"Alleged" Combatants

By Big Tent Democrat, Section Terror Detainees
Posted on Sat May 23, 2009 at 11:52:06 AM EST
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In law school, to illustrate a legal point, a professor will often use a set of hypothetical facts. When discussing "preventive detention," I think a similar exercise will be useful. In his post yesterday, Glenn Greenwald wrote:

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant."

To me, the key question that the procedures to be developed must address is the designation of a person as a combatant and the availability of meaningful review of the designation. (The length of the detention is also important, and the government should be required to periodically, say every six months, justify continued detention on a case by case basis.) So let's think about what would be accepted as sufficient evidence of "combatant" status. More. . .

Let's start with the clear cases. Assume these facts: a detainee is captured in Afghanistan, wearing the uniform of the Taliban (if such exists), expressly states he is a member of the Taliban and specifically invokes the protections of the Geneva Conventions for prisoners of war.

I hope this is a noncontroversial case - a person captured in a theater of war who expressly claims to be a combatant entitled to the protections afforded by Geneva. Does it become "outrageous" preventive detention if the detainee is held in the United States? If so, why?

As you can see, I think the concept of "preventive detention" is not the issue here, but the scope of its application. That is what is to be determined by the process to be implemented - particularly the processes for review of Executive Branch determinations.

What showing must the Executive Branch make in order to support a decision to declare a detainee an "enemy combatant?" What is the burden of proof? What is the process of review? What type of evidence will be admissible?

I've discussed one hypothetical that seems clear cut to me. Let me provide one the seems clear cut in the other direction: a detainee is a US citizen, captured in Chicago, denies any ties to groups hostile to the United States, both state and non-state actors, and there is no physical evidence that adds to the Executive Branch's assertion. The only evidence that government has is an intelligence report gleaned from an interview taken in another country and the witness cited in the report is no longer available for questioning. The witness is reported to have said that he was told that the detainee was working with a terrorist group.

Easy case. The Executive Branch does not even come close to making its case. Unconfronted, unconfirmed double hearsay testimony does not cut it. The review process should result in release of the detainee because the Executive Branch's designation of the detainee as an "enemy combatant" is not close to being proven.

Now those are the easy cases - PROVIDED a proper process is in place. The harder cases obviously fall in between these two examples.

The discussion on preventive detention should be about how we handle the cases in between.

Speaking for me only

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"Alleged" Combatants | 59 comments (59 topical)

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In the latter case (5.00 / 1) (#3)
by Steve M on Sat May 23, 2009 at 12:21:50 PM EST

there's not even cause for an arrest under existing law, and the law of preventive detention ought to reflect that. If preventive detention means you can pick people off the streets even on the flimsiest of causes, that's no good even if you apply the most rigorous standards of proof after the fact.

I agree (none / 0) (#4)
by Big Tent Democrat on Sat May 23, 2009 at 12:24:09 PM EST

But suppose it occurs. A review process will, we hope, rectify the injustice.

But if I understand your point correctly, you are asking for the establishment of clear rules of who can be detained by the Executive.

That would, I hope, be a part of this process.


What is the law on arraignment hearings? (none / 0) (#9)
by nycstray on Sat May 23, 2009 at 12:38:33 PM EST

And speedy trial etc?

Shouldn't we just be picking people up according to our laws with burden of proof and all that? Assumption of guilt by hearsay/supposed association/we "think" they are dangerous is pretty frightening to me, especially with detention until we get around to reviewing.

I don't think it should be the establishment of clear rules as to who we can detain, but the establishment of clear rules of evidence/etc that must be met before we snatch someone off the street because of what someone thinks they think.


: The designation of "combatant" status (none / 0) (#13)
by Big Tent Democrat on Sat May 23, 2009 at 12:44:23 PM EST

certainly when it occurs outside the United States, is not subject to criminal process.
The review of status determination springs from two sources - the habeas right contained in the Constitution (this applies when a detainee is held in a US controlled jurisdiction - whether it applies for overseas detention, at Bagram for example, remains an open question) and the right to review status designation by a competent tribunal protected by the Geneva Conventions.
There is no arraignment process.

I am not certain (none / 0) (#18)
by Steve M on Sat May 23, 2009 at 01:09:55 PM EST

that the Executive needs even an iota of expanded powers in terms of arresting and detaining US citizens.

The frequency of US citizens adhering to terrorist groups is so rare that, as my good friend Nino argued in Hamdi, we can easily deal with them within the existing framework.

The overall point of this diary is well taken and I agree completely. There have to be clear rules. In the Supreme Court's war on terror jurisprudence I always sensed a certain resignation, kind of like "shouldn't the Executive have come up with a real solution by now?"


From the center left portion of the Court? (5.00 / 2) (#20)
by Big Tent Democrat on Sat May 23, 2009 at 01:12:58 PM EST

No question. I believe Obama is doing what Bush always refused to do - accept that the President is not a King and can not arbitrarily detain persons without being subject to review.

I frankly find the analysis from the progressive blogs, including my colleague here Jeralyn and Glenn Greenwald (also Turley et al) (and not to mention the ACLU etc) to be off the mark because they do not address the real issues presented here.


Well....consider this. (none / 0) (#37)
by blogname on Sat May 23, 2009 at 03:19:38 PM EST

Bush claimed the power to detain enemy combatants pursuant to the law of war, the Authorization for the Use of Military Force, Supreme Court precedent, and implied executive power. In the absence of all of the others, he admittedly claimed executive power to detain. But legal arguments often rest on many different grounds.

Bush's conception of executive poewr was not for the detention issue alone. Instead, it was bad because of overuse. Throughout history, presidents have claimed certain powers related to war, and the Court and Congress have worked to define those roles with flexiblity. Bush, however, overreached. Obama has not overreached yet in practice, but the legal model does not strike me as wildly different.

Finally, Dissenting Justice (my blog) and SCOTUS have already discussed the "different" approaches of Bush and Obama (Obama has already claimed the power to detain in litigation). The differences are slight -- potentially meaningful, but not substantially.

See Change = Same? and U.S. Defines Power to Detain


excuse typos .... (none / 0) (#39)
by blogname on Sat May 23, 2009 at 03:47:21 PM EST

Not much time to edit. One point: Bush's executive power arguments were bad collectively. If he had not made so many, his administration would not have received so much criticism.


: It's shocking and disgusting (5.00 / 2) (#40)
by mcl on Sat May 23, 2009 at 04:59:26 PM EST

to hear someone defending Obama's proposed abandonment of due process.
What has gone wrong with people? Just because someone points to a person and shrieks "Terrorist!" we're supposed to abandon due process, the right to counsel, to right to a speedy trial, the right to habeas corpus, the right to a jury of hi/r peers?
This is insane.
For 200 years in America, every crime no matter how heinous has been recognized as requiring that charges be filed, a hearing be scheduled, the accused have a right to counsel, due process be observed, and a speedy trial ensured. Rape, murder, child molestation, the BTK killer, Charles Manson, serial murderers, presidential assassins...no crime has ever been sufficient to abrogate these fundamental rights under the Western system of jurisprudence.
But now, just because 3 planes get hijacked, we're throwing this all away?
What has gone wrong with people's minds, that they think throwing out due process and the rule of law makes sense???
BigTentDemocrat talks about how allegedly important it is to "write the legislation" correctly that will abandon the rule of law and due process. He natters on about how we should supposedly review this atrocity of "preventive detention" every 6 months, blah blah, yadda yadda.
This is medievalism.
You can't write legislation to abrogate the rule of law and abandon due process. Once you throw away due process and kidnap someone and hold that person without charges, you have thrown out the law. Obama's crazy idea of preventive detention is lawless. It's a violation of the last 800 years of Western common law since the time of the Magna Carta.
Nothing good can come of the abandonment of the rule of law. Once you indulge that vice, you will find that we quickly descend into barbarism, with every "carefully written regulation" proposed by BigTentDemocrat abused and twisted until soon enough, "preventive detention" gets used against PETA protesters and John Birchers and hippies growing organic food and libertarians who protest against what they think are high taxes and kids who use f-words in elementary school classrooms. Mark my words, that is precisely what will happen.
William Roper: So, now you'd give the Devil benefit of law!
Thomas More: Yes. What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes! I'd cut down every law in England to do that.
Thomas More: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to caost, Man's laws, not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the wind that would blow then? Yes, I'd give the Devil benefit of law for my own safety's sake.
[A Man For All Seasons, Robert Bolt, 1960]

My opinion (5.00 / 1) (#12)
by kmblue on Sat May 23, 2009 at 12:44:19 PM EST

I have no confidence that this Administration will establish clear guidelines and conduct reviews.
What makes anyone think they will, after eight years of merrily detaining people because Bush or Cheney said so?

That is a different point (none / 0) (#14)
by Big Tent Democrat on Sat May 23, 2009 at 12:45:20 PM EST

It does not go to the blanket objections to the concept of "preventive detentions."


: I Agree (5.00 / 1) (#45)
by blogname on Sat May 23, 2009 at 06:46:17 PM EST

The concept of preventive detention is old and established. The military should be able to hold "enemies" captured in war in order to prevent them from joining the opposition forces. This is the historical justification for detention.
But liberals are forgetting why detention became a problem during the Bush administration. First, Bush (and now Obama) declared "war" on terrorism. This is not a typical nation-against-nation contest with a conceivable ending. As such, detaining terrorism suspects as an incident of war could mean a life sentence without a conviction.
Also the procedures the government uses to determine whether an individual qualifies for indefinite detention will remain a matter of controversy. Bush wanted the civilian Courts to stay out of the issue. Obama has stated that he wants some alternative to civilian courts, and he has defended indefinite detention with respect to captives in Afghanistan.
Finally, the terrorism situation stretches the "battlefield" concept. It permits individuals being detained even if they were not on the battlefield -- and even if they were transported into the vicinity of the battlefield and then detained (as in Bagram Air Force Base detainees).

I disagree, politely (5.00 / 2) (#15)
by kmblue on Sat May 23, 2009 at 12:49:45 PM EST

People will be incarcerated first (perhaps for years) and questions asked afterwards, if at all.
That's what we've been doing. Obama wants to continue this policy, but says "trust me, I'll do it differently."

I don't believe him, hence my blanket objection.

I can hear the excuses already--"Yes, Mr. A has been held for a year, but we're just so busy!"

: I am not sure (none / 0) (#16)
by Big Tent Democrat on Sat May 23, 2009 at 12:58:47 PM EST

where you are disagreeing with me. I think you are adding a different objection that merits discussion. But it is not an objection to the general concept of preventive detention of enemy combatants.

Much of the US is psychotic (5.00 / 1) (#42)
by pluege on Sat May 23, 2009 at 06:17:02 PM EST

here we have contortions to figure out how to make a rationale (that isn't laughable on the face of it) for permanently incarcerating people for crimes they definitely have not committed.

Contrast that with Pelosi taking 'impeachment off the table'. Impeachment, a process specifically delineated in the Constitution for protecting the American people against the exact kinds of crimes bush admitted to have committed while president.

America is truly effed up.

ok, i have a question: (5.00 / 1) (#46)
by cpinva on Sat May 23, 2009 at 07:01:54 PM EST

where, in the constitution, does it provide for "preventive detention"?

i looked, it doesn't seem to mention anything like that at all. in fact, it seems to be the polar opposite. just because the president says so, doesn't make it so.

also, if you're going to have a "war", then ask congress to declare it, it makes things so much clearer. of course, the last thing the bush administration wanted was actual declarations of war, because that would have put them in an uncomfortable position. this way, they (and the obama administration so far) can pretty much do anything they want, and claim that neither congress or the judiciary have any say in the matter.

so, again, where does it mention "preventive detention" in the the constitution?

New Rules (5.00 / 2) (#48)
by ricosuave on Sun May 24, 2009 at 12:15:14 AM EST

So these guys are a bigger threat than the Nazis? Their ability to murder large numbers of people is more of an existential threat to our country than the Japanese domination of the Pacific and German control of Europe? Our "preventative detention" of the Japanese is almost universally considered to have been wrong, but now we believe that a scattered group of people without the organization, resources, and manpower of either Nazi Germany or Japan (the richest countries of the world behind the US at the time) are more dangerous than both of those countries COMBINED (and I didn't even mention Italy).

We spent a thoroughly paranoid and heavily armed half-century in a cold war with Russia, but never confronted these questions or needed to "preventively detain" Americans or anyone else. We were able to try Julius and Ethel Rosenberg for selling nuclear secrets to the Russians, but we can't do that with some schmo from Chicago who might know how money gets moved from Dubai to Samarkand?

Since when do we not get to make the rules? And what does that mean? This is our country. We make the rules here. We decide what we do and how we do it--Al Queda (sorry...I forgot to use the cool acronym AQ) does not decide for us. We have gone after a variety of non-state threats in the last 233 years (and we were not always the good guys, by the way): Barbary Pirates, British privateers, Comanches, Pancho Villa, Central American Communists, South American drug cartels, etc. Al Queda is not the first.

I categorically reject the notion that we are somehow facing a bigger threat than we have ever seen in this country before. It's just silly. We can handle this without rejecting everything we stand for.

: A 1L student would be thrown out of class (5.00 / 2) (#50)
by mcl on Sun May 24, 2009 at 12:56:19 AM EST

for the kind of shoddy reasoning Cars In 4 uses.
"War is different from a police action," he claims. Therefore "If we were fighting a conventional enemy these issues would never come up. But AQ is not a conventional enemy and they should not be afforded more protections than a conventional army."
This is specious reasoning. How do we know? Because we can apply it just as easily and just as facetiously to lower levels of violence than terrorism to justify throwing out due process.
"Child molestation is different from normal crimes. If police were fighting a conventional criminal these issues would never come up. But child molesters are not conventional criminals and they should not be afforded more protections than a conventional criminal."
So to deal with the scourge of child molestation, we need to throw out due process and start kidnapping suspected kiddy rapers off the streets and tossing 'em in prison without charges and without access to a lawyer and without a trial.
But we can lower the bar still further.
"Rape with special circumstances (torture) is different from normal crime. If police were fighting a conventional criminal these issues would never come up. But rape-torturers are not conventional criminals and they should nto be afforded more protection than a conventional criminal."
So now people suspected (no proof required) of raping and torturing their victims don't deserve due process. Now we should kidnap somebody off the street and throw 'em in a black hole without charges for ever just because J. Random Public claims he raped and tortured someone.
Pretty soon we lower the bar again, and now burglars who pistol-whip their victims don't deserve due process. And very soon "dissidents" become a special class of offenders who don't deserve due process.
Let's be clear here: there is no violent act so special, no assault so heinous, no behavior so exotically horrible, that the fundamental elements of Western civilized law do not apply to the people who commit them. This is the basis of Western civilization, and it has been for the last 800 years, since the Magna Carta. Not even the King could order a citizen imprisoned without charges and held without trial. Not in 1215, not today.
If you don't like this, emigrate to North Korea. They don't have due process there. They also don't have disagreement. If you tried to post text that disagrees with the way society works in North Korea, you wouldn't get a post pointing out your logical fallacies, as I have done -- you'd be hauled off to prison and tortured.
If you're so thrilled with abandoning due process, your paradise awaits in Pyongyang. Get moving.

This reminds me of (5.00 / 4) (#51)
by Jeralyn on Sun May 24, 2009 at 01:08:57 AM EST

the Bail Reform Act which came in in 1984. For the first time, Congress decreed that drug defendants and some others could be held without bond just by virtue of the charge against them. The law presumes that a person charged with a drug offense that carries a possible penalty of ten years or more in prison (which is all of them except misdemeanor possession and telephone counts)is both a flight risk and a danger to the community. All the government has to do is ask for detention. The defendant then has to present evidence to rebut the presumption.

Many of my clients are don't get bail because of this statute and they are neither dangerous nor flight risks. If they don't get bond, and it's a multi-defendant wiretap case, they stay in jail awaiting trial for one to two years.

This policy of "preventive detention" takes it one step further in that it doesn't even require the Government to bring charges. Under Obama's scenario, which is no different than that of Bush, the Government can hold someone without bail and without charges being filed, indefinitely, possibly for life, in a maximum security prison, just by alleging he is connected to al-Qaeda. The war on terror had no end. Saying you can only hold them until the end of the conflict is saying you can hold them forever.

It is beyond the pale to imprison people indefinitely without the filing of criminal charges, no matter whether they are a U.S. citizen or not. The Constitution applies to everyone present in this country, whether a citizen, a lawful resident or an undocumented person. In addition, these detainees did not come here voluntarily, they were kidnapped in Afghanistan or Iraq and brought to Gitmo against their will.

There is no excuse for what Obama is proposing. It is the same as Bush. You can try to make an academic constitutional argument for it, but this isn't law school. It's life. And it's wrong.

: This sums it up..... (none / 0) (#55)
by blogname on Sun May 24, 2009 at 04:48:26 AM EST

Great closing....

It's barbarism (5.00 / 2) (#54)
by mcl on Sun May 24, 2009 at 01:23:54 AM EST

There is no excuse for throwing out due process. None.

People on this forum have tried various verbal calisthenics to explain why some particular violent act is so horrible, so heinous, so outrageous that it requires we throw out due process.

No one has provided me with a credible answer.

I'm still waiting.

For 200 years America has dealt with piracy, sedition, rebellion, secession, murder, torture, rape, all without abandoning due process.

Now all of a sudden because 3 planes get hijacked, we have to throw out the last 800 years of Western jurisprudence.

Why?

: These are the same type of (5.00 / 2) (#57)
by Anne on Sun May 24, 2009 at 09:47:57 AM EST

verbal calisthenics that people are using to justify torture - they pretty much go hand-in-hand.
If we're going to detain people we think might be a danger to us, what sort of techniques will we resort to when the normal methods of interrogation do not yield any substantive information?
All I can say is that I certainly do not feel that our rights and privileges are in better and safer hands today than they were pre-January 20th, and that's not just a sad thing to be feeling, but a scary one.

AQ members are not some new, (5.00 / 1) (#60)
by BobTinKY on Sun May 24, 2009 at 10:37:12 AM EST

"unconventional" enemies. They are criminals and should be brought to justice. If their host nation does not police them then the USA has every right to wage war on that host nation, not AQ, and apprehend suspected criminals. Once apprehended, criminals should be tried in accordance with our criminal law in Article III courts.

The military role here is not to wage war on AQ, it is to deny foreign governments the ability to harbor & support criminals who have or are conspiring to murder US citizens.

Frankly, if the Taliban would agree to police AQ within their borders and extradite those suspected of terrorist crimes to the US, we should, militarily speaking, be done in Afghanistan. INstead, Bushco set up a puppet government run by former Unocal executive to facilitate construciton of a long desired pipeline across Afghanistan.

Never let a crisis go to waste. Indeed.

Should the "detainee" have even been (none / 0) (#1)
by nycstray on Sat May 23, 2009 at 12:17:21 PM EST

detained?

Sounds to me like they didn't have much from the get go. Somebody says something so the guy loses at least 6 months of his life?

The only evidence that government has is an intelligence report gleaned from an interview taken in another country and the witness cited in the report is no longer available for questioning. The witness is reported to have said that he was told that the detainee was working with a terrorist group.

And how will his life be effected after the government says "Ooops!"?

I do animal welfare work. Many people do not know the difference between that and animal rights and think we are all "extremists". Animal rights extremists are terrorists, according to the government. Will the side of beef in my freezer be enough to prove my innocence if someone says I am involved with one of the AR extremist groups on the government's list? ;) Seriously though, this pick them up and then check them out seems backwards. And creating guidelines to do that?!

: Agreed (none / 0) (#2)
by Big Tent Democrat on Sat May 23, 2009 at 12:19:46 PM EST

But my hypothetical assumes he was detained. Given the record of the bush Administration in these matters, it seems likely that there are some actual cases that are not much different than what I hypothesized.
The question is what do we do now? My solution is to give them a proper status hearing which will lead to their release.

Describe the review process (none / 0) (#5)
by nellre on Sat May 23, 2009 at 12:27:45 PM EST

What will be reviewed?

The designation by the Executive (none / 0) (#8)
by Big Tent Democrat on Sat May 23, 2009 at 12:32:44 PM EST

that a detainee is an "enemy combatant."


A disappointing response (none / 0) (#17)
by nellre on Sat May 23, 2009 at 01:07:34 PM EST

Let's just say they're POWs, and can be held until the end of the war on terrorism.
Then all the sticky issues go away.
Otherwise we'll have to do some work defining what makes a person an enemy combatant, and when they stop being one.


Well (none / 0) (#19)
by Big Tent Democrat on Sat May 23, 2009 at 01:10:10 PM EST

I'm not sure what you are objecting to regarding my response.

It is the designation which gives the government the power to detain. If the designation is overturned, the right to detain is overturned.

this is true whether you use the label POW or "enemy combatant."


What criteria? (none / 0) (#26)
by nellre on Sat May 23, 2009 at 01:36:40 PM EST

Don't we need a precise definition for "enemy combatant" if we're gonna lock people up indefinitely for being "designated" as one?

How do we distinguish a person as posing a future danger from one who doesn't?

Sorry, I'm struggling with this.


I'm struggling also (5.00 / 1) (#32)
by nycstray on Sat May 23, 2009 at 02:08:22 PM EST

I want some sort of (speedy) verification process of the designation before we start going all preventive on someone. Some sort of proof that they ARE acting/physically planning, not just they could be a danger at some point in the future or some of this other vague "guilt" that they are a terrorist etc and shall be "designated".

And it would be nice if they would keep the FBI informants out of the process . . .


"enemy combatant" = "hooligan" (5.00 / 2) (#52)
by mcl on Sun May 24, 2009 at 01:09:18 AM EST

It has no meaning. It can mean anything the State wants it to mean. The USSR was a dictatorship because they put people on trial for vague undefinable charges like "hooliganism" and locked 'em away and threw away the key. The bogus charge was a fig leaf for tyranny.

Either charge a person with a specific crime, or, if you can't provide evidence that reaches the eivdentiary bar required for federal court, let that person go.


: Precisely (5.00 / 1) (#53)
by Jeralyn on Sun May 24, 2009 at 01:18:26 AM EST

Thank you.

On March 14, 2009 (none / 0) (#30)
by Big Tent Democrat on Sat May 23, 2009 at 01:54:13 PM EST

The Obama Administration defined "enemy combatants" (while purporting to discard the phrase) as follows:

the US justice department will only seek to detain individuals who provided "substantial" support for al-Qaida or the Taliban. It also acknowledges that president Barack Obama's authority to hold detainees is granted by an act of Congress and by international laws of war, rather than stemming from his power as commander in chief of the military.

Congress and the Courts can require a more stringent standard. That would be what this process would be about in part one hopes.


: Yes - which means (5.00 / 1) (#43)
by blogname on Sat May 23, 2009 at 06:30:37 PM EST

He is still claiming the authority to detain as "executive power," but this power comes from numerous other sources. These sources - not the constitution - vest power in the President. But, because we already know that a majority of the Court has declined to hold that Article II on its own gives the President the power to detain terrorism suspects indefinitely, it is unclear how Obama's shift to the law of war and federal statutes advances the debate. Isn't he already precluded from relying exclusively on presidential authority?

Déjà vu? (none / 0) (#6)
by Jacob Freeze on Sat May 23, 2009 at 12:29:29 PM EST

This diary is strangely reminiscent of another diary which was posted earlier today on TalkLeft, and likewise a long comment which was also posted today under yet another diary on TalkLeft...

David E. Graham is the Executive Director of The Judge Advocate General's Legal Center and School, US Army. He served in the US Army as a Judge Advocate for thirty-one years, specializing in International and Operational Law.
Rather than concentrating his attention on remedies available to "enemy combatants," Graham challenges the denial of habeas corpus implicit in the government's "unilateral determination that each of these detainees is an 'unlawful enemy combatant.'"
The definition of "enemy combatants" is unconstitutional, and likewise every procedure arising from it.

In truth, even a casual reading of the Opinion reveals that the Court does, in fact, speak to what it views as the specific deficiencies of the <span class="caps"><span class="caps">CSRT </span></span>process and deals, at some length, with what it deems to be the essential requirements for a habeas writ, or its substitute, in order that such might serve as an effective and meaningful remedy for the individuals detained at Guantanamo. The District Court for the District of Columbia, the sole court that will hear the appeals of the Guantanamo detainees, is already in the process of both assessing and implementing this guidance. While this is a challenging mission, it is one that can, and will, be accomplished with skill and, very significantly, judicial alacrity.
Most importantly, the District Court will be unable to avoid dealing with fundamentally important issues raised by the Boumediene decision. Key among these is the fact that, while Guantanamo detainees may now submit writs challenging their detention by the US government, the government's very right to detain such individuals is fully dependent upon its unilateral determination that each of these detainees is an "unlawful enemy combatant", as that term is defined in the Military Commissions Act.
Given the scant attention previously paid to the definitional validity of this operative term, the principal matter to be dealt with by the District Court would initially appear to be that of the determination by the Court in Boumediene that the process currently available to detainees for the purpose of challenging their status as "unlawful enemy combatants" (a determination resulting in their indefinite detention) is an inadequate alternative to habeas. Accordingly, it would be logical to assume that the District Court's exclusive focus must be on the identification of those procedural rights and protections that are to be afforded detainees in order to construct a process that will serve as an effective habeas substitute. And, indeed, the District Court will have the task of articulating these requirements.
Graham's objection is accordingly deeper than the usual arguments about procedural remedies available to prisoners already classified as "enemy combatants," and suggests that Mr. Obama's re-invention of military commissions is just another version of the kangaroo courts which have sustained and endorsed the sadistic mistreatment of detainees at Guantanamo Bay for the last seven years.

: Well (none / 0) (#7)
by Big Tent Democrat on Sat May 23, 2009 at 12:32:10 PM EST

Everyone has an opinion. I do not find the one cited persuasive.

"clear cases" (none / 0) (#10)
by Andreas on Sat May 23, 2009 at 12:39:46 PM EST

BTD wrote: "Let's start with the clear cases. Assume these facts: a detainee is captured in Afghanistan, ..."

Yes, a clear case: that detainee must be released.

Afghanistan is occupied by US imperialism:

As the power of the United States declines and the economic crisis deepens, the attempt to counteract this decline through military force will only intensify. The American ruling class will not accept peacefully the loss of its geopolitical dominance. Already in the first decade of this century, the US has launched neo-colonial operations in Iraq and Afghanistan, in an attempt to gain control of key geo-strategic regions of the world.

Perspective and tasks of the Socialist Equality Party in 2009
By David North and Joseph Kishore, 13 January 2009

WSWS articles on Afghanistan

It is good to know where (5.00 / 1) (#11)
by Big Tent Democrat on Sat May 23, 2009 at 12:40:39 PM EST

everyone stands on these issues.

I obviously disagree with your comment but it is helpful in fleshing out the points here.


: Impossible to say (none / 0) (#24)
by CodeNameLoonie on Sat May 23, 2009 at 01:27:56 PM EST

whether a majority of the country has imperial aspirations, but Obama has inherited an empire of some kind, more than likely a shrinking one. That he may now administrate this "imperial" power in a more benign way, without actually losing it, will require deft political tools and shrewd legal thinking. (eleven dimensional chess?)
Your description of how preventive detention can work only if the designation of enemy combatant can be proven accurate is very useful. Not only because it raises the legal and political stakes, but also because it can lead to a discussion of how international law and domestic power relations intersect. It is incumbent on the US justice system, if not in deference to at least in tandem with international law, to prove that the enemies of the country, or of the empire, are at certain times real.

: Detaining people captured in Afghanistan (none / 0) (#56)
by Andreas on Sun May 24, 2009 at 09:34:27 AM EST

The official theory promoted by the US government is that Afghanistan is a sovereign state and that the US is not at war with that state.
Based on this assumption prolonged detainment of people captured in Afghanistan by the US government is illegal.
The positions promoted by BTD make clear again and again that there is no fundamental difference between the Republicans and the Democrats: both represent US imperialism (and US arrogance regarding international law).
*
I again notice that BTD does support a detention regime for Afghans but not for members of the terrorist organisation led by George Walker Bush, Richard Cheney and other mass murderers and torturers.

This is, indeed, a useful discussion (none / 0) (#21)
by andgarden on Sat May 23, 2009 at 01:16:50 PM EST

Now for the harder case: change the facts from al-Marri slightly. A person in Canada legally is picked up by the border patrol as he boats on one of the great lakes. He is subsequently designated as an enemy combatant by the President. What result?

What part of the Great Lakes? (none / 0) (#25)
by Big Tent Democrat on Sat May 23, 2009 at 01:29:10 PM EST

Canadian or American? Serious question.

If the first, we have a problem with Canada.

Presumably you mean the second.

Now we get to another thorny issue, which is the definition of the theater of war. I have expressed the view that what a person is doing is nearly as important as where.

Let's add to your hypothetical - the detainee is captured with explosives, blueprints, etc. Indeed, he is probably violating federal criminal law.

But instead of charging criminally, the government choose to treat the detainee as an enemy combatant. Does the detainee have a right to habeas? Of course.

But he ALSO has Geneva rights to review of his designation as an enemy combatant.

Suppose then the government loses on the enemy combatant designation and then decides to charge criminally. Can they do that?

I believe they can. We know they did this with Padilla of course and now with the detainee brought to New York for criminal trial.

I think the confusion largely stems from these related but independent bases for detention.

For example, Jeralyn's post on the presumption of innocence is relevant to the criminal portion of this construct but not necessarily to the enemy combatant portion of the construct.

The details are what are important now - the concept of detention for enemy combatants seems right to me. I have read nothing that gives me a different view of the matter.


Yes, I do mean the latter (none / 0) (#27)
by andgarden on Sat May 23, 2009 at 01:38:51 PM EST

But we could complicate it by saying that there is a dispute over exactly where he was captured.

I think that's exactly what the Obama Administration did with al-Marri, though the SC did grant cert so the enemy combatant issue wasn't settled.

So here's a question: would we rather have the courts design a review process for determining status, or Congress. Because one of the two is probably going to have to.


Al-Marri was a citizen also (none / 0) (#29)
by Big Tent Democrat on Sat May 23, 2009 at 01:49:07 PM EST

which is an important point as Justice
Souter's concurrence/dissent in Hamdi makes plain:

The Government's first response to Hamdi's claim that holding him violates §4001(a), prohibiting detention of citizens "except pursuant to an Act of Congress," is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority §4001(a) demands: a general authorization to the Department of Defense to pay for detaining "prisoners of war" and "similar" persons, 10 U.S.C. § 956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.
The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act "pursuant" to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 10--11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.
First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U.S.C. § 811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U.S. 214 (1944). See H. R. Rep. No. 92--116, pp. 2, 4--5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even §4001(a) "will virtually leave us stripped naked against the great power ... which the President has"). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of §4001(a) as enacted.
The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us §4001(a) provides a powerful reason to think that §4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that §4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U.S. 283, 285--288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300--301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287--293. When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations" for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.
Second, when Congress passed §4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended §4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus "unlawfully detained." 323 U.S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:
"In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." Id., at 300.
Congress's understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and §4001(a) must be read to have teeth in its demand for congressional authorization.
Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other-that the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.

BTW, Souter is easily the best Justice of the past 20 years. you may have heard me say that before . . .

: al-Marri was a legal resident of some kind (none / 0) (#31)
by andgarden on Sat May 23, 2009 at 01:57:34 PM EST

but he was a citizen of Qatar. And yes, I have heard you say that about Souter before. . .
BTW,

First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U.S.C. § 811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States

I just found out recently that the Court has never actually reversed itself on Korematsu. That's a scary thing to know.

: Agree with you on Souter (none / 0) (#59)
by BobTinKY on Sun May 24, 2009 at 10:24:48 AM EST

though that in no way diminishes my admiration of Stevens. Souter's resignation at an age when he remains physically vital and mentally at the top of his game, and when the Preisdent is not of the same party as that of the President who nominated him, is the capstone example of his greatness. We need more frequent turnover on the court and the tendency of justices to sit until they can no longer function at all is not healthy.
Thanks for the review of these statutes. After reading them I would only amend my comment below to say that those POWs and non-POWs who are suspected of terrorist-related criminal behavior must be treated in accordance with our criminal statutes. There is no need and should be no desire to establish some extra-constitutional regime.

Is this correct? (none / 0) (#33)
by nycstray on Sat May 23, 2009 at 02:15:42 PM EST

In September 2006 the Republican-controlled U.S. Congress, at the urging of the Bush administration, passed the Military Commissions Act of 2006, which stipulated that evidence obtained by coercion prior to passage of the 2005 Detainee Treatment Act could be introduced at military trials at the discretion of the presiding military judge. The law also gave the U.S. president the power to determine the meaning and interpretation of the Geneva Conventions, and it stripped the judiciary of the right to review those determinations. The law defines an "unlawful enemy combatant" as anyone who "purposefully and materially" supported hostilities against the United States or the person's cobelligerents, as well as anyone the president determined to be an unlawful enemy combatant. That definition could apply both to U.S. citizens and non-U.S. citizens. Critics of the law argued that it was an effort to undermine the Supreme Court decision in Hamdan v. Rumsfeld, that it unconstitutionally denied people the right to habeas corpus, and that it greatly expanded presidential power. The Bush administration argued that the legislation was essential to the war on terror.

It is correct (none / 0) (#34)
by Big Tent Democrat on Sat May 23, 2009 at 02:19:01 PM EST

Thanks (none / 0) (#35)
by nycstray on Sat May 23, 2009 at 02:25:02 PM EST

That probably does not make you feel (5.00 / 1) (#36)
by Anne on Sat May 23, 2009 at 02:59:02 PM EST

better, does it? I know it doesn't make me feel better.

The MCA was another one of those pieces of legislation that was rushed through Congress amid all kinds of scary warnings and this-just-in intelligence, and just in advance of the mid-term elections - the yes votes it got from Democrats were a combination of political ("if I vote against it, I won't be re-elected") and "pragmatic" - we had to do something, and this was "the best we could do" - we would fix it "later."

Is it "later" yet?

I'm having a problem with the term "preventive," which to me signifies a situation where someone hasn't actually done anything, but we're afraid he or she is going to, someday, somehow.

I have zero confidence that the right kind of legislation can be crafted in the Congress, and if this ends up being an executive order kind of thing, it's only good until it isn't - which would seem to offer no real protection.

I just wish I didn't have the feeling that Obama is allowing himself to be seduced by those who have a much less rights-driven world view, and is going to be amenable to suggestions from the kind of people who think Dick Cheney did a great job keeping us safe.


: Nope (none / 0) (#38)
by nycstray on Sat May 23, 2009 at 03:43:21 PM EST

I have a problem with the word preventive also, especially because there seems to be a lack of proof. Same with the designating.
Well, Obama did say he was going to surround himself with people smarter than him when questioned on experience. That was always my red flag. You mix that in with his "style" and some other clear signs from his campaigning, toss in a FISA vote etc . . . . the more things change . . . .
You're right about Congress. {sigh}

I do object (none / 0) (#22)
by kmblue on Sat May 23, 2009 at 01:17:50 PM EST

to "preventative detention" unless it's like your first hypothetical.

My opinion is that the Bush administration detained anyone they pleased. I believe Obama might well do exactly the same, and when asked for evidence, says
"uh national security uh can't jeopardize it by revealing the evidence uh trust me."

Meanwhile, as someone else pointed out, the detainee has lost six months of his life--assuming that sort of review is mandated.

The review would have to be speedy and stringent (none / 0) (#23)
by andgarden on Sat May 23, 2009 at 01:19:13 PM EST

IMO.


except for in his first article (none / 0) (#28)
by TruthMatters on Sat May 23, 2009 at 01:46:02 PM EST

they have uniforms, Al Qaeda and the Taliban don't use em.

so then are you saying that if EVERYTHING else was the same but the uniforms then we couldn't hold them?

and what if we picked em up on their WAY to the battlefield? do we now lose the right to hold them because we didn't wait until they "offically" tried to kill a U.S soldier?


: What are you talking about? (5.00 / 2) (#49)
by ricosuave on Sun May 24, 2009 at 12:34:29 AM EST

Nobody is complaining about attacking folks on the way to the battlefield. That sucks, but it is a perfectly normal military practice for the last several thousand years, and nobody has said otherwise.
Stop throwing up red herrings. Either you believe in the government's pre-cognitive ability to determine who will commit a crime, or you don't. Personally, I don't have enough faith in the Obama administration (or any, for that matter) to give them that kind of power.

Why the blurring? (none / 0) (#41)
by dualdiagnosis on Sat May 23, 2009 at 06:10:50 PM EST

The first case should have no business dealing with "enemy combatant" status. A POW is a POW, which is the case in your first example. The "enemy combatant" status has been reserved for individuals not in uniform or part of a state military.

The in between cases are not that difficult (none / 0) (#58)
by BobTinKY on Sun May 24, 2009 at 10:15:47 AM EST

There are those, as in your first example, who are clearly POWs. POWs are legally incarcerated for the duration of a conflict. In your example until the Taliban surrenders, or reaches some conflict-ending accord with the US.

Everyone else is either guilty or not of some terrorist-related crime. The US Government must make the criminal case against them period. And the government must prove its case beyond a reasonable doubt. If the Government cannot make its case due to evidence having been procured by its use of torture then the "prisoner" walks. That's a consequence of incompetent leaders failing to have adhered to our time proven processes. Blame those leaders, more reason to pursue their prosecution.

The only "complicating" factor I see, and I do not believe it is complicated, are those POWs who are also terrorist. These individuals can, as POWs, still be tried for any terrorist-related crimes and sentenced to prison if found guilty. If found innocent they wait out the conflict like all other POWs.

Though capable of inflicting casualties upon our population,particularly when aided and abetted by government incompetence on the scale of the Bush-Cheney Amdinistration, terrorist pose absolutely zero threat to our Constitutional republic. Our response to terrorism, however, does pose such a threat. To date we have failed to meet the responsibility we all been given by those who actually served and died protecting our republic against actual foreign threats. That responsibility is to preserve, protect and defend our Constitution thereby ensuring a government of, for and by people does not perish.

It may be a single issue, though Geithner's TALF continuation of Bush's Big Bank Bailout is another, but I simply cannot support Obama's continuation of this Bush-conceived perversion of our Constitutional processes. It is an unjustified cave to GOP nutjobs, makes Bush's errors Obama's, and leads Democrats down the road of also earning the respect of 20% of the population.

Most importantly, it is wrong.

There has been no WAR declared (none / 0) (#61)
by Inspector Gadget on Sun May 24, 2009 at 02:07:20 PM EST

anywhere.

This "war" is nothing but a military action. We attacked a country that was innocent of ALL charges against it, and didn't have the army or the weaponry to amply defend itself. For that, we are declaring a right to hold POWs for years without affording them due process.