Why That Separation of Powers Thingie Makes Some Sense

The NY Times reports, via Hit and Run, that judicial review of Gitmo detainees, which the Administration has steadfastly resisted, may be quite justified:

In the first case to review the government's secret
evidence for holding a detainee at Guantánamo Bay, Cuba, a federal
appeals court found that accusations against a Muslim from western
China held for more than six years were based on bare and unverifiable
claims. The unclassified parts of the decision were released on Monday.

With some derision for the Bush administration's arguments, a
three-judge panel said the government contended that its accusations
against the detainee should be accepted as true because they had been
repeated in at least three secret documents.

The court compared
that to the absurd declaration of a character in the Lewis Carroll poem
"The Hunting of the Snark": "I have said it thrice: What I tell you
three times is true."

"This comes perilously close to suggesting
that whatever the government says must be treated as true," said the
panel of the Court of Appeals for the District of Columbia Circuit.

unanimous panel overturned as invalid a Pentagon determination that the
detainee, Huzaifa Parhat, a member of the ethnic Uighur Muslim minority
in western China, was properly held as an enemy combatant.

The panel included one of the court's most conservative members, the chief judge, David B. Sentelle....

Pentagon officials have claimed that the Uighurs at Guantánamo were
"affiliated" with a Uighur resistance group, the East Turkestan Islamic
Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

Next up, the detainee whose mother's gynecologist's dog's veterinarian's great uncle once was friends with a Muslim guy.

The Administration now complains that there is nowhere that this man can be sent back to, and somehow this is supposed to validate his detainment?  He wouldn't have had to be sent back anywhere if he hadn't been snatched up in the first place.  I am willing to believe that this guy may be a bad buy, but we let lots of people we are pretty sure are bad guys walk the street, because for good and valid reasons we rank false detainment of the innocent as a greater harm than non-detainment of the guilty.  Anyone seen OJ lately?


  1. Bob Hawkins:

    You're committing a category error.

    POWs are not, in general, criminals. They are not imprisoned as punishment or for rehabilitation. They are imprisoned for the convenience of the war effort. Thus they are supposed to be released when the war ends, and there is no longer a war effort to be inconvenienced. No time off for good behavior, no additional time for being a troublemaker. Only the convenience of the war effort is supposed to be relevant.

    The argument is made that some of those held currently are held by mistake. No doubt at least some are. And that implies a war crime. Under international law, that crime was committed by the terrorists, some of whom are being held also. By not clearly identifying themselves by wearing uniforms or other insignia, they tried to make it impossible to distinguish combatants and noncombatants. If they succeeded to the extent that noncombatants are being held as POWs, that is their responsibility.

    Now these terrorists are criminals. They are subject to punishment in the form of summary execution. You remember the Pulitzer Prize winning photograph of a South Vietnamese brigadier general shooting a bound Vietcong prisoner in the head with a snub-nosed .38? What that general did is not only permitted by international law, it is encouraged. The threat of summary execution is one of the main enforcement mechanisms of this part of international law. The general was later permitted to immigrate to the US because there was no evidence of any crime in his record.

    You may feel that international law is wrong, even immoral, in this case. It was written around 100 years ago. The men who wrote it got the chance to do so by rising in various imperial bureaucracies. It's a statistical impossibility that everything they wrote would look good to you today.

  2. Captain Obviousness:

    The problem is that no one knows what to call these guys. They are not POW's because they are not fighting in uniform on behalf of a country in a war with us. They are not criminals because US criminal law does not, as far as I know, apply to non-citizens in other countries.

    Basically we are going to have to just let all these guys go. Assume some US soldiers capture a guy in Afghanistan who is armed and present on a battlefield where people are shooting at US soldiers. The only evidence against him is the "unverifiable claim" that the US soldiers saw him on the battlefield. There will almost NEVER be any physical evidence that could be used to "verify" the claim that this guy should be locked up. Unless the testimony of a US soldier is alone enough evidence to keep someone in custody (and it should be, but I doubt it is anymore), nearly all of these "enemy combatants" will end up being released.

    Solution? Just kill them if they surrender instead of capturing them.

  3. Esox Lucius:

    the detainee whose mother's gynecologist's dog's veterinarian's great uncle once was friends with a Muslim guy.

    What does that make us???

    ... Absolutely Nothing...

    Nice spaceballs reference!

  4. Rocky Mountain:

    So a judge quotes Lewis Carroll and judicial righteousness has been achieved!

  5. Rocky Mountain:

    So a judge quotes Lewis Carroll and judicial righteousness has been achieved!

  6. Mark:

    A couple of points:

    1. THe evidence is "weak" on the basis of these individuals committing crimes or being a threat AGAINS THE UNITED STATES. This does not mean that these individuals are "innocent".

    2. It is a very valid problem that no other country will take this scum. The fact that they were swept up in the first place may or may not be a mistake, but the fact remains that to "get rid of them" some other country must take them. It is pretty telling no one else wants these individuals.

  7. K:

    Reminds me of an article about a marine sniper who killed a person in Afghanistan recently. The sniper was watching a road where bombs had been planted before.

    She (yes, she) saw a man apparently burying a bomb at the roadside. She shot and killed him. There was a big explosion. (probably the bullet also hit the bomb he had).

    If the person had been captured and tried what evidence holds up? He would say he was just passing by and became curious about some fresh dirt. And there was a small shovel there too, it wasn't his shovel. That bomb must have been there before.

    He said, she said.

  8. mahtso:

    If this were a "Separation of Powers Thingie" wouldn't the Congress and President's position have prevailed? What war powers does the Court have?

  9. ParatrooperJJ:

    yup. Declare him a Title I POW and then shoot him for being captured out of uniform. Perfectly legal.

  10. Chris:

    OJ hasn't blown himself up, causing dozens of casualties, as one of the recently released detainees did.

  11. John Moore:

    I truly cannot understand why anyone who values liberty would consistently support a ruling that grants rights to enemies while removing from Americans the constitutional right to wage war under international law, controlled by democratically elected representatives acting in accordance with the long standing interpretation of the constitution!

    This decision was simply a power grab by the court and America's new elite - the leftish acedemia, media and nomenclatura. By ignoring over 200 years of jurisprudence, overriding the executive and congress's constitutional power to set up rules for trying these prisoners (as the same imperial court declared in the previous decision), they have committed an absurdity.

    This does not enhance liberty, except for a few innocents and a lot of guilties caught up in a war. It reduces the liberty of the rest of us to elect representatives who can protect us against these beasts (as Bork recently pointed out).

    Furthermore, by ignoring stare decisis and the clear intent of the constitution, the court is arrogating to itself the power to make policy - a habit getting more and more common.

    This decision is, very critically, little different from Kelo, which Coyote has condemned. Both are a result of bad process, of a dangerously flawed judicial trend to ignore the clear meaning and intent of the constitution, and to arrogate power over branches of government. In fact, it could be argued that Congress' action in setting up the tribunals constitutes an exercise of its (not well known) constitutional power to remove the Supreme Courts' jurisdiction in the cases.

    The Supreme Court was not set up to create good outcomes. It was set up to balance excesses by other branches by interpreting the constitution where constitutional issues arose.

    In the last fifty years, a dangerous new philosophy has come to dominate the court - the "living constitution" - which means, basically, "we must rule to create good outcomes by today's standards, and to heck with the rules enshrined in that document." Good outcomes are whatever makes the judges feel good, including incorporating "international laws and norms" so that the judges are not called bad names by snobbish European elites.

    If you value freedom, you should recognize the enormous danger of an uncontrolled court making up the rules by which we are governed, and which more and more control our daily lives.

    This tradition has brought us affirmative action, the loss of federalism, the gutting of the Commerce Clause, the New Deal, the management of school systems and police departments by judges, taxation by judges (Kansas City), Kelo, the destruction of many religious liberties, and many more insanities.


    On the outcome side, this decision is like using an atomic bomb to kill a fly in someone's house (not your own, of course). A microscopic gain and enormous harm.

    This is hardly likely to increase liberty of non-Americans or Americans. It will definitely result in a reluctance to take prisoners in battle - which we are not obligated to do with unlawful combatants anyway. It will reduce our intelligence capabilities, costing American lives. It will mean that we will turn prisoners over to local governments (which won't bother with niceties like legal interrogation methods).

    Under this ruling, in order to hold a prisoner of war (a recogized right of armies for, oh, about 5000 years), the soldiers (or military lawyers) must scour the battlefield for evidence, return to DC to testify, and generally behave as policemen rather than warriors.

    Rhisa ruling is absurd on the face of it. ABSURD!

    It is the road to tyranny.

  12. John Moore:

    err/// Rhisa <= This