Guantanamo and Human Rights

Justice "Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was “to superimpose the habeas corpus process into the world of intelligence gathering.”

He said his decision, which involved men first detained in Bosnia far from the war in Afghanistan, should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases. “This is a unique case,” he said.

Still, there was a buzz in the gallery when he announced that the government had not proved its case against the five men. In urging the government not to continue to fight the case, he noted that an appeal could take as long as two years. "  NY Times


Life tenure on courts does funny things to and for people.  This judge says that he had not expected to be sympathetic to these appellants.  Nevertheless, the "thinness" of the government’s case offended him and he ruled as he did.  Good.

A few nights ago at the Q&A session after my lecture in Norman, Oklahoma, a young man asked a related question.  He said he was a National Guardsman.  He had heard me say that I thought that the detention facility at Guantanamo should be closed and that those prisoners against whom the government has a solid case should be transferred to the custody of US courts either civilian or military for a speedy trial.  He asked if that meant that I "wanted to give these prisoners the rights of American citizens."

I was taken aback by that question and its predicate.  I told him that I had served in the US Army and government for a long time and that I thought him to be mistaken in believing that such features of American justice as; the right to confront one’s accusers, the right to a speedy trial, the right of Habeas Corpus, etc., are rights attached to the citizenship of the United States.  I told him they are, in fact, rights that the founders of the country and the framers of the Constitution sought to guarantee to all those who were within the grasp of the power of the United States.

He looked surprised at that.  As I watched him, I imagined that I could see the opinion forming behind those eyes that he was dealing with yet another lefty softy. 

"When they are through trying these defendants," I told him, "it is of no interest to me what sentence the condemned might receive…"

Perhaps he will think that exchange through…  pl

PS  Yes, I know.  The slavery thing…

This entry was posted in Current Affairs. Bookmark the permalink.

36 Responses to Guantanamo and Human Rights

  1. WP says:

    It is really such a simple statement, yet so eloquent:
    I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands: one Nation under God, indivisible, With Liberty and Justice for all.”
    The pledge harkens back to the founding document of our government, the Declaration of Independence:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men…”
    It is most American to give all humans fair and just treatment when in the custody of the government. To torture, arbitrarily imprison, and deprive any person in government custody, whether here or abroad, is a travesty and denial of the most basic precepts upon which this country is founded.
    The tragedy of the last decade is that we Americans, in our quest for security have simply forgotten the most fundamental values upon which this nation was founded.
    We and our government have long known that a significant number of the prisoners at Guantanamo are simply innocents sold into American custody by liars and kidnappers. Instead of immediately correcting our mistakes, the government, really acting criminally, has continued to hold these people because, to release them would have been an admission that the whole concept of extra-territorial jails was a terrible wrong.
    We need to recover our values and give these prisoners prompt justice, whether by fair trial or release. Anything else is a repudiation of our basic values. Those innocents who we have so seriously harmed should be compensated and receive or national apology.
    It takes courage to admit and stand accountable for the mistake, but we must or we will lose even more of our national Honor.
    “With Liberty and Justice for all.”
    All means all, including those we hold extrateritorrially, else we are nothing but hypocrits and frauds. The failure of our government to maintain this simple concept is a sign of true moral and temporal weakness and cowardice. It takes great strength and bravery to treat everyone, including one’s enemies justly.
    The young need to be taught that all means all, else no one is secure.

  2. Mongoose says:

    As someone from Oklahoma, I can say with all honesty that I’m not at all surprised you received the question you did at Univ. of Okla. regarding “habeas corpus,” whether it was someone in the National Guard or not. Not that you should have anticipated the question, however. Questions of justice, let alone an interest in empathy with another’s plight is foreign to most Oklahomans, unless, of course, you meet the criteria of a “born again” Christian. I exaggerate but not much.
    On a side note, I’m disappointed that I was unable to attend your talk–for reasons beyond my control I haven’t had access to a computer for over two weeks and was unaware of your impending visit. If I’d known, I would have brought a slew of students with me–they’ve become big fans of yours in recent months. I do hope, however, that you enjoyed your brief stay in our state.

  3. lina says:

    We have the efficacy of right wing propaganda to thank for this turn of events. We may also have poor education in history to blame as well. Gov. Palin, in her campaign stump speech, accused Sen. Obama of “wanting to read terrorists their rights.”
    Somewhere along the way we’ve completely lost our connection with how the U.S. was founded and the origins of our legal principles.
    There’s a lot of work to do in the field of education.

  4. I think that what is most interesting is that the legal system of “Justice” (note not “truth”) in the US still has not ground out completely on the issue of “enemy combatants” seized outside the US and their rights. SCOTUS will eventually rule but for many already too late. Laura Donohue of Stanford Law School produced and excellent discourse on the history of torture and indefinite captivity in Great Britain and the US. I believe her book is entitled “The Costs of Counterterrorism.” More and more legal scholarship is being devoted to this issue. Before the only partial analysis by the courts was the situation of convicted Cuban criminals who arrived in the US by the Mariel Boatlift in 1980 (Castro opened his prisons to allow non-political prisioners to take part in the boatlift). Then of course there is Article 3 of the Geneva Convention. It seems to me to be a de minimus cost for the US to try these combatants once returned to the US. After all it does send the message to the world of the US interest in Justice. Of course, the heat of combat often does not “Render” justice. But by transporting to a US possession whatever the niceties we demonstrate the combat has long ended. Since there is often no STATE that will accept these prisioners captured by the US or its allies, what other system would prevail but to try however imperfectly to deliver justice. During the Spanish Civil War prisioners were largely shot up capture. That cannot be the policy that should be adopted. After all we even gave the Nazi heirarchy the trial process. The purpose of that process was largely to establish individual as opposed to some concept of “Collective” guilt. Sometimes we can learn from that effort more than we can by torture or other techniques. I personally don’t want to face a world wherein people fear that the US system of Justice cannot accomodate prisioners long removed from combat even if they are not in uniform when captured. A non-sensical distinction actually based on history. Especially the history of warfare as conducted in the US and even before we became a nation. The Courts have shown less deference to the BUSH/CHENEY doctrine of torture and incarceration than some may believe. Yet in my judgement even what deference has been shown lacks a rationale supportable by the traditional system of justice in the United States.
    entitl eivaed

  5. zanzibar says:

    Enemy combatant labeling based on false premises, rendition, torture, abrogation of our treaty obligations under the Geneva conventions, making a mockery of habeas corpus and most despicable the subversion of our Constitution that all were sworn to uphold is a shameful blight on our nation and our people.
    Unless those that were responsible are brought to account – charged, prosecuted and judged by juries under our laws – the sanctity of our Constitution and the values of our founding will forever be stained.
    Just closing Guantanamo and burying the crimes committed will only demonstrate our weakness.

  6. kao_hsien_chih says:

    The idea of the right to justice being a right “only for American citizens” is shocking. Every totalitarian no doubt would have said that every good citizen of X was fully entitled to justice, civil rights, etc–just that “enemies of the state” (by whatever definition) have forfeited their membership to the community of X and therefore are entitled to nothing….

  7. Charles I says:

    I just finished Barton Gelman’s “Angler”and it is most instructive. He manages to deconstruct how you got where we are and it is much much more about Power than it is Justice. Cheyney, Addington et al seized the levers of power, honest patriots I believe, though likely criminals, to first restore Power to the unitary executive Presidency, and after 911, to secure the Nation. Justice could not match the exigencies of those shocking days. Empowered Executive action alone could suffice.
    Eventually, though how Bush was re-elected I don’t know, the Supremes pushed back in Hamdan, and Judge Leon is applying the Law in its present arc as the pendulum swings.
    I must say, as a bleeding heart liberal, almost atheist, I scoffed at press reports of John Ashcroft’s predilections, but he and his colleagues at Justice come off as true Patriots and heroes in Gelman’s book, and in mine, a former lawyer’s, too.
    It seems certain that Guantanamo will now be wound down, not without many headaches. You are up to it

  8. Perhaps he will think that exchange through…
    He is young. Gulf War I started up not too long after I got out of the Air Farce and had started my first job. After listening to the media’s parade of naysayers for days and days talking about how we were going to get pulverized by Iraq, I got fed up and told my coworkers one day that we should ban certain rights during a war such as the freedoms of assembly and speech. An older fellow looked at me like I was the stupidest mo-fo on the planet and let me know how wrong I was.
    I’ve never forgotten that exchange, and thought it through for years. Needless to say, I realized after a few years that it was not one of my finer moments! (Among the many)
    We think and say some pretty stupid things when we’re young, dumb, and full…well, we’ll leave that last part left unsaid. My list is long.

  9. Redhand says:

    As an immigration lawyer I’m all too familiar with the ignorance reflected in this post. It’s a fact aliens do not have the full panoply of rights that citizens enjoy, but that doesn’t mean that the basic protections of due process, habeas corpus, the right not to be tortured by our Government, etc. can be ignored.
    I’ve been politically conservative most of my adult life, but the Bush Administration turned me into a registered Democrat, at age 59!
    For me the breaking point was Gitmo, and what was done to the detainees there and elsewhere overseas.
    The reason is simple. As counsel for asylum claimants who have been tortured by other governments, I’m necessarily familiar with what the legal definition of torture is. There’s absolutely no question that the “harsh interrogation methods” that the Administration approved as “legal” are not.
    I simply could not handle the idea that my clients were seeking protection from acts perpetrated against them by other nations that were qualitatively the same as what our Government was doing to the “enemy combatants” at Gitmo.
    Unlike AG Mukasey, there is no way I think approval of these acts by Government lawyers reflect legitimate “policy differences that must be understood in the context of 9/11.” They are crimes, and a wretched blot on our reputation as a nation that respects basic human rights.

  10. Lorell says:

    I too think lack of education is the root of this young man’s misapprehension. Let’s see: what school year did I learn about the Magna Carta? Sixth? Seventh?

  11. Hyperion says:

    I recent had my own weird interaction with folks from OK. Two very smart people (PhDs in a hard science) told me they get all their news from fox because all the other media outlets are biased. And at one point I was asked to define torture, as if there weren’t a definition already in common article 3. Very sad. But it demonstrates how malleable human thought is. If you listen to lies being repeated, sooner or later you start believing them.

  12. TJ says:

    It is irresistable, given the unanimity of the comments to play advocatus diaboli. I think one hesitancy on the part of many to bring the US court system into the question of what happens to enemy combatants is the fear that they will administer the law with the same effectiveness they do with the criminal element extant in this country. That the courts will engage in the same navel gazing about rehabilitation and the costs of incarceration, the same foxhunt mentality involving discovery, cross examination and quality of defense council, mother-may-I and Simon says rules about questioning, chain of custody and speedy trial and myriad other failures of critical thinking that characterize criminal procedure in the US. While we have in the service of these mental games, conceded our right to walk around at night, possess property that is not under 24/7 lock and key and unfortunately many other things we would like to do because criminals control large swaths of our cities, many people like your young guardsman might feel that it would be too much to ask that our robed and coddled life appointees be allowed to fritter away the entire country too. By the way I am not young and I was for a time a criminal defense lawyer. At first I was bemused but eventually appalled at the routine ease with which I enabled people to escape punishment for the most despicable and horrific acts because I knew how to use the rules to good effect and I could take my clients bullshit story and put it into persuasive form. Scary.

  13. mlaw230 says:

    TJ: Your impressions are startling coming from an attorney. Where and when did you practice?

  14. Lorell says:

    The November issue of Texas Monthly magazine has an article about 37 men who spent a collective 525 years in prison for crimes they didn’t commit. Errors either way in the criminal justice process shouldn’t argue for abrogation of our constitutional rights.

  15. TJ says:

    I have been a lawyer in Oklahoma since 1994. I believe in the Constitution and I find it interesting to contrast my conception of the Constitution with the typical federal jurists conception of it. To give you an example that would be pertinent here: In a likely scenario involving a GITMO detainee who is being charged in Federal Criminal Court. Can you imagine the impossibility of complying with the discovery requests alone for a person seized on the Afghan border? A properly filed, well thought out discovery request that isn’t a boilerplate request will usually wreak havoc on the simplest traffic arrest conducted by police who are used to documenting such things. Even if the detaining soldiers were aware that they were supposed to be preparing a federal criminal case when they stumbled across some guy in a village with a bomb in his car (which you can bet they weren’t) it would have taken them 2 days to properly document, preserve, and put to paper all of the necessary things to get it in front of a federal judge. Thats just the first of myriad hurdles before you get to a passable case. I bet they don’t convict a single one in trial. Maybe, maybe you might get a surviving case on the ones handled by the FBI from the start or a loon who wants to proclaim his guilt at every opportunity. Wouldn’t hold my breath though.

  16. mlaw230 says:

    TJ: An interesting outlook, clearly you didn’t practice in Virginia where there is NO criminal discovery. We (I Used to) operate on the “20 step rule” i.e. it takes an average of twenty steps from the back of the courtroom to the bar, in that time you have the right to ask your client “who the f#@% is he?” maybe not fair, but constitutional.
    We have the ability to try cases in camera, so is the problem that the evidence is not properly documented or that it does not really exist? I would think that exigent circumstances would allow much of this evidence to be admitted, albeit subject to a withering cross exam, am I wrong?
    The basis of your point is correct regardless of the answer to the above, we are set up to treat state actors, i.e soldiers in one way and criminals in another, but there is no model for organized but not state based armed resistance. That is the dilema we have been confronting, but instead f confronting it we have had an administration which simply chose to avoid the issue and judicial review.

  17. Arun says:

    I think one hesitancy on the part of many to bring the US court system into the question of what happens to enemy combatants is the fear that they will administer the law with the same effectiveness they do with the criminal element extant in this country.
    And yet America has 2 million people in prison at any given time, more than India or China, that are three to four times more populous. China isn’t particularly liberal, one would say. If America is really that criminal and yet TJ thinks that US criminal law is not effective, then just what business does the US have telling anyone anywhere else in the world what to do, let alone arresting in Afghanistan suspects with bombs in their cars (how many Afghans have cars by the way????) If the country is being frittered away it is by the beam in one’s eye, not the mote abroad.

  18. Lorell says:

    mlaw230 said:
    “but there is no model for organized but not state based armed resistance.”
    I’m having a hard time keeping up with this nonsense.
    Isn’t this exactly the situation where the U.S. practiced genocide on indigenous North Americans?
    I guess one man’s war on terror is another man’s opportunity for negotiation and reconciliation …

  19. Patrick Lang says:

    You need to get over the sentimental nonsense and learn some history. The butchery between the colonists and the indigenous was anything but one sided.
    The first “biggy” in the English speaking colonies happened in 1620 or 1622 in Virginia. In that winter the local noble savages unexpectedly attacked the Jamestown settlement killing half the people, (over a thousand)
    Was this an Indian attempt at genocide? pl

  20. feocito says:

    The administration had the opportunity in the weeks directly following 9/11 to engage the international community on the issue of “new law of war”. The Al Qaida attacks on the US changed the relationship of combatants and targets in a major way. The old constructs of the Geneva Conventions were shaken to their very foundations.
    I firmly believe that if our Justice Dept had engaged the rest of the international law community, we could have developed a new construct for new warfare.

  21. mlaw230 says:

    Lorell: Is that the model you recommend?
    Typically at the end of hostilities between states, the vanquished state still exists, it still(or again) has cultural and political institutions that provide order and that the combatants respect and will to a large degree obey.
    In the current conflict, that is not the case. The middle east does not appear to have fully embraced nationalism and so they appear both “pre” nationalism in some ways and “post” nationalism as well, in other ways.
    Our system treats the soldiers of Nation states with some respect, it treats virtually all others as criminals. This is artificial and inaccurate, but it is the system we have. The fault, in my opinion, was this Admins. willingness to abandon the entire system, to unhinge it from all of the norms which preserve some decency, in favor of the efficacy of keeping a few dozen bad guys imprisoned indefinitely.
    If you caught Ossama Bin Laden, but couldn’t prove through admissible evidence that he was guilty of a crime, would you let him go?

  22. Ed says:

    This mindset has always confused me. The historical precedent for treating these people humanely exists. Just look at WWII: Germans and Russians fought to the death because prisoners were executed. Germans surrendered to Americans because they knew U.S. forces would treat them humanely. I’m shocked a National Guardsman does not know this.

  23. Cieran says:

    Let’s jump in here with some fresh tinder…
    First, Colonel Lang specifically stated that civilian or military courts were appropriate venues for such trials. Admissibility constraints on evidence vary greatly depending on the court system involved, so the possibility of trial in a military court (for example) would permit more latitude in evidence presented.
    So given that, regarding mlaw230’s question:
    If you caught Ossama Bin Laden, but couldn’t prove through admissible evidence that he was guilty of a crime, would you let him go?
    I would answer that with a clear yes. If one cannot prove the commission of a crime by the defendant involved, then that defendant is presumed innocent, and in fact, one must be open to the notion that the defendant may indeed be innocent.
    Obviously, that’s not the case for Osama Bin Laden (we have plenty of admissible evidence regarding his actions), so the question is rhetorical in large part. But the rule of law is motivated by process, not by outcome. If outcome is all one desires, the American legal system is certainly not the best way to get there.
    In the interest of full disclosure, I’m not some bleeding-heart interested in abstract questions of wrong and right. I’ve done plenty of forensic work in my career, including performing the science required to put a serial murderer on trial in a federal court so that the more lenient admissibility constraints of the federal system could be realized, and to put the death penalty in play (as the state where the murders were committed had no death penalty). He’s awaiting execution now, in no small part because of my technical skills, so this question is not an abstract one as far as my conscience is concerned.
    I think another related question is this: if you captured Osama Bin Laden and had plenty of solid evidence to convict him in an appropriate venue, and then had to let him go because of an avoidable technicality (e.g., torture leading to inadmissibility of evidence), how would you treat those parties who ruined the case for the prosecution, e.g., the torturers?
    Would not the blood of the victims be on their hands? What would be an appropriate punishment for their actions?

  24. JP the young National Guardsman says:

    I’m quite amazed and flattered by Col Lang’s post about my question and equally amazed and flattered by all the attention it has gotten. Especially since all this attention is quite undue. Even after the lecture was over, I told those with me, “I don’t think he understood what I was asking.” I was in no way inviting ideas involving inhumane or anything other than good treatment of any prisoners, especially those that have not been found guilty in any court. I was merely curious as to the Col’s opinion on the matter since it seemed to be one of the main points in the discussion going on. I am in favor of shutting down the prison facilities at GITMO and I am in favor of getting through the red tape the government has been working on to get trials going for these people.
    However, my question was simply to inquire as to how Col Lang felt that this should go about.
    Furthermore, my question did not contain any implications of validation for torture practices or venture any hint of inhumane treatment of prisoners. Nonetheless, we can discuss that since it has been brought up.
    No nation has ever released untried prisoners of war while the conflict/war is still going on. We, as a nation, have many responsibilities during times of war. Things are happening slowly and the longer it takes to get underway, then the longer potentially innocent men sit in captivity. This is unacceptable. However, as well as providing these people certain inalienable rights, we, as a nation, also have the responsibility to protect those that have put their lives in danger because they were told to do so by our government. I am not implying the American people should do anything immoral to keep people off the battlefield. As TJ was stating, there would be awful implications should any of these people would be released because of red tape (such as a failure to read rights) only to go back onto a battlefield to take up arms against American soldiers again. I am merely implying, as a future active duty infantry officer, that the idea of any combatant coming back into action on account of a loophole to wound or kill any of the men that are under my care is a grave mistake. That is not a fear tactic from the right wing, it is the hard truth.
    We must remember that we cannot treat these crimes as those committed in homes in metropolitan America. Some of these people took up arms to take down the US nation. Therefore, we must tread carefully. If we do use US courts, as opposed to military tribunals, and enact these trials quickly, we will need a large number of judges. My only fear is this leaves a lot of room for error. Cieran beat me to my point of difference between civil and military courts. However, in the end I always feel it is better to let a guilty man go free, than to let an innocent man be unfairly prosecuted.
    Now I will look to the posts on here accounting that my “youth” will soon subside and I will see the light that apparently I am missing. I cannot wait until that day comes and I’m sure when you were young and as infantile as I am now, you probably felt that the weak comments on your age were a poor attack by those who felt the insecure need to put themselves on a higher pedestal before a counterargument was under way. Let us not forget that the same things were said about our President-elect. I know plenty of older people who cannot name our Secretary of Defense or tell me the difference between Shia and Sunni, but feel their age gives them reverence. So let’s stop this talk about “youth” and argue the matter like adults.
    I will leave myself to the wolves with one last thought in mind. I have taken quite some time, skipped class and work to attend lectures by many different people who come to the area. I am better read and informed than most my age. Some have said here that I need to be educated.
    Nonetheless, the time I do speak I am immediately discredited for being young. This shines a light on the perspective of the older generation’s feelings of teaching the youngsters. More and more young people fail to take part in what is going on because of this patronizing attitude. Elders should encourage youthful discussion, not discourage it.
    (Oddly enough there are quite a few posts on here talking about the right wingers and vast conservative biased coupled with the lack of education for the youth. However, the youth happened to vote strongly Democratic this election. Should you surrender that your previous comments on education were at fault? Or do you claim the uneducated, doltish youth, who doesn’t know what is going on, voted the correct way? If the youth are “uneducated” and most of them are quite liberal, do we blame the vast right wing conspiracy?)

  25. Patrick Lang says:

    It sounds like you have thought it through.
    “What you said to me was “Do you want to give the rights of Americans citizens to these prisoners?” If you meant something other than that you might have told me after the lecture. pl

  26. Cold War Zoomie says:

    JP the Young-
    Well said. And I would be surprised if you *weren’t* a little riled up at my post!
    Best of luck. Enjoy the journey.

  27. Cieran says:

    JP the Guardsman:
    Thank you for joining the discussion. You ask some very good questions, and the SST committee of correspondence is enriched by your thoughts here.
    I would point out that when you asked Colonel Lang your question about Guantanamo, it did not seem like a question from where I sat (at the far end of the room from you), but perhaps more like an assertion that might have grown a question mark at its far end.
    And as you recall, several “questioners” had earlier expressed broad assertions disguised as questions before the topic of Guantanamo had arisen, so the context that Colonel Lang has presented above is quite reasonable given the actual circumstances of his talk.
    Your comments here of course provide much more in the way of helping SST readers appreciate the context of your question re: Gitmo. Thank you for that.
    I’d also like to thank you for attending this talk (you are a perfect example of the desired audience, namely young citizens with a deep interest in national security). The next time Colonel Lang visits Norman, please stop by to chat with him after the presentation, to insure that your questions have been answered to your satisfaction. The discussions of these topics went on for a couple hours after the Q&A session ended, and I would have greatly enjoyed your presence at those festivities.

  28. inquire says:

    Isn’t it also the case that habeas corpus was first documented in the Magna Carta, thus serving as a legal president five centuries prior to the establishment of your United States? Further, although the founding father’s and their contemporaries were visionary, they did not create US law ex nihilo; they did build upon the tradition of Roman law, Justinian legals codes, and English Common law. Thus, all of the principles you articulated are not (completely) novel with the United States in history, nor are they exclusive to the US at present (see Canada, the Commonwealth, Scandinavia etc.).
    This is not to diminish, of course, the revolutionary and (at the time) shocking nature of the US constitution; only to mention that some (or all) of these principles existed before, after, and during the tenure of the US (perhaps to the surprise of your national guard questioner).
    I would support your interpretation that anyone subject to official US treatment ought to be afforded the minimum legal rights listed.
    Please anyone correct me if I have made any erroneous claims here.
    As well, I would like to mention a book appropriate to this topic that I am currently reading edited by Allan Bloom. It concerns the philosophical basis of the Founders and the Constitution, I would recommend it to the Col. and all your readers, “Confronting the Constitution” Allan Bloom, ed. (1989)

  29. Eric Dönges says:

    No nation has ever released untried prisoners of war while the conflict/war is still going on.
    But the people we’re talking about are not prisoners of war. The U.S. government went to great lengths to argue they are not prisoners of war. They are alleged illegal combatants. With the U.S. government refusing to show any evidence for their allegations.
    As TJ was stating, there would be awful implications should any of these people would be released because of red tape (such as a failure to read rights) only to go back onto a battlefield to take up arms against American soldiers again.
    Again ? The whole point of this discussion is that it is not clear that any of the detainees have actually taken up arms against American soldiers, or where about to do so. As a side note, I find the idea that a criminal should walk regardless of any evidence just because he wasn’t read his rights somewhat bizarre myself, but that is your U.S. legal system. If you don’t like it, you should change the law, not ignore it.
    I am merely implying, as a future active duty infantry officer, that the idea of any combatant coming back into action on account of a loophole to wound or kill any of the men that are under my care is a grave mistake.
    I don’t think total lack of evidence should be called a “loophole”.
    We must remember that we cannot treat these crimes as those committed in homes in metropolitan America.
    You mean the alleged crimes. Sorry to be so pedantic, but once again, the entire point is that the U.S. government alleges these people are illegal combatants, but refuses to offer any proof that would stand up in an American court. Surely you can see why this is wrong.
    Some of these people took up arms to take down the US nation.
    You say so yourself – some of them. Punish the guilty by all means, but don’t let innocent men rot in jail for years because your government can’t be bothered with due process.
    Therefore, we must tread carefully. If we do use US courts, as opposed to military tribunals, and enact these trials quickly, we will need a large number of judges.
    Considering how many people are tried in U.S. courts every year, I somehow doubt a few hundred detainees are going to put a measurable strain on the system. And even if it did, that wouldn’t be a valid excuse. Justice is not about efficiency or expediency.
    No, the problem why these people aren’t being tried is because the U.S. government has failed to come up with any evidence against them, but won’t admit it to save face and careers. And that is an utterly despicable reason to imprison anyone.
    Nonetheless, the time I do speak I am immediately discredited for being young.
    I agree with you completely that it’s not valid to dismiss the message because of the messenger. So, let me go on record that I discredit your opinion because I believe it is fundamentally incompatible with the basic principle the laws of Western civilization are based on, namely that before the law, all people have equal rights, regardless of race, sex, creed, nationality or the nature of the crime they are accused of, without exceptions.

  30. JT Davis says:

    Was this an Indian attempt at genocide? pl

    Repelling an invasion with extreme prejudice?
    By now we can all cite the cases of post framing era suspension of civil liberties, chapter and verse. Adams, Jackson, Lincoln, Wilson, FDR, etc. Few realize that such actions predate the Constitution. In 1777, the Pennsylvania legislature – undoubtedly comprised of many of the same men who later went on to contribute to the drafting and ratification of that document – voted to suspend habeas corpus and arrest Quakers en masse. Some Quakers were later tried and hung as collaborators with the British.

  31. JT Davis says:

    Considering how many people are tried in U.S. courts every year, I somehow doubt a few hundred detainees are going to put a measurable strain on the system. And even if it did, that wouldn’t be a valid excuse. Justice is not about efficiency or expediency.
    I could get out an old CJ textbook and give you some stats from about 20 years ago but the word here is processed, resolved or ajudicated, not tried. The vast majority of cases are plea bargained out and never go to trial. Even still, overcrowding is a problem throughout the system, not just in the jails and prisons and I can’t say what effect this would have on either the civil or military courts but something tells me that overcrowding is still a problem in either system.
    Justice may not be about efficiency but the criminal justice system in this country is most readily understood as the struggle between two competing normative values, or models, that Herbert Packer proposed in his seminal work “The Limits of the Criminal Sanction” in 1968. The Due Process Model and The Crime Control Model. An excerpt:
    Two Models of the Criminal Process
    We overuse the criminal sanction in this country. That is why we have overcrowding. The end result – from a functional analysis – is that we warehouse surplus population. Other western democracies rely more on a welfare state model and usually have lower prison populations. They also tend to rely less on the criminal sanction for control of certain victimless crimes like prostitution or drug offenses.

  32. Lorell says:

    Thank you for your comments, Colonel. If I gave an offense by my post, I apologize. If you’ll allow me to make a point or two: by re-reading my post, you’ll see I was referring to the actions of the U.S. which, of course, was not established until quite some time after your example of Jamestown settlement. Furthermore, I certainly never intended to insinuate that indigenous Americans didn’t attack as well as fight back, just as Jews did in Europe during WW II. Also, to answer your question, I would not consider the indigenous Americans attacks on the colonists to be anything other than an attempt to defend (the best defense is a good offense) what had been their home for tens of thousands of years; definitely not genocide. That’s silly. Hopefully that was some sort of rhetorical question.
    By the way, what happened to your “don’t ask don’t tell” thread? It was very interesting and then suddenly disappeared.

  33. Richard Armstrong says:

    COL Lang,
    “The young need to be taught that all means all, else no one is secure.”
    In 1978 I was that young Oklahoma Army National Guardsman. One of the proudest moments in my life I was sworn in on 3JUL78 by my father, a career Guardsman. I spent the following eight years on active duty in a program called at that time “Active Guard and Reserve (AGR)”. I entered the service as liberal and remain so to this day.
    At no point in time during my enlistment did I receive any training that related to the Constitution of the United States which I had sworn to defend against all enemies, foreign and domestic. Unique among service members I was an extremely strong proponent of the Bill of Rights. On every post and armory I entered I saw the ubiquitous “This We’ll Defend” Army seal. No where did I ever see any visible representation of the United States Constitution which we were all sworn to defend.
    It is inarguable that the quality of enlistees during the ’90s were vastly superior to the dregs of society the services accepted in the late ’70s and ’80s. Education and intellect cannot be used to explain why that young Oklahoma Army National Guard service member did not understand the concept of unalienable rights for all guaranteed by the Constitution he was sworn to defend. The services now are able to recruit and retain individuals that can understand and internalize these concepts.
    If the United States Army can make a soldier out of any able bodied individual who wishes to join, then they have the capability to make that soldier into a patriot that understands and believes in the defense of the United States Constitution.
    I do not personally believe that the next President nor the next Congress has the will to correct the damages done by the current administration. The fear of public “spectacle” is much too great and it’s just to easy to sweep the damage to our Constitution, our stature among the democratic nations of the world under the rug.
    To this day, the father that swore me in and I nearly completely disagree on politics, however both of us – he a retired septuagenarian and I a middle aged former service member would fight to the death to defend the others right of political expression. The only thing that makes the United States in any way “exceptional” is our Constitution.
    “JP” above describes the possible release of Gitmo prisoners due to a “loophole”. I submit that there are no “loopholes” in the Constitution, however if there are we have the means to correct them both legislatively and judicially. If the United States Constitution demands the release of prisoners held by the United States it is NOT a “loophole”.
    Because we do not have the national will to prosecute those domestic enemies who have assaulted the Constitution that makes America “America”, our time as a great nation is over.

  34. Speculation about the effectiveness of the justice system to try these detainees is moot.
    It is a very simple question. Are certain rights universal? If so, then detainees are entitled to a trial regardless of our feelings about the system.
    The Supreme Court ruled that the Gitmo detainees are entitled to the right of habeas corpus.
    End of argument.
    It is perfectly understandable that PJ is concerned that enemies may slip through the system since he could very well be the one on the receiving end of their fire in future.
    But it is a greater danger to all of us to allow our rights to be eroded under the guise of “extraordinary circumstances” or a justice system supposedly full of loopholes and red tape.
    The solution is to fix any real flaws in the justice system, not to abolish universal rights. And I think we will do just that.

  35. Eric Dönges says:

    thanks for setting me straight about the strain on the U.S. legal system. The document you linked to was also an interesting read.
    I would argue that the U.S. constitution makes it perfectly clear that the desired model for the U.S. is the “Due Process” model. If this model cannot be implemented with the available resources, then the American people either need to provide more resources, change the constitution, or live with the fact that many criminals are able to slip through the cracks because the system is not able to handle the load. The idea that it’s OK to keep suspects in prison indefinately because the courts are overworked is utterly despicable.

  36. Sabin Willett says:

    Nicely said, Col. Lang.
    Unfortunately it is worse than you say. We lawyers who actually see the classified evidence are disappointed that the classification rules do not permit us to discuss it. But “thin” is a euphemism. In the case of my own clients, the Uighurs, the government simply abandoned its case — but not before it exhausted more than three years delaying the case — mainly on the theory posed by your interlocutor, that is, that these people are not American citizens. They are now in their seventh year of imprisonment, and until recently were held in conditions of isolation so intense as to violate the service field manuals and the Geneva conventions.
    The government, having abandoned its enemy combatant case, now justifies the ongoing imprisonment on the theory that the men lack visas.
    Keep up the good work. I am a civilian, but long years interacting with men and women in the armed forces serving at GTMO has taught me that you speak for the true military.

Comments are closed.