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.

The First Amendment is nearly the last portion of the Bill of Rights that courts seem to take seriously -- treating all the others as if the Founders were just kidding.  The 9th and 10th went early.  The 2nd has been nibbled away at.  The 4th has become a bad joke under the last several Administrations.  We abandoned the 6th somewhere out in Guantanamo Bay and the 5th has fallen victim to the drug war.  (The 3rd is still alive and well, though!)

But today freedom of speech is under fire by those who increasingly claim [some] people have a right not to be offended that trumps free speech.  Just who has this new right and who does not (certainly white males don't seem to have it) is unclear, as well as how one can ever enforce a standard where the victim has full discretion in determining if a crime has been committed, are left unexplained.

We have seen this theory of speech gaining adherents in Universities, for example, so while its continued gains are worrisome though not entirely unexpected.  The one thing I never saw coming in the increasingly secular west was how much momentum anti-blasphemy laws would gain, and how much these laws would be pushed by the Left**.

Jonathon Turley has a good article on this topic in the Washington Post, as linked by Reason

Ken at Popehat has a roundup of creeping ant-blasphemy law over the last year (it is hard for me to even write that sentence seriously, it sounds so Medieval)

**It is in fact insane that the Left has so many people coming out in favor of protecting Islam from blasphemy.  I know it is not everyone, but it is just amazing that a good number of people who call themselves liberal can excuse violence by a misogynist culture that is meant to suppress speech in the name of Gods and Churches.  We have actual children of the sixties arguing that threats of violence are sufficiently good reason to suppress speech and that a religion that basically enslaves women needs laws that protect it from criticism  (these  same children of the sixties that all protested the Christmas bombings of Cambodia are also launching drone strikes willy nilly on civilians and claiming that the President can assassinate Americans solely on his say-so, but those are different topics.)

This all goes to prove my long-time conviction that the political parties have very little foundation in any real morality, and that they tend to simply take positions opposite of the other party.  Since Conservatives staked out the anti-Islam position, the Left feels the need to find some way to be pro-Islam.  Weird, but I can't think of any other explanation.  The only exceptions to this rule are 1) expansions of Presidential power and 2) taking the drug war to new stupid extremes.  Both parties seem unified in supporting these two things, at least when their guy is in office.

Via the WSJ, discussing the US's Siberian Gulag in the Caribbean:

The Obama administration on Monday announced plans for new Guantanamo Bay military trials and for the first time laid out its legal strategy to indefinitely detain prisoners who can't be tried but are too dangerous to be freed.

President Barack Obama issued an executive order to conduct periodic reviews of the cases of the nearly 50 detainees who will be detained indefinitely.

It used to be that people who had never been convicted of any crime but that certain people in the government considered dangerous were called "free men."

If you had told me last week that half the media would be blaming Sarah Palin for the actions of a leftish nutcase, or that Keith Olberman would be accusing, well, anybody, of being too immoderate in their rhetoric, I would have said you were crazy.  Seldom have I found the tone and tenor of the media coverage of any event to be less satisfactory than with the Giffords shooting this weekend.  So of course, I have joined the fray with my own column on Forbes.

We libertarians cringe when presented with a “national tragedy” like the shooting of Gabriella Giffords.  Not because we are somehow more or less sensitive to vilence and loss of life, but because we begin bracing for the immediate, badly thought-out expansion of state power that nearly always follows any such tragedy, whether it be 9/11 or Columbine or Oklahoma City or even Pearl Harbor.  Those looking to expand the power of the state, and of state officials, make their greatest progress in the emotional aftermath of a such a tragedy.  These tragedies are the political equivilent of the power play in ice hockey, when defenders of liberty find themselves temporarily shorthanded, and those wishing to expand state power rush to take advantage.

Here is one example from later in the piece:

After 9/11, Republicans argued that it was time to put away political differences to rally around the President in a time of war.  They implied that criticizing the President in such a time was somehow unpatriotic and counter-productive.   Was this true?  I thought the opposite — that the momentous decisions to be made post-9/11 demanded more rather than less debate.  America would eventually wake up from this celebration of unity with a hangover in the form of the TSA, the Patriot Act, detention at Guantanamo Bay, and wars in Iraq and Afghanistan.

The fact is that politicians, particularly those in power, find every excuse to ask Americans to “moderate their public discourse,” in large part because this request translates in the real world to “reduce the criticisms of those in power.”    So it should not be surprising that many of those who represent our current ruling party blamed the Giffords shooting on the hate-filled rhetoric of the opposition party, even before we knew the name of the killer,.

From a larger historical perspective, I would argue that current political discourse is really rather tame.   Even the wackiest cable opinion show pales in comparison to the fire-breathing political attacks that could be found in nearly any 19th century newspaper.  In the 1960’s, political discourse became so heated that it spilled out into the streets in the form of urban riots.  In fact, what we should fear far more than our rhetoric is the current threats by politicians like Jim Clyburn of South Carolina to use this tragedy as an excuse to put new restrictions on speech.  A number of high-profile comentators have spent more time blaming this shooting on Sarah Palin than on the shooter himself.   Given the complete lack of evidence for any such connection, such efforts can only be viewed as an effort by those on power to silence a prominent opposition leader.

Well, Newsweek has admitted that it screwed up.  Big time:

WASHINGTON (Reuters) - Newsweek magazine said on Sunday it
erred in a May 9 report that U.S. interrogators desecrated the
Koran at Guantanamo Bay, and apologized to the victims of
deadly Muslim protests sparked by the article.

Editor Mark Whitaker said the magazine inaccurately
reported that U.S. military investigators had confirmed that
personnel at the detention facility in Cuba had flushed the
Muslim holy book down the toilet.

The report sparked angry and violent protests across the
Muslim world from Afghanistan, where 16 were killed and more
than 100 injured, to Pakistan to Indonesia to Gaza. In the past
week it was condemned in Egypt, Saudi Arabia, Bangladesh,
Malaysia and by the Arab League.

On Sunday, Afghan Muslim clerics threatened to call for a
holy war against the United States.

"We regret that we got any part of our story wrong, and
extend our sympathies to victims of the violence and to the
U.S. soldiers caught in its midst," Whitaker wrote in the
magazine's latest issue, due to appear on U.S. newsstands on
Monday.

It is not Monday morning quarterbacking to say that they should have known better -- many observers noted the danger right off the bat of posting such an inflammatory story based on only a single anonymous source.

The point I want to make is a different one than the obvious MSM-continues-to-slide-into-the-abyss observation.  That is:  We really, really seem to have dumbed down the whole "torture" thing.  When I grew up, torture was pulling out someones fingernails or whacking their genitals with a stick while they were tied to a cane chair or maybe starving them in a pit for a few weeks. 

Here is my fervent hope:  If I ever find myself imprisoned by hostile forces, I pray that they will torture me by sitting me in a chair and having me watch them flush books down the toilet.  The toughest part will be acting like I am really suffering watching a copy of some document I respect, maybe the US Constitution or Atlas Shrugged or the latest Sports Illustrated Swimsuit issue, swirling down the pipe.  Then, if that does not work, I hope and pray that they then resort to stripping me naked and taking pictures of me in a human pyramid with other prisoners.  I just hope they don't find out that I already did something similar in college.

By the way, while we are inventing a kindler-gentler torture, can we also tone down our dedication to icons?  I have never understood the need to ban Koran flushing or American flag burning.  Both the Koran and the flag are symbols that have meaning to each individual.  If someone wipes their butt in public with the American flag, my  respect for the US and what it stands for is in no way tarnished - only my opinion of the flag-wiper has changed.

UPDATE:  WOW!  How did I miss this one?  I really, REALLY hope they choose this torture for me:

One female civilian contractor used a special outfit that included a
miniskirt and thong underwear during late-night interrogations with
prisoners, mostly Muslim men who consider it taboo to have close
contact with women who aren't their wives...

The female interrogator wanted to "break him," Saar adds, describing
how she removed her uniform top to expose a tight-fitting T-shirt and
began taunting the detainee, touching her breasts, rubbing them against
the prisoner's back and commenting on his apparent erection....

In November, in response to an AP request, the military described an
April 2003 incident in which a female interrogator took off her uniform
top, ran her fingers through a detainee's hair and sat on his lap. That
session was immediately ended by a supervisor and that interrogator
received a written reprimand and additional training, the military said.

Please, no.  Anything but that.  Las Vegas better watch out or it may start losing visitors to Gitmo.  I wonder if this is going to cause a problem for the ACLU, which has been opposing these interrogation techniques at Gitmo.  After all, doesn't this woman have a right to free expression?

Postscript:  By the way, I am serious that I think the media has purposefully dumbed-down the definition of torture to improve their story, and in the process has hurt the US internationally.  However, while I find most of the torture accusations a joke, I still absolutely oppose the whole Guantanamo Bay indefinite detention camp concept.  I don't like allowing US authorities to set up a civil-rights-free zone, and I think it is an incredibly slippery slope that we are climbing on.   And yes, I say this with full knowlege that some bad folks could be released back into the wild.  Guess what -- the American justice system does this all the time.  We have 200 years of history of preferring to let guilty parties go free rather than letting innocent parties rot in jail, and I am not ready to overturn our pretty succesful precendent on this matter.

UPDATE: And to be clear, this is torture, or close enough.  Its good these folks are being brought to justice.   I encourage the media to keep up the pressure on true misconduct -- the gratuitous "wrapped-them-in-the-israeli-flag non-tortures just dillute our focus.  I guess I would also encourage those of you who want to extrapolate from these events to a condemnation of the US military as a whole to inform yourself.  The US military, like any institution of human beings, has criminals in it.  However, that being said, our military has been by far the best behaved occupying force in history, bar none (And, if you don't think they should be occupiers at all, well, blame the politicians that sent them).  For every story of atrocious behavior by a US soldier are 20 stories of soldiers being fair and kind.  The fact that these 20 other stories don't make the paper doesn't make them any less true.