« Another Gasbag Disaster | Main | This may actually work. »

January 29, 2005

Comments

A first step would be to chase the 10 senators who voted for Alberto Gonzales: if you want the house cleaned, you don't want an Attorney General who thinks the President in time of war can do nothing wrong.

Guantanamo Bay was illegal from the start - all the prisoners there were entitled to the protection of the Geneva Convention until tribunals had been carried out to determine their status, as specified in Article 5

The mistreatment of the prisoners there, as you rightly point out, is wrong, full stop, even if the only prisoners there were those who had been legally removed from the protection of the Geneva Convention.

Gonzales' record says he will never support the kind of housecleaning needed. First step: urgently campaign to make sure he isn't appointed Attorney General.

I have defended the practice of denying prisoner-of-war status to detainees at Guantanamo Bay, and I still stand by it. What I can't tolerate, however, is the mistreatment of those detainees

that 'status' was chosen precisely because it allows for that 'mistreatment'. way back in the day, when the 'enemy combatant' vs 'POW' discussion was all the rage, it was clear what one label vs the other afforded the govt. and IMO, anyone who didn't anticipate prisoner mistreament (though not necessarily that it would become public) either wasn't paying attention or put far too much faith in George 'Please Don't Kill Me' Bush.

Today, for me, the presumption that the American government treats detainees humanely no longer applies, it's a sad day when my government has lost that presumption.

i remember when i realized i could no longer presume that i wouldn't be picked up, whisked off to an undiclosed location and detained indefinitely without access to a lawyer, and without being tried or even charged with a crime.

see why some people think W is bad for America ?

Bravo, Chas. A little late to the party, but better late than never :)

People: let's not pile on. The ability to admit it when you've been wrong, especially in public, is a serious and difficult virtue, and we should respect it, not jump all over it. (/serious)

(/snark) I've been trying to work on it, but it's hard since I never have occasion to.

that 'status' was chosen precisely because it allows for that 'mistreatment'.

No, it allows for interrogation. Interrogation does not equal mistreatment.

i remember when i realized i could no longer presume that i wouldn't be picked up, whisked off to an undiclosed location and detained indefinitely without access to a lawyer, and without being tried or even charged with a crime.

Which Americans has that happened to? Oh yeah, none.

Good for you, Charles. I really appreciate this post.

Good post (and not just because I agree).

Yes, lets give credit where credit is due. I heartily commend Charles for this post.

Truthfully, I also discounted a lot of the torture and abuse allegations early on. I especially didn't put any stock in the ones with the hookers and the menstrual blood, because I couldn't get myself to beleive that Americans would do that.

I mean, rough the prisoners up a bit or play rock music so they can't sleep, that's not beyond the realm of possibility, but all this stuff from Gitmo and Abu Ghraib, it's all so bizzarre and unreal.

Charles? Jose Padilla is an American. He got a lawyer eventually, but it was well over a year.

But good for you on the post. It's easy for someone on the left, like me, to complain about a Republican administration doing bad stuff; much harder for you to speak up against your own guys. (Not that the specific malefactors are yours, just that ypu support the adminstration generally.)

Hilzoy: People: let's not pile on. The ability to admit it when you've been wrong, especially in public, is a serious and difficult virtue, and we should respect it, not jump all over it. (/serious)

In complete agreement. I appreciate this post no end - I'm just suggesting ways Charles Bird (and other Republicans who agree with him) can move onwards and take action. To my mind, the first step should be fighting against Gonzales's nomination to Attorney General. Not only did he support the actions Bird decries, his position that the President is above the law makes it impossible that any serious housecleaning will take place if he's in charge of it.

Which Americans has that happened to?

until SCOTUS slapped BushCo, Mr Padilla, of course. but that was a scary couple of years for all of us who weren't inclined to trust BushCo.

No, it allows for interrogation

you say interrogation. i say 'water boarding'.

Great post, Charles. It shouldn't be surprising, but I agree with pretty much all of it -- including your point that the Geneva Convention should not be blindly applied, but rather applied according to its terms. (For those who think I've fallen off my prior wagon, as Charles notes, this is not the same thing as the Bush Administrations' position.)

and... let me add - i don't mean to come across as 'piling on'. i agree with the post overall, and applaud BD for making it.

Charles, I feel for you. I'm old enough to have been paying attention to politics when Watergate played itself out. A whole lot of folks, myself included, absolutely believed the Nixon administration until well past the time that we should have realized that they had played us. The newspaper stories at the time seemed too incredible to be widely believed. It was the Congressional hearings that really brought it home to a lot of us. Fortunately, at the time there were enough honorable Republican members of Congress to provide bipartisan support for those investigations. Sadly, I have only the faintest of hopes that we'll have any serious, bipartisan support for action now.

Bird: No, it allows for interrogation. Interrogation does not equal mistreatment.

A point I've made before, but perhaps worth repeating.

Bush, Cheney, and others in the Bush administration claimed from the start that the only prisoners sent to Guantanamo Bay were the worst of the worst - dangerous terrorists, al-Qaeda members, etc.

But in setting up Guantanamo Bay (and Bagram Airbase, insofar as it functions as a funnel to Guantanamo Bay) they failed to follow the obligations of the Detaining Power laid down by the Geneva Convention. Article 4 specifies who is entitled to receive the protection of the Convention. Article 5 says that "if there is doubt" that a detainee is included under Article 4, a competent tribunal should be formed to establish the prisoner's status.

Plainly, indeed publicly, Bush & co doubted that those detainees were included under Article 4. Competent tribunals should therefore have been established to determine the status of each prisoner to be sent to Guantanamo Bay. (Or, if it was felt urgent that the prisoners be sent there immediately - though many appear to have spent weeks or months in Bagram Airbase - the tribunals could have been held in Guantanamo Bay itself.)

It's possible that those tribunals might have made mistakes. But I think it likely that such tribunals would have weeded out the many prisoners who were not terrorists, nor anything like it - the kidnap victims of Afghan warlords, disposed of to the Americans for a cash payment (a good way of getting rid of an enemy, as well as a source of revenue: just hand someone over to the US forces and tell them that he's a "Taliban fighter"): Moazzam Begg, very recently freed, kidnapped from where he was staying in Pakistan: many others.

As has been pointed out several times by interrogators with experience, you don't make someone talk by abusing them - still less, usefully, by torturing them.

Many - perhaps most - of the prisoners in Guantanamo Bay had no useful information to give. They were supposed to be al-Qaeda members, or senior Taliban: they weren't. Useful interrogation techniques would have established that they knew nothing.

But that was politically the wrong answer to give. Bush & Co had made much political capital out of these prisoners being dangerous and important terrorists. To admit that most of them were Afghan peasants, kidnap victims, would have been - still is - politically injudicious.

Abuse and torture, however, got some of them to confess to anything - to what their interrogator wanted to hear. (Moazzam Begg apparently confessed at one point to a plot to fly over the Houses of Parliament and drop anthrax on them. There can be few Brits who wouldn't sympathize with that as a fantasy*, but it doesn't have any of the hallmarks of reality.)

I see the abuse and torture that went on at Guantanamo Bay, and spread from there to Abu Ghraib (and other prisons inside Iraq, according to report) as a direct result of the decision by Bush & Co to act illegally - to deny the prisoners the right of a competent tribunal to determine their status. Because Bush & Co assumed guilt, the prisoners were tortured to confess to crimes that Bush & Co wanted them to have committed.

This is all supposition. I don't know. But it makes sense to me: it would have been very embarrassing for Bush & Cheney et al to have had to admit, in March 2002, that in fact they were going to have to let a large proportion of those supposedly-dangerous prisoners go...

*Seriously. Ask your average Brit what they think of politicians and the Houses of Parliament, and expect to get an earful. Not that we'd actually want them assassinated - the closest Thatcher came to being widely popular was when the IRA tried to do it - but as a fantasy...

I don't think that it is piling on to point out that a lot of people (not necessarily Charles) by ridiculing and insulting those that held opinions they disagreed with, allowed things to happen that now they say they disapprove of. One of the main culprits of that IMO is Andrew Sullivan whose blinkered support for the Iraq War at the beginning led him to demonize those that predicted what eventually happened and at the time held positions he now thinks correct.

This "Not only am I right but if you disagree with me you must be stupid or evil" is one of the main reasons Americans were conned into this war. (Conned in that polls show clearly that it is WMDs they think justify it, not any project to transform the Middle East). Changing your mind does little to repair the original damage.

Bravo to Chas for this one.

Today, for me, the presumption that the American government treats detainees humanely no longer applies, it's a sad day when my government has lost that presumption.

Even sadder is the day when you realize that the administration will lie and conceal rather than acknowledge the problem, and punish those whose make the mistake of speaking the truth rather than toeing the party line of concealment. The Gonzalez torture memos make it clear that this is an adminisration that is looking for ways to make torture lawful -- not the opposite.

This is one of the reasons why the "few bad apples" excuse is so infuriating because it is part of the lying and concealment to avoid accountability for this problem.

It should be enough to make you believe that some forms of torture is the unacknowledged policy.

Or you can go for the Rush excuse that its just frat boy fun.

Von: including your point that the Geneva Convention should not be blindly applied, but rather applied according to its terms.

Article 5, Von. Requiring the detaining power to prove that its prisoners do not qualify as PoWs under the Geneva Convention is applying the GC "according to its terms" - and it's exactly what Bush & Co failed to do.

I agree with you, Charles, that they should be treated humanely. Thanks for posting that.

Charles, when you step up, you do it well. Brave post.

One quibble:

"If that includes Rumsfeld, then so be it." That seems a little too passive-voiced to me. A better phrasing might be: "I, Charles Bird, demand Donald Rumsfeld's immediate resignation and an apology from him to U.S. taxpayers, the U.S. military, and to the world."

I, of course, would then call for an investigation of those above Rumsfeld and their complicity. But you will have done your part. Limbaugh, et al. will suggest other phrasing to describe me.

Which Americans has that happened to? Oh yeah, none.

Does the name Jose Padilla ring a bell?

I agree with about 99.5 percent of this. Woo. I definitely think humane treatment of prisoners as a general rule should be the conservative position -- and the liberal position, and certainly the classically liberal position, and really any position that can be abstractly described, instead of the messy ideologies clouded by hate, fear, or other emotions that happens to all of us to some extent. I do think, though, that the standards of evidence for places like Guantamo and certainly Abu Ghraib should certainly have been higher. The feeling in not-so-much-anti-torture circles that the victims we're talking about are definitely terrorists out to kill us and have valuable information about others who will kill us is sadly a fallacy. And no, I'm not ascribing it to you, but it heavily colors the broad discourse.

Thank you, Charles. That can't have been an easy post to write.

But the record of punishing people for encouraging/allowing torture at Gitmo Abu Ghraib - once you get past the "few bad apples" of song and legend - is not encouraging.

Maj. Gen. Geoffrey Miller, the Guantanamo commander who issued a report in August 2003 recommending that the Iraq prison system be “Gitmoized,” and geared to extracting intelligence from prisoners. Miller authorized torture at Gitmo and Abu Ghraib. He has not been relieved of command, demoted, reprimanded or, SFAIK, even removed from his position as prison commander.

Lt. Gen. Ricardo Sanchez, commander of U.S. forces in Iraq, issued orders approving the use of dogs at the interrogators’ discretion (and later denied doing so). General Sanchez was promoted to 4-star General soon after the Senate hearings on Abu Ghraib, after his complicity was known.

So. High-ranking military officers whose approval of torture is known, testified to, and documented can not only keep their jobs but get promoted.

The WH counsel who provided the legalistic fig leaf 'legalizing' torture in particular (and lawlessness in general) - whose memos, briefs, and letters on the subject the WH refuses to release to the Senate - is about to be confirmed as AG.

If the Bush Admin - and, to be fair, a majority of the American people - refuses to hold to account the higher-ups whose complicity in torture is provable beyond a reasonable doubt, how can we expect Bush to hold Rumsfeld to account?

After all, "all" Rumsfeld did was create a secret and unaccountable military intelligence network; "all" Rumsfeld did was tell that network he wanted results and didn't specify how they should get results; "all" Rumsfeld did was make sure he wasn't in the implementation loop.

Jose Padilla is an American. He got a lawyer eventually, but it was well over a year.

He still had his day in court. It wasn't the due process the left wanted, but due process he had.

Jes, we may disagree on POW status for detainees, but we agree that where there's doubt, timely tribunals should be had.

He still had his day in court. It wasn't the due process the left wanted, but due process he had.

I think you want to tighten that logic up, CB, lest it be used to prove that, e.g., Nelson Mandela had his day in court.

Charles, his attorney had to move heaven and earth to make sure Padilla even got that.

And what do you say about the WH ignoring the SCOTUS decision requiring "timely tribunals"? Because the WH is ignoring it. Instead, they're coming up with new ways to hold people prisoner (without counsel, without charges) for the rest of their lives.

Thanks.

I can't say you were wrong not to take the Mirror seriously, but there are other sources, and have been for a while. Here are some:

1. Marty Lederman's exhaustive effort to determine who authorized what at Balkinization
2. The results of the ACLU's Freedom of Information Act request on prisoner abuse. These are some documents (short PDFs) relevant to allegations of abuse at Guantanamo.
3. A 130 page long statement (very long PDF) from Guantanamo detainees Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed.
4. A Human Rights Watch Report compiling some of the results of their interviews and various press reports of interviews with former Guantanamo detainees.

He still had his day in court. It wasn't the due process the left wanted, but due process he had.

Stop and think about what you just said for a minute, Charles. Are you seriously ready to argue that due process for the accused is something only the left is concerned with? If not, you may want to clarify, because that's how that came across to me--what Jose Padilla enjoyed was /not/ due process, and what little he had granted only after the administration was /forced/ to by the Supreme Court.

Ensuring due process rights for all American citizens is something we /all/ should be very concerned about, no matter our party or beliefs. I personally think that if we're to actually take the ideals of human rights embodied in the Constitution and Declaration of Independence seriously, then we should be granting due process (at the very least) to noncitizens as well.

Charles: Jes, we may disagree on POW status for detainees, but we agree that where there's doubt, timely tribunals should be had.

And weren't: that's my point. That Bush, Cheney, et al doubted that the prisoners who were sent to Guantanamo Bay were included under Article 4 is patent: in fact, that was the point of sending them there. So, as you agree, tribunals should have been held - and weren't.

Everyone knows that Padilla still 1) is in prison, 2) has not been charged with anything, 3) has never himself, personally appeared in court for a hearing, correct?

He has had some contact with attorneys but I'm not sure he's been able to talk to them without the government observing. Further, the only reason he HAD attorneys to bring the Supreme Court case was that he was originally detained for a month or so as a "material witness" in civilian custody, not an "enemy combatant".

I would guess the Supreme Court or some lower court will eventually decide that you cannot detain a U.S. citizen, captured on U.S. soil instead of some foreign battlefield, as an enemy combatant. At the Supreme Court level, the votes are clearly there: Stevens, Souter, Ginsburg, Breyer, and Scalia for sure; maybe O'Connor and Kennedy too. But it hasn't happened yet, and when it does it will be despite the administration's best efforts.

Are you seriously ready to argue that due process for the accused is something only the left is concerned with?

Of course not. Padilla's case went to the Supreme Court. That's a pretty wide avenue of recourse for someone classified an enemy combatant.

Bird: That's a pretty wide avenue of recourse for someone classified an enemy combatant.

...I'm speechless.

Really. Are you seriously arguing you believe that the administration has the right to strip anyone of their normal legal rights by simply classifying them as "an enemy combatant".

That's it? No due process required? Just let the Attorney General point, declare "enemy combatant", and they suddenly lose their basic rights?

"Of course not. Padilla's case went to the Supreme Court. That's a pretty wide avenue of recourse for someone classified an enemy combatant."

It did, yes. So did Dredd Scott's and Fred Korematsu's. That's not how we measure due process.

Charles: just wanted to say that I appreciate your post very much. My comments and points have all been made allready, so there is no other contribution.

Thank you Charles. And I will register this confession: longtime lefty that I am, I can't stand Ted Kennedy. (Although I agree with him about beginning a pullout).

Charles, thank you very much for this post. It's got to be very hard not to be able to give leaders you've supported the benefit of the doubt.

I'd ask you to keep reflecting on the role that secrecy and lack of review/due process play in enabling abusive treatment.

Boys as young as twelve and thirteen were among the prisoners swept into Camp X-Ray since early in its existence, and, like other prisoners, have been subjected to daily interrogations for two years.

Surely any remotely competent, real process would have shown those boys had no intelligence value and would have sent them home.

Which Americans has that happened to? Oh yeah, none.

Ah. That makes me--an immigrant--feel so much better.

I really would like to see, some time in the gauzy stretches of the future, somebody explain why ANYONE doubted all these accounts of detainee torture and abuse to begin with. Yes, I can understand that there is room for skepticism in this age of propaganda. But why would anyone doubt that US soldiers were mistreating detainees? Is it just American "exceptionalism" doing it's dirty work again? How, after the past 100 or so years of violent campaigns in the name of US geostrategy, can anybody still claim that the US would never do this sort of thing? This desire, or need perhaps, to believe that we are already and as a matter of course doing the right thing is the greatest impediment we have to actually doing the right thing. I appreciate the post and the turnaround and all, but I really do wonder where the original naivete comes from.

perhaps nobody really doubted that there was some truth to the accusations, but a bunch of people cared far more about the US maintaining an air of moral superiority than about ensuring that people they never presumed innocent were treated humanely. After all, it is Americans who ought to benefit from presumption of innocence, humane treatment, etc., not (presumed) terrorists.

James - I think every generation has that moment of shock, of finding out that America doesn't live up to its ideals when the going gets tough.

For me, the shock wasn't so much Abu Ghraib per se (I'm old enough to remember My Lai when it happened, and I know the other sordid chapters in US history) as it was the official and public reaction: denial, justification, and indifference. I had thought we as a nation were better than that.

After 4 years of George Bush, sometimes I feel as if I've fallen into a time warp, like the last 30 years never happened.

I think every generation has that moment of shock, of finding out that America doesn't live up to its ideals when the going gets tough.

I wonder if that is true; I certainly wish it were. It seems just as likely--as you say-- that every generation also has ways of explaining it all away, of avoiding that shock, and thereby not finding out, not learning. The level of denial is staggering, and damn dangerous. Now we have tens of thousands of dead in Iraq because the American people cannot come to terms with unpleasant truths. It is so frustrating to watch all this go on, and it breaks my heart because in truth I do want to believe in my country. I just wish my country wouldn't make that so difficult.

I normally don't like Mareen Dowd, but she has the best line on this whole revolting episode:

"By the time House Republicans were finished with him, Bill Clinton must have thought of a thong as a torture device.

For the Bush administration, it actually is."

For the record, while I can see how people find this particular stuff abhorrent, I don't see how it's so different from the other abuses we've heard about at Guantanamo - why this changed the story qualitatively. E.g., I don't know if it would be better to be an innocent person in a US prison than an innocent person at Camp X-ray, so Dowd's position is a bit hard for me to understand. However, since this is probably a very odd position for the commentariat here, I'll have to think about it.

“This so-called ill treatment and torture in detention centers, stories of which were spread everywhere among the people, and later by the prisoners who were freed … were not, as some assumed, inflicted methodically, but were excesses committed by individual prison guards, their deputies, and men who laid violent hands on the detainees.”

—Rudolf Hoess, the SS commandant at Auschwitz

Torture scandal began far above 'rotten apples.'

rilkefan - although this was no tipping point for me, I'll try to explain anyway. This story has a couple of aspects that set it apart. The most obvious is that it is very far outside our collective picture of what harsh, but legal interrogation techniques would be, so having plausible evidence that it occurred is, in and of itself, shocking. The second, and I think ultimately more damning aspect, is that this is so arcane that it gives lie to the "few bad apples" theory. A handful of grunts out for fun would not have done this.

I think the difference between Guantanamo and a US prison is who is directly responsible for the bad acts. In Guantanamo, it is agents of the state (military, intelligence, FBI, whatever) who are conducting the interrogations and directly inflicting the inhumane treatment. In a US prison, from what I understand, most of the inhumane treatment is done by prisoners to each other. That doesn't mean society is blameless. Clearly there is some moral cost to not investing in the guards and monitors and whatever else is required to stop prisoners from mistreating each other, but... sins of omission are often felt to be different from sins of comission and I think the same distinction applies here.

What's particularly depressing among those -- not Charles, I should say -- who say 'oh, I'd like to be tortured by women rubbing themselves on me' is that they're utterly blind to the cultural specificity of the excessive methods employed at Gitmo, Bagram and in Iraq. (While it might be excessive to invoke Orwell's Room 101, it's hard not to think of its methods.)

One can only wonder what it might take to provoke some degree of sympathy, or at least understanding, given that an inversion of US methods -- forcing Christian detainees to curse Jesus, for instance -- would most likely lead many to regard such interrogators as exemplars of 'uncivilized Islamic extremists'.

Rilkefan,
As soon as the word came out that Lt. Graner (and others) were US corrections officers, I also immediately gave new credence to the stories I'd heard about prisoner abuse. I'm sorry it took me so long to worry about US prisons, frankly, and the US media is gradually starting to catch up with these stories.

Ravi,
It's a sad and sorry fact, but according to this study--

http://www.spr.org/pdf/sexabuseohio.pdf

--27% of female inmates have been sexually abused, "typically by male corrections officers."

It seems likely that the reason that such intense public focus should remain fixed at Gitmo and Abu Ghraib is twofold: 1) the US public is scared, scared, scared, and is for once paying close attention to foreign-policy measures in this anti-terrorism fight, and 2) the foreign-policy journalists sense that there is something not quite right about these temporary institutions that the US has set up and are looking for stories to crack open the (so-far difficult to penetrate) US strategy.


And, by the way, Charles, thanks for an excellent and honest post.

Nick,

That is exactly right.

I'll return the comment Charles: on the topic at hand, we agree.

Clean house now.

Where to start? Personally I think the best place is Gonzales, but I can't see that happening. After him, there's still Rumsfeld. Where would you begin?

Just wanted to add to the list of links, this article in American Prospect on women abused in Abu Ghraib.
It's on my blog, via Suburban Guerrilla.

rilkefan: I don't know whether or not it's worse than the other stuff we've heard out of Guantanamo -- it's hard to see how it could be worse than what we've heard about Iraq, like for instance the picture of the guy who had been beaten to death and packed in ice. But (at least for me) there are different kinds of bad. The guy who was beaten to death was more brutal than anything else I've seen. The pictures of, say, the human pyramid, or Lynndie England pointing at naked Iraqi guys who were being forced to masturbate and laughing, was more -- what? -- well, I'll invent a term: "just plain stupid thugs doing stuff that has no conceivable connection to anything someone might possibly call 'interrogation' - y". If someone were to ask me, would you rather be beaten to death or have Lynndie England (or Charles Graner) laugh at you while she (or he) forced you to masturbate? I know which I'd choose. But it's just a different sort of bad. And this story is a new kind as well. To me.

I agree that in a war you can take prisoners and that you cannot torture or kill them, but this goes for both sides.
So, if the other side should stop killing american prisoners, do you grant them the right to hold them indefinetely, even if there is no evidence that the individual in question has taken up arms? (e.g., a Halliburton worker ).

Jes:

Ask your average Brit what they think of politicians and the Houses of Parliament, and expect to get an earful

Not from me, you won't. I don't know whether I'm "your average Brit" but I tend to suspect we're not as prone to effusive criticisms of government any more than "your average Yank." I certainly wouldn't suggest anthraxing the building -- do you fantasise about anthraxing congress?

Charles:

Well said. Of course, I still feel it's not enough, but that our incessant liberal whining about "human rights" and "evidence" and the like has finally produced a glimmer of a result is good enough for me at the moment.

What I would like to know, however, is just what you feel has been gained by the existence of the detention camp at Guantanamo Bay, and especially it's continued existence? After two years, all interrogation is worthless, so what do we now gain in exchange for the PR nightmare?

McDuff: I certainly wouldn't suggest anthraxing the building -- do you fantasise about anthraxing congress?

No, why would I?

I don't know whether I'm "your average Brit" but I tend to suspect we're not as prone to effusive criticisms of government any more than "your average Yank."

Eh. Depends, I guess: I don't know whether I'm "your average Brit" either, come to that, but among the people I know, effusive criticisms of government are fairly common.


Of course not. Padilla's case went to the Supreme Court. That's a pretty wide avenue of recourse for someone classified an enemy combatant.

AFAIK, Padilla went to the S.Ct. on the fairly narrow grounds of whether the govt. could hold him indefinitely on its own say so. I'd think, at a minimum, due process would require that he had a hearing about whether he was being properly detained on the charges brought against him.

It strikes me as analogous to a sherriff locking up someone b/c he thinks the guy is "a threat to the community." Even if a court tells the sherriff that, prior to throwing the guy in jail for an indefinite term, he needs to bring an actual charge against the guy and bring him before the court, that's not what we normally mean by "due process." It's extraordinary that the guy in jail would have to reach for this relief; to the extent it's part of "due process," it is part of it as a backstop to make sure the govt. stays on the proper lines. "Due process" is when the guy gets actually charged and actually tried for the crime for which he is accused.

Half of us are willing to trade away a truly basic American right(I'm hard pressed to think of one that is more basic and necessary to our understanding of democracy) as a response to a relatively trivial enemy (as compared to the Nazis and the Sovs, for example). This scares me a lot more than anything I've heard about the torture at Gitmo, for example.

This story has not only affected Charles' view of the Adminstration's behavior. The normally quite conservative and strongly pro-Bush columnist Jeff Jacoby expresses similar feelings, even stronger ones, in today's Boston Globe.

Jacoby's column

It is worth reading, especially the last sentence.

Are these stories starting to make a difference?

Wow. Coming from Jeff Jacoby, that's extraordinary.

Bernard,

I will have more respect for Jacopby whe he recognizes his role in creating anbd promoting the unthinking pro-war if-you-are-not-with-us-you-are-against-us mentality that allowed this to happen.

It's may be morally satisfying for all these war and Bush supporters to express horror at what happened but it is an empty and meaningless exercise so long as they don't acknowledge how guilty they too are.

GT: It's may be morally satisfying for all these war and Bush supporters to express horror at what happened but it is an empty and meaningless exercise so long as they don't acknowledge how guilty they too are.

I don't really care whether or not they express their guilt, though some acknowledgement that it's a pity they didn't figure things out this time last year so that they could have campaigned against the administration they now realize endorses torture would, I admit, be nice... ;-)

But no. That's actually not important. (Soul-satifying, I grant you, but not important.)

The important thing is that, having acknowledged that the Bush administration endorses torture, and that this is wrong, they act: actively campaigning to stop Gonzales becoming Attorney General, actively campaigning to have a bipartisan enquiry set up into the Bush administration's endorsement of torture, and so on.

What would be "empty and meaningless" would be for them simply to express their horror and then do nothing more: let it go on happening.

Are you seriously arguing you believe that the administration has the right to strip anyone of their normal legal rights by simply classifying them as "an enemy combatant".

No, Jes. As Nat Hentoff wrote of O'Connor: "She did agree that the president has the authority to have Mr. Hamdi put away conceivably until the end of hostilities — which could take many years. But, she ruled, he has a constitutional right to appear before a court or some other "neutral decision maker" to contest the government's evidence against him."

Charles: No, Jes.

What does that mean?

Jose Padilla is an American citizen, yes.

Jose Padilla was stripped of his rights to due process and locked up, yes.

You appear to be defending that by pointing out that Padilla was classified an enemy combatant, yes?

As no due process was followed, this amounts to the conclusion that anyone can be stripped of their right to due process by the administration deciding to classify them as "enemy combatants", yes.

So, what do you mean, "No, Jes"?

I find the moral outrage utterly lacking, so long as it is accompanied by statements such as "Which Americans has that happened to? Oh yeah, none", as if what really mattered were the nationality of the accused, I suppose. As a human being, I have little trouble detecting the moral pusillanimity of the position.

Jesurgislac:
Maybe an alternative reading of CB's remark might be that "No, Jes" means that he does not think that the Adminstration has (or should have)the right to deny due process to certain classes of arrestees based solely on its sayso - but the point he's trying to make isn't clear.
However, your précis of the present Adminstration's attitude towards "terror" suspects as:

"...this amounts to the conclusion that anyone can be stripped of their right to due process by the administration deciding to classify them as "enemy combatants" ..."

seems to me to be exactly the position the Bush Adminstration has taken, and exactly the policy their AG nominee Alberto Gonzales undertook to defend as White House Counsel.
Does Charles agree?
Dunno, let's ask him.

Pedro - The "Only Americans matter" attitude espoused by some conservatives has to do with their belief that Constitutional rights, and the laws based on those rights, apply only to American citizens.

Nowhere in the Bill of Rights do the words "citizens only" appear. The Bill of Rights uses the word "people," not citizens, Americans, or colonists.

I frankly don't know where in the text conservatives get a basis for the "American citizens only" idea. Maybe because slaves were implicitly excluded from the Bill of Rights, self-styled strict constructionists* believe non-Americans can be implicitly excluded as well.

*'Strict constuction,' as I understand it, means the Constitution must be taken to mean what it meant to the men who wrote it, and that its concepts/definitions of liberty are therefore confined to mid-18th Century understandings of the term.

But the 9th Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") directly contradicts strict construction. So strict construction isn't a defendable position - which, of course, doesn't stop people from holding it anyway.

It's may be morally satisfying for all these war and Bush supporters to express horror at what happened but it is an empty and meaningless exercise so long as they don't acknowledge how guilty they too are.

First of all, I tip my hat to Jacoby. GT, expressing support for the removal of Saddam does not mean that I signed on to the mistreatment of prisoners and detainees. I reject your smearing me with that guilty charge. What is truly empty and meaningless is knowing of the mistreatment and saying nothing about it.

Bird: What is truly empty and meaningless is knowing of the mistreatment and saying nothing about it.

Accounts of the mistreatment of prisoners by Americans soldiers have been publicly available since March 2002.

But I disagree with GT that your conversion, while late, is meaningless unless you express your guilt. Guilt doesn't accomplish anything. What would make your acknowledgement meaningless (that the Bush administration endorses torture, and that this ought to be investigated) is failure to act. What are you going to do next?

Charles,

Attacking those that pointed out what the consequences of giving Bush free rein with the prisoners, even saying they were doing the enemy's work, makes you and others very much a part of the problem.

You see, I, unlike you, grew up in a dictatorship, one that came to power due to concerns about security, and saw first hand the slippery slope that goes from supporting anti-terrorist activities without thinking to creating an atmosphere where torture becomes a state-sanctioned policy.

Many, many people on the left pointed out that we could not easily win in Iraq due to its internal conflicts, that we should not let Bush declare prisoners legally without recourse of his volition, that there was no urgency on atacking Iraq.

Yet many on the right, including yourself, not only disagreed but went as far as accuing those on the other side of being traitors or, at best, tools for our enemies. By stifling the needed debate with your personal attacks and blinkered support for this administration you allowed much of what happened, even if you directly were not responsible.

Forgive me for not taking your mea culpa as seriously as others do, to me they are crocodile tears and as evidenced by your post on Kennedy you still don't understand how the the Right helped create this mess.

I saw that first hand in Latin America, where people were shocked to find out that the military government they supported (and they did) to get rid of terrorism practidced widespread torture. Yet when news of human rights abuse first came out they would say "En algo andaran" (they must have done something). There is a such a thing as group blame.

So, what do you mean, "No, Jes"?

Let's say the feds round you up, put you in the brig and classify you an enemy combatant. For that classification to stick, the military needs to provide sufficient evidence to a neutral decision maker to support its case. As such, you still have an out, even before you know how the US Supreme Court will ultimately rule on Padilla. Given the only two or so cases where enemy combatant status has been levied, your fears look unduly overblown. Assuming you've not been captured on the field of battle, or have not visited al Qaeda training camps or have not plotted terrorist bombings, you as a U.S. citizen have nothing to fret about.

The government didn't help itself with its inconsistent classifying practices. Moussaoui should've been classified an enemy combatant right away, for example, bypassing the mockery he tried to make of the court system.

Bird: For that classification to stick, the military needs to provide sufficient evidence to a neutral decision maker to support its case.

You'd certainly think so, wouldn't you?

Unfortunately, this just didn't happen.

Given the only two or so cases where enemy combatant status has been levied

Well over eight hundred, at least. Kidnap victims from all over the world.

Assuming you've not been captured on the field of battle, or have not visited al Qaeda training camps or have not plotted terrorist bombings, you as a U.S. citizen have nothing to fret about.

I'm not a U.S. citizen, Bird. I'm British, and nine British citizens who were not captured on the field of battle, who did not visit al-Qaeda training camps, and who (as far as any evidence can show) never plotted terrorist bombings, were kidnapped by US military forces, taken to Bagram Airbase, from there to Guantanamo Bay, and held there without any evidence, any process, or even any particularly good reason, for over two years - three years, in some cases.

So, I'm unconvinced. It's happened to Americans, it's happened to Brits, it's happened to Afghans, it's happened to Iraqis, it's happened to other nationalities: people have been declared "enemy combatants" without any process, stripped of their rights, unjustly imprisoned for years, and tortured.

That you object to their being tortured, I applaud. I wish you would object to the rest of it, too.

Bird: you as a U.S. citizen have nothing to fret about.

What Katherine wrote on this topic:

It will probably never happen to us, but it has happened to people as innocent as us. We know this now. There are news articles, Red Cross reports, eyewitness accounts, declassified documents, photographs. Apparently there are also videotapes.

If we’re safe, it’s not because of any of virtue on our part It’s because of a blind, lucky accident of birth. Or, depending on your interpretation, because our parents, grandparents, or more distant ancestors risked the journey here from someplace else. Or because exactly 228 years and 5 days ago, a group of Englishmen imagined a different sort of country.cite

The whole post is brilliant - the whole series well-deserves a blogosphere award. Read it. Then argue it doesn't matter so long as it's only happened to two Americans... and a very large number of non-Americans. (Exact number, not known. The Bush administration would rather you didn't know.)

. . . expressing support for the removal of Saddam does not mean that I signed on to the mistreatment of prisoners and detainees. I reject your smearing me with that guilty charge.

Do you ever wonder what else the administration has "chumped" you on, Chas?

WRT "enemy combatant status," wasn't the AG's office threatening people involved in other terrorism-related cases with such status into making pleas they might have otherwise fought in court, with the assumption being, "Play ball with us, or we'll just disappear you like we did Padilla and Hamdi?" ISTR some noise to that effect with the guys up in Buffalo, and one out on the West Coast. If they're using it as a tool and a threat to extract plea bargains, one has to wonder how serious they are about the whole thing.

Moussaoui should've been classified an enemy combatant right away, for example, bypassing the mockery he tried to make of the court system.

On what evidence? We haven't even been able to convict him of the terrorist charges! If the evidence isn't sufficient for that, it's certainly not sufficient to declare him an enemy combatant.

For that classification to stick, the military needs to provide sufficient evidence to a neutral decision maker to support its case.

Ummmm... but the whole point is that they didn't, Chas. Don't you see that? Your idealism is touching, but that's not what happened and -- if the Administration had had its way -- that's not what would ever happen.

Charles, I think Balkin highlighted an important point from the Gonzales hearings. In his written replies (IIRC), Gonzales suggested that "humane" treatment only implied providing sufficient food, shelter and clothing.

In other words, our nominee for AG may think we are treating prisoners "humanely" even if we are engaging in the practices discussed above.

Outrageous? yes. Revolting? yes. Unbelievable? Perhaps a few years, or even months, ago, but not now.

"Enemy combatant" is an idiotic neologism: one assumes combatants are enemies, yes?

The original term was "illegitimate" or "illegal" combatant." It was meant to differentiate terrorists and fighters for an illegitimate state - i.e., the Taliban's Afghanistan - from the usual type of enemy soldiers, and to allege that various laws, treaties regarding POW treatment didn't apply to them.

"Enemy combatant" is noxious terminology, in that it extends the state's power to imprison indefinitely without charges or trial to POWs who would normally be covered by those laws and treaties.

It's difficult to think the change in Administration rhetoric from "illegitimate" to "enemy" combatant was just laziness, since it seems to have succeeded in blurring the distinction between POWs the Bush Admin (unwillingly) concedes should be protected and those the Bush Admin unilaterally decided shouldn't be.

Some combatants are in our own armies, Casey. And not all enemies are combatants. Therefore, the term itself is not the problem.

you as a U.S. citizen have nothing to fret about.

I don't recall that the procedures you talk about were used in the Padilla case. Are you really saying that we shouldn't worry because we can rely on responsible behavior by our government, regardless of what they think the law technically allows. "Don't worry, we'll only arrest the bad guys and imprison them indefinitely."

That's not the way it's supposed to work. This is not a monarchy or dictatorship. Our freedom is not subject to the good will of our rulers. I'm sure you know that, and it feels almost insulting to write it, but maybe a reminder is OK.

Assuming you've not been captured on the field of battle, or have not visited al Qaeda training camps or have not plotted terrorist bombings, you as a U.S. citizen have nothing to fret about.

any chance you can tell us what the next set of minor exceptions to the Constitution will be?

Yeah, that leads to an interesting question, cleek: Why hasn't Eric Rudolph been declared an "enemy combatant?" He's accused of plotting terrorist bombings, after all.

Oh, wait -- not a Muslim. Got it.

Assuming you've not been captured on the field of battle, or have not visited al Qaeda training camps or have not plotted terrorist bombings, you as a U.S. citizen have nothing to fret about.

But if you are not a U.S. citizen, you have everything to fear, from the ineptitude of the FBI (which, in this case at least, led to the arrest of an innocent American citizen), to the moral pusillanimity of the people who insist that, so long as the monstrous conception of justice they preach does not harm Americans, it is perfectly legitimate policy to promote it.

Charles, so Bush misspoke and

From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.

should have been

From the day of our Founding, we have proclaimed that every US citizen on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth. All others can be held indefinitely without charge on my say-so.

?
------

Otherwise, congrats to your post.

I'm sorry, but this is bad, all you people not standing behind Bush and American Military working to root out terrists and evil but instead being angry at them for taking the necessary harsh measures.

Our enemies are barbarians and do not heed rule of law or God. We need to vanqush them by however we can, use anything that will give us a leg up on them to wipe them from the face of the earth and we need to do it in secret so we don't make the mistake we made in Iraq, to give them time to HIDE evidence of nuclear and bio terror weapons so we can't find them.

It is scary to me watching liberals, Democrat party people and others like that ally them selves with terrorists instead of with Bush and other patriots.

This used to be a patriot website, now I don't know what it is, maybe getting paid off by Democrats or Al Quaida or someone else like that to say bad about American Patriots.

maybe getting paid off by Democrats or Al Quaida or someone else like that to say bad about American Patriots.

I get $13 000 dollars a year and all the cookies I can eat to say bad about American Patriots. What do the rest of you get paid? Full disclosure.

maybe getting paid off by Democrats or Al Quaida or someone else like that to say bad about American Patriots. (sic)

"I joined the secret Demo-Qaida blog-otage cabal and all I got was this lousy T-Shirt."

You got a t-shirt? No one ever told me there was a t-shirt! (Hey, could I get it as a hooded sweatshirt?)

No one better say anything bad about my N.E. Patriots!

Brruuuschi!

I'm sorry, but this is bad, all you people not standing behind Bush and American Military working to root out terrists and evil but instead being angry at them for taking the necessary harsh measures.

Look at what they do, not what they say. These leaders, supposed defenders of democracy -- what have their harsh measures done? Imprisoned the innocent, including a 6- month old baby. Abused and raped women and boys.

Meanwhile the companies they own get richer, being given contracts in Iraq without any bidding process.
The poor in our country get poorer. The middle class is disappearing. Veterans have shrinking benefits. Safety nets are under attack.

When the Bible said we were made in God's image, it's because we, of all the species of life, were given the ability to think. For the love of God, use it! Do not follow blindly! If you are a praying sort, pray for wisdom and judgement, the ability to discern the truth, and the courage to act on your conscience. There is much to fear in the world; do not allow others to use your fears against you. Take courage and act in love.
God bless you.

MerlinB: the posting rules forbid attacks on the commenters here. This includes (a) suggesting that anyone here has allied themselves with terrorists and (b) suggesting that anyone here, including the people who run the site, are getting paid off by al Qaeda. I am therefore placing you on a temporary ban (it lasts for a day), as per our new procedure. If you want to question this, please write to the moderators at the address at the top left of the site, under the picture of the kitten.

Hmm, and I though MerlinB's post was parody....

So did I, actually, which was why I responded as I did. It seemed too over-the-top to take offense at.

If so, Merlin B can let us know, and all will be well.

Why hasn't Eric Rudolph been declared an "enemy combatant?"

I guess I missed the part where he issued a religious edict, declaring war on the United States. Your flipping the anti-Muslim card doesn't fly, Phil.

Bird: I guess I missed the part where he issued a religious edict, declaring war on the United States.

It's news to me that Jose Padilla "issued a religious edict" (or that he has the authority to do so).

It's also news to me that you have to declare war on the United States to be counted an enemy combatant.

Continuing Jes' line of thought, that seems a hell of a non sequitur there, CB. Care to explain?

It's news to me that Jose Padilla "issued a religious edict"

True, but the terrorist group that he joined did.

Bird: True, but the terrorist group that he joined did.

It's news to me that the administration have proved that Padilla joined al-Qaeda. As yet, I believe, the administration have no evidence against him: if they had, they wouldn't have to keep him in military custody without due process. And it's been well over two years. How long are the administration going to hang on to Jose Padilla without any evidence that he's actually guilty of anything?

For the rest of his life, like the rest of the "Gitmo 600."

Judge Green's opinion finding the enermy combatant tribunals to be unconstitutional was just released (here, http://www.dcd.uscourts.gov/02-299b.pdf). It is well worth at least skimming.

For example, the opinion quotes proceedings where a Bosnian was accused of associating with a member of al-Qaeda, but they refused to tell him the name of person. Honestly Kafka couldn't make this shit up.

Doh: For example, the opinion quotes proceedings where a Bosnian was accused of associating with a member of al-Qaeda, but they refused to tell him the name of person.

Would that be the incident where five Bosnians and an Algerian were kidnapped by the US military from Bosnia-Herzegovina in 2002 and taken to Guantanamo Bay, where they have been held since, although no evidence has been produced to show that they "had been captured on the field of battle, or had visited al Qaeda training camps or had plotted terrorist bombings" (to use Bird's succinct definition of who can be summarily stripped of their right to due process).


Follow the bouncing goalpost, kiddies!

Chas: Assuming you've not been captured on the field of battle, or have not visited al Qaeda training camps or have not plotted terrorist bombings, you as a U.S. citizen have nothing to fret about.

Phil:: Why hasn't Eric Rudolph been designated an enemy combatant? [Note: Rudolph is accused of trying to blow up the Atlanta Olympics, which I believe is sufficient to qualify as "plotting terrorist bombings."]

Chas: I guess I missed the part where [Rudolph] issued a religious edict, declaring war on the United States.

Did you see it, kids? Did you see that goalpost move? That was fabulous! It takes a real question-dodging pro to pull that off. Wanna try again, Chas?

Say, are they gonna designate that yutz with the laser pointer -- who, after all, is being charged with terrorism under provisions of the PATRIOT Act -- as an enemy combatant?

True, but the terrorist group that [Padilla] joined [issued a religious edict, declaring war on the United States].

Which group was that? And when was it established that he had joined them?

The comments to this entry are closed.

Blog powered by Typepad