Interesting question. I wonder if the answer is to deny that the Taliban were a legitimately state-like entity for legal purposes-- maybe they were viewed as a sort of non-state militia that had taken over many traditional state functions?
Right; did the US ever formally recognize the Taliban government? I thought they hadn't.
So you might say...there was no controlling legal authority! Mwhahaha.
The United States never offered the Taliban diplomatic recognition; as such, the argument goes, they should be treated as a militia (who are lawful combatants) under the Geneva Conventions, but they failed to wear uniforms and carry arms openly. Und so.
Wow, 1-4 have it, I think. Thread's dead, let's go out for beer.
But it's ok, we've got those crazy Afghanis in a lockbox.
i haven't read the relevant cases in a while, but i think we may have justified the ec status based on the lack of military uniforms (a la quirin & eisentrager).
I love the thought of destitute rebels somewhere hurriedly sewing patches onto their clothing so that they might get POW status.
damn those classist geneva conventions. i'm curious: did our well-regulated militias wear unis against ye olde redcoates?
Here's an apologia for classifying the Taliban as UEC.
Spaq says the same thing as everyone else here.
This is the Cala-buys-us-beer thread now, Matty.
I got the first round of pretend internet beer.
But ogged's on his own for his appletinis.
Appletinis are so played. Pomegranate mimosas are the happening gay drink.
Anybody who orders an appletini, even a virtual one, should be detained without protection of the Geneva Convention.
I am so damn sick of trendy pomegranate everything. People, I don't care if it's supposed to be healthy, if you mix it with vodka, it ain't health food.
17: knob creek on the rocks. but i'd rather have a miller lite. also, are caipirinhas the new mojitos?
21: you gotta keep those radicals guessing. Go free! Haha! Fooled you! OK, now, go free! Oh, snap!
21: in bar review class today, the lecturer (via the magic of videotape) claimed her dad invented pasta w/ vodka sauce in the 1970's, and that ernest borgnine couldn't get enough. though i believe airwolf preferred everclear.
Knob Creek was the setting for my first pornographic film.
Wait, is it seriously true that whether someone's a POW depends in part on whether his team *has uniforms*? Frrlz? Tell me this is a joke.
I fucking hate that "martini" has replaced the perfectly useful term "cocktail" (and its inbred cousin the "mixed drink"). Here's a hint - even if you serve it in a fishbowl-sized triangular glass, if it has schnapps in it, Dorothy Parker is going to someday rise from her grave and bitchslap you for calling it a martini.
also, are caipirinhas the new mojitos?
They were, in '05.
I thought that the Taliban were a government (recognized or not) and Al Qaeda were their unlawful combatant guests? Like if we were to invade Iran (hah!), the Persian military would be subject to the Geneva convention, but any Hizbullah agents would be Gitmo-fodder.
Caipirinhas were the new mojitos in 2003.
fl - the law doesn't have much of a sense of humor. no uniform, no geneva conventions. state actors don't appreciate the hoi polloi crashing their games.
you filmed your first porn in a bottle of bourbon?
27: yeah, and what kind of asshole makes a martini with vodka, anyhow? A glass full of gin, chilled, and dump a little vermouth on the floor. Anything else is hateful.
Or, who cares what people drink or what they call it? (Me, upthread, but if one can't be hypocritical in a comment thread, where can one be hypocritical?)
28, 29: I'm two years cooler than w/d, obviously.
Penne alla vodka, not pasta alla vodka (via the same magic of DVD).
28, 29 - damn you whippersnappers. i hadn't even heard of mojitos back then. what are the new new mojitos, then?
26: FL, yes, the Geneva Conventions privilege those who fight in recognizable uniforms, because then you can tell the soldiers from the civilians, which reduces the number of civilians who get shot.
As ridiculous as it is that we have "rules" by which we agree to kill people who have never personally wronged us, I think that's a valuable rule.
31: let's you have one of those, then.
(the hortatory subjunctive is the new Caipirinha)
you filmed your first porn in a bottle of bourbon?
AMTF.
34 - this is why you were a better student than me, w/d. do you think she was lying? did no one ever think of that before?
Caipirinhas are really good, so it would be a shame if ordering one made one seem merely to be a behind-the-times trendster.
36 has it, I think. It's the same reasoning that makes it a war crime for a soldier to disguise himself as a Red Cross driver.
29 is one of the counterarguments to what I presented in 4; honestly, I don't even pretend to know enough about the law to settle the matter.
Rfts was engaging in a modest campaign to have the Pimm's Cup made the new mojito; living in a hipster berg like Cleveland, I confess that I've never even tasted a caipirinha.
Ben, if you unwaveringly order them, without heed to the times, then you have no worries. Drink away.
My guess on the new mojito is something sake-based, but that's a total guess. I'd be in favor of a manhattan or mint julep revival - let's get the hipsters on it.
40: that sounds like a better porno than it does a drink.
Hmm, I'd guess that "clearly distinguishes from noncombatants" and "uniform" are not coextensional in practice.
It's like a daiquiri but with a weird funk.
Did the Viet Cong have uniforms? Would that have any bearing?
46: that would make sense, but i would also have thought the ak-47 would suffice.
Doesn't the Maytag heir who owns Anchor Steam make a single-malt rye now? We should all start drinking sazeracs.
All the best cocktails sound like pornos. It is quite a good drink, though.
Manhattans are great. Mint Juleps are great. Juleps are hard to make to order, though; you really have to prepare a batch and then let it sit around, which most bars don't do. If you make a julep wrong you might as well just drink bourbon right from the bottle.
I meant 46 in the sense that some crazy administration will twist the df of uniform to deny protections, thus undermining the rationale for the distinction.
Juleps are hard to make to order, though; you really have to prepare a batch and then let it sit around
Really? I've always drank 'em fresh. What does letting them sit around do?
One of the better ideas we had in college was to go to a house party with a thermos full of Mint Julep. The ladies loved us, and we kept away from the Beast Ice keg.
You know, mojitos used to be really good, but all these idiot bars have started putting weird shit in them and they're awful now.
Also, I am pissed b/c I just made ginger/mint-ade, and I should have used the mint for a mojito. FUCK.
What parallel conversations we have going on. Finer points of the Geneva conventions vs. up-and-coming hipster cocktails. I proudly wear the uniform of the forces of frivolity.
I'd be in favor of a manhattan or mint julep revival - let's get the hipsters on it.
Doesn't the Maytag heir who owns Anchor Steam make a single-malt rye now?
Yes, and in fact some hipsteroid bars have started featuring (fruitless, actually old-fashioned) Old-Fashioneds, Sazeracs, and Manhattans and whatnot.
the first mint julep of derby day is foul. the second is ok. the third turns you into an unstoppable wizard who can spot a winning horse 3 races ahead. the 4th is often the one causing you to pick shards of derby glass out of your skin the next day.
53: the simple syrup mixes more with the bourbon, I guess. Makes 'em smoother.
56: made with rye? What's wrong with them?
55 - we'll still waterboard you, clown.
I have to admit, I've never had a rye manhattan, but I really want to try one... That'll bend your mind like a lemon 'round a gold brick.
57 made me laugh out loud. Good thing I'm at home.
Dave Wondrich's 10-step guide to making a mint julep.
they have the names of all the past winners. they're often the last thing you see on derby day in luhvuhl before blacking out.
Cognac? Good lord, Ben, you're a font of people doing unspeakable things to bourbon recipes, today.
56: made with rye? What's wrong with them?
Absolutely nothing. Tastes great. You can make an old-fashioned with anything, really—it's not half bad with gin. Unless you mean that sazeracs should be made with cognac, which makes you a bit of a priss. Or at least extremely old-fashioned yourself.
Cognac? Good lord, Ben, you're a font of people doing unspeakable things to bourbon recipes, today.
That's what the original southern mint juleps were made with, according to Wondrich, who would know—bourbon would have been infra dig. (Ditto w/ sazeracs, hence 66.)
About Sazeracs I have no opinion. About Manhattans I have firm opinions. About Old Fashioneds I defer to my grandfather, who drank bourbon (to some significant excess, but that's neither here nor there).
I have yet to have an excellent Manhattan made in a bar. I go to all the wrong bars, clearly, since decent Manhattans are not that hard to make.
Doesn't the Maytag heir who owns Anchor Steam make a single-malt rye now?
Most ryes are virtually identical to bourbon. This one apparently isn't,.
Predicating the whole 'unlawful combatant' on the Taleban's lack of uniforms does seem a bastard thing to do. I still have no conception of how they managed to finesse the distinction between 'combatant' and 'criminal' in order to insert that third category that lets them deny people the rights of either.
Also, I thought it was traditional for states not to define themselves as being at war with non-state actors. The British certainly went to great lengths not to describe themselves as being at war with the IRA.
What's wrong with a rye Manhattan, Sifu? Do you hate America?
I thought it was traditional for states not to define themselves as being at war with non-state actors.
9/11 changed everything, remember?
I don't think I've ever met anyone in real life who ever mentioned liking any sort of cocktail, except gin and tonic, rum and coke, and vodka and random juice.
Man, I love arguing from a position of ignorance. Rye it is, then.
The British certainly went to great lengths not to describe themselves as being at war with the IRA.
Is that because they could declare a "state of emergency" without declaring a state of war, unlike the US? I really know nothing about the distinctions.
Wikipedia claims that "bitters are frequently omitted by barmen unless specifically requested". Yuck! Maybe that's been my problem. That and the fact that it's one thing to shake the ingredients of a Manhattan, rather than stirring them, and another to do it with fucking crushed ice, rendering it quite excessively dilute, as well as frothy.
Hipsters, Ned, we're surrounded by them.
i think we're at war w/ an emotion rather than a non-state actor. terror rarely wears a uniform, altough a hockey mask and machete should really count.
i really don't recall my classes that dealt w/ the geneva conventions that well, but i have a vague recollection that the rationale may be based on reciprocity - that the conventions are designed to protect the regular troops of 2 state actors who obey the laws of war. i doubt our administration would appreciate it if our cia skullduggerors in iran got the gitmo treatment, though.
Hipsters, Ned, we're surrounded by them.
Tell me about it. We've also got 20 of the 40 people in the world who sharpen their own knives.
80: hey, bourbon drinks are my ethnic heritage. Some of us don't have some fancy ancient culture all full of art and history and drama and whatnot to be proud of. Some of us have to make do with bourbon and croquet.
Oh look, he's flattering me, he must be an ok guy.
Meanwhile, via Henley, Orin Kerr is wringing his hands at the thought that denying the President the power to limitlessly hold legal residents of the United States without charges means that the police will not be able to illegally search the rooms of suspicious Arabs. Jesus. The man probably drinks saketinis, too.
re: 77
They didn't declare a state of emergency as such. There was the Prevention of Terrorism Act, which was a temporary provision regularly renewed*, but otherwise, business as normal.
The police and the army didn't have the right to kill the IRA in the way they would if they were really at war** and the IRA prisoners didn't officially get POW status.*** Thatcher was particularly adamant that they were criminals, not 'combatants'.
* permanent and much more sweeping powers enacted under Blair, however.
** well, they allegedly did, but it wasn't legal.
*** although they did get most of the de facto privileges after the hunger strikes.
84: that might mark the first time anyone's made that judgement based on my online communication. Thank goodness it's a joke.
It's just my bad luck that Manhattans are hip, if they are. Or hey, maybe it's my good luck and I will soon become able to order them in bars and not be disappointed. One doubts it, somehow.
re: 85
Having read that linked article, he's on crack. There are great gaping holes in his 'argument' that a drunk 8 year old could drive a bus through.
89 - crack s/b saketinis. God almighty.
Wow, that Kerr post is chilling. "Hey, I can think of a case where it would be bad to have a legal system!"
re: 91
Yeah. The substance of his post is 'rights and due process: an inconvenience'.
I had to step away, but if 1-4 is the argument, that's crazy. If we get to call the folks actually in charge of a country (as the Taliban indisputably were) non-state actors because we haven't recognized their government, that's going to apply in a whole lot of wars. Not thinking the other guy is a legitimate (rather than a de facto) government is one of the basic reasons for going to war. Are we really claiming that any time we dispute the legitimacy of a foreign government, their soldiers aren't soldiers entitled to POW status? But the Nazis were legitimate?
On the uniform thing, my understanding is that it's supposed to be generously interpreted -- the point is to distinguish between people deceptively posing as civilians and people openly engaged in combat. If we were prepared to grant any Afghan forces legitimate status as soldiers, I believe they'd count as effectively 'uniformed' if they were, say, carrying weapons openly and wearing anything at all easily identifiable.
Some of us don't have some fancy ancient culture all full of art and history and drama and whatnot to be proud of. Some of us have to make do with bourbon and croquet.
We had quitters in the Revolution too. We called them Kentuckians.
88: Manhattans are a Thanksgiving tradition in my family. Sadly, I don't have the knack of making them -- my mother's are wonderful, though. I do make ferocious margaritas -- not with the crushed ice nonsense, just the liquor.
I was glad to see the citizen AQ possibility and the parallel to ordinary police 4th amendment violations brought up in comments. Kerr really seems to believe that THIS IS DIFFERENT! because WE DON'T HAVE THE LUXURY OF RIGHTS! I'm sure if I were a lawyer this would all make sense.
that's crazy
Oh, right, that means it can't possibly be the administration's reasoning. I totally agree with your point; I was just pulling something out of my ass wondering if that could be it. on the other hand the Nazis had procedural legitimacy the Taliban lacked, and there was more of a live question about their status give failure of de facto monopoly on force, etc.
94: I should clarify that I'm not actually a Kentuckian, nor were any of my relatives. We were just early and enthusiastic consumers of their product. So really I got nothin'.
It's crazy, but it wouldn't be all that many governments where the argument, such as it is, would apply. With whom have we no diplomatic relations?
Nope. The 4th Amendment exclusionary rule is kind of weird -- it's not mandated in the constitution (what's mandated is 'don't search without a warrant', not specifically what happens if you do) and it does get you some screwy results, because unlawfully obtained evidence can perfectly well be absolutely reliable and convincing. So you could make exactly the same argument about a case where "OMG we found video of this guy raping and murdering little boys and we're going to let him go!1!!111!!"
I'd be perfectly happy to ditch the exclusionary rule if I could think of some other way to enforce the 4th.
99: China during the Korean War? We still weren't admitting they existed other than as Taiwan, I think. I don't know if we captured any Chinese 'advisors' during Korea, but I'd bet you anything that if we did, and they were in uniform, we treated them as POWs.
Wikipedia refers to Chinese POWs. So the situation has come up.
I have to admit, I've never had a rye manhattan, but I really want to try one...
Rye Manhattans are awesome. The cheap-o (~$10/bottle) Jim Beam rye is excellent for mixing.
The telling thing about the Kerr post is that he doesn't even bother to construct the scenario such that violating the 4th seems necessary. The FBI agents just do it, as if it would be difficult to get a warrant for a bunch of suspicious Arab dudes' hotel room.
Wow. Kerr is smarter than that hypothetical and lousy analysis. It seems like an Althouse construct, not Kerr.
On issues like this, "smart" is clearly not the crucial trait; maybe "judgment" or "character" is what we're after.
I'll stick with smart. The analysis is crappy. He is a freaking law professor. The holes in the argument are huge.
He would have failed a student for that crap.
If the blogosphere has taught us one thing, it's that being a law professor in no way ensures somebody will be smart, honest, or worthwhile.
Ok, I like Orin, I'll play the devil: of course the 4th Amendment violation isn't necessary; he's not trying to argue it is. What he is trying to argue is that it's a bizarre consequence that a not particularly intrusive, good-faith (in the hypo) violation takes away so many of the tools (like imprisonment) which the government normally has at its disposal to combat terrorism.
On the other hand, this response from one of Al-Marri's lawyers makes Kerr's craven noodlings almost worthwhile: As a personal aside, however, I have spent the past year "commuting" back and forth from Israel where my family has been living. Israel, of course, is a very small country that lives not only with the threat of terrorism and war on its home soil, but actual terrorism and war on its home soil almost every day. It is surrounded not by giant friends and allies like Canada and Mexico but by hostile neighbors in Lebanon, Syria, Gaza, and the West Bank.... Yet, one does not often see or hear the sense of panic and fear mongering that has become charcteristic of American discourse regarding terrorism and its suppression (by politicians and the media, and which is implicit in the hypo which started this discussion). Israel is not a country that has a Constitution or a Bill of Rights like ours, yet, even here, fully justified fear of future terrorist attacks has not led to a police-state system inside of Israel in which people can be detained indefinitely without charge simply because the Prime Minister says so.
Back to drinks, if you don't mind.
I was gonna make a strawberry-rhubarb pie to bring to a gathering tonight, but it is hot here. So I got to thinking of a slushy alcoholic drink.
I have lots of strawberries, rhubarb, mint, and meyer lemons. I don't have to use all of those. Suggestions for a combination and an alcohol? I'll go prep the rhubarb while you think about it.
washerdreyer:
First, these men are going to be detained.
Second, a warrant is easy to get. Moreover, the police simply have to wait. In addition, the Innkeeper has the ability to enter the room to clean it. When he does that, and sees illegal things, he can call the police.
There is a lot more. It is simply sloppy and inaccurate.
mmm the rhubarb could almost act as a bitter.
Rhubarb, mint, light rum and soda. That's my suggestion.
Would also work with vodka.
112: Your "second" goes to the quesiton of whether the 4th Amendment violation is justified. I'm certainly not arguing that it is, and I strongly think that the most reasonable reading of Kerr's post is that he's also not arguing that it is.
If you're right that under the holding of al-Marri the government's legal options aren't limited to release or deportation, then the post is obviously crazy. But why do you think that?
w/d, I don't get it. Suppose we grant that if the cops violate the constitution in a way that we don't think is a big deal (this is what folks call "a technicality," right?), you get some results that seem strange. Ok, fine. That's not a new or interesting argument, and hasn't the traditional response been "so don't violate the constitution"?
Yes. The argument, as applied to the Taliban, is ridiculous. Particularly since we applied the "enemy combatant" label to Taliban dish-washers and cooks who were: (1) sometimes conscripted, (2) a lot further from combat than any number of U.S. contractors in Iraq. And, of course, the determination that it was IMPOSSIBLE for a member of the Taliban to ever be a POW meant that we didn't hold individual hearings on whether they were POWs in Afghanistan--hearings which, in previous wars, have also been able to used to sort combatants from civilians, and which the military wanted to hold but which Addington & pals refused to.
If you go back and read the original legal justifications, they're embarrassing, and I'm embarrassed that I didn't realize what was wrong with Guantanamo until 2004. For one thing, no one even considers the possibility that some of these people are plain old civilians picked up by mistake...
You release that the question of whether the search was illegal isnt going to get decided for months, and months?
It isnt Law & Order where the lawyer walks in and the cops say, "Darn! Gotcha! I guess we have to let them go this afternoon."
And Kerr is immensely frustrating. He always seems on the verge of getting it, but based on this recent little series, I doubt he ever will.
Shorter Orin Kerr: I'm really looking forward to a remake of The Star Chamber.
Speaking of drink recommendations, I made waht is basically a simple syrup with a lot of ginger and a little mint. What can I mix it with? Campari? Rum? I bet it would be nice with pimm's, but I lack pimm's.
117: So I think you're right, and that the holding of al-Marri is correct. What Kerr appears to be arguing (as he makes much clearer in this second post) is that while that is the correct result in criminal contexts, the 4th Circuit made a mistake in reading this as being a criminal context.
119: Yes, I do understand that. So your point is that they can be temporarily be held, and then the government will have the choice to either release or deport them.
Actually, my point is that it would never happen this way unless the police officer was a complete idiot. "acting suspicious" is a conclusion based on some actual facts.
The hotel would go in to clean the room and see the evidence and they would get a warrant while the cops watched the room.
Fighting the hypothetical is not something law school prof's approve of.
Cherry picked hypotheticals aren't particularly persuasive arguments. Presume guilt, and safeguards designed to protect the innocent don't look so rational. If we presume that Al Marri is as innocent as the driven snow, then holding him for this long without a hearing, denying access to counsel, holding him in isolation, etc. look like gross injustice.
In fact, we don't know whether he's innocent or guilty of the gov't accusations, because they've never been tested in court. Allowing the gov't to subject anyone in the world to a different justice system not constrained by the bill of rights based on an unproven accusation that they're a member of al Qaeda invites abuse & the detention of innocents. It has, in fact, led to abuse and to the detention of innocents. I can understand arguing that the exigencies of war make it impossible to treat Al Qaeda suspects as criminals in Afghanistan. I can't understand how that works when Al Qaeda suspects are sitting unarmed in their home in Peoria, or already detained in a jail cell. Should we have been able to drop a bomb on Al Marri's house? It's pretty easy to believe that Congress did not perceive itself as authorizing that when they passed the AUMF; the Patriot Act's limitation of detention for 7 days would seem to confirm it. And Hamdi specifically discusses "zones of active combat", so it seems to me it doesn't override the statutory construction argument.
46 et al:The protection of civilians is the common justification for the non-uniform distinction, but I see it as more complicated than that. Under conditions of war & occupation, both civilians and soldiers have protections and a lack of protections. You cannot take a captured enemy soldier, establish a locally staffed kangaroo court, try him and hang him. You can do so with a civilian. I think.
If someone is shooting at you, you can shoot back, doesn't matter what he is wearing.
If he is in the window of an full apartment building, you have a problem, and cops in Philly have much the same problem.
This question really arises after the shooter is captured and unarmed. At that point, soldiers usually get better treatment than civilians, which really was the purpose of the distinction about uniforms.
I don't remember who said it above, but the comment about Thatcher & the IRA is right on point.
66, 78: One of the most popular drinks in Wisconsin about 30 years ago was apparently the Brandy Old-Fashioned. It had a bit of a revival recently, although Wikipedia's right that a lot of bartenders screwed up by skimping on the bitters. That's really the key IMO: at least two or three healthy splashes of Angostura.
111: If you're still looking for rhubarb-related stuff, I'd try Pimm's. Good enough quality rhubarb, use it to replace the cucumber in the Pimm's Cup. Otherwise Sifu's pretty much got it right, IMO, rum's the logical choice.
123: Rum, absolutely. With dark rum it's basically a variant on a Dark & Stormy; if you can find golden rum, add a splash of lime and you've got some fairly classic Southeast Asian flavors. [I've had something similar with ginger-lemongrass simple syrup that's just lethal.] It'd be potable with Pimm's but I think it would probably end up too sweet, YMMV.
127: Agreed that Kerr's argument doesn't show that Al Marri was wrongly decided. I just thought some of the other comments in this thread were misreading him.
118:Katherine, I remember you buying into the "unlawful enemy combatant" argument too much. I argued at ObsWi then as I argue now.
Even here in 127:"I can understand arguing that the exigencies of war make it impossible to treat Al Qaeda suspects as criminals in Afghanistan"
No. It was inconvenient to set up a full occupation in Afghanistan, with an occupation authority and courts, because we were in a hurry for Iraq.
But a full occupation was what was legally and morally required under the Conventions.
First step:America just doesn't get to bomb the fuck out of countries and then claim no responsibility for what happens in the rubble. Fuck. Goddamn. Why did people ever buy that shit?
100 - Look at Akhil Reed Amar's Constitution and Criminal Procedure for a persuasive argument that the historical and sounder remedy for an illegal search is a suit in tort against the searcher. Instead of a rule which (directly) only benefits the guilty, you get one which primarily benefits the innocent.
Oh, and also to 123: the Gin-Gin Mule maybe? Never had one, but it could work...
Even Katherine. This is why I am so alienated. And why I called for 5 million men in late 2001.
War is hard and very expensive. To get al-Qaeda in Afghanistan morally and legally under the Conventions we had to occupy and pacify the entire country, even to the extent of disarming the Northern Alliance. You do not allow militias with grudges to take revenge. And a lot of surrendered Taliban, kids and young men, far more than are in Guantanamo, disappeared into the desert.
Everybody just loves these cheap little wars.
Fucking criminal country I live in. And this is why I still call for a huge Army, because the wars aren't gonna stop, because this lawless decadent pit of a nation is just fine with waging war by air.
Clinton understood very well. Only when we get a domestic body count does the politics start.
It will be nukes eventually.
118: I was never in favor of Gitmo and holding people without charge and without POW protections, but the thing that totally turns my stomach was hearing recently that a lot of Iraq detainees (think Abu Ghraib) were picked up on the basis of IDs like "there's a bad guy who drives a black Opel" -- and they pick up the next five guys in black Opels they see and hold them -- IOW, even if their intel was valid, they know for a fact they're holding more people than their intel specifically identified.
Orin Kerr is a tool, as are all the Volokhs to one degree or another.
Manhattans are my drink of choice - I like them with Jack Daniels, as it's a little sweeter than most bourbons.
Imagine that on 9/12/2001, 20 Al Qaeda terrorists got up, strapped on explosive belts, walked into malls all across the country, detonated themselves, and killed another 3000 people. And then on 9/13/2001, another 20 AQ got their automatic weapons, headed out to the schoolyards, and popped 150 kids each for another 3000 bodycount. And so on, 3000 dead Americans Every. Single. Day. Since 9/11, like clockwork, we try everything but we can't stop 'em. Horrible, right?
That would be, today, something over six million dead. Less than Germany lost in WW2, with a quarter of the US's current population to start with. And Germany's culture was not annihilated. Changed to be sure, but more because of losing the war than because of losing the lives.
Terrorism is simply not an existential threat to the United States unless we let it be.
the … sounder remedy for an illegal search is a suit in tort against the searcher. Instead of a rule which (directly) only benefits the guilty, you get one which primarily benefits the innocent.
Pace (your summary of) Akhil Reed Amar, I don't think this would be sounder, given that such suits would, as a practical matter, never be brought. Consider the socioeconomic status of those most likely to suffer illegal searches: these people are likely to have neither the spare time nor the procedural wherewithal to start litigating. Unscrupulous police would go wild.
Now I haven't read Amar, so he may well have anticipated this objection.
The 4th Geneva Convention extends combatant status to non-state actors (rebels, resistants, francs tireurs, what have you) so long as they wear a clear distinguishing mark *whilst taking part in hostilities* - so you've got to don the headgear prior to opening fire.
The distinction goes back to the 1907 Hague regulations on the conduct of land warfare, which stated that "regular" soldiers were entitled to POW status and its various rights.
Regarding the Taliban's status as a government or not, there was indeed an internationally recognised government of Afghanistan at the time, but they weren't it. To be precise, US and other international forces in Afghanistan were intervening on one side in a civil war, and I think are currently there under the terms of an agreement with the Afghan government.
Da book of rules sez that if you have people whose combatant status or otherwise is doubtful, you presume them to be combatants until you can hold an Article 5 (I think) hearing to determine their status. (This is what Teh Govt calls a combatant status review tribunal.)
Interestingly, seeing as the whole ideology of TWAT is predicated on a violent opposition to the notion that terrorism is a problem of law enforcement, Rumsfeld's decision to invent "unlawful combatants" is a large step towards it - in the Geneva Conventions, there are essentially two categories, civilians and combatants. The only situation in which you can do anything nasty to a POW is if they commit a crime, in which case you can put them on trial.
Ergo, grabbing these people implies they are criminals, not prisoners of war. Nice paradox, huh?
And the problem wouldn't even be unscrupulous police. Scrupulous police would be subject to rights-abridging institutional pressure. (Much more so than they are now.)
BTW, the Viet Cong/NVA *did* indeed wear uniform whilst taking part in hostilities.
Viet Cong always wore uniform when fighting (for the normal reason that it made it easier to tell who to shoot at), but not always when carrying out sabotage and terrorism. Not that it makes a difference; I think Alex is even being a little too stringent in 138 as Article 44 of the First Protocol arguably gives combatant status even to guerillas who don't wear any insignia at all, as long as they carry their arms openly on their way to battle. But this interpretation of A44 is a bit controversial and of course a small number of rogue states have not actually ratified the first protocol.
132, 137: Yeah, I'm with Bridgeplate. Another problem is that an illegal search isn't likely to cause much in the way of monetary damages -- if I get pulled over and hauled out of my car for an hour while the police take all my stuff out of my car and leave it on the side of the road, I've been annoyed and abused, but tort law generally doesn't recognize much in the way of that sort of damages. Without economic damages, tort law is no sort of shield.
Wow, all of these great Dark & Stormy fans. The trouble IME is how hard it is to get decent ginger beer - that super-gingery, hippie shit ruins the drink.
We can't all drink good rye - it's almost all gone, because almost no one was producing decent rye 7-13 years ago. It'll be interesting to see how the trend plays out, with a weird lull where you can't find rye worth drinking, but you know that great rye will be everywhere in another, say, 3 years.
At this surprisingly decent "Asian Bistro" in the Phila airport a couple weeks ago, I had a great Asian-style Old Fashioned, with lemongrass. If anyone's interested, I wrote down the ingredients.
It's really quite simple.
1. Since 9/11, the whole world is a battlefield.
2. This will be true for at least 10 years, but probably forever.
3. One side is the US and its allies. The other side is anyone the US wants it to be -- everyone bad, as defined by the US.
4. Almost everyone on the other side is an illegal combatant, precisely because they are not wearing a uniform and are not a member of an organized group. Our fiendish enemy is everywhere and has no clear identifying marks. That's what's so frightening about them.
5. Any kind of contact, sympathy, or cooperation with an illegal combatant makes someone an illegal combatant.
6. No law of war, Geneva Convention, international agreement, treaty obligation, constitutional provision, or rule of law applies to the war against terror. This general principle is expressed in a hodgepodge of ad hoc laws and directives and rulings, but the basic idea is simple.
some hipsteroid bars have started featuring (fruitless, actually old-fashioned) Old-Fashioneds, Sazeracs, and Manhattans
Why on earth should Manhattans have to be "featured?" Aren't they pretty standard fare? Even the crappy bars around here can manage a good Manhattan (my most favored cocktail). Or am I hopelessly dated and out of touch?
Eh. I was recently in a gin mill on the Upper West Side with my mother. They served me a Manhattan without a cherry in it. I was fine with that, but Mom pointed it out to the waiter, who returned and dropped an olive in before I could stop him. Bleah.
143: Stewart's ginger beer is the best. Not all that easy to find but not super obscure.
Ginger beer (scroll down). Nothing to touch it.
132: the historical and sounder remedy for an illegal search is a suit in tort against the searcher
Besides Katherine's objection, there's also the problem that many plaintiffs would be guilty of the background offense, and that in many venues, a black drug dealer suing the cops might as well buy a lottery ticket as ask a jury for a civil verdict.
Now, re the Taliban, here's what GC3 says:
"(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war."
So it seems that if you qualify under (1), you don't actually have to have the "fixed distinctive sign." Maybe there's a provision for that elsewhere?
I think it's disingenuous to say the Taliban didn't fall under (1) above. You can't have Geneva protections depend on recognition by the enemy power, or else we would dis-recognize everybody the day we declared war on 'em. So it's gotta be de facto, not de jure. And de facto, the Taliban held the capital and most of the country, with some Northern Alliance "rebels" giving them problems.
I'm a gross amateur on this stuff, so if Katherine or somebody else sees the flaw in my reasoning, "bring it on," as they say.
Oh, that was the definition of a POW that I quoted, duh.
148: Stewart's (my fave too) has disappeared from this market, and I was given to understand that they had stopped making it.
145: "Sky Bistro Sidecar" (shit, did I write Old Fashioned?)
VSOP, Grand Marnier, & lemon juice, with a splash of mandarin orange juice, ginger syrup, and a crystallized ginger rim.
I have no idea what it was that was made with lemongrass. I think my wife had it,
150: It'd take me a minute to find it, but while I think you're right about qualifying under (1) even without the distinctive sign, there's a provision someplace making engaging in combat by subterfuge or something (again, I don't recall the words) a violation of the law of war, making soldiers concealing their status as such (as by not wearing uniforms, concealing weapons) punishable. I don't believe it makes them not soldiers, they're just soldiers who have committed a war crime for which they may be tried and punished.
Another problem with the 'uniforms' thing. Think of a civilian cook who's a member of the Nazi party, and doesn't wear a uniform. No problem -- he's not a soldier, but he's not engaging in combat. He's a civilian who must be treated as such.
We seem to have decided that affiliation with the Taliban equals combat, so if you're affiliated with the Taliban, and you aren't wearing a uniform or carrying weapons openly, you're a war criminal. This is really screwy -- if you aren't shooting people yourself or, say, handing ammo to someone who is, you're not engaging in combat.
Blenheims Hot makes a fantastic Moscow Mule; I imagine their (somewhat smoother) ginger beer would be really good in a D&S.
I don't believe it makes them not soldiers, they're just soldiers who have committed a war crime for which they may be tried and punished.
So they'd still be POW's?
N.b. the venerable history of extending the definition of "combatant," which in WW2 we decided would encompass factory workers and, apparently, their families. Hence Hamburg, Dresden, etc. That's the kind of thing the 1949 conventions were supposed to put a stop to.
One more objection to the "tort law as remedy for Fourth Amendment violations" idea. Suit realistically isn't going to be brought against the individual officers in that scenario, but against the municipality employing the officer. (Even if suits against individual cope authorized under the proposal, collective bargaining would undoubtedly shift the actual onus onto the municipalities or there'd be a pretty quick shortage in the supply of candidates for the job). Then, even if the objections above are overcome by offering significant penalties on top of actual monetary damages, the actual cost will get shifted to the municipalities, which will shift the cost to their citizens in the form of either higher taxes or decreased services.
The exclusionary rule isn't perfect, but it's the best we have. And, yeah, it does suck when it means someone plainly guilty gets an undeserved get-out-of-jail free card. But better a few of the guilty go free than that we all lose the freedoms the Constitution is there to protect.
155: I'm hazy on the procedural details, but being tried and convicted of a violation of the laws of war takes you out of POW status and into criminal-who-may-be-punished status. E.g., you really can shoot spies even if they're soldiers out of uniform, you just have to try them first.
As I remember, the whole "illegal combatant" definition is based on a single WWII precedent involving German saboteurs and spies landed by submarine. Again IIRC, he precedent has never been relied upon since first established, and has never been seriously tested. And the case (involving German-agent spies and saboteurs operating on explicit German instructions while pretending to be Americans) was almost completely unlike any of the recent cases except for one or two.
158: Yes. The case is called Quirin. A lot of people think it was wrongly decided, and that engaging in combat when you're not entitled to POW status means that you can be tried for specific crimes under domestic law or war crimes under international law, but that 'unlawful combatancy' (or 'unprivileged belligerency,') is not a crime itself, just the absence of a POW's privilege against being charged w/ a crime under domestic law for attacking the enemy. So because Al Qaeda members aren't POWs, you can charge them w the various criminal offenses they're guilty of under U.S. penal law, but you can't just hold them w/o charge or trial.
In any case, though, it's one thing to designate an individual soldier as an "unlawful combatant" based on specific actions of his that violate Geneva & that you've proved at a real hearing--criminal court, an Article V hearing by a competent tribunal, or what have you--and another to apply the term to any person associated w/ a force in any way. There were plenty of people in Guantanamo who who were not accused of directly engaging in hostilities with the U.S.--conscripts, cooks, aid workers whose charities might or might not have been involved in sketchy activities, etc. There are also the famous hypotheticals: the little old lady in Switzerland (LOLIS) who inadvertantly gives to the wrong charity; the journalist who won't reveal his source; the English tutor in London who has no idea that one of his students is linked to terrorism. The administration took the position that they, and every person we or our allies captured in Afghanistan, are presumptively: (1) enemy combatants, and (2) unlawful combatants, and therefore none of them are legally entitled to any individual hearing of any kind to contest the status. (The CSRTs, crappy as they are, did not exist until after the Supreme Court decided Rasul.) The President has the power to designate a whole class of captives as legal un-persons called "unlawful combatants", with no rights at all.
There's no basis in this in international or U.S. law, and as a matter of policy it's crazy. A lot of those people were civilians & mistakes; a lot of others should have been given POW status.
And of course, not just people captured in Afghanistan; also people captured in Pakistan far from the Afghan border, Iran, Thailand, Zambia, Indonesia, Gambia, Bosnia, Macedonia, the U.S.-Mexico border, Illinois, Milan, JFK airport, U.S. prison cells where they were detained as material witnesses or going to face trial, or anyone else on the face of the earth that the administration decided was involved in terrorism in some way. But in most other countries, the U.S. decided that an INDIVIDUAL was an unlawful enemy combatant with no rights w/o any kind of hearing--in Afghanistan & Pakistan, we made a blanket determination that everyone who came into our custody was an unlawful enemy combatant with no rights.
The Bush administrations claims to absolute power seem to match or surpass any claims any other government has ever made. It's like a universal empire unrestrained by any law.
It's like a universal empire unrestrained by any law.
Americans are a little weird like that, IMHO ... I think there's a tendency going back to the Puritans to identify America's purposes with God's purposes, consciously or not. We just can't admit that America has ever done anything wrong -- the guilt for slavery was shunted onto "the South" (i.e., not the *real* America), our colonialism is explained away, Hiroshima wasn't a war crime, etc., etc.
So, being pure as the driven snow, why would we need to be restrained by laws?
I was reading Michael Grant's "History of Rome" (1979) on the plane yesterday, and it was incredibly striking when he described just what the mindset was that enabled Rome to achieve its empire - in particular the more brutal aspects. Essentially, from the very early Republic days, one of the official state religious priests had, as his job, to determine whether official state actions were approved of by the gods (actually, some particular god, but an obscure-to-us Roman one, not one of the Romanized Greek ones). And damned if they weren't approved-of! Every time!
At least the Romans took seriously the idea that failure indicated impiety; or, rather, they accepted that failure was possible, and so that maybe they weren't always perfectly pious. Whereas the American approach seems to be that, since failure indicates impiety, and America is always pious, we can never fail. Even finger-pointing and blaming the Drity Fucking Hippies pales compared to the fervent belief that America has never failed at anything, ever (Vietnam was a tie!).
the guilt for slavery was shunted onto "the South" (i.e., not the *real* America)
The funny thing about this is that those who still have a problem with slavery aren't fond of the South, whereas those who hold up the South as being the *real* America tend to be a little less upset about the Awkward Institution, or whatever the hell that euphemism is.
163: I have always treasured Lincoln's supposed remark, when a Cabinet secretary (Stanton I think) said, "May God be on our side!" -- Lincoln retorted to the effect that he was much more concerned that *they* be on *God's* side.
The spirit of Lincoln has not prevailed, in that respect or in many others.
Lincoln's faith astonishes me - I find myself reading his addresses or his letters, and I simply stop to grasp it. Whatever it was he believed in, I don't think "personal Jesus" is in the same universe.
161: That seems hyperbolic to me.
re: 167
Yes, it seems a bit hyperbolic to me too. However, interestingly, I was trying to think back to various 20th century authoritarian regimes and most of them tried to maintain some kind of constitutional fig-leaf and generally didn't claim that their leader/president/prime-minister had absolute discretionary power.*
The Bush administration largely does make this claim. So, in that sense, Emerson has a point.
* of course *in practice* many regimes have actually behaved in a more absolutist way than the Bush regime.
