The Obama Administration continues its retention and expansion of abusive Bush policies — now clearly Obama policies on indefinite detention and blocking the investigation of war crimes. Jeh Johnson, the Defense Department’s chief lawyer, has stated that it is a “policy question” whether acquitted individuals will be released or held indefinitely.
In May, President Obama announced that he supported indefinite detention of individual in violation of both domestic and international law. He has even found his detention policies to be a subject of jokes.
Liberals continue to be largely silent in the face of policies that they once denounced and protested. It is rare to hear any coverage or questions of the Administration’s refusal to investigate war crimes of torture, for example. Liberals seem to be quickly developing a cult of personality that has supplanted the most basic principles of human rights and international law. As with the Republicans under Bush, the Democrats are refusing to push the Administration to investigate torture or comply with international law. Before the inauguration, various generals and senators claimed that Obama and Holder assured them privately that no one would be investigated for torture. It now appears that these stories were likely true. Democrats must choose between their principles and their politicians — and they appear to be making the same choice as their Republican counterparts.
Jim,
“Am I thinking it through too far?”
Yep.
You’re talking finish work ahead of getting the building framed. Baby step, man, baby steps.
Buddha,
I agree with everything you just stated. If only the whole world would recognize and conform to that basic mode of operation.
A result of them failing to do so is war.
Once we establish habeas corpus we will then find that we will need to meet a burden of proof. Who was the arresting soldier? Did they maintain good enough records to appease the court? Are soldiers even required to keep a log of who the detainees are, or the activity they were performing when captured? Is the arresting soldier still alive?
Am I thinking it through too far?
Jim,
Thanks, but I think you miss the purpose of law. The purpose of laws and courts are dispute resolution in place of alternatives that are violent and/or destructive. We go to courts and have laws to keep from being perpetually at war with each other as is our primate-brained nature. That is the primary function: keeping society from self-destructing by providing justice instead of unfettered revenge. Without them, we’d still all be stone age barbarians killing each other to steal the women and the hunting ground. The opposite of war isn’t just peace, it’s law and justice. This is why it’s so important to put bad actors within the system out and out for good. They are termites in the house of justice.
Buddha,
I spent the afternoon reviewing Justice Kennedy’s majority opinion in Boumediene.
This was not my first reading, but I wanted to see if I may have missed something that may persuade me to change my mind.
I think Justice Kennedy’s opinion is well written, and based on a good analysis of history. Unfortunately, I was not persuaded to change my mind.
“The essence of habeas corpus is an attack by a person in custody upon the legality of that custody.” Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996).
In times of war, I just don’t think that’s a door that should be opened. What’s next? Will soldiers need to take the time to document the case against the enemy when taking them into custody?
I understand your position, and I think it’s a noble position to take. I wish everyone could always be afforded the rights that most take for granted. However, as someone who surrendered many of those rights, I think the Court’s decision has set a bad precedent.
Wars aren’t fought in the court, and, I think, the Court should stay out of wars.
Mespo,
Here’s a comment I made earlier today that you chose not to respond to:
“I’m not concerned with the small issues such as the fates of a few individuals; rather, I’m focused on the BIG issues such as RECONSTRUCTING THE CONSTITUTION BASED ON A TURN OF A PHRASE.
Article II does not empower the Executive to increase or enlarge its power by commencing a never ending Snipe hunt (i.e. hunt for something that does not exist) — to wit: the end of terrorism.
Every time the Executive claims to engage in a conflict couched in terms where victory or endgame does not exist, e.g. “war on terror, or terrorists” you have an Executive seeking to increase or expand his powers by leaps and bounds simply by turning a phrase.
I don’t care how afraid the country is; the constitution says let them piss their pants rather than ignore the rule of law.”
—
And here’s what you just told Gyges:
“I suppose indefinite warfare implies indefinite detention.”
As the veritable moral center of this blog, and I’m only being a tiny bit sarcastic, please tell me you’re kidding; because you sound about one step away from ‘1984 speak.’
Mike A.,
How did the U.S. Courts acquire personal jurisidiction over non-U.S. Citizen enemy combatants?
Everyone is right in determining that this is a mess. The Geneva Convention, I don’t think, ever contemplated sustained action against a non-state enemy. I’d say not affording them protections should serve as a deterent to rogue actions
Granting these actors more rights -habeas corpus in U.S. Courts -is treating them better than a POW would be treated.
I wish we had good answers, but we didn’t create the non-state actor scenario..they did.
mespo,
“Each “offense” has its own tract in terms of the rights of the accused, and a person may be on either or both tracts at the same time. I think it helps to define terms in this area,and I was just wondering if we are chasing smoke by avoiding this clarification.”
Good point. Being a POW and a criminal are not mutually exclusive, but aren’t we back to timeliness again in the instant case(s)? Had due process not been deprived, there would be no status issues at a systemic level like we have now – at an individual case level perhaps but not grand mal. But then aren’t we back to torture? Wasn’t the motivation for denying due process the suppression of information regarding the torture programs because it would trash many of the cases? Isn’t that the core of the Bush-Cheney Gitmo cover-up?
Here’s some info on some of our POWs:
Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan
Steven H. Miles, MD, Professor of Medicine and Bioethics
Steven H. Miles, Center for Bioethics, University of Minnesota, Minneapolis. Email:miles001@umn.edu;
Disclosure: Steven H. Miles, MD, has disclosed no relevant financial relationships.
Error in Table 1: In the Original Article entitled “Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan” published on July 5, 2005, Medscape General Medicine, 2005; 7, 2, there was one error in the table. Mowhoush died at Qaim [sic] not Abu Ghraib. The correct information is in the body of the paper.
Top
Introduction
The publication of the photographs of the abuse of prisoners at Abu Ghraib has resulted in a widening circle of disclosures and official investigations of similar abuses in Iraq, Afghanistan, and at Guantanamo Bay. There are reports that some medical personnel neglected detainees’ medical needs and collaborated with coercive interrogations.[1,2] Some physicians, medics, nurses, and physician assistants failed to report abuses or injuries caused by the abuses that they witnessed. This article reviews another human rights issue – the medical evaluation of cases of which prisoners potentially died of because of mistreatment or under suspicious circumstances.
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1681676
Mike,
I’ve been thinking about what you said about India and I think that’s not really a good comparison for this reason: India was dominated by the caste system long before the English arrived. A very stratified society with great disparities between castes. They had a history of repression not only not present in this country, but counter to the very origins of this country. The U.S. was founded by those chaffing at unjust rule. We see this to varied degrees in the struggle for democracy taking place in countries like Iran and China where there has also never been a democratic tradition – it’s a slower movement as they are building the tradition from the ground up. As complacent and dumbed down as Americans are, we ultimately have a lot less tolerance as a whole for repression than most societies. What it takes to breach that tolerance is the issue. And whether it ends in anarchy or revolution, we’ll only get X far down the fascist totalitarian road before that unwillingness to be victimized comes back to the fore.
mespo and Gyges, good points both. The phrase “war on terror” is unwieldy and has created a legal nightmare. The plan of the Bush administration was basically the military equivalent of a cattle roundup. Herd ’em all into pens, keep them in line with cattle prods and hold them until they figured out what to do. But of course, Bush didn’t figure anything out and dropped the problem, along with Iraq and Afghanistan, on the next administration. In the long run, however, it seems to me that holding anyone for the “duration” of a war that is undefined is unworkable and morally debilitating (to the country as well as to the detainee). I also believe that the writ of habeas corpus ought to be available to anyone over whom we assert jurisdiction.
Gyges:
“Quick question, what if by the nature of the conflict there can be no ‘end of hostilities?'”
**********************
On your interesting question, the GC’s don’t really address the issue. I suppose indefinite warfare implies indefinite detention. How would the GC’s have been handled in the Hundred Years War. I hope by prisoner exchanges.
Gyges:
Sorry Gyges. No harm intended, just a short-hand way of referring to the previous posts. I’d be on Jill’s team anytime though. I like her uniforms!
Mespo,
I respect you as an individual, please do the same for me. I’m not a member of anyone’s “Team;” to refer to me or others as such is just an intellectually lazy (something you’re rarely guilty of) way of dismissing my opinion. The difference between what you just did and the various recent rants against all us “progressives” is simply the scale.
Mespo,
Quick question, what if by the nature of the conflict there can be no “end of hostilities?”
Mike S:
“Indefinite detention is flat out wrong and while I could no doubt develop some justification for it, in the end there is no adequate justification. To the extent that President Obama’s Administration practices it, I am unalterably opposed to their actions in this matter.”
**************************
Am I hearing from you and the “Jill Team” that prisoners of war denominated as “enemy combatants” should enjoy due process and equal protection rights involving their detention over and above the extensive framework of rights granted them by the Geneva Conventions? I think we all agree that these persons have a right to a judicial determination of status (rather than an Executive one), but does anyone actually believe that a POW needs to be released before the end of hostilities or other than under one of the narrow exceptions set out in the Geneva Conventions? That would be an expansion of both Constitutional protections and the law of war. The distinction between prisoners of war,and those charged with a crime is important and a person may be both a prisoner of war, and charged with a crime in the context of a global war against terrorists. Each “offense” has its own tract in terms of the rights of the accused, and a person may be on either or both tracts at the same time. I think it helps to define terms in this area,and I was just wondering if we are chasing smoke by avoiding this clarification.
Mike,
In our case both sides would have the home field advantage, there’s no colonialism, just serfdom.
Mike,
I never said anything is easy.
Gyges,
We have the home field advantage. We would have the vast numbers if a large majority of the people would be in support.
My point is that getting the support is harder than many here seem to think. Remember also that England controlled India for a hundred years with a vastly outnumbered armed force.
Oh Mr. Buddha, You like Texas Austin is nice. Want to film here someday. I never been that I remember. I been so many nice places in my life but not to Texas. You live there, Mr. Buddha?