Today, an all-time epic edition of it sucks being right. When last we checked in the Bush torture regime left Obama with a cute sophie’s choice between keeping even one guilty “war on terror” prisoner in custody and respecting the Constitution. Obama has an instinct for technically elegant middle ground solutions that often serves him well, but it will do nothing for him here. This is one of those cases where either you are pregnant or you are not. The way we treated virtually every muslim prisoner will annul any legitimate trial whether we hold it in the conventional courts or under the UCMJ.
In fact the truth is worse. While we tortured ordinary prisoners and denied them due process, the breathtaking abuse that we heaped on legitimate threats like Khaled Sheikh Mohammed makes them the most protected under American law. America put Japanese and Germans to death for significantly less than we did to any high value detainee in an orange jumpsuit. Clawing America back to Constitutional legitimacy will force the President to make decisions that will hurt a lot more than any part of fixing our truck-flattened economy.
Despite all that, and even granting that Obama hates to rock a boat, the President has a halfway decent staff, especially at DoJ, and he makes more tough decisions than most leaders. The optimist in me guessed that the Constitution has a fifty-fifty chance; the realist figured that at least I don’t have to listen to Sarah Palin all the time.
But the new administration faced a February 20 deadline to tell U.S. District Court Judge John Bates whether it would “refine” the Bush administration’s position on four men being held at Bagram who have filed suit against their detention.
In a brief filing with the court on Friday, the Justice Department said it would stick to the previous government’s position, which argued the four men — who have been detained at Bagram for over six years — had no right to challenge their detention in a U.S. court.
Hey, look at Sarah Palin being stupid. Ha ha. Sigh.
sgwhiteinfla
I know I might be in the minority here but honestly, if those prisoners weren’t abused and aren’t claiming they were abuse but instead just want rights under out constituation I am actually good with letting them stay right the hell where they are at. At some point there definitely needs to be some kind of hearing for them but I really don’t believe they deserve habeaus corpus rights. Maybe that makes me a bad guy, I don’t know. But to me, thinking that giving every single detainee the right to challenge their detention in US courts is not at all realistic. And I don’t think anything other than charges that they were tortured would change my mind on that.
Martin
But we have separate justice systems for a reason. Isn’t the problem here that we really don’t want all POWs to be able to jump over to the US criminal system but to instead be properly handled under an alternate system? I think the problem is that we’ve been improperly handling these guys – quite possibly from the act of detaining them in the first place, but that failure doesn’t mean we should correct it by setting a bad precedent.
If memory serves, the military justice system historically has been exceedingly efficient and well defined. What happened there? Isn’t that the real problem, that we have people locked up for years without bringing them through ANY justice system?
The Moar You Know
While I’m not too happy about this either, I don’t really see how the Obama administration had any choice – to do anything else would politically hamstring him for the next three years and eleven months.
Rex
It really is just a question of what team is in control for most people. We’re a nation of cheerleaders, apparently.
c u n d gulag
Someone please remind me of why I worked my ass off for his campaign for the last 1 1/2 years!
Yes, I’m willing to give him time. On a lot of things. But, to me, this is a no-brainer. It’s a habeus issue, it’s as simple as that.
And, if he’s doing this for political reason’s, than it’s even more wrong.
Sorry… But just because you have a "D" next to your name, doesn’t make you an angel. It makes me want you to work harder, not give you a free ride.
Warren Terra
If they are in American custody, they need to get due process. Period. You could argue about whether that really means full habeas corpus given it’s a civil war and all, but given the track record we’ve racked up over the past several years of denying basic justice to people in our custody we’ve got basically no standing, so I think full habeas corpus should be the way to go.
Now, Afghanistan is in theory a sovereign state, and I could imagine our troops arresting people and handing them over to Afghan authorities – except that the Afghan state isn’t really very credible, or we wouldn’t be holding people ourselves.
It’s a catch-22; but the basic answer is, as it always has been, that we shouldn’t be holding people whose detention we can’t credibly justify.
One thing that could at least make our situation more tenable would be to really prevent future torture and other ill treatment, and give the Red Cross and other NGOs full access. Wouldn’t solve the injustice of Star Chamber-style detention, but it would at least lessen the damage.
Warren Terra
Oh, and it’s also worth pointing out the institutional forces working on Obama to enable the cowardice he’s thus far shown in refusing to address the toxic legacy of prisoners we’ve held incommunicado and sometimes tortured:
Pentagon’s study says: Gitmo lovely vacation destination, prisoners should be grateful
.
Three-judge panel says just because we’ve held 17 blameless Uighurs for a collective 80-plus years (for no good reason) doesn’t mean we owe them freedom
numbskull
Habeus is not just for American citizens. It does not derive from the detainee’s identity, but rather from that of the detainER. That’d be us. It is our laws and our Constitution that we are pissing on.
And for what?
Comrade Jake
I’m not happy with the decision, but I’m not sure it’s disrespecting the Constitution. These people really do appear to fall into a legal grey area.
cleek
here are two or maybe three reasons.
burnspbesq
@The Moar You Know:
Word. It’s worth keeping in mind that what the Government says in its briefs is just one party’s interpretation of how the law should be applied to a particular set of facts. The other side gets to weigh in, and then the court makes the decision.
I’m still willing to give them the benefit of the doubt, and hope they are playing for a loss that will give them political cover. Sometimes being forced to do the right thing plays better than doing it on your own initiative. Which is fucked up, but it’s the world we live in.
anonevent
I think the point is that due process no longer exists for these people. If you take them to either a US court or a military tribunal, the ruling will be that they will be released because of the things the Bush administration did to them.
Now, if we could count on the American people to say "This is Bush’s fault" then that would be great. But most people will look up and say "Obama is freeing terrorists." And Rush and Cantor will be happy to scream that every day. Where does that leave Obama?
tballou
I know it has only been a month, but I am very disappointed in how Obama has handled dealing with all the Bush fiascos. He really needs to start at the very base of these problems, rather than running around trying to treat the symptoms. Nowhere in any of the financial stuff have I seen any serious discusssion much less legislation in which the fundamental, underlying problems are addressed and reformed, such as all the speculative aspects of our economy over the past decade.
Same with our stupid War on Terror. Obama needs to take a stand that we will live by our Constitution, plain and simple. All of these detainees are totally tainted. He needs to let everyone of these poor bastards go, guilty or otherwise, and then turn the DOJ loose on everyone from Bush on down. Otherwise he will go down in history as being an accomplice to all this crap. There is no middle ground, no triangulating on this.
Warren Terra
anonevent, you sum up the potential political fallout, but you don’t say what you think the solution is. Should we hold them forever, or murder them, to avoid the complications of releasing people the vast majority of whom we could never have proven we had any reason to detain, and many of whom we’ve grievously misused? It would keep Rush from gloating about their release, after all …
tballou
And the hits just keep on coming!
Obama Administration Trying To Kill Lawsuit Over Bush White House Emails
http://www.huffingtonpost.com/2009/02/21/obama-administration-tryi_n_168843.html
Svensker
The prisoners should either be classified as POWs and treated as such, or treated as suspected criminals, and treated as such. No more "detainee" crap.
JR
There’s one reason to think that there’s something better coming from Obama on this front than this:
Neal Katyal has not yet resigned.
If there weren’t something more to the Obama Administration’s plans, there’s no way in hell Katyal would still be standing in line to argue on the government’s behalf. It’s a pretty safe bet he would have walked back down to his office at Georgetown Law if he thought he’d have to advocate for the same unlawful detentions that he spent the last five years fighting against.
At least, that’s what I’m hoping, because otherwise I’d have to be disappointed with both Obama AND Katyal,
JGabriel
Tim, it’s possible, even probable, that your analysis is right – but I’m not entirely convinced. I think we may making a mistake when we assume that the Obama administration wants to win these cases.
It also seems quite possible that Obama and Holder have determined that the best course for getting political support to make sure such policies are never enacted again is to move forward in such a way that the arguments are rejected in a precedent setting way at the Supreme Court.
I think any analysis of Obama’s strategy here needs to take that into acount and either acknowledge it as a possibility, or show why it is not.
.
Warren Terra
JGabriel, it’s a nice theory, but just because the executive is now a Democrat doesn’t guarantee that the Roberts Court will stop rubberstamping unlimited executive power in all cases.
Wilson Heath
My deep hope is that they are going forward with the inhuman Bush DOJ position to throw the case and establish a precedent that hampers the next tyrant to land in the White House. Dropping the case doesn’t make these flagrantly unconstitutional acts a dead letter — making sure that high courts smack down the bogus legalisms does.
I’m just hoping that’s what it is. Not counting on it, unfortunately.
D-Chance.
Transparency You Can Believe In
"Meet the new boss,
same as the old boss…"
So, when do we start talking impeachment, the Hague, and stringing him up? Consistency, people, consistency…
Napoleon
@Wilson Heath:
Hum, I never thought of that as a possibility, but that actually makes sense. Bush would do something that as far as I can tell first was used widespread by Reagan, which is take outrageous positions in court cases to f- with people, then dismiss or not appeal up the chain when they would lose. I recall with Reagan they would routinely try to screw social security claimants, but they would refuse to appeal adverse legal decisions up the chain where they could end up with adverse binding decisions. Bush has done that in detainee cases (well tried to), in part. It makes sense take any cases that you think the SC may slap down and run them all the way up to the SC so that they do get slapped down.
Mike in NC
And in other news, the sun came out today…
JGabriel
@sgwhiteinfla:
The Constitution says "… the Writ of Habeas Corpus shall not be denied".
That’s it. There is nothing restricting that right to citizens, or people within our borders. The only restriction is that it may be suspended when "Cases of Rebellion or Invasion the public safety may require it".
.
gbear
Well if it’s any consolation, you’re most likely overreacting so it’s much less of an epic-suck for you than you think. Of course, I’m just going on the evidence that Obama’s seems to be getting things done thoughtfully and in a timely manner even as many progressives hyperventilate over the non-instantaneous nature of the progress. The way I look at it is that when you’re at the bottom of the ocean you can only come up so fast without getting the bends. But what do I know; I don’t often take this kind of stuff personally.
And if Sarah Palin is right about anything, it’s not ever going to be because she’s well informed. Broken clock.
Mnemosyne
Only in the sense that the Bush Administration refused to give them the POW status they should have had. If they had done that rather than inventing a whole new extralegal status where they could make shit up as they go along, things would be a whole hell of a lot less complicated right now.
Mnemosyne
How about when he kicks out the Red Cross instead of letting them in? That would be a good time.
Tsulagi
Now that would be principled leadership and steel you could count on.
Strategery…not just for Republicans!
Dennis-SGMM
Those lines were really telling and cute the first eleven or twelve thousand times someone used them with reference to Obama.
burnspbesq
@JGabriel:
That’s awfully simplistic. Just what is "the writ of Habeas Corpus?" Are you an originalist, who says that there are no protections available under the writ that weren’t available under the English common law as it was understood by the Framers (in other words, Blackstone is the only book you need)? Or do you have some other notion of what the writ means? And if the latter, what is/are the source(s) of your notions?
One of the beauties of our system is that the Federal courts have only the jurisdiction that is given to them under the Constitution and Federal law – they aren’t roving commissions designed to fix anything that some faction might think is wrong. You may need to be up on the Hill with your arguments.
Napoleon
But of course they are not within our borders.
Mary
On this topic I don’t know how you can come up with halfway decent as describing the DOJ crew. Holder (gee, wonder if he’d like to make an "Americans are cowards when it comes to talking about Presidential torturers" speech?) and Kagan BOTH opted into Lindsay Graham’s worldview of a global battlefield where America is entitled to treat the whole world population as "forever detainees" waiting only on Presidential whim for their conversion.
Still, this part:
The way we treated virtually every muslim prisoner will annul any legitimate trial whether we hold it in the conventional courts or under the UCMJ.
of your post, very unfortunately, is wrong. Go look at what has already been done, right here in domestic courts – like the Saleh case; and to US citizens’ like the Lindh and, more to the point, Padilla, cases. Which one of those prosecutions was halted?
It’s something that has been pretty much ignored, but DOJ has been working hard the last 7 years, paving the way for domestic courts to ignore torture or embrace it and allow it as evidentiary.
Svensker
That is pretty dangerous strategy, to count on the courts to find against you.
Seems to me like wishful thinking.
And D-Chance, fuck off. The President that you loved so much was an incompetent idiot, who has fucked not only our country but the world, three times from Sunday. Obama has done and will do plenty of things I don’t agree with, but at least he’s not a sociopathic moron.
Rosali
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Frank
I’m hoping that this particular decision is founded more in buying time than in finality and the gov’mint eventually junks this whole "enemy combatent" construct and goes back to POW classifications.
I’m also planning on winning PowerBall tomorrow.
Both are possible. Neither look likely right now.
/s/ Pollyanna
Mary
Maybe there needs to be some context. Here’s what you have at Bagram.
The US is in Afghanistan as … what? A military force at war with the Afghans? An occupying force? According to the US, neither. We are there to help protect Afghan civilians and stablize the area.
So, as non-occupiers who are not in a declared state of war with Afghanistan, why exactly would we have a power to wander through the countryside, without Afghan direction or oversight, picking up anyone we want without any grounds?
So, normally the Afghan government and courts would and should be able to have the final say on what happens with those in their environs, even if the US is there (whether there operating from an allowed base, like in Germany, or assisting with operations, as in South American drug operations). But of course, we don’t believe in the rule of law in those countries as it might be applied to American military forces. So we have status of forces agreements that protect the US military from the legal apparatus of the country where they are operating.
And that (along with many other reasons, including the fact that the US government is not granted attainder power and is barred from granting such powers to itself legislatively) is why civilians in a country where our presence is supposedly by grace should have access to US courts – opting out of having the local courts available to order the release of civilians rousted from their homes leaves access to the US courts as the alternative.
The problem that we have is that no one is requiring that detainees be either a) actual battlefield captures, or b) non-uniformed, non-battlefield persons for the purpose of pursing and during the pendency of UCMJ proceedings for violations of military law (such as being sabteurs, etc.)
As a result, we have and have had thousands and thousands of civilians, including women and children who have actually been used as hostages, being held in a situation where the local courts, which are open and operating, are prohibited by a SOFA from requiring release of the wrongfully held.
tofubo
remember, black is up, white is down, and republicans want smaller government
Table 17.1—TOTAL EXECUTIVE BRANCH CIVILIAN EMPLOYEES: 1940–2007
(end-of-fiscal-year count, excluding Postal Service, in thousands) (i.e. one aspect of the size of gov’t)
from 1981-1992, count went up 9 of 12 years
from 1993-2000, count went down 8 of 8 years
from 2001-2008, count went up 7 of 8 years
from Section 17 — Government Employment
http://www.gpoaccess.gov/usbudget/fy09/hist.html
Mary
28
One of the beauties of our system is that the Executive Branch only has powers given to it under the Constitution and Federal law – it is not a roving force designed to fix the world by killing and detaining civilians throughout the war because the President might think they are "wrong ‘uns"
Fern
I believe the goal here is to lose this court case, using – and thus legally invalidating – the Bush administration arguments. And then using the decision to support whatever he is planning to do next.
iluvsummr
I think people should write the White House about this and put a little pressure on, rather than assume that because Obama once taught constitutional law, everything is hunky-dory and there is some grand plan to lose a case.
What’s that FDR quote again (to a group of progressives):
I agree with you, I want to do it, now *make* me do it.
This may just apply here.
Ed Marshall
I don’t think Obama want’s to lose this case. No one wants to fly every last one of the 1000’s of prisoners held in Afghanistan and Iraq to the U.S. to have a trial. That’s just not going to happen. I don’t think it has much to do with the Constitution either. Gitmo was a different animal.
Phoenician in a time of Romans
I know I might be in the minority here but honestly, if those prisoners weren’t abused and aren’t claiming they were abuse but instead just want rights under out constituation I am actually good with letting them stay right the hell where they are at. At some point there definitely needs to be some kind of hearing for them but I really don’t believe they deserve habeaus corpus rights.
The moment you start denying anybody rights based on what they "deserve", you no longer have a justice system. What you have is a vengence system which people pretend is a justice system.
But of course they are not within our borders.
In that case, their guards need to be handed over to the Afghan, Iraqi or Cuban systems as kidnappers. Either your government accepts responsibility, or those holding them are criminals.
Ed Marshall
Assuming we are going to rather foolishly try to accomplish something in Afghanistan, do you really want them turning over all the prisoners to the Afghan government? The prisoners wouldn’t want that. I also wonder if the effect there wouldn’t just be not to *take* prisoners.
Keith
I look forward to Obama’s answer on this when put on the spot at his next press conference (the beauty of having a prez who holds regular PCs)
c u n d gulag
Cleek @ 10,
Thanks, you’re right. I needed that! :-)
Warren Terra
True enough, but moot. Their case, and their testimony, deserves to be heard in court, and they or their representative should have some ability to challenge the case against them in that court; but none of that means that they have to physically be in the court, or that the court has to physically be in the US.
Ed Marshall
It seems a shitload simpler to me just to treat them as POW’s. What case are you going to bring against them? Murder? Where do you belong in the U.S. Justice system for being an insurgent in your own country?
Anton Sirius
@Dennis-SGMM:
I’ve gotta question your math here. We’re, what, 32 days into the Obama administration? That’s only about 350 Who references per day, not even including the pre-inauguration period. Way, way too low.
Anton Sirius
@Keith:
LOLZ! And who, pray tell, would be asking that question, unless Sy Hersh dresses up in drag and pretends to be Helen Thomas?
Warren Terra
Ed Marshall, three points:
(1) In theory, the US doesn’t assume someone is guilty without a trial. You say these people are insurgents; how do you know, or how does anyone know, until their cases are fairly addressed?
(2) The prisoners are in our custody, and there are supposed to be rules about how people in our custody are treated. These rules include the most basic rule, that we use a courtroom to determine whether those people should remain in our custody.
(3) Prisoners of war? What war? If we’re at war with any nation (other than North Korea, I suppose, in a state of cease fire for half a century), I’m not aware with it. Dubya declared war on an abstract noun, a type of opponent that is notoriously hard to defeat, but I don’t think that counts as being official, and in any case very few people are captured who then proclaim themselves to be serving in the army of an abstract noun. We invaded Afghanistan and Iraq, but technically I thought those wars and even those occupations were declared to be finished, and that we’re now legally guests of the sovereign governments of Iraq and Afghanistan. We can hold people as POWs if we’re at war and only until the war is over; I’m not sure we are technically at war, and if we are then there’s no way of knowing when the war could ever be over.
.
Now, it seems to me that the easiest solution to the Habeas Problem would be to release them into Afghan custody. If there are individuals we want to hold on to, we should be able to justify those cases individually, in court. And if the Afghans can’t be trusted to hold their prisoners, or alternatively if the Afghans can’t be trusted to respect their prisoners’ basic rights, those sound like problems to be addressed, not to be used as excuses.
Stooleo
Denying due process and Habeas Corpus the the gitmo prisoners does nothing to make us safer, actually it makes less safe and now we have all those detainees, who are now, most likely sworn enemies of the United States. Now if you are one of those that still think that this is a good idea, you are a chickenshit. You are a pants pissing coward. Let me remind you that you will have more opportunities to die a violent death in your car, than a violent death at the hands of a muslin extremist. The government cannot guarantee anyone complete safety from foreign threats, now or in the past. So please, if you see one of those pundits on TV, going crazy about returning due process and Habeas Corpus to the prisoners, be assured you are watching the rantings of a bed wetting coward.
PaulB
@Napoleon:
I don’t think it matters. Our bases on foreign soil are, for most intents and purposes, considered American soil. I believe the Supreme Court has endorsed this view with respect to Guantanamo.
Back on topic, I think that it’s rather far-fetched to think that the Obama Justice Department is deliberately trying to throw the case or trying to get the Supreme Court to definitively make it do the right thing, particularly given the makeup of today’s court.
I’m a little more sympathetic to the argument that they need more time to investigate the ramifications of changing the legal reasoning on these cases or investigate the consequences of dropping the cases altogether, but not much. It is within their power to do the right thing; they are not doing the right thing, not just in this case but in the state secrets case.
How much more time and how many more cases am I supposed to give?
Ed Marshall
None of this "declare war" shit matters. We never declared war on Korea either, but we had POWs. We had them in every conflict ever until Bush invented "enemy combatants". You reclassify them as POWs give them access to the Red Cross and the Swiss Consulate and you have gone back to normal. If someone is there wrongfully, they have an advocate. Trying to run everyone the military arrests through the U.S. court system isn’t normal or even sane.
Dennis-SGMM
@Ed Marshall:
We didn’t declare war in Vietnam either. Captured VC, although they were insurgents and did not wear uniforms, were treated as POW’s.
Ed Marshall
That’s what I’m saying. Seems simple enough to me.
No, the CIA can’t swoop in and grab whoever and not try them. That’s a different kettle of fish.
Wile E. Quixote
@D-Chance
Right after we’ve forced the last wingnut to dig his own grave and then put two rounds of Federal Hydrashok .45 into the back of his head.
Phoenix Woman
I decided to make the unusual step of going back and reading, in its entirety, the source article for that portion of the Kos diary. And here’s a sentence that the diarist (probably to avoid fair-use issues) left out (it appears right before the paragraph that so exercised the diarist and Tim):
Meanwhile, Barbara Olshansky, the lead counsel for three of the four detainees, has said that while she was deeply disappointed that the Obama administration had decided to stick with the Bush position for now, she also said she hoped that the Obama administration was merely signalling it was still working out its own position regarding the issue of detainees.
Remember when all of the opinion tastemakers amongst the A-list bloggers thought that Obama was going to uphold Bush’s drill-baby-drill policy WRT offshore drilling because he didn’t unequivocally state that we would never ever ever ever drill offshore, but instead said that he wanted to study the issue before making any decisions? Then Ken Salazar, Obama’s Interior Secretary, came along a couple weeks ago and said that Bush’s offshore drilling policy was being rescinded in favor of putting more emphasis on offshore wind and wave farms? This situation reminds me of that: It’s something that can be made to sound ominously bad and may very well turn out not to be bad at all — but of course by the time it turns out to be not bad, the corrosion caused by the reflexive cynicism (much of it planted by people who either backed somebody else in the primaries or who were pissed that Dennis Kucinich will never be president) will have done its work and it won’t matter.
I know some folks aren’t happy unless they’re miserable, but do remember that the reflexively cynical are easier to roll than are the optimistic.
KevOH
Give Obama a chance there are far too many crises going on right now to solve every single one in the first 30 days. He is only human; granted an immensely capable human. I am beginning to think people really believe he is the messiah.
Bootlegger
We hold certain truths to be "self-evident". The first one we listed was that "all men are created equal". Not all Americans, not all people who are our friends, not people who believe what we believe, but all men (which obviously includes women).
I don’t care how dangerous they are, or where they currently reside, every human being is entitled to the rights which we declared over 200 years ago to be self-evident and universal.
J. Michael Neal
One thing I find a little odd is that it doesn’t seem like the Obama administration is advancing any arguments of their own. As far as I can tell, all they are saying is that they aren’t abandoning the Bush arguments. This is how I can manage to convince myself that, if the administration doesn’t want to lose the case, they are at least stalling. I find it hard to believe that, even if this Justice Department does think that they should be able to hold people at Bagram, that they find the particular arguments of Bush to be convincing.
J. Michael Neal
That’s fine, but there is centuries of established law that constitutional protections don’t extend beyond US citizens and US territory. I buy the argument that Gitmo and Bagram are effectively US territory, and so habeus should apply there. That is not the same thing as saying that constitutional protections apply universally.
Bootlegger
@J. Michael Neal: I’m sure there is and it largely is premised on the fact that we can’t impose our laws on people in other countries. However, this is not the same as arguing that people for whom we are responsible, i.e. we apprehended them, should not be included in our definition of "all men are created equal." Hell, one of our premises for "bringing Democracy to the Middle East" is that they should share in the beauty of liberty. But if that liberty is capriciously applied I’m not sure we are setting much of an example, i.e. we don’t really believe all that stuff.
Besides, I’ve never been a big fan of the argument that we should do something because we’ve always done it that way.
Steeplejack
@Fern:
An excellent and intriguing point.
Mary
51 –
It’s not the "declare war" issue – it’s the HOW people are detained. They are not battlefield detentions, they are people rousted from their homes and disappeared off of streets. That’s not a POW anymore than it is an "illegal enemy combatant" Unless there is some kind of evidence sufficient to pursue a UCMJ charge(s) [which might at least justify treating someone as a combatant] or unless somene is actually taken in a battle setting, then on what basis are you calling all the detainees POWs?
The issue on whether or not there is a declared war isn’t about whether or not battlefield detainees can be POWs (they can) but rather the status of the American military forces in Afghanistan. What is that status when the military is grabbing civilians from their homes. Even you make a reference to "military arrests" and if that is what they are, then where is the UCMJ charge? It’s nt there – not for the petitioners and not for pretty much everyone held at Bagram.
So again, if Bagram was a facility that was limited t UCMJ "arrests" with charges and battlefield POW detentions, even without a state of declared war there would not be many issues.
Even in a war setting, under the Geneva conventions there are very specific protections for civilians captured that DO require a hearing with due process – something that is not happening and something for which there is no real substantive or procedural avenues are being provided to the detainees – in violation of Geneva Conventions.
The issue of the US NOT being at war with Afghanistan (as opposed to supposedly having some amorphous mission of being in Afghanistan to support the CIVILIAN government and look for al-Qaeda members – against whom there would be UCMJ charges that could be brought) goes to the presumptions in favor of the civilian populations. We are there supposedly to serve that population, not to be conquering them or at war with them. And in that service, there is no UCMJ or domestic law or international law right to grab civilians and round them into holding pens and keep them for years.
And they have the presumption that they are civilians – battlefield capture or UCMJ charges lodged against them would change that, but if those don’t exist, our status in Afghanistan is not that much different than if we were on a German airbase and there were people with al-Qaeda ties in the civilian populations there (things that are not speculation) Our military in such a setting could not go through the streets of Germany grabbing people from their homes and sticking them in a pen on our airbase and then just hold them for years.
b-psycho
No wonder the previous adminstration didn’t just fucking execute them. That wouldn’t have left such an entertaining "dilemma".
Good thing I figured out the complete lack of redeeming value to government a long time ago, otherwise watching Obama nibble around the edges of a political and legal status quo that really should just be annihilated would be kinda sad. Have fun waiting for seismic shifts that never happen, I’mma be somewhere drunk…
ilsita
@Phoenix Woman:
I appreciate this post. Thanks for the perspective.
tavella
Yup. Svensker sums it up. POW or habeas corpus. As multiple people have pointed out, the people babbling on this thread about how they can’t be POWs because we didn’t declare war are talking nonsense; we have had plenty of POWs in ‘undeclared’ wars.
joe from Lowell
This is unequivocally the right decision, and I say this as someone who believes that granting habeas rights to the prisoners at Gitmo was also unequivocally the right thing.
What’s going on in Afghanistan is a war – a real war, not a metaphor like the War on Terror.
The Army can detain people captured in a war zone (a real, non-metaphorical war zone), and they don’t get access to the civilian courts.
The issue at Bagram is the treatment of prisoners there.
Ed Marshall
Even in a war setting, under the Geneva conventions there are very specific protections for civilians captured that DO require a hearing with due process –
That’s what should be going on.
joe from Lowell
Under Geneva, prisoners accused of being "enemy combatants" (they don’t use that term, but that’s the meaning – people fighting out of uniform or committing crimes) are supposed to be able to challenge that designation before a "regularly constituted tribunal" that offers the same due process as that available to the host army’s own soldiers when they’re accused of a crime. It does not require that they be granted access to the civilian court system. Prior to Bush, this meant a court martial.
Obama stopped the DTA Kangaroo Courts for the purpose of replacing them with a system that conforms to Geneva. THAT is how these individuals’ cases should be heard. The form and process of what replaces them, and the treatment meted out to detainees of whatever status, are the real issues.
Mary
68 – "about how they can’t be POWs because we didn’t declare war "
Except not many are saying that. They can’t be POWs if they were not battlefield captures or members of the entity that we are "fighting" That entity isn’t the miltary of the country of "Afghanistan and it is definitely not the civilians of Afghanistan in general, it is al- Qaeda and/or the Taliban.
So you can not round up civilians in Afghanistan and hold them for years whether you are pretending they are "illegal enemy combatants" or "pows" because they are neither.
71 – that’s pretty much correct. The bigger problem, though, is not that neither the old Kangaroo combatant status review tribunals nor the DTA nor the MCA "enhanced" tribunals all fail to meet standards for a Geneva compliant tribunal, it is that there is NO PROCESS for making such tribunals required and timely for all detainees who were not battlefield combatant captures.
So the thousands and thousands (did I mention thousands) who get rounded up in their own country and own home by American military personal and who have been held for years (and are continuing to be held – since Obama is focusing on the GITMO issue and the manner of trying the few detainees against whom actual charges can be made) do not have a recourse, and definitely not a Geneva compliant recourse.
For years they have been held with no hearing before anything resembling a regularly constituted tribunal (leaving aside the issue of whether the military in Afghanistan can even meet the requirements for such a tribunal, given language, culture, witness etc. issues etc. attendent on all the home invasion/kidnapping cases) and nothing has changed that to date.
Habeas isn’t always a recourse when there are alternative procedures that provide similar protections. The fact is and has been and looks to continue to be that those do not exist for the Iraq and Afghanistan base detainees, who are rounded up for no reasons, bad intel, tribal conflict reasons, Odierno tactics, scared and confused soldier reasons, pissed off enemies reasons, sold to the US and shipped there bc of bad intel etc. etc.
There has not even been any effort to provide decent accountings for the "whos" of who we have detained over the years, much less the whys. And the ripple effects are that families have lost fathers, brothers, patriarchs, sons and even daughters, mothers and wives without even knowing what happened to them – in their own country, their own homes can be invaded by the US military and members of the family disappeared into detention camps or worse – black sites, GITMO etc. and the families don’t even get to know what happened, much less have access to a decent tribunal system with due process to get their family members released.
The Constitution never gave our Executive branch the power to do that to civilians of any country and the laws of war don’t confer that power on any military.