Follow-up on Habeas Corpus and Gitmo

I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees.   First, I will observe that I have great readers, because all of the email was respectful.  Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet. 

I got a lot of email about past precedents and settled law on this.  What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent.  The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap.  They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants.  New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.

I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees.  I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets.  The place where reasonable people disagree is what to do with this mixed bag.  Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street.  I would argue in turn that this is exactly NOT how our legal system works.  For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.

It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's.  Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"

I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process.  It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming.  And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.

Update: More, from Cato and George Will, here.  There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me.  John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.

  • Rocky Mountain

    It has been reported, reliably I think, that at least some of the detainees previously released returned to combat actions. Now they will return to combat after our government has spent perhaps many millions of dollars in court trying to convict them while they probably will relax on bail in accommodations no doubt at our expense as well.

    I don't really see the relevance of the reference to uniformed officers of the Wehrmacht as if by virtue of their uniforms and certified membership in an organization makes them more culpable then non-uniformed IED-using killers.

    The remark on the Bush administration having control over the definition of 'combatants' simply smacks of blind Bush hatred or at least contempt. The premise here seems to be that because the administration has taken an action which it believes has military and intelligence value then it lacks credibility either because government is to be suspected at all times or because it is Bush.

    Once again it seems that the Libertarian 'freedom' argument rests on an abstraction which will be very costly and ultimately cost the lives of some of our soldiers.

  • Rocky Mountain

    It has been reported, reliably I think, that at least some of the detainees previously released returned to combat actions. Now they will return to combat after our government has spent perhaps many millions of dollars in court trying to convict them while they probably will relax on bail in accommodations no doubt at our expense as well.

    I don't really see the relevance of the reference to uniformed officers of the Wehrmacht as if by virtue of their uniforms and certified membership in an organization makes them more culpable then non-uniformed IED-using killers.

    The remark on the Bush administration having control over the definition of 'combatants' simply smacks of blind Bush hatred or at least contempt. The premise here seems to be that because the administration has taken an action which it believes has military and intelligence value then it lacks credibility either because government is to be suspected at all times or because it is Bush.

    Once again it seems that the Libertarian 'freedom' argument rests on an abstraction which will be very costly and ultimately cost the lives of some of our soldiers.

  • Mark

    "New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government."

    And new laws were specifically created. The Congress and the President created laws specifically desigend to address issues raised by the Supreme Court.

    Were you are missing the boat is the analogy of these combatants. These combatants are not like the Wehrmact officers who were uniformed soldiers of a Geneva Convention country. The "Gitmo" combatants are more similar to the enemy combatants caught doing espionage during WWII. These individuals were tried in military court and then executed.

  • SamO

    I agree with the OP.
    The question isn't whether we should lock up combatants - we should, and anyone who disagrees with that should be ignored.
    The question is, for each individual captive, is he a combatant?
    In upholding habeus corpus, the message of the Court is not saying let them go, but let's find out who they are.
    We don't know if a given Gitmo resident is, to use the WWII analogy, is a Wehrmacht officer or a baguette wielding French onion seller, complete with striped shirt, bicycle and beret. All the Supremes want to do is find out who he is. I don't see a problem with that.

  • TDK

    It's instructive to recall that guerilla fighters (which is how I regard Al Quaeda) are not a new phenomenon.

    For many years the soldier in uniform was granted a status denied that of a civilian who took up arms. The logic being that the former, by virtue of his clothes, sets himself apart. Soldiers dressed as civilians can use other civilians as a means to more effectively prosecute an attack upon regular soldiers - they can be used as cover, both to manoeuvre and hide. If the regular soldier should find himself in combat with guerillas, he is therefore at a disadvantage. Consequently for years, it was regarded as just to execute combatants who fought dressed as civilians but operated as soldiers. We hung spies and saboteurs.

    This article, whilst perhaps not wholly endorseable has a good potted history of the changes in legal status.

    Now it's worth pointing out that sometimes belligerents were unable to obtain uniforms. Nevertheless they took steps to identify themselves as soldiers such as armbands or similar. They were accorded the status of combatants.

    The question arises as to when and why the legal status of guerillas changed. From the middle of the 19th century, attempts were made to reduce the suffering caused by war. The change in status is part of this drive. The linked article blames the change on communist inspired reforms designed to debilitate the regular soldier. I think this is too simplistic but contains a grain of truth.

  • Anonymous

    Sorry, but the Bush administration's definitions follow the Geneva conventions to the letter. The question before for the Court was not their status, but what rights their status confers to them.

    Members of a country's armed forces are POWs under Geneva Article 3. Captured members of the Iraq army were interred in Iraq as POWs and subsequently released. The guys in Gitmo are covered by Article 4 which specifically exists to cover civilians who are not members of an armed force.

  • Anonymous

    Sorry, but the Bush administration's definitions follow the Geneva conventions to the letter. The question before for the Court was not their status, but what rights their status confers to them.

    Members of a country's armed forces are POWs under Geneva Article 3. Captured members of the Iraq army were interred in Iraq as POWs and subsequently released. The guys in Gitmo are covered by Article 4 which specifically exists to cover civilians who are not members of an armed force.

  • http://amateureconblog.blogspot.com/ Speedmaster

    I think you nailed it with this, nice analysis:
    "... and as I said before, when in doubt, I will always side for protection of individual rights against the government."

  • Jaycee

    I don't understand why Americans seem to be so terrified of these ragtag little bands of criminals that they're prepared to give up a tradition of respect of law and due process.

    If there is evidence that these locked-up people are criminals - then show the evidence and keep locking them up. No problem. If there is no evidence - then why are you locking them up?

    The logic seems to be : "We can't let release them from Guantanamo because they're terrorists" and "We know they're terrorists because they're in Guantanamo". That's a problem. How would one ever get released?

    In a number of cases it seems people locked up in Guantanamo were handed over to US forces because long feuding neighbours saw that if they claimed Fred was a taliban commander, the US would give the neighbours a large sum of money and take Fred away.

    The claim that people who have been released were later re-captured attacking US forces is interesting : if I was innocent and you locked me up and tortured me for 7 years I'd probably be pretty damn angry too.

  • http://hallofrecord.blogspot.com Bruce Hall

    The likely outcome of the court's ruling is that the U.S. military will not take prisoners... their middle east allies will... and the U.S. will be "given" the "results of interrogations" under the rules established by our allies rather than the S.C.

    To make it perfectly clear, the military will treat the S.C. ruling as a "technicality" that will be circumvented by another "technicality." U.S. soldiers will only "assist" their allies in the capture of opposition forces and will only "observe" the interrogations. "Hear no evil; see no evil; don't worry about speaking evil."

  • EconStudent

    To anonymous:

    After reviewing the 4th article of the Geneva Convention, I would argue that these people are not covered. They did not carry arms openly, they didn't have fixed signs recognizable at a distance, and they did not follow the laws and customs of war. Therefore, they are not covered under the Geneva Convention and are thus to be treated as we determine to be proper. I am not condoning Gitmo, but these are not prisoner's of war but cowards who hide behind women and children to attack people.

  • Mark

    I guess, the bottom line is, I cannot abide by a decision that essentially grants more rights to these murderers than the members of our own armed forces.

  • http://www.tinyvital.com/ John Moore

    If the ruling only applied to Americans, or people detained in America, it might be okay. It does not.

    You seem to ignore the fact that these people are not Americans and were not captured on American soil. Why they should have access to the American justice system eludes me. The Bush administration is not abandoning our history of preserving the rights of our citizens, it is engaged in war, on foreign soil, with foreigners. Our history of giving rights to irregular, non-uniformed forces is one of military tribunals and firing squads. The SS infiltrators in the Battle of the Bulge, who wore American uniforms, were tried and executed.

    The logic seems to be that even though our gove3rnment is legally empowered to kill these people at any time, it is not empowered to imprison them without giving them access to our legal system. This is so perversely inverted as to be obviously wrong.

    On a practical level, this ruling will require the government to release more of these people, or to present highly sensitive intelligence to them (or their lawyers) - either one of which represents a risk to our citizens. When we used the justice system to deal with the first WTC terrorists, the result was a lawyer who transmitted information on behalf of the terrorists. The risks should be obvious. See Andrew McCarthy's "A Memoir of the Jihad" for great details about how poorly our legal system deals with this sort of problem.

    No doubt there are innocents among the detainees. That is very sad, but utterly irrelevant. There are always innocents harmed in warfare. We do more than any other nation to minimize harm to noncombatants, but this ruling seems to attempt a theoretical level of perfection in one area of warfare, while ignoring all of history.

    If you value civil liberties, you should be far more concerned about an unelected court which rules far beyond its proper realm than an administration which holds a few hundred foreigners captured in a brutal war. Fight for a court which behaves in a constitutional manner that respects history, not just one which delivers, by violating its responsibilities, a ruling you happen to agree with.

    This ruling is even worse than Kelo. Kelo let the government steal property. This ruling will lead to loss of life.

  • An American in NY

    Jaycee wrote, "I don't understand why Americans seem to be so terrified of these ragtag little bands of criminals that they're prepared to give up a tradition of respect of law and due process."

    Well, these "little ragtag bands" killed a few thousand of us, but everyone prefers to imagine that they are all inept pathetic men that pose no risk to us. The key intellectual problem is that none of the 9/11 killers could have been locked up in advance of their attack without violation of their due process rights. I don't believe any had prior convictions. Can't lock 'em up after the attack either, of course. Thus, the only way to prevent suicide attacks like 9/11 is to violate due process and jail them in advance. The traditional legal system does not work for suicide attackers. I'm open to hearing good ideas, but having a DA indict their tiny bits post-facto doesn't work. So, Jaycee, or anyone else, if you can tell us how to stop a motivated suicide attacker without violating due process and while respecting our existing laws, maybe you can convince us to let them all go. Incidentally, remember that the only reason we are alive is because they are unable to kill us, not because they don't want to. If we have no means to stop them, we will die.

  • Corky Boyd

    John Moore in the previous post hits the nail on the head regarding sensitive intelligence having to be compromised. Actually it's worse than that. The government simply won't release that information.

    Go back to 1942 when 8 German saboteurs were dropped from a sub on our shores and were eventually captured. If their lawyers had requested all (including crypto) intelligence material pertaining to them, the government would not have even acknowledged it much less released it. It was just too sensitive and too important to the war effort. For someone who dealt with this kind of inelligence, as I have, you just watch it just dry up when people start blabbing.

    Today's lawyers know this and it will be the first point of attack against the prosecution. Regretfully, cases will end with charges being dropped or directed not guilty verdicts. Just wait, it won't be long before we find out.

    The reason Guantanamo was selcted is it isn't on US soil. The reasonable assumption was that US criminal courts couldn't extend their reach to this legal never never land. Military courts would be used, as they were with the German saboteurs. And above all, there would be no chance the accused could be released on US soil. Fortunately the SC decision hasn't mandated closing Guantanamo, yet.

  • Max Lybbert

    Again, this is a case where the Supreme Court should not be determining policy. The Supreme Court should be concerned with (1) what is the law, and (2) is that law Constitutional.

    In short, if a law school student saw the following test question on September 10, 2001, what would he have answered?

    /* In a conflict similar to Vietnam, where the military is fighting conventional military forces (such as the NVA) and guerrilla forces (such as the VC) what rights do the following prisoners have? (a) a captured member of the conventional force in uniform, (b) a captured suspected spy, (c) a captured suspected guerrilla fighter, (d) a person captured while in possession of US military property?
    */

  • Stan

    Let's try to make this simple enough that everyone can understand it. The question is who decides. Which branches of the government are charged by the Constitution with the duty of determining the procedures by which the people held in Gitmo shall be heard?

    Congress, by an overwhelming majority, passed a law to deal with the situation. Bushbashers choose to ignore this. For them, it's an inconvenient fact.

    Bush signed the law.

    There is no question that the law is constitutional by any normal standard. The Supreme Court majority decided that, if they were the legislative branch, they would have crafted a different law. So they substituted their legislative judgment for that enacted by the other branches.

    If this doesn't bother you, you just don't have any respect for the importance of separation of powers.

  • CB

    Pack 'em all up and ship them to Iraq. Let the Iraqi courts decide and serve punishment. It will all be over in a week.

  • Jason

    Great posts explaining the rational for current detainee policy- would just like to add a few points from my public school education (USMA '82: core courses included philosophy, ethics, civilian law and military law.)

    Police apprehend suspects within U.S. Territory where the rule of law prevails. Suspects enter the US criminal court system, which is designed to provide due process based on multiple assumptions: ability to isolate and investigate the crime scene, an infrastructure for collecting and preserving evidence, methods for compelling testimony from witnesses, ability to preclude witness intimidation, and a host of other things like Miranda rights and nuances on rules of evidence for Search and Seizure that have recently moderated both law enforcement procedure as well as U.S. citizens' behavior.

    By definition, the military is committed when there is no more rule of law. In the hierarchy of 'accomplish the mission, safety of the troops, care of equipment' inserting an imperative to collect and maintain chain of custody on enough evidence to meet a civilian court's burden of proof is ridiculous for combat missions. Add to it that the population is neither informed by U.S. cultural background, protected by our rule of law nor compelled to testify and there is not much hope of pulling a goat herder from Carjackistan back to Peoria as a witness.

    Our troops already check for explosive, take DNA, photograph, make sworn statements, retain data from classified sources and follow a legal due process designed by and monitored by legal professionals. The same legal system that is good enough for the members of the military somehow is not competent in the eyes of 5/9ths of SCOTUS? As the dissenting four pointed out, this is not a legal finding, but a political opinion that even this “C” student finds unsubstantial.

  • bbartlog

    that at least some of the detainees previously released returned to combat actions

    Yes. Apparently some 30 or so of those released committed or are strongly suspected of committing terrorist acts. Considering that hundreds have been released and that the recidivism rate for regular criminals is over 50%, I'd say this argues strongly for the idea that most of those released were not terrorist threats.

    After reviewing the 4th article of the Geneva Convention, I would argue that these people are not covered.

    The Supreme Court has already disagreed with you on this point as well.

    these people are not Americans and were not captured on American soil. Why they should have access to the American justice system eludes me.

    Because they don't have access to any *other* justice system, other than the military tribunals. Now, if the military tribunals had shown themselves reasonably effective in providing trials to the detained, I would say: fine. But, in fact, after six years I believe no one has been tried, and plans are only to try thirty or forty of the five hundred that were detained. If we acknowledged them to be subject to some other country's legal system, that would be fine as well. As it stands, though, the argument that they should not be allowed access to the American legal system is just a cheesy attempt to throw them into a legal limbo without any recourse.

    The same legal system that is good enough for the members of the military somehow is not competent in the eyes of 5/9ths of SCOTUS?

    Maybe if they had actually had trials for more than a handful of the enemy combatants (unlawful or otherwise) this would be a more compelling argument.

    The logic seems to be that even though our gove3rnment is legally empowered to kill these people at any time, it is not empowered to imprison them without giving them access to our legal system. This is so perversely inverted as to be obviously wrong.

    It isn't empowered to kill them at any time; they have been granted the protections of the Geneva convention. Now if you are saying that we *could* legally have killed them back when they were first caught red-handed attacking our troops, but that having chosen not to do so at that time we are *now* obligated to give them access to our legal system, I would say there is nothing perversely inverted about that at all. A parallel situation arises if you shoot at a cop: he certainly can gun you down in self defense, but if you are lucky and instead get taken into custody, the fact that you could legally have been shot like a dog does not cause you to lose any of your rights on down the line.

  • Steve

    This isn't the so-called 'war on drugs' or 'war on poverty'. It's not even the 'cold war'.
    It's a real war. The constitutional/legal protections given to criminal suspects, foreign diplomats, civilians, do not apply. The rules of war do. They are detailed in the Geneva Covention, which specifically describes these detainees and the proper treatment of them by governments. New situations require new law, sure. But the Geneva Covention is a treaty. Want to renegotiate it? Go ahead, but until then, it's "the supreme law of the land." N'est-ce pas?

  • Mark

    One issue that I believe is totally ignored in all these types of discussions is the utter SANCTITY the Geneva Convention is held to. The rational for the convention is important no doubt.

    But consider this. In the last century of American foreign wars, the ONLY country that has treated our prisoners to the standards of the Geneva Convention was Nazi Germany. Think about that for a moment. Other than the Nazis, American prisoners of war have faced nothing but total barbarism or worse from their captors.

    While I believe that the Geneva Convention should be followed, they should not be followed with a purity beyond their scope. One of the underlying purposes of the Geneva Convention is to offer an incentive to "behave" during warfare and "follow the rules", which are designed to minimize civilian casaulties. By offering rights BEYOND the Geneva Convention to individuals that would be classified as enemy combatants not subject to Geneva protections means we have eliminated this incentive to follow the rules. Now, enemy fighters fighting the UNITED STATES military can shed their uniforms and blend into the civilian population with impunity.

    I understand that the United States must set a standard that is civilized. But this means we must compare and contrast our behaviour with WORLD STANDARDS. And, we far excede those. THese individuals, if captured by almost every other nation of the world...China, Russia, Germany, Britain, Japan, or France...would have been severely tortured, held in very poor conditions for a short time, and then executed, with no questions asked.

  • Max Lybbert
    that at least some of the detainees previously released returned to combat actions

    Yes. Apparently some 30 or so of those released committed or are strongly suspected of committing terrorist acts. Considering that hundreds have been released and that the recidivism rate for regular criminals is over 50%, I'd say this argues strongly for the idea that most of those released were not terrorist threats.

    And I would say the fact that "considering the fact that hundreds have been released" would show that (1) the military isn't interested in spending time, money and effort guarding people they don't consider threats, and (2) the review process that led to those hundreds being released has worked pretty well.

    these people are not Americans and were not captured on American soil. Why they should have access to the American justice system eludes me.

    Because they don't have access to any *other* justice system, other than the military tribunals. Now, if the military tribunals had shown themselves reasonably effective in providing trials to the detained, I would say: fine. But, in fact, after six years I believe no one has been tried, and plans are only to try thirty or forty of the five hundred that were detained.

    There is no requirement to charge military detainees for crimes. There never has been. There isn't any such requirement in the Geneva Conventions. In fact, the Geneva Conventions prohibit charging people for crimes such as "being our enemy." How many North Vietnamese did the US capture in Vietnam? How many of those were charged with war crimes? How many were exchanged for POWs held by North Vietnam? How many were simply released when the military decided they posed no threat? How many of the thousands of Iraqi prisoners from Desert Storm were later charged with war crimes? How many were simply released at the "cessation of hostilities" as required by the Geneva Conventions? How many Confederate soldiers were charged with war crimes after the Civil War (answer: far less than you'd expect)? How many were simply released after Appotomax? The list goes on and on.

    The reason there isn't a requirement to charge each and every military detainee with a crime is that military prisoners may be captured for reasons other than being criminal suspects. They are generally captured when they lose a battle and surrender and civilized nations think it's better for the victor to take prisoners than to kill them outright. There are exceptions but for the most part military detainees are never charged with crimes. And that is much better than the alternatives (i.e., "take no prisoners" or charge people with the crime of "being our enemy").

    From another poster:

    Pack 'em all up and ship them to Iraq. Let the Iraqi courts decide and serve punishment.

    Great idea but, ...

    Many of the detainees in Guantanamo come from the war with Afghanistan. Shipping them to Iraq to face criminal charges would definitely violate international law. On the other hand, I agree that the military can, should, and I believe has shipped some of these detainees to the appropriate countries to face charges there (for instance, Saddam Hussein was found guilty in an Iraqi court, and executed by the Iraqi government).

    Then again, last weekend an Afghan prison break led to nearly a thousand prisoners getting free. Sometimes our allies aren't all that equipped to detain the people we're fighting.

  • Rick Caird

    The US Constitution states in Article III, Section 2: "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

    The US Congress explicitly took habeus corpus jurisdiction away from the Supreme Court with regard to to the Guantanamo detainees. So, the question is why did the Supreme Court decide to overrule the US Congress with respect to jurisdiction when he Congress has a Constitutional right to limit the courts jurisdiction? This seems to me to be a clearly impeachable offense. Or failing that, the US Congress could just announce they are ignoring the Supreme Court decision because the Court had no authority to rule. The Supreme Court has instigated this conflict and they are in the worst position to enforce its ruling.

    Rick

  • ElamBend

    Coyote,
    I'm actually pretty sympathetic to your positions. However, it's the manner of the court's decision that concerns me. Now a defendant is challenging his detention on the grounds that he was not read his rights:
    http://www.canada.com/story.html?id=594484
    Given the manner and tenor of the courts ruling, this is the correct course of action by the defendant's attorney, one that I expected (though, not this soon).

    The court will soon find itself in the position again to try to right the mess it has created. I hope that it will at least put some more thoughts into the provided better direction for the mess that they've created.