Tuesday, October 03, 2006

What Process is Due for a Non-Citizen Suspected Terrorist?

Congress finally passed the terror suspect detainee bill, setting up military commissions to determine the status of detainees. Is it enough? Are we being too nice? Are they POWs? Join the discussion already in progress...


PubliusRex said...

Thank goddess you brought this sham to light. This revelation puts into serious doubt any claim by ACS that it is not a partisan institution. They need to answer some tough questions over this.

Agreed also on your skepticism about full constitutional rights for captured terrorists. After all, FDR didn't hold a full trial with full appeals for the over half a million POWs captured and held in the United States during WWII.

I heard a commentator say that if we were still fighting that war, we'd still be holding all the POWs without trial.

I won't hold my breath waiting for the left to label him a war criminal; just the same as I won't hold my breath waiting for them to apply their terrorist logic to FDR (i.e. Bush killed more civilians than Osama so Bush is the bigger terrorist....apply that to FDR and he's the greatest american terrorist.). It's amazing, the levels of hypocrisy that fanaticism over abortion and universal health care creates in some.

SirWhoopass said...

I believe the POW analogy does not apply here because we are not holding any POWs. The issue is unlawful combatants. More specifically, how one determines who is an unlawful combatant.

POWs have specific rights. Unlawful combatants would appear to have no rights.

At present, there is no review process to determine who is an unlawful combatant. If the executive branch says you are an unlawful combatant, then you are. You have no rights, and anything may happen to you.

For example, Maher Arar, a Canadian citizen, was suspected of terrorist activities by the Royal Canadian Mounted Police. They turned him over to the US government. There were no hearings. No evidence. No appeals. The United States sent him to Syria, where he was tortured and imprisoned for 10 months.

An investigation by the judiciary in Canada revealed that he was not a terrorist. He was innocent.

I believe there are clearly some large flaws in the current system. Does everyone picked up on the battlefield need to be read Miranda rights? Of course not. But some type of fair system (I do not believe a unilateral decision by the executive branch is a fair system) to assess the status of prisoners is called for.

Orrin Johnson said...

Publius, my skepticism was actually more of the Bush Administration's use of NO fact findings - I'm fine with an administrative/military finding of fact, even a fairly cursory one. But nothing at all? But I think that the recent bill the House passed addressed that. And I do agree about that full constitutional rights for non-citizen detainees of any type is an absurdity.

But that's a totally different tangent that wasn't really the point of my post, or even, I think, of Publius'.

But even if Bush and Rumsfeld really WERE war criminals, the main thrust of the point remains: these main stream liberal groups only care about civil rights when it suits them. Pointing to bad behavior doesn't justify other bad behavior. The ACS and ACLU don't care about a fair finding of facts or "holding people accountable," they care about firing up their voting base for partisan gain.

Can one even imagine the Fedralist Society putting something like this on? It would never be accepted by our membership, local or national. And even if we sponsored such a thing, we would insist on having a "defense attorney" to at least pretend to allow for a fair hearing of both points of view. It's why I'm proud to be part of this organization. At the very least, we would invite people we know would disagree with us to do some tough Q&A, because, frankly, we have the guts to allow the other side to attack our ideas and conclusions. And that, not dissent against The Man for its own sake, is the heart of a continuing and healthy democracy.

PubliusRex said...

Whoopass - If anything I would give uniformed POWs many more rights than non-uniformed terrorists captured on the battlefield. And none of the POWs captured during WWII were Mirandized nor given any hearings. They were held indefinitely.

Since most of these captured folks aren't uniformed, they probably deserve the same fate as Otto Skorzeny's Operation Greif soliders, i.e. execution by firing squad.

SirWhoopass said...

Publius- You are correct, POWs were not given hearings. They were, however, treated as POWs. And they were held for the duration of the war.

The point is determining the status of combatants other than POWs. These people are not afforded the same protections as POWs. Which, again, is fine. But how does one determine who is, and is not, a POW?

We did hold and execute German agents during World War II. They were, however, given a trial to determine their status. Thus far, there have been no trials, commissions, other other methods of inquiry for prisoners.

If some Afghani didn't like his neighbor then he tells the local US forces that his neighbor is a terrorist. The guy is grabbed and sent to Gitmo. The same with Mr Arer mentioned in my first post. There needs to be some kind of system to determine status.

If we merely wanted to hold them as POWs, then no hearing is necessary. But we're not holding them as POWs.

Orrin Johnson said...

Even Skorzeny had a real war crimes trial. And his men were subjected to a fact finding that was unassailable, as they couldn't hide the uniforms they were wearing, unlike our detainees, some of whom were picked up after being falsley accused by their neighbor to settle some other grudge. Although I think such non-trial, military fact finding hearings are far more common than the media knows or is willing to report.

But this is all irrelevant to the absurdity of ACS' event, and better suited to its own post. And besides - I'm really curious if the ACS folks I forwarded this post to will have anything to say about their event. Let's not hijack the actual post.

Orrin Johnson said...

Alright - its in it's own post. Ready - FIGHT!

I think that in military environments during active hostilities, that it's not inappropriate to have sole executive commissions to determine their status. I don't think a court-martial or non-judicial punishment deprives a soldier of due process. And I don't think those picked up on the field of combat are entitled to judicial review. Courts have long held that military operations are outside their competence.

It would be an unjust irony if a combatant who refuses to play by the rules and wear a uniform is, by that very reason, accorded greater rights than an actual POW.

There have been too many stories of "innocent" detainees being released, only to fight again. And frankly, just as I think civilian casualties in war, while terrible and brutally unfair, are preferable to the alternative of refusing to interrogate these suspects, or allowing them to return to their terror ways. One Jihadist can simply do too much damage.

That doesn't mean I don't think some kind of formal and procedurally consistent fact finding hearing shouldn't take place. I just don't have a problem entrusting that to the Executive, where I think it belongs. And from what I've read of the Detainee Bill, I think the correct ballance has been struck between securing the nation and guarding against "false positive" terror detainees.

PubliusRex said...

"We did hold and execute German agents during World War II. They were, however, given a trial to determine their status. Thus far, there have been no trials, commissions, other other methods of inquiry for prisoners." - At least those captured at the Bulge were given at most a military tribunal and summarily executed. Bush has argued for just that. I'm not sure what process the ones that actually entered the US got, but I'm willing to treat differently those captured within the United States' sovereign territory.

I guess I don't understand the grave concern over this issue. Nobody bats an eye when our troops go overseas and kill these same people without commission or trial. But, once they're captured, suddenly they're due a whole bevy of rights? That seems a bit incongruent. It reminds me of those screaming about the executive overreaching in the recent wire-tapping cases. The President, in the name of national security, has the power to draft American citizens, detain them, send them overseas, force them to live under the Uniform Code of Military Justice, and kill and be killed, but he doesn't have the power to listen to Al Qaeda calling the US? Nonsense.

And unlike Orrin, I'm not impressed with sham hearings. If they're caught in combat against our troops on the battlefield, but out of uniform, that's all the evidence needed to establish their status under the hearing he suggests. But I suppose to satisfy those who demand formality, give them a military commission...then again, that's what Bush is trying to do.

Orrin Johnson said...

I don't think it's a sham. And a lot of these guys we get because some equally shady nieghbor turns them in, making vague claims. If they really are caught on the battlefield, I'm with you. But unfortunately, that's not always the circumstances. Remember, Germans surrendered. These guys we kick in their doors after getting a tip from an informant who's likely an informant because he's been involved in some of the stuff before, and may have a grudge to pick with the guy protesting al Qaida, or campaigning for the "wrong" candidate. I think having a formal fact finding of sime kind, with pre-determined rules, is not unreasonable, and wouldn't be unreasonably burdensome.

PubliusRex said...

I'd be less comfortable with treating people arrested from their homes this way. My comments were mainly directed at uniformless combatants captured on the battlefield.

SirWhoopass said...

Pub- I'm pretty sure that it is Congress, not the President, who has the power to reinstate the draft. And there is considerable room for debate as to whether the President has any powers to declare martial law while a civilian government is functioning.

How many of our current prisoners were captured in their homes, instead of the battlefield? I'd guess that very few insurgents were actually caught in combat, but rather the result of raids on their homes.

PubliusRex said...

The Congress empowers the executive via a draft law, but it is the President who does the drafting, i.e. executes the draft law. In any case, the point stands that the elected branches have incredible power in the name of national security.

Given that they can ship americans at the point of a gun to kill and be killed in foreign lands makes it less than incongruent that we could hold captured un-uniformed combatants without giving them a civil trial.

PubliusRex said...

I don't have the stats, but it little matters. I'd treat arrestees different than battlefield captures. Though an arrestee in Iraq =/= an arrestee in the United States.

In fact, the arrest comparison is inapt - soldiers aren't cops. I'd be curious to explore the definition of battlefield.

Orrin Johnson said...

I think once a distinction between more traditional battlefield detainees and ones captured by kicking a door in on a tip has been acknowledged, none of us are really disagreeing.

Field of battle: let them rot in GITMO. Dragged from their house: conduct and investigation (not bound by full Constitutional criminal protections), and then let the guilty rot in GITMO.

Interestingly, it looks like we'll have an expert to talk about some of these very things in November, as Ranjit is pulling in the speakers like drift nets kill tuna.

SirWhoopass said...

Certainly Congress can empower the President. My point is that Congress has not done so (until the current bill).

I think there is a huge distinction between an act that has been given to the executive by law, and one that the executive assumes on its own.

PubliusRex said...

I wouldn't necessarily put it as "assuming" power. There is a huge reservoir of presidential power under our constitution that is not always exercised, but nonetheless resides in the president. Examples: Going to war without a declaration of war, sending americans overseas to kill and be killed, shooting down civilian airliners, etc. I just don't see holding non-uniformed battlefield captives without a trial as any more egregious than any of the others, when done in the name of national security.

However, Whoopass, it sounds like you're fine with no trials or hearings as long as Congress orders it? The moral wrong is not wrong and the inviolable human rights are violable so long as the President and Congress agree?

SirWhoopass said...

I think a number of people would argue as to whether the President has the power to go to war without a declaration. The Supreme Court has never addressed the War Powers Act. Congress has never failed to provide the President with authorizations when requested. I'd anticipate a major constituional crisis if that situation ever does occur.

Anyway, I don't think I ever said I'd be fine with it, as long as Congress authorizes it. Congress authorizes a lot of things I agree with.

Personally, where is where I stand: There are two ways to hold people. Either as POWs or as criminal prisoners. POWs need no trial or hearing. But we should then hold them in accordance with accepted practice (humane treatment, release after the conflict, etc).

If we do not want to give them the rights of POWs, then they are criminal prisoners. They can be jailed for life or executed. For that, however, they deserve a trial.

This trial does not need to be under the rules for criminal law in the US. But there does need to be some kind of fair system.. If it is to be a system outside of current law (POW or criminal), then Congress deserves a say in how it will work.

Orrin Johnson said...

I agree with SW's last, there. It's where I stand, too. But the problem is beyond that. These people have a ton of vital information. How far can we go to get it? Does that factor in to the hearing process? Is it a completely seperate issue? Personally, I'm pretty OK with cold rooms and Red Hot Chilly Peppers. And then a little.

POWs can't be harrassed for information, which I think is one of the reasons we don't call them that. To me, not exploiting that source of information is an unacceptably dangerous road to travel down.

PubliusRex said...

It's hornbook law that the President has the power to defend the country against SOME threats without a declaration of war. The only question is where the line lies upon the crossing of which the declaration of war is needed. But wherever the line lies, that's an awesome, unchecked power.

PubliusRex said...

SW -

I'd be fine with giving them a military tribunal, as was done for the first 230 years of our history and then execute them.

My difference with you is probably that I don't think that they necessarily "deserve" a trial. I also don't know where you or Orrin's position comes from other than a policy preference.

SirWhoopass said...

I think they deserve a trial because the method of detaining people involves little or no veracity.

It isn't like a group is shooting at troops and then lays down their arms. The people we detain are typically unarmed and in a civilian setting (homes, businesses, etc). We're detaining them based on some type of intelligence. Perhaps good. Perhaps as flimsy as the word of an unfriendly neighbor who is trying to collect a reward or settle an old score.

Again, we seldom detain anyone who actually engages in combat with US troops. Those people tend to get killed. We detain people who are not fighting. To me, that means we should give them some kind of hearing.

PubliusRex said...

As I said above, I would treat "arrestees" differently than battlefield captures.