Coyote Blog

Sigh -- here is your update:  Human beings are still being detained by the US government in Guantanamo without any due process.  I was writing about this 15 years ago, but with the loss of some of my early content the earliest I can find is this from 2006.  The problem always was our using US POW rules from past wars in this very different war.  In the past, wars actually ran for what now seems like a limited time (though folks living through WWII would be surprised at that perspective).  POW's for most part were captured in uniform and on a battlefield (or floating in the water after their ship sank).  Nobody really had due process concerns as a) being in a German uniform in a Normandy pillbox on June 7 was pretty persuasive evidence one was an enemy combatant; b) the detained combatant was likely headed to Arkansas to harvest crops for a year or two, which was a FAR better place to be than where they were captured; c) when the war unambiguously ended, they went home.

But in our current AUMF and the "war on terror," where does it end?   There are no uniforms.  The battlefield as defined is the entire world.  The power to detain human beings for the duration of the war allows the Administration to detain roughly anyone they way, without having to defend that decision, and keep them however long they want because only the Administration (or perhaps Congress if it had a spine) decides when the "war" is over.

I had hoped that the Supreme Court would take the opportunity to review this practice after so many years had passed.  I think there were real reasons to ban this practice in 2004 when the Court reviewed this the first time, but at that time the war was relatively fresh and the detentions still shorter than other wartime POW internments.  But what about now?  Unfortunately, the Court declined to rethink their earlier position, despite hints in the original decision that matters might change if the "war" dragged on.

Today the Supreme Court declined an opportunity to examine whether it's still acceptable to hold enemy combatants in Guantanamo Bay at a time when Washington's interventions in Afghanistan and Iraq no longer resemble anything the U.S. was doing in the direct wake of 9/11.

Moath Hamza Ahmed al-Alwi, a Yemeni citizen, has been imprisoned in Guantanamo Bay since January 2002, when he was captured in Pakistan fleeing Afghanistan. He was initially accused of being a veteran terrorist combatant and a former Osama bin Laden bodyguard. Much later, in 2015, officials concluded he was most likely not a former bodyguard; while he was affiliated with Al Qaeda and the Taliban, it's unclear whether he was engaged in any sort of combat against the United States. He's one of 40 prisoners still detained there.

He's been sitting in Guantanamo Bay for 17 years, but the U.S. government has not charged him with any crimes. It doesn't appear to intend to charge him with anything, but it also refuses to release him, because the Authorization for Use of Military Force (AUMF) to wage war in Afghanistan and against the Taliban and al Qaeda remains in force.

In 2004's Hamdi v. Rumsfeld decision, the Supreme Court ruled that the AUMF authorized such detentions with an understanding that this authorization ended at the conclusion of the war. But even in 2004, the majority was cognizant of the possibility that this amorphous "war on terror" was likely to change over time. In the ruling, written by then-Justice Sandra Day O'Connor, it notes: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date."

I find Conservative support for these detentions frustrating in light of recent events.  People across the political spectrum, but particularly Conservatives, were outraged that Harvard would terminate a dean merely because as a lawyer he chose to represent an unpopular client (Harvey Weinstein).  They rightly argued that due process demands representation of every client, and that to make that work an attorney's moral standing can't be conflated with that of his clients.  Or put another way, what a defendant allegedly did or did not do is irrelevant to  what we owe them for due process.  I think the same can be said of the folks left to die in Guantanamo.

But Coyote, they aren't American citizens!  We don't owe them due process.  Wrong.  We do.  Read the first words of the Declaration of Independence.  Rights belong to all human beings -- they are not grudgingly granted by the Constitution to US Citizens only.  There is nothing in what I call the extended Bill of Rights (including 13-15) that does not apply to everyone who walks the Earth and interacts with the US Government.  Otherwise, as an extreme example, grabbing Africans and enslaving them would still be Constitutional.

But Coyote, no one wants these guys.  Well, that is a different point and is NOT the current legal underpinning of their detention.  I do understand it is politically impossible, and perhaps even unethical, to drop these folks in the US.  If we free them all and no one will take them, then they may stay as our guests to try to live some kind of life at Guantanamo.  But that is not the status they have today.

But Coyote, one of these guys may kill again.  In general, the argument in favor of confining or keeping at a distance any group that probably contains future criminals is bankrupt.  The argument exploded in popularity on the Right a while back with the Skittles immigration meme.  The meme said something like if you had a thousand Skittles and knew one was poisoned, would you eat from the bag?  And if not, why would you let in immigrant populations that likely include some future criminals.  The problem with this is that if this argument really had moral weight, we would be equally required to ban sex or at least all births since some percentage of babies born will be criminals.  At a higher level, our whole legal system is based on the presumption that it is better to err on the side of not punishing an actual criminal than on the side of punishing the innocent (which we still do a lot of nevertheless).  This presumption of innocence is one of the key markers that separate us from totalitarian governments.

I was going to write a longer post on foreign policy vis a vis terrorism and ISIS, but I lack both the time as well as confidence in my foreign policy knowledge.

I will offer this, though:  There seem to be but two policy positions being discussed

1. The largely Conservative position that there is a dangerous and violent authoritarian streak running through the world of Islam and that we need to saddle up the troops and go break some heads and impose order
2. The Progressive position embodied by the Obama Administration that there is nothing abnormal going on in Islam and that what we see is random violence spurred by poverty and thus we should not intervene militarily (I consider the current AUMF proposed by Obama to be political posturing to satisfy polls rather than anything driven by true belief).

Why is there not a third alternative to be at least considered -- that there is something really broken in a lot of Islam as practiced today (just as there was a lot of sh*t broken with Christianity in, say, the 14th-16th centuries) and that Islam as practiced in many Middle Eastern countries is wildly illiberal (way more illiberal than any failings of Israel, though you wouldn't know that if you were living on a college campus).  But, that we don't need to saddle up the troops and try to change things by force.

Conservatives who can look at things like serial failures in Federal education policy and reach the conclusion that we should be skeptical about Federal initiatives on education seem unable to draw similar conclusions from serial failures in US interventions in the Islamic world.  And for its part, the Obama administration seems to be living in some weird alternate universe trying desperately to ignore the reality of the situation.

Yes, I know the first response to all folks like me who advocate for non-intervention is "Munich" and "Czechoslovakia".  So be it.  But if we sent in the military every time someone yelled "appeasement" our aircraft would be worn out from moving troops around.  And we seem to be totally able to ignore atrocities and awful rulers in Sub-Saharan Africa.

As a minimum, I would like to see a coalition of Arab states coming to us and publicly asking us for help -- not this usual Middle East BS we hear that Saudi Ariabi (or whoever) really in private wants us there but publicly they will still lambaste us.  Without this support we can win the war but we have no moral authority (as we did after WWII) in the peace.  Which is one reason so many of our interventions in the Middle East and North Africa fail.

I've gotten mail and comments on some of my surveillance- and detention-related posts, particularly this one here, that boil down to "but warrant-less national security eavesdropping is legal". John Hinderaker at Powerline makes this argument fairly compellingly.  To which I can answer, fine, but whether it is narrowly legal or illegal is a topic for partisan blogs who want to score points for or against Bush.  As one of those weird libertarian guys, my intention was to stand aside from the question of legality and instead pose the question of "yes, but is it right?"

Foreigners are People Too

It is interesting that I have to make this point more and more nowadays: Foreignors are human beings too.  For example, this idea that non-US citizens have (or should have) the same rights we do was one I highlighted in my defense of open immigration:

The individual rights we hold dear are our rights as human beings, NOT
as citizens.  They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds.  We have the right to live
free of force or physical coercion from other men.  We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work.  We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud

Speech, commerce, property, association, and yes, privacy -- these are all rights we have as human beings, so that the fact of citizenship in the US should not have any bearing on whether our government should respect these rights (except in the case of war, which we get into in a while).

These issues are oh-so-much clearer when we flip our perspective.  For Americans reading this, ask yourself:

• Does the government of Great Britain (or Russia, or Iran) have the right to wiretap your phone calls at will without warrant or review just because you are not a citizen of their country?
• Does the government of Great Britain (or Russia, or Iran) have the right to detain you indefinitely without access to a lawyer or embassy if a powerful person in their government declares you an enemy combatant?

If you answered "yes", then recognize that the 1979 capture of the US embassy staff in Iran was probably legal by your rules, as was nearly every other detention of American citizens by another country.  If you answered "no", then you need to be worried about what the US is doing in the name of national security, for certainly both Bush and Clinton, among others, claim(ed) these rights.  And if you answered "no" for all other countries but "yes" for us, presumably because you trust our guys but not theirs, I will admit you have some historical precedent, since the US for all its faults has generally acted more honorably than 99% of the other nations of the world over the last 100 years.  But you do need to think about the meaning of the rule of law, and why its always a bad idea to give good men power that you don't want bad men to have.

By saying this, I realize that am I not only out of step with the US appellate courts (as Hinderaker points out) and with the Supreme Court (at least on the detention issue, since they haven't ruled on the warrant-less search powers) but also perhaps with the founding fathers.  While most of the folks who wrote the Constitution understood the notion of rights that are derived from nature rather than from the state, the Constitution is mute on the laws of the US vis a vis foreign citizens (excepts where it comes to war).  It is interesting to note that the Bill of Rights doesn't make any distinctions between citizens and non-citizens - there is nothing, for example, that modifies the prescriptions of the fourth amendment to apply only to searches of US citizens.  One could easily interpret the Bill of Rights as proscribing the actions of the US government against any person of any nationality.  Anyway, if I am in conflict with the founding fathers, so be it -- the Constitution is a fabulous document as totally ahead of its time as would be having 19th century India put a man on the moon, but it was not perfect.

The Magic Words: National Security

You may notice that defenders of these presidential powers tend to play a little verbal slight of hand (in addition to the one discussed here):  They translate the president's powers as CinC to mean "carte blanch for national security issues".  You hear this slight-of-hand so often, one starts to think its written that way in the Constitution, so it is probably good to remind ourselves what that document actually says:

The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States

That's it.  The president can give orders to the military  -- whether that means he can do anything he wants in the name of national security is a whole other issue.  Folks also seem to want to argue that this CinC power cannot be modified or limited in any way, but that's silly.  The third amendment is aimed solely at the limiting the power of the military.   And certainly the folks who first adopted the constitution and the Bill of Rights believed that the 4th amendment applied to the military as well.  In fact, they would have said especially the military.

The Right Way to do Searches

Here is how we have generally interpreted the 4th amendment:  The legislative branch sets the ground rules, as followed by the Administration.  The administrations selection of targets is reviewed by the Judiciary (warrants) and is also subject to later review at trial (via the admissibility of evidence).  What we try to avoid is allowing the same person to set the rules, choose the target, and perform the surveillance, all in secret and without outside review.  The problems with the NSA wiretapping program is not that it is wrong per se, but that it may violate this process.  The administration is claiming the right to choose the target and perform the surveillance under the own rules and in secret with no possibility of review.   

Declaration of War Needs to Mean Something Again

If there is any part of the constitution that has really gone by the wayside in the last 50 years it is the provisions around declaration of war.  Over the past decades, president's have claimed the power to move forces into action, not just defensively but offensively, without a Congressional declaration of war.  And Hinderaker sees the declaration of war, or the Authorization to Use Military Force
(AUMF) as irrelevant to the legality of warrant-less national security
searches.  He is arguing that the President in his CinC power may search without warrant if it is substantially to fight an enemy.  And, absent an AUMF or a declaration of war, who decides if a group or nation or person is an enemy?  why, the President does.  And, who determines if a surveillance is necessary to fight this enemy? Why, yes, the President does as well.  And who reviews these decisions to make sure the President hasn't chosen to search or wiretap, under the pretext of national security, communists in Hollywood, Martin Luther King, or a self-generated "enemies list" -- no one, I mean, no Administration official in this country would ever do those things, would they?

I have increasingly come to the belief that the AUMF, or declaration of war, is supposed to mean something. (I am not a Constitutional scholar, and don't want to hear about how I don't understand such and such precedent* -- this is my own interpretation).  If one goes back to my first argument above, that all people, not just citizens, are constitutionally protected from our government searching or detaining them without warrant, then the declaration of war is that formal step that is necessary to free the CinC from these restrictions vis a vis a certain named and defined enemy.  The declaration of war, or AUMF, is effectively then the mass warrant, that gives the president the right in his role as CinC to attack those folks with our troops and detain them and spy on them, etc.  And even then, this is not without limit, since none of us are very happy with the Japanese detention precedent in WWII.  This view of the declaration of war is more consistent with the original notion of separation of powers than is the "administration can do anything to protect national security" view.  It allows the President pretty free reign to fight an enemy, including the types of tactics under dispute, but only after the body the founders considered the most sober had approved the war and the enemy (by sober I mean as envisioned by the founding fathers, and not as demonstrated in recent supreme court nomination hearings).

This obviously makes a declaration of war a BIG DEAL, which it should be, rather than just a set piece vote ratifying what the president seems hellbent to do anyway or a statement of moral support, along the lines of a "we support the troops" resolution.  It means that the Congress, god forbid, actually needs to treat the vote with some responsibility and understand the implications of what they are voting for, or else modify the AUMF or articles of war with specific limitations of scope.  And it means Congress needs to think twice and maybe three times before authorizing war against something as nebulous as "A Qaeda" or "terrorism".  And it means that GWB probably is doing nothing illegal, at least in the programs as discovered, but it doesn't mean that the courts or Congress can't change that in the future.

* Constitutional scholars live and die by the great god "precedent", and certainly the legal system would be thrown into disarray if court decisions did not provide precedents for later decisions.  All predictability in the system would vanish.  However, it is more than OK from time to time to go back to the original words of the Constitution to see if the march of serial precedent has somehow taken us off course.  I often liken this to a copier machine.  If you take a plain piece of paper, and copy it, and then copy the copy, and then copy that copy, etc. through twenty or thirty generations, you will end up with a paper that is supposed to be a copy of the original, but in fact is covered with spots and other artifacts that were not on the original.  A series of court precedents can also create such artifacts that can only really be identified not from looking at the last precedent it was built on, but going all the way back to the original Constitution.