A university is just a group of buildings gathered around a library. ~Shelby Foote

Monday, July 10, 2006

On Hamden and stuff

UPDATE: As to why I worry about signficant increases in Executive Power, well, Andrew Sullivan has several posts that illustrate why I have issues with this Administration. You can see them here, here, and here. John is excused if he does not have access to a shower immediately available. Note: These are not specifically related to Hamden.

Mojo and John both had fairly strongly felt responses to my contention that the Hamden ruling was a good one as it demonstrated, to me at least, that our system of checks and balances is working appropriately. John throws in a John Yoo quote, which I basically disregard. Mr. Yoo is about as partison in favor of military tribunals and expanded powers for the Presidency as tc is against them. Though he has better credentials.

Mojo has lots to say, and as usual, his arguments are persuasive. He has, apparently, actually read the entire Supreme Court ruling, something which, I admit, I have not even contemplated. He uses various precedents from previous times of conflict, and finds that the majority of the blame for the military tribunal fracas to be the fault of Congress. Mojo also details some of Hamden's peers in Gitmo-- which, while illustrative of just what it is we are facing, has no real bearing, as even the most despicable murderer has a right to a fair trial under our rule of law.

Which, for me, sans reading the entire Court opinion, is the root of the thing. The military tribunals were ill-defined, secretive, and smelled distinctly of kangaroo court. Perhaps it is the fault of Congress. I don't really care whose fault it is-- my point is that the Supreme Court recognized that there was a big loophole and they denied the President access to that loophole unless and until Congress clarifies the situation. Alternatively, the Attorney General may seek to prosecute the detainees through our regular court system rather than through military justice channels.

I probably muddled the picture by mentioning the torture issue, but I did so because I find the Administration's stance there to be similar to their stance with Hamden and many of the other Gitmo detainees. Basically this: "We're going to do what we want to do in absence of compelling arguments or legal restrictions to the contrary." There is a compelling argument to be made for increasing the severity and frequency of "coercive interrogation" in a world where al-Qaida with nukes might well equal millions dead. But we can not win a war against a vicious, unprincipled enemy by becoming vicious, unprincipled killers ourselves. It is in the interest of the Executive Branch to push for as much power to protect the country as possible. It is in the interest of the other two branches, and the country, to make sure that those pushes are closely overseen and that newly granted powers are not abused.

Finally, Mojo asks me four questions. I have not read as deeply as he, and perhaps I am a blind dupe of the mainstream media's spin of Hamden and related issues. Personally, I don't think so. Personally, I think I read widely enough, and think things through thoroughly enough, to feel fairly confident that, while my analysis may not be DOBA, it is a reasonably good synthesis of the overall gobblygook.

But I could be wrong.

Okay, the questions:

Where were the balance of power issues?

The balance of power issues are primarily in the defining of the President's powers during times of war. Our enemy in this war is unique, and the end point of said war is about as ill-defined as such a thing can be. It is the nature of the Executive Branch to push for expanded powers during times of war-- this is well established, and completely acceptable. The problem being that with an ill-defined end point, where do we draw the line on when the President can define things the way he wishes? When do expanded powers cease to be of military significance, perhaps necessity, and become peace time over-reach by the executive branch?

Defining the how, what and where of the tribunals for detainees that aren't exactly prisoners of war, but aren't citizens (covered under U.S. legal and civil codes) is uncharted territory. In a time of war, perhaps there is a pressing need to have those trials expediently and even secretly. But at some point, that pressing need is no longer so pressing, and, to me, that is essentially what Hamden said-- there is no need to proceed without clarification and increased transparency.

What actions on the part of the President constituted a sidestepping of legal strictures?

Using war time powers to establish military tribunals for detainees that aren't really prisoners of war. I don't think the President did anything criminal. I don't really think he did anything wrong, per se, but the precedent established was dangerous, in my opinion. Secret military courts with little or no civilian oversight for individuals who are defined as "suspicious" by the military is pushing the envelope too far, in my opinion. And in the Court's as well.

How was Hamdan a rebuff to those sidestepping actions?

As Mojo himself states, it throws it back to the President to have Congress clarify the situation or to use other means to prosecute the case. This is how it is supposed to work-- there is a gray area, one branch attempts to define that gray area, and an individual or group who feels that their rights are being trampled unduly by that branch's decision, petitions the appropriate other branch for redress.

What policies, orders, or statutes can be cited which show a denial or circumvention of due process rights to those who are afforded such rights?

Um... I think I answered this above, though I cannot cite specific "policies, orders or statutes" for you. Military detainees must have some rights-- they can't simply be non-persons. Either they are covered by the military code of justice or by U.S. criminial and civil code. Simply making them disappear is exactly what we opposed when we liberated Iraq-- it's what tyrants and tyrannies do-- even if they do it with the best interests of their country in mind.

I'm not saying George Bush is a tyrant. I think he's attempting to do his best to protect our country, and I think he is pushing hard to get as many tools as possible to do that. That's his job. It is the job of Congress and the Supreme Court to tell him when and how what he is asking for is inappropriate and out of line with what our country believes in and stands for.

A fine line to be sure, and a moving one, but I am encouraged by the Hamden decision because from my viewpoint, things worked just as they were designed to by our Founding Fathers. 230 years later, in a vastly different world, our system of checks and balanceds still works.

And that's a very good thing.

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John, sit down. Are you seated? Good.

I don't think that the Hamdan ruling was necessarily a bad ruling. I'm not sure if the Supreme Court should have actually heard the case (based upon the jurisdiction limitations of the DTA), but they did hear the case and I think that their ruling was well argued and defined.

The "Bush got knocked down a couple pegs" proposition is getting spun off of the decision, but I would speculate that most who read the ruling and honestly commented on it would not agree with that assessment.

In fact, in my understanding of the decision, the two big fallout pieces could end up being the dismantling of the DTA and the use of the Geneva Conventions to more broadly prosecute terrorists for war crimes.

The DTA, which doesn't seem to have any severability clause, could be struck down if Congress' restrictions on jurisdiction are found to be unconstitutional. If that happens, then McCain's "anti-torture" legislation, which is part of the DTA, would be wiped out as well.

With the finding that the terrorist detainees fall under the protections of the Geneva Conventions, even though they are not signatories to it, then one could logically presume that we could equally charge the terrorists for any violations of those same Conventions. A good example of standard terrorist actions would be perfidy.

The Geneva Conventions define perfidy as "Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy." Examples of such, per Article 37 of Protocol 1, are the feigning of an intent to negotiate under a flag of truce or of a surrender; the feigning of an incapacitation by wounds or sickness; the feigning of civilian, non-combatant status; and the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Overall, while the Hamdan decision will further delay the hearing of the charges against the ten terrorist detainees who were awaiting their military commissions, there is not going to be any change in their status. Other detainees, however, could be affected by broader considerations of their actions on the battlefield as viewed through the Geneva Conventions, and also by the possible loss of additional treatment protections that were guaranteed by the DTA.

The remainder of this is for Nick, and for anyone else interested in my rebuttals to certain statements from Nick's most recent post on this issue.

Mojo also details some of Hamden's peers in Gitmo-- which, while illustrative of just what it is we are facing, has no real bearing, as even the most despicable murderer has a right to a fair trial under our rule of law.

Hamdan is one of fourteen terrorists detained at Guantanmo who have been charged with violations of the laws of war, and one of the ten of those fourteen who were awaiting a hearing before a military commission. Those fourteen terrorists make up 3% of those detained at Gitmo. I listed Hamdan's peers as an example of the overall group of which Hamdan and the other thirteen belong.

This isn't a situation in which some good ol' boy judge is denying rights to whatever various minorities he disapproves of; this is a case of needing to protect our intelligence assets while still providing a fair venue in which to hear the charges against vicious terrorists. The strange part is that, if anything that these terrorists have been accused of doing (not to mention what they have done) was alleged to be done by a member of the military or the administration, the MSM would be screaming for us to lock them up and throw away the key; even if the wrong-doings were based only upon allegations from anonymous sources.

The military tribunals were ill-defined, secretive, and smelled distinctly of kangaroo court.

I am presuming that you believe that the military commissions were ill-defined because you don't know what procedures were put in place for their operation, and the MSM has done next to nothing to help to describe what the commissions were for or how they were to operate. The fact of the matter is that DoD has defined the commissions.

Here is a link to a sixteen page document, signed by Donald H. Rumsfeld himself, entitled "Military Commission Order No. 1" from 21 March 2002. The subject of the document is "Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism," and the purpose listed in the document is:

"This Order implements policy, assigns responsibilities, and prescribes procedures under references (a) and (b) for trials before military commissions of individuals subject to the President's Military Order. These procedures shall be implemented and construed so as to ensure that any such individual receives a full and fair trial before a military commission, as required by the President's Military Order. Unless otherwise directed by the Secretary of Defense, and except for supplemental procedures established pursuant to the President's Military Order or this Order, the procedures prescribed herein and no others shall govern such trials."

The appointing authority for DoD's Office of Military Commissions, John Altenburg Jr., noted when the first of the commissions were set to begin in August of 2004 that the military commissions would be similar to trials in civilian courts in that there is a presumption of innocence; each charged detainee has been appointed a defense counsel for free and is allowed to obtain his own civilian counsel; the accused cannot be required to make a statement; prosecutors must establish proof of guilt beyond a reasonable doubt; and defense counsels have the ability to cross-examine witnesses, to challenge the government's evidence, and to present evidence and call witnesses of their own.

More information on the military commissions (including charge sheets, transcripts, exhibits, allied papers, schedules, commission status, and other references) can be found here.

I must strongly disagree with the assertion that the military commissions were ill-defined, secretive (outside of certain evidentiary rules to protect intelligence sources), or in any way like a mock, irresponsible, or unauthorized court.

[M]y point is that the Supreme Court recognized that there was a big loophole and they denied the President access to that loophole unless and until Congress clarifies the situation. Alternatively, the Attorney General may seek to prosecute the detainees through our regular court system rather than through military justice channels.

That is incorrect. This is very important because your point is based a false premise. The military commissions may proceed if:

1. The administration offers evidence that the procedures of ordinary courts-martial would not be practical.

2. Some of the rules of the military commissions, primarily evidentiary, are changed to be similar to, or the same as, those of courts-martial.

3. The Congress approves the procedures of the commissions as they currently stand.

The Supreme Court did not find that the AG may try the terrorists detained at Guantanamo in the U.S. civilian court system. Also, the Supreme Court did find that issues of military law are in the jurisdiction of military justice and the courts-martial system.

Regarding Balance (Separation) of Powers

The scope and purpose of the military commissions, and those who the commissions applied to, were clearly defined by the DoD and the President's order from November 2001. For the administration to have an over-reach on this that would begin to affect U.S. citizens would require actions not defined or permitted in the documents currently cited for the authority of the commissions. It's not a slippery slope; it's just that no one seems to have read the documents related to this and, as such, most believe the unfounded hype that this is a power-grab. The military commissions were going to affect about 3% of the terrorists detained at Gitmo, and the orders and policies which were the basis for the commissions did not over-rule the existing rights U.S. citizens.

If you want to look at separation of powers issues, consider that the Supreme Court granted themselves jurisdiction in the Hamdan case in spite of a law restricting jurisdiction that was created by the legislative branch, and in spite of protests by the executive branch which cited that legislation. I find that of much more concern than any of the actions taken by the elected branches of our government in this case. If justices, unelected and appointed for life, can insert themselves at will by simply deciding that a law doesn't apply to them, and in the process block the actions of the other two branches of government due to their implied power of judicial review, then we had better hope that those nine people (or maybe just five of them) don't ever decide to further their power through their interpretation of our laws.

Regarding the Sidestepping of Legal Strictures

Secret military courts with little or no civilian oversight for individuals who are defined as "suspicious" by the military is pushing the envelope too far, in my opinion.

There were secret aspects of the evidentiary rules for the purpose of protecting intelligence assets, but the rest of the commissions were well defined and had procedures which were, in most cases, similar to civilian criminal courts or courts-martial. The recent New York Times article regarding the SWIFT program is a prime example of why we need to protect our intelligence assets. These weren't secret or kangaroo courts, though.

Further, as I noted above, you can read the charge sheets against some of these terrorists at the DoD website with the military commission information. The charges were not that the individuals were merely "suspicious." These are very nasty (one might even say evil) people we are dealing with, and the charges against them indicate that.

Regarding Hamdan as a Rebuff

As Mojo himself states, it throws it back to the President to have Congress clarify the situation or to use other means to prosecute the case.

I don't know if I was as clear as I could or should have been in my responses to the original post, so I'll try to summarize more clearly. The administration waged war and executed the laws based upon past precedent and existing statutes. The legislature passed legislation regarding Guantanamo prisoners and the courts which had or didn't have jurisdiction over them. The legislature didn't pass any laws, however, which specifically defined policies for military commissions. (Since the administration already had such policies in place, and jurisdiction had been conferred to the military once status of the detainee had been determined, it may have been presumed that such specific legislation wasn't necessary.) The judiciary determined that, barring further justification from the executive or definitive legislation from the Congress, courts-martial would need to be used in place of the military commissions.

If the administration had been as draconian as they have been made out to be, then Hamdan would not have had free counsel appointed to him and, in the process, been able to contest the military commissions. The rights provided by the administration to those facing the commissions are what allowed this to go all the way up to the Supreme Court. If this was an attempt to deny due process rights or to create secret courts, do you really think that competent counsel would be provided or that appeals outside of the "secret courts" would have been allowed?

Regarding Policies, Orders, or Statutes Which Show a Denial of Due Process

Military detainees must have some rights-- they can't simply be non-persons.

The terrorists detained at Guantanamo have many rights. Their status must be determined by tribunal and, in some cases, federal court. Accommodations and treatment for those detainees follow the Geneva Conventions and, in most cases, are better than the accommodations and treatment provided to U.S. citizens who have been found guilty in civilian courts and are being held in municipal, state, or federal corrections facilities.

Either they are covered by the military code of justice or by U.S. criminal and civil code.

They are covered by military justice. That is the main authority under which the military commissions were created. Following the SCOTUS decision in Hamdan, the military justice system remains the authority which holds jurisdiction.

Simply making them disappear is exactly what we opposed when we liberated Iraq-- it's what tyrants and tyrannies do-- even if they do it with the best interests of their country in mind.

The administration was not trying to simply make these individuals disappear. If that was the case, why would we go through the trouble of creating a paper trail that determines status of the detainee, provides him counsel, and allows him to have a day in court? If the administration wants to make these people disappear, they should just find Dana Priest's sources to the "secret CIA prisons in Europe" and turn the detainees over to that black-ops group. That would really be so much easier, have less political fallout, and provide no paper trail.

The actions of the administration are not those of tyrants and tyrannies. If they were, we would only hear about them as rumors and allegations leaked out to keep the rest of us in line.
For the record.

I never said that the Administration's actions were tyrannical (I know many others more rabid than I have). I never said that the Military Commissions were kangaroo courts, but rather that they seemed to be heading that direction. Perhaps this is entirely do to poor and misleading coverage by our media. That certainly wouldn't surprise me. On the other hand, documets like this one leave you with the impression that the commission process was hurried at best, half-assed at worst.

And given that I am distrustful of President Bush's honesty, I no longer grant him the benefit of the doubt. Perhaps that is irrational, but I find his polices and personnel choices disturbing in far too many areas to simply assume that because it falls under USMJ it's okay.

Anyway, my main point with even talking about Hamden is that I think it is illustrative of how magnificent our system of law and governance is. You are correct-- we don't just make people disappear. I wasn't trying to imply that we do. I was merely trying to illustrate that the check of the Supreme Court helps to ensure that things that happen in banana republics don't happen here.

Thank you for taking the time to clarify things, Mojo, I do appreciate it. And I feel better that the military commissions weren't nefarious.

I'd feel better yet if much of the evidence you use to make your points weren't coming from Donald Rumsfeld, who I no longer trust farther than I can throw him. That's just a personal bias-- no need to try and dissuade me on that one.

Finally, for the record, I have read some background material in this case. Most of it came from scotusblog.com and its associated links.

I find after considering what you've written, Mojo, and looking at other opinions, that I basically agree with this guy. Let's use our existing courts-martial system and let's get on with it.
Thanks, Nick. I also believe that the system worked in this instance, but I would still contend that, due to the jurisdiction restrictions of the DTA, the judiciary was the one of the three branches that may have come closest to extending their reach. Regardless, the system worked, the ruling is in, and the outcome seems to be relatively fair all around. We both agree that the system that our Founding Fathers set-up centuries ago is still working well, even if we may not completely agree with some of the arguments from one side or the other.

As much as you are leery of the administration, I am leery of the media. That is a large reason why my responses tend to be so long; there is a lot of information that seems to be glossed over or disregarded when the news is summarized by the MSM. Most of the time, though not every time, I try to follow the Reagan concept of "trust-but-verify" when I am checking out the latest headlines. It is frightening to consider how much relevant information is either left out, or misrepresented, it the news capsules presented to the majority of the public.

As for the evidence with Rumsfeld's signature on it, I included that because, honestly, I have a hard time believing that an over four-year-old order coming from the Secretary of Defense, based upon an earlier executive order from President Bush, in regards to the policies of the military commissions, wouldn't have been front-page news if any aspect of it could have been presented as proof that Rumsfeld and/or Bush had knowingly and directly ordered illegal commissions in full violation of U.S. or military law. I'm not trying to dissuade you from your personal opinions of Rumsfeld or Bush, but does anyone seriously believe that that public document would not have been on the cover/front page of Time, Newsweek, The New York Times, The Los Angeles Times, or many other publications had it provided proof of direct (and criminally liable) orders to hold nefarious military commissions?

Finally, in an attempt to make this one of my shorter responses, I also agree with many of the points (not all, but several) made by Neal Katyal in regards to using courts-martial instead of having Congress completely define a new military commission system. I'd be inclined to argue mainly against his reason number three, and I'm still concerned about the security of some intelligence assets with the evidentiary rules of courts-martial, but I think that the existing military justice system may be the best way to go; if for no other reason than it would probably make the rulings for or against the defendants more acceptable to the rest of the world.
Nick, I don't know if you still check back on your blog or not. It's been nearly half-a-year since you've posted, so maybe you have just lost interest in it. Hopefully you'll be back, though.

I was reading something today and it made me think about our debates on your blog, especially in regards to the Bush administration's use of executive power. Here is a slightly redacted excerpt:

Senator Feingold Hits Administration Over Extraordinary Rendition Decision

Senator Russ Feingold is sharply criticizing the administration over its controversial decision to maintain the state secrets privilege position in a closely watched lawsuit involving alleged victims of extraordinary rendition, a decision that generated a storm of criticism yesterday.

"I am troubled by reports that the administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition," Feingold said in a statement sent to me by his office.

Feingold's office also confirmed that he is seeking a secret briefing on the case from the administration — something that could put the administration on the spot and potentially ratchet up the confrontation.

"I have asked for a classified briefing so that I can understand the reasons for this decision," Feingold's statement said.

The case involves five men — one Guantanamo detainee, two jailed in Egypt and Morocco, and two free — who sued a subsidiary of Boeing called, Jeppesen Dataplan. They accused the company of helping the CIA fly them to other countries and CIA camps to be tortured, as ABC News put it.

The case was tossed out of court a year ago because of national security. Yesterday the appeal, which had been brought by the ACLU, was heard in the Ninth U.S. Circuit Court of Appeals.

ABC News, citing a source inside the court, reported yesterday that a Justice Department rep told the court that the administration stood behind the previous case, with no ambiguity. The news infuriated civil liberties groups, who wanted the administration to let the case continue.

But a spokesperson for the Justice Department defended the decision, telling ABC that the administration would "invoke the state secrets privilege only when necessary." He said it it wouldn't be "invoked to hide from the American people information about their government's actions that they have a right to know," and said that the Attorney General was reviewing all state secret privilege matters.


What is interesting is that the above piece could easily be an article from about the time of this post, and I would guess that you probably would have fully agreed with Senator Feingold if this had been written of the Bush administration at the time of the Hamdan decision.

This isn't about the Bush administration, though. This is a criticism of the Obama administration by Feingold.

I'm curious what your position is on the Obama administration killing this case by invoking the state secrets privilege.

Hope to hear your thoughts on this.
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