Next stop: horsewhip Cheney!

And what happens after those 120 days are up?

2: Comedy gold to start the morning.

2 - Yeah, that was my reaction. How is this different from what Bush has done?

But I don't think Obama can kick the can down the road for another four years.

How is this different from what Bush has done?

How is this the same as what Bush has done??

How is this different from what Bush has done?

Well, let's see. Bush pushed pushed ahead with such blatantly kangaroo courts that 5 military prosecutors resigned in protest. Obama suspended them, and we'll see what will come next. I understand that cynicism is healthy, but seriously, people.

Cynicism is healthy because people in the Obama camp have already talked about shunting a bunch of the Gitmo detainees into a different, domestic system of kangaroo courts, designed with laxer prosecutorial standards to help make sure they get convicted. Obama's campaign promise was to close down Guantanamo; he was never specific about what he was going to do with the people we've had rotting there for the last several years.

Cynicism is premature until we have a full picture of what the Obama administration is planning to do, and whether the courts they're planning to set up will be kangaroo courts, or reasonably valid means of trying detainees. At this point, I don't think it would be procedurally possible to simply treat Guantanamo detainees as criminal defendants in the ordinary domestic courts; we could let them all go, but I don't think we could try them using normal criminal procedures. So, screwing the the procedure somewhat doesn't bother me, so long as there are sane evidentiary standards and so on. (And so long as they let go everyone they decide they can't try.)

Hey, domestic "kangaroo courts" -- if that's what they prove to be, which remains to be seen -- are at least an itty bitty step up in that it abandons the whole "Oh, Due Process? Yeah, doesn't apply over here off of U.S. soil."

I don't think we could try them using normal criminal procedures.

Why not?

9: How is "due process doesn't apply to 'terrorists' " a step up from "due process doesn't apply off of U.S. soil"?

My understanding is that we might also consider releasing some detainees domestically, and that the wingnut warb-logger crowd is apeshit over it. Moreover, that our doing so would facilitate other countries' willingness to take in some detainees.

Where did I hear this? Diane Rehm Show, maybe.

10: Because the evidence against them is so tainted by the way it was collected that most of it would have to be thrown out.

The thing is, many of the people who were tortured are in fact guilty of horrible crimes. Simply releasing them, especially after torturing them, means that many will go back to being terrorists only with even greater dedication to the cause and with enormously enhanced credibility for having escaped the clutches of the Great Satan. Letting them go means a near-certainty that they will kill innocent people.

This situation is truly nasty.

10: Well, initially there'd be that whole speedy trial problem; while I'm not a criminal lawyer, so I'm talking out of my ass, I think they've all been sitting around uncharged for long enough that we'd have to release them.

Cynicism is premature until we have a full picture of what the Obama administration is planning to do, and whether the courts they're planning to set up will be kangaroo courts, or reasonably valid means of trying detainees.

You call it cynicism, I call it healthy skepticism. Obama's shown no sign of being any kind of civil libertarian: he voted to give himself the power to spy on anyone in the country without a warrant, he voted to reauthorize the Patriot Act, and he's surrounded by people like Biden, Clinton, and Emanuel who have horrible records on this issue. And like I said, as early as November his people were already floating the idea of "hybrid military courts" for Guantanamo prisoners.

The fact is that if civil libertarians want Obama to do the right thing, they can't just sit back and wait for Obama to do it out of the goodness of his heart: they have to push him on it. The same thing goes for foreign policy, for the environment, for the economy, and on and on down the line. When it all comes down to it, the man's a politician, and he wants campaign contributions and poll numbers, not a liberal utopia.

Because the evidence against them is so tainted by the way it was collected that most of it would have to be thrown out.

Well, initially there'd be that whole speedy trial problem;

I think these are both correct. And I think togolosh's concerns that many are in fact guilty and would in fact pose a future threat is precisely why this is politically dangerous territory.

Me, I'm all radical civil libertiesy enough to say, well, so be it. If we fucked up our chance to prosecute by desecrating the Constitution, we don't go "fix" that with some compromise less-unconstitutional fix. Good chance to educate law enforcement all about the exclusionary rule. But I'm realistic enough to recognize that this is a tough sell for President Obama to make -- and, indeed, that there are risks to be weighed about not giving this particular Supreme Court a politically palatable vehicle for reconsidering the exclusionary rule, etc.

Obama can't get this one exactly right. It's just not possible.

The thing is, many of the people who were tortured are in fact guilty of horrible crimes.

You mean "have in fact been accused by the government of horrible crimes"? Because last time I checked, we distrust such accusations enough to presume innocence until indivduals are proven guilty in a fair trial. Which these people SURE AS HELL HAVE NOT BEEN.

Maybe you meant instead "have in fact commited horrible crimes"? But, unless you were somehow personally involved, you have no way of knowing that, other than those same government accusations.

The thing is, many of the people who were tortured are in fact guilty of horrible crimes.

And some of them aren't guilty of anything at all, but we've ruined their lives.

The thing is, we always have let people walk who are in fact guilty of horrible crimes. Letting them go often means a near-certainty that they will harm or kill innocent people.

We do this because we believe that undermining the process itself is more important than any single case. And it's true.

If the prosecution and/or law enforcement fucks up badly enough, it's best for everyone to throw the whole thing out. The same applies here.

13, 14: I'm perfectly happy with letting them all go. Even Khalid Sheikh Mohammed, if it comes down to it. Yes, yes, some of them have committed horrible crimes and would get away scot-free; and Bush and Cheney have killed hundreds of thousands of people and created millions of refugees and are retiring as multi-millionaires.

I'm perfectly happy with letting them all go.

To where? Hand them over to the Karzai government?

We do this because we believe that undermining the process itself is more important than any single case. And it's true.

This is precisely right. And if it's a good enough standard to apply for domestic killers, it's a good enough standard to apply for foreign killers. It's lasted us a couple hundred years so far, through a lot of stuff scarier than al Qaeda, and it would be stupid to throw it away now.

To where? Hand them over to the Karzai government?

Back to wherever we kidnapped them from?

That's Afghanistan for the most part, isn't it? Do we expect the Karzai government to let them walk or disappear them yet again?

I agree there is no right answer here. It's a completely fucked-up situation.

You guys do know that for a lot of the guys at Guantanamo, releasing them to their "home" countries will make them face a lot worse treatment, right? Remember the Chinese Uighurs?

Not to say that they shouldn't be released, but pretending it's as simple as "just let them all go" isn't going to make it a viable option.

It's lasted us a couple hundred years so far, through a lot of stuff scarier than al Qaeda, and it would be stupid to throw it away now.

I'm not a legal historian or anything, but alot of the protections we (would like to) take for granted are not really centuries old. Sure, the 4th Amendment is in the Constitution, but when was the exclusionary rule adopted to enforce it? Sure, the 5th amendment's been there like forever, but it was given much more meaning by the Miranda court only about half a century ago. I agree that it would be stupid to throw that away -- but it would also be stupid to ignore the political realities that could lead the Court to throw it all away regardless of what we all think.

Not offering any solutions here -- just noting that it is not as simple as an up or down vote on civil liberties.

re: 23

People have given some thought to this. Finding them places to go in 3rd party countries, etc.

Here's where I'm going to say something grossly anti-civil liberties.

I'd actually be okay with suspending the exclusionary rule for trials of detainees (that is, assessing evidence only for its reliability (which would knock out confessions produced by torture and similar) rather than eliminating it if it was derived from a violation of the Fourth Amendment). The exclusionary rule isn't an aid to truth-finding in the cases in which it applies, it's a general incentive for good policing behavior. The evidence we're looking at here wasn't collected by police, and the incentives behind the exclusionary rule don't really apply.

That'd be a big change from civilian criminal law, but not, I think, inappropriate, and it would allow us to successfully try anyone we had reliable evidence against, without worrying about whether that evidence, reliable in itself, was tainted by connection to bad acts by the US. And for anyone we don't have reliable evidence against, we should give them a US passport and buy them a townhouse in Newark, as the least we can do after six or seven years of wrongful imprisonment.

Why hand them over to the Karzai government? Are they their property or something?

18 should have made Brock's obviously correct guilty/commited distinction too.

The only way that we can make even approximate sense of "what actually happened", is to apply a rigorous standard of evidence and proof and stick to it as best we humanly can Give that up and we've lost.

People have given some thought to this. Finding them places to go in 3rd party countries, etc.

True. But my understanding was they were having a little trouble convincing 3rd party countries to take in these nice fellows who we have considered so dangerously evil that we couldn't honor due process.

Frankly, I'm really concerned that at least a small group of the people there are Actual Bad Dudes who did Actual Bad Stuff, and now have been hella radicalized by their thoroughly fucked-up, illegal, in-no-world-is-it-just experience.

Which is why I'm really, really pissed that they probably can't be tried in domestic criminal courts.

buy them a townhouse in Newark,

That is, a townhouse in Newark, each. Not group housing.

Interesting point, LB.

I suspect I'd be happier with it if in the case that:
was tainted by connection to bad acts by the US.
we included some compulsion to actually try and prosecute those bad acts, but I'd have to think about it a bit.

A townhouse in Newark, LB?

Maybe we could turn turn Guantanamo Bay into a nice beach resort, and let them all live there forever.

28: Dude. Take a deep breath and re-read everything you've ever read - or hell, maybe even written - about civil liberties abuses during the Bush administration. Try to remember all those earnest posts from blogs like Obsidian Wings where people would go on about how you can't just section off a piece of the justice system and call it "terrorism" and have it play by different rules and then expect the rest of it to behave normally. And ask yourself what your reaction would be if President McCain said he was going to do this.

28: Which doesn't sound so much like suspending the exclusionary rule as an exigent circumstances exception -- the searches/seizures were not "unreasonable" in light of the emergency nature of things. I'm okay with that, too, as I hardly see this leading to precedent applicable to raiding a petty drug dealer or whatever.

Why hand them over to the Karzai government?

Because a person entering another country requires the permission of that country's government. I don't think we can just give them $100 and walk them out the front gates of Bagram Air Base.

I don't disagree with you overall, IIR. The details here just seem much more complicated than you're acknowledging.

it's a general incentive for good policing behavior

Semantic quibble -- it's a deterrent against bad policing behavior.

38: No, but you can fly them wherever they want to go. It is a problem if there is nowhere that will take them that they also want to go, but it's not clear that would happen.

Frankly, I'm really concerned that at least a small group of the people there are Actual Bad Dudes who did Actual Bad Stuff, and now have been hella radicalized by their thoroughly fucked-up, illegal, in-no-world-is-it-just experience.

This is one of the many reasons why Torture Is Bad. We don't let cops torture drug dealers, even though there is, of course, a Global War On Drugs, with real-life, guilty drug dealers 'n' shit.

I don't think we can just give them $100 and walk them out the front gates of Bagram Air Base.

You don't? Who controls Afghanistan again? It's certainly not the Karzai government.

36: Honestly, I'd be good with that as a solution from President McCain as well, so long as the procedure was reasonable and the evidentiary rules were otherwise intact. Walking away from the exclusionary rule solves a lot of the "We have real solid evidence that's too tainted to bring into a civilian court" issues that worry people like m.leblanc in 32, without affecting the truth-finding aspect of the evidentiary rules. Evidence that would be excluded by the exclusionary rule isn't unreliable; it's reliable evidence that's excluded to punish bad policing.

Frankly, I'm really concerned that at least a small group of the people there are Actual Bad Dudes who did Actual Bad Stuff, and now have been hella radicalized by their thoroughly fucked-up, illegal, in-no-world-is-it-just experience.

You reap what you sow.

Maybe releasing them would take some edge off the effects of the radicalism. Maybe we have to commint big resources for 25 years to taking the edge off that radicalism. I dunno. But we can't actually control everybody's actions, no matter how much teh keyboard kommandos would like to believe it's possible.

Even if some of these people were Really Bad Dudes at the time they were captured, how likely is it that whatever their power base was still exists? There are plenty of people in the world who would like to kill Westerners or do other terrorist-y things; adding these people back to that pool doesn't seem likely to change much. Their resources, loyalties, etc. have probably been taken over by whoever else was around them but not captured.

Or, to put it another way, past performance is no prediction of future returns. Because of the evidence/torture problems we can't punish them, which is unfortunate, but I don't believe that keeping terrorists imprisoned has any effect on the amount of terror in the world. So we shouldn't bother doing so.

43: Lizardbreath, a lot of the "evidence" that would be excluded would presumably include forced confessions obtained through torture. Why, for the love of Fluffy Jesus, would you want to set up a system that allows evidence like that?

You don't?

No, because the odds are pretty high they'd be walking out with a bullseye on them.

Who controls Afghanistan again?

Are we trying to return to the rule of law or not here?

43: To make that sensible, I think we'd have to insist on increased transparency and detail on how the evidence was actually gathered. Even if we didn't insist on prosecuting criminal acts that came to light in the process.

17.1: No, I mean are actually in fact guilty of horrible crimes. There's legally guilty and there's real guilt. I am actually guilty of exceeding the speed limit on my way in to work today. Legally, I'm not.

What people have actually done is independent of what they have been found in a court of law to have done. People have been found legally guilty of crimes they did not actually commit: Factually innocent, legally guilty.

I'm sympathetic to the idea that the rule of law is so important that it's worth the lives of innocents. I'm also sympathetic to the idea that some of the people who have been tortured are likely to commit further crimes upon release that are so heinous that the damage caused by doing something short of simply releasing them might be worth it.

Bear in mind that the damage caused by releasing someone who then goes on to commit a substantial act of terrorism is not just the damage caused by the terrorism itself. It's also political fallout both at home and abroad.

Anyone who thinks this problem has a simple solution hasn't thought through the implications. Fucking this up could easily destroy the Obama administrations ability to get anything substantial done on any of their priorities. Some of those priorities will save thousands of lives, possibly millions in the long term.

I like Di Kotimy's idea in 37--maybe rather than having a blanket decision that the exclusionary rule doesn't apply, you can actually have an exception to the exclusionary rule based on the facts and circumstances. I don't know shit about criminal law, but if there is such an exception that would cover this situation, that would work quite nicely.

Now about the speedy trial issue.. I'm guessing there are no exceptions there. Anyone?

41: well, no, we don't let cops torture drug dealers, although we've certainly not always been too shy about outsourcing that to our foreign counterparts in the Global War on Drugs. And, to be fair, if the Bush administration had cared more about prosecuting the Global War on Drugs (and if it had the sort of political backing that it had for the Global War on Terror), I don't see any reason to believe we wouldn't have had cops torturing drug dealers.

I'm kind of serious about the 'passport and a townhouse in Newark' bit. For people we've imprisoned for over five years with no real basis for it, I think that's the least we owe.

I don't see any reason to believe we wouldn't have haven't had cops torturing drug dealers.

I remember reading that the Uighers who had been accepted by Albania---in what was heralded as a diplomatic triumph and a "good ending"---were basically living incommunicado under house arrest in a country where they didn't speak the language or understand the customs.

I'm also sympathetic to the idea that some of the people who have been tortured are likely to commit further crimes upon release that are so heinous that the damage caused by doing something short of simply releasing them might be worth it.

I'm not. The people we have imprisoned in Guantanamo aren't Lex Luthor or Magneto; the terror opportunities exist whether these people are out there to give it a whack or not.

53: There was supposed to be a link in there.

45 is appealing, but I think it's also true that being unjustly and illegally imprisoned by the United States for 6 years would make you kinda a celebrity and someone who could rally people around you. Like a martyr who's still alive.

If you wanted to be one, that is.

re 27 3rd party countries aka Europe. There've been talks about this.

LB hear hear.

What people have actually done is independent of what they have been found in a court of law to have done.

This is obvious, and mostly irrelevant. The only standard of guilt that matters here is one that can be arrived at through the process of law. Anything else is a distraction.

In the long run, this is likely to be vastly more important than any particular administrations ability to do anything.

46: LB isn't talking about something that would allow evidence obtained by torture.

49: what basis do you have for concluding that they are in fact guilty of horrible crimes? And do you believe that basis alone is sufficient for depriving an individual of his liberty?

I mean, look, I agree there's a high probability that many people in Guantanamo are in fact guilty of horrible crimes. But I'm sure as hell not positive about that, and further I have no way of knowing which indivuals those might be.

Well, here's a description of the law that applies to federal trials re: speediness. There are some exceptions.

Certain pretrial delays are automatically excluded from the Act's time limits, such as delays caused by pretrial motions. 18 U.S.C. § 3161(h)(1)(F). In Henderson v. United States, 476 U.S. 321, 330 (1986), the Supreme Court held that § 3161(h)(1)(F) excludes "all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.'" The Act also excludes a reasonable period (up to 30 days) during which a motion is actually "under advisement" by the court. 18 U.S.C. § 3161 (h)(1)(J). Other delays excluded from the Act's time limits include delays caused by the unavailability of the defendant or an essential witness (18 U.S.C. § 3161(h)(3)); delays attributable to a co-defendant (18 U.S.C. § 3161(h)(7)); and delays attributable to the defendant's involvement in other proceedings, including delay resulting from an interlocutory appeal. 18 U.S.C. § 3161(h)(1)(E). (Note, however, that the 30-day defense preparation period provided for in § 3161(c)(2) is calculated without reference to the Section 3161(h) exclusions).

Involved in other proceedings! That works, right? They were involved in this military tribunals and trials that were sanctioned by the government at the time. This is basically accounting for a change in the law.

46: Lizardbreath, a lot of the "evidence" that would be excluded would presumably include forced confessions obtained through torture. Why, for the love of Fluffy Jesus, would you want to set up a system that allows evidence like that?

meet 28: I'd actually be okay with suspending the exclusionary rule for trials of detainees (that is, assessing evidence only for its reliability (which would knock out confessions produced by torture and similar) rather than eliminating it if it was derived from a violation of the Fourth Amendment).

Confessions produced by torture are bad evidence in themselves, and shouldn't be admissible in any court of law. The problem with the exclusionary rule is that once you've done something rights-violating, any evidence, even normal, ordinary, reliable evidence, that it's possible you wouldn't have acquired but for the rights violation, has to get thrown out as well.

We need that protection to deter wrongful policing practices domestically. But walking away from it this context solves a lot of problems.

37, 50: Hrm. Di, I should defer to you, because this isn't my professional area, and if I remember rightly it is yours. I'd just like any law made in this context to be isolated from mainstream criminal law, rather than turning into something that could get used as precedent.

Didn't al-Zawahiri's Egyptian branch of al-Qaida come almost entirely out of the radicalized prison-form of the Muslim Brotherhood?

I'm thinking that your average Gitmo detainee has identified with his fellow prisoners and their collective struggle, whether or not he went into prison involved in al-Qaida. The detainees have organized a broad-scale hunger strike for a couple of years now.

53/56: well, sure, of course we have cops torturing drug dealers. I meant more that we could have seen public defense of the practices, as we do now with terrorists.

But I'm sure as hell not positive about that, and further I have no way of knowing which indivuals those might be.

I don't think anyone's saying they're positive. Just exactly what you're saying, which is that there's a decent probability. Which is why it would behoove us to have criminal trials so we could determine legal guilt.

But walking away from it this context solves a lot of problems.

A question about the context LB. Are you suggesting that this is a one-off affair, or a precedent useful for all future prosecutions based on foreign evidence, etc.?

I understand it as an approach to cleaning up the mess we've currently got, but the precedent issues are still problematic, I think.

I have to say that I find the Really Bad Dudes argument incredibly unconvincing. Does anyone here really think that the cause of international/anti-U.S./anti-Western terror would be substantially set back if everyone in Guantanamo were executed tomorrow? There isn't some finite number of terrorists out there somewhere which will dwindle towards zero once we kill or imprison enough of them. Terrorism is a political response to political conditions and events - events like the wars in Iraq and Afghanistan and the recent massacre in Gaza (and, for that matter, American torture).

This isn't to say that military/police response to terror is useless, but its utility is pretty limited compared to that of simply knocking off the crap we're doing to piss off millions of people around the world. In that context, worrying about what a handful of possible terrorists are going to do after we've spent years torturing them seems to reveal some bizarre priorities.

because this isn't my professional area, and if I remember rightly it is yours.

I don't want to claim any extraordinary expertise -- I have practiced in the criminal context, however.

61.1 - some of them have been caught all but red-handed. Broken as the procedures are for deciding who a high value detainee is, there is actually an attempt to get people who do have actual useful information into the system. I'd bet money that there are some innocents in there. I'd bet my life that there are also some people in there who are guilty as sin.

My 64 got interrupted. It's not that I really believe that the detainees are going to all become super-jihad terrorist warriors if released, but there are historical precedents for concern. There's no easy answer.

66: I don't think anyone's saying they're positive. Just exactly what you're saying, which is that there's a decent probability.

m, I agree that's probably what togolosh meant, but it's definitely not what he said. And I don't think it's just a pedantic difference.

63: How are you going to tell which torture-produced evidence is "good" and which is bad? And by what principle do you exclude torture-induced confessions and not torture-induced everything else?

I have to say that I find the Really Bad Dudes argument incredibly unconvincing

Me too -- that's part of where the "give them passports" idea comes from. I just can't see the harm from having, at worst, a couple dozen "Really Bad Dudes" with US passports. I'm sure we've got more than that now.

67 identifies real issues that I'd have to think hard about, but I think they're soluble. You'd need a statutory and rigorous definition for when this sort of situation applied, but I think you could make it tight enough not to invite easy abuse.

73: you exclude torture-induced everything.

Well, LB should answer about her own proposal, but 75 maybe isn't right. I don't think you'd need to exclude torture-induced hard evidence (although personally I'd want to on principle).

torture-induced hard evidence

By which I mean, you throw out the confessions, but if a torture-indiced confession led to the discovery of a store of incriminating documents and bomb materials, you don't need to exclude those.

73: This isn't a hard distinction. Say you've got Detainee X, who was detained in a building in Afghanistan. In possible world A, where we all wish to God we lived, he was treated humanely, and the building was searched with a fine tooth comb: the search revealed a hidden safe, which contained several sets of false passports and other ID with his picture on them, and a notebook filled with a plan in his handwriting to blow up Disneyworld, as well as the plastic explosive necessary. That's reliable, admissible evidence, which we could use to try him. In possible world B, more like the one we're stuck with, we tortured Mr. X, and he told us where the safe was and what the combination was. The contents of the safe are just as good evidence, in a real sense, in World B as they would be in World A, but they wouldn't be admissible in a court bound by the exclusionary rule. I'm suggesting that we exclude the confession, but allow in the contents of the safe.

(We should also be running prosecutions for torture. Walking away from the exclusionary rule doesn't mean saying torture is okay.)

Does anyone here really think that the cause of international/anti-U.S./anti-Western terror would be substantially set back if everyone in Guantanamo were executed tomorrow?

No.

This isn't to say that military/police response to terror is useless, but its utility is pretty limited compared to that of simply knocking off the crap we're doing to piss off millions of people around the world.

Sayyid Qutb (sp?) was radicalized in part by a fucking college dance party in the midwest in the 1950s. Some of what we're doing to piss off millions of people is stuff like criticizing honor killings, female genital mutilation, execution by stoning for adultery, that sort of stuff.

We ought to knock off the bad things we are doing because they are bad not because a bunch of primitive evil assholes who want to take the world back to medieval superstition and brutality might get their panties in a wad.

Brock-pwned.

We should also be running prosecutions for torture.

Should be, but I'm not holding my breath.

81 seems like it calls for a waterboarding joke, but I can't quite put one together.

Frankly, I'm really concerned that at least a small group of the people there are Actual Bad Dudes who did Actual Bad Stuff, and now have been hella radicalized by their thoroughly fucked-up, illegal, in-no-world-is-it-just experience.

Actual dudes who did actual bad stuff end up bad off in American prisons now, and we still let them out when their sentences are up, even if there's a good chance all the prison term has done is give them useful criminal contacts. In this case, we fucked up so badly we couldn't figure out who was guilty and who was innocent. That they might be really pissed at us now is not a good reason to keep compounding the error.

I don't think "let them all go" is the only answer or an easy one, but I'd be happier about that than I would with giving an inch on the exclusionary rule.

Isn't it also true that successful terrorism isn't usually one guy acting alone, but a successful *network*, sort of like a corporation? These guys have been separated from that for seven years; I'd be curious to see whether it's true that these guys have a terrorist network to go back to.

We should also be running prosecutions for torture. Walking away from the exclusionary rule doesn't mean saying torture is okay.

This is why I like the idea of complete transparency of this evidence if it was to be allowed. If the prosecution wants to use it, they have to admit it was acquired improperly, how it was acquired, and who acquired it, then argue why the exclusionary principle should be waived for evidence X, and why.

The added bonus here is that if this stuff isn't going to be prosecuted (and I'd be surprised if it happens) it forces everybody to be very up front about that.

This is why I like the idea of complete transparency of this evidence if it was to be allowed. If the prosecution wants to use it, they have to admit it was acquired improperly, how it was acquired, and who acquired it, then argue why the exclusionary principle should be waived for evidence X, and why.

Nice. I like this.

Sayyid Qutb (sp?) was radicalized in part by a fucking college dance party in the midwest in the 1950s. Some of what we're doing to piss off millions of people is stuff like criticizing honor killings, female genital mutilation, execution by stoning for adultery, that sort of stuff.

Al Qaeda doesn't use Britney Spears and Amnesty International to recruit new terrorists. Their recruitment material overwhelmingly focuses on the occupation of Iraq and the Palestinian territories. Those "primitive evil assholes" aren't becoming terrorists because they hate our freedom; they're becoming terrorists because we keep blowing them up.

And yes, we should radically overhaul our foreign policy because it's evil and fucked, not because terrorists want us to. But when asking the question, "how can we reduce the amount of terror in the world?", the answer is not, "try to kill a bunch more terrorists." It's "stop doing everything that creates and inspires terror."

You know what else I really want? Some sort of explicit statutory statement of what I understand to be the case under international law -- that there are two possible statuses for someone we're locking up: they can be a POW, with the protections appropriate for a POW; or they can be a criminal defendant. No third options.

they can be a criminal defendant should be they can be a criminal defendant with the protections appropriate for a criminal defendant.

yeah, 87 is important. Not creating new gray areas for the sake of avoiding responsibilities and/or making shit up as you go along.

Odd, LB. Would you like this explicit statutory statement to happen before of after we gut the exclusionary rule for the prosecution of these people? (And should they then be POWs or ordinary criminal defendants, in your mind?)

I thought your earlier proposal was more or less premised on their having some sort of special unlawful combatant limbo status, which would allow us to exempt them from the normal protections of the exclusionary rule. (Which was part of what I didn't like about your proposal. I don't believe such a third category should, or legally does, exist.)

One thing they really should look at is the Siegelman prosecution in Alabama. Siegelman was a Democrat prosecuted for political reasons, and there is strong evidence that there was political interference in the process, possibly by Karl Rove himself. He spent a year in jail out of a 3-5 year sentence, but they were actually trying to get the sentence increased.

I can't remember the details, but he was prosecuted on a borderline bribery offense which probably would not even be prosecuted at all in most cases, and certainly not given a long sentence. (Anyone know more?)

The fact that this was an American and not a Muslim obviously makes it a more marketable outrage in the media world of today. Karl Rove probably being involved is another selling point.

90: My thinking is that they're criminal defendants, with all the substantive constitutional and due process rights of such, innocent until proven guilty and all. But that under a tightly defined set of circumstances (and precisely what that tightly defined set of circumstances is? I'm handwaving here, but say something along the lines of "Arrested in the context of a currently ongoing war, but not qualifying as POWs".) special procedures could apply. The exclusionary rule is one I'm settling on because it makes a big difference in solving the mess the last administration got us into, and it's not really a right of the defendant to whom it applies; it only acts to exclude otherwise reliable, probative evidence. The deterrent effect that's so important for domestic policing doesn't seem likely to have much of an effect in the military context.

Which was part of what I didn't like about your proposal. I don't believe such a third category should, or legally does, exist.

I think it's arguable that such a category does currently exist.

Moving forward, we could assert that it is no longer possible to confine someone without defining their status (as one of the two), but that doesn't magically fix the problem of existing prisoners. So I think the two ideas are compatible, with the exclusionary rule dance being used as part of the process to deal with these people currently locked up with ambiguous status.

Another way to do it would be to walk through every case and define them as having always been one or the other. People will want to avoid that though, because I suspect it will in many cases mean you either have to let them go immediately (criminal defendant who has not been afforded the protections due) or fall foul of the Geneva convention (POW not treated as such). Of course, i could be out to lunch and I'm no lawyer, but it seems a reasonable reading would easily put you in this fork, for many if not all of them.

I think they've all been sitting around uncharged for long enough that we'd have to release them.

Presumably this has been said already, but gosh, guess we'll have to release them, then, won't we?

My thinking is that they're criminal defendants

Not a rhetorical question: do American criminal courts have jurisdiction over acts committed in foreign countries by non-US citizens?

But that under a tightly defined set of circumstances (and precisely what that tightly defined set of circumstances is? I'm handwaving here, but say something along the lines of "Arrested in the context of a currently ongoing war, but not qualifying as POWs".) special procedures could apply.

Isn't that basically what we have now? You're just replacing a set of special prcedures you don't like with a set of special prcedures you like better. You've still got different rules (weaker protections) for these people.

I think it's arguable that such a category does currently exist.

It shouldn't, is the thing. They should have been treated as military prisoners or civilian criminals, and reifying the grey area they ended up stuck in by making it the non-exclusionary rule category seems to me to set a bad precedent. And I think it would have an effect in a military context; I mean, it already has. That's how we got here.

I think your second option is preferable. Go through and define people as always having been a POW or a criminal defendant. Sometimes this will mean we have to let people go. But in some cases, the evidence we got from the people was obtained without torture. I'm fine with a convict-terrorist-on-mail-fraud scenario.

95: not my speciality, but if those acts are against US property or citizens, I believe the answer is "yes". Also "yes" if the acts are against interntaional law, I believe. Otherwise "no".

It shouldn't, is the thing.

Agreed, but the question remains what to do with existing cases. Your "convict-terrorist-on-mail-fraud scenario" assumes that we wouldn't have to let said `terrorist'/whatever go due to process violations even if we had good evidence to convict for something, doesn't it?

You've still got different rules (weaker protections) for these people.

Again, that's why I'm focusing on the exclusionary rule. The goal of the exclusionary rule isn't to protect the individual defendant to which it applies -- it's not as if we're saying "We violated your rights, so in return we owe you this get-out-of-jail-free card." It's a systemic deterrent to discourage rights-violating policing. I think there's a fair argument for walking away from that systemic deterrent in the (tightly defined and narrow, and I haven't done the work of making the tight definition, I just think it's possible) context of people arrested in the course of an active war, without diminishing the substantive rights of the defendants.

Just giving everyone in Guantanamo a US passport and a townhouse in Newark would also work for me, but I don't think that's going to happen. Prosecutions with a special set of procedures that still protect the substantive rights of the defendants seem like an acceptable alternative.

Could we declare the detainees as POWs and then declare that the war (!?) is over?

97: I'm okay with "They're perfectly ordinary criminal defendants, treat them as such." But I'm pretty sure, offhand, that that means letting everyone go. It's not just about torture; there are all sorts of evidentiary fuckups that would keep evidence out of a civilian court. I don't know for certain, but I doubt we have a case that'd stand up in civilian court against anyone at Guantanamo, and I wouldn't want to assume we did in discussing the options.

101 "Mission Accomplished!"

101: We're in for some serious war crimes trials for how we treated them if they were POWs.

104: Then I'm all for declaring them POWs.

102: Right. For the purposes of this discussion, I thought we were assuming the "let them all go" option wouldn't be acceptable politically, and wondering what could be done without making an even larger travesty of justice out of it.

100: so you are in favor of setting legal precedent for the elimination of the exclusionary rule for ordinary criminal defendants in cases in which the systemic deterrent effect of that rule is outweighed by countervailing considerations in the facts of the case?

I didn't love your proposal when I thought you were preserving a third limbo status for these detainees, but that's fucking nuts.

99: It depends on how the evidence was obtained. According to a friend of mine I have reason to trust, we got most of our useful intelligence information out of Khalid Sheikh Mohammed without coercive interrogation techniques. It's conceivable that some of that is useful and admissible.

I also suspect that the damage from letting these guys walk is overblown (if we can find somewhere they'd be safe.)* We know who they are, who their contacts likely are, where we'd drop them off.

100: "Active war" doesn't get you there. There's already a distinction between military opposition and civilian criminals in war zones. The administration's problem was that it tried to split the difference -- no military status (like POW) but no civilian rights (like a court date.)

*Admittedly, that's because I can't trust the pronouncement of the Bush administration of eight years of bedwetting about terrorists.

93 to 104/5 etc.

I think it's safe to say Obama doesn't want to go there, although "fuck the international treaties" is a pretty popular US stance, retroactively classifying them as POW's and then refusing to accept the implications probably has some nasty consequences for US servicepeople down the road.

107: Nope. You can tell that I'm not in favor of that by looking at my comment 63: I'd just like any law made in this context to be isolated from mainstream criminal law, rather than turning into something that could get used as precedent.

If you think that sort of isolation is impossible, you could be right.

108: It depends on how the evidence was obtained.

That's important, but it's not all that's going on. There are other reasons the case might be thrown out, totally separate from the source of evidence. It's not just what was done to these guys that is a problem, it's also what wasn't done for them (if they are criminal defendants).

110: I worry that it is impossible. We got into this mess because we decided "war zone" included "we never liked those Chinese Uighurs, go tell the Americans they're terrorists."

We got into this mess because we decided to elect an administration full of asshats.

What has Marty Lederman proposed in the past as a fix for this conundrum?

I'm going to take this as an excuse to be hopeful, for now.

115 looks like good news.

111: But if that's the case, then we're looking a revision to criminal law (for this group) far larger than "some evidence obtained through torture is admissible." That makes me less comfortable with the proposed solution.

110: I don't know what you have in mind. I don't think 37 works.

112: Yeah, the problem here is that the situation is royally fucked, and unfucking it is going to be very difficult. ("Unfucking" is one of my favorite words; I picked it up in practicing law, and it really expresses this sort of situation.) I think Soup's following me in terms of trying to come up with a least-worst solution: I'm not sure I've got the only answer, or that my idea would work, but it's what appeals to me given the constraints I see (recognizes the detainees as criminal defendants with substantive rights, but still makes prosecutions possible in cases where we do have reliable evidence). But it's not a good solution, it's just the best I can come up with.

I think there's a fair argument for walking away from that systemic deterrent in the (tightly defined and narrow, and I haven't done the work of making the tight definition, I just think it's possible) context of people arrested in the course of an active war

An active war that itself has no end date, and has spilled out to three or four countries so far. For how long do you think we should suspend due process for a class of prisoners, given that the crisis for which we're suspending it doesn't appear to be ending any time in the forseeable future?

118: What I'm thinking is that we define all people being detained as either POWs or criminal defendants. Then we define criminal defendants as falling into one of two groups: ordinary criminal defendants, and this other group... detained during the course of military action? I don't have a good, tight definition, and I'm not going to be able to come up with one today -- I am hoping that a workable definition can be devised. Both sets have the same substantive constitutional rights. The second group has a different set of statutory procedural rights, including the exclusionary rule change I'm thinking of. But still something clearly recognizable as reasonable due process.

so you are in favor of setting legal precedent for the elimination of the exclusionary rule for ordinary criminal defendants in cases in which the systemic deterrent effect of that rule is outweighed by countervailing considerations in the facts of the case?

This, I gathered was more or less the reasoning of the Court in that Herring case you linked to a week or so ago, no? (I never actually read it myself, but one of our attorneys got to impress the 7th Circuit by citing it in oral argument like the day after it came down and I got all sorts of unearned praise for being so on top of developments and calling it to his attention -- meant to thank you for making me look good, Brock!)

120: The War On Terror is horseshit, and wouldn't count -- I was talking about the wars in Afghanistan and Iraq. And if that's the definition, then a bunch of the people in Guantanamo could only be held as ordinary criminal defendants, which would mean letting them go. This works fine for me.

Lederman appears to favor moving the detainees to domestic courts. Exactly how he'd do that I couldn't say.

Balkinization's "Anti-Torture Files," a compilation of posts on four or five key topics, is sort of amazing. Just scrolling down the titles indicates the shrill descent into madness.

121: Not that I expect you to come up with an airtight definition in comments but "good, tight definition" is the thing and the whole of the thing. And as far as I understand it (unfucked is right), international law already has provisions for civilians detained during the course of military action. We already ignored those. So -- not that this is your fault -- I really worry that this would turn into "so, we didn't like those rules that applied, so we made up our own."

international law already has provisions for civilians detained during the course of military action. We already ignored those.

IANAinternational law-type L. But as I understand it, those provisions do require tribunals with the characteristics of due process, but don't specifically require that such civilians receive precisely the same process that a criminal defendant arrested outside the military context would get. I'm pretty sure my concept is acceptable under the Geneva Conventions.

(And I'm not actively attached to it -- I'm thinking of it as a fallback if "Let them all go, the situation's too procedurally screwed up to try any of them in the civilian courts," can't be made to fly.)

The War On Terror is horseshit, and wouldn't count

Obama doesn't think so, and he's the one who gets to decide what counts.

Obama doesn't think so, and he's the one who gets to decide what counts.

If so, we're fucked. Let's wait and see.

128: What do you mean, "let's wait and see"? He's said he believed in the War on Terror, back in the primaries.

Saying "I believe in the War on Terror," doesn't actually commit him to a particular position on how the law of criminal procedure should apply to detainees. We don't actually know what he's going to do in this particular issue until he does it.

129: You're reading an awful lot of still undeclared policy into that.

130: Further, I repeat actually actually actually, actually actually actually. Jesus, I can't believe I get paid to write stuff.

122: similar reasoning underneath, I suppose, although this cuts at the rule from the opposite direction from that case.

126: they are entitled to a "fair and regular trial". Your construction puts a lot of stress on the "regular" bit.

131: I'm not reading anything into it, I'm just refusing to grasp at straws in trying to convince myself that Obama is someone he's never pretended to be. He's never pretended to be any kind of civil libertarian, and he's never pretended to be consistently anti-war - go back and read his speeches to AIPAC and CANF. I see a guy who speaks in the language of American empire, using phrases like "war on terror" and "American exceptionalism" in positive terms, who voted to reauthorize the Patriot Act, who didn't just oppose attempts to censure Bush for breaking the law but like most leading Democrats was irritated by them, who voted to legalize warrantless surveillance and to give immunity to the telecoms who helped carry it out. He's surrounded himself with fairly conventional hawkish thinkers on foreign policy, as Clinton did before him.

I don't see him as someone who's naturally on my side; I see him as a politician who needs to be pressured into doing the right thing, because it's often far more profitable to do the wrong thing. When it comes to Guantanamo specifically, I see that a number of people working for him are attracted to the idea of setting up some kind of quasi-military court scheme where the cards are stacked in the prosecution's favor, and from Obama's point of view that has to look good: it would allow him to close Gitmo while putting some scary brown people behind bars. So I see this as a place where liberals have to actively put pressure on their elected officials, instead of just trusting they'll do the right thing because they happen to be Democrats.

He's never pretended to be any kind of civil libertarian,

See, this is just false. I'd have to take time I shouldn't spend today to find quotes, but remember Katherine? Lawyer, obsessive (in a really good way) on the subject of extraordinary rendition, Guantanamo, and such? She became an Obama supporter on the basis of his statements about civil liberties on precisely these issues.

There are lots of areas where I'm not terribly happy with Obama's stated positions, but I'm sure that what he's said about civil liberties is as good as anyone out there.

That said, I'm all for pressure on elected officials.

I don't see him as someone who's naturally on my side; I see him as a politician who needs to be pressured into doing the right thing, because it's often far more profitable to do the wrong thing.

No, in 127/129 you see him as someone who is on the other side.

Make the housing in Newark group housing, and film a reality show there. The fame and fortune will make the former detainees love America; omipresent cameras keep them out of trouble; TV-watching Americans learn the heartwarming lesson that terrorists are people too. Everyone wins!

No, in 127/129 you see him as someone who is on the other side.

Historically speaking, the president of the United States is always on the other side.

136 and also plus the legal teams he's assembling are very good, and strong on these issues. If asked to be John Yoo, I think most would very publicly resign.

136: And how did Katherine react when Obama voted to give himself the power to spy on anyone in the country without a warrant?

I'm sure that what he's said about civil liberties is as good as anyone out there.

And this is flat-out absurd. Even restricting ourselves to the universe of United States Senators, Obama doesn't hold a candle to Russ Feingold, who's been pretty consistently on the right side of things.

Like this. If you click through, disapprovingly and with growing distrust. Point for you.

143 to 141.

Lederman has been pretty cranky about illegal surveillance. (Scroll down to Part IV.) I don't know whether one deputy OLC counsel could stop a government determined to be awful, but Lederman is certainly no John Yoo.

So, now that we've established that Obama is the second coming of Augusto Pinochet, can we turn to the question that's been troubling me? Namely, is there some federal rule mandating that inaugural poems have to be awful?

Most poems suck? The chance of coming up with one that doesn't suck for a given occasion are small?

plus the legal teams he's assembling are very good, and strong on these issues. If asked to be John Yoo, I think most would very publicly resign

In fact, it's John Yoo's actual position -- Deputy Assistant Attorney General in the OLC -- that Marty's taking. Justice is sweet.

146: Haven't there only been a total of 3 or 4? Robert Frost did one, but I'm not sure there are others. Pretty small sample size.

Suspension of the commissions is all to the good. Let's see if they stop stonewalling on discovery in the habeas cases. (The government is the complaining party in the former, and has more leeway when it asks for continuation of the status quo. In the latter, the status quo is a new indignity, and a new violation, each and every day).

some of them have been caught all but red-handed.

To whom are you referring? And to what conduct? It's long past time to engage in hypothetical scenarios, like ticking time bombs and the like.

we got most of our useful intelligence information out of Khalid Sheikh Mohammed without coercive interrogation techniques

This may well depend on how one characterizes interrogations taken after the coercion, with either implicit or explicit threat of return to coercion. As to this question, I find virtually anyone in a position to know the factual answers completely unreliable on the moral/legal point. That said, from press reports it seems perfectly reasonable to assume that in a trial in the S.D.N.Y. KSM would take the stand, admit he did it, and that he'd gladly do it again.

To LB's general point, I think there's room for criminal trials where the holdings of Brown v. Mississippi and United States v. Verdugo-Urquidez are both applied. (Notwithstanding my disagreement with the latter decision).

It's long past time to engage in gross generalizations.

Were you by chance referring to the men caught red-handed plotting to blow up the US embassy in Sarajevo? Funny thing happened to that plot . . .

Haven't there only been a total of 3 or 4? Robert Frost did one

IIRC, Frost decided at the last minute to read a poem he'd written 20 years earlier, so it gets an asterisk. Miller Williams (Lucinda's father!) read one in '96 that I guess wasn't horrible, but just pedestrian. And I suppose "pedestrian" is a better description of Alexander's poem than "awful".

IIRC, Frost decided at the last minute to read a poem he'd written 20 years earlier, so it gets an asterisk.

He did give the new poem to JFK, though. I think the claim was he couldn't really read it (the new poem) in the glare.

Going back and re-reading Williams' poem, it starts out with potential, then gradually decelerates until it just fizzles out at the end.

154 augers well. er, or something.

This point:

"there's room for criminal trials where the holdings of Brown v. Mississippi and United States v. Verdugo-Urquidez are both applied. "

is very, very smart.

Also, I thought that the poem was pretty good, for the occasion. I liked the line "A teacher says, "Take out your pencils. Begin."

To whom are you referring?

There were people captured on the battlefield in Afghanistan in contexts that made it clear they were active Al Qaeda members.

158 -- Still in the jail? "The battlefield"? Is "membership" sufficient, in your view, to create a "red" hand?

158 -- It would be useful to be able to attach names to the people you're talking about.

What's with the scare quotes around "battlefield", Charley? It's a Global War On Terror, after all, so naturally we've got a global battlefield.

Even the battlefield cases come apart when you look at them. When I first heard about the case of the Canadian boy Omar Khadr, it was presented as "Well, we know for sure he killed an American soldier with a grenade. The only moral issue is whether we should be torturing minors. Some people actually pointed out that killing enemy soldiers on the battlefield is not a war crime, its just war. But that was it.

Now I hear the kids lawyer on NPR saying that he had photographs which indicate that Khadr was buried under rubble at the time the grenade was thrown, but that he wasn't allowed to present it to the tribunal.

Yes, Brock, and one of the greatest hits from the last Administration has to be the SG telling the Fourth Circuit that O'Hare is "the battlefield."

You have to put scare quotes around battlefield because if you actually call it a battlefield, what these people were doing is not a war crime, and in fact no different than what our soldiers were doing.

Afghanistan needs to be both a battlefield and not a battlefield for the tribunals to make sense. It is a battlefield, so Khadr can't be tried in a civilian Afghan court, but not a battlefield so that throwing a grenade at an American soldier can actually be a crime.

There were people captured on the battlefield in Afghanistan in contexts that made it clear they were active Al Qaeda members.

I just learned that that canadian teenager captured in Afghanistan might not have even thrown the grenade for which he is being charged. The JAG defense lawyer was interviewed on the radio claiming that he had photos (just recently admitted into evidence by the court) that the kid was actually trapped beneath a building's-worth of rubble at the time of the attack.

That was a case where I had accepted the facts the government gave because it seemed so self-evident that the given facts didn't justify the kid's being detained for these six years that surely the government wouldn't admit the weakness of their case unless it was true. And as usual, the Bush administration managed to astonish me with their futile mendacity none the less.

160 - I'm working from memory, and seeing as this is a discussion in the comments section of a blog, I'm not feeling particularly bound to invest the time and energy to dig up specifics. If you are convinced that none of the Gitmo detainees are sufficiently tainted to warrant the phrase "near red-handed" I'll not dissuade you.

Also, note "active Al Qaeda membership," not just "membership."

"Those accusations don't get you very far," Luttig replied, "unless you're prepared to boldly say the United States is a battlefield in the war on terror."

Clement answered, "I can say that, and I can say it boldly."

No, it's a battlefield, but there are no opponents.

Wow, total and complete pwnage.

We can all agree that love, at least, is a battlefield.

169: The mineshaft is a battlefield.

Wait, lemme see if I can reconstruct this. The JAG wanted to enter the photos as an argument that he needed a specific witness's testimony (that the defendant was buried in rubble at the time of the attack), and the judge was so nervous about allowing the media to see the photos on the court's screens that he disallowed the photos but conceded the witness anyway.

Right, it was on TAL.

If there's one thing I learned from old-school semiotics, it's that if everywhere is a battlefield, then the battlefield is nowhere.

And poof, David Addington vanishes in a wisp of methane!

Even if we can't try Omar Khadr in a civilian court, can we at least try David Addington?

Fair enough, T. You're certainly free to argue that people should be kept in jail indefinitely based on half remembered half truths.

I don't say no one there is chargeable with a crime. I'm just tired of seeing people waive over towards 250 disparate individuals and say 'well, some of them planned the 9/11 attacks.' So what? That doesn't mean diddly with respect to the 248 who didn't.

The oath of office recognizes that the U.S., too, is a battlefield of the War on whatever it is we're at war with.

David Addington vanishes in a wisp of methane!

Mostly I just smell brimstone when he is around.

See, that's exactly right. The fact that these prosecutions are so very politically charged makes me want to be extra-scrupulous about ensuring that proper procedural protections are followed. Whereas the general thrust of the thread seems to be that, since they're so politically charged, maybe we can go ahead and weaken the procedural proections just in this instance.* While I'll agree that might be politically convenient, as a matter of justice isn't that exactly backwards?

*And I still don't grant that it would be nearly as easy to cabin the precedent as has been suggested in this thread.

I'm just tired of seeing people waive over towards 250 disparate individuals

Ah, but it's so much easier to pretend they aren't people if you lump them together.

I like LB's US passport + a house in Newark approach.

I'm kind of serious about the 'passport and a townhouse in Newark' bit. For people we've imprisoned for over five years with no real basis for it, I think that's the least we owe.

We can't tho. I haven't reread the treaties in awhile (3 years), so I'm only 98% sure, but if we're going to let them go free, we are obligated to return them to their country of origin.

118: What I'm thinking is that we define all people being detained as either POWs or criminal defendants.

Well, as near as I can tell, their actual status is that they are properly under Afghani law and nothing has been proven about them. When the Busies got hold of them in Afghanistan, they were were de facto POWS. They were then never properly classified or processed under the occupied country's law, and then they were NOT extradited. (That is, they were removed illegally, but not processed through the Afghani legal system and then (legally) extradited.)

They have to go back and the whole thing (to comply properly with treaty) has to be started over from zero.

162: When I first heard about the case of the Canadian boy Omar Khadr, it was presented as "Well, we know for sure he killed an American soldier with a grenade. The only moral issue is whether we should be torturing minors. Some people actually pointed out that killing enemy soldiers on the battlefield is not a war crime, its just war. But that was it.

He's an "enemy combatant" (treaty version, not Bush version) until proven otherwise, so he's a POW and he also has to be returned.

max
['Do not pass go, do not collect 200 dollars.']

I'm kind of stunned by the idea that people in this extremely small, unrepresentatively liberalish section of America really believe that there are guilty people at Guantanamo and that we have a prayer in the world of discerning which ones they are and what they are guilty of.

I'm basically speechless. And finding myself mostly in agreement with IIR, bordering on feeling mcmanus-like again, and kinda shocked at the contortions being attempted to justify trying these people.

and kinda shocked at the contortions being attempted to justify trying these people.

That isn't quite what's going on here, afaics.

And that we have a prayer in the world of discerning which ones they are and what they are guilty of.

This is the sticky part.

The best possible thing would be to let them all go, with some form of reparations. And to loudly and publicly repudiate the process that put them there, and draft up legislation that would make it nigh impossible to happen again.

I agree with LB, thought, this isn't likely to happen. Considering what is plausible, there are more and less damaging contortions things could go through, which I'm pretty sure is what she was trying to explore (less damaging).

You're certainly free to argue that people should be kept in jail indefinitely based on half remembered half truths.

And since I didn't argue for anyone being kept in jail indefinitely, but rather for a case by case examination of the facts, I'll note that you are free to smear by implication in the service of self-righteous posturing.

if we're going to let them go free, we are obligated to return them to their country of origin.

Bah! Notwithstanding the total distortion of the law in their cases to date, there's no reason we can't pass a bill making them all US citizens, effective immediately. Problem solved.

I'm only slightly kidding.

176: Yeah. I honestly don't know the details, but it'd be funny (in that 'grimly horrible' sense of funny) if even with a loosening of the exclusionary rule, we didn't have reliable evidence enough to try anyone. At which point, I dunno, townhouses in Newark all around! (Seriously, I don't know we aren't talking more about reparations for people we've wrongfully imprisoned. Setting them free seems woefully insufficient.)

185: Right. We have to allow them to return to their country of origin if they want to, but I can't see how that stops us from giving them a US passport and a house in Newark.

I remember a conversation I had in the immediate weeks following 9/11 with a law professor, a former prosecutor in the SDNY who had worked on the 1993 WTC bombing case. The professor was dead certain that the criminal justice system simply "would not work" to deal with the threat, mostly because of the supposed expense and difficulty of bringing the cases to trial and the potential for interference with military issues. In retrospect, of course, that analysis was completely and utterly wrong.

I think we need something along the "truth and reconciliation" model. I'd like to know where everyone was picked up, why, and what was done to them. If everything is on the table, we can think about forgiving captors and captives their crimes. We will at least, have a better sense of what they were. I think, to our shame, we will find the captors guilty of worse crimes, save perhaps only Khalid Sheik Mohammad.

Considering what is plausible, there are more and less damaging contortions things could go through, which I'm pretty sure is what she was trying to explore (less damaging).

Yeah, I'm on shaky ground here on account of not being a lawyer or anything, but I think this is entirely, exactly wrong. The precedents set back in the '60s with Miranda and so forth IIUC represented a massive shift in the cultural understanding of how we treat criminal defendants. Then we had a few generations of crime melodramas, such that the whole world now knows the American model of adversarial justice, defense lawyers, impartial judge, jury of peers, etc. etc. The Supreme Court didn't say, well, we have a lot of bad guys in prison that might not be there if they had been told they had a right to counsel, so let's not admit there's a right. They said there was a right, and society adapted.

Let Obama's team, blessings on them, come up with the least-bad way of disentangling this. The rest of us, courts and Congress included, ought to be fighting like hell to hold their feet to the fire on due process and every other constitutional element that they just publicly vowed to uphold.

but rather for a case by case examination of the facts

Cite?

189: good point

but I think this is entirely, exactly wrong.

I'm not sure exactly what you're objecting to. The idea that the (my preferred) approach of letting them all go is unlikely to happen? The idea that, given some prosecutions will continue, there are ways to approach this that are least damaging to the legal system? The idea that we ought to discuss the ramifications? The idea that this is where LB is coming from (of course, I'm not attempting to speak for her)

191: This thread. I'm done playing your stupid game.

Folks might want to look at the petitioner's brief in Al Marri, filed today. The response will be a good early test of IIR's theories of the Obama administration.

(I don't know if it's online yet, but I'll send a copy to anyone who wants one).

189 is good. I think there is actually hope for something like that somewhere down the line. Probably not right away, unfortunately.

a case by case examination of the facts

I do not think we share a definition of the word "fact" in this context. Where is minneapolitan when I need him? Remember that whole long thread we had about the gap between reality as experienced by a neighbor/observer of an altercation, and the later police and media reports about it?

What is a fact? Is somebody's age a fact? What if he has no birth certificate? Are we going to admit dental evidence? Are his actions a fact? What if the only testimony to those actions is an American soldier or official in whose strong self-interest is is to misunderstand or proactively lie? Are his words a fact? What if the words are provided by some incompetent translator who doesn't grasp sarcasm or irony in the relevant language?

As far as I'm concerned, we've committed 6+ years of torture on the people imprisoned in Guantanamo, just based on the publicly disclosed facts about isolation and forced feeding. (We commit it against US prisoners in solitary confinement too, but that's a separate argument.) I am not interested in subjecting my fellow human beings to more of that while we sit around discussing "facts."

The legal system is actually set up to resolve people's different understandings of the "facts" and to do so on a case-by-case basis. It's not perfect at that, but nothing else is, either.

really believe that there are guilty people at Guantanamo and that we have a prayer in the world of discerning which ones they are and what they are guilty of

These are hugely different to me. I believe it's entirely possible that there are people at Gitmo who've committed terrible acts. Whether that makes them legally guilty of something that can be proven is a separate issue, as is whether there's any standard of "legal" anything that can be applied at this point.

That said, there are clearly a set of Gitmo prisoners who are known to be guilty of nothing; they were turned in for a reward or the like. Those cases need to dealt with within 30-60 days, or whatever our esteemed Unfogged Gitmo lawyers say is possible. If there aren't countries that will accept them to which they want to go, they get the townhouse in Newark, plus huge damages and free lifetime medical care.

When I say "dealt with," BTW, I mean the person is back with his family, check and Medicare card in hand, not scheduled for another hearing.

I do not think we share a definition of the word "fact" in this context.

Actually, given your next paragraph, I think we do. The unreliability of memory, conscious and unconscious bias, all these things play into our understanding of the facts. The best we can do is muddle through and try to come to an approximation of the truth as seen by a hypothetical objective observer.

Where we differ is on what that best approximation would look like given the limited amount of information we have in hand. I think that it shows a set of prisoners some of whom are completely innocent, some of whom are violent murderous thugs, and some in between. All have been subject to treatment that is shameful in the best cases and unambiguous crimes against humanity in the worst.

Speaking of appropriate penalties, do any countries that practice capital punishment allow for death by shoeing? I think W should be sentenced to have shoes thrown at him until he is dead.

I'm not sure exactly what you're objecting to.

The assumption that we have to try these people, that there is any meaningful way to try them fairly, and that it's appropriate for us as thinking members of the citizenry to jettison longstanding pillars of our legal system because there's just no other way.

The idea that the (my preferred) approach of letting them all go is unlikely to happen?

No, it doesn't refer to that. I'm agnostic on that question because I think the ground could shift very rapidly depending on how the public is pushed, and pushes its leaders, to see it.

The idea that, given some prosecutions will continue, there are ways to approach this that are least damaging to the legal system?

I agree with that idea but not the assumption. IF prosecutions continue, there certainly are ways that are more and less damaging to our system and to the people living within it.

The idea that we ought to discuss the ramifications?

It feels to me like granting the stupid ticking-time-bomb scenario and then starting your argument.

The idea that this is where LB is coming from (of course, I'm not attempting to speak for her)

This, for sure. The person whom I'm charitably assuming is LB's evil twin started off in 28 by announcing that she was willing to get rid of the exclusionary rule, which to me is a lot more inflammatory than just saying "Gosh, I just cannot figure out how we are going to meet the twin goals of having a public and fair trial of people who might be guilty, and not encouraging or condoning the using of torture against them."

202: Witt? I think?

It's been me, not my evil twin. I'd like to see the use of torture discouraged and not condoned by prosecuting people who tortured and who ordered torture. (Said so, up above.)

The assumption that we have to try these people, that there is any meaningful way to try them fairly, and that it's appropriate for us as thinking members of the citizenry to jettison longstanding pillars of our legal system because there's just no other way.

Those pillars were jettisoned several years ago. Ideas on how to prop them back up are good.

I don't think the assumption is being made. I think it's quite likely that the current administration won't actually step up on this one (for whatever mix of reasons) and I'm curious about the ramifications. I don't think there "we have to try these people", I'm also skeptical about the existance a meaningful way to try them fairly if it's tried. Discussing the latter is hardly abandoning the former.

202 was me.

I think that it shows a set of prisoners some of whom are completely innocent, some of whom are violent murderous thugs, and some in between.

That's the set of people I see too. But you said:

didn't argue for anyone being kept in jail indefinitely, but rather for a case by case examination of the facts

And that's where I just boggle. An examination of the facts is what a prosecutor does when deciding whether to bring charges. We've indefinitely kept people imprisoned for the better part of a decade and precious few prosectuors have managed to even spell out accusations, much less file charges. How much longer are you willing to wait? Or are when you said "examination of the facts," did you mean a trial rather than a decision of whether to prosecute?

205 - I mean something along the lines of having a prosecutor determine if there's anything prosecutable. Not a lawyer, so don't know the ins and outs, but it ought to be possibly in fairly short order to sort the prisoners into categories of "release now" and "we need a bit more time to figure this guy's case out" - I'm willing to bet that the first category would be at least a third of the prisoners, if not more. Once that's done, invest the necessary time and energy in whittling down the second category into those who can be prosecuted and those who have to be released.

There are people at Gitmo who could be returned to their families tomorrow based on the evidence we have in hand. What's needed is someone to sit down and look at it and come to the obvious conclusion.

All right, final comment for now.

Those pillars were jettisoned several years ago.

Really? I was not under the impression that the exclusionary rule had been formally jettisoned, although of course there were assertions by the bucketful from administration officials about how everything was different and they needed complete freedom.

203: I wasn't saying you were opposed to prosecuting torturers, LB. I was saying that your 28 waved away a legal principle that I think is important, rather than explaining what your goals were and why you were tempted to make such a sweeping concession.

(It probably seems more sweeping to me because the way that RICO and now terrorism laws are being blanket-used against all sorts of other crimes makes me confident that whatever rule we come with "just for these few cases" will soon be widely applied.)

I appreciate 206 and don't really disagree with it, thought it confirms my sense that we have a very different idea of what has happened to date in this process.

-"townhouse in Newark" is the new "democracy for Iraq".

-there is no way whatsoever to try/consider trying these people that does not result in a huge proportion of people who should never have been there in the first place getting tried/convicted for basic ass-covering purposes. there is no level of good-natured procedural precision that can prevent this.

And since I didn't argue for anyone being kept in jail indefinitely, but rather for a case by case examination of the facts, I'll note that you are free to smear by implication in the service of self-righteous posturing.

There's some self-righteous posturing going on here, but it's not coming from the guy who actually knows what he's talking about concerning Guantanamo. You really ought to consult the archives before trying this sort of bullshit argumentation with CC, who's being rather patient about the whole thing.

The Supreme Court didn't say, well, we have a lot of bad guys in prison that might not be there if they had been told they had a right to counsel, so let's not admit there's a right. They said there was a right, and society adapted

Actually, much of the adaptation has come in the form of figuring out ways to get around Miranda.

NPH - please quote where I argue for indefinite detention. I admire you impulse to defend your friend, but he ascribed to me odious views I do not hold. Do you think knowledge of Gitmo makes that OK?

I think what he ascribed to you were factually wrong views, which you then asserted you had no need to check in a mere argument on the internet.

||

Israeli soldier shoots three children, ages 2, 4 and 7, at close range.

|>

How much time, Mr. T., do you want to allow for this new review? How would it differ from the 7 years of deciding which cases can be prosecuted (using system more favorable to the government than allowable) that's already been spent?

'Charge or release' -- what I take to be your position here -- is way better than the previous government's. If there's not some kind of time constraint, if it's going to be allowed to go on for years and years, though, it's not meaningfully distinguishable from indefinite detention.

The myth of the third category* is a dangerous belief -- dangerous to all of us. (Really, the Al Marri brief addresses this very well, showing that the government's position on indefinite detention applies directly to citizens of the US). people are as free to hypothesize about membership in the third category as they are to concoct ticking timb bomb scenarios. neither ought to be a basis for policy, though, unless there's some actual factual basis underlying it.

* Too 'dangerous' to release, not criminal enough to charge.

214: In the interests of peace, while I agree with you substantively, Tologosh did refer to determining who could be released rather than charged in 'fairly short order'. I understood that to contemplate a defined short period for the new administration to review files.

Too 'dangerous' to release, not criminal enough to charge.

See civil detentions of people who have committed sex crimes.

Seriously? How does that work?

Seriously? How does that work?

Assuming this is to 216 you basically get them committed to mental institutions. After they have served their criminal sentences of course.

218: Except, of course (at least in my state) those "mental institutions" look remarkably similar to the prisons. Some might even say, indistinguishable.

I feel all clueless, but there are different standards for involuntary commitment if you've been previously convicted of a sex crime? And different mental institutions? That's just wrong.

Indeed, but the U.S. Supreme Court thinks it's okay. Someone against Kansas, if I recall correctly. I'm going to try to find you a link.

Here's a link to the Illinois Act.

And here's Kansas v. Hendricks.

Holy smokes, 222 is some depressing reading. Thanks, Di, I guess.

Except, of course (at least in my state) those "mental institutions" look remarkably similar to the prisons. Some might even say, indistinguishable.

Makes sense, in a warped sort of way, since they're mostly serving the same group of people.

[OK, "mostly" may be a bit of an exaggeration. Depressing anyway.]

A law review article on Kansas v. Hendrics saying it could apply to drug users.

How much time, Mr. T., do you want to allow for this new review?

Exact number, I don't know. I assume that competent and adequately supported attorneys motivated to bring about closure and with cooperation from military authorities ought to be able to move things along fairly quickly. I'm also assuming that one of the reasons it's taken so damn long is that at least some of the conditions above haven't been true under the previous administration. Once JAG officers realize that doing their job won't result in Dick Cheney sending someone down to ruin their careers and possibly lives I suspect it'll be a lot easier to get things done.

The most likely hangup is IMO going to be ass-covering from the interrogators, so it may be necessary to give them immunity in the interests of getting things done. That'll go over like a lead balloon in some quarters, but IMO the real targets ought to be higher up the chain of command. Seeing General Miller in cuffs would be nice, f'rex.

Oh, and LB is correct in 215 - I'm talking about a quick sort to release the obviously non-chargeable, with a slower sort for the more difficult cases.

Post at Scotusblog on the Al-Marri brief . PDF of the brief itself from the ACLU here.

Really? I was not under the impression that the exclusionary rule had been formally jettisoned, although of course there were assertions by the bucketful from administration officials about how everything was different and they needed complete freedom.

Yeah, really. The executive didn't just make assertions, it acted on them, so far with broad based explicit support. So until this is formally rejected, and preferably codified into law to explicitly disallow it, yes the pillars aren't standing. It's not a complete collapse, of course. It is a fundamental shift though. Just saying "oh, it doesn't affect many people/US citizens/whoever" doesn't make it any less fundamental.

sorry, "explict" s/b "implicit" support, of course.

226 -- I really don't understand what you mean here. Do you think they haven't been able to review the data and decide which people to charge? Or that interrogators are resisting putting data into the system for this purpose? What incentive did the prior administration have to avoid charging people? They charged KSM, they charged OBL's driver, they charged the teenager who threw a hand grenade (or not). They reviewed potential cases closely in the wake of the Circuit decision in Hamdan (July 2005) and then again in the wake of the MCA (Sept. 2006). SFAICT, all the incentives in the prosecution shop were in favor of bringing cases, and indeed the legal advisor to the convening authority ended up getting screened out of cases for his zealous pressure to move forward.

They've just completed a pretty comprehensive review for 200 or so of the prisoners. In the last 6 months. They know perfectly well that nearly none of the people not already indicted can (or should, the proper word to use here) be charged with a crime: but have dredged up every stale and/or silly "fact" they can find to justify detention.

217 -- "Slower"?

231b -- "justify detention" is not the same as 'charge with a crime"

231c -- 227.

Heh. 231c actually worked good to 217.

231 - I'm assuming that the process as conducted under the Bush administration is so riddled with flaws that it needs review. Some of that can be quite quick, leading to immediate releases. Some will be trickier (hence slower). Taking your 231.2 as gospel for the sake of argument, that'd mean the ones not charged get shipped home and the ones charged get a review of their cases.

Practically speaking, the Bush administration approach has been so overwhelmingly biased against the prisoners that I'm inclined to think it likely that anyone not yet charged would walk under any but a kangaroo court. I'm only not explicitly taking that stance because I don't know what I don't know.

Jesus Christ New Haven is freezing. If anyone wants some pizza, I'm in Modern Apizza on State trying to restore feeling to my arms.

Plunging them up to the elbow in the nearest calzone is probably your best bet.

I don't want to get shot by some Italian. Then again, I don't think I'd feel it till tomorrow.

You may wish to investigate this new-fangled invention called the "sleeve", Gonerill.

Practically speaking, the Bush administration approach has been so overwhelmingly biased against the prisoners that I'm inclined to think it likely that anyone not yet charged would walk under any but a kangaroo court.

I agree with you, if you're talking about a criminal court. The problem comes when we're talking about non-criminal prisoners and processes. All the public discourse from the government -- and the draft EO floating around from the new Admin -- talks about them in the context of the third category (as if it exists). But this isn't the government's litigation position: it seeks to justify detention under the law of war, whether someone fits the third category or not. That is, it is seeking to win a judgment from a court that allows it to hold a Taliban private, without reference to whether he did anything "wrong" or illegal, or whether he's "dangerous" on any objective scale. It seeks justification to hold supply clerks qua supply clerks.

Maybe this will change. One always hopes that IIR is wrong about such things (although he, she, or it is frequently right).

Pizza ovens. They'll let you stand by them, I bet, if you ask nicely.

I brought all the sleeves I have! They're not working!

Can I interest you in a slanket?

Or you could wrap yourself in wet towels and climb into the oven.

Mmm, Modern. Now I'm hungry.

Pizza ovens. They'll let you stand by them, I bet, if you ask nicely.

You do want to make it clear that you're not a confused Tammy Wynette impersonator.

I've been following this thread but have had trouble getting into the mood. I have definite things I hope for, not terribly optimistically, but some of the things people are talking about strike me as overoptimistic and too legalistic.

What I hope for is prosecution and sentencing of the higher-ups, which primarily means Cheney, Bush, and Rumsfeld, and maybe Ashcroft, Wu, and Gonzalez. Without that, a lot of other stuff is meaningless. With that, I'd also hope for a lot of steps to make sure it doesn't happen again, in terms of rewriting procedures, passing new laws, firing people, etc.

As far as undoing the wrong, it's impossible. These people have spent five years in environments carefully designed by psychology PhDs for the purpose of destroying them as human beings. (Even normal imprisonment is destructive).

In an ideal magic-wand world I'd release at least 90% of them, give them reparations, and take steps to find them a place to live somewhere. If there's hard, prosecutable evidence against some of them (10% at most, I'd guess) I'd prosecute. If not (because of tainted evidence), I'd release them too.

The ones who are still viable will probably return to the fight, but so be it. The other side has lots of manpower anyway, and it's not like these guys are superhuman criminal geniuses or anything, even though the bedwetters want us to think so.

I know nothing about the specific legalities. It's a funny question to me, because so far we've been making up law out of thin air. The "illegal combatant" precedent is ludicrous for almost all of the detainees.

Ultimately the decision will be made on the basis of domestic political considerations within a notional legal structure which has been useless and inoperative so far, with certain reservations based on our desire to avoid conceding anything actionable.

My starting point on this is two-fold:

#1. There are precious few crimes for which half a decade of torture isn't just full but excessive punishment. Even really guilty evil shits have earned release with time served and then some.

#2. My biggest concern is stopping the conservative machine from getting another strategic victory. As nearly as I can tell, they care entirely and only about whether they get what they want. Shame never enters into it - they have no concern with what we masses think of them. So the only thing that can affect them is not letting them have something they want. I think any effort to try to fix their wrongs will strike them as a victory, and that the only suitable response is to acknowledge it all as a disaster and see about how to usefully compensate all the prisoners after we've set them all free.

Half the detainees probably have diabetes now, anyways. Being under American care can't have been all that good for them.

"Jihad time out, Jihad time out! I have to check my blood sugar!"

What I hope for is prosecution and sentencing of the higher-ups, which primarily means Cheney, Bush, and Rumsfeld

That is not going to happen. Part of the foundation of a stable democracy is the notion of leaving office voluntarily. That means getting prosecuted later for official acts is not on. They'll perhaps nail some major, captain or CIA/Blackwater contractor but that's about all.

The Hague? It is to laugh. It's for small time ex-despots too stupid to get out while the getting was good.

239: I pretty much agree. On that note, 242.

248: That's one of the reasons why this whole exercise is a waste of time. American is on the hook for Guantanamo forever. Guantanamo R us.

Nation-states are like that. It's not like the USA is an especially bad nation-state. In Africa the Belgians have an enormous skeleton in their closet.

I've been following this thread but have had trouble getting into the mood.

Words for the ages.

Can I interest you in a slanket?

They're very practical you know.

I see how it is. When he's in Palo Alto, nothing. But as soon as Gonerill is back on the favored east coast, it's all "oh woe is me oh poor me someone please come and help me warm up!".

When he's in Palo Alto, nothing.

This is just a special case of "When anyone's in Palo Alto, nothing".

Home now, to see that my lurker friend who I cannot convince to comment here has sent a link to this crisp, clear plan for closing Guantanamo from the esteemed Center for Constitutional Rights. (Link goes to web page with summary; plan itself is only 4 pages of bullet points.)

I'm sure there are other plans out there, but this one seems about as much as one can hope for in terms of concrete explanations and details.

Poor frozen desert boy.

It's OK,I'm warm now.

If there aren't countries that will accept them to which they want to go, they get the townhouse in Newark, plus huge damages and free lifetime medical care

And round-the-clock police protection. Without it, the U.S. wouldn't necessarily be any more in their interests than Afghanistan or Albania as a place of asylum.

Can I interest you in a slanket?

I mail-ordered an actual old-man-style woolen lap blanket and have been eagerly awaiting its arrival, not having realized until now that it was in fact backordered until the day after tomorrow. Woe!

OK, it is 20 degrees in New Haven. It is a bit chilly there at worst. I am beginning to wonder about you guys. Is this blog frequented by here by undiscovered cold blooded humans?

OK, it is 20 degrees in New Haven.

Here too, though it was much colder this weekend (you may recall the ARCTIC BLAST). But more saliently, we are cheapskates who don't heat our house to the point of perfect comfort.

Also, I feel that if it is windy, 20° can certainly qualify as good and cold. If one fails to have have a warm hat, gloves, socks, and scarf, of course, the effect will be compounded.

Here in Texas, 20 degrees qualifies as "freezing one's ass off", even with a slight wind.

Also, I feel that if it is windy, 20° can certainly qualify as good and cold

There is a 1 mph wind in New Haven. Either Gonerill actually has no sleeves or he is doing something wrong.

the townhouse in Newark
when i first came here i was very surprised that people, even foreign grad students would talk about how Newark is the poorest place in the US, with the highest crime rate, it's like the war zone and ghetto, bad neighborhoods, nobody wants to libe here etc pretty despisingly
so i wonder whether the suggestion of the townhouse in Newark sounds maybe that, something ironic and kinda even like not sincere, something like pretty even match for the unfortunate prisoners, surely it could not be brooklyn or hollywood, or whatever, they would be just grateful for any, i don't know how it's called, reparations
i mentioned that coz the thread mentions it so many times

v

Gonerill is on record as saying that weather chauvinists are the worst chauvinists, but he was just trying to intimidate me and keep me from saying that he's an effing weenie. Nice try, buddy.

if anyone wants some pizza, I'm in Modern Apizza on State trying to restore feeling to my arms.

But if you want a biscuit, you're on your own.

There is a 1 mph wind in New Haven.

Actually 9 mph per NWS, and as high as 15 mph with gusts to 21 today at Bridgeport (they don't do the daily summary for New Haven).

[Late. Oh, well.]

Bah! Notwithstanding the total distortion of the law in their cases to date, there's no reason we can't pass a bill making them all US citizens, effective immediately. Problem solved.

Sigh. Ok. Lemme make myself really really clear, which means I gotta go back to first principles. Jurisdiction is the first thing that has to be dealt with so:

For example: If there a Mexican citizen, and that citizen is in Mexico, and he kills another Mexican citizen but has not yet been charged - (I stipulate here that this person is a bad man and really did commit the crime in question - but legally the offense is still 'alleged') - the United States has no jurisdiction over the crime, no matter what weirdness Congress gets up to. If the US then sends a military officer into Mexico (undercover), catches the bad bad bad man and drags him into the US so he can be charged with a crime, it would be an illegitimate action in service of an illegitimate claim to jurisdiction. Mexico would then have every right to a) demand the return of its citizen, b) demand the officer in question be extradited to Mexico to face kidnapping charges and c) would have a legitimate grounds to declare war on the United States if conditions a) and b) were not complied with immediately.

Example two: Same situation. A Mexican citizen kills another Mexican citizen in Mexico. But this time, said bad bad bad man legally travels into the United States afterwards. The US picks him up at the behest of the Mexican government. The US would have no grounds to charge the man with anything, unless he committed a crime in the US. If he had committed a crime in the US, the US could then charge, try, convict and imprison the man, and then return him to Mexico. Otherwise, they would need to extradite him to Mexico immediately, unless there were unusual circumstances that would prevent extradition.

Now I know quite well that the US (particularly under the two Bush administrations) had tried to play fast and loose with the concept of jurisdiction, but the attempts to extend American jurisdiction into foreign nations by fiat strike me as utterly illegitimate.

All the above would apply in peacetime. In wartime, the situation would remain unchanged, according to the existing treaties we have. (Yes!) That is, if a crime (under American criminal law) is committed in a foreign country governed by a power we are at war with, the US civilian and military courts have no proper jurisdiction over the crime. The only time the courts would have jurisdiction over the crime would be if the person committed the crime in the US proper or in an American (de jure or de facto) extraterritoriality or if the elements crime itself involved an intrusion upon those areas (such as some sort of cyber crime). So if a crime was committed in a foreign country the only proper venue for charging the crime would be in the courts of the foreign country where it occurred... IF it was a crime in that country.

If the US invades that country (because the US is at war with the foreign power controlling the country), then according to treaty, as the occupying power, the US assumes the governance of the country in question, and governs it (in terms of civilians) as though the US administration were substituting for the government of that country. Meaning that a crime committed in that country while that country was occupied by the US would still be under the jurisdiction of that country's criminal courts. Fighting the United States is not, in and of itself, a crime. So under treaty, if American forces capture a fighter they must make a determination of that fighter's status: POW, enemy combatant (all the rights, none of the privileges of the POW), or other, which means a civilian of some sort. Possibly a civilian who could be charged with a crime. The military tribunal must be properly conducted according to internationally accepted standards and it must occur before anything else happens. If a captive is (properly) determined to be a POW or enemy combatant, the clock basically stops on prosecution for crimes committed previous to being captured. (That's how it happened in WWII. Nobody got charged until after the war.) The clock only restarts when the war is over. The exceptions to this involve spying or violating the laws of war on the battlefield. In those two instances, they still need to sit a tribunal and make a determination as to status. It should go without saying that POWs are supposed to be treated well during their internment.

If someone is captured while committing a crime in occupied territory, they can be charged immediately by a court operating under the laws of the occupied power in occupied territory (the occupying power can issue regulations to govern the occupied territory). They can't bloody well be charged by the courts of the home territory of the occupying power for crimes committed in violation of the rules of the home territory. The accused is not present in the occupying power's territory to commit a crime in the first place. So, as far as these guys in Gitmo are concerned, and as far as I have heard, NONE of them were classified by a proper tribunal and none of them were properly extradited into the jurisdiction of American criminal law as administered by American courts.

The Bush legal theory (apparently) was that a captured fighter could be declared a 'terrorist' of some sort, and immediately removed from Afghani legal jurisdiction into some kind of legal no man's land where no laws applied. So, of course, they couldn't have been extradited properly, since they were extradited to nowhere. Ergo, while any given corpus may physically be under American jurisdiction, for any other purpose, the persons in question are still under Afghani legal jurisdiction and the only entity that can deal with their cases (if there are any cases to deal with) is a properly constituted Afghani court OR a military tribunal operating IN Afghanistan.

So I don't see anyway to come into compliance with the treaties we have signed except by immediately returning all prisoners to Afghanistan and then proceeding to (quickly) classify them and shift them where they need to go. (In the case of someone we wish to charge with violating American law we would need to say 'Mother may I' to an Afghani court and said court would be completely within its rights to say 'No, you may NOT'.) I would expect that an (honest) Afghan court would, in most cases, immediately come back with 'invalid charge' or 'not guilty' or 'time served', so most of these guys should go free pretty quickly. In any event, we are obligated to send them back, or we are continuing to perpetrate the bad act(s) of the Bush administration.

So, back to

Bah! Notwithstanding the total distortion of the law in their cases to date, there's no reason we can't pass a bill making them all US citizens, effective immediately. Problem solved.

That's fine, but trying to take a man who has been captured, (possibly illegitimately) charged, thrown into a dog kennel, and continuously physically and psychologically tortured for seven years, and place him into a home in the United States would be psychologically catastrophic. Having made a damaging psychological adjustment to surviving in a cage, and then being forced to make a new, massive adjustment to living around a bunch of Americans while being essentially totally isolated socially (no family, friends, or people who spoke my language) might very well induce psychosis in many of these people. (Again, during WWII, many concentration camp inmates were kept in the camps until they could be nursed back to health and to ensure their safety.) If I were in their shoes (or say, if I had been captured by the Chinese) and I had been indecently locked up, tortured and otherwise treated badly for years on end, the very last fucking thing I would want to see more of is fucking Americans. I would not want to fucking see, fucking hear, fucking smell, fucking talk to, fucking interact with, fucking be around or otherwise fucking engage with any fucking American at any fucking time for the rest of my fucking life. The only fucking thing I would want to do would be to fucking GO HOME. Anyone trying to prevent that would not be a decent fucking person in my book.

So, for legal, moral, and psychological reasons, the only way I can see to proceed is to immediately send all these guys back to Afghanistan. Not tomorrow, yesterday. And if some of them must be charged (with what?) they should be charged in Afghanistan, and supplied with proper Afghani legal representation. Or placed in decent POW accommodations and accorded full rights and proper treatment therein until the war is over. (Is it over yet?)

(Looks back: ok, that seems clear enough. Don't take any of it personal.)

max
['Bleh.']

I suppose there are rules of engagement for squashing an "illegal combatant". If combatants are
not to be tried as criminals, but returned to the battlefield as warriors, and shocked and awed to a
crisp, is that better than a Newark-based Running Man (*) scenario ?

(*) Underrated movie.

Um, Max? I think we're talking about the weather, dude.

Max, you're trying to be reasonable and fair and work within the bounds of law. Would have been nice.

I am not quoting all of 269, but I understood LB's passport and a town home to be in reference to the problem that we had people that we didn't want to charge with any crime, but that the country they are a citizen of wouldn't take them back. So there isn't a question of jurisdiction since they aren't getting charged with anything. It would be great if we could just send them back to Afghanistan or wherever, but they won't take them. So LB's option was that since we fucked them over we should take them.

As for the people we do want to try you are probably correct.

when i first came here i was very surprised that people, even foreign grad students would talk about how Newark is the poorest place in the US, with the highest crime rate, it's like the war zone and ghetto, bad neighborhoods, nobody wants to libe here etc pretty despisingly

People also talk that way about New Haven. Or, for that matter, Hyde Park. (Maybe not now that Hyde Park is officially Obamaland.) People are ridiculous.

I had a nice walk in New Haven early this morning. It wasn't that cold.

269 is so great I hesitate to say anything at all. However, per 273 and the comment way upthread about the rather miserable lives that the Uighers in Albania are consigned to, I would point out that the US government as well as our populace contains multitudes. We contradict ourselves. At the same time as we have been merrily torturing people all over the world, we have also funded centers for the survivors of torture, some of which are staffed by the most extraordinary mental health clinicians I have ever been privileged to meet.

So yeah, I wouldn't blame any prisoner who never wanted anything to do with the US ever again. But if there were some who couldn't go anywhere else, or were too broken in spirit or body to be ready to decide where to go and what to do, I still absolutely think they should get US citizenship and lifetime support. In full recognition that the most loving and nurturing psychological care imaginable will never restore to them what has been lost.

Max, plenty of prisoners were arrested in other places. But no matter, the situation in Afghanistan has changed materially since men were captured there: now, the US can't take people there without the permission of the Afghan government.

Taking Musharraf at his word, the folks arrested in Pakistan were turned over to the US with the approval of the Pakistani authorities. Not that this should be surprising: that country had a change in attitude towards Arabs who'd come to participate in the Afghan civil war (on the side of Pakistan's ally, against the faction supported by India) after the US was dragged into the war.

I get that a lot of folks don't really appreciate the point of US policy with respect to the men in GTMO: they're mostly not there in some sort of pre-trial detention, waiting to find out if they can be charged. They weren't brought over for the purpose of exercising criminal jurisdiction, no matter how misguided. The point, and very nearly the whole point was interrogation. Not to find out what the people did -- and really, the fact that even today they don't have files on these men shows how very important the men and their conduct was -- but to try to figure out how the whole thing works on the other side. (The Supreme Court told the government it couldn't hold people for interrogation in 2004).

John, and others, I understand how appealing it is to guess how angry, and therefore dangerous, these men have become. I'd be the last to say that there isn't anger. There's also resignation, and determination to get on with life. The return to terrorism statistics are as phony as anything put out by the Bush Administration.

UNimportant

Here in Texas, 20 degrees qualifies as "freezing one's ass off", even with a slight wind.

It's true. Texans are weak.

The return to terrorism statistics are as phony as anything put out by the Bush Administration.

But, but Scalia told me it was true. In an opinion, no less!

A Seton Hall study via Obsidian Wings:

"Extending to the Government the benefit of the doubt as to ambiguous cases, the list of possible Guantánamo recidivists who could have been captured or killed on the battlefield consists of two individuals: Mohammed Ismail and Mullah Shazada. If an apartment complex in Russia falls within the definition of "battlefield," then as of June 2007--after the Department of Defense had already cited thirty (30) as the total number of recidivists--an additional individual, Ruslan Odizhev, can be added to the list. Thus, at most--of the approximately 445 detainees who have been released from Guantánamo--three (3) detainees, or less than one percent (1%), have subsequently returned to the battlefield to be captured or killed. Two (2) other detainees (Abdul Rahman Noor and Mohammed Nayim Farouq), while not re-captured or killed, are claimed to be engaged in military activities, although the information provided by the Government in this regard cannot be cross-checked."

Can I interest you in a slanket?

I'll have all the haters know that eekbeat is thoroughly enjoying her gifted Slanket.

Boy, this thread got derailed in a hurry.

Thanks, inacessible island rail!

Good thing about the slankets, though.

The slanket goes back further than you'd think.

I don't understand either side of this argument. The proceedings at Nuremberg were ad-hoc. Were they a flagrant violation of the rule of law?

This situation is peculiar in that in a war between states, when one side surrenders, that side's soldiers generally stop fighting. It's hard to see what would constitute the equivalent here.

That said, this is the Bush administration. IF they had any more terrorist masterminds in Guantanamo at this point, every details of their supervillainy would have been paraded on Fox News years ago. There is zero reason to believe that anyone in Guantanamo is a serious threat against the United States.

A further issue is that some of the countries they come from are quite likely to torture, kill, or otherwise make evil on anyone who they have the slightest reason to think is a subversive. Saudi Arabia, for example. After all, most of them are in there because some such jurisdiction handed them over to the US.

A non-evil justice system doesn't transfer people to such jurisdictions; Tony Blair repeatedly wanted to and was repeatedly slapped by the court of appeal. It's possible to get the state in question to sign an agreement to do nothing evil, but how much credence can you put in that? It would be more than a pity to be released from Guantanamo into the hands of the Saudi secret police, and y'know, if you're going to start respecting international humanitarian law you might as well go wild on it.

Further, as someone said upthread, there's an administrative issue with some states not accepting returnees - this is a regular problem in illegal immigration cases in the UK, where State X says "We're not having him; he's not one of our citizens, he doesn't have a passport! Not my problem, guv" (typically he would have disposed of it after crossing the last border before entering the EU precisely for this reason).

Also, returning them to Afghanistan is a really stupid idea because a majority of the remaining prisoners aren't from Afghanistan. (I think the biggest single nationality is Yemeni.)

I think the biggest single nationality is Yemeni

Yes. The last page (appendix, page 5) of the CCR report linked in my 255 above contains a list of prisoners by nation of origin.

273 is right -- the point of what I was saying about giving out passports was to short-circuit the problem of where to send people who wouldn't be accepted by the governments of the countries they came from (as noted above, not all Afghanistan), or who would be maltreated if they were sent there. Anyone who wants to go home and can go home should be given a plane ticket and an apologetic fruit basket.

According to today's Guardian, the reason for the ninety-odd Yemenis' continued incarceration is that Bush refused to talk to the President of Yemen. That's it. Just that.

"The Bush administration; still shocking after the shocking had to stop". For several senses of the word shocking.

I don't understand why 248 isn't a straightforward claim that elected officials are above the law. Worse, they have to be above the law in a functional democracy!

It's kind of hard for me to envision a world in which the top officials in the government aren't above the law. The idea sounds like it would lead to chaos. Was it like that before Nixon?

It's kind of hard for me to envision a world in which the top officials in the government aren't above the law. The idea sounds like it would lead to chaos.

This is making me hyperventilate. What are you talking about? How would that lead to chaos?

Well, the top officials are above the law now, right? And during the Clinton administration we saw what would happen if the opposition party was acting as if that weren't the case. Constant "scandals" in the hope that one of them would accomplish something, and in the knowledge that all of them put together would at least make people stop trusting the top government officials whether or not they had done anything wrong.

The problem there wasn't that Clinton wasn't above the law, the problem was the insane witchhunting. The law can be abused for partisan purposes, but that's not a reason to abandon it.

I'm being partially facetious here. But what I am saying is what 100% of mainsream media talking heads believe, or else they wouldn't react to "scandals" the way they do, as things that delegitimize the government officials in some reputational way but don't have any actual chance of forcing them out of office or leading to any punishment. So it's hard not to follow their example.

It's kind of hard for me to envision a world in which the top officials in the government aren't above the law.

If you insert "in practice" here, I think it would help with LBs breathing.

However much we have to accept that empirically the privileged are not treated the same by the law as others are, the principle that they should be, and that in fact nobody is above the law, is a fundamentally important idea.

290-92:The State of Exception, of course.

Jefferson, Madison, Paine always thought that there must an accessible action-realm outside the law. We have a right to bear arms; do we have a "right" to overthrow tyrants and foment revolution in extreme cases? I have trouble calling such things "rights" though others claim we have "rights" as human beings outside any law.

Anyway, there is a large literature on this that I am studying off and on.

I really really prefer "outside the law" to "above the law".

Look, a leader, like any of us, can and usually does willingly accept and acknowledge that she is subject (vassal, mutual obligation) to the law. And we, the people can tell Bush he can't torture just as you, the people, can tell me I can't smoke pot.

But the basic principle of a liberal society is that both Bush & I choose to subject ourselves, rather than am compelled to be subjects. That space outside the law is what makes law possible.

Try to imagine a society where disobedience or rebellion is psychologically impossible and you will understand why the state of exception is the first principle of personal or state sovereignty.

||
BHO has ordered Guantanamo closed. We will now see HOW he does it. Or not.
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I share an office suite with criminal justice. Recently someone left a textbook on the free pile called: *Criminal Proceedings: Theory and Practice.*

I like to think the first sentence is "In theory, you have rights."

"In theory, there's no difference between theory and practice. In practice, on the other hand..."

Subjectively subject to the law, but objectively an object of the law.

I don't know, I got books on liberalism and pluralism and theories of the state and ethics and meta-ethics and political theory and like everybody seems to be working so hard to rationalize sovereignty and legitimacy and the State of Exception.

It's like trying to rationalize subjectivity. Good luck.

Can Bush or Obama act outside the law? If we let them, which is a decision outside the law.

289: That's indeed what I said. Clinton was foolish, he should have told the Supremes he simply wasn't going to get involved in a civil suit while in office and they had better come up with a reason that position was valid.

Obama isn't going to go after Bush, no US President is going to start that precedent

Obama isn't going to go after Bush, no US President is going to start that precedent

Nor should he, but that's a long argument.

Best would be to surrender some measure of sovereignty, or to re-assert the previous post-WWII cedings of sovereignty, to the Hague or other jurisdiction or int'l community.

Obsidian Wings on exective orders on Gitmo and enhanced interrogation.

Is Obama, by reversing the Bush policies by Executive Order, essentially saying that these are matters at the discretion of the Executive?

What could Obama do that would say:"Torture isn't my decision to make or unmake?'

According to today's Guardian

Link? I'm not finding it.

Obama isn't going to go after Bush, no US President is going to start that precedent

Thanks to one of Obama's first executive orders, which effectively limits executive privilege concerning the release of records, others will be better able to go after Bush. This seems like a meaningful first step in checking presidential power, and a hopeful one given that it came on the first day of the new administration. Will it gladden bob ? One can only hope.

305 -- Yes, please.

306 -- Congress should do it. Let the President focus 'like a laser beam' on the economy. And other items for the future. He should cooperate in any way asked, of course.

to re-assert the previous post-WWII cedings of sovereignty, to the Hague or other jurisdiction or int'l community.

One problem I have with this formulation is that the "international community" has no police power. It is essentially an honor system. But almost by definition, bad guys have no honor, or at least no sense of honor outside of their narrowly defined group.

I don't see the US giving the UN a bunch of aircraft carriers and Marines so that the Waloons can snatch GWB on vacation in Paraguay.

306:Whoop! Nah openness is a very good thing, and gladdens my heart.

307:Yes, Congress I think is in the best position to investigate. I am not sure they have adequate enforcement power, especially considering the bill of attainder clause. Perhaps we need to grant a State of Exception to a Special SubCommittee of Public Safety Razoring.

Greenwald on Gitmo closing reactions. The degree to which the Repubs and their media enablers are addicted to their fear narrative is simply staggering. I thought I was inured to them, but my God!