do you know the legal standard for declaring an American citizen an unlawful enemy combatant?
As far as I know, there's no difference in the "enemy combatant" standard for citizens vs. non-citizens.
Holy shit. Of course, none of that is torture.
Insofar as it can actually be called a "standard." I maintain that the standard is broad enough to be basically meaningless.
This "standard" is such that if you were abducted by the Taliban and forced to serve them against your will, you are an enemy combatant. The tribunal has said repeatedly that it doesn't matter whether the person willfully cooperated with the Taliban or Al Qaeda.
1: As far as I know, there isn't a standard. Doesn't the law say that if the administration declares you one, you are?
2: And of course, these are Padilla's allegations; they may not all be true. But I bet the isolation is.
"Mr. Padilla’s dehumanization" s/b "America's dehumanization"
Seriously, you guys, I've was reading the CSRT (Combatant Status Review Tribunal) transcripts all weekend and I cried and cried and cried. It's that bad.
4.1: Yeah, pretty much. Except now it's not the administration, it's these goddamn CSRT "proceedings" (authorized, of course, by Congress in the Detainee Treatment Act of 2005).
A CSRT "or another competent tribunal established under the authority of the President or the Secretary of Defense." They don't have to stick to the procedures we know about -- they're fully authorized to make up new ones on the fly.
Edmond Dantès was such a nice young man before he went into isolation at the Château d'If.
Did the US do anything comparable to Soviet moles? To members of the CPUSA? Because that was an actual fucking threat. We're doing this for no fucking reason, because these fucking people are sick.
(Not that I promote torturing communists, nor anybody -- but just it's just the absolutely and completely farcical nature of this. Someone needs to stand up and say to Bush, to his face, "How can you let this happen -- no, how can you order this to happen, how can you go to Congress and insist on the power to keep doing this, you sick fuck?!"
re: 11
I watched a Ch. 4 documentary, some time in the mid 80s, in which two men talked about their experience of extreme isolation. One was an American, a U2 pilot or something similar, who'd been detained by the USSR and the other was a Soviet spy who'd been detained by the US. Both talked about their coping strategies for that sort of endless loneliness and isolation with little sensory stimulus.
The comment re: sickness is right though.
If there were any justice in this world, Bush would spend the next five years tied to a pillory while people like Kotsko expressed their considered opinions of him.
Mr. Secret Service Man, please note that I do not actually believe that there is perfect justice in this world.
I liked the conclusion of Padilla's motion, and plan to swipe it for other purposes:
In closing, the following words of dissent have often been repeated in the recognition that we, as a Nation, ignore the government’s violation of law at our peril:
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). In defending this Nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this Nation was founded. All that is sacred in our national life is secured by the promise that this is a Nation of laws and not of men.
I'll bet he was served lemon chicken though. And even if he wasn't, we can't take any chances, because he might have something to do with re-establishing the Caliphate, and that's just so incredibly realistic and scary a fear that behavior like this by our government is, while regrettable, completely justified.
Treating Padilla like a human being, much less a U.S. citizen, would only show weakness and embolden our enemies.
Which is to say: yeah, Bush is a sick fuck, and so are his enablers and supporters.
Maybe Unfogged should start a "sick fuck" meme -- track down all torture apologists, leave comments calling them "sick fucks" and link to them with the epithet of "sick fuck." Don't debate, don't weigh the merits, don't talk about the grand American heritage -- just say, in essence, "You are a sick fuck and should be ashamed of yourself." Supporting torture is not an intellectual position that deserves to be debated with; treating it as such grants it dignity it does not deserve.
I thought we were the party of "if it feels good, do it." Why the exception for torture?
I thought that his indefinite detention was bad enough. This makes it so much worse, and on U.S. soil too. I don't know why the location of the maltreatment matters morally (as opposed to legally), but it does.
I just... seriously, what the fuck is wrong with this country? Awful.
It is very important that we get this right. We are dealing with a kind of enemy in Al Queda that does not readily fall into neat categories of military or criminal, and it will take new strategies for dealing with them Add to this complication American citizenship, and it becomes a real dilemna. I don't know if Padilla is the dangerous character that the government makes him out to be, but the fact that he has been thrown into an oubliette and left to rot is more than a little disturbing. I fear that the government is grasping at straws in their effort to defeat this threat. This is more than rough justice.
All the checks and balances have failed, over time. Weakness and cowardice in a president shouldn't be enough for this to happen. The cupidity of Congress is the most important reason, and that has taken many years to develop. Fortunately, it's the thing that can be changed most immediately, but the damage, the realization of what's been allowed to happen, will change the country's idea of itself — I mean the earnest self-tortured minority that thinks about such things — forever.
Even were the perpetrators prosecuted, this cannot be undone, nor made whole. And I don't think they will, or can be.
We are dealing with a kind of enemy in Al Queda that does not readily fall into neat categories of military or criminal, and it will take new strategies for dealing with them
Bullshit.
I don't know if Padilla is the dangerous character that the government makes him out to be
Let's say, just for the sake of argument, that he is, and that the government somehow knows he is, and that you somehow know that the government is correct in its assessment. That still doesn't excuse the extremely sick fuckiness of it.
This is more than rough justice.
No, it's less than any kind of justice. There isn't even a speck of something vaguely resembling justice in the way this has been carried out.
re: 22
"We are dealing with a kind of enemy in Al Queda that does not readily fall into neat categories of military or criminal, and it will take new strategies for dealing with them"
Actually, this kind of terrorist threat has been around for a very long time and much of the world has been dealing with it for decades. There's little evidence from those decades of struggle that 'new strategies' which involve the denial of basic human rights to suspect or convicted members of these types of terrorist organisations are even -- leaving aside the moral case -- pragmatically effective.
Reading the description of his prison conditions, it's amazing how similar they sound to the treatment of prisoners at Port Arthur in Tasmania in the early 1800s, where the theme of the modern tours is basically "Holy crap! Can you believe they ever treated people this way! How inhumane!"
And the people in government and the media pushing for this kind of treatment are not pushing for it because they have overwhelming empirical evidence for its effectiveness and are thus reluctantly coming to some moral compromise. No, rather, these people are pushing for it (irrespective of evidence) because they are sick fucks.
nattarGcM:
Do you know what the English did as regards the Irish? Everyone still got trials and lawyers, right?
re: 28
That's precisely the point. It -- unfair and abusive treatment of terrorist suspects -- didn't work. It was largely given up by the mid to late 70s as the lessons learned from the early 70s were that it was profoundly counter-productive on a practical level.*
Those lessons are, unfortunately being unlearned right now as the UK government is going down a simialr road to the US vis a vis Islamic terror suspects.
* And it was always morally wrong, of course.
I was asking it as a serious question: I really didn't know the answer.
re: 30
I read it as snark, sorry.
There was a brief experiment with internment without trial which lasted for a year or two in the very early 70s. it was widely agreed, even at the time, to have been a failure.
Everyone else got trials and lawyers although, in some cases, the evidence for the convictions was less than ought to have been acceptable. People were beaten, and sleep deprivation and other techniques were used. all these measures were at their worst in the early 70s although I have no doubt they continued on a lesser scale.
25- the terrorists are not new- but their capacity for destruction is far greater than it has ever been. Do you have any doubt that they would detonate a nuclear device or even a dirty bomb if they could? It is like there is a burlgar downstairs and I just realized I left my gun case unlocked and on the wrong side of the room.
my gun case
Things I never thought I'd see: TLL making an argument for the destruction of nuclear stockpiles.
Do you have any doubt that they would detonate a nuclear device or even a dirty bomb if they could?
And what magical nuke are they supposed to use? Who's going to give it to them and risk total destruction of his own country for a relatively trivial harm to the US? And if he is suicidal, why not just hit Israel? Still suicide, but at least he'd have a shot at taking Israel with his country.
On of the many mistakes of the Bush administration has been not aggressively reducing the "loose nukes". All the players were in place, and it has been allowed to wither.
I also often think of the anti-terrorist experiments in England in the 70s when this stuff comes up. I really did think it had all been nice and thoroughly demonstrated that this stuff is useless as well as immoral, and that the example was widely known. Is it not, do you think?
On of the many mistakes of the Bush administration has been not aggressively reducing the "loose nukes".
I think there must be more action--at least monitoring, probably acquisition--on this than we're allowed to see. If there hasn't been, there's no punishment harsh enough for the Administration. Or any before it that didn't look after this.
32: When Lawyers Are War Criminals
Scott Horton, Oct 7, at a Nuremberg conference
I would turn this country into a parking lot to get Bush in the Hague dock. The principles and procedures that were determined to prevent another Dachau or Stalingrad are worth, again, millions of lives. And again, and again.
Are we in the movie "Brazil" and nobody told me?
They haven't even bothered to say what he's accused of, have they?
Do you have any doubt that they would detonate a nuclear device or even a dirty bomb if they could?
No.
Now, how does that get us to the executive being able to unilaterally declare anyone an enemy combatant, with no showing of any evidence or proof required, and then torture them and deny them anything even resembling due process? How does that make us safer?
TLL, your fear has your rushing to give up everything that makes the US a country worth fighting and dying for. Try to muster a little courage in the defense of freedom and liberty.
The scariest part about this for me is that if I disappeared tomorrow, probably about half of the people I love would shrug and be convinced I must have done something, what with that elitist career and foreign boyfriend, shame it all ended that way let it be a lesson because the government wouldn't make a mistake.
Christ, in the time Padilla's been in prison, how much living have you done?
re: 36
The 80s and 90s were really the time when things improved -- the Major administration and the early years of the Blair administration were quite effective in that respect, largely because the lessons of the early 70s had been learned. The early 70s were a time of fairly brutal policing methods.
M/tch- without turning this into an ad hominem, let me say that not only do I find your statement ignorant and insulting, it also fails to recognize that I am agreeing that what happened to Mr. Padilla is unconcionable. And my courage has been tested and not found lacking in more difficult circumstances than an internet posting.
Uh, guys, are you even reading TLL's comments? He hasn't said anything all that objectionable.
41:"TLL, your fear has your rushing to give up everything that makes the US a country worth fighting and dying for."
Fuck the US. Apparently there are a lot of people who still do not understand the post WWII consensus. We as a nation and as individuals gave up part of our sovereignty and allegiance to the world.
A German or American can no longer say:"I was a patriot, citizen and soldier and was doing what I thought was right for my country." That is now zero, zero defense and justification. All national laws are subsumed under the Post-WWII protocols, and all conflicts are resolved in favor of the international regime.
That is the lesson of Auschwitz, and the meaning of Nuremberg.
46. I'm sorry bob that is a little too black helicopter for me. Isn't it enough to say that war crimes are to be prosecuted without giving up sovreignity?
47:Read the Horton piece. 5 countries claim universal jurisdiction, which means they can grab and try Rumsfeld.
TLL, when we say in Geneva that POW's must be treated in such-and-such a manner, we have given up some sovereignty. We cannot really pass laws that violate Geneva. Or I guess we can, but I cannot recognize those laws as valid. Let it be a personal decision, but "following orders" lacks weight because I am 1st a citizen of the world, and 2nd a citizen of the US.
It is very much in line with the meaning of the Civil War, and the loss of State Sovereignty.
And my courage has been tested and not found lacking in more difficult circumstances than an internet posting.
Perhaps I misread you, TLL, but several of your posts in this thread mention your fear, while you contemplate denying rights and liberties, at least other people's rights and liberties.
We are dealing with a kind of enemy in Al Queda that does not readily fall into neat categories of military or criminal, and it will take new strategies for dealing with them Add to this complication American citizenship, and it becomes a real dilemna.
Could you explain what you mean in the quote above? When you say "new strategies", are you talking about detention without trial? Torture? What?
Also, how does Padilla's American citizenship complicate things and create a dilemma as to how he should be treated?
It is like there is a burlgar downstairs and I just realized I left my gun case unlocked and on the wrong side of the room.
Could you explain this metaphor? What exactly is the fear or unease that you're describing? Are the burglars people like Padilla who have only been accused of something without any meaningful chance to refute those claims? Or are they people who we somehow "know" are bad guys? What does the gun case represent? What's in it that these bad guys are going to use against us since we left if unlocked and on the wrong side of the room?
I am agreeing that what happened to Mr. Padilla is unconcionable.
You say that, but then you say vague things about a new enemy, how that creates a dilemma, etc. It seems, to me at least, that you're saying that we have to sacrifice our dedication and adherence to the rule of law, liberty, and justice in order to make you feel safe. Again, maybe I've misread you, but you have been vague in your statements.
If I'm not mistaken, you've mentioned that you served in our military. I assume that's what you're referring to when you talk about your courage being tested and not found lacking. For your service and bravery, you are to be congratulated and honored. But I have to ask,what were you fighting and showing bravery for if, as seems to be the case based upon your statements in this thread, you're willing to cave on basic rights and liberties?
TLL, I came up with an example a while back.
If a convicted child molester moves in next door, you do not have the right to kill him, even tho it might endanger your child.
We no longer argue "self defense". Hitler and Bush both claimed the survival of the nation is at stake. We do not engage that on the merits. With the post-war protocols, we say that even if the survival of your nation and people are at stake, there are things you may not do.
That is a pretty big surrender of sovereignty.
Uh, guys, are you even reading TLL's comments? He hasn't said anything all that objectionable.
I'm most likely overreacting to TLL's comments, true. But in the face of the foul sickness described in LB's post, TLL's statements appear to say that what happened to Padilla is regrettable, but really the threat is so dangerous that we have to contemplate extraordinary measures against those we deem dangerous, measures that go against all the reasons we're supposed to be the good guys. That gets me pretty hot under the collar.
If you have a more charitable interpretation of his comments, teo, please share. I could do with some calming down.
Well, I tried not to make this about me, but here goes. I don't know what the new stategies are, or I would be working in the government. I think that Mr. Padilla has rights as an American citizen that on the surface have been violated. But it also seems that he was involved in a terrorist plot to detonate a dirty bomb. I am not a lawyer, but I do not want the authorities to wait for the crime to "almost" be committed while they gather the evidence that will hold up in a court of law. So what do we do, given that Padilla, or someone like him is dedicated to comitting a heinous mass casualty event. And further, if it has been established that the detainee in question is part of a conspiracy to do harm to the United States or her citizens, I want the authorities to be able to interrogate that detainee and prevent the conspiracy from reaching fruition. That is the dilemna- how do we maintain our liberties and the rule of law- which are paramount, when others are using our dedication to those priciples as a tool against us? I hope that is clear enough for you.
Actually, this kind of terrorist threat has been around for a very long time and much of the world has been dealing with it for decades.
Agreed.
The terrorists are not new- but their capacity for destruction is far greater than it has ever been.
What this amounts to saying is that because we and several other nations have built up enormous stockpiles of nuclear weapons, the fact of the weapons existence makes people who don't have these weapons infinitely more dangerous, because they might get them. There's something screwy about this logic -- the very existence of nuclear weapons anywhere justifies extraordinary measures everywhere.
Do you have any doubt that they would detonate a nuclear device or even a dirty bomb if they could?
I don't know but it doesn't seem obvious, and again, this is another if.
51: I think you're getting him backward, M/tch. I read him as saying that yes, the current terrorist threat is different from those that we have dealt with before and may require new strategies (a debatable proposition, but not inherently crazy), but that the kind of stuff Padilla's alleging is too much and not helping. The unlocked gun stuff was about loose nukes, which is indeed a serious problem and the main reason terrorism today truly is scary.
(On preview I see that TLL has responded himself saying something slightly different. I still think people have been overreacting to his comments.)
Mr. Padilla has rights as an American citizen that on the surface have been violated. But it also seems that he was involved in a terrorist plot to detonate a dirty bomb.
There's no "on the surface" about it. This blatant.
Second, there's no way at this point that Padilla's treatment has any valid justification as information gathering or deterrence. It's purely gratuitous.
50- I understand your analogy- but I would kill the child molester not when he moved next door, but when he went after my child. You're saying I should wait and seek counseling for the trauma.
52: "he was involved in a terrorist plot to detonate a dirty bomb"
Do you have any evidence for that other than John Ashcroft's say-so? They now refuse to even bring up those charges, either because a) they weren't true, or b) the evidence for them was obtained through torture and therefore is inadmissible, or c) all of the above. Most people have learned to not take the statements of Bush administration officials as the truth without some confirming data.
I am not a lawyer, but I do not want the authorities to wait for the crime to "almost" be committed while they gather the evidence that will hold up in a court of law.
I'm fine with 'almost.' If they arrest the people at the gate at 7am on 9/11/01, big party at the WTC. If they arrest them on an August day in Heathrow, seems to work for me, too.
But more to the point, it wasn't that Padilla was detained on little evidence or had a long wait for a trial; it's that he never had a chance for nearly two years to even have a court hear anything at all while they were contesting the entire time whether he even needed a hearing. It doesn't take that much evidence to have a hearing that leads to holding someone, does it?
I mean, shit, what if they were looking for a Josef Padilla? Don't we even get a chance to prove that the names are right on the form?
Apparently no one knows what the case against Padilla is, and that's one of the problems with the way the case has been handled; we are not merely supposed to accept denial of habeus corpus and torture, or near-torture, we're also supposed to take it on trust that there's a good reason for it.
I don't believe that this is about Padilla at all. I think that it's about the Bush administration trying to get a precedent for arbitrary powers. And these are exactly the kinds of arbitrary powers that the American Revolution was fought to eliminate.
I read him as saying that yes, the current terrorist threat is different from those that we have dealt with before and may require new strategies (a debatable proposition, but not inherently crazy)
I thnk the strong reactions to that phrasing mainly stems from two things.
1. It's suggests someone is operating in a historical vacuum.
2. That phrasing has been standard boilerplate for the wingers advocating throwing the rule of law out the window.
60: Yeah, that's probably it. It feels like whenever TLL shows up everyone responds entirely to the perceived subtext of his statements and never to the text.
SP- my BDS has not gotten that bad. This is exactly the problem. I have no idea if they haven't brought charges because they can't prove it or because it was never a plot to begin with. Doesn't mean he isn't a bad guy with intent, and hell if I know if he is or isn't. But I agree with 23- the checks and balances are out of wack. Surely there is enough evidence to get a judge to say- OK, hold him?
Yeah, the reaction wasn't nearly so much to what TLL said as to the sense that he was using phrases that torture supporters use. Knees may have jerked.
But it also seems that he was involved in a terrorist plot to detonate a dirty bomb.
I would say it seems he was involved in a plot with some people who would like to detonate a dirty bomb. I've yet to see any evidence that they were even remotely in the neighborhood of achieving that aim.
As I said, after about three months whatever was being done had nothing to do with information gathering or prevention of an attack.
56:"You're saying I should wait and seek counseling for the trauma."
No I am not. Most of these situations are handled on a coordinated neighborhood basis, and within and with the assistance of the law.
It is interesting that your first reaction was that you wouldn't have any help. "Help" is what the law is about.
Wikipedia has a pretty good Jose Padilla article. The most recent charges--the ones he's actually now indicted for--are "conspiracy to murder, kidnap, and maim people overseas." No mention of the dirty bomb plot that they were talking about before.
64- In fairness, if there is any evidence, I doubt any of us would be privy to it. I think we can trust the SCOTUS, but I hate having to go that far.
But the SCOTUS hasn't seen the evidence against him. He's being kept in jail on the basis of the administration's word that they know he did bad stuff. That's it.
If you say that it's all right for the government to imprison and abuse someone for years on the basis of evidence that's too secret to share with a court, you have said that it's all right for the government to imprison and abuse them for no reason at all. There is no difference, in practice, between the two standards.
I don't mean to defend the current administration in any way, and I disagree in some ways with TLL, but I think that he brings up a very important point: Asymmetric threats are a huge problem to humanity. Figuring out the right policy to deal with them (if there is any such policy) is going to be a process that challenges our ideas, as a society, of what kind of freedoms are feasible to allow citizens and what give terrorists too much power.
Because that makes me sound like a Republican, let me explain that by terrorists I mean people who have the ability and will to destroy the lives of thousands or millions of people without the involvement of a similar number of people. And that I think that the problem is really only in its infancy (or maybe childhood)--in a decade or two killing a hundred thousand people will be a hundred times easier than it is now, and it will keep getting worse. (Genetic engineering allowing the creation of super-viruses, mollecular manufacturing allowing the creation of non-organic self-replicators and super-precise weapons machining, artificial intelligence run amok. See more here.) And that government secrecy and denial of habeus corpus and torture are terrible solutions now, and will likely remain so. And that the Iraq war has nothing to do with fighting terrorism.
But perhaps spying on citizens, in detail, might become necessary. Perhaps police power may need to be expanded. Perhaps the executive branch does need more leeway than many here would be comfortable giving it. That's not to defend the Iraq war or torture or the secrecy and deception or anything--I'm thinking things like quarantine power for non-biological threats, more surveillance, more restrictions on rights in the public space. Things that could conceivably be balanced with fairly open government and strong protection of free speech and government that's not just a sock-puppet for large corporations.
In the coming decades we're going to be facing threats that dwarf those from nuclear weapons. Existential threats. It's possible that (a near-omniscient observer would judge that) there's very little chance we'll make it through the next hundred years without wiping out all higher life forms on the planet. (That's one solution to Fermi's Paradox.) And in that kind of environment, democracy, while still worth fighting for, might become a luxury. At the least, our conception of which freedoms we can afford must change.
See my 62- I said there should be enough evidence to get the judge to say to hold him. As an American he has to have that right. The foreign fighters picked up in Afganistan and held in Gitmo are a different kettle of fish, ans as "unlawful combatants" don't fall into the provisions of either soldiers or civilians under the Geneva Conventions. So I don't know what to do with them.
Surely there is enough evidence to get a judge to say- OK, hold him?
Then why haven't they done this, or is it a sure sign of BDS to ask?
I have no idea if they haven't brought charges because they can't prove it or because it was never a plot to begin with. Doesn't mean he isn't a bad guy with intent, and hell if I know if he is or isn't.
I don't know either, none of us do, which is why I'm so set on following the rule of law and affording people due process, no matter how scary the government tells us they are.
You seem to just be taking the administration's word for it, and then in the same breath mumbling something about checks and balances being out of whack. Those two thoughts don't go together rationally.
As Emerson said, the American Revolution was fought over just such issues. You ask "how do we maintain our liberties and the rule of law- which are paramount, when others are using our dedication to those priciples as a tool against us?" We cannot maintain our liberties and the rule of law by suspending our liberties and the rule of law, or by allowing them to be suspended because the government says Suspect X is really scary.
All criminals, not just terrorists, use our liberties and dedication to the rule of law as a tool to escape punishment. People falsely accused do so too. The price of having those liberties and the rule of law is accepting that both good guys and bad guys get to use them.
In fairness, if there is any evidence, I doubt any of us would be privy to it. I think we can trust the SCOTUS, but I hate having to go that far.
That might fly with me for the first couple weeks or so. But years? And there's no way I'm on board with the "trust the SCOTUS" standard. The system needs to function at all levels. If the govt. has evidence, then get an indictment. "If you think you've been wronged, you can always appeal to the Supreme Court" is a crazy standard for criminal cases.
ans as "unlawful combatants" don't fall into the provisions of either soldiers or civilians under the Geneva Conventions.
Wrong. Under the Geneva conventions, they're soldiers, or they're civilian criminals, or they're innocent civilians. And in any case they're entitled to a hearing before a regularly constituted court to determine which status they fall into.
Because that makes me sound like a Republican, let me explain that by terrorists I mean people who have the ability and will to destroy the lives of thousands or millions of people without the involvement of a similar number of people....In the coming decades we're going to be facing threats that dwarf those from nuclear weapons. Existential threats.
What on earth are you talking about. Is some kind of mass produced, yet affordable death ray going be hitting the shelves at Wal Mart or something?
70: Too much conflation, though, of relatively mundane or poorly planned Ickiness with Existential Ickiness. There's a lot of assumptions that have to be made in order to turn Padilla, say, into an existential threat. To put it somewhat stupidly, I'm okay with quarantine of Manhattan if smallpox has been released, but I'm not going to assume that quarantine is necessary and let the military surround New York when all we have proof of is a rhinovirus.
Is some kind of mass produced, yet affordable death ray going be hitting the shelves at Wal Mart or something?
gswift, I thought you were the one up on such things. I was going to ask if you had a model to recommend.
Yeah, I've certainly read enough SF on topics like the ones pdf mentions. But honestly, I'll wait until the scary technology shows up before giving up civil liberties in reaction to it.
"Unlawful combatant:, as far as I know, is an ad hoc category invented by the Bush administration based on a single dubious WWII precedent from American law.
77: I believe gswift is asking where he can get one. For target practice.
The Colt .45 Death Ray is indeed quite powerful, but a poor choice for the novice.
Great, though, when you want a sleek but decisive option if Lex Luthor comes to town.
re: 73
The current British legislation is supposd to allow terrorists suspects to held for up to 28 days without charge (the government wanted 90 days but they couldn't get it through Parliament). It used to, in the days of near-weekly IRA attacks, be 7 days and, at the time, that was seen as pretty scandalous by most of the political left and some of the political right.
I can accept that there might be a need for a few days, or a week, with some sort of judicial oversight over the process, but once it starts to lengthen the process seems to me to be both practically ineffective and an unconscionable step in the wrong direction vis a vis human rights.
The government talks as if these people would have to be released but of course there's a perfectly legitimate remand process for people who've been charged and are awaiting trial. What they are asking for is the ability to hold people prior to charging and without adequate evidence, and I just can't see any defence for that.
28 days is better than Padilla, but it's still unacceptable.
If the govt. has evidence, then get an indictment.
Then aren't we supposed to move on to the trial phase during which the government actually produces this evidence and other people, like judges and juries and whatnot, decide whether the evidence is sufficient to convict the defendant? I remember hearing that trial by a jury of my peers was my right as an American citizen---but that was before I learned about my (apparently alienable!) right to be charged with something and my right not to fester in some Black Hole of Calcutta. I had sort of taken those for granted as a child.
74- LB- the Geneva conventions has some pretty lear guidelines as to what constitutes a soldier, and as I understand it the detainees in Gitmo don't come close. So that would make them civilian criminals, and I'm sure there is not enough evidence to indict let alone convict. So we just let them go? I think that we should probably treat them as "partisans", but I think those guys are always shot when captured, so that doesn't work either.
The Colt .45 Death Ray is indeed quite powerful, but a poor choice for the novice.
But it'd be pretty sweet if they got Billy Dee Williams on board for the ad campaign.
So we just let them go?
Ding ding ding. If we don't have the evidence to prove that someone has done something wrong, we let them go. If we nonetheless suspect them of still being dangerous, we watch them. These are people, not supervillains.
I think that we should probably treat them as "partisans", but I think those guys are always shot when captured, so that doesn't work either.
Yeah, see, not legally.
28 days without charge
Was the zombie reference on purpose, I wonder.
Let's not go around and around on the Guantamano detainees and Geneva classifications right now; Padilla is a US citizen.
85 -- You don't get to shoot anyone after you've captured them under Geneva.
Is a guy conscripted at gunpoint to be a cook in the Afghan army a soldier? A partisan? A criminal?
More fundamentally, isn't holding the cook prisoner 4 years down the road a pretty stupid way to go?
What's the following guy: arrested by Bosnian authorities at the insistence of the US for suspicion of terrorist plans in Bosnia; ordered released by the courts of Bosnia; kidnapped from the courthouse by US agents and flown to Cuba; and subsequently cleared by Bosnian investigators of any involvement in anything? Soldier? Partisan? Criminal? How about Victim? Victim of a mindset that starts with 'this is new and different' but doesn't give any real explanation why the newness and difference -- if they even exist -- mean that we have to drop our ordinary adherence to our own law.
I can accept that there might be a need for a few days, or a week, with some sort of judicial oversight over the process, but once it starts to lengthen the process seems to me to be both practically ineffective and an unconscionable step in the wrong direction vis a vis human rights.
That's pretty much where I'm at. Hell, maybe I could even get on board with 10 days or something, but that strikes me as being overly generous to the govt.
88 -- Sorry J, X posted. You're right.
Here's the Padilla Opinion from the Fourth Circuit, and Judge Luttig's order when he realized that he'd been had with those dirty bomb stories and all the rest. Both are pdf files.
I got no authority, CC; go around and around if you like!
Jack, I'm giving you Skidmore not Chevron deference. That is, I don't regard your opinion as controlling, but "depend [instead] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade."
and as I understand it the detainees in Gitmo don't come close.
With all due respect, TLL, it's pretty clear that you don't at this point have an accurate understanding of who is detained in Gitmo and how they got there. I encourage you to remedy this.
Of course, as has been reiterated, Padilla is a U.S. citizen and is not at Gitmo, and the executive branch has tried to deny him the rights of a U.S. citizen solely on the basis of their claim that he's too scary to be afforded those rights. Plus they've asserted that their claim that he's too scary to be given his rights can't be challenged in court, that the decision lies solely with the executive.
And I believe that I was clear in saying that what has happened to Mr. Padilla was wrong for several reasons, but that legal proceedures should be scrutinized with an eye toward handling what is inarguably a difficult situation. And we are not talikng about Gitmo in this thread anymore.
CC, are they ever going to bring Padilla to trial? I guess that should be: Are they even trying to bring him to trial?
91: Let's be honest: Luttig is a career whore who tried to spit out what was left is in his mouth once he realized he'd made the rookie mistake of not getting paid first. Having found that you can't un-whore yourself, he quit. I'd like to wish him a nice man and a white picket fence, but I just can't bring myself to do so. It offends me that he's in a Blue city like Chicago (I assume).
Does the government claim that the CSRT are Article 5 hearings? I know that was brought up in Hamdan, but the court didn't address that question.
The militray commissions certainly do not meet the Geneva standards, but I wonder about the CSRTs. Of course the status of "enemy combatant" isn't in the conventions so even if the CSRTa are proper Article 5 boards, their judgements are extra-legal.
And we are not talikng about Gitmo in this thread anymore.
Fine, but you're the first one who brought it up (in comment 71) in this thread. Before bringing it up again in a discussion, I really do encourage you to learn about who is there and how they got there.
98 -- Yes, the government says that CSRTs comply with Article 5.
96 -- Not if Padilla's motion is granted. Otherwise, yes, they'll try him in Florida.
95 -- What on earth is difficult? Or, more difficult than Ted Bundy, Charlie Manson, or John Gotti? The danger the guy might pose is over once he's in custody. (In this, the district judge was right to point out that when the military seized Padilla, he was held in a jail in NYC. Not dangerous.)
And if Padilla is found not guilty, are they going to let him go? I have my doubts- that's the problem with the whole situation, the government can just play calvinball- and the government will likely survive longer than Padilla. First he's too dangerous to try, then, after 3 years of trying to appeal, SCOTUS is about to hear the case, he's suddenly tried on other charges, which will take another year, and if that doesn't work, they'll find some other way to hold him. Each time the rules change it's another 12-36 months of court proceedings. Isn't the bill of rights wonderful?
I'm guessing that motions to dismiss due to "outrageous governmental conduct" don't do very well in the ordinary course of things. Still, there's part of me that's very doubtful that this will ever go to a real trial. What kind of [redacted for reasons of national security] would the government be able to present against him?
How things have changed: remember (since we are all 47) when Noriega was captured in the War on Drugs? He is still considered a prisoner of war and is treated accordingly. But that was all pre-9/11. We had some limits then.
I just checked my recollection (it's tough being an old man) against this 2002 piece on in the IHT about POWs and the War on Terrah.
God help the first Special Forces' guys to get captured in Iran. If they are operating as they did early on in Afghanistan then they won't be wearing uniforms. Spies get shot.
76: Padilla isn't an existential threat by any stretch, nor are dirty bombs, and I was trying to avoid all those conflations. There's nothing about the way Padilla has been treated by the government that I don't think is terrible.
78: But it's worth discussing the issue now, at least. Perhaps not on this thread. We already know more than enough about the shape these technological threats will take (not just science fiction) to begin intelligent analysis of them. There's no question that we're going to have to face these things soon.
104: Any discussion of what new things we ought to be doing really needs to include discussion of what old thing we ought to stop doing. Narrowing this to merely tactical situations is also nonsense.
You can't ever defend principles by pissing on them; even with heroic rhetorical flourishes. This is not a concept bush & co. seem to understand (in the best case analysis).
Spies get shot. After a proper trial of course.
I think that everything should put in the context, first, of the Bush-Cheney administration's commitment to a unitary President minimally impeded by Congress, the courts, and law, and second, the "monopolar world" where the US has no peer or counterbalance. The Bush people realize the there's no one there to push back, and they've as much as said that internationally they pay no heed to custom, international law, the UN, the Geneva Accords, or world opinion.
This is the classic absolute power problem, which the writers of the Constitution were warning against, but the US was weak than and Britain was the power.
To me this far overrides the unique challenge of terrorism.
107 gets it exactly right. We still live in a world where no consideration is more important than "Who has the most raw power?". At the moment it may not seem so bad to Americans, since at the moment the answer is "US!"
But as pdf pointed out, we're headed for a world in which anybody with a bit of expertise, a bit of money and a bit of time could off a good-sized chunk of the world population double quick. That future may be years away, but very likely not decades away.
I'm not sure I'm ready yet to think about how to beat the less-powerful to the punch by qualifying civil liberties until the Constitution looks like the back of a credit card bill. Is there still time to prove to the world that (sometimes, at least) the less-powerful can win by being in the right?
I've been saying it for years: the sooner the US gets a big old black eye from somebody with close to no power who doesn't use "terrorist" tactics, the likelier it is that our species (and perhaps even our nation) will survive into another century. But saying it doesn't make me believe it'll happen.
I'll note that after loooong resistance for strategic reasons, I'm starting to believe a good start might be to ITMFA.
Actual quote from gov't lawyer during oral arguments* in a Guantanamo case:
"If in fact information to the CSRT's attention that was obtained through a non-traditional means, even torture by a foreign power, I don't think that there is anything in the due process clause even assuming they were citizens...that would prevent the CSRT from crediting that information for purposes of sustaining the enemy combatant class."
*obtained, by the way, through this weblog--thanks Charley!