Are We at War -- or Not?

[Beattie]

From Buchanan:


Fail right there. The right to a fair trial, presumption of innocence, and all the other protections for defendants under our Constitution are afforded to all persons on US territory, not just citizens. Buchanan once again displays either ignorance or dishonesty. The rest of his drivel is drivel designed to obscure the fact that indefinite detention is an abomination to our system of law.

It applies to residents and resident aliens. Furthermore KSM was held in Cuba, not the US and this is why gitmo was established in the first place. To completely avoid any question of whether non-resident non-uniformed enemy combatants should be afforded constitutional rights.

 

[fskimospy]

It applies to residents and resident aliens. Furthermore KSM was held in Cuba, not the US and this is why gitmo was established in the first place. To completely avoid any question of whether non-resident non-uniformed enemy combatants should be afforded constitutional rights.

That may have been WHY it was set up, but that reasoning was explicitly smacked down by the USSC.

http://en.wikipedia.org/wiki/Boumediene_v._Bush

 

[fskimospy]

But eski, unlike guys like Bush, Cheney and Yoo, Obama, Holder et al do not start their considerations with the principle that the role of government is firstly the protection of American citizens from threats domestic and foreign. The legal firm of Obama, Holder firmly believes that we are all citizens of the world and the rights that Americans have won are now to be extended to all people, everywhere, while conveniently ignoring the fact that no terrorist plans on extending such rights to Americans anywhere.

Baseless speculation bordering on slander, explicitly contradicted by Obama's policies on detainee prosecution. (much to my dismay) EDIT: In addition, the first draft of the report condemning Yoo was completed under the Bush administration. That's just how incompetent he is.

My argument, and that of the previous Administration, is that the US Government is charged by the Constitution to protect us. And there is neither a Constitutional mandate nor an international law reference for protecting terrorists and non-state enemies.

Incorrect.

http://en.wikipedia.org/wiki/Boumediene_v._Bush

Maybe our common humanity, when faced with genocidal types, can be inferred to keep them in indefinite hard detention rather than killing them on the spot, but I would not be so generous nor so willing to take a risk that a bleeding heart or fancy ACLU lawyer won't get them out on a crafty legal argument.

I wonder how you would feel should the family, school, city they first target be yours? I bet you would feel proud, damn proud, that you insured they had the freedom to do so. And after the funerals are done, you would be the first to say they need a fair trial, again.

False premise.

Your post presupposes they are all guilty when the entire point of giving these people a trial is to determine if we should be holding them at all... you know to find out if they are guilty of the crimes our government says they are guilty of. Considering the large numbers of detainees that have been detained and then eventually released because they presented no threat, this is obviously a valid concern.

As for whether or not we should make laws based around what Andy would do to protect his loved ones, that's a dumb idea. Of course we shouldn't. Society's laws are not created to cater to the whims of emotionally involved parties for obvious reasons.

From now on you should really make an effort to go an entire post without a logical fallacy or a gross distortion of others' positions. If your points are good, you won't need these grade school tactics to prove them.

 

[PJABBER]

That may have been WHY it was set up, but that reasoning was explicitly smacked down by the USSC.

http://en.wikipedia.org/wiki/Boumediene_v._Bush

The applicable precedent should be Johnson v. Eisentrager, 339 U.S. 763 (1950) as it deals with non-state combatants outside the US. Ex parte Quirin, 317 U.S. 1 (1942) was the most commonly cited reference for terrorists captured on American soil. Both offer adequate legal consideration of how to deal with terrorists, but this is commonly held as not sufficient for those who feel enemies should be accorded more rights than our own military or citizens.

I suggest you read the actual case law and not just regurgitate the DailyKos and Huffand Puff Post talking points.

Besides, I really don't believe you care one bit about the rights of terrorists nor U.S. citizens nor the arcana of legal precedent. Your interest is in the disembowelment and emasculation of the American system one institution at a time. C'mon, be you anarchist or nihilist?

 

[PrinceofWands]

Not at war, haven't been since WWII, and no possible way there can ever be a 'war on terror'. The whole thing is lunacy and has been since day 1.

Given that, trials are obviously mandatory.

 

[GarfieldtheCat]

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute. He was one of the federal attorneys who helped shape the direction of America's pursiut and treatment of terrorists and non-state combatants.

You want to us to take seriously comments from Yoo? The guy you made up opinions for Bush to break the law? And who may be disbarred for misconduct in writing those opinions? You are kidding right? He has a personal interest in this, which doesn't make him reliable. And given that OPR is investigating him, that doesn't help either. What's next, quoting Cheney as objective information?

And to your original misguided post, is it so hard to try someone in court, according to our laws? Are you afraid of our laws somehow?

Good post from Glen Grenwald:
http://www.salon.com/news/opinion/glenn_greenwald/2009/11/14/terrorism/index.html

You will note that many countries have managed to try and convict terrorists over the years without their country being invaded or their entire civilization falling apart. Perhaps you don't know what you are talking about, or are trying to overstate the drama?

Spain, India, Indonesia, UK, and even Israel have no problem with trying terrorists in front of their judges and applying their countries rule of law.

So why are all the neocons afraid of it happening here? What a bunch of chickenshits.

 

[fskimospy]

The applicable precedent should be Johnson v. Eisentrager, 339 U.S. 763 (1950) as it deals with non-state combatants outside the US. Ex parte Quirin, 317 U.S. 1 (1942) was the most commonly cited reference for terrorists captured on American soil. Both offer adequate legal consideration of how to deal with terrorists, but this is commonly held as not sufficient for those who feel enemies should be accorded more rights than our own military or citizens.

Strawman. I knew you couldn't do it.

Furthermore, Eisentrager is not the governing precedent in this case as ruled by the USSC in Boumediene. Eisentrager deals with those captured and held outside of US sovereignty, and the court determined that the US exerts de facto sovereignty over Guantanamo.

Ex parte Quirin was also taken into account in the Hamdan v. Rumsfeld decision where it is specifically mentioned that such a decision has been superseded by the US ratification of the Geneva Conventions along with the Uniform Code of Military Justice.

Regardless of all that, Boumediene v Bush is the most recent USSC precedent on the issue, and they say you're wrong. Once again I'm sorry to rain on your parade.

 

[fskimospy]

I suggest you read the actual case law and not just regurgitate the DailyKos and Huffand Puff Post talking points.

Besides, I really don't believe you care one bit about the rights of terrorists nor U.S. citizens nor the arcana of legal precedent. Your interest is in the disembowelment and emasculation of the American system one institution at a time. C'mon, be you anarchist or nihilist?

If you had read the actual case law you would not have tried to make the arguments you did, because they are central parts of the majority opinion. You are either lying about reading the case or you are unable to read for comprehension.

C'mon, be you illiterate or dishonest?

And yes, you busted me. I'm working to tear down the US one institution at a time and I've decided to start with fighting against the eternal imprisonment of people without charges, something the US Constitution emphatically supports.

 

[PJABBER]

If you had read the actual case law you would not have tried to make the arguments you did, because they are central parts of the majority opinion. You are either lying about reading the case or you are unable to read for comprehension.

C'mon, be you illiterate or dishonest?

And yes, you busted me. I'm working to tear down the US one institution at a time and I've decided to start with fighting against the eternal imprisonment of people without charges, something the US Constitution emphatically supports.

Strawman. I knew you couldn't do it.

Furthermore, Eisentrager is not the governing precedent in this case as ruled by the USSC in Boumediene. Eisentrager deals with those captured and held outside of US sovereignty, and the court determined that the US exerts de facto sovereignty over Guantanamo.

Ex parte Quirin was also taken into account in the Hamdan v. Rumsfeld decision where it is specifically mentioned that such a decision has been superseded by the US ratification of the Geneva Conventions along with the Uniform Code of Military Justice.

Regardless of all that, Boumediene v Bush is the most recent USSC precedent on the issue, and they say you're wrong. Once again I'm sorry to rain on your parade.

Not a strawman, there is a significant representation of non-US interests here by both US citizens and non-Americans.

And at least you admit that you seek the destruction of the United States, you can be treated as a lawful combatant now. ;-)

My argument is not that there is no more recent case law, but that the primary questions were resolved earlier and have now been challenged as much for political purposes (such as your own avowed intent to subvert the nation's well-being and others in their attempt at political power) as for further definition of the application of habeas corpus.

The Syllabus of BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. (http://www.law.cornell.edu/supct/html/06-1195.ZS.html) shows that the case was, in part being based on the plaintiffs denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda.

Unaffiliated, single actors now have an easier case, but the USSC ruling may not apply in other cases where there is a determination of membership in terrorist organizations and an admission of enmity.

"(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction."

Eisentrager particularly applies when you have a timely review and not an extended period of detention.

From the USSC opinion - http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf

"The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.

In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. Cf. Ex parte Milligan, 4 Wall., at 127 (“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course”). Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts’ role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power."

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7,28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

From the Wiki article,

"Justice Scalia's dissent was joined by Chief Justice Roberts and Justices Alito and Thomas. Justice Scalia argued that "the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows." The commission of terrorist acts by former prisoners at Guantanamo Bay after their release "illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection." A consequence of the Court's majority decision will be that "how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails." A conflict between the Military Commissions Act and the Suspension Clause "arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba."

The finding, decided 5-4, seeks to implement speedy review and disposition but the trick question is in whether charged persons are lawful or unlawful combatants, and the difference is how each is treated and under which rules.

Choosing to use the civilian New York Southern District Court is a political act. New Yorkers are not pleased. And you shouldn't be either.

 

[Lemon law]

Why the hell are we arguing about the virtues of a so called war on terrorism that has only had the net effect of increasing the net amount of international terrorism?

Its been an epic fail, learn it and live it!

And when the same kind of stinking thinking shock and awe does not even lift us above the moral equivalence of a brutal bunch like the Taliban, we can only equate it as Nato grasping defeat from the jaws of victory. When we act like aholes, do we really think the Afghan people will not notice? Face the facts, we only fool ourselves.

And now we seek answers from our own courts, not exactly the sharpest knives in the drawer lately, while we miss the fact they have no jurisdiction over what foreign people think. At the same time our courts have failed to take a uniformly firm stand against what is best described catastrophically poor legal reasoning domestically.

 

[StageLeft]

They are good points in article. Rules need to be defined and consistent and clearly they are not.

 

[fskimospy]

Nice wall of text PJABBER.

Nothing in that gigantic block of text disputes anything that I said in any way. You were quoting old case law and neglecting to mention current USSC decisions on exactly what we were talking about. (Is that you in there, John Yoo?)

Sorry, one area did dispute me where you quoted dissenting opinions... the kind of which have zero force of law.

Quoting huge blocks of text is not a substitute for a real argument.

 

[PJABBER]

Why the hell are we arguing about the virtues of a so called war on terrorism that has only had the net effect of increasing the net amount of international terrorism?

Its been an epic fail, learn it and live it!

And when the same kind of stinking thinking shock and awe does not even lift us above the moral equivalence of a brutal bunch like the Taliban, we can only equate it as Nato grasping defeat from the jaws of victory. When we act like aholes, do we really think the Afghan people will not notice? Face the facts, we only fool ourselves.

C'mon, Lemony, the U.S. has avoided getting attacked by taking the battle against terrorists to their home hunting grounds. Lots and lots of would be jihadists gave up the ghost there rather than here.

So now you can go on and on about how evil America is and not have the slightest concern whatsoever about your local mall blowing up or having anthrax with your mail or avoiding nuclear contaminated zones from dirty bombs in your daily bike ride to Starbucks.

Chin up. If Obama and pals have their way, the U.S. is going to stop being the tough cop and we will have the chance to see if appeasement and kowtowing will be as effective in keeping attacks from our cities.

 

[Hayabusa Rider]

Screw this. The OP has convinced me that we should pull out of Iraq and Afghanistan tomorrow, or as soon as the time allows. Blow up everything we can't carry out and chalk it up to Bush's stupidity.

Everyone else gets vetted. If it can't be shown that they are a problem let them go where to whatever ME country they want, and if they have been shown to be a genuine threat, kick them out of a plane in the capital of whatever nation they were caught in.

End of story.

 

[fskimospy]

I'm wondering if there are any odds being taken on if PJABBER is a paid troll or not.

 

[CallMeJoe]

C'mon, Lemony, the U.S. has avoided getting attacked by taking the battle against terrorists to their home hunting grounds. Lots and lots of would be jihadists gave up the ghost there rather than here...

The U.S. has avoided another major domestic terrorist attack through intelligence activities and the much-maligned-by-the-Right use of law enforcement.

The main accomplishment of "taking the battle against terrorists to their home hunting grounds" has been creating a target-rich environment where Jihad Johnny can find all the Infidels he can shoot at, right there in his own back yard. To paraphrase President Bush, "We're letting them butcher us over there so that none of them are tempted to come over here".

To return to PJABBER's OP, why do you have so little faith in our Justice system? Why should we not try Khalid Sheikh Mohammed in the United States for capital crimes committed in the United States? Military tribunals may indeed be appropriate for those found bearing arms against our troops overseas or for those conspiring against domestic military targets, but someone who commits murder in New York City, Washington D.C. and rural Pennsylvania should be tried in those jurisdictions and sentenced for those crimes.

 

[LunarRay]

I think there are Speedy Trial issues as well as evidence issues - both prosecution and defense. I think the venue is not a big issue cuz all you have to have is a promise that the juror will only consider the evidence and the judge has confidence that that is the case.
The issues of 'torture' and other treatment considerations will come up, etc.

Here is what is the back of my mind....
The AG may have found a way to back door into the Bush et al. actions. I know that is far fetched but it is a way to do what many Democrats want doing... We'll see!
I think Bush's Gitmo tribunal is quite right for these people... Treating them as common criminals opens doors for all Federal trials... any law Congress passes to deal with evidence and trial delay and other considerations goes to all Federal Cases not just some.... As I see it anyhow...

 

[fskimospy]

I think there are Speedy Trial issues as well as evidence issues - both prosecution and defense. I think the venue is not a big issue cuz all you have to have is a promise that the juror will only consider the evidence and the judge has confidence that that is the case.
The issues of 'torture' and other treatment considerations will come up, etc.

Here is what is the back of my mind....
The AG may have found a way to back door into the Bush et al. actions. I know that is far fetched but it is a way to do what many Democrats want doing... We'll see!
I think Bush's Gitmo tribunal is quite right for these people... Treating them as common criminals opens doors for all Federal trials... any law Congress passes to deal with evidence and trial delay and other considerations goes to all Federal Cases not just some.... As I see it anyhow...

Oh Obama's totally back doored the whole deal. If PJABBER had half a brain he would realize that Obama is 100% on his side on this. (I really do think he may be paid or is simply so overwhelmed by extreme partisanship that he can't even see when he and Obama agree.)

Obama's way of giving these people 'due process' is taking the ones that have evidence that can stand up in federal court and convicting them there. If the evidence isn't good enough for federal court, then he is trying them in military tribunals and convicting them there. He also says that there may be some people that the evidence for is so bad that we can't try them in either system and so we'll just hold them indefinitely.

These are complete kangaroo courts, the type of which any American should be ashamed. What's funny is that loonies like PJABBER think that even this pathetic sliver fixed in advance due process Makes The Terrorists Win.

 

[PJABBER]

Actually, I just don't want us to pay for all of the lawyers to go through years of show trials and then suffer as a Nation by the release of all of the classified data that will be leaked.

Please refer to Hayabusa Rider's post just above for a better approach.

 

[LunarRay]

Chin up. If Obama and pals have their way, the U.S. is going to stop being the tough cop and we will have the chance to see if appeasement and kowtowing will be as effective in keeping attacks from our cities.

You really don't see what they're doing, do you? Think about who is being tried where and what the status is of the lot of them. Are they soldiers? Are they common criminals? What is their legal status and where are they being 'tried'?

 

[fskimospy]

Actually, I just don't want us to pay for all of the lawyers to go through years of show trials and then suffer as a Nation by the release of all of the classified data that will be leaked.

Please refer to Hayabusa Rider's post just above for a better approach.

Well that's distinctly at odds with your OP. In your OP you claim that you are worried about the inability of troops to gather evidence on the battlefield and the 'reduced incentive to capture rather than kill' (which was hilariously stupid). Now you say that you're just worried about classified information and expenses. It's almost like you didn't have any idea what you were talking about and are now trying to backtrack.

This thread has been pretty great so far... I mean it takes a shocking level of stupidity to quote a lawyer in danger of being disbarred for incompetence and a lack of good faith legal analysis such as John Yoo and present him as some sort of authority. (with nary a mention of his troubles, shocking!)

 

[PJABBER]

Well that's distinctly at odds with your OP. In your OP you claim that you are worried about the inability of troops to gather evidence on the battlefield and the 'reduced incentive to capture rather than kill' (which was hilariously stupid). Now you say that you're just worried about classified information and expenses. It's almost like you didn't have any idea what you were talking about and are now trying to backtrack.

This thread has been pretty great so far... I mean it takes a shocking level of stupidity to quote a lawyer in danger of being disbarred for incompetence and a lack of good faith legal analysis such as John Yoo and present him as some sort of authority. (with nary a mention of his troubles, shocking!)

Of course I can rely on you and your friends for the ad hominem attacks! I would rather consider the substance, and, honestly, the validity of what is being said. And do not think that I do not recognize some of the irony. It amuses me so.

 

[cwjerome]

Not at war, haven't been since WWII, and no possible way there can ever be a 'war on terror'. The whole thing is lunacy and has been since day 1.

Given that, trials are obviously mandatory.

You do not have to declare war to be in a state of war. All that is needed is an act of war.

 

[cwjerome]

OP: This country is not at war. People go about their lives, do their daily things, and nothing has changed. We don't feel it, we barely notice it. The only people who are really impacted are those in the armed services. We are not a nation at war, we're a military at war.

 

[cwjerome]

Obama's way of giving these people 'due process' is taking the ones that have evidence that can stand up in federal court and convicting them there. If the evidence isn't good enough for federal court, then he is trying them in military tribunals and convicting them there. He also says that there may be some people that the evidence for is so bad that we can't try them in either system and so we'll just hold them indefinitely.

The Fort Dix terrorists, the first World Trade Center bombers, and the Oklahoma City bombers were investigated by and arrested by law enforcement officers operating in the United States not located through the use national intelligence resources or picked up on a battlefield by soldiers. Federal court procedures are optimized for the former situation and not the latter. Context means a lot, so implying a one-sized fits all approach is the solution is the more kangaroo-courtish position IMO.