I Told You We Were Focused on the Wrong Thing

For years I have complained that the opposition to the GWB administration was focused on the wrong things vis a vis the detention policy at Gitmo.  There was too much focus on Gitmo itself as a lightening rod, and too much discussion of whether flushing a Koran down the toilet was torture.  My point was that there didn't have to be torture for it to be wrong to hold non-uniformed suspected non-combatants in a non-declared war indefinitely, as if they were captured Nazi U-boat commanders.   For example:

I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.  But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me.  As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.

Justice Scalia argued that giving habeas corpus rights to enemy combatants during war time was unprecedented, but I responded:

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine [that] the Supreme Court, encountering this new situation, sides with the individual over the government.

So now, just as I feared, the soil was fertile for a classic political bait and switch.  Obama agreed to close Gitmo, the lightening rod of the controversy, thereby inspiring us to believe he is changing policyWhen, at its heart, the real problem is still there:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.

I assume she and Holder are toeing the Obama line on this, though they could be the bearers of a trial balloon and it may be Obama has not made up his mind.  I hope so.  Here is some more.

"Do you believe we are at war?" Graham asked.

"I do, Senator," Kagan replied.

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.

"Do you agree with that?" the senator said.

"I do," Kagan replied.

Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"

Kagan replied, "I think it makes sense, and I think you're correct that that is the law."

"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.

I may have missed it, but did the AUMF or whatever it was that Congress passed before we entered Afghanistan and Iraq actually declare we were at war with the organization named "Al Qaeda."  Or does the president saying the words "war on terror" enough times in 8 years just make it so?


  1. ErikTheRed:

    There are a ton of problems here, but the underlying issue is that we're giving the government a tremendous deal of power and being told to accept this on faith that they're doing the right thing. They may be holding some innocent people who were in the wrong place at the wrong time and / or turned in as scapegoats, in which case we as a country have committed a truly heinous wrongdoing. They may be holding people who are so insanely dangerous that it would make sense to bring back the concept of outlawry and we're actually being too merciful.

    This is terra incognita for us as humans as we try to become more "civilized" in our dealings with warfare and justice. My sense is that there is a category of person who needs to be locked up at Gitmo, however, I'm not at all comfortable with the government saying "ummm... just trust us on this stuff." There needs to be a very stringent set of guidelines for this sort of treatment, and as much as the government loves secrecy, there needs to be ample transparency in the process. If somebody is actually this dangerous and the government feels the need to lock them up on an island indefinitely, they need to "drop trousers" and let the world know exactly what's up - no secrets allowed.

    The need to deal with this issue is only going to increase as time goes on and individuals and small groups gain the ability to do increasing amounts of damage to civilization. The Geneva Convention was intended for nation-states fighting other nation-states, and is completely outdated and obsolete in this context. We need something new. I don't think Bush's idea is the way to go (at least as implemented), but I haven't really heard any serious, workable alternatives put forth by its opponents.

  2. Max Lybbert:

    (1) The Supreme Court has already ruled that the military can *take* prisoners without automatically granting habeas corpus to those prisoners, but the military can't *keep* those same prisoners without eventually giving them habeas rights. So Obama's going to have a hard time telling the Court that their five year old ruling needs to be overturned.

    (2) The important language form the AUMF (for Afghanistan) is "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

  3. Hugh:

    I believe you are incorrect about the lack of hearings for detainees at Gitmo. I believe they were at least brought before a military tribunal. Gitmo is not a black hole that has never released anyone either. There is some sort of review process for inmates. A number have been let go and a least a few have gone back to the fight which seems to indicate the review process is far from perfect but what is?
    You are right to hate all the power the USG is taking upon itself in this conflict. It's wrong but from what I can see it's a necessary evil. There are a large number of fanatics out there who want us to convert or die.
    I don't think it's a good idea to dump all the detainee's in the criminal justice system. Manipulating it seems to be part of their playbook (e.g. the zacharias moussaoui trial )
    Can you suggest a better way of handling these folks that doesn't compromise the USG's ability to fight them?

  4. John Moore:

    In the case of alleged terrorists, there is a difficult problem, which the Bush administration tried to deal with in a balanced manner. Under the Geneva Convention, they had the right to simply hold battlefield tribunals and shoot some of these people out of hand. Unlike our enemy, that is not considered acceptable. Furthermore, some of these people were of intelligence value. Finally, many were clearly dangerous.

    Even so, they tried to release non-dangerous prisoners. A significant number released have gone back to terrorism against us, which is pretty good evidence that they were, in fact, dangerous - probably for an indefinite period of time.

    Others (like the Uighurs) faced a different problem. They are Jihadists and unwelcome here (with their Jihadist mentality, Al Qaeda training, and Al Qaeda contacts). On the other hand, they are not as likely to be dangerous outside the US as some of the others. The most important purpose of government, and the issue which separates libertarians from anarchists, is the duty to protect its citizens against foreign and domestic enemies (the latter through police powers). No country would take them - including the many that were excoriating the US for holding them. Only the Chinese were willing, because they wanted to execute them.

    The folly of trying these people in the US criminal court system should be really obvious.

    So things are not as simple as you make it look.

    Furthermore, the executive set up judicial proceedings to adjudicate these prisoners. They were, appropriately, military. SCOTUS threw them out, asserting that Congress needed to be involved. So Congress and the executive created new procedures. These hearings were in progress when Obama, in what military lawyers might call in illegal act of command influence, canceled all trials in progress. This simply postponed things.

    All of this is taking place while we are clearly and legally at war with the organizations these people belonged to.

    If there were Americans in Guantanamo, it would be a different situation. But they aren't Americans, weren't captured in America, and regardless of the imaginations of the Supreme Court, have no Constitutional rights.

    In a perfect world, we could apply all sorts of protections to every citizen in th world. We do not live in such a situation. We live in a world of danger and uncertainty.

  5. Sam Wah:

    I say treat them like pirates (as pirates used to be treated), or as Geneva Conventions specify. Non-uniformed combatants are not granted any rights, and may be shot.