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.
Buddha and mespo,
The GC competent tribunal only applies to determining if prisoner of war status will be awarded. Unlawful combatants, to the best of my knowledge, have no provision with which to challenge their status.
Patty C:
“mespo, isn’t that what I said, essentially @10:34 am, in a few hundred less words…”
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Yours was poetry to my prose, but, as you know, most guys don’t like poetry. Like Plato, you also know that “Poetry is nearer to vital truth than history.”
Buddha:
Agreed. I think Bob’s point was that Bush, in claiming the right to declare who was or wasn’t an enemy combatant, was grossly exceeding his bounds. Clearly he was doing so under the plain text of the Third Convention. I think we all agree he was likewise violating the Constitution by denying those challenging their status from anything approaching judicial review.
mespo, isn’t that what I said, essentially @10:34 am, in a few hundred less words than your penultimate post? 😉
Please don’t misunderstand, I never tire of your elegant posts!
Buddha’s point is well taken that while the military operates under a hierarchical system of command, the superior civilian control of the military has no such prescriptions. While the President’s lawful orders must be obeyed under penalty of law, if you are in the military, the President only enjoys commander-in- chief status over the nation’s armed forces. In all other aspects of his office, he is citizen Obama, and must conform to the checks on his powers forged by custom and the Constitution.
mespo,
I don’t think I was disagreeing with that but rather saying that the process we’ve been using is inadequate. The problem is we haven’t had any “competent tribunals”.
No, Jim. He was your COMMANDER, not your king. He’s a civilian and subject to all the laws of this country no matter what the man may think. War does not change that fact. We have a civilian as CIC for a reason. His title sounds military, but it’s not. Your dedication is admirable, but misplaced. You worked for him. He works for We the People. Or he’s supposed to without the graft machine on K St. screwing with things.
I understand where you are coming from. But you’re wrong.
Buddha:
Jim Byrne is right that the GC’s specifically require “competent tribunals” to determine the status of a prisoner of war. See Geneva Convention relative to the Treatment of Prisoners of War (Third Convention), PART I, ARTICLE 5.
Buddha,
In addition to what mespo stated at 11:42 pm –
“Well, they call that a monarchy or a dictatorship when the rules come top down by force like that without any chance of review. No man is my king and I’ll take it to a dictator for a fact.”
The President, in his role as Commander-in-Chief of the Armed Forces is a dictator in many ways. He alone issues orders to the troops. No member of the Armed Forces may disobey his lawful orders.
He may not be your king, and the President is no longer my king, but he was mine. That’s how the military works, and why it works.
Once Congress declares war…it’s his baby. Only the generals in the field should influence the Presidents strategy.
Gyges:
I agree with your analysis of the 100 Years War which could have been ended most anytime. The parties there operated under somewhat different rules of war, but, as you know, prisoner exchanges were common and the war was seasonably waged to allow for crop harvesting and other mundane survival tasks. Your point that the sides were well-defined is likewise valid, but the GC’s expressly deal with hostilities such as civil war, nation v. nation, and nation v. non-differentiated combatants. I think there is more wisdom in the GC than you will admit, and I would suggest we try that avenue first before embarking on a model which affords due process rights to those who would use those rights to destroy us.
Bob,Esq:
“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.’”
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Thank you for the compliment, but I make no claim on the moral center of anything except my own reason. I thought I did answer your question about turning the Constitution on its head. Armed with a resolution duly passed by Congress to defend the nation under the War Powers Act, the Executive would be derelict to ignore its solemn duty to protect the citizenry after its representatives have spoken. And no Executive would ever treat such a grave duty this cavalierly. Surely you agree that the Executive acting pursuant to an Act of Congress to wage war is not a usurpation of its Constitutional powers. We can debate Bush’s extra-Constitutional idea of the unitary Executive, but that is not what we are talking about here. It is simply the issue of whether Bush was duly authorized to wage war in Afghanistan and Iraqi which he clearly was legally entitled to do, his bad judgment notwithstanding.
On the indefinite detention of POW’s issue, I was wondering how long you think we should keep them with hostilities still raging? Is 4 years too long? How about six? And how should we release them? Just take them back to battlefield in Mosul, clothed in a cheap thoub with $50.00 in their pocket? I am only half kidding here, but your feigned shock aside, you must realize that these thorny issues were debated when the Geneva Conventions were adopted, and there is no provision for mandatory release of POW’s other than at the end of hostilities or in cases of serious, non-self inflicted illness or injury. Otherwise, the detaining power is merely stock piling enemy soldiers to be used against it when the arbitrary release “deadline” passes.
I have no trouble with due process for those charged with crimes, but true combatants bent on killing fellow Americans — or aiding in that effort — deserve no quarter from us, nor has any society in the history of mankind ever taken such a dangerous position without a concomitant pledge from its adversary. I won’t hold my breath on Al-Qaeda. Notions of due process and equal protection do not apply to those making war against us. We have treaties in place to protect POW’s and laws to protect those criminally charged. To conflate the two invites blindly upholding muddled and conflicting legal principles ill-suited for the other’s circumstances at the cost of our republic. To argue otherwise, would render our near unique commitment to lofty democratic principles nothing more than a suicide pact.
Mespo,
No harm no foul.
I’m glad you choose the 100 Years War, it makes a example to nice compare and contrast with. At any given point the parties involved could have conceivably sat down and ended it (or at least their end of it). While it turned out to have lasted more than one lifetime, it wasn’t guaranteed to. That’s the sort of armed Conflict that the GC was set up to regulate.
The war on terror responsible for the capture of most of these prisoners is completely different. There is no set of parties involved, just the U.S. Government and ill defined groups of people that it may or may not decide to label as terrorist organizations depending on how it feels at the moment (strategic alliances would be the nominal reason for it’s decisions; the ever cynical Eric Blair would say that depending on the need for political capital back home the level of conflict could be dialed up or down accordingly). You’re smart enough to see how that difference (and if I remember correctly have explained it in some detail) makes the U.S. armed forces into something much closer to a giant (and extremely violent) police force rather than a military.
All this is tangential to the legal status of those being indefinitely held, but helps explain why the whole issue raises such strong feelings here.
Jim,
Unlawful combatant? That definition has been rendered useless by the acts of the Bush Administration and the continuation of their policies by Obama. As Gyges pointed toward, we’ve entered a situation where “unlawful” is no longer decided by due process, but instead by one man. Well, they call that a monarchy or a dictatorship when the rules come top down by force like that without any chance of review. No man is my king and I’ll take it to a dictator for a fact. That’s part and parcel of why we had the War for Independence – to escape the irrational tyranny’s of men and live under the rule of law.
You’re still thinking like a soldier. I know in some respects that can be a hard habit to break because of the training. I know a lot of soldiers. In the military, top down is how things run. That is not how civilian life is run in this country nor was it meant to be by the terms of our founding documents.
What Gyges said. And yes, you’re thinking like a soldier in some respects. So here are the words of a famous soldier to think upon as you ponder “the problem”.
“It is only those who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, more vengeance, more desolation. War is hell.” – Gen. W.T. Sherman
And my favorite Founding Father, that gentleman from Virginia, Mr. Thomas Jefferson.
“War is an instrument entirely inefficient toward redressing wrong; and multiplies, instead of indemnifying losses.”
And another bit of wisdom of Mr. J’s that should be a guiding principle for us all – “My views and feelings are in favor of the abolition of war–and I hope it is practicable, by improving the mind and morals of society, to lessen the disposition to war; but of its abolition I despair.”
But just because a goal is difficult does not mean We the People should not try. As the Chinese are fond of saying, “The more you sweat in peace, the less you bleed in war.”
“Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals…”
Gyges,
“Enemy combatant is anyone who the President says is one.”
I disagree.
See ex parte Quinn
“…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
Jim,
Those two are easy: Prisoner of War is well defined in the GC. Enemy combatant is anyone who the President says is one.
See the problem yet?
Buddha,
If habeas corpus is “an attack by a person in custody upon the legality of that custody”; how is the government supposed present their case?
Are we really prepared to defend the reasons someone was determined to be an enemy combatant, or prisoner of war?
If we keep this up, the rules of engagement will need to be expanded to include four levels of appeal.
“Does that change how you read Kennedy’s opinion?”
No. -It may be because I think like a soldier more than I think like a lawyer.
–I just thought about replacing soldiers on the battlefield with lawyers. -Stick that in your motion for a continuance. :>)
Jim,
I almost forgot.
Does that change how you read Kennedy’s opinion?