About "Them"

by hilzoy, with Katherine

(hi everybody. This is the first in a series of posts that reply directly to the arguments, assertions, and claims that Senator Lindsey Graham has made in support of his amendment suspending habeas corpus for noncitizens at Guantanamo, which I'll be working on with hilzoy. --K)

(I deserve no credit on this one. Also, about Graham's speech: I've transformed it into a Word doc; it's here, for your amusement and delectation. -- h.)

"How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct."—Sen. Lindsey Graham

There are two problems with this statement. One is the crazily-wrong assumption that people’s legal status has no effect at all on whether they’re abused. More on that later.

But let’s say it’s not about us at all, and only about them. What do we actually know about them?

Some of chose to become members of a terrorist organization in an irregular force that blows people up at a wedding. Some of them—I would guess a majority, though I can’t really know--did not. Some of them are Taliban conscripts. Some of them are civilians who pissed off the local warlord.

Two of the latter were just released last week (see correction below), as reported by Newsday. Two brothers, named Badr Zaman Badr and Abdurrahim Muslim Dost:

Like millions of Afghans, they fled to Pakistan during the Soviet occupation of their country in the 1980s and joined one of the many anti-Soviet factions that got quiet support from Pakistan's military intelligence service. Their small group was called Jamiat-i-Dawatul Quran wa Sunna, and Dost became editor of its magazine. Even then, "we were not fighters," said Badr. "We took part in the war only as writers."

After the Soviet withdrawal in 1989, the men split with Jamiat, partly over its promotion of the extremist Wahhabi sect of Islam. Dost wrote lampoons against the group's leader, a cleric named Sami Ullah, portraying him as a corrupt pawn of its sponsor, Pakistan, working against Afghan interests.

In November 2001, as U.S. forces attacked Afghanistan, the mullah's brother, Roh Ull! ah, "called us and said if we didn't stop criticizing the party he would have us put in jail," said Badr. Ten days later, men from Pakistan's Inter-Services Intelligence Directorate hauled the brothers off to grimy cells….

Flown to U.S. prisons at Bagram and Kandahar air bases in Afghanistan, the brothers eventually learned from their interrogators that the ISI had denounced them to the U.S. as dangerous supporters of the Taliban and al-Qaida who had threatened President Clinton.”

The nature of this threat?

“For months, grim interrogators grilled them over a satirical article Dost had written in 1998, when the Clinton administration offered a $5-million reward for Osama bin Laden. Dost responded that Afghans put up 5 million Afghanis -- equivalent to $113 -- for the arrest of President Bill Clinton.

"It was a lampoon ... of the poor Afghan economy" under the Taliban, Badr recalled. The article carefully instructed Afghans how to identify Clinton if they stumbled upon him. "It said he was clean-shaven, had light-colored eyes and he had been seen involved in a scandal with Monica Lewinsky," Badr said.

The interrogators, some flown down from Washington, didn't get the joke, he said. "Again and again, they were asking questions about this article. We had to explain that this was a satire." He paused. "It was really pathetic."

It took the brothers three years to convince the Americans that they posed no threat to Clinton or the United States, and to get released.

There are other examples as well. Here is another, about the Uighur detainees who are still detained after being cleared by the CSRTs, which Hilzoy posted before. Here is another:

A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba.

The three military officers on the panel, whose identities are kept secret, said in papers filed in federal court that they reached their conclusion based largely on classified evidence that was too sensitive to release to the public

In fact, that evidence, recently declassified and obtained by The Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to al Qaeda, any other terrorist organization or terrorist activities.

In recently declassified portions of a January ruling, a federal judge criticized the military panel for ignoring the exculpatory information that dominates Kurnaz's file and for relying instead on a brief, unsupported memo filed shortly before Kurnaz's hearing by an unidentified government official.

Here is another still. I could find more examples; you get the idea.

This should not be surprising. Habeas corpus means, as everyone knows, “produce the body.” Show me the basis for imprisoning this person. Show me what he has done to justify it. You skip that step, and of course you will detain innocent people. Due process, habeas corpus—there is a reason we have these things, they were not designed to protect criminals and give lawyers something to do.

You’d think a lawyer would know that. But Senator Graham doesn't seem to.

CORRECTION: Badr and Dost were not released last week--that was an incorrect assumption by me and some headline writers. According to this BBC story Dost was released in April 2005, They were released a while ago. Sorry about that.

Comments

[Joe Yowsa]

Arguing by anecdote won't make your point. The courts can't handle these cases. They belong in military tribunals. Lindsey Graham has it precisely right. There is no way to "get through" to you on this but yours is essentially an "absolutist" view. Don't forget the greatest "absolutists" of them all. Vladimir Lenin, Adolf Hitler and Joseph Stalin. Bye.

[Jesurgislac]

Joe Yowsa: Don't forget the greatest "absolutists" of them all. Vladimir Lenin, Adolf Hitler and Joseph Stalin.

Wow, that was quick.

[Nick Mitchell]

It is ironic that the previous poster, in his argument in support of the Graham Amendment, implies a similarity between its opponents and the totalitarian leaders he names. The Graham Amendment would allow the US military to detain any non-citizen captured anywhere in the world in perpetuity, or until the end of the ill-defined "war on terror." They would be tried by officers of the executive, the same branch that initiated the war, and prepared the case against them and their decisions would be subject to no non-executive-branch review. There are some passable arguments in favor of stripping statutory habeas jurisdiction from the courts here, but in light of the position they advocate, supporters of the amendment should be a bit more circumspect about calling others totalitarian.

[bellatrys]

Habeas Corpus was first formally codified to prevent the sorts of abuses we are seeing, from arrest without evidence to shipping people off overseas to allied countries so as to get out of having to provide proof of guilt, - by a country that had, within living memory, gone through a civil war, complete with the execution of the former head of state, a dictatorship, several smaller insurgencies, and all of it immediately led off by the attempt of a disgruntled ex-soldier to blow up the entire government at a stroke - in response to repressive policies and disenfranchisement of minority ethno-religious groups, but with the help and instigation of foreign powers.

All of which resulted in witchhunts (not always literal), draconian press censorship, arrests and imprisonment on nothing more than suspicion, and a continuous escalation of dissatisfaction and spread of cynicism towards the very idea of government authority, rather than creating a submissive and docile population. The Act of 1679, as a voluntary check on the powers of govt owing to the inherent rights of citizens, was a step in the right direction, although it did not solve the problem of there being de facto one law for the rich and powerful and another law for everyone else - but it did release some of the pressure building and the tension between the Law'n'Order vs Freedom From Tyranny sides.

To say it's outdated or doesn't apply to the complexities of modern life is to show a remarkable ignorance of our own Anglo-American history.

[Gary Farber]

"The courts can't handle these cases. They belong in military tribunals. Lindsey Graham has it precisely right."

It's entirely possible you are correct. Could you please demonstrate that you are correct with an argument?

I'm kinda baffled that people even bother to make the argument-by-assertion: who do they think it would convince?

Is the following a convincing argument? "The courts can handle these cases. They don't belong in military tribunals. Lindsey Graham has it precisely wrong."

No. Of course not. There's no argument there at all. Merely assertion. What would be the point of this without any support?

[The Computer]

No. Of course not. There's no argument there at all. Merely assertion. What would be the point of this without any support?

Of course it's an argument. Its argumentness is unchallengeable. Those who would challenge its argumentness are filthy Commie mutant traitors. Are you a filthy Commie mutant traitor, Gary?

Your Friend,

[Gary Farber]

I am a filthy Commie mutant traitor, Computer!

You have found me out. And as a filthy Commie mutant traitor, I am, of course, a liar.

So when I say I am a filthy Commie mutant traitor, I am lying. But if I am lying, then I am not a filthy Commie mutant traitor. But if I am not a filthy Commie mutant traitor, than I am telling the truth. But if I am telling the truth, then I am a filthy Commie mutant traitor, and therefore am lying.

What do you have to say to that, Mr. Smarty-Pants Computer!? Huh!?!? HUH?!?!?!?!?!?!?!?!?!?!?!?!!!!!!!!!

Oh, and: "huh." Your "mother"! I devastate "you" with my "logic."

[Katherine]

Habeas corpus does not necessarily mean civilian criminal trials and is not inconsistent with these cases being handled by military tribunals. A lot of people seem really confused about this point; I guess I better clear that up.

[CharleyCarp]

"Argument by Anecdote"

A fine description of the common law.

And of Sen Graham's speech in favor of his amendment.

[Dianne]

"Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding"

Interesting choice of example. I seem to remember an episode (at least one episode) in which the US military bombed a wedding party or parties, possibly accidently. Does that make it ok for the Taliban or whomever to lock up any US soldiers or anyone it suspects of being a US soldier or sympathizer that they capture and throw away the key?

[Dave Bell]

It seems to be a part of the problem that significant parts of the evidence as "classified", which means it can't be passed on to anyone who doesn't have the correct security clearance.

Since Scooter Libby had a security clearance, it doesn't seem out of the question for there to be Federal Judges with a security clearance.

Problem solved?