Granted that it would put us in an awkward position to grant habeas corpus rights to thousands of foreigners in detention sites around the world. In a functioning legal system you eventually have to let a prisoner go if you don’t gather or keep any records to justify why you threw him in a cage, and you can’t cover your ass with evidence that obviously came from torture. Yet that’s pretty much what the Bush team did.
So yeah, it sucks that applying the most important and fundamental principle in our entire legal system would make us look bad and put some bad actors on the street (not that we know who they are). But what’s the alternative? Do we start applying the law only when it doesn’t embarrass someone?
Yeah. I guess we do.
This, by the way, explains why I don’t have much hope for America. The fight it would take to restrain Addington’s Constitutional extremism proved so unappetizing that opinion makers gave up and embraced it instead.
As much as I doubt that Obama will encourage the security services to torture anyone, I don’t think that is the important question. Let’s say that some seemingly sane Republican wins in 2012 or 2016, and let’s say that he decides that some imminent danger, the time-worn alibi of dictators everywhere, necessitates a little rough stuff (a bonus for the torture crowd – some new tools have a potential for markless pain that would make Dick Cheney literally burn with envy). What will we do, arrest him? The consequences of such an extreme act are clearly unacceptable.
Corner Stone
Tim,
I’m afraid I don’t quite get what you are driving at here.
It seems almost as if you want the admin and DoJ to follow the law?
But if that’s the case, then wouldn’t you quite simply be *Hamsher 2: Electric Boogaloo* ? And be one of the worst people on the planet?
I admit, I’m confused.
Notorious P.A.T.
Gosh, I’d hate for us to put ourselves in an awkward position. Better keep locking people up forever, for no particular reason, in secret prisons. We can do that because we are the good guys.
geg6
I’m with you, Tim F.
It’s my biggest disappointment with Obama (besides HCR).
However, this is better news:
http://crooksandliars.com/nicole-belle/obama-re-nominates-dawn-johnsen-olc
The Grand Panjandrum
The system is broken and will take decades to fix. It may well be too late.
Citizen Alan
@Corner Stone:
I have to agree with Corner Stone, Tim. I mean, Obama is doing so many good things with counterterrorism. Is habeas corpus really the hill you want to die on? Or whatever euphemism applies when its a progressive who dares to complain about Obama?
Phoebe
Who said he wanted to die on a hill?
He just said something critical of Obama, that’s all. We’re not allowed to do that? I remember Obama asking us to do that. !! Did I just blow your mind?
Yeah, Tim F is right as rain, as was this post by Sullivan, whom you all can’t stand, but whatever.
Wait, is everyone being sarcastic? If so: ha!
Mark S.
If Afghanistan is so dangerous, why did we take potentially dangerous prisoners over there? Did we take Japanese POWs captured at Guadalcanal with us to Okinawa?
MikeJ
I don’t think you’ll find any argument here that torture is bad and we shouldn’t do it. I don’t think Obama is ordering torture either. The only question is how does he clean up the mess Bush left.
Some of the people that have been captured really are the worst of the worst. Even so, I would not have wanted them to have been tortured. I realise the legally proper thing to do is to release them. I also don’t think that letting they go would be very wise.
This belief only extends to a small percentage of people detained. Most can, should, and will be given trials or just released. However, I don’t think we could let Bush and Cheney’s crimes endanger Americans.
And I know what your arguments are. How do you know who are the worst without a trial? Everyone deserves a trial, with no exceptions. I’ll agree with every argument you make. You’re right. Even letting mass murderers go doesn’t bother me that much. All of the arguments against illegal government action outweigh the cost of letting a criminal go. The problem is that we won’t be able to stop the one that want to commit new crimes from doing so.
Tsulagi
Tim F., you must be a PUMA. You don’t see the big picture. Do the math, if you don’t have 60 votes for real habeas corpus, you fold going with the one minority R-baggers let you have. It’s the new Politics and Government 101.
Citizen Alan
@Phoebe:
Not without receiving a certain amount of outright scorn from John and Tim, or at least that’s been my observation over the last month and a half.
Yutsano
@Citizen Alan: So then Tim needs to scorn…himself? I r cornfuzzled.
Cat
Did the #5 and #6 just say habeas corpus wasn’t “a hill worth dieing on”?
You guys are being sarcastic right?
And WTF is up with these cliched metaphors being spouted by the elites and then being regurgitated by everyone?
Tim F.
@Citizen Alan: A month and a half is about how long it’s been since I contributed much of anything.
El Cid
Isn’t it time already to invent the negative zone?
scav
I am so hoping the sarcasm is strong in this thread.
Chyron HR
Remember, kids: Wanting the government to obey the law is exactly the same as
wantingdemanding that the government institute a public option for health insurance.Corner Stone
@Tsulagi:
Legalize
I think there’s a bit of difference between rolling your eyes when “progressives” scream about Obama “selling us out” and being “just like” or “worse” than Bush, and criticizing an Obama policy position as being ineffective, wrong, etc.
Mnemosyne
I know I’ll get flamed, but I can kinda see the appeals court’s point. If prisoners of war are allowed to challenge their imprisonment based on habeus corpus, that will make for one hell of a giant clog in our court system the next time we’re in a land war and all of the POW’s file habeus complaints.
Of course, as far as I know the people being held at Bagram are still whatever BS “legal” status Bush made up for them (was it “enemy combatants”?) and not POWs, so maybe the court could grant their appeal based on their status. As a nice side effect, it would encourage future presidents to not play games with the status of prisoners of war.
Corner Stone
@Mnemosyne:
still liberal
Didn’t get your point, if there was one.
Yutsano
@Mnemosyne: Actually first of all if anyone flames you for this they are instantly an idiot and you can ignore them.
Second, the real issue is that these prisoners were never listed as POWs by the Bush Administration. If they had been, there are already judicial guidelines in place (which also include habeas rights) for them. Bush created a new category for them out of whole cloth just to get them out of the way, hence the klutzy phrase “enemy combatant”. Since they were more or less making this shit up as they went along, it meant that these individuals were stuck in a massive legal limbo with no way out. Pinochet would have been proud of Georgie Boy.
middlewest
God, you people even whine when posters agree with you. The left hasn’t been this whiny and pathetic since Nader.
Mark S.
@Mnemosyne:
I think that’s the key. The Bushies didn’t want to grant anyone POW status because they wanted to torture and build naked pyramids. There are established procedures for dealing with POW’s, including challenging one’s status as a POW.
Julius Ray Hoffman
How pathetic you Obama apologists are! Why doesn’t Obama just close Gitmo like he… ummm… said he would? He’s the commander-in-chief. He can close it and transfer the inmates to federal facilities whenever he wants.
Another question: Why doesn’t he commit to not using secret prisons and open up any foreign detention sites (being that they are no longer secret) to the Red Cross and to journalists, so that we can all see what’s going on? Doing this is perfectly compatible with not granting war prisoners habeus corpus rights or otherwise involving them in our legal system.
Noooooo…. He’s your guy, right, and so whatever he does is just A-Okay… Or at least you are not going to make a fuss about it. Or, if all else fails, you can blame it all on the guy who has been out of office for a year now.
MP
Here’s the thing – let’s say Obama were to unravel everything at once. Just hit the reset button, as if the Bush years and abuses never happened (in some wonderful parallel universe…)
And one of those released comes back to commit some sort of terrorist act. What then? I know the right would pillory him regardless, but at least for now, the center seems to be holding and the right’s attacks have little traction. Would that be the case if he had released detainees so that they could take, oh, I don’t know, art therapy classes in Saudi? It could well topple his Presidency, and with it goes any hope – gradual or otherwise – of a restoration of some of the fundamental principals of our democracy.
eemom
@Legalize:
This.
@Chyron HR:
and that.
The reason this blog is so popular, IMO, and certainly the reason I come here, is that the writers are people with fucking SENSE.
The “Obama’ s a selloutworsethanBush” crowd, not so much.
joe from Lowell
Wouldn’t be nice if we had a thread about detainee issues?
Maybe after this thread, which seems to be about hurt feelings from discussions irrelevant to this one, drops off the page, we can have that thread.
kay
@Mnemosyne:
“During oral arguments, Judges David S. Tatel and Harry T. Edwards pushed one of the attorneys for the detainees, Tina Monshipour Foster, to craft an argument that would limit the reach of habeas corpus to just her clients at Bagram. They wondered whether granting such rights to the Bagram prisoners would extend habeas corpus to military bases across the globe. Such a ruling could be difficult to align with Supreme Court precedent, the judges suggested.
Foster said the judges could narrowly craft a decision applying only to her clients. “
Citizen Alan
@MikeJ:
I don’t know if Obama is ordering torture or not. I know he’s said that “America does not torture,” which is a preposterous lie. I doubt he has ever personally ordered torture of terrorism suspects but he sure does seem bent on preserving his theoretical right to do so in the future.
What I do know is that several people in the previous administration may be guilty of flat-out war crimes, of the type for which we executed foreign military personnel who committed them in the past against American troops and civilians. Instead of investigating and prosecuting these people in a manner consistent with our Constitution and our values, Obama has bent over backwards to shield them from any accountability, even going so far as to send Justice Department lawyers to defend their unconstitutional and criminal acts.
If I sound pissed off and bitter about the Obama administration, its because of this: the next Republican president to come along — the very next one — will do everything that Bush did and worse, because Obama is too much of a moral coward to do anything to prevent it. Why shouldn’t a Republican president order the torture of terrorism suspects if by doing so he can manufacture evidence to take the nation into yet another ginned up war?
Why shouldn’t a Republican president have the power to order partisan trumped up investigations of his political rivals by U.S. Attorneys who openly admit that they work for the President and not the American people?
Compared to that betrayal, all the other occasions when Obama decided to take a big piss on progressive Democrats is just a little warm stinky rain.
eemom
@MP:
and that, also too.
Yutsano
@Julius Ray Hoffman: I’m sorry your favorite Grandpa didn’t win. Now will you get the fuck over it?
geg6
OT and possibly related to the previous thread, but this is interesting:
http://tpmdc.talkingpointsmemo.com/2010/01/solving-the-steele-mystery-why-did-he-cancel-on-abc.php?ref=fpa
Citizen Alan
@Tim F.:
D’oh! I got you conflated with DougJ.
Cat
@Mnemosyne:
I dont think anyone is suggesting POW’s get access to habeus corpus. I think people want the detainees to be treated as POW’s or criminals. I think everyones huge problem is this 3rd status, enemy combatant, they seem to be assigned which is a non-person status which is a violation of their human rights.
joe from Lowell
Man, do they need to bring back civics.
Do you know what purse strings are?
Do you realize that Congress has forbidden the administration from spending any federal funds to move Guantanamo prisoners into US prisons?
Do you know know these things, or do you just not understand what they mean?
Yutsano
@Cat: Which the fucking idiots wearing the robes in Washington upheld as a status. That was a bigger shit on the Constitution than anything Addington or Yoo could come up with. That is REALLY going to be tough to get around.
Yutsano
@joe from Lowell: Dude you’re harshing on his Obama hate bro. Can’t you tell the man is ANGRY??
zmulls
@mnemosyne
The point is that next time we get into a War — capital “W” — with another state (an entity with an identifiable head-of-state for starters), we will follow the rules of engagement and the Geneva Convention. Anyone captured on a battlefield will be designated a POW, kept according to the rules, with surrender negotiated at the end of hostilities.
And when we engage properly in a war — small “w”, like the war on drugs or the war on terrorism — where bad actors violate laws in several countries; we will follow our own laws from the get-go. We will read them their rights, collect evidence, not torture them, and haul them into court.
What we have here are people that were given a whole new made-up designation and were given not only no legal protections but were mistreated. So any evidence gathered is inadmissable. We know they’re bad guys and will do their best to hurt the country, but we can’t treat them like POWs (because we blew that call, and they’re not representatives of any country we can negotiate with) and we can’t treat them as criminals (because we have no evidence against them) and we can’t let them into the legal process where they belong (because they’d have every reason to let the world know what sorts of torture the Bush regime was up to). It’s a no-win-possible situation, and Obama is trying to navigate it — whatever he does is wrong.
Tax Analyst
@ #8 Mike J:
But which ones, MikeJ? While you note that “the legally proper thing to do is to release them” you backtrack and say letting them go wouldn’t be very wise. Well, that’s nice. Let’s step back from the abstract and consider them as “human beings” for a moment…kinda sorta like you and me, in the kinda-sorta almost way Americans(and some others) sometimes like to think of these things. Do we keep them all in cages indefinitely because one (or even more than one) might do us harm in the future? Remember now, “real people”, some of them with actual families and maybe even capable of feeling pain and despair and that sort of mundane shit. Quite a few of them probably totally innocent of terrorism. As a people that allegedly gives a shit about “human rights” how do we mosey on about our business at that point? How many principles do we have to toss aside before we stop considering ourselves “better” than the other side? Or does that even matter anymore? And when does Cheney’s “1%” theory become applicable to our own citizens? I guess we could ask Jose Padilla if he weren’t almost a human vegetable by now.
Seriously, I didn’t mean to jump all over you, but following your thoughts leaves us right where we are, which doesn’t seem a reasonable or justifiable position for a nation that acts under the Rule of Law.
Citizen Alan
@scav:
It is. I was referring to a recent post by either John or Doug in which the author referred dismissively to the debate over whether to have the Cadillac insurance plan tax vs. the millionaire tax in the health care bill and ask whether it was really the hill that progressives wanted to die on. Never mind that progressives have surrendered nearly every other hill and are on the verge of just capitulating completely to the enemy. My understanding of the debate is that since Jane Hamsher has seemingly lost her mind, it is now acceptable to equate every progressive complaint about Obama with PUMA-mongering or whatever the appropriate verb is.
It has been suggested that eventually Obama will flip or sell out on some issue that is supremely important to John et al, and then they will finally understand what Hamsher crowd is talking about.
MBunge
“If I sound pissed off and bitter about the Obama administration, its because of this: the next Republican president to come along—the very next one—will do everything that Bush did and worse, because Obama is too much of a moral coward to do anything to prevent it.”
It’s not really Obama’s job to prevent that from happening. He’s got about a trillion messes to clean up and can’t really risk progress on 999,999,999,999 of them just so he can be morally resolute on this one thing.
Asking Obama to make up for the moral cowardice of the entire American political establishment and a huge proportion (maybe a majority) of the American people is kind of silly.
Mike
joe from Lowell
Someone wrote that POWs have habeas rights. That’s not quite right.
POWs have habeas rights – or something similar – under the Geneva Conventions if they are being accused of a crime, and subject to punitive treatment. In that situation, they must be brought before a “regularly constituted tribunal” that provides the accused with the rights and procedure that would be extended to the detaining nation’s own soldiers if they were accused of a crime.
However, people being held as POWs, and treated in accordance with the rules for POWs, can’t contest that detention.
Mnemosyne
@Cat:
I think the court may be worried about eliding the difference between POWs and “enemy combatants.” Of course, we wouldn’t have this problem if that fucking two headed idiot Bushcheney hadn’t been making shit up as they went along, but I’m hoping our courts are competent enough to sort out the legal issues and figure out where “enemy combatants” should be. (I say they should be criminal defendants and thus eligible for a habeus challenge, but I could see an argument for making them POWs.)
My question is, who are these other prisoners at other bases that the court is worried about giving habeus rights to? Isn’t that the kind of question that journalists should be working on?
Nikki
Is this how fascism begins?
Fred
It’s time we ask Vice President Cheney if he’d forcibly sodomize his own daughter if it might protect the nation from an imminent terrorist attack. If he refuses to commit incestuous rape to keep us safe, why do we think he was strong enough to protect us against terror?
It’s also time we ask all candidates to high office if they can conceptualize problems in frames other than the idiotic and unrelated hypothetical questions offered by TAs during freshman philosophy recitations.
joe from Lowell
@Yutsano,
It’s not the Obama-hate; it’s the bloody ignorance, which always seems to be accompanied by “Why don’t you idiots…” blah blah blah.
scav
a country that in theory acts under the Rule of Law whereas a lot seem to interpret that as Rule of Law+
+Unless Inconvenient.
MBunge
“Seriously, I didn’t mean to jump all over you, but following your thoughts leaves us right where we are, which doesn’t seem a reasonable or justifiable position for a nation that acts under the Rule of Law.”
I’m sorry. I couldn’t quite hear you over the roars of laughter from American Indians.
Mike
GregB
We should just rewrite the old the fascist axiom.
Torture them all and let God sort them out.
-G
gopher2b
@Nikki:
No.
GregB
Nikki,
We are well on our way.
-G
Yutsano
@Mnemosyne: Actually, we can’t go back and retroactively declare them POWs because we have no declaration of war against a state actor. Otherwise it would take a simple signing of Obama’s pen to change their legal status and they could be held (with all the protections the Geneva Convention holds) until the war was declared over. And joe from Lowell is right in that POWs cannot challenge their detention but they CAN challenge whether they should be regarded as such or innocent civilians. POWs can also challenge the conditions of their detention in court as well, Bushco was denying them really any due process rights period.
Citizen Alan
@MP:
So I guess every time a criminal who is released for lack of evidence or after a trial and acquittal subsequently commits a crime, it represents a failure on the part of the DA. If someone gets acquitted but the cops think they did it, we should just keep them in jail because actually doing what the rule of law requires is just too damn messy.
I never expected Obama to be anything other than a center-left, pro-business politician, but I held out hope that he would conduct himself in such a way that I would no longer feel crushing shame and humiliation at being an American citizen. How embarrasingly naive of me.
gopher2b
Can I be the first to note that there isn’t an actual decision yet. The judges expressed “uneasiness” during oral arguments. They always do this. Judges are all nervous Nellys. (Though I doubt very much they will extend habeas corpus rights to people held in U.S. controlled prisons in Afghanistan)
POWs have never had habeas rights and they shouldn’t. It would be insane. The solution is to start treating these guys like POWs in name and in fact.
zmulls
I always thought the basic idea of America was that everybody gets habeus rights just by being human. Specter did a lot of things to make me upset but he irrevocably lost my vote the day he voted against habeus (after offering a losing amendment to save it) in the military tribunals.
The idea that when you are accused of something by the state, the state has to TELL YOU WHAT IT IS YOU’RE ACCUSED OF, and produce SOME EVIDENCE for thinking you did it, is pretty basic. That and allowing you to get up in some forum and explain why you didn’t do the thing the state says you did, and why the evidence they are presenting doesn’t prove you did it. It’s not an American concept per se, but it was one of the linchpins of the idea of America.
The difference is “You did this, now prove you didn’t do it” vs. “You think I did this, now you prove that I did it” is vast.
gopher2b
@Citizen Alan:
Can I also be the first to note that Obama is in….like….a whole other branch of the government. It’s called the Executive Branch. This is the Judicial Branch. They’re different.
Cat
@Yutsano:
I am really really not trying to think about it. It makes me so angry.
Bruce (formerly Steve S.)
You are correct. Even the most leftwing government we might ever again see in our lifetimes embraces the defense/security state with complete gusto. If America doesn’t destroy the entire world it will surely immolate itself over the course of the 21st century. I myself only have a few decades left before I shuffle off this mortal coil, but to those of you in your twenties I am genuinely sorry that older generations didn’t do more to stop this madness.
joe from Lowell
zmulls,
It’s an even worse situation than you describe.
In many cases, we do, but it’s inadmissible.
Imagine a situation where the military or CIA or somebody captures an al Qaeda operative, during Bush’s tenure. Of course, he is tortured, and confesses all sorts of things. One bit of information he provides is the name of his associates. The police get warrants and arrest them, and sure enough, they’re terrorists all right. Some of them have explosives in their apartments, some of them have laptops. They search the laptops, and find evidence of an ongoing plot the implicates more people. Those people are arrested as they about to undertake an attack, with their equipment on their persons. We’ve a metric shit-ton of evidence on everybody.
In our legal system, it all gets thrown out, under the exclusionary doctrine’s “fruit of the poison tree” appendix. Evidence gathered in an illegal manner is excluded, AND evidence gathered in a perfectly legal manner which the authorities were inspired to look for by the illegal evidence is excluded as well.
The reason for this doctrine in our civilian legal system is clear: to discourage bad behavior by the government. But now, thanks to Bush and his criminality, we find ourselves in a situation where we can have active terrorists, against whom we have a mountain of evidence, who could never be convicted in our courts. Thanks, Dubya! The career people at Justice warned you about exactly this problem, and you decided to dump it on your successor, and the country as a whole, anyway.
So, now what? Anybody who thinks the answer is obvious is a maroon.
I think we need to allow evidence that was gathered illegally during Bush’s crime spree to be used, if it’s reliable, but only for those cases that were screwed up during that specific period. In my opinion, this would require a Constitutional Amendment which carves out exceptions for a limited number of specified cases, so as to make it perfectly clear that this behavior is not allowed under our Constitution, and will not be adopted going forward.
Citizen Alan
@MBunge:
It’s not really Obama’s job to take any prophylactic steps to prevent the wholesale replacement of our democracy with outright fascism. Right. Good to know.
eemom
@gopher2b:
Obot! Apologist! Everyone knows that Obamarahma COULD have twisted some judicial arms, but noooooo, they are too busy “pissing on progressives” over HCR so as to keep Dennis Kucinich from finding out how Rahm caused the whole financial meltdown while he was Emperor of Fannie/Freddie.
Citizen Alan
@gopher2b:
If the judiciary rules against the detainees, it is because the judiciary has adopted the reasoning put forth by Obama’s lawyers at the DOJ, the ones who are arguing for lifetime incarceration of people on just the government’s say without any possibility of further review.
geg6
@MBunge:
Hmmm. Really? So that whole thing in the oath of office about “preserve, protect, and defend the Constitution of the United States” is no longer operative?
gopher2b
@eemom:
My favorite line in Charlie’s Wilson War:
“Charlie Wilson: I cannot just call up a judge and tell him what to do.
Larry Liddle: Why?
Charlie Wilson: Well cause it’s against… a shitload of really good laws Garry”
MP
Citizen Alan
If you want to argue the points I made, fine, but to create your own arguments and attribute them to me is a waste of time. Like it or not, we live in a Democracy in which perceptions impact who the electorate votes for. If the perception among those less idealistic and informed than you is that Obama made sweeping changes which led to the release of someone who subsequently launched an attack, he’s not going to fare well.
That is why my argument was that he needs to proceed carefully, and methodically – it was not that he fail to proceed at all.
MP
Citizen Alan
If you want to argue the points I made, fine, but to create your own arguments and attribute them to me is a waste of time. Like it or not, we live in a Democracy in which perceptions impact who the electorate votes for. If the perception among those less idealistic and informed than you is that Obama made sweeping changes which led to the release of someone who subsequently launched an attack, he’s not going to fare well.
That is why my argument was that he needs to proceed carefully, and methodically – it was not that he fail to proceed at all.
MP
Citizen Alan
If you want to argue the points I made, fine, but to create your own arguments and attribute them to me is a waste of time. Like it or not, we live in a Democracy in which perceptions impact whom the electorate votes for. If the perception among those less idealistic and informed than you – most of the electorate, I suspect – is that Obama made sweeping changes which led to the release of someone who subsequently launched an attack, he’s not going to fare well.
That is why my argument was that he needs to proceed carefully, and methodically – it was not that he fail to proceed at all.
joe from Lowell
Outright fascism! Outright fascism!
You know why Our Ladies of Perpetual Aggrievement want to team up with the teabaggers?
Because they’re the same sort of people. Not ideologically, but temperamentally.
Outright fascism!!!1!
Martian Buddy
Wikipedia article on the status of “unlawful combatant”. If I understand it correctly, the short version is that Bush & Cheney are full of shit and an unlawful combatant is someone who is not eligible for POW status and therefore is supposed to be charged under domestic laws, like we’ve done with the undie-bomber–it’s not some nebulous third category of combatant that we’re allowed to torture at our whim.
gopher2b
@Citizen Alan:
So, in your mind, the function of the judiciary is to adopt the position of the executive branch without consideration. Why bother having a judiciary in the first place.
WAIT. IS THE FIX ALREADY IN! I didn’t even see it. Magic!!!
Tax Analyst
MBunge said:
No, the American Indians are probably not laughing. What was done to the Indians was awful…and occurred in a past that we cannot change. If we’re still screwing them it ought to be addressed. Slavery was also incredibly awful…and likewise from an unchangeable past. Must we right all past wrongs before we are allowed to correct current excesses?
Does my desire that our nation recognize human rights and follow the Rule of Law make me some sort of naive Pollyanna? Do I ask too many questions, Roseanne Roseanna-danna?
MP
I trust I made my point clearer by posting it twice.
Cat
@joe from Lowell:
Yes, That will deter the state from doing bad things. Telling them they’ve been naughty and we really mean it.
kay
@eemom:
He could initiate a designation process, and then (of course) it would go to the courts for challenge. That’s a fine way to do it.
He could do that, and he better do it soon, because if he doesn’t, defense counsel for these individuals are going to (rightly) argue on their individual behalf (as defense here is doing: she asked for a narrowly tailored opinion, because that’s her one and only job: to get them to hearing).
There’s nothing wrong with that either, but they’re building a body of case law based on individual cases, as here, where the defense has no argument other than drawing a distinction based on country of origin and country of capture.
And that case law is going to control and go in whatever direction it goes until one or another policy-maker or law-drafter gets off their ass and actually grapples with this.
Yutsano
@Martian Buddy: It’s the wording though. Bush created a category called “enemy combatant” whereas we didn’t have to grant them rights under our judicial system or really any system at all except for the ones Bush was sewing up to basically get the judgments he wanted.
Paula
If a particular group of so called progressives are now catching scorn because Jane Hamsher went crazy, it’s because that particular group gave Jane Hamsher enough credibility to become their public face so that her jumping of the shark has that much media impact now. (See similar flame-outs with Grayson, Nader. Waiting for the other shoe to drop on Taibbi. )
So no, I don’t care about their hurt feelings on being laughed at now. She became a de facto leader when they subscribed to her various campaigns and linked to her blog no matter how much her plans for changing public/congressional opinion were debunked by more sober activists. Sober activists who warned that unless she proceeded with more common sense and less hyperbole, she would inevitably do more damage to the credibility of all the good causes she wanted to advance in the public eye.
Also, I agree that John Cole is needling people rather pointlessly. but he doesn’t pretend to be fighting the good fight or building a movement or putting anyone’s feet to the fire on this here blog. He was always a crank: now he’s cranky at you, and I think he’s got a right.
joe from Lowell
Martian Buddy,
I wouldn’t say “not eligible for” POW status. We can grant POW status to anybody who’s fighting against us, if we wanted to.
“Unlawful combatants” who are held have the rights of POWs, and can be kept in that status, until the government brings them before a “regulatory constituted tribunal” and proves their guilt. There’s nothing mandating that the government do this, however.
Maude
@Citizen Alan: It’s not a democracy f-wit. You don’t know the definition of fascism. Get your facts straight as MBunge has and then give it a try.
scav
@Cat: Bingo.
Cat
@MP:
Obama’s job isn’t to do well in the polls, help his party win more seats in 2010, or get re-elected in 2012. His job is to “preserve, protect and defend the Constitution of the United States”.
gopher2b
There must be a JAG officer lurking on here somewhere. Show yourself (and correct me if I’m wrong) but:
I’m pretty sure if you have a POW and you want to prosecute him for crimes, you do so in accordance with the rules and procedures of military proceeding. And, if the military prosecutes a soldier for crimes, he doesn’t have all the same prosecutions as a citizen (like no warrantless searches, hearsay, confessions, etc). So most of the evidence would be admissible.
Obviously, if the confession was procured through torture then it problematic. First, it’s likely false. Second, it was obtained in violation of the law. So, with the exception of the POWs (because that is what they are) where the only evidence the military has is torture (and I’m guessing that a small minority), you could easily prosecute them outside the federal system.
Citizen Alan
@joe from Lowell:
Fuck you, joe from Lowell. I am not on Hamsher’s team. I don’t think I could possibly be in the same room Grover Norquist without punching the little weasel in the face. And from what I can see of the teabaggers, they might as well be the KKK Ladies’ Auxiliary.
None of that has anything to do with the fact that of our only two political parties, one clearly favors overtly fascist policies and the other is too cowardly to oppose them on any of those policies because it would be too partisan.
Everything that was done to Jose Padilla could be done to you, me or anyone else in this country. They locked a U.S. citizen up and tortured him to the point of driving him so completely insane that he begged for the death penalty. No one in authority will ever face any accountability for that, and no one in the Obama administration or the Democratic Party seems particularly interested in making sure it never happens again. Outright fascism, indeed.
joe from Lowell
Cat,
You mean, as opposed to the bad things the Bush administration did? How well were they “deterred?”
It really should be clear by now that people like Bush are not deterred by legal doctrines. (And what’s with the blame-shifting term “the state?” Individual persons acting of their own free will decided to change what “the state” was doing. Don’t let them hide their guilt behind their employer.) The only thing that’s going to deter people like that is to prosecute the people who ordered torture, which we should do when we get the chance.
The issue of deterrent goes to the behavior of people with criminal intent, so the legal status of different acts isn’t relevant here.
The issue of the actual legal status, and what is to be considered normal and appropriate and constitutional behavior is what’s important here. What we don’t want to do is authorize – that is, provide legal authority for – treating people and handling cases the way the Bushies did. Hence, the extreme act of a Constitutional Amendment, which would make it perfectly clear that the treatment of detainees under Bush was not remotely constitutional, while still advancing the interests of justice and security by allowing the guilty to be prosecuted.
Yutsano
@gopher2b: IANAL, but the UCMJ (Universal Code of Military Justice) does in fact have established procedures in place that are very similar to regular civilian courts when it comes to criminal trials. The major big difference is double jeopardy (you can still be court-martialed for a crime even if you were found innocent in a ciivilian court of law) but there are several other differences. Even in the UCMJ you still get habeas rights, and rules of evidence, while looser, still mirror civilian courts.
Corner Stone
@joe from Lowell:
!
kay
@gopher2b:
I think it goes ’round and ’round until somebody writes some rules. The problem for me (and I imagine the detainees) is that we refuse to say what they are. That’s the essence of process, some kind of predictable non-arbitrary system that lets them mount a defense. This is untenable for a lot of reasons, but the most immediate is it seems to be arbitrary.
Or, judges are going to write the rules, case by case, or decide they can’t write rules, and just throw it back to Congress, like they did last time.
Where we ended up with the vaunted military tribunals, who have a stellar record of three convictions, so that was helpful.
gopher2b
@Yutsano:
What about hearsay and warrantless searches. Those would be the two biggies. Even if they weren’t allowed, the exceptions must be big enough to drive a truck through — especially in an active battle field, right?
joe from Lowell
I don’t give a crap what “team” you’re on.
Try to keep your frayed wits about you, son, because your hysterical shrieking and wounded profanity don’t help anything.
The fact that this issue is one of high stakes makes it MORE important for you not to be a hanky-waving hysteric, not LESS.
scav
@joe from Lowell: But what bothers me is the little outsie you keep on adding insisting that “we” can use illegal evidence “just this once, we promise!” and furthermore call it serving the Name of Justice. Justice is also served when those that blew it accept the consequences of their blowing it, which, in this case might mean some bad guys getting out. Yours is exactly the Rule of Law Except When Inconvenient Clause that pisses some of us off.
Citizen Alan
@joe from Lowell:
Well on this, you and I agree. Unfortunately, the Obama administration does not and is prepared to fight to the bitter end to prevent any prosecution or even investigation into Bush era torture practices.
gopher2b
@kay:
I totally agree with you. But habeas rights for these guys is NOT the answer. Even if Obama got behind it, the courts would resist. They hate dealing with habeas petitions from U.S. citizens (read any opinion); I cannot imagine the vitriol that they would spew if they had to start hearing these cases. And the logistical nightware (courts ordering soldiers off the battlefield to come testify the U.S.)…..no way.
joe from Lowell
Corner Stone,
Pinochet is still walking free, but the net is closing in. Maybe he won’t ever face a courtroom, but there are a whole lot of places he can’t fly. Who knows where it will end up.
Prosecuting your own ex-sovereign head of state is a big deal. It doesn’t happen very often – but just because we can’t, realistically, cuff-n-stuff Dick Cheney like he deserves in 2009 isn’t a good reason to give up the ghost. Ending up like Pinochet, disgraced, is a pretty good deterrent, even if it isn’t the justice they deserve.
This is a long game.
eemom
@kay:
THIS is what a reasonable, informed, and sane criticism of Obama looks like, if anyone is interested.
joe from Lowell
scav,
There is no higher law in the United States than the Constitution. Nothing done in accordance with a properly-adopted Constitutional Amendment can violate the rule of law.
As for “dealing with the consequences of THEIR actions,” it isn’t George Bush and Donald Rumseld who get to deal with the consequences of letting actual terrorists go free, now is it?
And what’s with the snarky, air-quotey treatment of the concept of justice? Are you just incredibly hip and ironic that the idea that wrongdoers should face punishment is, like, too totally lame to take seriously?
gopher2b
And, can I note that while people here are screaming “fascism, FASCISM” all over this board, it’s American defense attorneys who have taken up these detainees’ causes, and they are doing it for free.
No one has thrown them in jail, no one has blacklisted them, no one has burned down their houses. I don’t see anything like this for the hikers in Iran. Just sayin.
joe from Lowell
But they don’t have the chance. If the Obama administration were to try to prosecute them right now – as would happen in a perfect, just world – they would be routed from office, the new administration would make a point of granting every defendant a Medal of Freedom, all sorts of laws lauding and approving their behavior would pass Congress, and far from deterring such behavior in the future, the outcome would be to authorize, normalize, and promote such behavior.
Clearly, that’s not what we want.
This is a long game. This didn’t end because prosecutions aren’t feasible right now.
Citizen Alan
@joe from Lowell:
Pinochet has been dead for two years, you dolt. And you are completely delusional if you think Bush and Cheney will ever face any sort of accountability beyond a few tired hippies protesting in First Amendment zones a few miles away whenever they show up for their overpriced speaking gigs.
The Democrats and the media have spoken — it is now permissible for Republican presidents to round up American citizens and torture them to the point of a psychotic break without any fear of even the indignity of an official inquiry. Just as it is permissible for a Republican president to order U.S. Attorneys to loudly investigate and even indict Democratic politicians on trumped-up charges in order to sabotage their reelection campaigns and to fire any U.S. Attorneys who refuse to comply.
The jury’s still out on whether a Democratic president is entitled to the same sweeping powers. Probably not, since a Democrat could be impeached for sneezing too loudly in a public library. But I’m sure those powers will be left completely untouched for the next Republican to come along.
And on a personal note, it has been nearly a year since Obama took office, and the two U.S. Attorneys in my district are still the same loyal Bushies who hounded the most progressive member of the state supreme court out of office and who delayed a series of indictments so as to help swing our last Senate race to the Republican.
kay
@gopher2b:
It’s sad but true.
I just think they are going to end up with this weird and unworkable vaguely jurisdictional dividing line, based on (here) country of origin and country of capture or, with Holder’s statements, based on, I don’t know, locus of attack?
I feel as if courts are just crashing around in the dark with this, desperately looking for some marker, and they love that whole jurisdictional frame, I just know they’re going to come up with a three prong “test” for terrorists, but it could end up with ridiculous results.
Obama or Congress, or both, have to grab this and actually deal with it. I recognize how hard it is. I’m willing to look at any structure they come up with, and agree or disagree, but I do think they can’t just let this become 10 years of case law, or no one may be happy with that result.
joe from Lowell
scav,
The thing is, I agree with all of your points.
This whole problem just sucks. There are no good answers, and we have to hunt around for the least-bad one.
I hope you take this seriously enough to acknowledge that letting terrorists against whom we have solid, though inadmissible, evidence go free is, itself, not a good answer.
I’ve met people who’ve refused to acknowledge that there is anyone who cannot be prosecuted because of the illegal state of the evidence, who is actually guilty of doing anything wrong, deserving of punishment, or a big enough threat to worry about. I can’t respect that willful self-delusion any more than I can respect people who pretend that waterboarding isn’t torture in order to worm out of another inconvenient intellectual trap.
joe from Lowell
Citizen Alan,
I just don’t give up as easily as you, I guess.
It’s just not about immediate gratification for me.
No, it’s not over. We’ve got years and years ahead of us to pursue a modicum of justice, and the deterrent it can provide.
BTW, you obsess about partisan politics too much. Everything is about Democrats and Republicans to you. Bad way to look at the world, if you want to pursue what is right.
joe from Lowell
You think that’s going to stop me?
You give up too easily!
joe from Lowell
kay,
Would case law really be such a terrible way to work through this?
Look at the health care bill.
Case law has done a lot of good for navigating new waters over the centuries.
Cat
@joe from Lowell:
I am guessing but its probably because he doesn’t see what your advocating as justice.
The Bush administration made it legally impossible to prosecute terrorists following our laws. Your solution is to invent new laws and then retroactively applying them.
Many people, including myself, don’t think of this as justice but good example of practices a nation of laws eschews.
Stefan
However, people being held as POWs, and treated in accordance with the rules for POWs, can’t contest that detention.
That’s not quite right. They can contest the fact that they are held as POWs. For example, an innocent farmer who was picked up and held as a POW has the right to a tribunal to establish whether he even qualifies as a POW if he contests his status.
geg6
@Citizen Alan:
And the USA in my district, Mary Beth Buchanan, who put Tommy Chong in federal prison for selling bongs on the Internet just resigned in November after refusing to step down and was never asked to. She was also the person who prosecuted Cyril Wecht and lost and was neck deep in the USA firing scandal as testified to by Monica Goodling. It is rumored that she plans to run against either Senator Bob Casey D-PA or Representative Jason Altmire D-PA 04.
scav
@joe from Lowell: I can certainly admit that it’s a piss poor situation either way we go and that people will, with the best of intentions and motives, differ on what to do. And innocents are the ones going to be the ones to suffer most but they usually are. But, then again, in a democracy above all, we are to a degree implicit with the government and despite having spent most of the last decade screaming and jumping up ad down about damn near everything that administration did, it nevertheless happened on our watch: by the rules of the game, that was our elected government, we the people. So I guess my idea of justice also includes some accepting that we, the people, are going to have to accept some of the less palatable repercussions.
it’s not as though there aren’t going to be unpalatable repercussions to be suffered by innocents if we reenforce our international reputation of only playing the rules when convenient to ourselves.
and the airquotes were because I take justice very seriously and that includes not changing the rules of the game retroactively.
Corner Stone
@joe from Lowell:
***SPUTTER***
Corner Stone
@Citizen Alan:
I think joe was confusing himself with a nice Chilean white wine he’s letting age gracefully for a few more years.
The wine should be consumed, and it will be. When he gets the chance.
kay
@joe from Lowell:
Absolutely it would because we’re holding them.
Jesus. Put yourself in their shoes. I would absolutely despair if someone pointed to health care as an example of the slow and steady process I had to endure before I got to hearing.
It has to be a tad quicker than that. Bush wrote an order designating them…whatever, and then he and his idiot lawyers forgot about the whole thing and moved on.
Obama can order them designated either as POW or POW-like people ( that has to be updated, obviously, because they’re not state actors) or as criminal defendants. Congress will go nuts, and take it up, and the detainee lawyers will file a bunch of challenges, and we’ll be moving in some non-arbitrary direction. There will be screaming, but what we’re doing isn’t working. Why not try a plan?
Holder is actually doing this, remember. He just made an announcement that the 911 defendants go to trial, and he based that on where they hit. I think. If I got his general drift. But that’s not a coherent process, going forward, for these individuals. They can’t plan a defense if they don’t know what they are.
scav
@Cat: exactly. DOJ, not Dept of Calvinball.
Stefan
There must be a JAG officer lurking on here somewhere. Show yourself (and correct me if I’m wrong) but: I’m pretty sure if you have a POW and you want to prosecute him for crimes, you do so in accordance with the rules and procedures of military proceeding. And, if the military prosecutes a soldier for crimes, he doesn’t have all the same prosecutions as a citizen (like no warrantless searches, hearsay, confessions, etc). So most of the evidence would be admissible.
The relevant sections are covered by Chapter III, Penal and Disciplinary Sanctions, of the Second Geneva Convention (excerpted below). A general principle, however, is that you cannot prosecute a POW for an act that would not be considered a crime if performed by your own soldiers (you can’t, therefore, charge a POW with the crime of shooting at your own soldiers, since it’s not a crime for your soldiers to shoot at their soldiers).
I. General Provisions
Art 82. A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.
If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.
Art 83. In deciding whether proceedings in respect of an offence alleged to have been committed by a prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.
Art 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105…..
Art 87. Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.
Mnemosyne
@Yutsano:
Oh, geez, I think I had blocked out the part where they made “illegal combatant” a real designation.
joe from Lowell
Cat,
Terrorism, murder, and conspiracy were illegal long before I wrote my comment. I am proposing to make exactly nothing illegal retroactively.
So, no.
joe from Lowell
Stefan,
Show me. That’s not my understanding. Are you talking about Geneva?
kay
@joe from Lowell:
Conservatives will hate this, so it might be worthwhile doing just for that reason, but what about some input from our “partners in the war on terror” or whatever we’re calling them?
On the POW issue. If we’re basing today’s case on the “active war in Afghanistan” well, Canada has an interest in that, and so does the UK. Is it ridiculous to think Obama can internationalize that specific issue and take it out of domestic politics? I say this based on my vast experience in international law, which consists of one course.
I’m not suggesting bypassing our courts, because they’d eventually have to sign off or on, but I’m talking about taking the discussions of rulemaking (on POW’s only) out of the national sphere, particularly because we keep claiming it’s based on war in foreign lands.
Because domestic politics will fuck that all up. We know that.
Mnemosyne
@Citizen Alan:
Will you please stop spreading the canard that there are no torture investigations going on? There are five, including AG Holder’s.
You look like an idiot when you run around screaming about how no one is investigating while FIVE SEPARATE INVESTIGATIONS are in progress.
joe from Lowell
scav,
This isn’t a game.
I’m VERY concerned about the possibility of enshrining such abominable behavior in our laws – hence, my support for such a radical step as a constitutional amendment with self-limiting, case-specifying language to avoid doing so.
I’m VERY concerned about the erosion of civil liberties if we were to actually lower the standards of evidence or change the legality of, say, coercive interrogations or warrantless searches going forward.
I am not, however, terribly concerned about the “injustice” of “changing the rules of the game” on actual terrorists against whom there is solid evidence. I’m concerned about what doing so could do to the state of our civil liberties if those changes were adopted going forward, and I’m concerned about any changes that make wrongful convictions more likely by allowing unreliable evidence to be used – those are two very serious problems we need to avoid. Bbut as for the specific problem that we “changed the rules of the game” and thereby screwed actual, guilty terrorists out of the process they expected, I’m not really so concerned about that specific problem. It’s way down the list.
Yutsano
@kay: This is a major hotbed issue in Canada as well. In fact Harper basically suspended Parliament just to duck talking about the issue for a few months using the Olympics as an excuse. I’m sure RedKitten has more details about this than we do.
joe from Lowell
kay,
But my point is, a quick solution is quite likely to be a horrible one.
What if it becomes a political fight, and our side loses that fight? Good doesn’t always triumph. I’m afraid that a solution coming out of the political branches right now would be worse than a judicial solution.
BTW, people don’t have to be state actors to be POWs. Our first declared war was against non-state actors.
Nor does the military action in which POWs are captured change their status. The people we captured in Korea, Vietnam, and the Operation Desert Storm were POWs.
joe from Lowell
And you know what?
You get the fuck your high horse. Do you think you’re the only one who’s concerned about them? Do you think the world is divided into people who agree with you, and people who don’t give a fuck about detainees?
tavella
Yup. Obama has permanently enshrined torture as US policy. Whether or not it is currently being used is no longer a legal issue — merely a minor policy one, kind of like whether we fund birth control.
joe from Lowell
I’d be all for listening to what allied governments have to say about this, but I’d hope it would be done quietly.
Having European governments sign onto your proposals isn’t exactly the keys to the kingdom in American politics.
Cat
@joe from Lowell:
Which thus enshrines the ability to gather tainted evidence since you just have to lobby congress to get a free pass. Though I’m sure your proposed constitutional amendment will say, “And you can never pass an amendment like this again, we mean it” Which will make it totally all good.
There are no actual terrorists till the some court convicts them and there is no “solid evidence” until reviewed by a court. You do believe they are innocent until proven guilty I hope?
You are also screwing innocent people out of their due process rights, because you CANT F’ING KNOW WHOSE A GUILTY TERRORIST UNTIL YOU’VE TRIED THEM IN COURT OF LAW.
Which point aren’t you getting? Our justice system as based on the fact nobody is guilty until proven so. You can’t just pick prisoner #43 whose never been convicted of any crime and say he’s guilty because some told you they have a lot of evidence thats irrefutable even though nobody has tried to refute it.
Corner Stone
@joe from Lowell:
***DOUBLE SPUTTER***
General Winfield Stuck
the stoopid is strong in this thread. usual suspects and all that.
Cat
@General Winfield Stuck: You will pry my keyboard from my cold dead fingers before I stop spreading my stupid.
General Winfield Stuck
@Cat: LOL Touche!!
Tsulagi
Citizen Alan, like Tim F., you don’t see the big picture.
A far left SCOTUS led by Justice Roberts ruled detainees had basic rights like habeas corpus. Erroneously reasoning that even though the Gitmo facility is outside the U.S., it is under our control. They noted prisoners in either federal criminal or military justice system have habeas rights protecting them from indefinite detention without charges. DFH judges. What were they smoking?
Now the Obama administration through DOJ in this case and previously has correctly argued our detention facilities under US control in Afghanistan and elsewhere are not Gitmo. Duh. Therefore the SCOTUS ruling doesn’t apply to the same type of facilities if they’re outside Cuba, so indefinite detention is cool then. Can’t you see the simple logic in that?
If you can’t, you would probably agree with this kind of radical…
Good thing this administration knows better.
gwangung
I am convinced that Bush & Co. fucked this up so badly that no matter what gets done, it’ll be all manners of stoopid(tm). It’s just choosing your brand of stoopidity(tm)–and no brand of stoopidty(tm) is any better than any other.
Yutsano
The general tenor I’m getting from this thread is that this situation is more or less like the Afghanistan situation in that no matter what the end result is gonna bite.
Screw it. I’m couch surfing on Tattoosydney’s futon. Call me after the Mayans were proven right.
joe from Lowell
Cat,
The doctrine’s you’re misstating is PRESUMED innocent until proven guilty. Not “innocent until proven guilty.” PRESUMED innocent.
Whether they are actually guilty, or not, is determined by the acts they committed. Under our legal system, we cannot punish somebody until they are convicted in court. This laudable doctrine does not, in fact, eliminate the existence of the actions people have performed.
Do you remember when I said I hoped you weren’t like the people who claim “water boarding isn’t torture” so they get out of a difficult intellectual position through sophistry? You’ve disappointed me, because that’s precisely what you’re doing.
Citizen Alan
@Mnemosyne:
Did you even read the links you cited? The OPR investigation is the only one that even pretends to target the actual architects of the Bush terror policies, and it has been suppressed for five years to the point that journalists have just filed a FOIA request in hopes of finding out what’s in the damned thing. The other “investigations” are, by design, targeted towards low level patsies to determine whether CIA agents broke the law by destroying videotapes of interrogations and whether other interrogators broke the law by going beyond the torture techniques which the Bybee memo claimed were permissible.
That anyone seriously thinks that Judge Jay Bybee, approved by the Senate 74-19 on his appointment to the Ninth Circuit and a potential Supreme Court nominee in a future Republican administration, will ever suffer any meaningful punishment as a result of the memo he wrote (beyond a few angry protesters and serious inconvenience if he travels to Spain), particularly as a result of anything the Obama administration does, is just laughable to me.
joe from Lowell
This just looks dumber and dumber the more I read it.
Maybe we should just eliminate terrorism crimes from our statutes entirely. Then, there won’t be terrorists. Or something.
What point am I not getting? None. There is not a single thing you have said that I didn’t understand before you wrote it.
Do you actually believe that? There are no actual terrorists until a trial is held?
joe from Lowell
It’s funny; I usually have to explain this point to righties:
Legal protections aren’t put in place as favors to criminals. We don’t extend rights of the accused, or forbid cruel and unusual punishment, because it would be so incredibly awful for a bad thing to happen to an actual, guilty violent criminal.
joe from Lowell
What if we never held any trials? Would that mean there would, retroactively, not be any terrorists?
Come on, man!
Back to reality: the Bush administration used criminal procedures, like torture, against actual terrorists, as well as against innocent people. When it did so, some people provided truthful confessions, and others provided false confessions, and others said both true and false things.
Some of these true confessions, illegally obtained, led to other evidence against the detainees, and against other people.
It’s easy to decide what to do with detainees against whom there is no evidence, or only unreliable evidence like confessions made under torture. Those people need to be let go.
It’s harder to decide what to do with people against whom there is a mountain of substantiated evidence, but who have also been tortured, and who cannot be convicted in our criminal justice system because that substantiated evidence would all be kicked under the “fruit of the poison tree” doctrine.
Pretending that Bush and Cheney only ever treated innocent people illegally, so you can avoid having to deal with the second case, is just sticking your fingers in your ears and going “la-la-la-la-la.” Imagine if Khalid Sheik Mohammed has been water boarded right away, instead of being legally questioned for a few weeks before Cheney decided he wanted to have him tortured. Would he have then, retroactively, ceased to be a terrorist? Cease to be guilty of any crimes? Of course not.
If you want to argue that such people should be released regardless, there’s an argument to be made, and some on this thread have made it. There are certainly arguments to be made against any other solution.
But don’t piss on my leg and tell me it’s raining. La-di-dah, it’s a good thing there aren’t really any tough cases to worry about! Grow up.
Mnemosyne
@Citizen Alan:
So only investigations that you personally approve of exist? Anything short of the perfect investigation that you’ve constructed in your head is just imaginary so you run around claiming there are NO torture investigations when in fact there are FIVE ongoing investigations?
That’s some pretty powerful delusion there.
Grumpy Code Monkey
It’s become clear that
WCheney’s most pernicious legacy is the image of the Unitary Executive, the impression that the President has absolute power, and that Congress and the courts just don’t factor into anything anymore. Some of the arguments being presented here are falling into that trap.joe from Lowell
All investigations start with the small fries and work their way up.
I don’t know if this will happen with the torture investigations or not.
My point: the people poo-pooing them because Cheney’s name isn’t on the list don’t know, either, and are only pretending that they do.
joe from Lowell
Also, did you see the way Nicole Brown Simpson rose from the dead when OJ was acquitted?
He’s not a murderer if he’s not convicted, you know. There are no actual murderers until some court convicts them.
*sniff* What part of “innocent until proven guilty” don’t you understand?
Tax Analyst
@ #134 joe from Lowell:
There are no actual terrorists till the some court convicts them
This just looks dumber and dumber the more I read it.
of terrorism until some court convicts them. Your take on this is to throw all these detainees in a specially constructed “one-time only” bag and just keep them in limbo. Your rationale seems to be mostly because they “don’t matter to me”. OK, cool. I guess I understand your position on this. Now maybe this will sound condescending but maybe you need some at this point: Continued undefined imprisonment of untried detainees is hardly a neutral status. Most people would consider this as a “punishment”. I believe punishment people who have not been found guilty in a fair and recognized court proceeding is a terrible precendent and I don’t believe your “one-time only” idea Constitutional amendment in any way makes it acceptable. Take that for what it’s worth, but I don’t believe you should be incredulous that many people have a similar take on it.
Maybe we should just eliminate terrorism crimes from our statutes entirely. Then, there won’t be terrorists. Or something.
What point am I not getting? None. There is not a single thing you have said that I didn’t understand before you wrote it.
There are no actual terrorists till the some court convicts them
Do you actually believe that? There are no actual terrorists until a trial is held?
Citizen Alan
@Mnemosyne:
So having misread what your own links say, you now misread what I said as well. I don’t expect any “perfect investigation,” but when AG Holder expressly states that his investigation is limited to interrogators who went beyond the limits set by the Bybee memo to torture suspects even worse than the Bush administration would have allowed, and that he has no plans to even consider the legality of the Bybee memo itself, I am of the opinion that the whole thing is just kabuki meant to give the illusion of reform while actually preserving the near-dictatorial powers that Bush claimed for himself. The OPR investigation is the only one which is looking into the actual legality of the Bush Administration’s policies as opposed to just rounding up some “bad apples,” and since it has been successfully bottled up for five years (and since Dawn Johnsen’s nomination to head OPR has been stalled since last March), I’m not terribly optimistic that we’ll see it any time soon.
Mnemosyne
@Citizen Alan:
So you admit that you lied when you said torture was not being investigated and you even admit that one of five ongoing investigations may fit your criteria.
There is a difference between “no investigation” and “investigation that I’m worried is not comprehensive enough.” I’ve run into plenty of people online who are genuinely surprised to hear there are ongoing investigations because there are so many people running around claiming things that are expressly not true.
General Winfield Stuck
Bush mangled the system with self serving notions and categories juggled and switched to get around his own crimes and also to railroad innocents they didn’t want to admit were innocent. Though The vast majority of those detained at Gitmo without good cause have been released.
Military Commissions have long been a legally sanctioned entity and the problem is not that they may be used, it was the Bushies turning them into kangaroo courts that were the problem. Some of those remaining will get their day in US fed courts, mostly those who planned and participated in 9-11 or other crimes planned or carried out on American soil.
Some others with ties to AQ, or sworn allegiance to them, will be tried before MC’s that if not to historical standards of jurisprudence for those, will not pass muster and the SCOTUS has already ruled on that, notwithstanding the Detainee Treatment Act passed by congress. All of these competing legal entities will be played out, with a final adjudication, even for MC;’s, done by the SC. This is our system, and it was shredded by Bush and is going to take a long time to get unshredded.
Meanwhile, latest word, is that about 50 detainees now will remain in limbo, and will either need to be designated POW’s or released at some point. As far as the battlefield prison at Bagram and elsewhere, it is still a mess, and Obama needs to bite the bullet and cover it with full Geneva POW protections. That does include a Battlefield Hearing to determine legitimate reason for capture. This has been the practice since Geneva was signed.
My point is, that considerable progress and effort is being made to unscrew this mess, and it will take time. And it seems to me that activists should push Obama to do the right thing. But the right thing is not necessarily a knee jerk response of anti-bushism, or just released everybody now cause Bush was a war criminal and all around asshole.
Corner Stone
@joe from Lowell:
Say what now?
I don’t want to misrepresent your idea here so I’ll sum it up and you refute as needed:
“People we *know* to be guilty*(ETA below) can be treated any way we like. Even though they haven’t had a trial yet, and possibly even if any evidence against them is tainted and inadmissable.”
And to answer your other sillier tangent, Nicole Simpson is still dead and OJ is still acquitted of murdering her in a court of law.
*ETA – people in our custody, not in the wild.
Gwangung
I’m not sure why a measured response is not appropriate here. Tempermentally, I’m more suited for that; as well, anything that doesn’t make me look like a right wing wingnut is all to the good.
General Winfield Stuck
@Gwangung:
What can I say? I am but a humble O-Bot.
joe from Lowell
Tax Analyst,
It’s like you’ve ignored every argument I’ve actually made, and substituted ones that you’ve heard other people make, because they kinda sorta sound the same to you, and they’re easier to argue against.
For instance, you read a rather lengthy comment from me about changing the evidentiary rules for a certain number of cases via constitutional amendment, and concluded that I don’t want to see any trials. How did you manage that?
You read several comments in which I explain the difference between the legal status of “guilty” and the factual situation of a person having actually committed a crime, and decided that you needed to explain to me what the legal status of “guilty” means, and how one reaches that status. Congratulations.
joe from Lowell
Ditto you, Corner Stone.
You read my comment differentiated between the legal concept of guilt and the factual situation of having committed a crime, and invented an argument about “treating people any way we like.”
This is intellectual cowardice. You people are simply playing word games, like those who pretend that water boarding isn’t torture, to avoid facing an uncomfortable truth: there is a subset of detainees against whom there is copious evidence of their involvement with plans to commit mass murder, which would be thrown out of court under the laws of evidence.
If you had the courage of your convictions, you’d acknowledge this point, stick your neck out like I did, and argue for a solution while forthrightly acknowledging that there are downsides – but you don’t. You just skip right over that part, pretend the problem doesn’t exist, invent some straw men to argue against instead, and congratulate yourself for doing so.
Sorry, sad, dishonest behavior.
joe from Lowell
See, look at this, from scav at #107:
This is how an honest person argues that known terrorists against whom there is reliable, but inadmissible, evidence should be released.
He doesn’t pretend, like the last two wankers, that they aren’t really terrorists. He doesn’t pretend that we don’t have a situation in which people who’ve actually committed crimes, and actually pose a severe risk, can all be tried and convicted. He doesn’t pretend that everyone who can’t be tried and convicted is an innocent little lamb. He doesn’t pretend that the Bush administration didn’t screw up the cases against any actual, dangerous terrorists (why Corner Stone and Tax Analyst want to defend the Bush administration is beyond me, but that’s neither here nor there). He’s not pretending that OJ Simpson’s acquittal means OJ isn’t a murderer.
He’s acknowledging that we’ve got a problem, that we aren’t going to have a 100% satisfactory solution to, and is picking his poison, in terms of what unsatisfactory outcome he thinks is the least bad.
I can respect that. I can’t respect the dishonesty and cowardice of the people lying about the culpability of terrorists whose cases were screwed up by the Bush administration. I might as well waste my time arguing the best way to reduce carbon emissions with a global warming denier. They’re not interested in the facts, and will make them up and pretend not to know things in order to win an argument and get what they want.