Free Markets, Free People

Daily Archives: April 2, 2009


Do Habeas Hearings Violate the Geneva Conventions?

Ed Morrissey highlights an order of a U.S. District Court regarding detainees at Bagram AFB:

A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.

U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.

Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

Unfortunately, I think Bates is correct here because of the ruling in Boumediene. As I pointed out in February:

Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.

Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.

But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):

Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.

There are a few problems with that conclusion:

(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).

(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).

(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.

In fact, on that last point, Judge Bates specifically noted that:

… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.

Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.


The Republican Alternative Budget

It can be summed up in one sentence: They still don’t get it.

Tax cuts are great, but they’re not real tax cuts unless there’s a commensurate cut in spending. If there’s no cut in spending, they’re simply taxes which are being deferred. And that is precisely what the Republicans offer in their alternative. Long on tax cuts and long on spending. Their only claim to fame is they don’t spend as much as the Obama budget. Well, you’d have to be insane to spend as much as the Obama budget, but claiming that your plan is better because you spend less isn’t much of a recommendation.

For instance:

Discretionary Spending. The budget gives priority to the Federal Government’s most important obligations, national defense and veterans’ benefits. All other appropriated spending is level-funded for fiscal years 2010-14, and then increased at a moderate rate through 2019. The final allocation of these and other amounts will be determined by the Committee on Appropriations.

As long as we’re running a deficit, we can’t afford “increased spending” even at a “moderate rate”. What part of that can’t these people seem to get through their heads? Of course, that means they have to bring the bad news to the people that spending for government provided goodies isn’t going to go up, and, in fact, may go down. And the people haven’t exactly been kind to those who do so. Talking about it is one thing, but unfortunately actually doing it is detrimental to a politician’s career. So their cowardice is understandable if still unacceptable (given their rhetoric)

Mandatory Spending. Total mandatory spending increases by an average of 3.9 percent per year for the next 10 years. This is slightly slower growth than projected in the Congressional Budget Office baseline and the Obama/Democratic budget. It provides for a sustainable growth rate to assure the viability of these programs in the future.

Here is the budget killer – mandatory spending. And what to the Republicans propose? Growing it at almost 4% a year. The inflation rate is what? Well, even now, it certainly isn’t 4%. And while it may rise, you can’t assume that. So this does precisely what they claim their budget does:

To Control the Nation’s Debts. It halts the borrow-and-spend philosophy that brought about today’s economic problems, and puts a stop to heaping ever-growing debts on future generations.

It does not end the “borrow-and-spend philosophy” at all. It merely slows the rate of borrow-and-spend. The claim is nonsense on a stick.

And to cap it all off, they buy into the premise of some sort of universal or nationalized health care.

To Fulfill the Mission of Health and Retirement Security. The budget reforms the health care marketplace by making quality coverage affordable and accessible for every American regardless of pre-existing health conditions. It reinforces the decision-making of patients and their doctors, not government bureaucrats; and it reforms Medicare and Medicaid to make them sustainable. The budget also advances the cause of strengthening Social Security.

So instead of buttressing and supporting the concept of private health care and less government intrusion, the Republicans again commit to the concept of government involvement, but just not at the level of the Democrats. And they also want us to believe this isn’t going to cost much as well.

Disappointing is a mild word for what I see in their proposals. They’re again Democrat lite, buying into all the programs just claiming theirs doesn’t spend as much, and again proposing tax deferral as “tax cuts”, completely ignoring the need to cut spending to make those deferrals actual and permanent cuts.

No wonder they put it out on April 1st.

~McQ

[My latest Examiner.com article]


Stiglitz Calls Geithner Plan “Ersatz Capitalism”

A number of economists, including Paul Krugman, have panned Timothy Geithner’s plan to recapitalize banks by buying toxic assets in a complex and highly leveraged way that puts the taxpayer’s dollars at risk.

Joseph Stiglitz, a Nobel economist, has piled on. In fact, his is probably the most damning opinion I’ve seen. Stiglitz says that first of all, Geithner has analyzed the problem incorrectly. Geithner keeps telling us it is a “liquidity” problem. Stiglitz says “poppycock”:

The main problem is not a lack of liquidity. If it were, then a far simpler program would work: just provide the funds without loan guarantees. The real issue is that the banks made bad loans in a bubble and were highly leveraged. They have lost their capital, and this capital has to be replaced.

What he means is their “capital”, or assets are in worthless loans. Yes that’s right – worthless. So, as he points out, paying “fair market value” for these assets won’t work, will it? They’re worthless.

So what does Geithner propose?

Only by overpaying for the assets will the banks be adequately recapitalized. But overpaying for the assets simply shifts the losses to the government. In other words, the Geithner plan works only if and when the taxpayer loses big time.

Stiglitz explains the proposed process very well, demonstrating it fairly simple and straightforward examples how the taxpayer takes the majority of the risk, and, given the nature off the “assets”, will absorb the majority of the losses.

But Americans are likely to lose even more than these calculations suggest, because of an effect called adverse selection. The banks get to choose the loans and securities that they want to sell. They will want to sell the worst assets, and especially the assets that they think the market overestimates (and thus is willing to pay too much for).

But the market is likely to recognize this, which will drive down the price that it is willing to pay. Only the government’s picking up enough of the losses overcomes this “adverse selection” effect. With the government absorbing the losses, the market doesn’t care if the banks are “cheating” them by selling their lousiest assets, because the government bears the cost.

That is a process driven problem. The Geithner process guarantees the outcome because that is the most likely outcome, banks not being stupid and with the government bearing the cost.

Bottom line – taxpayers are going to get hosed and hosed good.

Stiglitz provides an interesting alternative which gives you an idea of how poorly he regards Geithner’s plan:

Some Americans are afraid that the government might temporarily “nationalize” the banks, but that option would be preferable to the Geithner plan. After all, the F.D.I.C. has taken control of failing banks before, and done it well.

Given only those two option, I’d say Stiglitz has a point.

Of course, the argument we’ve made since day one is we ought to let them go bust, get it over with and begin the recovery. That’s the same argument we made concerning GM and Chrysler.

Instead we’ve gotten these insane plans driven by the administration which has thrown literally trillions of good dollars after bad – and to no apparent avail.

This madness has got to stop.

~McQ