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Indefinite Detention - Our Constitution Held Hostage? (Rebuttal & Counter-Rebuttals - 3 Updates)
Who are we as a people? Are we driven by fear? Some of us, fearing external enemies, seem willing to give up guaranteed rights in a quest for national "safety". Others, myself included, fear assaults on the Constitution - betrayal of the Constitutional Rule of Law and its Bill of Rights - the deprivation of rights, such as habeas corpus, innocent till proven guilty, no detention without charge or conviction.
But fear need not drive us to betray our democratic ideals. We can master our fears. And thereby strengthen ourselves and our democratic institutions. This is a blog toward that end.
The issue of "indefinite detention" - something not permitted by other modern democracies - cuts at the heart of our Constitutional form of government and our very system of justice. It cuts at the role of the executive, in particular the President's Oath of Office
As I see it there are a number of issues at play here:
It seems to me that we need first to deal with the President's OATH of Office. For that oath points us to the president's first and greatest responsibility. A duty the previous administration misrepresented over and over and over as "a solemn duty to protect the American people".
Of the many lies perpetrated by the bush Badministration, one of the greatest, to my mind, was the effort to convince the citizens that its president's primary responsibility was to protect us. Over and over bush, and others have told us a lie. I read it again this morning in my NY Times:
Is that so? Let's look at the oath:
The only specific duty addressed in the Oath is the duty to preserve, protect and defend the Constitution.
Please engrave these words in your mind. Bookmark them. Teach them to your children. Write them on your doors or your walls. For this is the oath and duty of the President. And this is our duty as well. No matter how great or how many our fears!
Ok, having settled on the president's primary duty, we can now consider what the Constitution tells us about the Three Branches of Government the president is sworn to preserve, protect and defend. We'll begin with the Executive Branch, even though the Constitution starts with the Legislative Branch in Section I.
Please, bear with me. This is long. But so may our Constitution long endure.
Article II, Section 1 of The Constitution tells us:
So far, so good.
Next, Article II, Section 2, of The Constitution, lists and delimits the executive powers of the President. And I direct your attention to first paragraph below, especially the part in italics:
I italicized that phrase above - in order to indicate that the president's Commander in Chief Powers are delegated powers. Not inherent powers. (Delegated only via the Legislative Branch, which alone can declare war.)
Thus, the President's first and most urgent duty is not war, but The Constitution (Article II, Section 1, his oath of office). And the Constitution provides that only Congress can declare war (Article I, Section 8). So: Are we really "at war" right now? When did Congress declare it? I missed that part!
To repeat, as part of his duties, Obama must defer to the other co-equal Branches, when called for by the Constitution: Did you realize that Article I, concerning Legislative Powers, is the longest article in the Constitution? That Congress is the sole Branch inherently vested with The Power to Declare War? That only the Judiciary is vested with inherent judicial powers, Article III? I thought you did!
Not to belabor the point, but President Obama, having sworn to preserve, protect, and defend the Constitution, must respect the inherent powers of the other two branches. (I underscore this point, because it did not happen under the bush Badministration.) And we cannot let such a thing happen under the Obama Administration! Which is why it should be of such concern to anyone that Obama proposes to detain certain people indefinitely, something that is not part of our Constitution, is excluded under the Bill of Rights, and is inconsistent with laws and practices of other modern democratic nations (6:05 - 6:32 below).
Got that?
Ok, let's turn to the Bill of Rights, which, according to its preamble, provides "declaratory and restrictive clauses" to "prevent misconstruction or abuse ... of [Constitutional] powers". So, our founding fathers, and the several States, wanted to be sure that none of the three branches of government would try to deprive us of rights, inherent rights of We the People. For example, related to our system of Justice:
So, our Bill of Rights protects us from our government. Even more than that: These rights are not just for citizens. (The constitution never says just for citizens.) These are rights to "prevent misconstruction or abuse" the preamble tells us. The rights are enumerated to make certain neither the President, nor the Legislature, nor the Courts deprives anyone of them. The rights are there to "[extend] public confidence in the Government" and to "ensure the beneficent ends of its institution."
Bill of Rights: To provide us with confidence in government and to reassure us that the goals, the aims, and the means of government are good ones. The government cannot just use any old means to serve their ends. The Bill of Rights is supposed to assure us of that.
Now, I am not a lawyer, but it would appear (at first glance) that there is a tiny bit of wiggle room up there in Amendment V, which allows a person to be held to answer for a crime, in absence of an indictment by Grand Jury, if it's during a time of "public danger" - but still due process of law is required to deprive someone of their liberty. (See updates below!)
So I understand Obama is stuck with these prisoners. And something must be done to assure them rights - which they've been deprived of all this time! (PseudoCyAnts - see update I - has provided a rebuttal below, which partly puts to rest some of my concerns about the legality - but not the wisdom (especially with regard to precedent! see update II) of "prolonged detention," since Geneva may provide a framework, and Geneva is a treaty - under the Constitution.)
I hope you've stuck with me all this while, and I understand many may have given up bothering to read this far - but I want to remind all of us:
We too could be tortured, for example, just as surely as they were - if we forfeit inherent Constitutional rights. If we fail to preserve, protect, and defend them. Without exclusion, that is.
Just one more thing: FEAR. Let's be clear. Fear is an emotion. It's not an excuse! It needn't be acted upon. You can learn to bear it. It shouldn't become overblown, as in paranoia, as in cheney. Indeed, one of the marks of a democratic nation is its willingness to face fears, without flinching, and to defend its laws and its institutions, even in the face of dangers and fears, without yielding up its civil rights - especially out of fear. For once fear becomes endemic and accepted within any nation, despots can prey upon those fears to install themselves as overlords of the people, rather than as the people's servants.
Our president is meant to serve We the People. Ours is a "government of the People, by the People, for the People". It in the Gettysburg Address!
And I, for one, intend to preserve it!
________________________________________________
Update I:
PsuedoCyAnts, in the comments below, has provided a rebuttal for some of what I've written above, which I find not only convincing but reassuring (with regard to existing international law under Geneva, which would of course be US law via the Constitution under "treaties" as PCA points out). Please take the time to read his two long comments: this comment as well as another excellent comment. (links corrected!) He has now added further comments, which will be evident as you read.
I express my gratitude for his excellent rebuttal and for his advice to wait and see how this plays out. Indeed, that was my intention. And it makes it even more important, I think, that Dawn Johnsen's nomination to head the Office of Legal Counsel be approved. And that this conversation, on a public level continue.
Update II:
emptywheel has posted Feingold's letter to Obama, expressing opposition to the idea of indefinite detention, as well as a warning against military tribunals. Although this blog has now passed its "sell by date" I'm posting this update for those who may return to this blog for whatever reason.
In effect, a rebuttal now to some of PCA's assertions:
Like emptywheel, I maintain enormous gratitude for the stands Feingold continues to take, when it comes to protecting civil rights in the face of their erosion, when it comes to the need for sunlight where too much darkness has gathered.
Glenn Greenwald weighs in on the Feingold letter in similar vein:
And yet another exquisitely well drawn and moving, long essay, Land of the Safe and Home of the Cruel by a Professor of Literature at Yale (David Bromwich), providing views similar to the arguments of this blog, from which I draw these quotes:
I am pleased to see a national conversation going on here. I hope it continues. It's exactly the kind of public conversation that never happened after 9/11, never happened before Iraq, never happened regarding detainees in the first place, never happened re Guantanamo.
As citizens, we have to make sure these public conversations continue!
Update III:
Yes, the conversation continues! PseudoCyAnts has now posted a blog, explaining the Section in Article VI of the Constitution dealing with treaties (Section 2):
Together with a set of letters, written by the anti-Federalists, who were concerned that a treaty might supercede important rights, ceded to the federal government. Given what PCA has previouly mentioned about Geneva and the potential for an indefinite detention for POW status of anyone detained on a battlefield (see Update I above for pertinent links), it would appear that "prolonged detention" could indeed become "the supreme Law of the Land" - all qualms to the contrary, via the Bill of Rights notwithstanding.
I might add: Before we get all hot and bothered about the potential for "prolonged detention," let us consider the power that this article gives to Geneva, particularly with regard to the need to investigate and prosecute war crimes. A duty, which would seem to precede any consideration of what to do with those against whom war crimes have been perpetrated!
Let the converstion continue!
But fear need not drive us to betray our democratic ideals. We can master our fears. And thereby strengthen ourselves and our democratic institutions. This is a blog toward that end.
The issue of "indefinite detention" - something not permitted by other modern democracies - cuts at the heart of our Constitutional form of government and our very system of justice. It cuts at the role of the executive, in particular the President's Oath of Office
As I see it there are a number of issues at play here:
• The President's Oath of Office: To the Constitution
• The Constitution: Three co-equal Branches of Government
• The Bill of Rights: Specific judicial guarantees
• Enemies: Within and Without
• Fear: An emotion? Or a driving force?
It seems to me that we need first to deal with the President's OATH of Office. For that oath points us to the president's first and greatest responsibility. A duty the previous administration misrepresented over and over and over as "a solemn duty to protect the American people".
Of the many lies perpetrated by the bush Badministration, one of the greatest, to my mind, was the effort to convince the citizens that its president's primary responsibility was to protect us. Over and over bush, and others have told us a lie. I read it again this morning in my NY Times:
"This is a guy who has sworn an oath to protect the country."
Is that so? Let's look at the oath:
Each president recites the following oath, in accordance with Article II, Section I of the U.S. Constitution:"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
The only specific duty addressed in the Oath is the duty to preserve, protect and defend the Constitution.
Please engrave these words in your mind. Bookmark them. Teach them to your children. Write them on your doors or your walls. For this is the oath and duty of the President. And this is our duty as well. No matter how great or how many our fears!
Ok, having settled on the president's primary duty, we can now consider what the Constitution tells us about the Three Branches of Government the president is sworn to preserve, protect and defend. We'll begin with the Executive Branch, even though the Constitution starts with the Legislative Branch in Section I.
Please, bear with me. This is long. But so may our Constitution long endure.
Article II, Section 1 of The Constitution tells us:
The executive Power shall be vested in a President of the United States of America.
So far, so good.
Next, Article II, Section 2, of The Constitution, lists and delimits the executive powers of the President. And I direct your attention to first paragraph below, especially the part in italics:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
I italicized that phrase above - in order to indicate that the president's Commander in Chief Powers are delegated powers. Not inherent powers. (Delegated only via the Legislative Branch, which alone can declare war.)
Thus, the President's first and most urgent duty is not war, but The Constitution (Article II, Section 1, his oath of office). And the Constitution provides that only Congress can declare war (Article I, Section 8). So: Are we really "at war" right now? When did Congress declare it? I missed that part!
To repeat, as part of his duties, Obama must defer to the other co-equal Branches, when called for by the Constitution: Did you realize that Article I, concerning Legislative Powers, is the longest article in the Constitution? That Congress is the sole Branch inherently vested with The Power to Declare War? That only the Judiciary is vested with inherent judicial powers, Article III? I thought you did!
Not to belabor the point, but President Obama, having sworn to preserve, protect, and defend the Constitution, must respect the inherent powers of the other two branches. (I underscore this point, because it did not happen under the bush Badministration.) And we cannot let such a thing happen under the Obama Administration! Which is why it should be of such concern to anyone that Obama proposes to detain certain people indefinitely, something that is not part of our Constitution, is excluded under the Bill of Rights, and is inconsistent with laws and practices of other modern democratic nations (6:05 - 6:32 below).
Got that?
Ok, let's turn to the Bill of Rights, which, according to its preamble, provides "declaratory and restrictive clauses" to "prevent misconstruction or abuse ... of [Constitutional] powers". So, our founding fathers, and the several States, wanted to be sure that none of the three branches of government would try to deprive us of rights, inherent rights of We the People. For example, related to our system of Justice:
Amendment IV....no Warrants shall issue, but upon probable cause...Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor be deprived of life, liberty, or property, without due process of lawAmendment VIIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Amendment VIIIExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
So, our Bill of Rights protects us from our government. Even more than that: These rights are not just for citizens. (The constitution never says just for citizens.) These are rights to "prevent misconstruction or abuse" the preamble tells us. The rights are enumerated to make certain neither the President, nor the Legislature, nor the Courts deprives anyone of them. The rights are there to "[extend] public confidence in the Government" and to "ensure the beneficent ends of its institution."
Bill of Rights: To provide us with confidence in government and to reassure us that the goals, the aims, and the means of government are good ones. The government cannot just use any old means to serve their ends. The Bill of Rights is supposed to assure us of that.
Now, I am not a lawyer, but it would appear (at first glance) that there is a tiny bit of wiggle room up there in Amendment V, which allows a person to be held to answer for a crime, in absence of an indictment by Grand Jury, if it's during a time of "public danger" - but still due process of law is required to deprive someone of their liberty. (See updates below!)
So I understand Obama is stuck with these prisoners. And something must be done to assure them rights - which they've been deprived of all this time! (PseudoCyAnts - see update I - has provided a rebuttal below, which partly puts to rest some of my concerns about the legality - but not the wisdom (especially with regard to precedent! see update II) of "prolonged detention," since Geneva may provide a framework, and Geneva is a treaty - under the Constitution.)
I hope you've stuck with me all this while, and I understand many may have given up bothering to read this far - but I want to remind all of us:
It is our Civic Duty to protect and defend
our Constitution and its Bill of Rights.
For if we fail to preserve, protect, and defend our rights, then we could lose them, just as surely as these detainees have.
We too could be tortured, for example, just as surely as they were - if we forfeit inherent Constitutional rights. If we fail to preserve, protect, and defend them. Without exclusion, that is.
Just one more thing: FEAR. Let's be clear. Fear is an emotion. It's not an excuse! It needn't be acted upon. You can learn to bear it. It shouldn't become overblown, as in paranoia, as in cheney. Indeed, one of the marks of a democratic nation is its willingness to face fears, without flinching, and to defend its laws and its institutions, even in the face of dangers and fears, without yielding up its civil rights - especially out of fear. For once fear becomes endemic and accepted within any nation, despots can prey upon those fears to install themselves as overlords of the people, rather than as the people's servants.
Our president is meant to serve We the People. Ours is a "government of the People, by the People, for the People". It in the Gettysburg Address!
And I, for one, intend to preserve it!
________________________________________________
Update I:
PsuedoCyAnts, in the comments below, has provided a rebuttal for some of what I've written above, which I find not only convincing but reassuring (with regard to existing international law under Geneva, which would of course be US law via the Constitution under "treaties" as PCA points out). Please take the time to read his two long comments: this comment as well as another excellent comment. (links corrected!) He has now added further comments, which will be evident as you read.
I express my gratitude for his excellent rebuttal and for his advice to wait and see how this plays out. Indeed, that was my intention. And it makes it even more important, I think, that Dawn Johnsen's nomination to head the Office of Legal Counsel be approved. And that this conversation, on a public level continue.
Update II:
emptywheel has posted Feingold's letter to Obama, expressing opposition to the idea of indefinite detention, as well as a warning against military tribunals. Although this blog has now passed its "sell by date" I'm posting this update for those who may return to this blog for whatever reason.
In effect, a rebuttal now to some of PCA's assertions:
Feingold:This would seem to buttress my points as set forth in this blog. Wiggle room for PCA's views re a Geneva detainee status? Perhaps setting up a Constitutional conflict (between Geneva and the Bill of Rights) - a situation, which, as I've stated in the comments, is likely to end up in the courts, depending on how this plays out, depending on what "basis" the Obama administration tries to use as its means of "prolonged detention". Paging Dawn Johnsen! (Your presence is urgently requested at OLC, please.)"... any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. .... It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
... Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. ... worse those legal precedents would be effectively enshrined as acceptable in our system of justice..."
Like emptywheel, I maintain enormous gratitude for the stands Feingold continues to take, when it comes to protecting civil rights in the face of their erosion, when it comes to the need for sunlight where too much darkness has gathered.
Glenn Greenwald weighs in on the Feingold letter in similar vein:
If incarcerating people with no charges and no trial indefinitely -- while making clear that the imprisonment will likely last decades -- isn't unconstitutional, then it's hard to imagine what would be.
And yet another exquisitely well drawn and moving, long essay, Land of the Safe and Home of the Cruel by a Professor of Literature at Yale (David Bromwich), providing views similar to the arguments of this blog, from which I draw these quotes:
the power of government to imprison and keep in jail a person against whom nothing has been proved and nothing charged...is a bondage as complete as slavery; and like slavery, it can last for life......
... talk about safety rather than liberty and justice, as the paramount value of American life, had almost no history before the Bush-Cheney administration. There can be no doubt that safe was the favorite adjective of George W. Bush, just as protect was his favorite verb. Yet there is not one word in the Constitution about protecting the people. .... The American government is admirable and original not in its ideas about defense but its ideas about liberty and justice. And the president's powers in time of war are so far from the essence of his duty that they are not included in the presidential oath, or even, very prominently, in the enumeration of the powers of his office. The president is required to see that the laws are faithfully executed. In the presidential oath, he swears to do his best "to preserve, protect, and defend the Constitution of the United States." Italics added, and italics, apparently, necessary. The president protects the people by protecting the laws. He does not protect the laws by protecting the "safety" of the people. Indeed, not the safety of all the people, every moment, but the substance of the laws themselves makes the value of the way of life of a free people over time.
.....
A misjudged statesmanship has allowed Obama to think himself magnanimous when he declines to expose the wrongs he has come to know. The way to right a wrong is not to install a somewhat reformed version of the wrong. People, by that means, may be spared embarrassment, but their instinct for truth will be corrupted. It is a false prudence that supposes justice can come from a compromise between a lawful and a lawless regime. On the contrary, the less you tell of the truth, the more prone your listeners will be to commit the next barbarous act that is proposed to them under the cover of a national emergency or a necessary war.
I am pleased to see a national conversation going on here. I hope it continues. It's exactly the kind of public conversation that never happened after 9/11, never happened before Iraq, never happened regarding detainees in the first place, never happened re Guantanamo.
As citizens, we have to make sure these public conversations continue!
Update III:
Yes, the conversation continues! PseudoCyAnts has now posted a blog, explaining the Section in Article VI of the Constitution dealing with treaties (Section 2):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Together with a set of letters, written by the anti-Federalists, who were concerned that a treaty might supercede important rights, ceded to the federal government. Given what PCA has previouly mentioned about Geneva and the potential for an indefinite detention for POW status of anyone detained on a battlefield (see Update I above for pertinent links), it would appear that "prolonged detention" could indeed become "the supreme Law of the Land" - all qualms to the contrary, via the Bill of Rights notwithstanding.
I might add: Before we get all hot and bothered about the potential for "prolonged detention," let us consider the power that this article gives to Geneva, particularly with regard to the need to investigate and prosecute war crimes. A duty, which would seem to precede any consideration of what to do with those against whom war crimes have been perpetrated!
Let the converstion continue!
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I think you could start with the Preamble - "establish justice" wasn't an afterthought.
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
May 23, 2009 5:16 PM | Reply | Permalink
Thank you for that! Amen. Your contribution is outstanding! (Not sure if I'll eidt the post, but if I do, I'll credit you for sure.)
Thanks ever so much! :-)
May 23, 2009 5:22 PM | Reply | Permalink
LOL! Should have "edited" the comment!
It's really bad when you can't spell "edit"! :)
May 23, 2009 5:38 PM | Reply | Permalink
See, the citizen has to take responsibility. Otherwise whatever group of lawyers or judges is in charge, can dictate what your rights are.
The citizen must study, read, ponder what others have said about the Constitution.
TheraP, another fine presentation with good links.
May 23, 2009 5:23 PM | Reply | Permalink
Thank you, kind sir. I so agree. Too often we do leave the pondering to the lawyers. Mind you, had bush and cheney been lawyers, they might have done more pondering before setting out to do Treason.
Thanks for your vote of confidence in the citizenry! :-)
May 23, 2009 5:27 PM | Reply | Permalink
It's in the Gettysburg Address. Question: Lincoln wrote that address, but at the time he must have been referencing something more than what was in his head the day he wrote it, no? I mean the document is more important than his speech, with regard to the Law? The provenance of _that phrase_ or the meaning, if that's a clearer way to get at what I mean, is in the Constitution?
Ow. You are making me think too much.
May 23, 2009 5:28 PM | Reply | Permalink
Lincoln's primary reference in the Gettysburg Address was to the Declaration of Independent which said all men are created equal.
Clearly at odds with the Constitution before 1865 or so. Before the 13th Amendment.
It was with clear reference to the Declaration that the 13th, 14th and 15th Amendments to the Constitution were instituted.
THE END
May 23, 2009 5:33 PM | Reply | Permalink
Could you tell us more on that, dd? If necessary in a blog?
You're such a great resource!
May 23, 2009 5:36 PM | Reply | Permalink
Of course TheraP.
May 23, 2009 5:59 PM | Reply | Permalink
Dd, you're such a good egg! :-)
May 23, 2009 6:03 PM | Reply | Permalink
You may find some quotes I've pulled downthread bear on this. That the "equality" theme was very much one of Thomas Paine's in Common Sense.
That that runs through the idea of the Constitution, the sense of equal rights for all. But as dd will show us, that only became "law" for all, when blacks were given the vote and women were given the vote.
This is exciting! I feel like these events will force all of us to understand our Constitution, and its protections, better.
May 23, 2009 7:54 PM | Reply | Permalink
So THAT is the point. I need to read more.
May 23, 2009 5:38 PM | Reply | Permalink
Sounds like a little light bulb went on for you! I'm glad to have gotten the ball rolling... Let us know what you find out after you've done some reading.
May 23, 2009 6:02 PM | Reply | Permalink
It may be a while before I catch up. I will try to engage DD on this as well. The whole country needs to think.
May 23, 2009 6:24 PM | Reply | Permalink
Bears repeating:
May 23, 2009 6:26 PM | Reply | Permalink
The concepts of protection, safety, and the like are problematic, semantics-loaded terms. I think you make a valuable point when you talk about the Presidential Oath.
I think what I'm sort of gingerly stabbing at is that personal'safety' is certainly not the ONLY priority of a civilized society, and may not even be the highest one. Life itself entails many unavoidable risks - we literally cannot truly live without accepting some of these in stride. The question is, How much risk is too much, and what is the price to the other valued parts of our lives for reducing it by a given amount?
I raise this point only to get smarter people thinking about it, not to finish it. It would be a good subject for a full post if someone wanted to take it on.
May 23, 2009 5:50 PM | Reply | Permalink
We need a national conversation on that. And we can do that here. You really get at the central point of the post.
I hope that conversation is going to happen. Because, honestly, and I believe Obama knows this, we can't deal with this issue without such a conversation. I believe that's why he wants this dealt with by all 3 branches.
You're correct that things like protection and safety are problematic, I'd say subjective. But there's no doubt that people's fears can be raised or lowered by their parents, if they're children, or by leaders or peers, if we're adults.
Maybe you want to try such a post yourself. We're all citizens here! Your voice is just as important as mine. Consider writing up your thoughts and asking for other people think.
May 23, 2009 5:56 PM | Reply | Permalink
One thing that is subjective, and conveniently so for some, is the notion of safety. That's it, isn't it?
May 23, 2009 6:05 PM | Reply | Permalink
Yes, and some may be easily manipulated through propaganda - designed to frighten them, as I wrote about here:
http://tpmcafe.talkingpointsmemo.com/talk/blogs/therap/2009/05/who-is-leo-strauss-and-why-sho.php
May 23, 2009 6:28 PM | Reply | Permalink
Talleyrand once said "On peut violer les lois sans qu'elles crient."
- Someone needs to cry out for them. Obama said a few kind words on their behalf, but this indefinite detention issue is worrying, as is the ongoing mumbling evasion about EIT's. I'm withholding judgment until I see the legal framework for this stuff and DoJ moves on past torture related crimes. But I'm not optimistic. Thanks for this Thera.
May 23, 2009 6:23 PM | Reply | Permalink
I'm not real optimistic either. Thus, forewarned is forearmed! The point of this blog!
May 23, 2009 6:29 PM | Reply | Permalink
I don't completely agree with you on all the points you make but you sure do make a hell of a good argument.
Thera, (aka THE RAP), I always appreciate and enjoy your excellent work. This post is defiantly recommended reading
May 23, 2009 6:31 PM | Reply | Permalink
Steve, please point out where you disagree. It's always helpful to have a friendly discussion. I'm sure you have important points to make. And I hope you will. (As you know, I'm no constitutional scholar...)
May 23, 2009 6:35 PM | Reply | Permalink
I'll give you a couple things to think about:
"we the people" is who is protected singly and as a group by the Constitutional limits on power. This doesn't necessarily apply to "them there people".
"I italicized that phrase above - in order to indicate that the president's Commander in Chief Powers are delegated powers. "
That whole section didn't make any sense. The ital. part was a tiny section, and there was a longer section which was not ital. but small font. Maybe you could clarify the basis for "delegated powers" and how that is important. The ital. part refers to the militias (aka National Guard I suppose). BTW, the Congress did authorize the Iraq invasion, so it's not clear what real world example you have in mind.
May 23, 2009 7:54 PM | Reply | Permalink
Declaration of Independence:
You disagree with that, eh?
And Thomas Paine. And the founding fathers!
Go ahead and disagree. But they were not just writing about "some people" - they were writing about all people.
You think only some are equal?
May 23, 2009 7:57 PM | Reply | Permalink
God help you, if that's the case!
May 23, 2009 7:58 PM | Reply | Permalink
I'm not a mind reader. I deal with the text first, and justified inferences from the text.
Your position is purely ignorant of reality here. POWs and Japanese internment camps show your [intentional?] ignorance immediately. Long term "indeterminate" detention is not anti-Constitutional or you hold the absurd position that the USA is merely a criminal enterprise masquerading as a nation. That could mean you think AQ are a nation masquerading as terrorists.
Why do you ask for correction (friendly discussion as to what isn't necessarily right about your post) and then bury your head further into the sand of your imagination, TheraP?
That all men are created equal (but evidently not women or arguably slaves) doesn't dispute that "we the people" did not include King George and his British cohorts; there is and was an "us" and a "them". Those ratifying the C. and those whom they represented are "we/us".
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." - DOI
So, by your thinking, nobody should be put in prison or detained, ever.
God does, arguably, help me, but so what?
May 23, 2009 8:57 PM | Reply | Permalink
We live by the rule of law. Anyone imprisoned should be charged and convicted. That's our system of justice.
May 23, 2009 11:06 PM | Reply | Permalink
That strikes me as naive radical idealism, but in this sense it is a free country!
Perhaps the question is this: Do the exceptions prove the "rule" or do they break it? Some who hate Bush&Co think Bush&Co broke some laws. Others who don't hate might see Bush&Co as having tested the laws and explored the fine details of the lengths of the shoreline between lawful and unlawful. The proper response is impeachment while in office, or a trial for treason.
What "should" be is not what is so, even for the conservative (who may well have a bias in favor of the status quo), unless one lives in the most perfect of all possible worlds. The question here is whether a President is abusing the power of office. Are we looking at "The Man In The Iron Mask" or at open prudence with otherwise due process?
I don't believe we "live by" the rule of law. Rather, we submit to the rule of law for reasons, whether good or bad. Some would say that we live by our wits and what nature offers. Those who tests their wits against the law are subject to prosecution if detected.
Al Qaeda clearly does not live by our laws nor would its members willingly submit to our laws. It is a rogue state of mind which to some extent is fighting an evil empire. Is indefinite detention, detention of indefinite and extended duration without a criminal trial, of some of its members more or less humane than execution on the battlefield?
I do expect Obama not to shield the government on account of possible embarrassment over how some detainees were treated. What if anything is owed to detainees released from custody?
May 24, 2009 2:57 AM | Reply | Permalink
First, great work TheraP! This is exactly about the Accountability and the Rule of Law that takes precedence before all else.
eds, while Al Qaeda might not abide by the rules of the U.S., Americans in America are obliged to abide by these rules, regardless of the nationality or origin of the other party.
The whole idea of Gitmo is to AVOID the Laws of the land, to create an off-shore "haven" for executing everything that would be violations under the Constitution and the Bill of Rights.
Gitmo is as legitimate as off-shore tax-havens to escape the legal taxation obligations under the Law.
May 24, 2009 6:56 AM | Reply | Permalink
Wonderful comment, Querty!
I so agree. The Rule of Law, as dry as it may at times, as full of ideals as it may read at other times, is the very foundation, the very basis of any society. And when the sacred words were written, that "all men are created equal" they understand that sentence to mean "ALL." They understood that justice and liberty are "FOR ALL."
Blessings upon all who maintain that view, wherever they may be. And may we fulfill its call to render justice equally.
May 24, 2009 8:37 AM | Reply | Permalink
"or you hold the absurd position that the USA is merely a criminal enterprise masquerading as a nation."
I think anybody who doesn't understand that this is the only way empire works and exists is completely ignorant of history, past and present. The examples are like stars in the sky, you can't see most of them, and the ones you do see you can't even count.
Duke Cunnningham would laugh in your face, as just one example
I think it's absurd that anybody would think otherwise. I'd say our government is about 50/50 on criminal enterprise, and actual service of the people. The higher ranking and powerful the role in government, the more criminal.
We just used 300 billion to refinance one single mortgage. Are you blind man?
May 24, 2009 12:11 AM | Reply | Permalink
What happens to the one-eyed man in the kingdom of the blind?
If you write more poetically, maybe your fiction could sell!
May 24, 2009 2:32 AM | Reply | Permalink
Gosh, the only ones who constituted a "criminal enterprise masquerading as government" were the bush&cheney gangsters. Not We the People. Not our Constitution. Not the Rule of Law - which the treasonous conspirators with the prior Badministration flaunted with impunity.
eds seriously misreads me - to his discredit, not mine.
May 24, 2009 10:22 AM | Reply | Permalink
Misread you? In which part in particular?
May 24, 2009 12:56 PM | Reply | Permalink
Thera, I have a pragmatic approach to your premise, "The issue of "indefinite detention."
We are in a hole, we may not be able to, under strict interpretation of our founding fathers, hold these people, but as the cliché goes, we are between a rock and a hard place.
Our founding documents were written by very intelligent leaders. But they are not inflexible, but living, and we are not infallible.
This debate reminds me of the original Star Trek episode, "The Omega Glory" where they prayed (and killed in the name of) the holy words, "Ee'd Plebnista"
May 23, 2009 8:02 PM | Reply | Permalink
What a beautiful quote, Steve! That says it all! Now I'm not familiar with the episode, but those are stirring words. And, to my mind, true words. These inherent rights either belong to everyone or to no one.
As for how this will be dealt with, I'm sure it will all be discussed. Obama has laid out a position, but as we know he's open to compromises. I just hope to weigh in with my view. I don't have a solution. But I'm voting on the side of the Constitution.
This will eventually all end up in the Supreme Court. Where you and I will have little to say. What we do have some influence over is what kind of legislation will they try to pass to deal with this?
I know I'm not the only one concerned about these things. Senator Feingold has already weighed with some criticisms of what Obama has proposed. Others have too.
Peace be with you, Steve. And again, thanks for the wisdom.
May 23, 2009 11:24 PM | Reply | Permalink
Your response and attitude is what our constitution and country is all about.
When it reaches the supreme court there will 2 or 3 women on it so I have confidence they will reach the right decision.
You are the best TP...
May 24, 2009 10:09 AM | Reply | Permalink
So are you, Steve! And I hope you return and read PCA's marvelous comments, which provide the missing link - and turn this thing around for me!
As did your comment, I might add.
May 24, 2009 10:23 AM | Reply | Permalink
I wonder if the phrase "protect the constitution" has roughly the same intent as the monarchic "defend the faith".
Something that gives this country an identity and reinforces the "we the people" who created the constitution.
I'd be curious to learn more about the context and history of that phrase "protect the constitution" in the oath, especially if the war power are delegated.
May 23, 2009 6:46 PM | Reply | Permalink
Please look it up. And give us the blog!
The oath itself is right in the Constitution!
May 23, 2009 6:50 PM | Reply | Permalink
http://tpmcafe.talkingpointsmemo.com/talk/blogs/dikkday48yahoocom/2009/05/lincoln-and-the-rebirth-of-a-n.php?ref=reccafe
THERE YA GO
May 23, 2009 8:34 PM | Reply | Permalink
And I urge everyone: Do not miss this wonderful post by our own, dearly beloved dd! :-)
May 24, 2009 8:39 AM | Reply | Permalink
Easy as pie to find out!
From a history of the presidential oath.
http://www.thomaspainefriends.org/rukshina-klara_common-sense-and-presidential-oath.htm
May 23, 2009 7:00 PM | Reply | Permalink
May 23, 2009 7:08 PM | Reply | Permalink
One more quote related to Thomas Paine's Common Sense:
May 23, 2009 7:31 PM | Reply | Permalink
Very moving:
May 23, 2009 7:34 PM | Reply | Permalink
All of this, in my view, completely backs up the theme of this blog!
Rights of the People are primary. And Rule of Law is what the President swears to, in our name.
May 23, 2009 7:36 PM | Reply | Permalink
You know TheraP, I keep coming back and you provide more and more doc's. Really fine work. There is a blog and there is a discussion. Additions.
You tell me that all the time.
May 24, 2009 11:09 AM | Reply | Permalink
Life is good, dd! It's good. A fine thread. I've learned a lot!
May 24, 2009 12:22 PM | Reply | Permalink
"Thus it seems that the Constitution itself, behind the President, will be doing the governing. "
Well, the document is not the ideas are not the actual constitution of the USA. The idea is that the people via elected representatives do the governing, not the Constitution itself. The President merely executes (and enforces) Congress' laws which he has affirmed and accepted by signing them.
In this sense it is the intent of Congress as nominal vehicle of the collective intent of the people which governs.
May 24, 2009 3:06 AM | Reply | Permalink
I think the folks of the Enlightenment were a little more literal minded than that. They were very much into the theory that free people had the right to make contracts specifying and limiting any restrictions on their liberties. You know, that quaint old rule of law stuff. Unfortunately, Americans only seem to get that concept when it is in the physical form of the gun.
May 23, 2009 7:05 PM | Reply | Permalink
Your comment would seem to agree with the info I've found. Yes, it doesn't at all look like this relates to war, but to a solemn commitment to the Rule of Law.
May 23, 2009 7:18 PM | Reply | Permalink
Dear TheraP,
During the Bush administration, I see only failure. Failure to be protected by the Constitution, the Bill of Rights, domestic laws, international treaties, Congressional oversight, a free press or any of the other protections that Americans take for granted. Instead we had a group of radicals take control. With the Iraq War Vote in the fall of 2002, Nancy Pelosi led a majority of House representatives to vote against the war. In the Senate, close to half of our Democrats voted FOR the resolution with the unfortunate result that a majority of our 2008 primary candidates had voted FOR that particular war. We've even had a few of those "leaders" insist that they and the American people were lied to--as if the votes against the war were somehow lucky guesswork instead of solid decision-making.
My problem with your summation is that you have assumed that our protections are in place and will protect us in the future when it is clear those protections failed. I can appreciate ideals but I want more concrete protections in the future. I want legislative changes correcting the loopholes that allowed torture and abuse to occur on Gitmo with some still arguing with some success according to the polls that the executive can authorize this.
I understand your fear that Obama will simply turn into Cheney some night. Obama has ended abuse and torture and will close Gitmo in the first year--even though Senate Democrats apparently refuse to grapple with the details all on their own!
I sincerely hope I am wrong that you would prefer not to discuss the hard choices that may involve a few of these detainees. Obama was adult enough to tell us these dangers exist; yet we treat that knowledge as if it means Obama has morphed into Cheney.
I also disagree that it is clear that our rights extend to these detainees--heck, we can't even be sure of that for illegals. I want clarity and not this continued muddiness that brought us eight years of shame and dishonor.
It seems to me that you believe that the clarity is there. I disagree and offer up the 8 years as proof that our protections failed. Obama has asked us to discuss these failures and formulate our possibilities.
I don't find that insisting that these protections exist without any changes to be very compelling.
--A Midwest Activist
May 23, 2009 7:57 PM | Reply | Permalink
I never said Obama would turn into cheney. Not sure where you got that part. Nor do I disagree that there will be choices to be made.
All men ARE created equal. Friend or Foe. We are all part of the same human race. We all are endowed with intelligence and emotions. All people have rights. Many who were picked up in Afghanistan were bought via bounties.
We have a Constitution. We have to live by it. Senator Feingold, the only Senator to vote against the Patriot Act has criticized the concept of indefinite detention, as have others.
I've lived a long time. I filed past Kennedy's coffin in the Rotunda. I saw Nixon resign as it happened on tv. Life is not perfect. But I will will defend the Rule of Law. And I'm not the only one.
May 23, 2009 11:05 PM | Reply | Permalink
PS, if you've been reading my comments, for quite some time I've been concerned that flaws were exposed under bushco. Some changes are already going to be addressed, such as in OLC and DoJ overall. Already we have a president who appreciates the 3 branches of government. But I'll continue to keep an eye on what he does. We need to be vigilant as citizens. And we won't always agree. However we can certainly discuss and learn from each other. So long as the discussion are civil ones.
Beware of making assumptions.
May 23, 2009 11:29 PM | Reply | Permalink
I also witnessed the same events as you, TheraP, so assumptions cut two ways.
May 24, 2009 1:03 AM | Reply | Permalink
Not sure what you mean by that. You keep making accusations for things I never even said.
May 24, 2009 8:41 AM | Reply | Permalink
"Beware of making assumptions." That's declarative and addressed specifically to me.
"All men ARE created equal. Friend or Foe. We are all part of the same human race. We all are endowed with intelligence and emotions. All people have rights." At the time of our country's founding this was clearly NOT true. Only men...white...property owners...property included slaves. We have progressively added to this concept over time and with rough spots; some very rough. You are providing idealistic goals. I don't disagree with them so I don't need the endless review of them. I think it's what we strive for and fall continually short of achieving. An endless recital of these may be very helpful to those who don't agree with them and I don't believe many are found at TPM. May I suggest conservative sites as fertile ground?
"Many who were picked up in Afghanistan were bought via bounties." Hmmm, I could ask you to prove this but I won't. The maximum at Gitmo was 800; it is now 250; Obama announced 50 are ready to leave Gitmo on their return to country of origin. Obama has not needed court intervention and international disdain to make this progress, although the previous administration certainly did.
"We have a Constitution. We have to live by it." We are coming out of 8 years of nonsense where our safeguards failed. How do these declarative sentences advance the issue of Gitmo?
"Senator Feingold, the only Senator to vote against the Patriot Act has criticized the concept of indefinite detention, as have others." And what are their solutions offered to Obama who did not create the Gitmo mess but is being given the "honor" of cleaning it up?
"I've lived a long time. I filed past Kennedy's coffin in the Rotunda. I saw Nixon resign as it happened on tv. Life is not perfect." Relevance? The only explanation I came up with is you somehow are saying that age confers wisdom. What did you mean here?
"But I will will defend the Rule of Law. And I'm not the only one." I share this. Again, what is the relevance? What solutions are you offering to our national dilemma of what we do with the Gitmo folks?
"PS, if you've been reading my comments, for quite some time I've been concerned that flaws were exposed under bushco. Some changes are already going to be addressed, such as in OLC and DoJ overall. Already we have a president who appreciates the 3 branches of government." Actually, I don't read many of your comments but I do like concrete detailed replies like--exactly what are these changes being proposed?
"But I'll continue to keep an eye on what he does. We need to be vigilant as citizens. And we won't always agree. However we can certainly discuss and learn from each other. So long as the discussion are civil ones." Shrug. All of these declarations feel like a lecture. Do you honestly believe that you are addressing an audience at TPM who requires the lecture?
May 24, 2009 11:09 AM | Reply | Permalink
Very compelling observation, Thera.
It's as if the nation was sleepwalking when the President's job description leapt out of bounds.
Such a vast difference between "preserve, protect and defend the constitution" and "protect the homeland and U.S interests abroad".
One is "the guardian of principles and ideals", the other is "defender of real estate".
I don't think a President should ever be allowed to sacrifice or desert the role of highest statesman for the role of commander in chief.
There is an essential balance that a President must strike between the two, but the role of highest statesman is job 1.
May 23, 2009 8:04 PM | Reply | Permalink
Wonderful insights, tpmgary. Especially the one about defending "real estate" versus defending principles and ideals.
Thank you for that piece of wisdom. Namaste.
May 23, 2009 11:15 PM | Reply | Permalink
Gary, I hereby award you the Dayly Line Award of the Day for this here TPMCafe Site, given to all of you from all of me; for this line:
One is "the guardian of principles and ideals", the other is "defender of real estate".
I mean this is precious. hahahaa. I mean it.
May 24, 2009 9:50 AM | Reply | Permalink
I'm sorry, but general propositions do not decide concrete cases.
We need more than platitudes, aphorisms, and what I sometimes describe as "warm glowisms" to stop indefinite detention.
If I had been sitting on the Supreme Court when the Jose Padilla case was argued, the question I would have wanted to ask is this: "If the President of the United States were to declare me (a Supreme Court justice) to be an 'enemy combatant,' what would be my remedy? To what court could I appeal? What would be the government's burden of proof? How could I avoid imprisonment for the rest of my life? Am I to simply trust that the government will not do that to me?"
Those are the questions we need to ask.
If the government cannot imprison someone for a term of years without a jury trial and proof beyond a "reasonable doubt" that the person has committed a crime, what standard should apply to people who have not committed any crime or for which there is insufficient proof of any crime?
The question seems to answer itself.
May 23, 2009 9:28 PM | Reply | Permalink
I like your line of reasoning. I don't disagree with it. I think yours and mine are actually complementary. Yes, I'm talking the big picture. And you're talking strategy. Strategy, based on the Constitution and the Rule of Law. I commend you for that! Your idea for the Supreme Court sounds similar to what Obama is looking for: How would the law really affect people?
Thanks for your comment.
May 23, 2009 11:31 PM | Reply | Permalink
I hope Obama picks you. Are you a woman by any chance?
May 24, 2009 10:15 AM | Reply | Permalink
Very nicely put, E!
May 24, 2009 10:25 AM | Reply | Permalink
A couple of pertinent statements:
Jefferson
Franklin
May 23, 2009 9:44 PM | Reply | Permalink
Thank you for those succinct and pertinent quotes!
Kudos. How much wisdom our forefathers had!
May 23, 2009 11:33 PM | Reply | Permalink
I think people are starting to demagogue on this issue. Rachel Maddow, as good as she is, is a talk show host. It costs her nothing to "stand up for principles" even if it is an exaggeration or strawman. (This is exactly why the GOP being led by Rush Limbaugh is a bad idea. Politicians at least have to deal with reality sometimes.)
Maddow is conflating the British and French policy of holding people (arresting them) without charge for close to a month -- usually to gather evidence before they flee. Obama is talking about Guantanamo detainees, who have been held for years already. I don't think the admin is asking for a British style law to arrest people and not have to charge them within 24 hours.
Most importantly, what legal basis for Obama's proposal? For instance, under the 3rd Geneva Convention, you can hold POWs until the end of the conflict. It advises tribunals to determine if someone is in fact a POW if it is not clear, and has rules about detention. POWs are *not* criminals, but are detained to prevent them from fighting.
If some Al Qaeda suspects are tried under GC-type tribunals and found to be fighters and held as POWs, does anyone have a problem with that? I always wondered why exactly Bush & Co. never just declared people as POWs and held them based on the GC. It would have been entirely legal and solved the problem. Instead, they created a fictitious new category of non-POW "unlawful combatants", perhaps for the purpose of interrogating them.
If someone is a terrorist and plotted or committed acts of murder, they can be tried in court as a criminal and sent to prison. But if someone was merely a fighter, perhaps caught in a battle in Afghanistan, they would be a POW not a criminal. (Of course, POWs from Iraq would have to be released when we leave.)
May 23, 2009 10:37 PM | Reply | Permalink
Why didn't they call them POW's? Because they didn't want to treat them humanely. They were using them as icons of bad guys, torturing some to try and get links between Iraq and al Quaida. And just mistreating others. Had they called them POW's they could not, under international law, have interrogated them.
I don't have a solution to the problem. I just want us to live by the Rule of Law. Whatever they do is not just for this one time. We need to do things that do not undermine inherent rights. We've already broken many international laws. Committed many war crimes. We can't just go on committing more.
May 23, 2009 11:37 PM | Reply | Permalink
Forgot to comment about Rachel. I didn't build the post around that video. I got it for one reason, that particular comment I flagged. I agree that she's a TV host. And like the others, she's looking for ratings. I'm not one to watch much TV. And I don't appreciate theatrics. But she laid out a case. And you can ignore the editorializing and just look at the facts. And it is a fact that other democratic countries don't have indefinite detention. Britain had the IRA for a long time. They didn't use it. They had the London bombings and dealt with it via law enforcement. Same with Spain and ETA as well as the Madrid train bombs. There are other ways to deal with things than making war or holding people indefinitely.
May 23, 2009 11:45 PM | Reply | Permalink
I think it is a different law with different intentions:
The law in UK and France allows the police to hold someone for several weeks without charging them with a crime. In the US, the time is 24 hours. Obama is not proposing this, and I haven't heard anyone claim we need such a law.
This is about a group of terror suspects, who the US doesn't want to release, but whose evidence is tainted or inadmissable. They probably can't be tried, but the US is certain they are guilty and dangerous. (They would need some kind of process to prove that determination)
The question here is essentially, we have 50 people (just a guess) who can't be tried but we don't want to release because they are dangerous. What to do?
May 25, 2009 12:28 PM | Reply | Permalink
The problem is a question of precedent. It's the future use to which the precedent might be put. For example, remember the Supreme Court decision that put w in the White House? It was supposed to be a one-off thing. Well, guess what? It's being cited as precedent in cases!
It's precedent that's the sticking point!
May 25, 2009 6:17 PM | Reply | Permalink
From WaPo
If they can't be tried for crimes, why not declare them POWs and hold them until Al Qaeda has quit or is destroyed.
From GC 3, on tribunals:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. "
http://www.unhchr.ch/html/menu3/b/91.htm
May 23, 2009 10:46 PM | Reply | Permalink
It's all gonna end up in the courts one way or another. I've laid out my perspective, based on the Constitution. I honestly think we owe these people treatment, long term, and reparations. We've done terrible things to people. People who were never convicted of any crime. They've been mistreated and held without charge. I find it shameful! Many, many abuses were made. From the time they were caught and right on up to now. I'm troubled by that. Much wrong has occurred. On our end.
The fact that people are trained to do harm. Well, so are our own soldiers. But we don't lock them up!
May 23, 2009 11:41 PM | Reply | Permalink
It's not that easy.
Some may and likely are innocent. Many are clearly not.
And terrorism is a crime against humanity in its own right. It's the deliberate murder and maiming of innocent civilians. I don't think we should go to the other extreme from Bush and Cheney abuse to being sympathetic to the people who conspired to commit mass murder.
Obviousy, this is a difficult problem to solve. I would like to do it in a legal way, not an ad hoq way.
May 25, 2009 12:33 PM | Reply | Permalink
Yes, but what's good for the goose is good for the gander. So if we're attacking people due to a war crime, then we can't just excuse our own war crime behavior, can we? But so far, that's the case. And it's not gonna satisfy the international community. And it's not gonna satisfy the terrorists either. That's the problem as I see it.
May 25, 2009 6:20 PM | Reply | Permalink
"If they can't be tried for crimes, why not declare them POWs and hold them until Al Qaeda has quit or is destroyed. "
AQ is a state of mind, not a nation state.
Did you read Article 4? Where does "terrorist" appear in it? How about "saboteur" or "undercover spy"?
May 24, 2009 3:30 AM | Reply | Permalink
If a detainee was captured in a theatre of war, the al Qaida association is initially irrelevant for determining whether (s)he is categorised as a POW under Article 4 of the Convention. Generally, three of Article 4's clauses would be the determinates:
Even if none of these categories seem to apply to captured combatants, the conditions described in Article 5. par 2. must be met before the POW designation can be stripped away from them: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."If a competent tribunal has made the determination that combatants are not POWs under the Convention, Article 3 is still applicable to them:
May 24, 2009 8:47 AM | Reply | Permalink
I woke up this morning literally hoping - and knowing - that you would come and write things to elucidate those areas where some imagine we can simply consign persons to a garbage can category where barbarism is allowed.
It is worrisome when we have citizens of a land which endorses "All men are created equal" imagining they can wave a wand and deny some humans that equality before the law. There are so many documents and treaties we need to be following. And there is a great need to educate our fellow Americans, some of whom seem to have endorsed a kind of "survival of the fittest" mentality which leads to barbarism.
Your efforts to educate are to be commended! And I thank you for them, on behalf of all of us who care deeply about the true meaning of the ideals we, as a nation, have till now, always aspired to. And may those aspirations see a rebirth upon these shores.
May 24, 2009 9:05 AM | Reply | Permalink
anything that might keep me from becoming enthralled by the siren call of demon rum until Tuesday is a big plus in my book. I celebrated last Memorial Day by my lonesome, chain drinking down 750ml of white rum on ice with lime over about a 3 hour interval, and paid dearly for the foolishness in the following days.
May 24, 2009 9:20 AM | Reply | Permalink
Your existence on this planet is of the utmost importance to some of us. Your sober existence. Your knowledge. Your insights. Your willingness to enlighten both friend and foe. Your concern for those who are victims - no matter which side they fight on. You are playing an important part. I assure you of that. Not least by keeping me on the straight and narrow road - and from flying too far in the clouds.
Your voice is so important. Your guidance is invaluable.
I bow to your wisdom. Please take all my words to heart. As I have taken yours.
Namaste.
May 24, 2009 10:18 AM | Reply | Permalink
I hear you, Psuedo.
May 24, 2009 10:20 AM | Reply | Permalink
That would be Pseudo!
May 24, 2009 10:22 AM | Reply | Permalink
Peace upon you as well, CVille Dem!
Namaste.
May 24, 2009 10:26 AM | Reply | Permalink
PC, time sure has flown, I guess it was fun. I remember us both mentioning our hangovers a year ago Monday at Project Lucidity. I was RJB back then. I never did find out what happened to that sight, it just disappeared one day.
Cheers, and though it isn't the traditional day to wish everyone a happy new year, I do wish that and hope that next Memorial day we can celebrate our country being in a better place.
Also, thanks for continuing your insightful contributions.
May 24, 2009 12:21 PM | Reply | Permalink
thanks for cluing me in on the pseudo change bro. I've wondered here and there over the last many months what had happened to you.
May 24, 2009 12:36 PM | Reply | Permalink
When I first came to TPMC I was completely new to the internet and had only commented at a sight where you could re-register every time you posted. I registered at TPMC to comment on Strauss and registered as Lulu. Soon after I changed to RJB and was here for quite a while. The big changeover happened and I could never succeed in getting back in as RJB. I quit trying for a while and then tried again and received the message that I was Lulu to them so I stayed with it. What's in a name, anyway except sometimes some gender mis-understanding? I did know a Frenchman named Lulu on ST. Barts years ago but, as we were all told a few years back, this aint France.
I hope TheraP and all will pardon me going so far off subject.
May 24, 2009 12:59 PM | Reply | Permalink
The pseudo change and its bit of gender bending are meaningless to me, but I'd wondered several times over the last year where RJB had gone, and am glad that has been resolved.
Also, one of my uncles was born in Belgium. His first and middle names were: Francis Rene.
May 24, 2009 1:27 PM | Reply | Permalink
That Lucidity site got taken down after he and a his partner had a baby. He sent out an email at the time as I recall.
May 24, 2009 1:00 PM | Reply | Permalink
I remember the baby but missed the notification that the sight would go down. Google didn't help. I thought that he probably just got tired of hosting since he didn't or couldn't participate much but thanks for the verification.
May 24, 2009 2:35 PM | Reply | Permalink
I think he could no longer afford it.
May 24, 2009 4:14 PM | Reply | Permalink
Article 5. par 2 is a valid point. But you should review Article 2. Is AQ a Power which adheres to the Conventions? How about Afg. under the Taliban?
Article 3 has a narrow application on two items:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties"
So 3 doesn't necessarily apply. The conflicts in Iraq and Afg. clearly are international and not clearly in an HCP territory. But ignoring that point:
"1. Persons taking no active part in the hostilities,"
Well, sure, if the CIA et al were just scooping up random people. Of course paying bounties can result in something like that. So that has some marginal validity in some cases. I don't see a basis for saying that "indefinite detention" is being proposed for such innocents at this point.
I think you selectively cited Article 4. "[4]A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories"
As I read the list it is not comprehensive, and it seems to allow for different treatment of spies and uniformed saboteurs or assassins etc.
I don't know why the GC leaves loopholes. And the GC doesn't really deal with the moral issues, except in the sense that a careful reading shows that some arguments based on it are fallacious.
I think what TheraP is after in this blog is an approach similar to Lehnert's when he was assigned to Gitmo, before Rumsfeld undermined him with a separate JTF for interrogations.
BTW, I read that Lehnert is responsible for Camp Pendelton which is an option for US mainland housing of detainees.
May 24, 2009 3:52 PM | Reply | Permalink
bad typo
s/b
and UN-uniformed saboteurs or assassins etc.
May 24, 2009 4:04 PM | Reply | Permalink
Again, the al Qaida association is completely irrelevant for initial determination of POW status for combatants picked-up in either Afghanistan or Iraq. Both of those nations were High Contracting Parties at the time we invaded them. The presumption should be that any combatants picked-up during the invasion are members belonging to the category described in Article 4.A.1.: " Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.". There is no mention of uniform or obvious symbol of rank in this definition. Determinations of whether a combatant is covered under Article 4.A.2. should be made liberally. What exactly qualifies as "a fixed distinctive sign recognizable at a distance"? Do persons operating stand-off weapons platforms, that launch ordinance from over the horizon, violating this rule? Those targeted by these weapons systems are not able to discern any distinctive sign recognizable at a distance from these combatants. It seems that the determination for this is not made by the capturing party, but by those who are captured. What behaviors are considered to be "in accordance with the laws and customs of war"? Once again, this determination needs to be made liberally, given our own penchant for "corollary damages", and covert special ops.
Combatants captured in a theatre of war should be presumed to be POWs. Any subsequent changes in this status can not rightfully be made by front-line troops, nor an Executive branch that sits warm and comfy half a world away, and whose perspective is tainted with politics. The legitimate place for status review is in a properly constituted military tribunal, located in theatre, but away from active combat zones, which provisions the same due process as given to members of our own military, which is carefully overseen by The JAG, and not civilian flunkies, who are beholden to, and were appointed by a political faction back home.
May 24, 2009 11:06 PM | Reply | Permalink
(zing)
May 24, 2009 11:23 PM | Reply | Permalink
Agreed!
May 25, 2009 6:13 PM | Reply | Permalink
I'm sorry you're not following my discussion.
May 25, 2009 1:44 AM | Reply | Permalink
Whoa...this posts says it all!!
May 25, 2009 7:14 AM | Reply | Permalink
That the GC doesn't adequately deal with non-state actors is not a sin of the US.
AQ is not a state of mind. Non-state actors are real, and it is ridiculous that international law has no idea how to deal with it.
May 25, 2009 12:30 PM | Reply | Permalink
Not a sin? Dunno where that came from. Is that an excuse for US conduct?
"AQ is not a state of mind. Non-state actors are real, and it is ridiculous that international law has no idea how to deal with it."
That real people adhere to AQ does not make AQ not a state of mind. It is certainly not a nation state in any usual sense, and it's members don't wear uniforms on the battlefield.
Interpol deals with international mobsters. I recall the Bush opposition early on was that enhanced police-like operations should be the front line on terror, not military adventures.
May 25, 2009 5:34 PM | Reply | Permalink
The Geneva Conventions Relative to the Treatment of POWs is a double-edged sword.
The Geneva POW Convention is a treaty which was made "under the Authority of the United States"; therefore: it is, "the supreme Law of the Land".
Obama stated that his Administration was going to hold the detainees under the auspices of The Geneva conventions. This allows for indefinite detainment of these individuals, which can last up to the duration of the conflict.
Thems the rules; I didn't make 'em, and believe this is an unintended effect The Geneva Convention caused by the originators' inability to conceive of an open-ended war, like the GWOT, even though history provided a fine example within the consciousness of western civilisation: The Hundred Years War.
I have always grounded my charges of The Bush Administration's unconstitutional treatment of the detainees upon a belief that once they were stripped of the Geneva Convention's protections, the government was holding them as criminal actors, and control over the legitimacy of its actions towards the detainees were at that moment switched from the Geneva Conventions to the direct Constitutional text. Article VI.; clause 2; cuts in both directions, and not always cleanly. Many of The Founding Anti-Federalists believed that Article VI. was a gaping backdoor that could allow tyranny to slip in unnoticed.
Weaselily? Yes. Antithetical to The Dreamtime America? Yes. Unconstitutional? Sadly, no...and you are jumping the gun. The Detainee Policy Review ordered by Obama has still not been completed, and is scheduled to be finished somewhere near the end of July. He has stated his preference for trying as many detainees as possible the government believes are criminal actors within the Federal Court system; and in individual instances, where that is too problematical, to use a properly constituted Military tribunal for the trial. Properly constituted Military tribunals do indeed provide due process of law. What The Bush Admin and Congress devised was a Kangaroo Court bastardisation of this. Truthfully, if I were unjustly facing a terror indictment as a detainee and had a choice, I'd go for the military tribunal over a jury trial in the Federal Court system, because in my experience, JAG officers take their oaths to duty with deadly seriousness, and this means a better chance to receive a fair hearing.
Obama has also stated that there may be a few detainees left-over that cannot be given a fair trial, yet their release would be a clear danger. This mess was dropped into Obama's lap. It's up to him to fix it. Out of the 800+ detainees who have been held at Guantanamo Bay, surely the Bush Admin wasn't inept enough to have been wrong every time. Obama has promised transparency. He needs to be held to this if any human is detained by the government for life without trial. Would you feel more comfortable if any of these humans, who desire to, and are capable of, fomenting a 911 scale terrorist attack, were instead detained indefinitely, under a criminally insane predicate?
Give this time to play out, and see where it leads. Presently, this remains completely within the realm of conjecture, and serves only to let real SOBs like Cheney and Rich Lowry distort your dissent into a talking-point for their side.
May 23, 2009 11:43 PM | Reply | Permalink
Thanks for your take on this PCA. The whole situation makes me want to tear my hair out.
May 24, 2009 12:24 AM | Reply | Permalink
May 24, 2009 1:50 AM | Reply | Permalink
Thank you for that, PCA. I bow to your greater wisdom and knowledge here - in all sincerity. Without your many years of focusing so clearly on this subject matter, and without, as well, your own experience of the horrors of war and all the confusion of a battlefield, we would not be as richly provided here at TPM Cafe.
You've reassured me on the score of the detainees. And I'm well aware that their number will be as few as possible. I sincerely hope, however, that "treatment" is provided for them and not further neglect and abuse. For Geneva never allowed for poor treatment or harsh treatment or torture.
Beyond the issue of the detainees, I am still concerned for future presidents who may attempt to usurp powers which the Constitution does not give them.
And I hope the UN will endeavor to fix the hole in the Geneva dike to which you point.
I would urge you to write a post detailing all of this. Again, you've convinced me. And reassured me. And I'm grateful for that. (by the way, I read the Lowry piece and I'm confused about how Lowry might be able to rope me in or "use" me - but I'll certainly reread your comments and incorporate them in my further thinking).
Thanks so much for your steadfast focus on what really matters! And for your willingness to both confront and educate us (myself included).
Blessings upon you.
May 24, 2009 9:19 AM | Reply | Permalink
It's difficult for me to explain the connection to those on the right who claim that Obama is doing the same things Bush did, to persons on the left who claim Obama is too Bushlike. A primary reason for perceiving the connection is that I refuse to let my political views get mapped onto a linear scalar, and believe this is a grossly distorted model that should be discarded.
Presently there is a self-amplifying feedback loop between pro-Bush apologists on the right and self-styled utopian absolutist leftists, which has greatly intensified the Obama==Bush inanity that swirling about reality. It has taken wing like a phantasm that circles above a 911 truther convention, and is just as farcical as those conspiracy theories.
The Neoconnivers and New Rightys are once again cutting bait, and hooking leftists, who have their heads in the clouds, and are utterly unaware they are getting set-up for the fall, just like they were many times in the past. Renunciants and antinomians are in the process of shifting the blame for their own past heinous actions. When will they ever learn they should never dance with the Hot to Trotskyists?
May 24, 2009 9:44 AM | Reply | Permalink
I have updated both the post and the title to reflect what you have written.
I see what you're saying even though I'm not completely grasping it - given, as you say, my "head in the clouds".
On the other hand, I am totally convinced by your arguments regarding the "detention" legality under Geneva.
The problem of the right, as I see it, is the problem of endless lying. I have never said Obama was equal to bush. Correct me, if I'm mistaken. But I can now see the propaganda machine in action, making connections where none exist.
For me, the primary way I now see the right is via those straussian principles, which Obama would never endorse in my view. And I am heartened that he is deferring to both legislative and judicial oversight in this case and other cases.
I know you're not a believe in Holy Mystery, but boy am I thankful for you! And in my own view, you are in touch with it! For sure.
I hope my title change and update will redress any use these folks might try to make of my post.
Peace. Blessings. And more thanks than I could ever express!
May 24, 2009 9:56 AM | Reply | Permalink
Or maybe we have our heads above the clouds far enough to have a broader perspective. I'm not as hung up on the rights of a few detainees as I am at the capitulation to the same mindset that lead us to cause the deaths of tens of thousands of innocent civilians. This continues and it escalates in Afghanistan.
As long as we perpetutate the thinking that validates perpetual war, civilians will be perpetually expendable, not to mention the rule of law. War justifies almost anything we do at home or abroad, to detainees, to innocents abroad, and ultimately to ourselves at home.
We've gotten to the point where in order to prove we are willing to defend the security of the nation we must be actively conducting a war someplace. We no longer have a President we have a Commander in Chief. The Commander in Chief can't earn his stripes without commanding warriors. We must justify our weapons by using them....
So we peace warriors futilely fight each battle where we find it be it on detainee rights or FISA or whatever. There's darn few of us fighting this war and we have two political parties fighting against us. I'm not delusional enough to think we'll win, but as long as I can speak out against it I will.
May 24, 2009 12:00 PM | Reply | Permalink
I join you as a Peace Warrior. Somewhere up above I talked about my concerns via so many wars being what feeds the "unitary executive."
With regard to the mayhem we have caused, I'm also with you. It is a terrible blot upon this nation. Whether displacing populations, killing civilians, or the damage and deaths due to battles themselves, not to speak of all the innocent persons detained along with some who may be guilty, it's a sorry tale. And, like you, I'd like to see the fighting of endless, particularly needless wars come to an end.
May 24, 2009 12:07 PM | Reply | Permalink
Thanks. They've got Barbara Boxer on CNN defending the indefinite detentions so I have no illusion that thre's any support for change now but I shall try to avoid martyrdom and just continue the battle:
"The only kinds of fights worth fighting are those you are going to lose, because somebody has to fight them and lose and lose and lose until someday, somebody who believes as you do wins. In order for somebody to win an important, major fight 100 years hence, a lot of other people have got to be willing - for the sheer fun and joy of it - to go right ahead and fight, knowing you're going to lose. You mustn't feel like a martyr. You've got to enjoy it." I.F. Stone
May 24, 2009 12:18 PM | Reply | Permalink
I've lost many battles in my day. :)
May 24, 2009 1:01 PM | Reply | Permalink
The indefinite detention issue has been blown way out of proportion to what President Obama actually said in his speech. He clearly stated that this would only apply to a few detainees, who because of circumstances cannot be tried fairly, yet are persons who cannot be allowed to walk free upon this earth, because the desire and have the wherewithal to foment large scale acts of mayhem. He did not imply that this was going to be a permanent policy of his Administration, but instead a necessary evil, forced upon him by the past Presidential Administration's actions.
As to Afghanistan, I do believe your view is obfuscated by the clouds. The Nation owes Afghanistan a great blood debt; for what we helped do to it along with the Soviet in the 80's, and for simply walking away and letting it descend even farther into a dark hell of Taliban rule after the Soviet fell. The blood debt was increased when GW Bush turned away from properly prosecuting the war in Afghanistan to its end, because he wanted to show his mom he was better than his daddy, and finish off Saddam instead, the truth notwithstanding,
The war in Afghanistan has been waged with a callous disregard and preponderate lack of of understanding for the inherent values of Afghanistan's tribal customs. It is outrageously wrong to bomb a wedding reception, just because a few of the many guests are considered to be high-value enemy targets. There are long-standing traditions of providing refuge to anyone who requests it, even enemies, under some circumstances, and persons who have extended this to our enemies, not out of alliance with them. but out of custom, should not be made targets because of it.
The American military firmly believes that a soldier should never be sent into combat where a bullet, missile or bomb can complete the mission. For the most part, this isn't a bad strategy, and saves many American lives. This policy still needs to be greatly tempered in Afghanistan, even though it likely means more American military personnel causalities. Paying down blood debts have unavoidable human costs. Your solution would be what though? Simply walking away one more time, and letting Afghanistan fall into the darkness of authoritarian Taliban rule again? You properly fret about unconscionable civilian deaths caused by American military operations, yet will to allow unconscionable deaths amongst the Afghan citizenry perpetrated by a barbarous ruling class? That's some seriously F/U idealism at work in that logic, friend.
May 24, 2009 1:18 PM | Reply | Permalink
Invaluable comment! As ever!
Please, never leave us, PCA!
May 24, 2009 1:36 PM | Reply | Permalink
For quite some time there have been any number of constitutional scholars and others who have argued that the powers exercised by the executive branch have grown to exceed those prescribed by the constitution. These arguments are well founded and objective.
However, there is the issue of politics. Where a party in power controls the executive and legislative branches the legislative branch has increasingly become subordinate to the executive. In those instances where the executive has exercised an authority it does not possess and where the political schema is guiding the national governance, congress has undeniably abrogated its authority to the executive.
This has resulted in federal power, which was intended to have been co-equal between the branches, having been arbitrarily handed to a non-government entity, ie, a political party.
Thus we have no law where the assumed principle of obligatory enforcement of law has not been modified and which resolves to a condition where the enforcement of law has become a political choice rather than a legally binding requirement.
The practical state of governance of this nation has evolved where our government is no longer subject to any law, and can, and does do whatever it pleases. This includes not only choosing to enforce or not existing law but also includes conducting our national business in ways that are not prescribed, anywhere, in any law.
May 24, 2009 5:47 AM | Reply | Permalink