Hamdan and the Dems
We've been hearing a lot lately, mostly from Peter Beinhart and his book,about a tough and compassionate liberal national security policy. I think the Hamdan decision puts that theory to the test -- indeed, what is the "Good Fight" answer on how to respond to the Hamdan decision? The Hamdan case -- however powerful -- poses some real challenges for a Democratic response. The Dems look like they could get into trouble for two reaons -- the obvious, that they look like they want to treat al qaeda as the equivalent as prisoners of war and, the less obvious, that they will stretch the Hamdan decision too far.
Let the lawyers push the envelope on the meaning of Hamdan not only for the Gitmo detainees, but for detainees everywhere, for coercive interrogation, for even the NSA wiretaps. I think, and we are starting to hear, that the right strategy for political purposes has got to be a combination of the following responses:
1)It didn't have to be this way: the Administration's failure to discuss, disclose or debate any of these issues caused a clearly frustrated Court to slam them, including J. Kennedy who can hardly be called liberal.
2)That the solution for the Administration to the Hamdan decision ought not to be to make politics out of Gitmo, as they are clearly doing. The Dems ought to put the Administration on the defensive about how they will interpret the decision in a lawful and consistent manner, including the need for legislation.
3)Speak carefully: nothing worse than making more of Hamdan than it promised. We risk getting caught in hopeful reasoning if we take J. Stevens' opinion too far, including the suggestion that the Geneva Conventions apply to the war on terror. The Court did not say that; only that CA III did, which is not bad, but not the same as saying that terrorists are the equivalent of prisoners of war.
4)Make it clear that the Bush Administration has been so politically ad hoc in almost all aspects of the war on terror that NEARLY FIVE YEARS after the war on terror began, we have to wait for the Court to tell us what to do with allegedly dangerous men on Gitmo. That's no way to lead.
5)I likely will be villified for this one, but I"ve never been convinced that the Geneva Conventions should cover all detainees in the war on terror. But, that's only part of the answer. If, as the Republicans are now saying, Congress ought to act, then Dems ought to make clear that the Conventions themselves envision that certain detainees will not be covered, and that one purpose of the Conventions is to establish a mechanism to make that determination. The Administration should not be excused for those initial failings.
The Administration didn't predict Hamdan, but they deserve it. Their theories often ask the right questions -- who is covered by Geneva, what do we do with some of these folks, ought there be interrogation tactics that fall outside the Conventions -- but they consistently come up with the wrong answer. The burden on the Dems is not to deny the questions -- they are real, and they are important -- but to answer them in a better fashion.
ADDENDUM: In response to Katharine and others below, I want to make clear as my language may have been sloppy, ironic given that my whole point was that our side needed to be careful. The point is simple and is this (as Katharine below suggests): The Supreme Court did not hold, nor should it have, that the entirety of the Geneva Conventions -- which contains more than 140 separate articles and 20,000 words -- to the detainees. It held only that Common Article 3 -- a single provision that sets forth the basic rights protections afforded to all prisoners in all conflicts, whether POWs or not -- also applies to the Gitmo detainees. That distinction matters, and we need to emphasize it over and over (and better than I did the first time around). They may keep saying that we can't be bound by all of the rules of Geneva in dealing with people we suspect aren't abiding by the laws of war, but we can say -- as our Supremem Court said -- that there are certain minimum guarantees that no civilized nation in pursuing war should forsake.
I too think the "terrorists are covered by the Geneva Conventions" argument has been too much of a shorthand. What's required is pretty simple:
1. A fair hearing as to whether they are an enemy combatant, with full judicial review.
2. A time limit on detention; while I understand that previous wars have allowed combatants to be held to the cessation of hostilities, the fact is, that principle CANNOT apply to a war against a non-state actor which can't sign surrender papers because this means life imprisonment through a summary procedure with no proof of wrongdoing.
3. No torture. This is forbidden by the Convention Against Torture, and we should honor it, and this means figuring out a means (either through cutting off funding, creating some sort of judicial review, or otherwise) to FORCE the Administration to follow the law.
4. Humane treatment of detainees. Like with #3, the Administration claims it is doing this, but that is obviously a baldface lie. The Hamdan decision, in applying Common Article III, requires this.
5. Fair trials for war crimes. We can debate about the procedures, but the baseline should be that there is an adversarial process before an impartial tribunal with the full right to challenge the evidence and present testimony on behalf of the defendant, and with full judicial review of the law and the facts.
6. All detainees, including those in secret prisons, on military bases, or on ships, are within the jurisdiction of the Congress and the federal courts. A uniform standard of treatment for all detainees, not just those in Guantanamo.
7. Defined territorial limit for the war. No more arresting people at O'Hare airport and claiming they are enemy combatants. The battlefield is over there, not over here. Anyone arrested in here gets a regular trial.
July 3, 2006 1:19 PM | Reply | Permalink
Inalienable rights.
People should have, and they do, some rights because they are people, regardless of "status". Humane treatment and fair trial belong to those rights.
Even in the absence of Geneva convensions this should be our position. I would ask historians: did we sign and ratify the convensions after much complaints and unhappiness, or to the contrary, we were the moving actors?
Terrorism is not something new. In the days of the Founding Fathers there were still pirates who were "enemies of humanity" and the notion of a non-state force attacking a city, killing, burning, looting and raping was known. Technology changed in the last 200 hundred years, but the people did not.
The legal status of indefinite detension is trickier. For one thing, I would not try to legislate any time limits. However, why we would not even want to keep indefinitely a person if we do not have enough reason to convince a panel according to one of the Geneva convensions? The counter-argument is that some people that the Executive wants detained would get out -- but to me it looks like a feature, not a bug.
July 3, 2006 2:15 PM | Reply | Permalink
Since you brought it up, I will be the first one to villify you for saying that perhaps the Geneva Conventions shouldn't apply to all detainees. At least you used the word "detainees" and not "terrorists". I become outraged when anyone suggests that just because these people are being held at Guantanamo it automatically means that they are terrorists. We are supposed to believe that defendants are innocent until proven guilty. Given that assumption, it is unconscionable, IMO, to withhold from these individuals the minimum standards of decent treatment required by the Conventions. What if a fair trial proves that they are not guilty? Do you then just apologize for the brutal treatment as though no harm has been done? The real harm is to our reputation as a country, something most of us used to take pride in.
July 3, 2006 2:16 PM | Reply | Permalink
The Hamdan decision was inevitable.
Forthcoming Congressional legislation should be preceded by a complete, public discussion of whatever bills are put forward. There should be no "executive sessions" to shield our legislators from their own words.
The most important discussions -- in or outside of Congress -- should revolve around how we are to progress in Iraq. How we are going to get it right.
The burden on the Dems is to tell the American public how we will get Iraq right after this administration has gotten it so wrong.
July 3, 2006 2:30 PM | Reply | Permalink
This whole question is much easier to answer if we simply take a couple of steps back and look at what we are doing. First, we are not at war. There is no rational definition of the word "war" that would justify saying we are at war. Further, the Constitution defines "war" as what Congress declares, and Congress has not declared war. (A recent example may clarify this: Do we all recall when our government desired to incarcerate the president of Panama for some reason? We did that, not by a "war", but by use of military force to capture him. Once captured, he was imprisoned as a criminal suspect, then tried and convicted, followed by being sentenced to a definitive prison term.)
Once we discover that we are not at war, we cannot be holding "prisoners of war". Therefore, we must be holding suspected criminals, the only other designation that is universally recognized for people being held in prison before a trial is held. Even a person caught in the act of killing someone is a "suspected criminal" until tried and convicted. Therefore, GITMO's prisoners are suspected criminals.
Our Constitution defines how we treat suspected criminals. It does not permit what we are doing in GITMO, we need to stop doing that. Faillure to stop should result in impeachment of our president and, since these are not American citizens, international trials of those responsible for the illegal detention of so many people.
So, where is the conflict?
Hoppy in Sacramento
July 3, 2006 4:24 PM | Reply | Permalink
Good points in Jane Mayer's scary New Yorker article about the Bushies. Claiming you can exempt them from rights by calling them "enemy aliens" runs into at least two problems. First, it already judges them terrorists, which is what has to be proved, making the only "minor" problem whether they're covered by American law. Second, as again she points out, that makes any prisoner of war, assuming this were a war, subject to mistreatment, because they'd fought against us. So yeah, the post deserves vilification.
John
http://www.haberarts.com/
July 3, 2006 6:03 PM | Reply | Permalink
While the Bushies can be harshly criticized for holding and using the Taliban (Afghan, Pakistani, Arab, etc.) captured in Afghanistan for political purposes, it appears that the Administration is finally ready to repatriate them. If successful, that gets that problem off the agenda.
As for alleged members of al-Qaeda, the question is what standards of proof should be required to prove their status (note: proof of status=proof of crime via conspiracy or aiding and abetting statutes and would likely draw exceptionally long if not indeterminant prison sentences).
Since criminal procedure is technical and the fairness of any statute adopted by the Congress is solely for the courts to determine, Democrats should keep a low profile. We don't have a dog in this fight.
July 3, 2006 7:00 PM | Reply | Permalink
Wonkish word mincing, Juliette. Keep It Simple, Democrats:
All of the accused should quickly be provided hearings in US courts where the govt is required to show to a _real_ judge the evidence it has of the accused's possible guilt. If the evidence is crap under normal standards of evidence already in use in US courts, the victims of our abuse should be set free and sent home with an official US apology and several thousand dollars compensation. Inmates against whom evidence is adequate for a trial should be tried in normal federal courts.
These steps will expose what we already more or less know, that there is adequate evidence against only 30 to 40 of the 460 or so Gitmo prisoners of anything 'terrorist'. (See the EU inspector's report issued last week). US Courts have effectively adjudicated the prosecutions that took apart the US Mafia, a very large and powerful criminal conspiracy, so there is _no_ reason and never was to expect they could not handle the Al Queda 'crime family'. (It was one of many major breaches of democratic duty for the opposition party ever to acquiesce on this point.)
Real courts would confirm that the Gitmo imprisonment was, taken as a whole, a senseless disgrace to US ideals and a huge blow to the basic human rights of all of us. That outcome would greatly benefit a real Democratic Party, so smart Democrats should do everything possible to get the Gitmo cases into real courts as soon as possible.
Anything less is more whimpy acquiescence, leading us ever deeper into America's post-Constitutional hell.
fairleft.blogspot.com is my blog.
July 3, 2006 8:13 PM | Reply | Permalink
Crissie, getting it right in Iraq will involve listening to the 72% of US soldiers who want us out within a year, and the more than 80% of Iraqis who want us out immediately. So, get your blinders off, the US won't "progress in Iraq." Iraq may progress, after we leave, but that is there business. They've made it very clear the first step toward any reasonable future for their country is to remove the major reason for the violence. That's us.
Will the Democrats leaders still be talking about 'getting it right in Iraq' in the middle of 2006? Say it ain't so!
July 3, 2006 8:24 PM | Reply | Permalink
The Dems look like they could get into trouble for two reaons -- the obvious, that they look like they want to treat al qaeda as the equivalent as prisoners of war
I don't get it. Why is this such a troublesome idea? Assuming for the sake of argument that most of thses detainees are genuine al-Qaeda or al-Qaeda-style jihadists, and consequently very nasty fellows, what follows from that? Are jihadists worse than Nazis? Remember tehm? - those country-invading, blitzkrieging, holocaust perpetrating Nazis? We treated the Nazis we caught during WWII as as prisoners of war under the Geneva conventions. It seemed to work out fine for us, all things considered, and I haven't heard the right bitch about it. Indeed they seem to recognize that maintaining those standards lead to numerous benefits in transitioning to the postwar environment.
So what I want to know is why the right seems to have such a soft spot for Nazis, and accepts the civilized treatment accorded them while reserving barbarism for the rather less capable, less numerous and less organized jihadists whom we currently detain.
Could it be that they find actual, industrially organized genocidal activity by northern European Christians against semitic peoples to be less offensive than poorly organized, wanna-be, murderous aspirations by semitic peoples against Christians? Indeed, if one examines the writings of the jihadists one finds that while they are willing to do all sorts of vile things to innocent Americans in order to advance their political goals, none of them advocate actual genocide - unlike all those Nazis we locked up.
So it doesn't compute: Nazis generally treated well and legally at American prisoner of war camps for the duration of WWII; while jihadists are water-boarded, confined to cages and treated like animals outside the protection of the last shreds of human law.
July 3, 2006 8:34 PM | Reply | Permalink
OK. I don't think this one is so hard.
(1) Make the case -- really make it -- that our moral standing in the world is essential to our winning the war on terror. It makes the difference between people cooperating with us willingly and unwillingly; between countries cooperating with us openly and their having to hide their cooperation with us from their electorates; between lower and higher terrorist recruitment, as well as lower and higher tacit support for terrorists, and so on, and so forth.
(2) Say clearly: the Supreme Court did NOT hold that al Qaeda members are entitled to be treated like POWs; only that the CA3 provisions apply to them. These provisions require that we not torture, kill, or mutilate prisoners, that we give them hearings that have the basics of a fair trial recognized by 'all civilized peoples', etc. Not to do these things harms us in the war on terror, in addition to being flatly wrong and unworthy of our country.
(3) To the question 'do we want to have international agreements governing our troops?', reply: we entered into a treaty. We gave our word. If we want to abrogate it, we should announce that we are doing so. Just cheating on an agreement is wrong.
(4) To the question, why should we grant al Qaeda members rights when al Qaeda didn't sign a treaty?, we should say: we signed a treaty. One of its provisions is: that we should treat everyone in accordance with common article 3. In fact, common article 3 doesn't require more than human decency requires, which is why it's unproblematic to sign it, for a morally decent country.
We might also note that we routinely give due process to the likes of Jeffrey Dahmer. It's not because we think he's actually a nice guy.
July 3, 2006 9:04 PM | Reply | Permalink
My understanding is that Hamdan says nothing about most of the Gitmo detainees in that only ten of them were being brought up under military tribunals. The rest can be held just as they are now in perpetuity. Besides, after five years of unchallenged torture lite at Gitmo, any one acting like all of a sudden something has to be done will be seen as playing politics. The SC did reaffirm that the Executive does not have unlimited “war” powers (dreamt up by Gonzalez and Yoo) and the rule of law still applies. But that is what you’re suggesting Dems avoid bringing up, isn’t it?
Hamdan implies that the President has illegally usurped authority to bypass laws and Congressional oversight using terrorism as an excuse. Hamdan provides a legal foundation to prove that the NSA spying and systematic torture (among many things) are criminal acts. Reports yesterday claim that the administration set up the NSA domestic wiretapping before 9/11. Should Dems still ignore it?
If holding the WH to the Constitution and rule of law is “stretching it too far,” I can’t imagine challenging them on anything. If the idea is wait until Dems control at least one house, Bush will have obtained cover from Congress by then and further damage will be done. If the idea is to avoid being labeled traitor or some other bogus epithet by the right, that will never happen anyway. Not challenging the WH for its dangerous and disloyal abuse of power (and the Republican controlled Congress that abetted it) can only be called cut and run.
July 3, 2006 9:17 PM | Reply | Permalink
When you say you're not convinced the Geneva Conventions should apply to terrorists, are you saying Common Article 3 should not?
If so....
The detainees' lawyers & the human rights activists have fought this virtually alone for years now. Close to no help from the Democratic party. They got to the Supreme Court in Rasul, won, and almost saw that taken away with the Graham Amendment because most of the Democrats in the Senate were either indifferent, clueless, or both. (It was a GOP initiative, obviously, but sustained, effective Democratic opposition would have stopped it.)
Then they go to the Supreme Court in Hamdan, won AGAIN, including the CA holding, and now you are suggesting the Democrats help take that away so they don't appear soft on terrorism?
This sort of thing really gets old. Hamdan's CA3 holding is the best shot we've had of ending the authorization for waterboarding, etc. etc.--the first thing that I genuinely believe might work. If the Democratic leaders can't and won't try to get Congress to lead or follow on these issues, I think they might at least have the decency to try getting Congress out of the way.
I really hope I'm misunderstanding you.
July 3, 2006 9:54 PM | Reply | Permalink
The Geneva Conventions do apply to any human which has been detained in a theatre of war. To say otherwise is to disgrace America, and prove we will not honour our international commitments. The abrogation of the Geneva Conventions during a time of war is by itself a violation of them, which is also a violation of the US Constitution, Article VI, Clause 2.
The Constitution is the only legitimising force upon which the US Government predicates it right to exist. Do you really want to continue down this path of reasoning? It is fraught with grave danger, and will only lead to a further balkanized world, not security.
Does anybody even read the Geneva Conventions before making opinions about its applicability? There is a methodology available which allows for a designation of some combatants as not being covered by it. That is the proper path to take, if the government truly believes that these persons justify special treatment.
Article IV of the The 1949 Geneva Conventions on the Treatment of POWs delineates which combatants are covered by it. Article 4A specifically describes six classes which necessarily fall under its umbrella. Article 4B defines two more classes.
Article 5 in its entirety states:
Defenders of what Mr. Bush has done distort this article far beyond any rationality. They claim that of and by himslef, Mr. Bush is a competent tribunal. They also have distorted and combined the 6 classes of covered combatants in Article 4A of the Geneva Conventions. It is dishonest, dishonourable, unlawful; and it is outrageously obscene.
I will give no ground in this, the Rights of Humans remain inviolate, without the reach of a lawful state. This has been my stated position from the very day I first learned of the cowardly 'criminal combatant' determination by the Bush Administration, and have actively resisted at times that seemed I was standing alone against the darkness descending. I am not alone, there are many who believe in the Rights of Humans as an axiomatic self-evident truth; many who believe;
It does not matter how much a person has engaged in evildoery, they remain in possession of their natural rights, until a tribunal, which strictly adheres to due process of law, finds them guilty. I have stated elsewhere upon this website what I believe to be the minimal standards for Due Process of Law, and am in possession of the high ground on this issue.
I am ravening madman wandering in from the desert, walkabout from the Dreamtime America, Bushating radical lefty, gun toting rightwing militia member, hand-wringing Classical Liberal, looney Goldwater Conservative; all of these and more. I am reprobate child of the American Dream, and I will never concede.
You take dangerous liberties, performing situationalist pirouettes onstage, as you attempt to formulate policy only as the means to ends of election wins, and the audience, a candid world, is watching you spin.
July 4, 2006 5:03 AM | Reply | Permalink
Looks like it does compute, and you've made a lot of progress with the computing. Islam and the Arab/Semitic ethnicity are semi-officially 'evil' and can be treated any inhumane way US thugs can think up.
Unfortunately, the Democratic leadership is on board. This was most obvious (and depressing) in the Dubai ports 'controversy', which essentially centered on the 'evil' ethnicity of the Dubai capitalists. Now the instant response to the Hamdan decision by the Demo elite is to go along enthusiastically as these innocent till proven guilty suspects (90%+ would be found innocent in a normal court proceeeding) are kept in their dungeons years longer, tortured, and then given kangaroo court proceedings designed to hide their (embarrassing to Bush) innocence.
July 4, 2006 5:20 AM | Reply | Permalink
The Geneva Conventions does indeed allow for exceptions in it's coverage of combatants, but at the very instant the government declares combatants to be out from under the umbrella of The Geneva Conventions, Article XIII; Section 1 of the US Constitution controls, and it states:
Anyone who is detained under the colour of Authority imparted by the American Flag rightfully require placement within the class of persons subject to the US Government's jurisdiction. Due Process of Law for ALL is Constitutionally mandated as a pre-eminent right, irrespective of nationality, or geography. Never give an fraction of an inch when natural liberty is at stake, because thereafter, the ghost of liberty lost will haunt us for eternity.
If a right-sided buShill disagrees, whack 'em with a stick of original intent:
It's high time for Contemporary Conservatives to face the music, and take some of their own medicine.
July 4, 2006 5:32 AM | Reply | Permalink
I really hope I'm misunderstanding you.
No, you got it about right. This is more of the long-running and astoundingly clueless 'me too-ism' political strategy, unwittingly designed to make the Democratic Party irrelevant.
Really, I think we all have to recognize that the Democrats simply can't be this strategically stupid or fearful. Something more is going on, and I think it is that the Democrats are tied very closely to the Israel lobby, for which the demonization of Arabs & Muslims and 'war' on terror paranoia are a huge positive.
July 4, 2006 5:35 AM | Reply | Permalink
I see Mary from RI is abusing the rating system, again.
July 4, 2006 7:46 AM | Reply | Permalink
There is actually an important distinction here: under the Geneva Conventions, the UCMJ, and the customary Law of War that has been the rule in the West since the 17th Century full POW status is only available to those who are openly bearing arms for an armed force of a nation. The Nazi army met this standard. The exception was the Nazi spies who landed in the United States early in the war who were properly tried and executed under the laws of war (after being accorded the procedural rights that they were entitled to).
Al-Qaeda members (as opposed to Taliban fighters who, if not hiding their combatant status, are proper POWs) are just like the Nazi spies and are entitled to exactly what the Supreme Court said they should get: protection from torture and the procedural rights that the are provided for in the UCMJ (which is very well regarded in international legal circles if it would only be followed).
July 4, 2006 9:06 AM | Reply | Permalink
John, I wanted to read the Mayer article, but couldn't find in on the online New Yorker. Was it a past issue, or something they didn't (haven't yet) put online? I rely on you New Yorkers for wisdom about the New Yorker.
Neoboho
July 4, 2006 9:14 AM | Reply | Permalink
Annals of the Pentagon.
The Memo
July 4, 2006 9:21 AM | Reply | Permalink
http://balkin.blogspot.com/2006/06/hamdan-as-democracy-forcing-decision.html
"The Hamdan decision did not tell the President that he could under no circumstances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. "
"Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples."
"If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that."
***** **** ****** ****
Arguments about the flaws and failures of our preemptive military warring in Iraq do not change the reality that the U.S. will retain and maintain a military presence in Iraq because not only does this administration still believe that the "road to the solution of the Palestinian question through Baghdad", but also we as a nation have invested far too much treasure and blood to leave. We will make symbolic changes but I think we aren't leaving.
Getting it right in Iraq implies public discussion of coherent goals (not strategy and tactics) that include the answer to why this administration started the warring in Iraq in the first place.
So, the Democrats do indeed have a dog in this fight. If Republicans introduce bills to "give the President the tribunals that Addington designed, they should pay dearly for that. Public opinion should be roused against such short-sighted action that will ultimately do violence to any American military personnel that are captured.
If the Democrats can't think well enough to represent those of us who believe that we have made too many mistakes in Iraq and we are compounding our mistakes by occupying Iraq with impunity - Order 17 - then what's left - sound and fury.
July 4, 2006 9:32 AM | Reply | Permalink
I can't really challenge you on the Israel Lobby, Fairleft - you may be correct, as far as I know. But the sense I get from Juliette's post is one of caution about what you say and your election prospects. I don't quite agree with Juliette, but I think hers is a point that should be made and considered (I'm thinking about Busby's defeat in San Diego). There's always that chance that an election will turn on the whim of voters who employ glandular logic to their choices. The dopamine crowd, you might say.
Neoboho
July 4, 2006 9:45 AM | Reply | Permalink
Your racial and religious innuendos are barking up the wrong tree. After all, we also treated the Japanese in WWII, and then the Koraens and Chinese in the Korean war, and, too, the Viet Cong in the Vietnam War according to the Geneva Conventions, and those peoples were neither European nor Christian. And in fact, the peoples of the Middle east, though not Christian for the most part (yet some are), are genetically and historically akin to a very close degree to the peoples of Europe.
July 4, 2006 10:21 AM | Reply | Permalink
There was no formal declaration of war in Korea or Vietnam either, in fact, there was none in the Civil War. Does that mean that there were no POWs in those wars?
July 4, 2006 10:23 AM | Reply | Permalink
I believe that under the War Powers Act, the Congressional resolution to Authorize the Use of Military Force against Iraq was legally a declaration of war.
July 4, 2006 11:01 AM | Reply | Permalink
"John, I wanted to read the Mayer article, but couldn't find in on the online New Yorker." I want to say a week ago, which is the most recent one I had, since we share and my father's always got the current week, but I've already discarded it. I am having trouble navigating the site myself to see what they decide to put online and how, if at all, one can view the table of contents for a past issue.
It primarily concerned Addington, who shaped policy on behalf of Cheney. The article was called "Cheney's Cheney." It gives him more credit, if that's the right word, than Gonzales or Yoo, described more as an apologist after the fact. Any number of people within the administration, including Rice and (earlier) Powell, are described as cut out of the loop on these issues and not pleased.
John
http://www.haberarts.com/
July 4, 2006 11:08 AM | Reply | Permalink
The me-too-ism of the Democrats has gotten them killed in the last two elections. Both houses of Congress are thoroughly Republican, but nevertheless 'wise' counsel stays the course with me-too. Something simply doesn't compute: Juliette is a smart person, but surely she knows there must be political limits on what she can propose.
Nationally, Demos should strategize based on the most typical, not the most conservative political districts and states. Busby, for example, was defeat in a Republican stronghold where she was outspent 2 to 1. And her opponent completely ignored Iraq and hammered her over illegal immigration, where the Demos take the politically correct but loser position. Nonetheless, she lost by only 4% points. A pretty good summary of the race is at
http://www.signonsandiego.com/uniontrib/20060609/news_7m9busby.html
July 4, 2006 11:43 AM | Reply | Permalink
A declaration of war is a declaration of war. The resolution Congress passed about Iraq was either an unconstitutional delegation of authority to declare war to the President, or we invaded Iraq without a declaration of war, which is about as serious a war crime as you can commit, fully comparable to the Pearl Harbor attack. In any case, war can only mean a conflict between nations, where one nation can surrender to end the war. So, unless we are at war with Iraq, and not engaged in "liberating" Iraq, then there is no entity on earth that can end the "war" by surrendering, so there was no war. Even if there ever was a war in Iraq, it is over now, and we won. We defeated the Iraq government and replaced it with one of our choosing. Now, we are an occupying force in Iraq, besieged by guerrilla attacks aimed at driving us out and replacing the government we chose with one more satisfactory to the guerrilla fighters.
Hoppy in Sacramento
July 4, 2006 12:20 PM | Reply | Permalink
We were in Korea and Vietnam to aid the legal governments of those countries as they were under attack by outside forces (Korea) or guerrilla fighters supported by another country (Vietnam). We did not invade either country to overthrow its government, nor did we fight seeking the surrender of the existing governments there. In both cases, at least in theory, the local government could have ended the "war" by asking our military forces to leave. In Korea they have never done so, so we continue as an occupying power there.
Iraq did not request our military assistance. Iraq was not attacked by another country. Iraq was not fighting off a guerrilla attack that was financed by another country. We did invade Iraq, an action that was not a reaction to an attack on us, was not an emergency, was not requested by any nation, and, for which there was ample time to debate the question in Congress and get a declaration of war from Congress per the Constitution - that war would be declared against Iraq, greatly simplifying what followed, making all prisoners captured POW's, making it possible for the war to end, but also making us, as a nation, war criminals. Gee Whiz! Maybe we shouldn't have invaded Iraq?
Hoppy in Sacramento
July 4, 2006 12:33 PM | Reply | Permalink
Mike
I think I might want to modify this just slightly. Am I right in taking it as a given that most of the detainees at Guantanamo were either seized in Afghanistan or perhaps in Northern Pakistan and turned in (one might say sold) to the United States by Afghani warlords or other "allies"? if so, I doubt that any of these had any prior knowledge of 9/11, or any particular or personal culpability for murderous activities against Americans, Christian or non-Christian. To the degree that they're from Afghanistan, they may not be semitic at all.
If we take the application of the principles involved into a larger theatre, and consider "murderous aspirations" in Iraq, it would seem that having unleashed a civil war with religious overtones, we're caught partly in the middle of mutual "murderous aspirations" of two semitic peoples, as well as "murderous aspirations" against occupiers who themselves have little understanding of the religious conflicts and tensions swirling around them.
I guess what I'm trying to suggest is that while I get the point being made, I think the real question transcends what kind of person may or may not be guilty of "murderous aspirations". We have agreed, I think, that the category "crimes against humanity" is not an empty set, but a real thing. And I think we have also agreed that one cannot simultaneously prosecute and perpetrate crimes against humanity. If one believes that a person is innocent until proven guilty and one also believes that accountability is an individual thing (we, after all, distinguished between the German People and those we tried at Nuremberg, and did the same thing with regard to the Japanese People in the Pacific) we cannot but betray our own principles if we do not accord these captives the presumption of innocence and humane treatment. Once in our history we did otherwise, and the internment camps for Japanese-Americans remains a blot on our history to this day. Fear and hysteria motivated us then, and certainly underlies our motivations now.
So my vote is to hold ourselves to the highest principles and standards of behavior, and not try to "defend civilization" by acting the barbarian.
July 4, 2006 1:31 PM | Reply | Permalink
We can debate whether the detainees are criminal suspects, POW's or something else all we want. For me it comes down to no matter what the detainees are "called" do we want to be known as a country that ignores Habeus Corpus, the international rule of law and is willing to use abuse and torture on the people we are holding. That is not the America I know...so I will join in the chorus of villification.
July 4, 2006 1:46 PM | Reply | Permalink
I'm not a lawyer but I know what my political response would be -- we have dealt with terrorism in the courts before, after Timothy McVeigh attacked the Alfred P. Murrah Federal Building in Oklahoma City. And 12 ordinary citizens were able to look that killer in the face and figure out the right and wrong of it just fine. The republic didn't crumble and "cold blooded killers" were not set free.
The president doesn't have magical powers here -- pick any 12 Americans, as our laws mandate, and guess what? They'll figure it out the right way again, just like they did with McVeigh. Our legal system is strong enough, our people are smart enough.
The problem here is that the Bush Administration and it's Republican supporters don't believe that.
July 4, 2006 4:15 PM | Reply | Permalink
Juliette,
Please, please, do not make the mistake of saying that because the detainees are covered by the Geneva Conventions they are being treated like POW's. We are going to be hearing this repeatedly, and it is simply false.
The Conventions prescribe standards of treatment for non-POW's as well as POW's, even including spies, saboteurs, non-uniformed fighters, etc. These standards are not so strict as those for POW's, but they do call for humane treatment and fair procedures for determining whether detainees are guilty of anything.
Note that, unlike POW's, these detainees may be punished for their participation in combat, but are entitled to challenge the charges in a reasonable forum. This does not require the full-blown protections afforded normal criminal suspects, but it does call for basic fairness.
To say that the detainees are covered by the Geneva Convention is not to say that they are entitled to POW treatment.
July 4, 2006 4:27 PM | Reply | Permalink
While I might be expected to agree with your notion that the Dems are so tied to the Israel Lobby that they don't care about the rights of Muslim "terrorists" (since according to the Zionist shills here, I'm supposed to be an "anti-Semite") - I don't.
I think it's worse than that.
I think the Dems are such statists that the notion of reducing the government's powers in this regard affects them almost as much as it does the Republicans.
Not only do I agree that this is typical Dem "me-tooism", I go further and state that this is the problem with the "two party" system in this country - it's really only one party - the War Party (and the State Party.)
ALL the pundits are - almost by definition - into expanding the power of the state. The only issue for those on the right and left is WHICH powers should be expanded and how. But there are NO pundits advocating the reduction of the powers of the state - except when they are on the opposite side of whatever administration is current. Then they want to reduce the power of that administration - until their side gets in power, then they'll be happy to take up the issue again more favorably.
July 4, 2006 5:52 PM | Reply | Permalink
Heh, I "abused" it back up again...
July 4, 2006 5:58 PM | Reply | Permalink
I don't think that's the issue.
I think the issue with Al Qaeda is whether there is ANY evidence that can be adduced to prove their "guilt". Either they were actually captured "on the battlefield" - in which case it should be easy to establish their guilt based on US military after-action reports - or they weren't - in which case it will be very hard to do so absent some clear intelligence-based facts.
In either case, it is obvious that there is no basis for speculating about changing "criminal procedure" - the procedures in use for the last century should suffice.
Nobody has produced one iota of evidence that any of these people need to be held or tried in any manner different from the millions of other criminals and/or POWs in the world throughout the last century.
The real issue appears to be that the Bush administration feels that ANY attempt to try these people under "normal" procedures would do one of the following:
1) Reveal sensitive intelligence matters.
2) Reveal that the Bush administration HAS NO "sensitive intelligence matters" to be revealed.
Permit me to guess that the latter is really the issue here.
And in THAT issue, the Democrats SHOULD have a dog.
July 4, 2006 6:04 PM | Reply | Permalink
Kind of funny: Mary herself is taking a pasting from a ratings troll in another thread (as are quite a few others).
sPh
July 4, 2006 6:09 PM | Reply | Permalink
LOL sphealey! A bit disingenuous on your part. You've been doing quite a bit of trolling yourself in the last couple of days. I wrote a very nice reply to one of your comments and you rated me another of your many "0"s.
No one has ever rated me a "0" before and then you and Mary from RI come along and give me a series of "0"s for expressing the exact same negative opinon about Hillary Clinton's unseemly relationship with Alphonse D'Amato that I have expressed before in the TPM Cafe.
I'm beginning to wonder what you two are really up in the TPM Cafe. I recently posted a fair bit of factual information about some shady not-for-profit" organizations linked to Republicans including Rush Limbaugh's so-called charitable foundation, Brent Wilkes's so-called charitable foundation and Mitchell Wade's so-called charitable foundation.
Perhaps my critical posts about Republicans didn't sit well with you? You seem to think that we should merely chit-chat about liberal ideas than actually report about possible ethical or even criminal conduct on the part of Republicans.
You don't live under a bridge and know Billy Goat Gruff, do you?
July 5, 2006 7:35 AM | Reply | Permalink