that the “unlawful enemy combatant” determination is based on a Combat Status Review trial, not that the Military commission has jurisdiction over US Citizens designated as enemy combatants, but if so it is VERY poorly worded, as the bolded phrasing suggests once anyone gets declared an unlawful enemy combatant he or she becomes subject to the military commission’s jurisdiction. In fact, the preceding section seems to limit the jurisdiction of the commissions to alien unlawful enemy combatants.
Some of the Habeas Corpus provisions do clearly apply to aliens. I still consider this immoral and unethical, particularly because the bill strips the right of anyone to use the Geneva Conventions as a basis for challenging their detention:
INGENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus 4
or other civil action or proceeding to which the United 5
States, or a current or former officer, employee, member 6
of the Armed Forces, or other agent of the United States 7
is a party as a source of rights in any court of the United 8
States or its States or territories. 9
Now, here’s where I have little clue. Would an unlawful combatant who was also a US citizen need to have recourse to the Geneva Convention or would he be covered by US civil and constitutional law?
Reply to NWeining – sorry for the cross-overs, in posting.
1A) Your definition of “torture” of course does affect your arguments. I gather that in Iraq and Afghanistan, we have detained a great many people, and applied a sliding scale of coercive techniques to a smaller fraction of the others. Khalil Mohammed was certainly waterboarded; there is no reason to believe that the vast majority of detainees were. One gathers that the harsher techniques are reserved for people for whom there is greater certainty that they are indeed terrorists, and not simply the rich uncle of the local Sh’ia policeman; therefore, empirically, I would hazard that the proportion of innocent tortured is far lower than the proportion of innocent detained.
1B) I dispute your contention that the vast majority of the detainees at Guantanamo and Bagram are “100% innocent.” I recollect those British Pakistanis who were released just happened to wander across the border into Afghanistan, they had no idea they were entering a war zone. Uh huh.
1C) Are you saying that detained Afghans and Iraqis should be flown to the US for a trial by US citizens? Or that they should be handed over to the tender mercies of Iraqi and Afghan civilian courts?–whose provision of habeus corpus rights, I am not informed on.
2) There are tens of thousands of detainees. The judicial system in Iraq can barely handle the trial of Saddam Hussein–they are supposed to process all these as well? We are, in any case, fighting armed enemies: they are not civilian criminals, and should not have the rights of civilians to trial. They are to be imprisoned so long as dangerous–for the rest of their lives, if need be.
3) I have a higher opinion than you do of Abraham Lincoln, Woodrow Wilson, and Franklin Delano Roosevelt.
4) Different rationales (I forget them now) were applied to Padilla and Hamdan. I find most persuasive arguments opposing unlimited detention of US citizens on US soil, and second-most persuasive arguments opposing unlimited detention of US citizens abroad. There, I am most likely to say the Bush administration erred; checks-and-balances arguments carry for more weight as regards US citizens.
5) You are forthright, and I am accustomed to people calling me evil. Generally, I think they are misguided.
1) Then what? Do you or do you not believe that human rights are universal?
2) No shit.
3) Yes, I do take for granted that it has shown bad faith. If you wish to argue to the contrary, be my guest.
4) I appreciate that you lack the sufficient knowledge to evaluate the “unitary executive” theory. Now would you please clarify the relationship between your claims concerning the “balance of power” in the Federal Government and Alan’s claims?
5) Treaties entered into by the United States are, under Article VI, “supreme laws of the land.” There does exist case law on the interpretation of treaty obligations, but the general answer is, I believe, that under Marbury v. Madison that SCOTUS would normally have jurisdiction to deal with cases and controversies arising under treaties. Article III, Section 2 also provides that Congress may restrict the SCOTUS’ appellate jurisdiction, as they are attempting to do in this bill.
I do not, sadly, have my relevant texts handy and this is far out of my expertise. If you really wish to know — i.e., are asking this question in good faith — I can check with one of my colleagues.
Be careful, however, about distinguishing between executive agreements (e.g., NAFTA) and treaties — which have different standing in US constitutional law; also be aware that the terms of agreements, whether treaties or otherwise, themselves may have bearing upon interpretation and adjudication.
1) Human rights are universal. I do not regard them as the only ethical imperative.
4) Balance-of-power is meant to limit the government’s powers over its own citizens. I do not see how it is centrally concerned with government powers’ vis-a-vis foreigners. Therefore I do not see how an expansion of executive powers vis-a-vis foreigners more than tangentially alters balance-of-power.
5) Well then, we’ll leave executive agreements aside. How about the NATO treaty? Does the Senate get to interpret it as differently from the executive? Can a private citizen sue to get a judicial ruling on it? Can Estonia sue the United States, and have the Supreme Court determine the proper interpretation of NATO? What if, say, Greece and Turkey went to war, and both claimed the other had attacked, and demanded NATO assistance in their defence. The President, presumably, would interpret NATO commitments–like, determining who was the attacker. Can the Senate countermand his interpretive power? Can the Supreme Court?
Dnexon ihas, properly, quoted fron the law itself rather tha citing the authority of NRO, but I think he may have missed the key clause:
`In this chapter:
`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant’ means–
`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
A citizen of the U.S. could meet these criteria.
Two further comments: first, like Withywindle, I see no reason to think that the very many, if any, of the Guantanomo detainees are innocent, and many reasons to think that they are guilty. But guilt does not erase humanity, nor does it erase our responsibilities towards our fellow humans.
Second, and related, one of the things that has always distinguished Ango-American law from Continental traditions is its refusal to make such strict distinctions between citizens and non-citizens as Withwindle likes to make. And of course this is more pronounced in the U.S. than in Britain. I’m sure Withywindle knows that how difficult it is — legally as well as socially — for an alien to become French, or German. This tendency of French and German society is reflected also in French and German law regarding immigration and citizenship. But anyone can become an American, and that basic fact has always governed American legal attitudes towards non-citizens, granting them more rights and privileges than is common almost anywhere else. The laws that the Bush administration has passed simply abrogate that whole tradition: they say “If you’re not an American citizen — and maybe even if you are — than you have no rights. We can arrest you for any reason or none, keep you as long as we want without trial, interrogate you using any methods (short of rape, murder, and permanent bodily injury) which the President and the President alone finds reasonable, try you according to procedures that are inaccessible to any outside observation or correction, and punish you in any way that the President sees fit, up to and including taking your life.” Withywindle thinks that’s no problem; I think it is as un-American as it is possible to be.
The determination of unlawful enemy combat status can indeed apply to US citizens; that is irrelevant to the question of jurisdiction of military commissions, which specifies “alien unlawful enemy combatant.” The military commissions, as this language is written, does not appear to cover US citizens.
And since the NRO quoted with absolute accuracy the same text you looked up, they gain authority as credible transcribers.
Our detention policy in Italy toward suspected German spies was more humane in 1944 because of our immigration policy?
We gave suspected Vietcong more rights than the French did because of our immigration policy?
(Incidentally, I always thought that welcome/unwelcome line was supposed to fall at the Rhine, not the Atlantic; notre ancestres les Gaulois and all that.)
Tell the Japanese-Americans we don’t make bright lines between citizen and non-citizen. (A complex matter, as Mr. Burke would say, but one in which the non-citizenship of the issei was of great importance.) Or, for that matter, tell it the braceros we deported en masse back in the 1950s.
Again, you are conflating how we deal with foreigners abroad in wartime and how we deal with foreigners at home in peacetime. You are assuming that American civil law is appropriate in Iraq, Afghanistan, etc., and failing to make necessary distinctions.
I think that unthought-out and often mistaken statements of principle are quite American, so I have no problem claiming Mr. Jacobs’ as a countryman. Though his line does give me an unexpected spring of sympathy for Mr. Larison’s position here:
http://larison.org/2006/08/23/who-we-are/
The determination of unlawful enemy combat status can indeed apply to US citizens; that is irrelevant to the question of jurisdiction of military commissions, which specifies “alien unlawful enemy combatant.†The military commissions, as this language is written, does not appear to cover US citizens.
The difference between “does not appear to†and “does not†is germane here; which is why I say that our government’s practices are currently a matter of policy, not law. Appearances can be deceiving.
And since the NRO quoted with absolute accuracy the same text you looked up, they gain authority as credible transcribers.
I’m pleased to hear it. I continue to think that it’s good practice to go “back to the sources†when possible.
Our detention policy in Italy toward suspected German spies was more humane in 1944 because of our immigration policy?
What?
We gave suspected Vietcong more rights than the French did because of our immigration policy?
What?
(Incidentally, I always thought that welcome/unwelcome line was supposed to fall at the Rhine, not the Atlantic; notre ancestres les Gaulois and all that.)
What? There are enough red herrings in the world without your trying to create more of them, Withywindle. Let’s stick to the subject at hand, if we may.
Tell the Japanese-Americans we don’t make bright lines between citizen and non-citizen. (A complex matter, as Mr. Burke would say, but one in which the non-citizenship of the issei was of great importance.) Or, for that matter, tell it the braceros we deported en masse back in the 1950s.
This argument — that we have violated our own principles in the past and therefore may continue to do so today — is one of the last refuges of the truly desperate. You could cite the Alien and Sedition Acts as well, since they constitute a closer comparison to the current situation. Ultimately they were recognized as betrayals not only of the Constitution but of the more general principles of American law. I can only hope that the same will happen in this case.
Again, you are conflating how we deal with foreigners abroad in wartime and how we deal with foreigners at home in peacetime. You are assuming that American civil law is appropriate in Iraq, Afghanistan, etc., and failing to make necessary distinctions.
Not at all. I am disagreeing with you about how we should deal with foreigners abroad and at home in wartime. The distinction is not a subtle one.
“And since the NRO quoted with absolute accuracy the same text you looked up, they gain authority as credible transcribers.”
The NRO did not quote the text, IIRC, but their emailers did.
We should keep in mind here that Ackerman’s argument is, contra some liberal bloggers and the NRO, more subtle:
“But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.
Legal residents who aren’t citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president’s suspicions.”
…
“The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review
But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.”
As I said, this is a far more subtle argument than “it allows US citizens to be rounded up and denied Habeas Corpus protections.” And, I think, Ackerman nails the question of “bad faith” (which you refer to as “err[ing]” in his references to what Administration officials have claimed about the legal scope of their powers.
W2: a litany of past abuses does not justify present ones. Justice Jackson was right and the majority were wrong in Korematsu. Are you next going to argue that the US once had legal slavery and committed ethnic cleansing against native Americans, so no big deal if we do a bit of indefinite confinement, torture, or even, hypothetically,, some genocide now?
As to your insistence that Alan is “conflating how we deal with foreigners abroad…” I think your verb choice says a great deal: you are arguing over an “is”, the rest of us are arguing over an “ought.” Currently we, in our estimation, violate a number of international legal obligations in our treatment of foreigners abroad. We also violate a number of core American principles, such as the belief that the denial of Habeas Corpus is, by definition, an act of tyranny.
Indeed, you make say “assume” all you want, but do you not find it slightly suspicious that the Congress and the Executive would explicitly deny Habeas Corpus pleas relating to the Geneva Convention and immunize its own agents for violations of said convention if they were not worried that their “interpretations” (some might say rapid subjectivism) might not carry the day?
And, I should add, that you are simply factually wrong. The bill does not strip “foreign aliens” of their rights: it also strips *resident* aliens of their rights.
Alan:
“The difference between “does not appear to†and “does not†is germane here; which is why I say that our government’s practices are currently a matter of policy, not law. Appearances can be deceiving.â€
I used “does not appear to†out of modesty; I am not a legal scholar, and I hesitate to claim the certainty of one. A layman’s reading of the language cited seems to indicate that it states explicitly that US citizens will not be stripped of habeas corpus. Since this was originally one of Tim’s greatest complaints, which you supported, it does matter that the language of the law seems explicitly to deny your claims. As one layman to another, I think you ought to take seriously the common-sense reading of the law.
“There are enough red herrings in the world without your trying to create more of them, Withywindle. Let’s stick to the subject at hand, if we may.â€
They are relevant analogies. The critiques by Tim, et al, in their loose wording, argue that the US should give the protections of US civil law to all people detained as enemy combatants, world-wide. The analogy to German spies or Vietcong is direct: your proposed policy, if in operation then, would have forced the US Army to provide civil trials to suspected enemies captured abroad. If you think that would have been a preposterous thing to undertake, then you should think this current policy preposterous.
As to citizenship theories dividing on the Rhine or the Atlantic—like Tim, I am easily distracted by questions of interest.
“This argument — that we have violated our own principles in the past and therefore may continue to do so today — is one of the last refuges of the truly desperate. You could cite the Alien and Sedition Acts as well, since they constitute a closer comparison to the current situation. Ultimately they were recognized as betrayals not only of the Constitution but of the more general principles of American law. I can only hope that the same will happen in this case.â€
As dnexon, said, the distinction between “is†and “ought†is what I am attempting to establish here. You said “one of the things that has always distinguished Ango-American law from Continental traditions is its refusal to make such strict distinctions between citizens and non-citizens as Withwindle likes to make.†You made a claim as to what Anglo-American law has been; you seem actually to be referring to what you think Anglo-American ought to be, rather than the actual tradition. This brings into question whether your putative principles are anything but a retrospective distortion based on current sentiment; and whether rather different principles might not be deduced from our actual precedents. Incidentally, Wikipedia doesn’t indicate that the Supreme Court has ever declared that the internment of non-citizen Japanese-Americans was unconstitutional.
What, incidentally, does a good conservative think are the “general principles†of American law? I mean, assuming you’re not a natural law fella.
“Not at all. I am disagreeing with you about how we should deal with foreigners abroad and at home in wartime. The distinction is not a subtle one.â€
In that case, as you attempt to expand the protections of US citizenship to encompass the entire world, you are a conservative engaged in a project that is at once revolutionary, transcendent, and quixotic. Which is, of course, in the mainstream of the American political tradition; but still a little peculiar.
************************************
DNexon:
“But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.â€
How does this follow? Again, the language of the bill would seem explicitly to forestall this.
“Legal residents who aren’t citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president’s suspicions.â€
Yes.
“The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.â€
Yes.
“But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice.â€
Again, where does the language lead to a US citizen being subjected to these military commissions?
“Indeed, you make say “assume†all you want, but do you not find it slightly suspicious that the Congress and the Executive would explicitly deny Habeas Corpus pleas relating to the Geneva Convention and immunize its own agents for violations of said convention if they were not worried that their “interpretations†(some might say rapid subjectivism) might not carry the day?â€
This was in the news reports: They were worried that the ACLU, or whoever, would go judge-shopping and find some judge to entertain a harassing suit. Pres. Bush said this to Sen. McCain, and Sen. McCain concurred that they needed to forestall this circumstance.
“And, I should add, that you are simply factually wrong. The bill does not strip “foreign aliens†of their rights: it also strips *resident* aliens of their rights.â€
I have never disputed this. I have said that any opposition to this bill ought to discriminate among the various categories. An opposing argument that argued on the narrower grounds that legally resident aliens, on American soil, should have some greater number of enumerated legal recourses, as a matter of policy but not of right, would be far more persuasive than the more loosely worded arguments used heretofore.
it does matter that the language of the law seems explicitly to deny your claims.
I quoted the passage of the law identifying the people to whom it applies, and since it manifestly does not except U. S. citizens, I do not see how you can claim that it “explicitly†does any such thing. If you want to say that it does so implicitly, in light of other related laws already in existence, then you may have an argument.
The critiques by Tim, et al, in their loose wording, argue that the US should give the protections of US civil law to all people detained as enemy combatants, world-wide. The analogy to German spies or Vietcong is direct: your proposed policy, if in operation then, would have forced the US Army to provide civil trials to suspected enemies captured abroad.
I’ll let Tim speak for himself, if he wishes, but I have not proposed a policy; I have criticized a just-passed law. I wish you would stop arguing with people without paying even a passing moment of attention to what they’re saying, and I wish you would stop assuming that the only possible options are the most extreme ones imaginable. A person who, like me, says that military interrogations need oversight and the possibility of having their mistakes corrected or rectified is simply not proposing that we “give the protections of US civil law to all people detained as enemy combatants.†That’s just stupid.
This brings into question whether your putative principles are anything but a retrospective distortion based on current sentiment; and whether rather different principles might not be deduced from our actual precedents.
Someone who claims as key justifying precedents for current action the deportation of the braceros and the internment of Japanese-Americans during WWII probably shouldn’t make that argument.
Incidentally, Wikipedia doesn’t indicate that the Supreme Court has ever declared that the internment of non-citizen Japanese-Americans was unconstitutional.
I made no comment about that, though — as you would know if you had been paying any attention at all — I did make a comment about the Alien and Sedition Acts, which are now universally considered to have been unconstitutional. Perhaps you want to defend them now as lying at the very heart of the American jurisprudential tradition to which you strive to be faithful? It would complete your Trinity of precedents.
What, incidentally, does a good conservative think are the “general principles†of American law?
Don’t know. I know that I see them as arising from English common law, as it began with Magna Carta.
as you attempt to expand the protections of US citizenship to encompass the entire world, you are a conservative engaged in a project that is at once revolutionary, transcendent, and quixotic.
Well, first of all, I do not believe that the entire world is under U.S. military interrogation, though perhaps Secretary Rumsfeld is working on that. But in any case, I would remind you again that there are some intervening positions between granting enemy combatants “the protections of U. S. citizenship†and granting them virtually no protections and absolutely no legal redress for any mistreatment.
Good grief, withywindle, we could fill the barns of Iowa with all the straw men you’re making. Why have I even been bothering to respond to you?
“This was in the news reports: They were worried that the ACLU, or whoever, would go judge-shopping and find some judge to entertain a harassing suit. Pres. Bush said this to Sen. McCain, and Sen. McCain concurred that they needed to forestall this circumstance.”
Concerns about the temporary impact of “forum shopping” are not a justification for indefinitely eliminating a right long considered, both in English common law and by our founders, to be an essential protection against tyranny. They are not a rationale for precluding any redress for those whose rights — under dispostive international law — may have been violated.
You forgot the other rationale: that devious terrorists and their sympathizers would clog our courts with Habeas Corpus petitions and in so doing cripple our justice system.
Thank you for confirming that you are not, in fact, worth discussing these matters with.
DNexon:
I guess you can’t talk with Sen. McCain either. Ah, well.
And incidentally, if the habeus corpus of US citizens is not at issue, than forestalling appeals is not eliminating that right; whatever other problems it may have.
“I quoted the passage of the law identifying the people to whom it applies, and since it manifestly does not except U. S. citizens, I do not see how you can claim that it “explicitly†does any such thing. If you want to say that it does so implicitly, in light of other related laws already in existence, then you may have an argument.â€
“JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.â€
I do not see how this can be read as other than an explicit exclusion of all US citizens from the jurisdiction of these military commission, relying on no other law to make the point.
“A person who, like me, says that military interrogations need oversight and the possibility of having their mistakes corrected or rectified is simply not proposing that we “give the protections of US civil law to all people detained as enemy combatants.†That’s just stupid.â€
It would indeed be stupid. I have been asking all along for modulated proposals, discriminating among the different potential subjects of the military commission law. My point is that the indiscriminate critiques leveled at the law allow for these extreme interpretations; and the repeated refusal by my interlocutors to make more discriminating critiques—and, indeed, the tenor of their language—has made it sound like this is what they were advocating. I would welcome such fine-tuned critiques. The excerpts of Ackerman presented by DNexon were very welcome.
“Someone who claims as key justifying precedents for current action the deportation of the braceros and the internment of Japanese-Americans during WWII probably shouldn’t make that argument.â€
Well, it doesn’t play well to this audience. Note, however, that I am focusing solely on constitutionality here; not on prudence or morality.
“I made no comment about that, though — as you would know if you had been paying any attention at all — I did make a comment about the Alien and Sedition Acts, which are now universally considered to have been unconstitutional. Perhaps you want to defend them now as lying at the very heart of the American jurisprudential tradition to which you strive to be faithful? It would complete your Trinity of precedents.â€
I do try not to answer every point raised; brevity is the soul of wit, etc.; and sometimes I think I address points implicitly. However, since you ask, I take the Sedition Act to be unconstitutional; to the best of my knowledge, the Alien Act has not been declared unconstitutional; and the following review – http://www.questia.com/PM.qst?a=o&se=gglsc&d=5001369695&er=deny –
argues that while it was badly worded, it was more than arguably constitutional. I would say that the general amount of power given to the executive by the Alien Act to deport aliens is constitutional, although the exact wording should have been modified so as to bear up under judicial scrutiny. But this is an argument for a better legislative clerk.
“Well, first of all, I do not believe that the entire world is under U.S. military interrogation, though perhaps Secretary Rumsfeld is working on that. But in any case, I would remind you again that there are some intervening positions between granting enemy combatants “the protections of U. S. citizenship†and granting them virtually no protections and absolutely no legal redress for any mistreatment.â€
Then propose them, specifically, rather than making unmodulated statements of principle, which do not disavow straw-man extremes.
“Good grief, withywindle, we could fill the barns of Iowa with all the straw men you’re making. Why have I even been bothering to respond to you?â€
Dunno. Me, I’m playing hooky from work.
If torture were “constitutional,” would that make it ok? I don’t think so.
Categorical moral imperatives, prudence and necessity, and constitutionality and legality are three separate fields of reference.
One point of clarification about my consistent reaction to this set of policies. It is not that we need the full protections of US civil law extended to non-citizens accused of being enemy combatants; but some kind of habeas protection to people so accused is absolutely vital, as is some kind of review of the process from outside of the executive or military. This is where habeas goes beyond being the right of a US citizen and connected to broader universal human rights. I want Withywindle to tell me how, under the current bill, an Iraqi taxi driver falsely accused of complicity with the insurgency by an unreliable source who has a personal grudge against him who ends up permanently detained by US forces, is supposed to contest his accusers. Right now, it comes down to the honesty and integrity of the men holding him, and that is precisely the general wisdom of the US Constitution, as it ought to apply to all situations and peoples, citizens or not: you don’t put your trust in men. We know full well that under those circumstances, sometimes a man will have the integrity to admit a mistake, and act accordingly. We know full well that under those circumstances, other men will compound their mistake, bury it under layers of bureaucracy, stonewall, falsify evidence, or show depraved indifference as to whether it was a mistake or not, and that in many cases, military commissions will simply accept that. In the latter case, what we end up with is an innocent man rotting in a cell for the rest of his life, without even knowing how he got there or having any hope of connection to a system of overview.
You don’t have to reproduce the US judicial system; but if a war on terror involves detaining and incarcerating men and women in circumstances where their guilt or innocence is not immediately evident (e.g., they are not soldiers in uniform captured during military action), you’ve got to have the essential components of a justice system in place. And one essential component is a habeas right of some kind; another is overview from some authority exterior to the authority that confined the person in the first place.
Withywindle is The Woodcock and I claim my five pounds.
Defending torture is obscene. It is a moral question and splitting legal hairs over it is morally reprehensible. “Cruel and unusual punishment” is unconstitutional, and this is a moral imperative within the constitution.
“I want Withywindle to tell me how, under the current bill, an Iraqi taxi driver falsely accused of complicity with the insurgency by an unreliable source who has a personal grudge against him who ends up permanently detained by US forces, is supposed to contest his accusers.”
He has no such right under the current bill, and should not–since the same right accorded to the taxi driver will benefit the actual terrorist, who can then attempt reprisals. (Messages routed through his defense lawyer, doubtless.) As a matter of policy, the US military ought to check up on these accusations (and I presume it has an administrative procedure of some sort), using the same sort of standards used against Italian farmers accused of acting as German spies, or Vietnamese farmers accused of being Viet Cong or Viet Minh in disguise. These, I trust, were entirely run by the American military, with no oversight by the legislature or the judiciary. You are correct that it is liable to abuse. I would advocate a system of rigorous internal checks within the military–which I gather either exists already, completely or in good measure. (We do release people who have been falsely accused, you know. Some of them even talk to journalists, which is where we get some of the information on which this debate is based.) The alternative is also liable to abuse, and with graver consequences.
I note, incidentally, that habeas corpus derives from English common law, and is presumably not present in the vast majority of liberal democracies around the world. I am not up on my latest UN and EU conventions; do they in point of fact have an equivalent? And what is the name? (A quick google-search finds various British Euroskeptics saying that the UK is losing habeas corpus by entering into the EU, which indicates the possibility that habeas is not a given across the puddle.) All this to point out that to say that “one essential component is a habeas right of some kind” might lead one to believe that the European Union and Japan are lacking the essentials of a justice system.
JMAYHEW: “Defending torture is obscene.”
TIM: “I readily acknowledge that under cover of darkness, in dire circumstances, sometimes people are going to do things that they deem necessary in the moment, and sometimes I’d probably judge them to have done the right thing.”
Discuss.
I would rather the abuse you so fear than the abuse I am certain will happen in the other direction. Because the very nature of the war on terror is such that far larger numbers of innocents are going to end up in detention at various point; your analogy to spies in more formal wars is simply a bad one. By the very fact that this struggle exists in a twilight between stopping criminal activity and military conflict, its norms have to reference both criminal justice and military justice.
As for the other point, learning to have a complex engagement with the ambiguous choices of individuals under morally extreme circumstances is one thing. Writing into law a blanket justification for those choices in advance of their being made is entirely another. Knowing that somewhere out there in a war zone, a man may torture another and I might afterwards myself feel ambivalent about what happened is one thing; authorizing all men on my side in that war zone to employ interrogation methods that I think constitute torture is another thing.