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November 17, 2006


Wonder how he's going to override a veto? The Geneva provision alone guarantees he'll have to.

Relatedly, a bleg -- anyone got a link to an item on the notorious CSRT where the accused asked to be told the name of his alleged terrorist associate, and was refused b/c it was "classified"? I was trying to google that up, to no avail.

Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants

This is good - much better than the current definition, which I believe is "Anyone the President says is an unlawful enemy combatant" - but it's still not compliant with the Geneva Conventions. Still, the US has been noncompliant with the Geneva Conventions for five years now, and hopefully this is just a first step.

How long until Bizarro World declares that Dodd is surrendering to the terrorists? I'll go look...

God, that's sour. (Me, I mean.)

I apologize for raining on the cake: this is indeed fantastic, and I will go get myself a skinny latte and toast Dodd.

I'm waiting for the Glenn Beck roast if Dodd gets invited on (in the last five minutes of the show B4 the commercials, natch, so the hackery can all explain the 'gaffe' and the honest reckoning with 'righteous outrage', etc.).

Anderson: link.

And here's the exchange:

Detainee: Give me his name. Tribunal President: I do not know. Detainee: How can I respond to this? Tribunal President: Did you know of anyone that was a member of Al Qaeda? Detainee: No, no. Tribunal President: I'm sorry, what was your response? Detainee: No. Tribunal President: No? Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person but not if this person was a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian, or whatever. If you tell me the name, then I can respond and defend myself against this accusation. Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

The Recorder read a charge that Idr was involved in a plot to bomb the U.S. Embassy in Sarajevo. Further hilarity ensued:

Detainee: ...The only thing I can tell you is that I did not plan or even think of [attacking the Embassy]. Did you find any explosives with me? Any weapons? Did you find me in front of the Embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it is just very little, that proves I went to the embassy and looked like that [Detainee made a gesture with his head and neck as if he were looking into a building or window] at the embassy, then I am ready to be punished. I can just tell you I did not plan anything. Point by point, when we get to the point when I am associated with Al Qaida, but we already did that one.
Recorder: It was [the] statement that preceded the first point.
Detainee: If it was the same point, but I do not want to repeat myself. These accusations, my answer to all of them is that I did not do these things. But I do not have anything to prove this. The only thing is the citizenship. I can tell you where I was and I had the papers to prove so. But to tell me I planned to bomb, I can only tell you I did not plan.
Tribunal President: Mustafa, does that conclude your statement?
Detainee: That is it, but I was hoping that you had evidence that you could give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.
[Everyone in trial room laughs.]

There are actually a number of exchanges like that (I have read many, many, many CSRTs). Usually they end with the detainee being escorted out instead of everyone laughing, though.

(sorry, that's not formatted well--some of it is my commentary from an old post. Just click the link.)

What appears to be happening since 11/7 is that other, more reasonable, less belligerent points of view are able to be heard above the jingoistic din, because they aren't being shouted down as a matter of course. Or, at least, those who would like to shout them down have lost enough credibility that they are forced to share the megaphone.

In other words, a guy like Dodd, who is just saying the same stuff he's been saying all along, can now get some traction.

This is really, really a welcome change.

Thanks -

If this is passed, I guess I expect a veto. It will be interesting to see what comments, if any, come from the military high-ups.

Wether it's vetoed or not, the vote will show where everybody stands.

This issue is the one thing I had hopes for in the election. It is encouraging. My question is what can I do -- is there anything a pitiful civilian can do to help Dodd move this along? I'm even thinking of writing to my senators asking for their help, futile as that may be (Kyl, McCain being the senators).

This is good news. I'm glad Dems aren't waiting until the new Congress to push this debate.

I wonder what that hypocrite McCain will say about the bill.

Probably not "I'm tortured as to whether I should support it."

Dodd has been good on these issues, btw.

If I'm remembering correctly his father was a prosecutor at Nuremburg.

Thanks, Katherine.

Dodd's dad was indeed at Nuremburg, Jackson's # 2; see this op-ed by Dodd.

We would do well to remember the words of Justice Jackson: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."

(1) UNLAWFUL ENEMY COMBATANT.—The term ‘unlawful enemy combatant’ means an individual engaged in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant.

“engaged in hostilities” – isn’t this pretty open to interpretation? Does this cover the guy assembling IEDs in his basement? What about the terrorist mastermind who only plans operations and never directly participates? In other words, are planning, raising funds, preparing attacks all covered? Or does this define it down to ‘caught in the act of pulling the trigger’?

“against the United States” – if we catch a terrorist who has only targeted Iraqis, that means he doesn’t qualify?

Can someone with the legal knowledge shed some light on this section?

Also the definition of “coercion” is left completely open. Isn’t any evidence not given voluntarily coerced, even if it was nothing more than prolonged questioning?

I’m not necessarily against any of this, but I wish the language was a little clearer.

Well, since Senator frothy mixture etc. will hopefully be gone by the time this comes under consideration, I will write to both of mine.

Linked without comment for fear of violating the United States Code.

Also this.

Link to the Seton Hall report to which Horton refers.

Wonder how he's going to override a veto? The Geneva provision alone guarantees he'll have to.

Before we even get there, there's no way this thing sees an up or down vote. Are we really going to peel of 9 GOPers (not to mention assorted spineless dems) who are willing to have been against Habeas before they were for it?

Plus, as far as atmospherics go, a filibuster is just not as resonant as a veto.

That's what appropriations bills are for.

I mean, I don't know what % of this will survive, but I wouldn't give up just yet.

Katherine - is there a definition in the Geneva Conventions on who is a "combatant" in the first place?

Ugh, great link. I am now angry.

Ugh, great link. I am now angry.

Sorry to do that to you before the weekend. It made me go to amazon and to pick up a copy of "In the Penal Colony," but thought I'd wait until I finished "The Trial" first.

This is also interesting:

Man Who Knew 9/11 Hijackers Not Guilty of Perjury

Speaking of Bush's interrogation techniques. Methinks the shit is about the hit the fan for GW and his merry band of sycophants.

You can only sweep things under the rug for so long before people notice they're about 10 ft. off the ground and standing on a pile of shit.

Ugh, the short story is on the web in its horrifying entirety. I read it when I was twelve, and have wished ever since that I could erase it from my mind.

I hope they make it clear in any bill that U.S. citizens are not to be labeled enemy combatants. In the last bill that was not specified.

Let Bush veto this thing. The light of day has not yet shone on the truth of Bush's push toward authoritarianism. Anything to get the american people to wake up to what has been going on the last five years would be welcome.

Chertoff: "International law...has been captured by a very activist, extremist legal philosophy".

"International law...has been captured by a very activist, extremist legal philosophy".

make your problems your opponents... isn't that a Rove trick ?

err "...opponent's"

that apostrophe changes things.

OCS, those are good questions. Off the top of my head, I would say that a guy who makes bombs is engaging in hostilities, but that the guy who makes sandwiches for the bombmaker is not engaging in hostilities.

I have no problem saying that a guy who is only interested in hostilities against Iraqis (say a Sadrist who shoots Sunnis execution style in revenge for killings in his neighborhood) is an issue for the laws and authorities of Iraq, not the US. That is, if we catch him, we turn him over. Simple as that.

What is and what is not coercion is going to get hashed out in the cases. You can't anticipate all situations, and if you draw the line too clearly, then people will be running up to it. Better to have a standard that's loose enough that the judge gets to look at the entire context and decide what evidence comes in.

Former Attorney General Ed Meese has an interview in GQ on these topics that....put it this way: there was an interview with George HW Bush's AG, Dick Thornburgh, on the Ali G Show a few years ago. This one makes that look like the Lincoln-Douglas debates, or something.

But doesn't it require a court to determine whether someone is connected with terrorists? No, it doesn't in this case. Courts are not required.

How do you know someone is a terrorist unless they have been found guilty by a court?
Because they are members of Al Qaeda.


When we talk about being detained until the war is over, we're talking about a war that could go on for half a century.

Doesn't detaining someone that long compete with some of the values in the Constitution?
No, it doesn't.

We value a speedy trial, as a culture. That's why we put it in the Constitution.
We value a speedy trial for criminals. But a person who's been apprehended and captured on the field of battle, that status itself identifies them as either a prisoner of war or an illegal combatant.

Unless they live there.
Well, how many people do you have standing around the field of battle?

(Given that the Bush administration defines "battlefield" as synonymous with "earth"--something I strongly suspect Meese knows--the answer is 6.5 billion-ish)

Jefferson wrote, "All men are created equal," not "all Americans." He said that men are "endowed by their Creator" with these rights, not endowed by "the Constitution." But that doesn't have to do with enemy soldiers.

Well, when I read the Declaration of Independence, I don't think he's talking about exclusively American rights. He's talking about rights that he believes are natural, God-given rights, which had been denied under George III.
They are.

And he's saying that anybody who tries to keep those rights from a human being is committing a crime against God.
Absolutely, and they believed that.

So if we don't respect those human rights…
We do give criminals those rights. We just don't give them to enemy soldiers who are engaged in battle against the United States.

Isn't that just a semantic difference? These are human beings, and we're talking about human rights.
The human rights that you're protecting are the rights of innocent civilians to be free from having enemies try to kill them. The Bill of Rights doesn't apply to criminals and enemies.

Sure it does. The Fourth Amendment applies to criminals. The Fifth Amendment applies to criminals.
They apply to criminals in this country. People who are in this country, but not to people who are killing Americans.

A great number of criminals in this country are killing Americans. They still have a right to a speedy public trial.
All right. But under our laws, they are not available to those who are either prisoners of war or who are enemy combatants. They are not available to persons who are outside this country, who are killing Americans.

etc. etc.

What is with our string of Attorneys General? Between Ramsey Clark, this guy, and the two most recent, I'm starting to wonder whether Voldemort put a curse on the position after the Kennedy administration.

The whole thingie about what "engaged in hostilities" is why treason was such a handy-dandy accusation against one's political enemies during the later Roman empire and the Renaissance. Almost any activity could be wedged into it. Since treason convictions also could mean confiscation of the estate by the gov't as well as revocations of wills, accusations of treason were always floating around the Italian city-states (especially since changeovers in political power were, um, not very tidy in many cases.) Treason accusations could be brought after the death of the main party for up to 40 years--you can imagine what that did to property rights.

Luckily there were at least a few jurists who managed to remain unimpressed by political power and held the line. There's a very funny consilium written by Decius (French jurist) who obviously had been asked just One Too Many Times to bring a case of treason against a dead relative. Five pages of delicious snark written in legalistic Latin.

Isn't it clear that 'treason' is a handy catch-all that gets its utility from its fuzziness? You'd think that given the movement in moral and legal philosophy to more exacting deliberation and definition, then something like treason would now be on a par with witchcraft - a prosecutable offense in what, the 17th century (re: Salem)? The persistence of this anachronism is from its contingency as a political tool, not from any soundness of legal definition. Until a legal scholar, let alone a SCOTUS judge, has the balls to take that on, the courts will either be counted on to uphold some pretty odious legalisms Congress or the POTUS has decided willy-nilly (if said judges are to the right),
or will have no choice but to go along with because 'treason' is still on the books and therefore has to be adjudged within (if they're more liberal).

sekajin: actually, I don't think treason is all that vaguely defined. Art. III sec 3 of the Constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

Off the top of my head, I would say that a guy who makes bombs is engaging in hostilities, but that the guy who makes sandwiches for the bombmaker is not engaging in hostilities.

CharleyCarp, isn't this beside the point? You're surely right on the merits, but is the definition really there "for the merits," or is it deliberately vague to let the administration grab virtually anyone?

As for the loathsome Ed Meese, see the long letter by a USAF vet at TPM, where he describes how crystal-clear it was in his training that waterboarding was torture, practiced by "scum." It's astonishing to him, and should be to us, that the subject is even a matter of debate.

Thanks for the link, Nell.

Alas, I doubt that the Cheneys and Yoos have anything like the strange, wicked, but genuine integrity of the Officer in Kafka's tale.

Anderson, the definition in the Dodd bill is quite different from the definition in the 2004 Wolfowitz order (setting up the CSRTs) which was different again from the definition used in Hamdi. The original definition in the MCA was more like that in the Dodd bill, but it was changed, surely at the request of the administration, because if you used a common sense definition (or the Hamdi definition), you'd have to immediately release hundreds of prisoners.

By the way, I see in the http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111700613.html>Post that the last 3 NEC prisoners were just released. To Albania. I'm going to submit my small intersection with this event for declassification; not because it illuminates anything of current interest, but for use in historical accounts . . .

Hilzoy - I stand corrected, because I couldn't argue against a Constitution-quoter :-) But isn't there still some fuzziness there?

Sekaijin, there are 'vague' elements to a great many laws, but this doesn't make them unusable. Instead, there are lines of intrepretation, traditions of meaning, for each of the words. No doubt cases come along that don't exactly fit, in which case the courts have to decide where the lines are.

A criminal law that is too vague is not enforceable. I have a favorite (and wrong IMO) example of this, but I can't get the link to work: the decision in State v. Stanko, 292 Mont. 192, 974 P.2d 1132 (1998). Really, read the case, especially paragraphs 15-22. (There's a cut-off copy of the http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=MT&vol=97&invol=486>opinion on findlaw, it has the paragraphs mentioned, but doesn't have the end of the main opinion or the dissent by the Chief Justice.)

Given that Ed Meese was the one who, while he served as Reagan's AG, said that no suspects are innocent, because if they were innocent they wouldn't have been suspected of a crime, I find his statements regarding our captives in the Iraq war sadly predictable.

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