Again, usual caveats about me not being a lawyer, etc., ad nauseum, but I hate the establishment of “indefinite detention”:
President Obama’s advisers have been drafting an executive order that would set up a system for periodically reviewing the cases of Guantánamo prisoners whom courts have approved for detention without trial, officials said.
Administration officials are apparently planning to meet this week to debate the details of the draft order, which has not yet gone to the president for approval. In broad strokes, it would establish something like a parole board to evaluate whether each detainee poses a continued threat, or whether he can be safely transferred to another country.
One administration official said that such an order has long been under consideration, noting that Mr. Obama had described the need for such a process in a May 2009 speech when he laid out a plan in which some detainees would likely continue to be held without ever going to trial because they were too dangerous to release but too difficult to prosecute.
“We must have clear, defensible and lawful standards for those who fall in this category,” Mr. Obama said in that speech, which he delivered at the National Archives. “We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”
The existence of the draft executive order was first reported on the Web sites of The Washington Post and ProPublica on Tuesday evening. Several administration officials confirmed its outlines and offered additional details.
***Civil liberties and human rights groups — many of whom dislike any policy that involves holding prisoners without trial — reacted with ambivalence to the report that the Obama team has been working on an executive order to establish formal reviews.
Tom Malinowski, the Washington advocacy director for Human Rights Watch, said such an order could provide additional safeguards for those prisoners who are already being held in as wartime detainees, but worried that it could be used to entrench the idea of detention without trial.
“My sense and my hope is that it would be limited to the detainees whom Obama inherited from the Bush administration, rather than serving as a permanent regime for the detention of anyone the government may decide is dangerous in the future,” he said.
The news of the draft order comes as Congress is considering a bill that would bar the transfer of any Guantánamo detainee to the United States — even for the purpose of prosecution.
Great. God forbid we try people. I really do not understand why we can’t just try them like anyone else, and if we have tortured them or broken international law making convictions impossible, or if we don’t have the evidence, we let them go and live with it.
Maxwel
We can’t try them because they have been tortured? Ok, I hadn’t read your last line.
brantl
And people are surprised (and use it as an excuse for not letting them go) when they get these ex-Guantanamo people joining terrorist groups after having been held forever and tortured. What a surprise!
Dave
They’re trying to square a circle. Bush’s people tortured these guys. Some of these guys are dangerous. Thanks to Bush’s idiocy, if they were ever tried in court they’d likely go free.
And while I agree with you in that we fucked up and if this nation stands for anything, then we try these people and hope for the best. But then Obama would be crucified in 2012. It’s another “no good option” situation courtesy of Bush/Cheney/Rove.
4tehlulz
You know what the sad part about this is?
This is an improvement.
JMG
Because we are a nation governed by vicious cowards, that’s why.
JMG
Because we are a nation governed by vicious cowards, that’s why.
Zifnab
How can someone be too dangerous to release but too difficult to prosecute? If the person is considered dangerous, there must be a reason. One would think that reason could be used as evidence in prosecution.
Of course, there is a possibility that the individual is considered dangerous for no reason whatsoever, but it’s better to just collect so-called high value detainees like baseball cards because this makes your military campaign appear more valuable.
Martin
@Dave: Not just Bush’s circle, but the Dem caucus. Had Obama been able to close Gitmo as he instructed and bring these folks to the US to stand trial in civilian court, we might not be fully vested of this problem, but it’d be a hell of a lot smaller problem to deal with.
How the left has given Congress a pass and pinned this mess on Obama is beyond me.
Lolis
Isn’t this what pretty much has to happen since Congress has defunded prison transfer and now passed a law that no Gitmo detainees can be tried in the USA? Seems like nobody has been paying attention to Congress’s under-handed tactics on this for the last couple weeks.
HE Pennypacker, Wealthy Industrialist
History will not judge us kindly for both the torture and the indefinite detention.
But then, George “What Me Worry” Bush said who cares about history, we’ll all be dead.
Dave
@Zifnab:
If someone is known to be dangerous but was tortured under the Bush policies, then they would be “too difficult” to prosecute because a lot of the evidence would be null and void. Regardless of how accurate and truthful the evidence happens to be.
KSM is the poster-boy for this dilemma. He should never see the light of day again, but if he came to trial most of the evidence against would be tossed because of Bush’s torture policies.
Zifnab
@Dave:
Oh golly gee, you’re right. We can’t have Republicans accusing the President of being weak on terrorism and incompetent at national security. Because I’m sure that card won’t be played in 2012 if we just don’t touch Gitmo for the next two years.
Perhaps if we’re really really conservative in our military policy, the conservatives won’t accuse us of being wimpy cowardly liberals with their huge media megaphones. Let’s capitulate. That’s the ticket.
StringonaStick
The argument I use with a relative who is a Xtianist nutbag that won’t allow her children any access to public education is that her religion must be seriously weak if it will crumble when her kids hear the word “evolution”. This situation is no different.
Seriously, are the foundational documents that established the US and the laws the govern it so weak that we can’t risk applying them to a certain set of people? Does the bill or rights only apply when we can be sure the outcome will fall our way?
Not to mention the group that wraps themselves in the flag so fast you’d think they’d be dizzy is the first to claim both (1) American exceptionalism, and (2) skreee! GWOT detainees must never see the light of day again, ever!
Dave
@Martin: @Lolis: Exactly. Congress screwed Obama on this big-time. And yet people want to blame him for it.
trollhattan
We can’t try them for fear a lubrul judge and jury would turn them loose in Heartland America(tm) where they would use their Superpowers for evil.
That’s what is says here on this 3×5 card.
freelancer
John, you need 2 pairs of handcuffs, a pink fuzzy Ren-fair hat, and a length of White House fencing. It’s the only way to get this done.
Bob L
@JMG:
More like “viscous, stupid cowards” The combination of incompetent and evil really makes it a mess. If Bush and Co and been evil and compitant they would have just tortured and quietly had them murdered instead of tortured and turned into a public embaressement. But this is to be expected when you have likes of Darth Cheny modeling his career on a fictional character who was stupid enough to murder his wife to protect her.
LGRooney
Glad you’re taking a break from blogging, John. Hope you are enjoying the rest. However, beware playing World of Warcraft as WaPo’s article Monday detailing the security state we live in mentioned that WoW is part of the surveillance regime. Apparently there is some super-secret terror messaging system embedded in the coding of the game that only the terrorists can access and use to communicate with each other. Or, perhaps they just use it as a training ground to test their magic.
KG
Here’s what I don’t understand, from both a political and legal perspective…
We’ve had almost a full decade now dealing with terrorist threats. How is it that we haven’t crafted some sort of international convention on the treatment of terrorists? In the days of piracy, international law developed to deal with them, we can use that as a starting point along with the Geneva Conventions.
These people are (mostly) not properly defined as POWs or enemy combatants under international law. Geneva Conventions apply to actual wars, armed conflict between nation states, and terrorists clearly are not nations (and elevating them to that level by declaring this a “war on terrorism” was probably the biggest mistake we made because it instantly painted us into a corner).
All that said, based on where we are, right now, and not where we’d like to be, this is probably the best possible move that Obama could make. There will at least be some sort of review process, yes, some will be held indefinitely or let out only when they are old men like Red and Brooks.
Maude
@freelancer:
heh
freelancer
@Bob L:
This is new to me. Who are you talking about?
Zifnab
@Dave:
Honestly? In the modern US judicial system? I’ve seen enough bullshit rulings on Eminent Domain and suspect rights and death penalty proceedings that I think you could easily find a Bush-appointed federal judge willing to allow tortured evidence as admissible.
The case would be tied up in the courts for a decade easily, but by then these guys would have been in jail so long that their relevance would have worn out. And if some of them did walk – they’re also victims of incredibly brutal torture techniques. A lot of them are physically and mentally broken. KSM, for instance, is a burned out wreck of a human being.
Might as well break their knee caps and then name them all flight risks. I think the danger of a failed conviction is minute, compared to the danger of this quasi-legal precedent Obama continues to enforce. KSM scares me a lot less than the Mississippi National Guard.
Ash Can
IANAL either, but this seems like it could be, in some small way, an opportunity to end-run this whole godawful mess (which Congress is trying to make even worse with its unconscionable bill). Almost no one is backing up Obama and Holder on trying these detainees — certainly no one who has an actual hand in changing the situation directly. Furthermore, I recall us lamenting here the fact that, when the Bush clusterfuck was clearing out, it was coming to light that in many cases, the paperwork that would have been necessary in processing the detainees had been lost, misfiled, destroyed, etc., and that following proper legal procedures would be a Herculean task, if even possible at all.
I can certainly see how a review system can be a double-edged sword. All anyone (say, a chief executive less sympathetic to the rule of law) would have to do to detain these people indefinitely would be to say, “denied.” In the meantime, though, it looks like Obama attempting to do the right thing while putting rule of law and proper procedure front and center. Is it a complicated, frustrating, and slow method of dealing with this mess? Sure, but, for better or for worse, Obama is a lawyer — a lawyer’s lawyer — and this is how people like him work.
Martin
@Zifnab:
Right after Obama got into office, there were various reports about how bad the evidence collection and record keeping were at Gitmo. The concern was that the Bush administration had so thoroughly fucked this up, between torture and simple mismanagement, that any evidence offered up would be thrown out of court.
Now, that leaves two options:
1) Try them anyway, watch the case fall apart, use that as a lesson to not fuck it up next time, and live with the consequences of this individual being set free.
2) Detain them indefinitely.
Personally, I’d go with 1), and so may the Obama administration, but there’s a hitch. If you have a citizen of Yemen, and Yemen doesn’t want them back, what do you do? (And we know this is a real problem.) Do you release them in the US with permanent resident status? We’ve worked with various other countries to accept these cases and had some success, but inevitably you’ll run into some dead-ends. The real problem having been that once you remove someone from their home country, their home country may leave you will full responsibility for the individual. You better make damn sure you have avenues charted out for that person before you remove them.
Basically, we royally cocked this up from day one.
Sinister Eyebrow
I hate to break it Tom Malinowski, but its pretty clear that we already have a system of permanent detention without charge. The gov’t won’t give up the power of indefinite detention without charge. This is not going away. It may get broader, but it is not going to disappear.
This is one of those things that once done cannot easily be undone.
Makewi
The idea of setting them free if a case, based on US judicial rules, can not be made for conviction has an undeniable appeal. OTOH, at least 61 detainees that have been released have gone back to the battlefield, which increases the risk of loss of life both to American and allied service members and to others.
russell
I think we’re going to have to wait for every bonehead American who was alive on 9/11 to die before anything like sanity can return.
And by then, it’ll be too late. The bullshit will have become the new normal.
It already has.
Martin
@Zifnab:
I agree completely. But you and I aren’t Senators and if one of these released individuals showed up a few years hence and killed a bunch of Americans (and who could blame them, really), that wouldn’t be hung around our necks.
The truth is that we all own this shitpile, but unfortunately half the nation is pretty content wallowing in a shitpile, so any hope of getting a learning moment out of it is pretty remote.
Three-nineteen
@Makewi: Then we shouldn’t have fucked up so badly. The lesson we need to learn is “don’t do this again”, not “now when we do this again, we’ll have a stop-gap to cover our asses”.
freelancer
@russell:
My country tis of thee
Sweet land of liberty
Ash Can
@Makewi: That’s a classic red herring. We’re sending untold numbers to the battlefield just by holding these guys in the first place (among other policies). No one would bother going to the battlefield at all if they didn’t perceive something to fight against.
Martin
@Makewi:
If it increases the risk of loss of life, then maybe we shouldn’t fuck up the detention process in the first place. Nobody else is to blame for this problem than the US government.
Makewi
@Three-nineteen:
You use broad based “we” and “fucked up so badly” as if it has actual meaning. It doesn’t. Instead there are very real issues at stake here both for those being detained and for those who may well have to deal with them should they be released.
It isn’t as easy as just wiping the dirt from your hands.
matoko_chan
O Cudlips.
if someone was NOT-A-TERRORIST going into gitmo, they most assuredly have terrorist sympathies by now, after being tortured and unjustly imprisoned for 7 years.
Assanges systemkiller is WAI.
there is a beta prototype closed information systems killer running loose on the web RIGHT NAOW.
it is working as intended, america cant turn it off, and if it works as designed we will turn into a police state on our way to nonlinear system collapse.
you totally dont get Assanges design do you?
This is extremely frustrating for me….i guess it’s the whole first culture vs third culture dynamic. I understand the vast majority of readers and commenters here dont have the system theoretic or information theoretic background to assimilate what Assange is attempting to do.
But it doesnt matter if you think he cant (technically) or shouldnt (morally) accomplish his STATED goals….. the system killer is WORKING and it cannot be turned off..
Assange has been very forward about his philosophy and what he is trying to accomplish.
It is nothing less than a new world order.
Highly radical, highly ambitious.
The reason i think Assanges strategy has a 90% chance of working is that Assange just did in cyberspace what OBL did to us in meatspace.
Granted, OBL’s tactical strike was not as well formed as Assanges hackitivist manifesto.
It was really just junk-punching Big White American Christian Bwana in the economic junk.
But it worked splendidly, pretty much bringing down the American economic house of cards and turning America into Soviet Russia in the worlds eyes.
Now Julian Assange just junk-punched America in the security/diplomacy junk.
And if America runs true to form, we will sting ourselves to death like the poisoned scorpion in the faery tale.
i think the judiciary is our only hope.
but right naow our never-torture-again president is apparently complicit in torturing Bradly Manning with solitary and drugs in order to get him to flip on Assange.
the alternative is to suborn the judiciary to redefine “conspiracy” like they redefined torture under Bush.
Makewi
@Martin:
Your use of “we” and your concern for the real world consequences of actions in either directions is noted.
The point is that the situation isn’t quite as easy as some of you are making it out to be.
Dennis SGMM
It would be easy to get the Republicans to support the closing of Gitmo. Just have the Social Security Administration issue an opinion stating that the inmates there will be eligible to collect SS and Medicare.
Wannabe Speechwriter
What people don’t realize is there is a review board already set up for alleged terrorists-
It’s called a judge and jury!
Cat
@freelancer:
The abominations that are the Star Wars prequels.
matoko_chan
Like the Prophet (SAW) famously said,
In America we have vast quantities of god– one political party is wholly religious anymore………but apparently no Justice.
john b
i wonder what would happen if obama unilaterally decided to move prisoners of war as the commander in chief to the United States. . .
Martin
@Makewi: I think if you actually read the things I’ve written, I’ve been clear that this is very far from easy, particularly in the case of detainees that are unwelcome in their home country.
But I think that we have seriously overhyped the power that these individuals have and seriously undersold the need to learn the lesson that you have to live with the consequences of your actions.
Ash Can
@matoko_chan: LOL! That must be some awfully powerful weed.
Dennis SGMM
@john b:
Only legitimate, Republican presidents have unlimited Commander-in-Chief Powers, silly.
Makewi
Nishi
You seem a little more unbalanced and paranoid then usual. Perhaps you should unplug now and then and go watch a butterfly or something.
Martin
@john b: Obama has actually proposed this, but Congress won’t fund it. He can move them – if he can do it without cost.
Congress has WAY more power than the left want to accept.
LongHairedWeirdo
If we let them go, and they commit a crime or act of terrorism, people are going to call the administration weak on terrorism.
In the 80s and early 90s, I might have been completely scornful of those who’d be afraid of losing their cushy, elected jobs if they treated people with the basic belief in freedom and dignity that founded this country.
Today, I must admit that there’s a point – not a *good* point, just *a* point – in saying that “but the Republicans would be even worse, so it’s okay if we’re assholes to these people because there’s a lot at stake otherwise!”
Redshift
@Makewi:
I’m pretty sure that count has been debunked. While it’s entirely possible some have, we’ve never been presented with any actual evidence of it.
Three-nineteen
@Makewi: @Makewi: We = the US government (in general, as well as the CIA specifically) and military.
Fucked Up So Badly = as @Ash Can: said, “the paperwork that would have been necessary in processing the detainees had been lost, misfiled, destroyed, etc”
I’m not claiming that letting these people go would be easy. I think it would be very hard. But it’s the right thing to do. You seem to be claiming that the possible harm to people in the future is worth more than the actual harm we have done/are doing to the detainees.
freelancer
@Cat:
Wow, I took that too literally. Like maybe there was really some winger literary hero that Cheney felt inspired by.
Say, perhaps, he felt moved by Of Mice and Men and thought of himself as a Multi-millionaire version of George Milton to W’s Lenny Small just trying to make their way through the Executive Branch with a man-sized safe, and when it came time to take Bush out back behind the shed and “tell him about the rabbits”, he shot the wrong dude.
Peter
@matoko_chan: What the ever-loving fuck, matoko_chan. This thread is the furthest thing possible from relevance to Assange.
Makewi
@Martin:
Once again, those who have to live with the consequences are not actually the ones who made the decisions. It is an unfortunate aspect of the situation.
LanceThruster
I hate to say it but the continuation of Bush’s policies (and war crimes) makes Pres. Obama guilty as well under international law. If Adm. Donitz had continued all of Adolph’s policies (and crimes) would he be off the hook merely cuz he was the new guy?
Svensker
@Bob L:
Dumb sticky cowards!
Makewi
@Three-nineteen:
There is absolutely that possibility. I make no claim to “worth” as none of this is abstract as far as I am concerned. I also don’t wish to pretend that any discussion which simply lumps a group of 250 individuals, each with their own circumstance, is worth all that much.
john b
@Martin:
i understand that.
i’m saying what if he just flaunted the law? he doesn’t have to get approval from congress for every movement of a ship. even if it was just in a threat, i don’t see the harm in ordering the navy to send a ship to pick up those prisoners and bring them to a holding facility at some base or at a federal prison.
it seems entirely within the stated powers of the executive. and passing a law saying that the commander in chief can’t move POWs (or whatever it is we’re calling gitmo detainees these days) as he sees fit is pretty fucked up. and i don’t think the law saying that he can’t do that would hold much water.
i know that this is all pretty idealist and that obama would probably face impeachment for doing something like that. but can’t a guy dream?
General Stuck
I agree
chris mohr
@John Cole:
Think the example of O.J. Simpson and what an utter mess the prosecutors made of that case, complicated by having to use such readily exposed racist thugs like Mark Furhman as witnesses for the prosecution, coupled with a highly effective defense team able to rip enough substantial doubt into the prosecution’s case that OJ was found “not guilty”. Now, think of the fact that the prosecutors, police, and a huge segment of the American people (including me) are strongly inclined to think that OJ was, in fact, guilty of murder but got away with it because prosecutors couldn’t meet the legal standard for burden of proof in a criminal case. In the case of OJ, most people who felt that way (probably prosecutors and police included) thought it extremely unlikely that OJ’s acquittal unleashed a man who was of any true further danger to the community, other than being such a prominent example ITHO of someone walking around free who got away with murder.
Now think of all the people afraid that it will be impossible to sufficiently prove a criminal case against purported terrorist brown Muslims from exotic alien places like Afghanistan, Pakistan, etc., and that terrorists might go free to plot another 9/11 like attack. The vast majority of these same people could never imagine themselves as criminal defendants ever anyway, criminals come from a whole different class of people, or else they are like Bernie Madoff, when caught the perp is so heinously, obviously guilty of preying on people they can identify with that the perp automatically loses his membership in decent society and belongs with those criminals unlike themselves. They think the justice system is broken and criminals get let out every day be liberal judges and technicalities, never thinking that the biggest reason the legal system has a tough time keeping career punks, thugs, and predators up is…because so much garden-variety behavior has been criminalized (think: the war on drugs) that jails are too crowded to keep everyone who needs to stay there longer for the protection of society in there, gotta make room every day for a fresh batch of thugs.
Note that I disagree with this viewpoint, and strongly, but…it’s the dynamic that’s driving this “keep the detainees out of the court system and locked up indefinitely” dynamic. Woe be unto the politician whose opponent can paint him as sympathetic and on the side of risking letting terrorists go to plague his constituents’ communities, he’ll be demagogued to death on Nancy Grace and Fox News.
matoko_chan
Perhaps it would help if you think of the dual purpose of Assanges engine of info transparency.
it also makes terrorists that hate America, its a terrorist generator, a distributed jihaadi factory.
before wikileaks we just made terrorists locally, in MENA, with actual witnesses and the Dragonsteeth axiom…..now people all the world can be radicalized by American injustice.
revenge is a kind of wild justice, and that is that is what America is going to get.
we sowed the whirlwind.
Svensker
@Makewi:
Which “battlefield”? Why were they released? How does that compare to the recidivism rate on violent criminals in the U.S during the same period?
Jamie
Well I guess it comes down to this; if the federal government doesn’t trust our judicial system, why should anyone else?
Redshift
@john b: Congress has the power of the purse, and the president can’t just decide to spend it differently. This is pretty much what Iran-Contra was all about, for example. To me, “it’s clearly illegal but he might get away with it” isn’t really an appealing thing to be dreaming of.
freelancer
@Peter:
Everything relates to Assange as Osama Bin Laden, meatspace, Big White American Christian Bwana, and junk-punching. The junk-punching is key. Personally, I wear a cup to keep my economic junk from being punched. Don’t want to be caught off guard and accidentally say something embarrassing.
Makewi
Does this only work in one direction? Perhaps the sewing is something that has no beginning and possibly will have no end.
agrippa
@Martin:
I do not not understand how the left gave Congress a free pass either. Perhaps there are 535 of them and one President.
Congress does not want them tried in the USA. Congress does not want them incarcerated in the USA. Congress does not want them released. Congress wants them to go away.
There are people who are held for no reason – they were just gathered up when in the wong place at the wrong time. Some were tortured. Some are guilty of something.
Three-nineteen
@Makewi: That’s not what the laws of our country say. Our laws say if you can’t prove someone is guilty, you have to let them go.
Bill Murray
@Svensker: dumb sticks to everything it touches. It’s likely to be playing in the Steeler’s secondary next season
The Dangerman
My answer:
a) Pick a State with a shitty unemployment situation; I nominate California.
b) Build a prison to create jobs; I nominate San Clemente Island, which has been closed to the public for decades (the Navy uses it to blow shit up), because it has as much infrastructure as Guantanamo.
c) Find a way to try the fuckers. If we tortured them, tough shit, we live with the consequences of that exposure. Seeing KSM basically do little more than drool by now after all his waterboarding will show the world we won’t hide our dirty laundry.
kay
@Makewi:
If true, that’s still going to happen. It has nothing to do with “convictions”. It has to do with whether the state had enough evidence to lawfully hold them. The state did not, which is why they were released. That’ s not at all new. The US Supreme Court said courts review whether they’re lawful to hold. Those hearings will continue, and they will be in a court under “court rules”.
Two steps:
These are 48 people who a court has or will determine are 1. wartime detainees and 2. held lawfully.
That’s before any Obama parole-style hearing on whether it’s necessary to continue to hold them.
matoko_chan
@Peter: its totally relevent.
like i said, the gitmo problem is just more evidence that we are turning into a police state.
this is actually a test of the Founders and Framers design against Assanges systemkiller.
Will the judiciary save us from becoming a police state?
How robust is the Founders design?
They worried about demagougery, and protecting the citizenry from the government…..
interesting times.
Martin
@Makewi: It’s a democracy. The voters need to live with the decisions of the people they elect. That’s how it works.
wengler
Liberty will never be sustained when cowards are in charge. I’m looking at Congress, the Republican Party and the American people. Obama tried to do the right thing here but was thwarted by these cowards.
It’s hard to believe that this is the same country that faced down batshit insane Imperial Japan, where kamikaze attacks happened day after day after day instead of just one time every decade.
The vast majority of detainees at Guantanamo are guilty of no crime. They were picked up on tips provided by Afghanis who were paid money to turn over anyone they deemed ‘al-Qaeda’. This is an abomination.
Mike Kay (Democrat of the Century)
BREAKING NEWS
Mike Kay (Democrat of the Century)
BREAKING NEWS
9/11 First Responders Bill accord has been reached.
Yet, ANOTHER smashing victory for Obama and the Pragmatist!
http://thehill.com/blogs/blog-briefing-room/news/134837-deal-struck-on-911-workers-health-bill
freelancer
@Mike Kay (Democrat of the Century):
Wow, that IS news!
matoko_chan
@Makewi: i suppose you think they “hate us for our freedoms” cudlip?
OBL junkpunched America in the economic junk because of many things; Operation Ajax, Israel, propping “secular” dictators like the Shah and Saddam, fighting proxy wars with the sovs in their homes and towns, sending fucking missionaries with guns into MENA, and all around Big White Xian Bwana meddling.
it worked SPECTACULARILY WELL.
now Assange just junkpunched us in cyberspace like OBL did in meatspace.
to me, that is most interesting thing out there right now.
:)
someguy
It doesn’t matter if they were tortured or not. Any confession is null & void in court unless they were given miranda warnings prior to questioning. The initial “arrest,” sometimes yanking these folks out of bed at 3:00 AM based on a tip, won’t be sustainable unless you can provide the witnesses who supposedly gave information amounting to probable cause, and then there’s the question about whether the troops followed host nation procedures w/r/t getting warrants, extradition and all that jazz.
Bottom line is you can put them on trial but even if you can get a court to convict you will just be putting a thin veneer of legality atop an enormous pile of illegalities.
I’m glad it’d make *you* feel better though, Cole.
BombIranForChrist
I think it’s beyond pathetic that we … the United States … a country with an armed forces big enough to destroy the earth are so scared of a handful of dangerous enemies that we are willing to trash one of our basic principles.
This is a pure political play by both the Dems and the Reps who support it. Any given president simply doesn’t want to be the sitting president when another attack hits us, so they torture the Constitution to give them political cover.
At the end of the day, those people in Guatanamo Bay are political prisoners. Prisoners of America’s electoral politics.
I would rather them be , you know, normal prisoners … ie guilty ones … and if they aren’t guilty, then why are they there?
Makewi
@Three-nineteen:
This is new ground for us, legally. This is trying POWs under American law. Understandably the way to proceed is less than clear.
kay
@Makewi:
whom courts have approved for detention without trial
They’re still going back to the “battlefield”, Makewi, unless a court determines they can be held without trial.
So this doesn’t address your objection. Get used to it. We’re going to pick some up, and let some go. We can’t completely exclude risk, because that’s nonsensical.
General Stuck
@matoko_chan:
If this means what I think it means? well, I hope it doesn’t mean that. What does it mean?
matoko_chan
@freelancer: laff all u want, monkeyboi.
big white american xian bwana is going down for the count.
and your sufferring will be legendary.
:)
burnspbesq
@Makewi:
“OTOH, at least 61 detainees that have been released have gone back to the battlefield, which increases the risk of loss of life both to American and allied service members and to others.”
And that sucks, but there it is. Free societies are SUPPOSED TO fight terrorism with one hand tied behind their backs. That’s part of what it means to be a free society. Cheney and Addington never understood that essential part of the equation, and as a result we pissed away what little remained of American moral authority and got nothing in return.
Makewi
@matoko_chan:
You live in a world entirely in your own head. It’s a very sad situation.
someguy
@Makewi:
If by “new ground for us, legally,” you mean “in blatant violation of Article 3 of the Geneva Conventions” then I agree with you. The Conventions prohibit the criminal trial of POWs, except for crimes other than making war against a combatant party. So as long as they weren’t committing rape, or insider trading or something while they were (allegedly) killing U.S. troops, you aren’t supposed to put them on trial.
Which is why this entire enterprise is a fraud.
freelancer
@matoko_chan:
“We” sowed the whirlwind, but only “my” suffering will be legendary. An economic junk punch hurts you just as much as me. If AQL or OBL decides to junk punch us again, they make no distinction between “you” and “me”. Buy some more pronouns, stick ’em in the meatspace between your ears.
Makewi
@kay:
Of course and I never said otherwise. I will get used to it in the same way that we both must get used to the fact that actions taken by individuals, like beating a rapist to get a confession, are likely to have very real consequences for other parties down the road.
So tell me. Should the fact that KSM was waterboarded be used to exclude the information we got from him by those means?
matoko_chan
and i wouldnt be so gloaty if you all werent SO MOTHERFUCKING FUCKING STUPID.
i do think there is a 10% chance the design of the judiciary will save us.
merry xmas.
Makewi
@someguy:
It would be fair to point out that being in armed conflict out of uniform is also against the conventions. Might be a good idea to “take whole” as Sun Tzu would say.
matoko_chan
@Makewi: everthing i said is true, and you know it.
pretend all you want.
it wont do any good a’tall.
@freelancer: hahaha, you forget i have dual citizenship..nay….triple citizenship, since im a hacktivist, an american, and one of the ummah.
America FUCK YEAH! my country right or wrong? thats those teatards, not me.
bi la kayfah
Bill H.
I am so relieved that people who are being held without trial will preiodically have their detention reviewed. That makes it all better. I mean, what the fuck, he had a beard before and he still has a beard, so hold him another ten years and we’ll check his fucking beard again. I’m glad we have that settled, that we are not just chucking them in a hole and forgetting about them. What a relief.
Three-nineteen
@Makewi: Where does it say that trying POWs under US law is any different from trying anyone else – citizens, legal immigrants, illegal immigrants, tourists – under US law?
kay
@Makewi:
Well, yeah, not because I’m a big ‘ol softy, but because the whole point of the rule was because we found out that coerced information was unreliable.
So, yeah. Because it’s unreliable. I don’t even need to go to “humane” or any of that. I usually go back to why we made the rule in the first place. They aren’t arbitrary. They’re hard-learned ( past practices, our long and sordid history of coerced confessions within the US) and most of them are based on common sense.
Why would you want the US to follow a bunch of bullshit extracted under extraordinary duress? How are you going to get to the truth that way? Does it not matter what actually happened? I think it does, purely from a law enforcement or national security standpoint. Surely it matters for prevention, right?
Laertes
We have to choose. Which principle is more important? Take your pick:
“Any notion of justice and due process and basic human decency must be trampled if there’s a plausible threat to any American, anywhere.”
OR
“Justice comes first. If we don’t honor that principle, then we don’t deserve to be safe.”
We made this mess when we seized and tortured those men. We can now hold them forever and wait for time and the reaper to bury our mistakes, or we can cowboy up and accept responsibility for our shameful behavior and turn loose the ones we can’t convict in fair trials, knowing full well that some of them will do us harm.
And if no other country can be found to take them, then yes, we must release them into the United States. It sucks, but once you start torturing people, you’re out of good options and you’re left choosing among various degrees of bad.
Next time, don’t torture.
handy
@Makewi:
You are essentially making a “two wrongs make a right” argument. And whose problem is it that that the US has made conventional military engagement a significant part of its anti-terrorism strategy? Did you expect Al Qaeda, upon seeing Bush declare his “War on Terror,” to start stitching flags and fatigues?
burnspbesq
@Laertes:
Yup. Exactly. Well said.
kay
@Makewi:
My point with the court review was to point out to you that if your intention is never again to pick someone up and then face the possibility that they are then released, and deal with the attendant risk, then this process won’t get you there. Your hypothetical terrorist may already be gone with this process.
Also, as an aside, you’re to the Right of the Bush Administration on this, which should give you pause. It did me, I’ll tell you. You’re way the hell out there.
Maude
We don’t know anything about the detainees being held. The public has been told things by the Bush Administration.
There has been no evidence presented on even KSM.
The DoJ wanted to charge him and put him on trial in NYC. That caused a hissy fit.
It is during a trial that you hear and see the evidence the proscecutor has gathered.
Propaganda has infiltrated any discussion about the men down in Gitmo.
One reason Congress doesn’t want trials held in the US because they have serious problems with advocating what went on during the Bush years. Congress played a part in this.
Along the same line, the Bush Administration had a nasty habit of getting rid of electronic or hard copy information that could cause them legal problems when they left in 2009.
Laertes
If you don’t stick to your principles when it’s difficult, then they aren’t principles, they’re just talking points.
Citizen Alan
@Makewi:
Correct me if I’m wrong, but I believe that for some of those 61 detainees “going back to the battlefield” literally consisted of “writing an angry letter to the New York Times that embarrasses the U.S. military.”
eemom
hey little matoko-loko, go check out Michael Lind’s latest piece on Assange in Salon today. Then your and GG’s heads can explode TOGETHER, which would be all kinds of awesome fun to watch.
Citizen Alan
@Cat:
Wait, so in this tortured analogy, Dick Cheney is Anakin Skywalker?
Makewi
@kay:
According to then Director of National Intelligence Mike McConnell these tactics KSM gave up “information that helped us stop another planned attack on the United States,” described “other plots to kill innocent Americans”. Law enforcement and national security have necessarily different objectives, and as such, use different methods to fulfill these objectives. I imagine you remember the debates regarding the wall during the 9/11 commission hearings.
Makewi
@kay:
I’m not way the hell out there. In fact, my only point is to present all sides of the issue. If you would prefer to simply operate in an echo chamber then by all means feel free to ignore my comments.
someguy
@Makewi:
Oh, I see. So because AQ violated the Geneva Conventions at the outset by not wearing uniforms, we’re entitled to violate the conventions by putting captured POWs on trial in civilian courts (despite violations of our own warrant, Miranda and speedy trial requirements)? Riiiiiiiight.
Laertes
@Makewi:
I’m not willing to take his word for it. The word of a torturer is worthless to me. If there was an honest-to-FSM ticking bomb scenario, and you beat information out of a suspect that saved lives, the only civilized thing to do is come clean. Be charged, sit in the dock, explain why you violated the law, and see if the Jury is willing to nullify.
The safety of Americans is not the most precious principle on Earth. The modern advocates of barbarism always like to smuggle this axiom in unexamined, as if it’s beyond debate. A useful starting point is to challenge that assumption and make them defend it. Make them explain why they love safety more than Freedom and Justice.
handy
@Makewi:
David Broder would be proud.
liberal
@Makewi:
Except that numerous armed US contractors are not in uniform either.
liberal
@Makewi:
According to KSM himself, when they tortured him, he made up bullshit just to get them to stop.
liberal
@eemom:
Didn’t read Lind’s piece, but GG has a rebuttal that looks coherent.
someguy
@Laertes:
I didn’t know McConnell was involved in torture. I thought he’d come from the signals intelligence side. Hmm. The things you find out.
Hawes
Holder was ready to try KSM in New York. Everyone from Bloomberg to Reid folded quicker than an origami clown.
The idea was to do this – as Obama said today about DADT and even DOMA – legislatively. The legislature shit the bed.
So, absent any action by the Congress, Obama has come up with a way to comply with recent Supreme Court cases dealing with detainees.
One question I have: has the Red Cross been given access to Camp X-Ray?
I’m not familiar with the ins and outs of Hamdan and Hamdi, but I know that the Supreme Court has said in the past that the Constitution does not always follow the flag. That was the rationale for keeping them in Cuba.
Detainees DON’T have the same rights of procedure as murderers, because of the grey area between criminal and POW. This was an issue that SHOULD have been dealt with when we started capturing people.
By NOT dealing with it then, we have few good options.
To the administration’s credit, they have returned about as many of the detainees to their country of origin as possible.
Remember the numbers in Gitmo seven years ago? In the hundreds.
We’re down to 48 guys.
Laertes
@someguy:
I’m not saying he personally administered the drugs or the beatings. But the head of a beast that tortures is a torturer. Bush is a torturer, and so far as I’m aware he never personally abused a suspect. McConnell is here quoted in his official capacity as an officer of an organization that, without question, tortured suspects as a matter of policy, and as such his statements in support of that policy are transparently self-serving and are to be given little evidentiary weight.
liberal
@matoko_chan:
Is that better or worse than linear system collapse?
eemom
@liberal:
no, I don’t think GG has responded to Lind’s most recent one yet (“Why Assange Is A Criminal”). The “dialogue” started sometime in the last day or so.
someguy
@Hawes:
Actually, the one court to consider the question in the Ghailani trial said that confessions obtained in violation of Constitutional rights would be inadmissible – so I am pretty sure that rules out confessions during torture, without Miranda, and following an improper reasonable suspicionless arrest. You can have Congress do what you want but only the courts can say what’s Constutional and so far the only court to consider the question says they do have the same rights as murderers.
Maude
@Hawes:
Thanks for the number of men in Gitmo.
I think the issue of the Constituion not following the flag related to Afghanistan. The Guantanimo Bay military installation is considered US.
It seems that the whole idea of not following any laws or rational proceedures when capturing men was to torture, rendition and so forth. It was to evade US laws.
someguy
@Hawes:
And how many tens of thousands held at Abu Ghraib, Bagram, or disappeared into secret prisons?
Cat
@Citizen Alan:
I believe in the tortured analogy that someone else posited Cheney is Anakin. YMMV.
Makewi
@someguy:
You can’t point to where I said that because I didn’t say that. If you feel the need to have both sides of the conversation then you hardly need me.
Cat
@liberal:
Systems that fail linearly have break points that maybe used to halt the failure, ex. clearing a in front of a forest fire to keep it from jumping.
Systems that fail non-linearly can still fail even if you repair parts of the system. Say, propping up the banks, but consumer demand falls of anyways causing mass bankruptcies that lead to the banks failing anyways.
Jason In the Peg
I never understood why this was so difficult to understand.
Makewi
@handy:
He won a pulitzer you know.
Makewi
@Laertes:
Guilt by association then. Even the janitors?
Laertes
@Makewi:
Me:
Makewi:
You’re not serious, surely.
Laertes
Let me break it down for you just in case you ARE serious: The DNI isn’t a janitor. Accountability and responsibility flow UP the chain of command, not down.
If you torture someone, you’re a torturer. If you order, organize, or supervise torturers then you’re a torturer.
When you speak on behalf of an organization that tortures, you speak with the voice of a torturer.
Your careful pose of neutrality isn’t well-served by ridiculous jackalopes like that last post. Try and act like a grown-up.
Makewi
What if you live next door to an organization that tortures and occasionally go next door to have drinks and some light bbq? Are you then complicit because you didn’t refuse the invitation of a refreshing mojito and pulled pork sandwich?
someguy
@Laertes:
I think McConnell was heading NSA when the alleged torture went on, the ODNI doesn’t actually have control of any of the operational intelligence agenices, and to all accounts he was pretty much cut out of the Cheney / Addington / CIA discussions, but I guess if you take over an organization, the distant arms-that-you-don’t-actually-have-control-over of which engaged in torture, then you’re a torturer too.
Ah, fuck it. Who am I kidding. He’s associated with the Bush Admin and that’s why he’s a torturer. Close enough for government work.
Cat
@Makewi:
I believe this is Makewi’s concession snark. Well played Laertes.
Laertes
What I’m saying is that when someone speaks in their official capacity, it’s not the person speaking, it’s the office. In Washington they have a saying about this: “Where you stand depends on where you sit.”
When the Director of National Intelligence, whatever his name or personal history may be, says that an instance of torture was justified because it yielded valuable information, what we’re hearing is the Voice of the National Intelligence Apparatus saying “Trust us, citizen, what we did was perfectly justified and there’s no need for you to worry your pretty little head about the details.”
That is, this is the voice of the criminal suspect, speaking about his own crimes. It should be given the same evidentiary weight as any such statement by any suspect*.
* Not a lot.
Makewi
It isn’t well played. It’s ridiculous. The truth of a statement is not based in any measure by the association to a group who is doing something that you don’t approve of.
If one cop lies on the stand does that make all cops liars. Does it make the chief a liar.
If you believe the statement to be “self serving”, fine. But just because something is “self serving” is not proof that it is false.
Laertes
Sure sounded like concession snark to me. When you throw out a silly statement like that, people are going to figure it’s because that’s all you’ve got.
@Makewi:
You’re moving the goalposts here. You introduced the self-serving statement, with the implication that it was true.
Nowhere do I argue that McConnell’s statement is false. (It’s certainly plausible. It might be true. I have no way of knowing, and so far as I know, neither do you.) I’m merely saying that his statement is worthless because it’s self-serving.
Of course the DNI says torture was justified. That is not good enough. He’s speaking on behalf of the organization that did the torturing. He therefore has no credibility.
LanceThruster
@Makewi:
Who’s to say that the specifics of their unlawful detention didn’t radicalize them? If they had no charges they could make stick, can they really be said to have gone “back” to the battlefield?
handy
@Makewi:
Three-nineteen said:
Then you said:
someguy (rightfully) responded:
Your rather silly non-sequitor of an answer to that was:
How is his response to that NOT what you were saying?
kay
@Makewi:
You sort of are, Makewi.
If you’re complaining that 61 detainees returned to the battlefield after a hearing on whether we had the bare minimum to hold them at all, you’re out there.
I feel like it’s 2003, reading you. A lot of these issues have been settled, and they weren’t decided favorably, for neoconservatives. You lost. They all get an initial judicial review. That’s settled.
This issue is different.
We can’t go careening backward, to 2003, and re-consider every cockamamie conservative hypothetical and abstract theory all over again. There isn’t time. They’ll all be dead. Christ, we’ll all be dead.
benjoya
@Makewi:
why is the word “back” in there? maybe being disappeared turned them into our enemies. oh, i forget, untermenschen don’t act rationally.
Makewi
@benjoya:
Maybe. Certainly maybe it’s possible.
I suspect you didn’t really forget anything, but that rather you were just looking for an excuse to be insulting. Well played.
Makewi
@kay:
Oh. I’m not complaining. I’m speculating and assuming the role of the other side of the argument. This conversation is less boring when more of the issues are flushed out. Otherwise these things just turn into a competition about who can strike the best pose.
matoko_chan
@Makewi: quoting Sun Tzu are we?
the longest most expensive shooting war in American history, and all we have to show for it is a crashed economy, worldwide scorn and disdain, hundreds of thousands of dead muslims and two more islamic states (A-stan is going be the other one) with shariah law in their constitutions that are going be BFFs with Iran.
dumbass.
matoko_chan
@Cat:
well ekshually it depends if you’re police or proletariat.
the Nazis had a damn fine run for a while.
matoko_chan
@Makewi:
there is no other side to the argument.
we let the corporatists and the jeebus-humpers run us, and now we will be forced to pay the piper.
that is why IM SO ANGRY!
you old guys let the jeebus-humpers and the bankstahs fuck it up, and even now you wanna keep on walking.
stupid cudlips..
take it away, Priss.
matoko_chan
@Laertes: bravo.