Coyote Blog

I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees.   First, I will observe that I have great readers, because all of the email was respectful.  Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet. 

I got a lot of email about past precedents and settled law on this.  What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent.  The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap.  They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants.  New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.

I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees.  I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets.  The place where reasonable people disagree is what to do with this mixed bag.  Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street.  I would argue in turn that this is exactly NOT how our legal system works.  For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.

It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's.  Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"

I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process.  It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming.  And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.

Update: More, from Cato and George Will, here.  There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me.  John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.

Back when there was all that controversy about flushing Korans at Gitmo, my general reaction was that the charges of outright torture were overblown.  In fact, today I think all this focus on torture-lite was counter-productive, diverting attention from the core question of "no matter how well they are treated, do we have a right to indefinitely detain them at all?" 

The main theme in my posts both on detentions as well as NSA wiretaps has been that our current problems with terrorism do not justify the relaxation or overriding of our core principles of separation of powers.   If we are are going to detain people, it should be following rules laid out by Congress and with clear points of review or appeal to the judiciary.  The exact rules for Habeas Corpus may be different for people captured in Afghanistan than in Omaha, but they can't be thrown out all-together by administration fiat.  The rights protected by our Constitution and its amendments are our rights as humans, not just as Americans.  Our rights not to be locked up indefinitely or not to be subject to invasive searches without a warrant predate government - they are protected by the government, not provided by the government.  As such, even foreigners, who presumably are human, possess these rights too.

It turns out that the Gitmo detentions, years after they began, are starting to get the third party scrutiny that you and I expect to get after 48 hours of detention.

If accurate, this National Journal cover story is scandalous.  Stuart Taylor's Journal column sums up the major points:

• A high percentage, perhaps the majority, of
  the 500-odd men now held at Guantanamo were not captured on any
  battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as [press secretary Scott] McClellan claimed).

• Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
• Many scores, and perhaps hundreds, of the detainees
  were not even Taliban foot soldiers, let alone Qaeda terrorists. They
  were innocent, wrongly seized noncombatants with no intention of
  joining the Qaeda campaign to murder Americans.

• The majority were not captured by U.S. forces but
  rather handed over by reward-seeking Pakistanis and Afghan warlords and
  by villagers of highly doubtful reliability.

Maybe an actual government body that does not report to the President, such as the judiciary, can finally enter the fray and habeas some of their corpuses. 

And by the way, I am soooo fed up with the counter-argument, "coyote, you are more interested in the rights of terrorists than security".  I answered this here, but in the case of detentions it is perfectly clear to me that the goal of detaining demonstrably dangerous folks does not require avoidance of judicial review.  I am sure this administration like any other does not like the courts or Congress looking over its shoulder, but they have to get over it.  The Administration has decided that the other branches of government can't be trusted, and the theme of many of their recent actions has been to fight against any separation of powers restrictions on the administration.

Related thoughts:  I see decent support in polls for these detentions and wiretaps.  My sense is that people who trust Bush are OK with him taking on these powers, and people who don't trust him are horrified.  The history of the Patriot Act is illustrative of this.  Most of the Patriot Act was originally proposed by Bill Clinton in response to Oklahoma City and the first bombing of the WTC.  At that time, Republicans opposed it, eventually defeating it in the Senate with the opposition led by... John Ashcroft.  Yes, I know the argument the world changed on September 11, but I think an even more important explanation of this turnaround for Republicans is that they did not trust Clinton, so didn't give him the power, but do trust Bush.  Of course the short-sightedness of this approach is stunning, since we know no party stays in power forever.  To Republicans, if you are comfortable with Bush being able to detain people of his choice without review and to wiretap without warrant, then you need to also be comfortable with Hillary Clinton, Howard Dean, or maybe Patty Murray having the same power some day.  Are you?  Really?  Because I am not comfortable giving the power to either party.

Yes, the world may have shifted on its axis on September 11, but not enough for us to throw out separation of powers.

Update:  More here.