Free Markets, Free People

Military Affairs


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.


Russia: The New Military and The New Currency

Russia is our friend. Don’t believe it? Well let’s look at a couple of things.

Just as the US starts talking about cutting defense spending and axing weapons systems and programs, what are our friends in Russia doing?

President Dmitry Medvedev on Tuesday announced a “large-scale” rearmament and renewal of Russia’s nuclear arsenal, accusing NATO of pushing ahead with expansion near Russian borders.

Meeting defence chiefs in Moscow, Medvedev said he was determined to implement reforms to streamline Russia’s bloated military and stressed Moscow continued to face several security threats needing robust defense capacity.

“From 2011, a large-scale rearmament of the army and navy will begin,” Medvedev said.

He called for a renewal of Russia’s nuclear weapons arsenal and added that NATO was pursuing a drive to expand the alliance’s physical presence near Russia’s borders.

“Analysis of the military-political situation in the world shows that a serious conflict potential remains in some regions,” Medvedev said.

So, new nukes and large-scale rearmament in the face of US defense cuts. As the article asks “reset” or new Cold War?

And then, just to really upset the apple cart, how about a new currency?

The Kremlin published its priorities Monday for an upcoming meeting of the G20, calling for the creation of a supranational reserve currency to be issued by international institutions as part of a reform of the global financial system.

The International Monetary Fund should investigate the possible creation of a new reserve currency, widening the list of reserve currencies or using its already existing Special Drawing Rights, or SDRs, as a “superreserve currency accepted by the whole of the international community,” the Kremlin said in a statement issued on its web site.

The SDR is an international reserve asset, created by the IMF in 1969 to supplement the existing official reserves of member countries.

The Kremlin has persistently criticized the dollar’s status as the dominant global reserve currency and has lowered its own dollar holdings in the last few years. Both President Dmitry Medvedev and Prime Minister Vladimir Putin have repeatedly called for the ruble to be used as a regional reserve currency, although the idea has received little support outside of Russia.

Now there’s not much “there” there as it pertains to this initiative, but it another indicator, among many, that the “Joe Biden Challenge” is alive and well and Russia is in the running to bring it to fruition.


Bombers and “Bombers”

Daniel Larison is trying to smack Ed Morrisey around over a particular story:

There is a non-story making the rounds that the Russian military might base bombers in Venezuela and Cuba, provided that the Kremlin wanted to do this. In the same story that is being circulated, the Kremlin ruled out the idea as hypothetical speculation. Naturally, this had no effect whatever on wild accusations of Obama’s foreign policy failure.

As you can tell, Larison is sure there is no smoke or fire with this particular story, but refuses to let an opportunity go by to blame Bush for something, which he proceeds to do. However it seems Larison’s research into the story must have omitted this CNN version. The lede:

Russia expressed interest in using Cuban airfields during patrol missions of its strategic bombers, Russia’s Interfax news agency reported.

I put them in bold so they might catch Larison’s eye. You see, when most people see the words “Russia expressed interest” they interpret them to mean the state of Russia – you know, the country?- is interested enough in something to actually express that interest outloud to where a news agency heard it and reported it. And the words “Cuban airfields” usually mean, well, you know, airfields in Cuba – the object of the Russian interest. The thing airplanes fly off of. The fact that a Russian news agency reported the story about Russia’s interest and Cuba’s airfields, while also mentioning strategic bombers, kind of ties it all together and gives the statement some credibility over and above Larison’s hand-wave of dismissal. It certainly makes it more than a “non-story”.

In fact, Russia has obviously done more than just “think” about it.  Here’s the scoop on Venezuela:

Zhikharev also told Interfax that Venezuelan President Hugo Chavez has offered a military airfield on La Orchila island as a temporary base for Russian strategic bombers.

“If a relevant political decision is made, this is possible,” he said, according to Interfax. Zhikharev said he visited La Orchila in 2008 and can confirm that with minor reconstruction, the airfield owned by a local naval base can accept fully-loaded Russian strategic bombers.

Offer made by Venezuelan head of state. Enough interest to host a visit by Zhikharev (Chief of Staff of Russian Air Force).  Further interested enough to scope out the construction necessary to make it suitable for strategic bombers.

Yup – non-story. [/sarc]

But hey, never let the opportunity for a rant get slowed by facts, huh?

~McQ


This Is Why Veterans And The Military Don’t Trust Democrats

Or perhaps a better way to say that is this is a typical reason Democrats aren’t well thought of, for the most part, by the military community:

Several veterans groups “are lashing out” at the Obama administration over a policy proposal they say would “dramatically alter” how the Department of Veterans Affairs handles health insurance claims for veterans, The Hill reports. Under the policy, which is included in President Obama’s fiscal year 2010 budget proposal, VA would bill health insurers for treatment of injuries and conditions sustained as a result of veterans’ military service. Currently, VA covers those costs and bills health insurers only for treatment for conditions unrelated to veterans’ military service.

The “you got it, you pay for it” method of saving money on the back of wounded vets. This after all the rhetoric and promises about taking better care of our veterans than ever before because they’ve “earned it”?

Remember?

Of course, as soon as this trial balloon is discovered, the mealy mouth nonsense begins:

According to OMB spokesperson Tom Gavin, although concerns about policy changes in coverage are understandable, no official proposal is on the table. He said, “The details of the VA budget are being worked out right now and the details won’t be available until April,” adding, “The administration is committed to providing the VA with substantial resources to provide for our veterans” (Tiron, The Hill, 3/9).

And, of course, with the federal government spending money on social issues disguised as “stimulus”, followed by a porked up spending bill and now an almost 4 trillion dollar budget, where is the one place that they decide they should try and save money?

On the backs of wounded vets.

Sorry, but that cost was prepaid by the terms of their service and wounds. But obviously, more interested in social issues within the military than keeping promises, the administration begins the ground work for backing out on another of its promises (to their credit, some Democrats, such as Sen. Patty Murray (D-WA), have declared such a proposal would be “dead on arrival” should it make it into the budget – a tip of the hat to her).

~McQ


The Growing Problem At The Mexican/US Border (UPDATE)

The Drug War along the Mexican-US border is getting some high level consideration:

President Obama weighed in Wednesday on the escalating drug war on the U.S.-Mexico border, saying that he was looking at possibly deploying National Guard troops to contain the violence but ruled out any immediate military move.

“We’re going to examine whether and if National Guard deployments would make sense and under what circumstances they would make sense,” Obama said during an interview with journalists for regional papers, including a McClatchy reporter.

“I don’t have a particular tipping point in mind,” he said. “I think it’s unacceptable if you’ve got drug gangs crossing our borders and killing U.S. citizens.”

Already this year there have been 1,000 people killed in Mexico along the border, following 2008′s death toll of 5,800, according to federal officials who credit Mexican President Felipe Calderon for a crackdown on drug cartels.

But the spillover on the border — for example, to El Paso from neighboring Ciudad Juarez — has created a political reaction.

In a recent visit to El Paso, Texas Gov. Rick Perry called for 1,000 troops to protect the border.

Obama was cautious, however. “We’ve got a very big border with Mexico,” he said. “I’m not interested in militarizing the border.”

I agree with his point about not “militarizing the border”. And I certainly understand the desire to send in help to quell and control the violence that spills over the border. But my question is, how will the troops be mobilized? The only way Obama can send in National Guard troops as I understand it is by federalizing them. Then it becomes a matter of their role. The Posse Comitatus act prevents federal troops from being used in a law enforcement role except on federal property (like Washington DC). So he’s limited in the role to which he can commit any troops even if he wanted too.

It would seem instead, that perhaps the best way to proceed in this case, if the desire is to send NG troops to the border to help in law enforcement, is for the Governors to mobilize and send them while letting active military lend logistical, intel and perhaps advisory support. But unless they’re sent in a war-fighting mode, there isn’t much of a role for federal troops in this case.

UPDATE: Commenter Jay Evans notes a recent change in the law which may effect this (the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122)):

 SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES. (a) USE OF THE ARMED FORCES AUTHORIZED.— (1) IN GENERAL.—Section 333 of title 10, United States Code, is amended to read as follows: ‘‘§ 333. Major public emergencies; interference with State and Federal law ‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.— (1) The President may employ the armed forces, including the National Guard in Federal service, to— ‘‘(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that— ‘‘(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and ‘‘(ii) such violence results in a condition described in paragraph (2); or ‘‘(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2). ‘‘(2) A condition described in this paragraph is a condition that— ‘‘(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
‘‘(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

‘‘(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

‘‘(b) NOTICE TO CONGRESS.—The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.’’.

(2) PROCLAMATION TO DISPERSE.—Section 334 of such title is amended by inserting ‘‘or those obstructing the enforcement of the laws’’ after ‘‘insurgents’’.

It looks like it now depends on the classification of the problem. 

~McQ


Project Hero: SFC Frederick Rowell, Silver Star

valor1smFor some, bravery and courage is rooted so deep, the heroic becomes almost common place. Sergeant First Class Frederick Rowell exemplifies this fine character trait. SFC Rowell, a US Army infantryman, was deployed to Iraq for two tours, both of which took place during some of the most pivotal moments of that ongoing campaign, and both times he distinguished himself with valor and heroism.

SGT Rowell was not originally scheduled to deploy to Iraq with a combat unit. In fact, he was an instructor at Ft. Polk. Rowell had joined the army at age 17, and had served 6 years stateside duty until then. But when a call came down for volunteers to join an infantry unit deploying to Iraq, without consulting anyone he stepped forward. 48 hours later he had said good bye to his wife and family and was on an airplane bound for Kuwait.

In the thunder run that was the invasion of Iraq, then-Sergeant Rowell was involved in the critical fight for the Baghdad International Airport. April 4, 2003 was the first great test of this young non-commissioned officer’s dedication to his fellow soldiers. Remember, he’s just joined them and hasn’t really trained with them extensively to this point. But as you’ll see he rose to the occasion.

After dismounting his Bradley fighting vehicle, Rowell’s unit came under heavy automatic and rocket-propelled grenade fire. After assessing the severity of the fire, Rowell covered his comrades as they fell back to their Bradley. During this withdrawal phase, he noticed another fire team was pinned down far from cover and taking heavy fire. For those of you unfamiliar with the structure of an infantry platoon, two fire teams make up a squad of about 10 infantrymen. 4 squads make up a platoon. So a fire team is about 5 soldiers led by a sergeant.

Once his own fire team was in the relative safety of his Bradley fighting vehicle, Rowell did not hesitate to act to aid the pinned down fire team.

Charging across about 300 meters of open terrain under fire from Iraqi forces, Rowell arrived at the location of the isolated fire team to find it leaderless and with a severely wounded soldier. Rowell took charge and sprang into action. He gave the team direction, telling them where to concentrate their fire and deploying them to maximize it. After he had them laying down cover fire he began applying first aid to the wounded soldier. As the enemy attack became more focused and more intense, Rowell threw himself on top of the soldier, using his own body as a shield while another Bradley fighting vehicle attempted to close in on their beleaguered position.

“I had to lay on him. He was in shock, moving his legs around and the rounds were coming in everywhere. I was afraid he was going to get hit again. So, I laid on top of him. About this time I got shot in the plates, in my Interceptor Body Armor. I got shot there.”

As he was covering the injured soldier with his own body, Rowell took a direct hit from an AK-47 round in his back. The good news is, it was stopped by his body armor. But it was a round that would have almost certainly killed the soldier under Rowell who had been stripped of his protective vest in order to treat his wounds. With the evacuation vehicle blocked from coming any closer, Rowell hoisted the wounded soldier onto his back and ran some 100 meters to that vehicle in order to evacuate the severely wounded soldier. His action was credited with saving the soldier’s life. He then lead the withdrawal of the rest of the fire team to the safety of US lines.

4 years later, now Staff Sergeant Rowell was again deployed to Iraq, as a part of the Surge.

On September 11th of 2007, Rowell, now squad leader, was on a scouting mission to observe insurgent activity in a volatile part of Baghdad. The idea, of course, was to get soldiers into areas they’d never previously been in to begin to root out the terrorists and protect the population.

His squad was split into two observation posts in two buildings. They were there to observe activity on a road on which IEDs were frequently planted. As Rowell said, it was a ‘real bad’ part of Baghdad. He and his soldiers were located on the 2nd floor of an abandoned house when they observed some activity during the night.

An enemy scout was snooping around the house in which they were located. He tried to get into the door then backed off and disappeared before they could do anything. Rowell hoped they hadn’t been compromised, but in a few minutes 3 of the enemy rushed across the area near the house and up to it, then withdrew. What the soldiers didn’t know is the enemy had planted a 2L soda bottle loaded with homemade explosives and a pressure plate near the door. The terrorists then opened fire from three different directions. SSG Rowell contacted his platoon headquarters and reported that he was under fire and his position had been compromised. His platoon leader ordered them to withdraw to his position.

As enemy fire poured in on them, Rowell planned to move his squad to the other observation post. He planned his route and the order in which they’d move out of the building, and how they’d support each other as they moved. He lined the men of his squad up in the order they’d go and then gave them the order to go. Rowell was second in line.

But the first soldier down the stairs was severely injured by the IED the terrorists had planted earlier. As Rowell stepped out of the door, the blast blew Rowell off the second floor landing and knocked him unconscious. He lay there for 4 or 5 minutes before regaining consciousness as the battle raged around him. His squad had pulled back into the house.

Rowell regained his focus – despite being later diagnosed with a traumatic brain injury – and looked around to assess the situation. He said “I saw a body out there and I saw it moving.” He rose to his feet, running to the aid of his comrade, Spc Jonathan Prusner. Prusner’s left leg had been blown off below the knee. Under heavy fire, Rowell pulled Prusner back into the building, treated him and defended him from the numerous attackers. In the meantime his platoon leader had requested the quick reaction force, a Stryker platoon, to move to the ambush location to rescue the squad.

On other thing I should add – SSG Rowell was completely deaf from the IED explosion at this time. He couldn’t hear a thing. And although his hearing would return at a later date, he was unable to communicate by radio at this time. So he had only one option left to him when it became necessary to direct the fire of the quick reaction force upon their arrival.

He ran back out into the fire storm and physically directed the reinforcements fire onto the enemy positions. He then helped evacuate Spc. Prusner into one of the Strykers. Finally on the way out of the kill-zone, Rowell manned the roof gun on the Stryker as they evacuated the injured to a combat hospital.

In these two events, Rowell’s heroism was undeniable. He is the epitome of a combat infantryman and non-commissioned officer. By ignoring his own safety and using his body as a shield to protect a wounded soldier in 2003, he was awarded the Silver Star. For coming to the aid of Spc. Prusner and displaying steadfast courage under harrowing fire in 2007, he earned the Bronze Star Medal with the “V” device for Valor.

Recently promoted to Sergeant First Class, Rowell’s reaction is precisely what you would expect – “I was only doing my job”, he says. He has become very good friends with the young man that he saved, but who lost his leg. That’s because they’re both recovering together at the Warrior Transition Center at Walter Reed Medical Center. The bond they formed in combat has helped them both in their recovery process. And SFC Rowell also credits the rock steady support he’s received from his wife and family. Said Rowell:

“My wife has been there to help me out. Been very supportive. All around I think the greatest Army wife out there ever.”

What is it SFC Rowell wants to do as soon as he’s recovered from his injuries? He says, “I want to get back to soldiers”.

And the soldiers who end up with SFC Rowell as their platoon sergeant will be among the most fortunate infantrymen in the Army. And that is why SFC Frederick Rowell, United States Army infantryman, and awarded the Silver Star, Bronze Star with Valor device and Purple Heart during two deployments in support of Operation Iraqi Freedom, is someone you should know.

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Stray Voltage

Apparently Timothy Geithner isn’t the financial “rock star” he was touted to be if his handling of the Asian crisis 10 years ago is any indication.

While Obama may have “inherited” the financial problems, the bear market is all his.

Speaking of lay-offs, this isn’t going to make our jet jocks feel very secure.

The new slogan of the Democrats – never let a good crisis go to waste.  So this is a “good” crisis?

Take a look at this page and tell me where are the promised tax money from rich folks is going to come from.

Stray Voltage

Stray Voltage

If you don’t believe government is contemplating some pretty heavy care rationing when and if they get control, read this little beauty carefully.

Even George McGovern finds the pending card check legislation desired by unions to be “fundamentally wrong” and undemocratic.

Grey wolves “delisted” from endangered species list.

No time for Gordon Brown, but plenty of time for Brad Pitt.  Wonder if Pitt got a 25 volume DVD set too?

Is Obama preparing the way for a massive defense spending cut?

George W. Obama?

Even Paul Krugman is getting a little antsy about the apparent lack of focus of the Obama administration on the financial crisis.

It appears Hugo Chavez recognizes a kindred spirit when he sees one.

The Senate is one vote short of passing the omnibus spending bill with 9,000 earmarks.  All I wonder is which Republican will cave first?

~McQ


This Is Definitely Not The Thing To Do

I‘m a big booster of the military (yeah, yeah, I know, big surprise) but when it or members of the military do dumb, stupid or illegal things, I call them out.  This is one of those times:

A U.S. soldier on active duty in Iraq has called President Obama an “impostor” in a statement in which he affirmed plans to join as plaintiff in a challenge to Obama’s eligibility to be commander in chief.

The statement was publicized by California attorney Orly Taitz who, along with her DefendOurFreedom.us Foundation, is working on a series of legal cases seeking to uncover Obama’s birth records and other documents that would reveal whether he meets the requirements of the U.S. Constitution.

“As an active-duty officer in the United States Army, I have grave concerns about the constitutional eligibility of Barack Hussein Obama to hold the office of president of the United States,” wrote Scott Easterling in a “to-whom-it-may-concern” letter.

As Neptunus Lex says, “this is a guy way out of his swim lane”.  Lex mirrors my reaction exactly:

I’m no particular fan of the president’s agenda, but this smells too like the actions of those refuseniks who insisted that the 2000 presidential election was invalid because the result failed to conform to their preferences. Only this is worse, because the individual in question is an active duty officer serving in a combat zone. It’s going to create a huge headache for both his soldiers and their chain of command, all of whom have much better things to do with their lives – like preserve them – than to coddle the whimsies of a rogue 2LT.

He swore an oath to support and defend the Constitution of the United States. This is mere vanity.

And it is utter stupidity. I don’t support this LT any more than I supported the LT who refused to deploy because he had decided that the Iraq war was “illegal”. They need to get this guy out of Iraq where his divided attention might end up getting someone killed. Then they should help him quickly learn to reassimilate into civilian life again (where he will surely become the darling of a few far-right fringe groups).

~McQ


Delaying the Trial Will Hasten Justice (A “Spinorama” Adventure)

I‘ve got to say, if Robert Gibbs is the best they have, in terms of Presidential spokespersons, the press is going to eat him alive. To date he has not been impressive. Of course it helps if you’re not trying to spin so hard you simply look foolish.

As everyone knows, Obama signed an executive order calling for a freeze on all the military tribunals at Guantanamo for 120 days. One of the military judges,  COL James Pohl, refused the order saying to do so would delay justice. The particular case he was presiding over concerned Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing. That trial has now been suspended and charges dropped (without prejudice which, we’re told, means they can be brought again in the future).

A "Spinorama" Adventure

A "Spinorama" Adventure

Read this series of questions and answers.  I believe the questions are asked by ABC’s Jake Tapper (Gibbs says “Jake” prior to the question (transcript via email):

Q The president later today is going to be meeting with a bunch of families of terrorist victims. A lot of the people he’s going to be meeting with take issue with his decision to stop the military commissions. They say that it’s been through an extensive legal and legislative review, the Supreme Court has weighed in, and they don’t understand what concerns the president has in this process. Could you explain what are some of the concerns the president has specifically about the military commissions?

MR. GIBBS: Well, I think, the main concern that the president has is the military commissions’ failure to bring those in detention to swift justice.

The president invited family members, families of those that were killed, first in the USS Cole incident in 2000 and next in the September 11th, 2001 terrorist attacks, and wants to discuss his plan to bring about changes in Guantanamo that he believes will make this country safer and bring about the very same swift justice that they desire, on behalf of those that they know that have been killed.

Q I’m sorry. How does delaying or even renewing the trials make it any swifter?

MR. GIBBS: Well, the act that the Cole families are disappointed — the act that the Cole families were affected by happened in 2000. We’ve not yet seen justice brought now in 2009 to Mr. al-Nashiri.

Judge Crawford withdrew the charges without prejudice to reinstatement of those charges. Mr. al-Nashiri remains in detention. And her decision brings all cases into compliance with the executive order that the president issues.

But I think if you look at the number of those awaiting justice and those that have gone through the process, I think you’ll see quite clearly that very few, very few have been brought to justice.

The discussion that the president looks forward to having today is part of the ongoing process with how to move forward. I don’t believe that the families affected, by the terrorist incident with the USS Cole, have seen — they certainly haven’t seen this president.

I don’t believe they saw the last president either. And the president thought it was important to listen to their very personal cares and their concerns about anything that’s involved in this process.

Q The arraignment of al-Nashiri was supposed to be Monday, but because of the executive order of the president, Crawford suspended the — the charges. I still don’t understand how this is going to make the — (inaudible). I understand the cases that haven’t been heard, but justice delayed –

MR. GIBBS: Without getting into some of the specific aspects of this case, I think the president believed that the best course of action going forward to bring about the justice that both he and the families seek in this case was to go through the very process that Judge Crawford has done and the executive order that the president has signed.

You have to love that question – “How does delaying or even renewing the trials make it any swifter?”

Amazingly, it doesn’t!

And Gibbs answer is simply pathetic – it doesn’t even begin to address the point of th question.

As you might imagine, the families of the Cole victims are less than enthusiastic about the Obama decision. Apparently they’re having a rough time puzzling out the answer to that question as well.

Hope and change.

~McQ


Lawyering The War on Terror

If there is one sure way to roll back any gains the US has made in the War on Terror over the past eight years, it would be to shift the focus from military and intelligence gathering, to a crime fighting stance. That is exactly the position the Obama DOJ appears to be taking:

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

What to do with the GITMO prisoners is a piddling concern compared to how the administration plans to fight terrorism. Released prisoners can potentially be tracked. The hands of national security however, once tied, are difficult to free. handcuff-terroristFighting terrorism as if it were an issue of law enforcement will potentially, and dangerously, bind our hands in that endeavor:

The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.

Above are two prime examples of how the policy switch advantages the enemy at the expense of the citizens. In the first, the folly of fighting terrorism through the courts could not be clearer. It is nearly impossible to build a public case based on state secrets. In the law enforcement model, the prosecution is not allowed to have secrets, and defendants are entitled to see the evidence against them as well as to confront all witnesses. That is because our nation is founded on the principle that the people, from whom the government derives its power, should enjoy the benefit of presumptions and the government should be required to make its case. When trying to confront our nation’s enemies, however, we do not want to allow them the same benefit. By engaging them in courtroom battles rather than in military/intelligence ones, we do just that.

Specifically, allowing state secrets to become part of a legal case allows the enemy to see what cards we’re holding. It is a surefire way to devalue our national intelligence. Indeed, any time sensitive information is available to more than a few people it eventually becomes public, and lawyers sworn to secrecy are no different (see e.g. Lynne Stewart). Yet, despite these dangers, the Obama DOJ may be considering backing off the positions staked out by the previous administration:

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

If the DOJ opts to forego the state secrets doctrine as a defense, then it will be left with two undesirable choices: (1) make national intelligence discoverable in a court of law, or (2) drop the case altogether and set the defendant free. Neither choice is satisfactory, but both are the inevitable outcome of pursuing terrorism under the rubric of law enforcement.

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.

Again, these are the inevitable results of waging war as if we were fighting crime. The two arenas are decidedly distinct, and the tactics and strategies of one do not translate well into the other. If we insist on treating terrorists as criminals, cloaked with the protections of our Constitution and privy to the secrets that ensure our security, then we invert the promise of a national defense. The end result is to allow the enemy to be in control of our security interests rather than the other way around.