SCOTUS Grants Guantanamo Prisoners Habeas Corpus

beebee and other readers sent word that the US Supreme Court has, by a 5 to 4 majority, ruled that the Constitution applies at Guantanamo. Accused terrorists can now go to federal court to challenge their continued detention (the right to habeas corpus), meaning that civil judges will now have the power to check the government's designation of Gitmo detainees as enemy combatants. This should remedy one of the major issues Human Rights activists have with the detention center. However, Gitmo is unlikely to close any time soon. The NYTimes reporting on the SCOTUS decision goes into more detail on the vigor of the minority opinion. McClatchy reports the outrage the decision has caused on the right, with one senator calling for a Constitutional amendment "to blunt the effect of this decision."

Comments

About time...

[diewlasing]

Sudden outbreak of common sense?

How's that for....

[Boetsj]

... a sudden outbreak of common sense? Hard to believe that such a fundamental wrongdoing only gets overturned by a 5 to 4 decision though -- the drawback of politicized appointees I suppose.

Re:How's that for....

[kscguru]

Roberts' opinion scares me more.

The public will "lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges," [Roberts] added. The Chief Justice of the Supreme Court on record stating he thinks judges are unaccountable and should not be trusted to apply judicial oversight to political decisions? Bollocks. The SCOTUS is the highest court, it has oversight over EVERYTHING not explicitly denied by the Constitution. (And judges are held accountable by impeachment proceedings - if G. W. Bush thinks the justices are wrong, he should introduce articles of impeachment. And watch them get laughed out of Congress). The courts are guardians of the Constitution, not guardians of democracy.

Re:Ironic..

[bigstrat2003]

There's nothing wrong with that. They voluntarily signed those rights away when they became soldiers.

Sudden?

[AmazingRuss]

How long have those guys been rotting down there? 6 years?

Re:Sudden?

[pjt33]

"Sudden" means that the change took place quickly, not that it wasn't delayed.

Re:Sudden?

[mandie]

The plural of "anecdote" is not "data," but from what I've heard talking to elderly Germans who fought as Wehrmacht in WWII and got picked up by us (or their grandchildren), they were indeed pretty well-treated. They do not seem to be bitter about their time as POWs. Most importantly, once returned to Germany, they had no desire to take up arms against the occupying US forces, much less attack the US elsewhere - they just wanted to get on with their lives.

Re:Sudden?

[orielbean]

The other very important piece to securing a post-war peace was the Marshall Plan, designed to rebuild the shattered countries. The reason that the Weimar government in Germany was so screwed up and produced quadrulple-digit inflation was due to the fact that the winner countries in WWI forced Germany to make a lot of expensive reparations, and never helped them rebuild their industry or economy. That bad government in turn allowed Hitler his rise to power with the disaffected citizens and workers - and subsequent horror of the second war. It took a lot of effort and money to make the Marshall Plan work, but look at the Axis countries 70 years later - they are some of our strongest allies now!

Re:Sudden?

[Lemmy Caution]

Perhaps you think that even a majority of the detainees in Guantanamo were picked up on the field of battle. Most were not, but were taken into US custody as a result of a bounty program for informers. The problems with such an approach should be obvious.

Re:Sudden?

[TheGavster]

Just because someone is a sadistic dil-weed doesn't mean that sadistic dil-weedhood is conditionally ok. Seems kinda hypocritical to give up our nation's ideals of justice in defense of those same ideals.

Re:Sudden?

[pluther]

True, but there is a big difference from catching a German Speaking Nazi and holding him until the war is over, and catching someone who might or might not be a terrorist and you having to figure out if they are friend or foe.

True. In the case of the Nazi, you know he's an enemy.

With many of those in Guantanamo, we didn't have that assurance before we put them there.

(Though, to be fair, we can probably pretty much count on it now.)

Re:Sudden?

[DrLang21]

So the solution is, if we know they are our enemy, we treat them well (Germans in WWII), but if we arn't sure, we treat them like crap until we are?

Re:Sudden?

[Martin Blank]

I have read that Allied prisoners in Europe (except for Soviet POWs) were generally treated well, though perhaps not so well as Axis prisoners were treated. There was a strong reason for this reciprocity: many of one's own were held by the other side, and the situation meant that abuse of prisoners risked a great deal for one's own under guard by the enemy.

There was also a much smaller culture clash in Europe. It was, essentially, Europe or Europe-spawned nations fighting each other. Languages and national quirks aside, the most values of the nations involved were (and are) pretty similar.

I haven't had a chance to read the decision yet, so I don't want to bank on nuances that may be present and which some reporters have mentioned. However, if this does indeed close the loophole that has been present for the last several years, it will make me feel a lot better about how evenly the Constitution is applied to US facilities not on US soil. It's my feeling -- and I hope the majority feels the same way -- that effective US soil such as permanent bases and US-government-owned ships at sea should be places where the Constitution applies in full.

Re:Sudden?

[Anonymous Coward]

German POWs in WWII were treated very well by us as we followed the Geneva Convention almost to an extreme. They lived in large camps and weren't locked up in prison cells so long as they behaved. On the other hand, if you were a US citizen whose ancestors happened to come from Japan, then without being accused of a crime you could lose your house, your land, your possessions, and be sent to live in a relocation camp.

Re:Sudden?

[Anonymous Coward]

I really don't think you should be calling Bush a "sadistic dill-weed."

That isn't fair to the noble dill plant.

Re:Sudden?

[fm6]

Sometimes the right thing to do is also the smart thing to do. Treatment of German POWs confined in the U.S. was designed to subvert the whole Nazi mindset. This included not just following the Geneva Convention to the letter (which meant that these POWs were probably among the best fed soldiers in the war, since they were required to get the same rations as American soldiers stationed at home, and the U.S. was one of the few places where there were no shortages of non-luxury foods), but also offered classes in civics and history.

If we had followed the same policy at Gitmo, the detainees would probably be demanding to enlisted in the U.S. forces by now. But no, the only way Bushcheney knows how to deal with opposition is "get tough."

Re:Sudden?

[Anonymous Coward]

WHAT?!!!
Germany POWs were treated worst then how al Qaida treats people it captures minus the beheading.
Double digit percent rate of death, mass starvation, forcing former solider to walk around naked, forced to stay in positions for long periods of time and more. You did not want to be a POW of the US, the only thing worse was being a POW of Russia.

Re:Sudden?

[why-is-it]

Those subjected to waterboarding were al Qaeda suspects Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri, Hayden said.

Even if that were true (and I believe Cheney has confirmed otherwise) are you suggesting that torture is acceptable, provided that only a few people get tortured?

Re:Sudden?

[drodal]

The Marshall plan is kind of like what we SHOULD have done to Afghanistan after the soviets fled, but didn't. Also the Berlin airlift added to the effect that Marshall plan started. Making out enemies our friends. Hmmm Making our enemies our friends, who said that........

Re:Sudden?

[ClientNine]

If we had followed the same policy at Gitmo, the detainees would probably be demanding to enlisted in the U.S. forces by now. But no, the only way Bushcheney knows how to deal with opposition is "get tough." This got modded insightful? Funny, I could see. Troll, maybe. But insightful?

The quote above is the kind of outrageous statement that should probably be simply ignored, but hey, this is slashdot. So:

Given your assertion that treating terrorists nicely causes them to like us, explain why the 9:11 highjackers still insisted on murdering thousands of innocent civilians despite having lived in this country, with all the benefits of a free resident, for a long period of time (years in most cases).

Thanks!

Re:Sudden?

[DrgnDancer]

Yes, well, to do something like the Marshall plan in Iraq presupposes... a plan. Speaking as someone who spent a year in Iraq with the US military, our plan was essentially "build some stuff and be nice to people, unless they annoy us in some way, then be rude." "Rude" had definitions that varied from simple rudeness in conversation, to firing warning shots without sufficient provocation to, in some of the most extreme cases, stuff like Abu Ghraib. In defense of the soldiers, "annoy us" could vary from roadside bombs, to being cut off in traffic (more serious than it sounds since in a minority of cases those sorts of cut offs were followed by planned ambushes and the afore mentioned roadside bombs).

The number of differences between Iraq and Postwar Germany are staggering:

1) The Bush Administration had no coherent post was plan. The Marshall Pan was very well thought out was being implemented even before the end of hostilities. We finished the war already prepared for, and in some cases already implementing, the rebuilding plan. What we're doing in Iraq may be to little and is certainly too late.

2) The Germans had a long tradition of self government, and the allies forgave former Nazi's who could reasonably show that they had not been involved in war crimes. This meant that the new German government could rely on the experience of life long government administrators. Most had worked for the Weimars before the Nazis, some had even worked for the Kaiser before that. It was simple enough to build a new government that more or less mirrored the old structure, just without the evil dictator at the top. By contrast the Iraqis have no real tradition of self government, having been under a series of colonial governors, hereditary kings and various strongmen for the last hundred or so years at least. We also "de-bathified" what experienced government officials existed, without giving them any chance to show whether or not they deserved it.

3) Germany did not have two (three if you count the Kurds) major ethnic groups that never really liked each other and only tolerated each other because they could agree on a mutual dislike of Saddam. Tragically this was at least partly because all of the other ethnic groups in Germany had been decimated by concentration camps, but it all the same it did make make post war integration easier.

4) Germany, the US and most of the other Axis and Allied powers could see, almost immediately after the War, that it was in all of their best interests to rebuild everything they could and stick together, because there was a serious mutual threat sitting off to the east. However much Germans mistrusted Brits and Americans or vice versa, they were all mutually terrified of what the USSR was doing. There is no such powerful motivator acting in Iraq.

The list goes on of course. Comparing the current situation to post War Europe is completely ridiculous. We are NEVER going to turn Iraq into the "Germany" of the Middles East. 6 years on, the best we can say is that the government is less oppressive that the old one, mostly because it's too damned incompetent to impose its will. The worst we can say is that in all ways other than a less oppressive government, the life of Ali the average Iraqi is worse than it was when we started. Who hoo.

I used to think that it was our moral obligation to leave Iraq at least as nice as we found it (though I thought we never should have invaded in the first place), but given that after all of these years it's obvious that:

a) we're incompetent boobs who screwed up the first 4 years of rebuilding and
b) The Iraqis themselves no longer seem to want our help

I think it's time to move on.

Re:Sudden?

[lymond01]

True, but there is a big difference from catching a German Speaking Nazi and holding him until the war is over, and catching someone who might or might not be a terrorist and you having to figure out if they are friend or foe.

Not to mention that you don't know when the "war" is going to be over. We're not fighting against anyone -- we're fighting against an ideal. I'd say it's a bit like swordfighting the ocean, but I think a better analogy might be shooting at dynamite.

Re:Sudden?

[ArcherB]

You can try this.
 

NON BIASED Source?

Who would you consider non-biased? The sources for this paper are available. The person who wrote it could be considered biased, but the numbers are taken straight from the detainee files. The people are, by and large, not people who were picked up by US troops on the battlefield.

If you're interested in a broader examination, I recommend the This American Life program on the topic. Transcript and audio can be found here. It has become clear to me that although the people running these things have good intentions, the result is that we're casting a wide net and sweeping up a lot of people without appropriate protections. Kangaroo courts don't count, and I think that the Supreme Court was right to come in and attempt to bring sanity to the process. Well, the first source looked OK, until I read this on the bottom the page.

The authors are counsel for two detainees in Guantanamo. A Lawyer? You're kidding right?

As for source two, This American Life (with Ira Glass, right?) NPR?!!??! Sorry, I need an unbiased source.

Listen, I don't know where these guys came from. I just keep hearing people say that a rival clan turned them in for bounty. It's as if they were just working in their fields, trying to grow flowers for Grandma in the desert sand when suddenly, their evil neighbor shows up with American forces pointing at the guy saying, "That's him!". However, from your first source,

Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. I don't think that the Norther Alliance gets a bounty for prisoners they turn over. They turn over prisoners who they think we may get information from, or WE think they have information we need.

Either way, it's not like we WANT to keep people at Gitmo or anywhere else. I was a soldier, and trust me, soldiers are lazy! If I learned on thing from basic training, it was that a good night's sleep is good, naps are better. Oh, and that volunteering for the service is the last time you volunteer to do anything. No one wants these guys there, but someone deemed it necessary. I'm not going to assume that Bush likes torturing people, just like I'm not going to assume that Obama hates white people or that Clinton trolls the malls for teenage girls. Gitmo is run by American men and women, just like you and me.

Re:Sudden?

[bishiraver]

Which, of course, means that everyone we aren't sure about ends up being one. Win-win. /tongue-in-cheek

Re:Sudden?

[Foobar of Borg]

German POWs in WWII were treated very well by us as we followed the Geneva Convention almost to an extreme. They lived in large camps and weren't locked up in prison cells so long as they behaved.

On top of all that, they got trials and relatively quickly. The Nurenberg trials were held less than a year after VE day, which is roughly when the head Nazis were captured (well, except the ones who managed to escape). Hell, even Hitler would have gotten a friggin' trial if he hadn't blown his brains out. And now Bush (along with Scalia and Alito) thinks we can't even grant Habeas Corpus to people who have been locked up for over six years???

Re:Sudden?

[Das Modell]

If we had followed the same policy at Gitmo, the detainees would probably be demanding to enlisted in the U.S. forces by now. But no, the only way Bushcheney knows how to deal with opposition is "get tough."

Just because being nice worked with Germany and Japan doesn't mean it will work with Muslims, and so far it hasn't (the Western world is bending over backwards to accomodate them, but they just see that as weakness and submission). They represent a completely alien culture and way of thinking. They're religious fanatics who can't be reasoned with. In a perfect world we would simply be over here and they would be over there, and we'd have as little as possible to do with each other.

Re:Sudden?

[Lemmy Caution]

In the utterly ridiculous, almost impossible to actually happen case when:

1. you knew that an attack was coming, and

2. you knew that someone with information about it was in your custody, and

3. you knew from experience they would not give you reliable information without torture, and

4. you knew that torture would give you reliable information that would immediately save lives, then

the best I would say is you should torture, and then be willing to be prosecuted to the fullest extent of the law - that if those lives are worth the cost of torture, they are also worth the cost of your career and freedom. If anyone is willing to torture knowing that the consequences are their own punishment, but is morally compelled to do so to save innocent lives as you suggest, then I would let it happen. I want it to be that serious - that even if it works, it has consequences for the torturer.

Your example has absolutely nothing to do with the reality of the situation, however, and more closely maps an episode of 24 Hours.

Re:Sudden?

[Anonymous Coward]

Gee, that's a shocker, they get tortured for years on end and now they hate us.

Next think you're going to tell me is that Jewish people hate Nazis because so many of their relatives were tortured, worked to death or gassed. Will surprises never cease.

This is really the Presidents fault, had he chosen to just follow the SCOTUS' ruling in the first place and just handle it the way that treason trials are usually handled, the guilty would be in prison or hanged, and the innocent would be back at home by now. Instead he chose to torture the detainees while stonewalling any efforts to clear things up.

Really, if the detainees manage to get back here and stage a successful attack, the Republican party would be the ones to blame. If they want to expend all of our resources chasing shadows and acumulating quantities of "evidence" which greatly outstrip the intelligence community's ability to analyze, they can be responsible for the lack of security.

Re:Sudden?

[fm6]

In other words, you don't know.

Re:Sudden?

[fm6]

If I didn't know, why would I say that we accomodate them? The same reason everybody else here makes statements they can't back up: you don't like admitting you're wrong about something.

Well, nobody does. But it's something we all have to do once in a while.

I can't just wave a magic wand and make you absorb years of accumulated information in a few minutes, Oh, please. We're not talking obscure facts here. You're claiming the west "bends over backwards" to accommodate the muslim world. That's a major pattern of behavior. If that's a conclusion you arrived at on your own (as opposed to something your favorite pundit said), then you must have observed many examples, and it's strange you can't recite one off the top of your head.

even if I did go through the trouble of gathering links you'd just dismiss it all as xenophobic right-wing propaganda. That's a cop out. You don't know what I'd do. Prove me wrong or admit you're wrong. If you can't do either, your opinions are worthless.

stupid, confusing war on terror...

[bsDaemon]

Ok -- so we capture people on the battle field in Afghanistan and take them prisoner. Bush &co. don't want to classify them as "prisoners of war," because then they'd get Geneva Convention protection.

So, reaching back to FDR, they pull this "enemy combatant" thing out of their ass and say that now they can do whatever they want. Now, the Supreme Court is saying that "enemy combatants" are somehow criminals who are entitled to the protections of the civilian legal system.

If they were just reclassified as POWs, then they could be held until the war is over -- which, like the war on drugs, it never will be. So, they could be held forever, without any need for a trial - because you can't be tried for "murder" or "conspiring to murder Americans" if you are a soldier in time of war.

But yet, Bush &co still aren't going to want to reclassify them as POWs.

Jeebus. I seriously can't wait to get a new administration that will just settle on what the status of these prisoners is so that we don't have to hear about this crap anymore. Want to keep them forever? Call them POWs. Want to try them to make some sort of b.s. point like Nuremberg? Then they get the protection of a court system.

I'm really not seeing how they can have it both ways, but then again I'm not a lawyer -- just a human (usually an exclusive option).

Re:stupid, confusing war on terror...

[Rycross]

I'd be fine with calling them POWs if we actually declared a war. Congress authorized the use of our military in Afghanistan and Iraq but we are not technically at war with anyone, and thus there's no way of knowing when the "war" ends. I vehemently oppose the idea that we should imprison people as war prisoners when there is no way of knowing when that war is over (and thus forcing us to imprison them indefinitely).

Re:stupid, confusing war on terror...

[bsDaemon]

How many IRA folk were wearing uniforms? How many Americans were wearing uniforms in the early skirmishes against the British?

All that is required is some sort of command structure and something they use to identify themselves (Hamas has the green bandana things) and then they're a "militia"

Re:stupid, confusing war on terror...

[Dr Caleb]

Yes. The Geneva Convention allows for a loose militia to be formed upon invasion from an outside force.

They can skirt the 'uniform and rank insignia' rule that way - but it would only apply to Afghans that lived there prior to NATO invasion. They would then have POW status under the GC's, and would NOT be subject to torture. 3 Squares and a cot would be what they get for the duration of the 'war'.

Re:stupid, confusing war on terror...

[Rycross]

I was speaking out of principle. In practice, yes we need to treat them as POWs after we prove that they are, indeed, POWs. Some of the guys in there are there because they were caught firing on US soldiers, which is a legitimate reason to hold someone. Some of them are there because of dubious reasons. Its hard to tell why because they don't have the right to challenge their detainment, and they haven't had a trial.

Re:stupid, confusing war on terror...

[MindStalker]

Well we didn't "declare war" in Vietnam either. But Vietnam certainly did declare war against us. The Prisoners we took during Vietnam though certainly were given POW geneva treatment. The prisoners Vietnam took certainly were POWs but may not have been treated following the Geneva convention, but that's a mute point.

Re:stupid, confusing war on terror...

[UnknowingFool]

While I don't doubt that some of the people in Guantanamo Bay are terrorists, I think that mistakes can occur. There might be people there that were wrongly imprisoned. The more the Bush fights against basic right to due process, the more I'm convinced that they are trying to hide their incompetence. When the administration says to me that if I have nothing to hide, I shouldn't object to being searched and monitored, I say that the reverse applies to them. If they haven't made any mistakes, why are they so against these people having a day in court?

Re:stupid, confusing war on terror...

[pjt33]

You don't go to a foreign country and expect their rights, do you? Speaking as someone who lives in a country where I'm not a citizen, I don't expect the right to vote, but I do expect the right not to "be subjected to arbitrary arrest [or] detention" and to "a fair and public hearing by an independent and impartial tribunal, in the determination of [my] rights and obligations and of any criminal charge against [me]". Quotes from the Universal Declaration of Human Rights.

Re:stupid, confusing war on terror...

[Hyppy]

The US constitution's protections regarding due process apply to all individuals charged or detained by the US government on US soil. If they were being held off US soil, the local laws would apply, like the situation where Hussein was tried in Iraqi court.

What has happened here is that the current administration decided to declare US-leased, US-occupied territory as a "law-free" zone where anything goes.

Loopholes are generally frowned upon by the Supreme Court.

Re:stupid, confusing war on terror...

[Fallingcow]

You don't go to a foreign country and expect their rights, do you?

Actually, yes.

Were I to be arrested while on vacation in, say, Germany, I would fully expect to be tried under normal German law, with rights identical (or at least very nearly identical) to those of a citizen.

Were I to annoy the German government in some way that is legal but considered undesirable behaviour in a foreigner (say, by participating in a G8 protest or something like that) the worst I would expect is to be kicked out of the country and told not to come back. That's the only sort of case where I would expect my treatment at the hands of the government to differ significantly from that of a citizen.

Whoa what happened

[Dan667]

The system worked?

The names of the dissenting Supreme Court Justices and those nimrods that are outraged should be posted everywhere so that more pressure can be brought to bear on these idiots that it is not ok to lock people up with no legal recourse no matter what country it is.

That's really nice

[Rosco P. Coltrane]

Now all the US needs to do is apply the Geneva conventions to the Gitmo prisoners, give them a speedy trials (not that it would make a difference after that many years without indictment in the pokey) and generally treat them more like human beings than animals, then it would start to look more like a country driven by the rule of law.

Re:That's really nice

[Paranatural]

People often misquote Winston Churchill as having said that we can judge the level of civilisation in a society by the way it treats its prisoners. In fact, it was Fyodor Dostoyevsky who said: "The degree of civilisation in a society is revealed by entering its prisons." Winston Churchill actually said that a society's attitude to its prisoners, its "criminals", is the measure of "the stored up strength of a nation". Seems to me that there are elements in this country who want to make sure that the terrible allegations the terrorists make against us become, and stay, true. And there are people who remember one of the reasons this country was founded, to be able to have fair trials.

We cannot allow ourselves to become the things and people we hate. We cannot become a nation that approves of torture, approves of lawless legal system, a nation that will treat others, no matter how heinous, as they would treat us.

We cannot hope to be a beacon of light in a dark sea by covering ourselves in the same darkness. Either you do the moral thing, or the immoral thing. There is a battle in this country, between those who would have us give up our morality for naught, and those who stand against them.

Re:That's really nice

[muffel]

We cannot allow ourselves to become the things and people we hate. We cannot become a nation that approves of torture, approves of lawless legal system, a nation that will treat others, no matter how heinous, as they would treat us.

You're a little late with that speech. You have already become all that years ago. That's the simple and sad truth. The damage is done.

One can only pity the cowards...

[Arrogant-Bastard]

...who are calling for a Constitutional amendment to bypass this decision. It's clear that their grasp of the fundamental human rights which pre-date and transcend even the Constitution's sweeping reach is limited, and that in their mindless fear, they've lost sight of why those rights are critically important. They have failed to live up to their sworn oaths to uphold and defend the Constitution of the United States -- and yet they have the audacity to wrap themselves in the flag and call themselves "patriots".

They're the farthest thing from it. Real patriots understand why we must defend these rights, even at the cost of our lives -- because without them, we aren't the United States of America; we're just another transient tinpot dictatorship of no value and no lasting importance.

5-4 Majority

[opusbuddy]

What bothers me is that 4 Justices of the Supreme Court of the United States voted to suspend Habeas Corpus.

Re:5-4 Majority

[Anonymous Coward]

What should bother you even more is that 3 of the ones who supported the constitution are set to retire within the next couple of years. If John McCain wins the next election, many of the rights you and I take for granted will no longer exist within a decade.

Re:5-4 Majority

[dkleinsc]

And that one of the dissenters (the Chief Justice) had the gall to call upholding a fundamental constitutional right "judicial activism" and "overreaching" bothers me quite a bit as well. It's one thing to call Roe v Wade judicial activism (because that was arguably a stretch), but this is such an open-and-shut case that the dissenters are now arguing for ignoring the plain language of the Constitution.

Re:5-4 Majority

[Abcd1234]

Worse, Scalia's dissension specifically mentions the potential "danger" to Americans this could create... as if it's the job of the SCOTUS to worry about or consider such matters when deciding on points of law. If that doesn't imply real, actual judicial activism (using the court to push forward policies that have no bearing on legal theory), I don't know what does.

Re: Extend welfare and voting rights too!

[MrHanky]

The constitution isn't "granted" to non-citizens, it limits what the government can do to people. Which is a good thing, since then the government can't push the constitution aside by inventing new ways to revoke citizenships.

read the constitution

[Paolone]

Sorry, you don't need to be a citizen to get constitutional rights. you just need to "be there". The constitution then grants more rights to the citenship, like to elect representative and so on.

Re:Ironic..

[Actually, I do RTFA]

FTFA:

"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said. "Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact."

Of course, in WWII, Congress had declared war. The rules may be different in times of war, but, fortunately, our legal system does not recognize laws against concepts/behaviors/tactics.

Strange how the U.S. Soldiers have fewer rights then the terrorists we are fighting.

Is that a "totalitarianism in the US" post; if so, this ruling is great for returning to a rule of law. Is that a "why are soldiers forced to go far away and die" post; if so, because that's what soldiers agree can happen, and the political will of the country, rightly or wrongly, sent them to fight. Is that a "terrorists deserve no rights, scumbags" post; if so, I would point out that these are accused terrorists. There have been failures in identifying them. Just like an innocent man going to jail is bad both for that man, and also because a criminal remains on the streets, locking up phoney terrorists gives us a misleading view of the world. Plus, who knows what the standard of proof is.

Re:Ironic..

[dave420]

We don't know the people in Gitmo are terrorists, as no charges against them have been presented, and no evidence has been put before a judge. Go back to watching Fox.

Pressure?

[Nerdposeur]

I agree with the majority decision, but I don't agree about "more pressure brought to bear" on the dissenting justices. The reason that Supreme Court Justices are appointed for life is precisely so that (in theory) nobody can pressure them to vote one way or another.

Time lag

[mcelrath]

So it takes approximately 7 years between blatently unconstitutional actions by one branch to be reviewed and overturned by another branch.

Fortunately for Congress and the President, they can pass new laws and executive orders on time scales shorter than 7 years.

In between lies the downfall of democracy.

Re: Extend welfare and voting rights too!

[timster]

It's too bad, I guess, that the actual constitution isn't written in such a way as to "grant" rights; rather, it's written as a restriction on what the US Government can do. As the Government's charter, the Constitution applies to all actions of the federal government, regardless of where they are performed or who is involved.

Of course, the parts of the Constitution that talk about voting rights extend such rights only to citizens. That is a different part of the document.

Finally...

[mandie]

The SCOTUS just said, "Fine, you don't want to call them POWs, so now you have to go with the rules we use for people accused of crimes. Your choice, but you must choose one."

For everyone who makes fun of trying suspected terrorists in "ordinary" criminal courts, if it's sufficient for bringing murderers with less grandiose motives to justice, it'll do for ones who think they're doing it for some great cause. Heck, it's possibly more insulting to treat them like common criminals, if that's what makes you happy.

It's a great day to be an American.

Re:Finally...

[chthon]

That is something which is the fault of the media : they should not acknowledge terrorism by calling the perpetrators terrorists, but should call them criminals.

Law enforcement

[ndansmith]

I think one of the biggest issues here is that the US military wanted to act like a law enforcement agency. In the case of POWs, you do not execute them or imprison them indefinitely, because they are not guilty of anything. However, these cases cannot be tried in the civilian system, since due process has been violated in every conceivable way with these detainees, so the charges would likely be tossed immediately. Since neither was acceptable, the US Military opted for a third way, and that is unacceptable according to SCOTUS.

Hardly an outbreak of common sense...

[cutecub]

A 5-4 decision means that the somewhat-sane members of the court outnumbered the completely-crazy members of the court by One Single Vote. We've got ourselves a Supreme Court that's divided on the meaning of some of the most fundamental aspects American law. This doesn't bode well for the next 30 years.

-Sean

Re:Hardly an outbreak of common sense...

[terrymr]

Quite ... I was absolutely stunned by the statement of Scalia that "The saddest part" was that the government would have to prove the need to hold each and every person. Has this guy even read the constitution he's sworn to uphold ??

Re:Hardly an outbreak of common sense...

[fredrated]

Close cases, fine, but not on something so fundamental that it was decided by the Magna Carta.

Re:Hardly an outbreak of common sense...

[TheGavster]

While the Magna Carta is not a defining document of US law, it has been in effect elsewhere in the world for quite a long time. I would certify that we've tried this habeas corpus thing for long enough that if there was some danger in telling people what their crime was, it would have come up sometime in the last 800 years.

Re:Hardly an outbreak of common sense...

[uniquename72]

How many US soldiers being killed is okay by you? All of them, as long as they've signed up willingly.
None of them, if they've been drafted.

Re:Hardly an outbreak of common sense...

[Foamy]

The minute we give up what makes the United States the United States--hint: the Constitution and the rule of law have a lot to do with this--then "they" have won.

I find it hard that even really smart people like Scalia don't understand this basic point: they can't defeat us. Period. Only we can defeat ourselves by stripping away the principles that make us who we are.

So in answer to your question, "how many". I say it doesn't matter since even a nuke in Manhattan can't destroy the Constitution. Only "We The People" through our cowardly elected leaders and the cowards like Scalia, Thomas, Roberts and Alito that inhabit the SCOTUS can do that... and we're well on our way.

Re:Hardly an outbreak of common sense...

[Mongoose Disciple]

Not to be inflammatory, but...

How shocking that people locked up without a trial and tortured for years would harbor anger towards our government. It's clearly all their fault.

To be completely clear, I think anyone held in Gitmo for 6 years would hate America regardless of how they felt going in.

Re:Hardly an outbreak of common sense...

[UncleTogie]

Any when they return to kill American soldiers, how many can die before it becomes not okay to grant constitutional rights to non-citizens.

Funny, the rest of us consider habeas corpus to be a basic human right.... and by your logic, those contractors that got killed and dragged through that Iraqi city got just what they deserved. After all, they weren't Iraqi citizens, so the law need not apply, right?

Re:Hardly an outbreak of common sense...

[terrymr]

No, but you are the type that believes that everyone who doesn't agree with you is an idiot, aren't you?

No - It's just a crap piece of reasoning. You can't ignore the law because it's inconvenient.

Re: Extend welfare and voting rights too!

[jfsimard79]

Very well said. You MUST have a right to defend yourself. Else who is to say what you are charged with is made up.

Chief Justice Roberts : Doesn't get it

[eepok]

The public will "lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges," he added.

Now, correct me if I'm wrong, aren't Judges supposed to be insulated and protected from the political system by (1) not being held accountable for untainted, but bad, decisions (2) not be part of the election process since that would mean that they would then rule in whatever way would best protect their jobs?

How in the WORLD would a chief justice of the supreme court not understand that?

Re:Chief Justice Roberts : Doesn't get it

[cptnapalm]

Better question is how could you not comprehend Roberts' sentence.

The sentence you do not understand is lamenting that the foreign policy of the United States will be less democratic than it was before. The implication of the sentence is that elected people should hold sway over what the country's foreign policy is, not unelected judges.

Re: Extend welfare and voting rights too!

[Qzukk]

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

makes absolutely no mention of people OR citizenship, it just states that it cannot be suspended, except during rebellion or invasion.

Re: Extend welfare and voting rights too!

[bigstrat2003]

Actually, it's more than that. It isn't a restriction on an otherwise-unlimited government, it's a grant of powers to an otherwise-powerless government.

Hudson Institute outright lying on Constitution

[rbrander]

I'm still shaking my head in disgust over a "warring talking heads" commentary on Canada's CTV network last night on this one. On the left, a Canadian professor who'd taught at Harvard. For the right, some guy I regret not catching the name of, from the conservative Hudson Institute. If it weren't the umpteenth time I'd seen it, I'd call it a classic example of the kind of brazen lying I've come to expect of these "think tanks".

I'll skip details on the other ways the guy embarrassed himself to any thinking audience - he tried maligning the Canadian's credentials at American law until the guy mentioned teaching at Harvard, for instance.

But towards the end, he actually said that the American constitution provides an exception to "for the Executive to suspend Habeas Corpus in time of WAR or insurrection" (emphasis mine). It doesn't. And there's no way a professional at that level made that big a mistake.

The framers chose all their words carefully, and it says:

http://www.usconstitution.net/const.html

Section 9 - Limits on Congress

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

INVASION, not War. What do Invasion and Rebellion have in common? Only then do you have entire armies on American soil harming its public. Only when you'd have to give whole armies habeas corpus can you suspend it. If you have few enough enemies to manage with a court system, they all get the court system.

I guess I'm steamed because it was just the night before I learned the stat that not only did 70% of Americans at one point believe Saddam personally set up 9/11, but 80% of those supporting the Iraw war did so because of that belief. Which means that terrible damage can be done to America, not to mention hundreds of thousands of innocents, by lies such as the one I heard, espoused on TV, last night.

I leave it to the Americans on /. to decide what you'd call a guy who'd lie about the content of your constitution to encourage and support the breaking of it.

Oh, yeah, and one other part of the lie, one in support of their endless reaching for Executive power: the exception to habeas corpus is for the CONGRESS, not the Executive. The Executive can't suspend it at ALL, not unless Congress passes a law allowing it. The Executive simply can't break the law, period. Not under the Constitution.

If you can keep it.

Re: Extend welfare and voting rights too!

[MightyMartian]

It's been established for a helluva long time that the Constitution does apply to foreigners on American soil. The police are still bound by due process, even if the suspect is an Englishman or from North Korea. The Gitmo trick (and the unknown number of secret prisons) was to claim that the foreign detainees were not on American soil, so any Constitutional obligation was removed. SCOTUS has dispensed with that pathetic notion and finally stated that where there's smoke there's fire; in other words, if a detention center on foreign soil is still run by the United States, the detainees should have the same right to habeus corpus as if they were within US borders. This is a victory for liberty.

Re:Isn't this the same SCOTUS that Bush packed?

[Free_Meson]

but I'm really surprised given how the Dems have been crying foul for the last 8 years on packing the Supreme Court.

It was a 5-4 decision. That four Justices thought that the executive branch could act outside of its constitutional authority whenever it felt like it should be pretty alarming.

Re:Isn't this the same SCOTUS that Bush packed?

[jamie]

Well, there are 7 justices nominated by Republicans, and the other 2 were suggested by a Republican. The Court is already fully packed.

The 5-4 decision split along ideological lines, with the five justices most widely considered "more liberal" voting that a CSRT doesn't qualify as habeas. The four considered "more conservative" -- including GWB's two -- voted that secret kangaroo courts are plenty good for any o' them furriners that our president wants to hold without charges.

Re:Agreed

[terrymr]

s/mouth/ass

Re:Change the Constitution

[Cro Magnon]

IIRC, changing the Constitution requires 2/3 of the House, 2/3 of the Senate, and 3/4 of the state Legislatures. Bush isn't going to change squat.

Re: Extend welfare and voting rights too!

[Rycross]

How do we know that they're the government's enemies? You're assuming that because they're there they deserve to be there. Me, I'd kinda like there to be, you know, evidence... that whole pesky due-process thing. I'd rather not be wasting government money and what little good-will we have left in the world holding people when we can't even reasonably say that they are a threat.

Here's a little thought experiment. The British (or Germans, or Japanese, ...) sieze an American. They say that for, national security reasons, they can't reveal why they are imprisoning him, or provide any evidence that this person deserved to be imprisoned. We only have their word. Is that ok? Thats what we're doing right now, and it needs to stop.

Even scarier...

[ehrichweiss]

What scares me more is that the ruling was 5-4 instead of unanimous.

Re:Even scarier...

[Mongoose Disciple]

That it passed is scary. Constitutional rights are for American citizens and don't apply to the rest of the world.

One of the major problems with that approach, even if valid, is that the government can just claim anyone they're holding isn't an American citizen.

How do you get your chance to prove you are or tell your side of the story? Right.

When the government can get away with throwing anyone in a cell and essentially throwing away the key, it should scare the fuck out of all of us a lot more than terrorism ever could.

Re:Even scarier...

[ehrichweiss]

No, I hate that they're terrorists and that many/most of them probably are guilty BUT they're also human, and if they happened to be completely innocent of any crime then I don't want any of their blood or suffering on my conscience. I don't know if you've noticed but even U.S. citizens get jailed for crimes they didn't commit.

Re:Even scarier...

[mattsucks]

I tire of people parroting this "rights are only for US citizens" line. Where in the Constitution does it say that it only applies to American citizens? From everything I've read .. including the Constitution .. there are very very few places. The President must be native-born, hence a citizen. That's about it. ESPECIALLY the limits on governmental power enumerated in the Bill of Rights .. no mention of "citizen vs non-citizen" or any such.

Oh, why do I hate America so?

Re:Even scarier...

[cervo]

That is an inhumane attitude. All humans deserve a certain amount of dignity. Probably a lot of the people being held were just in the wrong place at the wrong time. Totally innocent people who are losing 6+ years of their lives for nothing.

If I wasn't a terrorist or enemy of a country before, after pissing away 6 years of my life for doing nothing I sure as heck would hold a grudge. If the opportunity ever arose to do something that might hurt that country, i sure would. For some people it may be choosing to take your business to different countries. For others it may mean forming a terrorist group and commiting acts of terrorism. It is unfortunate but bad blood makes more bad blood. Not to mention the families of these people who have been jailed. Even the totally innocent ones will be pissed off and very anti US.

Re:Even scarier...

[cervo]

Everyone in that minority opinion really does not deserve to be living in America. They should go over to Cuba/North Korea and live there.

But worse than being un-american they are inhuman. Maybe they need to spend a few years in a POW camp to get some perspective.

Re:Even scarier...

[kalirion]

So, um, how do you find out they're terrorists without, oh, I don't know, a free trial? Wait, I forgot, our military intelligence never makes mistakes. Anyway we can use them to replace the court system within our borders to avoid innocent people from being convicted?

Re:Even scarier...

[Kjella]

Except that they do use "citizens" when they mean "citizens", why then use "people" if it also means "citizens".

Re:Even scarier...

[k1e0x]

What scares me is that you're willing to allow terroists (you may not be aware that they are our ENEMIES - they want you and me DEAD) US Constitutional rights. They are not US citizens - they are self-declared (and US-declared) enemies of our Nation.
Face it, you're only happy about this decision because you hate G.W. Bush because the liberals in the media told you to. You have not an independent or original thought in your very-closed mind.
Get a clue, traitor. You are a fool.

You do not have rights because your an American citizen.. you have rights because your human. Your rights do not come from government, they do not come from the decrees of kings and emperors, they do not come from the majority vote of the governed, they do not come from pieces of paper! Your rights come from God or from Nature, they come from the entity that created you and gave you your mind and your body.

The Bill of Rights is NOT what grants you rights. It is a list of the rights that government can never infringe upon. It creates no limits on you, it only limits the government. Read the Federalist Papers article #84, it is an argument AGAINST the Bill of Rights, the founders were afraid that the Bill of Rights if made law would become a list of the ONLY rights the people had. (they were RIGHT, IT HAS become that list, but now even the Bill of Rights is being ignored too!)

All men have rights. Say it! All men have rights Canadians can not be jailed forever in America for speeding, they have a right to defend themselves and they have a right to trial. All men do.

What's so god dammed wrong with making the government prove these people in prison in Guantanamo deserve to be there. You are aware that some of these people were NOT "arrested on the battlefield" .. nor were they "captured by U.S. Forces" .. some were turned over by 3rd party groups like the Northern Alliance and other Iraqi's for a BOUNTY. (yeah, no shit for money..)

Where are you from Soviet Russia? You are a traitor, Your the one going against the Constitution, your the one going against American values like LIBERTY and JUSTICE, because here in my nation, the United States, my government has to prove someone guilty before they throw them in a hole forever.. we don't just "say" they are guilty like in Iran.

WTF is with the Republicans anymore? You are not Patriots.. you are Nationalists.. wake the fuck up moron.

Re:Even scarier...

[nightfire-unique]

I would suggest that probably none, or at most very few are terrorists. "Terrorist" has a very specific meaning, and killing American militants in a time of war (in their own country!) most certainly isn't it.

Re:Even scarier...

[Mongoose Disciple]

and they are hardly throwing away the key

What do you call 6+ years without a trial, and until this ruling, with no trial in sight?

That's a long damn time.

Re:Even scarier...

[nodrogluap]

My problem with today's opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad;

The problem is that Guantanamo is, for all intents and purposes NOT abroad, which is what the majority found. They've closed that legal loophole in their decision:

The Court does not question the Government's position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government's premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Common-
law habeas' history provides scant support for this proposition,
and it is inconsistent with the Court's precedents and contrary to
fundamental separation-of-powers principles.

In his dissent, Roberts argues that the case law quoted in the majority decision may not be applied properly because of the nature of those temporary occupations, but he himself is stretching logic by calling Gitmo "abroad". It is not "abroad" in any practical sense because Cuba has absolutely no ability, forever into the future to exert its control over Gitmo. Either Gitmo is lawless, or it is subject to American law, you cannot have it both ways. If it's lawless, how can Congress legislate about the people there?

Re:Even scarier...

[Lemmy Caution]

You know, I've always condemned people who called conservatives "fascists." For one thing, historically, conservatism isn't fascism. There are a lot of varieties of conservatism - some more nationalistic, some more about cultural traditions, values and ways-of-life, some more libertarian or about the well-being of businesses.

But I think that there is a strain of thought in a large subset of the neo-conservative movement (or however they're going to try to rebrand themselves) that is very close to fascism:

1. An admiration and affection for things military and an instinctive respect for armed authority,

2. Xenophobia and hostility to foreign ideas and influences, especially non-assimilating immigrants,

3. Nationalism and flamboyant display of nationalist imagery,

4. A cynical deployment of religion (see Leo Strauss),

5. Accusations of betrayal and disloyalty against critics,

6. Gleeful expansion of the policing power of the state.

Re:Even scarier...

[ScentCone]

Bush isn't content to just let the people be tried as criminals or treated as soldiers

Let's see. We've got trials going on right now. We've got other people who have been cleared, or who were connected to groups that have since been neutralized by other means... but their own countries refuse to let them back in, and no one else wants to give them sanction. Then you've got guys there who very plainly proclaim that they are not affiliated with any organized military, but that they absolutely were trying to kill soldiers in various spots overseas at the behest of (or in the name of) bin Laden, and they come right out and say that if they are released, they will do it again. But since they're not military people, they're not POWs. And since their acts weren't on US soil, but were against US personnel, they're not vanilla criminals that have a slot in our domestic criminal system, either.

There needs to be a new body of law to handle this, if people don't want the military to handle it on a case by case basis, as they're doing now. The democrats aren't having some brilliant new proposal batted down by Bush... they're not even TALKING about how they'd do it. They don't have any brilliant ideas either. The only thing they're doing is keeping it sound-bite-simple, and using it as leverage to complain that they'd do it better, and that their Candidate Of Change will certainly get it all straightened out. But - as has become the embarassing pattern - they have no specific, constructive CLUE as to what they'd do about it, and so all they can do is chant the Evil Bush mantra and the Change We Can Believe In mantra. It's really rather embarassing, actually.

Original Intent of the Framers

[mr_mischief]

Considering the Constitution of the United States was written largely by the same group who had written the Declaration of Independence, I think it is a difficult argument that the claims against the King would be allowed a pass for a new George.

The Declaration of Independence states that certain rights are endowed upon men by their Creator and unalienable. Among those are Life, Liberty, and pursuit of Happiness.

The charges against King George which justified the revolution included, "He has affected to render the Military independent of and superior to the Civil Power" and "For transporting us beyond Seas to be tried for pretended offences".

The preamble to the Constitution itself lists one of the reasons for its ordination as to "establish justice".

Article III section 2 states that the judicial power of the Supreme Court and the inferior courts extends to people including "a state, or the citizens thereof, and foreign states, citizens or subjects".

The 5th Amendment provides for indictment by grand jury and due process of law. It makes an exception for those serving in the military during war or public danger, but enemy combatants whether on the field of battle lawfully or unlawfully are not serving in our military.

The 6th Amendment requires that one be informed of the charges, to be confronted by witnesses against him, to have the power to subpoena witnesses in his favor, and to have the assistance of counsel. No exception for military or maritime conditions are made in this Amendment.

Considering all of these facts, and considering that the founders who wrote and supported the one document were the writers and supporters of the other, I find it difficult to believe that anyone could seriously question the legal status of people being held as criminals indefinitely under the power of the United States.

The government specifically denied that these people were POWs. If they had been POWs, they could have been held until the end of hostilities with the countries in which they were captured. Being held as criminals, though, they have no fewer rights than American citizens under the US Constitution from what I can tell.

There's nothing I've read in the Constitution which says that non-citizens under the government's jurisdiction are to be treated differently from citizens in matters of criminal law. In fact, while the Constitution at one time allowed the historic fact of brutal slavery and racial subjugation, the Articles and the Amendments make clear distinctions in many cases between the words "citizen" and "person", and most of the protections are for the more generic "person". Now slavery is properly banned by the Constitution. Foreign parties accused of crimes should not be treated any differently than citizens, or what have we learned?

Re:Sometimes you wonder

[ibecker]

The "presumption of innocence" is for people charged with violations of US criminal law. There is no such thing for battlefield detainees. Recall that these are not alleged muggers picked up on the streets of LA, rather they are enemies captured on the battlefields of Afghanistan & Iraq. If they had been uniformed members of a national army, they would be "Prisoners of war". Because they chose not to follow the rules of warfare, they do not qualify even for the protections for POWs in the Geneva Conventions. If you do not understand this last point (as many people, especially on the political Left, apparently do not), please actually *read* the Geneva Conventions. The protections for POWs listed therein are *explicitly denied* to those who fight without being in uniform, specifically to encourage organized armies rather than guerilla fighters. In either case, holding the prisoners captive until the end of the conflict is both reasonable and necessary.

We treat these people in Guantanamo Bay fantastically well, out of the goodness of our hearts and respect for their basic humanity, such as it is. We are not required to do anything more. These people certainly should not have any access whatsoever to US civil or criminal courts.

Comment removed

[account_deleted]

Comment removed based on user account deletion

But it is common sense...

[Penguinisto]

Actually, it does bode well - I would much rather have a court who has a balance of pro and con (yes, even in this decision, there are meritorious arguments made by the other side, even if you yourself refuse to see them).

It is far preferable to have a court who can see both sides of an argument. Far, far preferable than any ideologically uniform court that rubber-stamps whatever agrees with its own outlook(s), and rejects anything that does not.

Believe it or not, the court had to square existing policy with law and constitution. This doesn't exactly mean that each decision (especially including this one) is a simple choice of kittens versus cannonfire. There is no such thing as simple when you make a decision here - knowing that said decision is damned-near permanent, and will have reverberations that you can't even hope to contemplate.

Given all of this, the split decision is IMHO a sign of at least one branch of government being very healthy and sane.

Can't say the same for the other two, unfortunately...

/P

if (detainees = pow) then bush.n.co = warcriminal

[H0p313ss]

It's a fairly simple equation. If at any point the administration admits that the detainees have rights then they have branded themselves war criminals.

While not perfect, and sometimes it takes decades to resolve, history shows us that the US populace does not tolerate their leaders taking this kind of liberty with the truth and ignoring the spirit of the constitution, if not the letter.

I'm fairly confident that Bush, Cheney and Rumsfeld are going to be as fondly remembered as Nixon and Kissinger. The sad part of course is that the abuse will continue until morale improves.

Re:Troubling decision

[bigstrat2003]

First, why does the U.S. Constitution apply to foreign nationals captured and held in places that are not the U.S.? It applies to foreign nationals who are being held by US enforcers (soldiers, police, whatever), whether they're on foreign soil or not. In other words, the Constitution dictates how our government behaves everywhere, whether they're on American soil or not. If, one day, the president goes for a vacation on the moon, he'll still be bound (in his official capacity) by the Constitution there.

Second, will Al Qaeda reciprocate? It absolutely does not matter. The right thing is the right thing, whether the favor is ever returned to you or not.

Also, how do you fight a war under rules that were designed for domestic law enforcement? Then treat them as prisoners of war. That comes with its own set of rules, of course.

Re: Extend welfare and voting rights too!

[Fast Thick Pants]

it just states that it cannot be suspended, except during rebellion or invasion. And even then, only during the rare, exceptionally dire sort of rebellion or invasion wherein habeas corpus threatens public safety. Just having a rebellion or invasion isn't enough.

Re:Troubling decision

[downix]

Actually, you've hit the crux of the matter. The only mechanisms allowing for the US to hold anyone, weither within or without the US, are the geneva conventions, or the constitution. This administration was declaring that it did not have to follow either. This decision only hammered down that there are, and continue to be, only two legal mechanisms for US forced, weither military or civilian, can hold anyone, and that is through either the geneva conventions or the constitution, and that this administration has to decide which of them will apply.

You are right, they should not pick and choose which rules apply and don't. So, remind the president of that today, and have him either a) fully apply the geneva convention or b) fully apply the constitutional provisions for courts. If you can find me another, legal mechanism for holding them, please, inform me and the SCOTUS, as so far, none has been presented.

Re:Sometimes you wonder

[Alascom]

This opinion creates a situation that is quite silly. Anywhere the U.S. has a military base, the right to trial and evidence applies to anyone we accuse of being 'bad'. Therefore, if a bunch of 'bad' guys attack a military base in Afganistan, we must arrest the bad guys and put them on trial. WTF!

Thats right, this ruling can extend to ANYWHERE the U.S. has a military base, not just Gitmo, and the implications are completely insane. The courts now "claim" the ability to dictate how the military operates on foreign soil. Idiocy.

Re:categories, please

[Dog-Cow]

The idea that this debate should be a matter of politics vs. morality scares me more than any terrorist act to-date.

There's a reason that I believe Bush is the most successful terrorist in the world.

Re:Troubling decision

[Cro Magnon]

Second, will Al Qaeda reciprocate? I'm thinking not. "Hi. We have kidnapped you and are planning on beheading you in our next propaganda video, but first you have the right to challenge being detained at this terrorist training camp in a court of law. Would you like a court-appointed Sharia expert to act as your attorney, or should we fly in private counsel for you?"

If we behave like Al Qaeda, how can we call ourselves the "good guys"?

Also, how do you fight a war under rules that were designed for domestic law enforcement? Dust the battlefield for fingerprints, stick his AK-47 in an evidence bag, and make sure to read the guy who was firing the rocket launcher at you his Miranda rights in the correct Arabic dialect or he walks. And of course if Al Qaeda manages to kill off the solider who carried out the arrest, all the prisoners he's captured get released since they can no longer cross-examine the arresting officer.

Obviously, the procedures for soliers in the field are different from the procedures for dealing with street criminals. How did we deal with war in the past? I'm sure we didn't worry about "due process" with the Nazis, but niether did we hold them indefinitely. Shoot them, try them, or release them.

Constitution 101

[Doc Ruby]

The Constitution doesn't give us rights. The government doesn't give us rights. We have rights, inalienable rights, that come from "the Creator", whatever that is. The creator is a mysterious, unspecified entity, but it is not the Constitution or the government.

We, the people, create a government to protect those rights. In the USA, we (our forefathers) wrote a Constitution that our representatives explicitly agreed to support and defend. That Constitution creates a government from nothing, that protects those rights.

Those rights are inalienable. Even when the government fails to protect them, we still have those rights. But unless they're protected, we might not have the freedom to exercise them. That is why we create that government, which has no other power or even existence other than as we create it under the Constitution.

Americans aren't magically different from any other people. All people have the same inalienable rights. But what Americans have that is different is an American government that protects those rights. Foreigners have their own governments. It's up to them to protect their rights with their governments. Often they do not. But though it is in America's interest to help everyone we can to protect their rights, it is not automatically America's government's obligation to do so, unless Americans so instruct it. Even when we do, America is obligated to merely help those people free themselves , so they are free to create their own governments to protect their own rights.

That is what is fundamentally wrong with the Iraq War. Wrong with any occupying American government abroad. It's what was right with the US conversion of Japan and Germany from their tyrannies after WWII: we worked for several years to free those people, who then created their own governments.

But though we're not obligated to free anyone but ourselves, though our government is not obligated to protect anyone's rights but our own, our government is never free to violate those rights. The US government has no powers to violate any rights, except temporarily, according to explicit due process, and only when necessary to protect the rights of other Americans - like when jailing criminals, even suspending their rights to vote, freely travel and associate, and even to express themselves.

Americans in foreign lands have reduced protection of our rights by our government, as a matter of practical fact, but not from any change in our rights themselves. Foreigners in foreign lands have foreign governments that factor into the US ability and obligation to protect their rights, which is minimal.

But no one under control of the US, in US territory (including soverign military territory like Guantanamo) can see their rights infringed in any way.

Sometimes that happens. Sometimes the people in the government break the law, violate the Constitution. The Constitution of course has the remedy: prosecution and jail time, even impeachment. The Constitution isn't just some theoretical philosophy, but the only instrument which creates legitimate government power. And its power does not differ in application to anyone on US soil (with the sole and irrelevant exception that a US president must have been born American).

There shouldn't have been any question that Habeas Corpus must apply to everyone in US custody. But of course the 4 dissenting "Justices" in this case also installed George Bush as president. These people are part of a blatantly, flagrantly anti-American conspiracy among themselves to destroy America and everything it stands for.

Everyone knows it. Lots of us say it. But only far too few of us have the courage and integrity to live it. And we, the Americans with a clear conscience, want to bring these evildoers to justice.

The Constitution. Dodging a bullet today that should never have been fired, that should have seen millions of Americans jumping to take the hit. The closeness of this call is just one 87 year old man away from making a total mockery of America as "the land of the free, the home of the brave."

Re:Constitution 101

[Doc Ruby]

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20% of your trusty moderators think defending the Constitution is "trolling". Probably because it points out that their heroes are the ones attacking the Constitution. When these people who hate America, and the way we protect our freedoms, hear the truth, they automatically counterattack. No matter how dishonest and cowardly is their method.

These are the people we must defend our Constitution from. They're the ones we're talking about when we say "all enemies, foreign and domestic".

Re:Constitution 101

[shma]

Distinction without a difference. What's your point, My point is that your statement 'But of course the 4 dissenting "Justices" in this case also installed George Bush as president.' is incorrect. Even if it doesn't impact the argument, I prefer to make sure the facts are understood before we proceed.

My argument is that your claim of a secret conspiracy to destroy America based on this and the Bush v Gore ruling is weak and I gave Kennedy as an example of a Justice who, despite siding with Bush in 2000, votes based more on the Constitution than his own personal ideology.

'recently' is NOT the last 40 years. As I said in my original post, George HW Bush was the one who appointed Souter and Ford appointed Stevens. Both are most certainly not pro-Bush Justices which you could tell by just looking at their dissents over the last few years.

And lastly, stop be so damned hostile in your responses. When you make an extraordinary claim like "These [justices] are part of a blatantly, flagrantly anti-American conspiracy among themselves to destroy America and everything it stands for.", you should expect to be challenged.

Re:Constitution 101

[Doc Ruby]

All rights are inalienable, or they're not rights, but merely privileges (however important). But as I said, rights are still retained, even when the government does not protect them, and even when the government suspends or violates them. If the rights weren't retained, they wouldn't be in suspension or violated - they wouldn't exist.

I also explained how the US government is bound to protect those rights, which sometimes means legitimate temporary infringement of them in the protection of some other rights, or of another person's. So the inalienable right to liberty can be infringed by imprisonment, when one's right to due process still proves them guilty of violating someone else's rights, like to ownership of their property (as in theft), or to their own liberty (as in kidnapping or slavery).

That is because we are not really dealing with abstractions, or some grand simultaneous equation to evaluate "how much liberty is in the US". We live in a dynamic world, where one person's actions affect another's state, and even "state actions" are actions of other people with a different legal status. That dynamic interaction makes for some complex activity, including the fallibility of some people when actually executing actions even under just law.

But the simple matter is that since the government is created by a Constitution solely to protect people's rights when it can, and without power to violate those rights when it need not, America's government cannot violate anyone's rights when America's government is in control. So foreigners are entitled to the same protections as are nationals. And Americans are entitled to America's government doing what it can to protect those rights while abroad - where indeed US embassies and consulates spend quite a lot of time protecting Americans' rights (though usually American corporate "persons", but under the same principle). And since America has a lot of influence even in foreign jurisdictions, America's government legitimately intercedes to protect those rights of foreigners, especially when its in the interests of Americans. And in fact America's government is empowered by the Constitution to intercede even against the will of foreign governments. But that intercession is an extreme rarity, and must be balanced against the protection of all Americans, starting with those at home.

The issues are the interaction between what's right, and what's possible. What's right doesn't change. As what's possible changes over time, different exercises are appropriate.

The Court just ruled that the US government must protect the rights of foreigners in US government custody. Their rights have persisted, despite the unjust violations of them. What lapsed, and what has started to return, was the government's protection of them. But even while it lapsed, it was wrong.

I know that if I were a foreigner in the US, I'd be inspired by that tenacity of justice, even when tested by temporary failures. Because I've been a foreigner abroad in the world. And I know history. I know that Americans have our rights protected more by our government, both at home and abroad, than practically any other government's nationals (except maybe the Vatican's, and the more privileged nationals of some countries). And I know that in most countries, once the government violates a right, it's gone forever - at least until the government is fundamentally changed.

America's violations of rights are the exception, not the rule, even for foreigners, at least while under control of America. That's far from perfect. But it's still at the top of the performance list of everywhere else. And I'm proud of that, which is why I fight to keep it that way, and to improve it.

Re:Constitution 101

[khallow]

And now we have crude smack talk. Debate doesn't get more ironclad than that. BTW, if you ever want to grow up and you know, think, I'll be around. I think you need a little feedback. I'm not republican, I'm not libertarian with "scare quotes", Sure there's some parts of their respective beliefs or platform that I agree with, but same goes for the Democrats. Currently, I lean towards McCain, but Obama is in the game as far as I'm concerned. I've long ago lost interest in hearing clueless people tell me what it is I believe in and what type of delusional freak I supposedly am. As I see it, you seem a reasonably intelligent guy. Use that brain rather than resort to ad hominem attacks when someone disagrees with you.

Re:Sometimes you wonder

[Luyseyal]

I disagree. I don't think the Legislative or Executive branches have the authority to switch the Constitution on and off at will. Habeus corpus should apply to any American citizen or foreign detainee held by Americans (excluding foreign army prisoners in a time of declared war). Period. There may be some finagling over how classified evidence, etc. is handled. And that is fine and dandy with me. But the right to a fair legal justification for your imprisonment is a fundamental human right entirely at odds with infinite detainment. I think the Constitution and the Supreme Court clearly support that right.

$0.02USD,
-l

Re: Extend welfare and voting rights too!

[Sylver Dragon]

[The US Constitution] isn't a restriction on an otherwise-unlimited government, it's a grant of powers to an otherwise-powerless government.

And me without mod points. Damn.
Very well said, students in school should be forced to repeat this statement until they understand what it means.

Re: Extend welfare and voting rights too!

[Anonymous Coward]

This will force the government to either release the enemy combatants or release the details of their intelligence gathering. I can understand why some would be opposed to being forced into this dilemma. Still, rights are guaranteed for a reason -- it's naive to think that a government will never abuse its powers, whether knowingly or incompetently.

I agree that prisoners need a hearing, but this will have negative consequences for our intelligence and military communities' efforts -- many of which are, contrary to the typical /. opinion, quite legitimate and important to our safety. But that's the price we have to pay for oversight.

Re:Troubling decision

[smellsofbikes]

I'll give this a try:

>First, why does the U.S. Constitution apply to foreign nationals captured and held in places that are not the U.S.?

It doesn't. It limits what the US Government can do, here or anywhere else, just as it always has. The location is irrelevant: all that matters is that the US Government only has powers that the Constitution specifically grants it, and holding people indefinitely without charges are not among those powers.

>Second, will Al Qaeda reciprocate?

Dunno. It's completely irrelevant. Robbers don't operate under the law: that doesn't mean that we get to shoot people who we think might be robbers.

>Also, how do you fight a war under rules that were designed for domestic law enforcement?

According to laws? If the laws need to be changed, here's an amazingly revolutionary idea: you CHANGE THEM. You don't just do whatever it is you want and wave your hands and say "well, we had to!" because that's not law, that's dictatorship.

Re: Extend welfare and voting rights too!

[Shadow-isoHunt]

But the fucked up thing is that it is American soil, because it's a fucking military base. The government's trying to have it both ways here.

SCOTUS does its job.

[oyenstikker]

From the McClatchy article:

A dejected Sen. Lindsey Graham blasted the Supreme Court's ruling Thursday on Guantanamo Bay detainees, calling it "dangerous and irresponsible."

It is not the job of SCOTUS to be safe and responsible. It is the job of SCOTUS to knock down unconstitutional laws.

Re:Change the Constitution

[Knara]

2/3 of congress. If 3/4 of the state legislatures vote for it, it can also be done at a constitutional convention.

Neither of those things are going to happen in this case.

Re:Troubling decision

[BasharTeg]

It has nothing to do with the fact that they're foreign nationals, nor that it happens "abroad". The federal government has no powers that the constitution does not grant. They can't do anything "abroad" nor to foreign nationals without constitutional power. It's not as though they have infinite power outside our borders "just because".

The consitution says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This specifically states that unless there is rebellion or invasion, the privilege of the writ of habeas corpus shall not be suspended. There is no rebellion or invasion in progress, therefore, the federal government, both the executive and legislative branches, has no power to suspend the writ of habeas corpus, which is the power of the judicial branch to review any and all detainments, jailings, or imprisonments.

There's nothing in the consitution that states that the executive and legislative branches can operate internationally, but the judicial branches cannot review international actions. The three branches of government are co-equal. I hate this recent distaste for judges by conservatives who want to reinterpret the laws of the land to let their idiot of a president do whatever they want. The judges are doing their duty to interpret the law. The fact that they're not elected by popular vote is BY DESIGN and should not be used to try to make their *co-equal* role seem less important.

The constitution doesn't apply to a particular location. It applies to a particular federal government, regardless of the location. The consitution says, the government cannot restrict habeas corpus, it doesn't say, it cannot restrict habeas corpus on US citizens. Habeas corpus isn't a right of American Citizens defined affirmatively in the consitution, instead, the federal government is prohibited from suspending the right period, with no other conditions. Currently, the government is claiming the power to suspend the right of habeas corpus for the people at gitmo. The constitution says, NO, you cannot suspend that right. Doesn't matter who. Doesn't matter where.

As far as your argument of "will Al Qaeda reciprocate"? Do we decide our standards of behavior by the enemy's standards of behavior? For example, the enemy punishes us by attacking civilians, so why don't we attack civilians aligned with their cause or civilians whom they claim to represent and fight for? Would that be the right thing to do? It's really sad to me that people don't understand the *reason* we're the good guys is the fact that we're willing to fight based on principles, and that Americans have been willing to die for those principles for as long as this nation has existed. Fools who would give up those principles in a heartbeat for security, fools who would disgrace all those who fought and died fighting the right way, when we could have won faster by fighting the wrong way, those people don't understand what it means to be an American. If more Americans have to die to defend the constitutional principles that make us who we are, then at least they die as Americans, rather than reducing themselves to the level of the terrorists. By giving up our principles and violating our constitution, we let the terrorists win, because we let them take away who we are and we let them take away what we believe in.

I prefer to believe that we can beat these people, that we can chase them down and kill them, without violating our principles and without giving up who we are. I'm willing to accept that there is a greater risk that there might be more terrorist attacks, and that my city could be bombed, and that I could lose loved ones in this battle, if it means that we stay true to our American principles and we fight like the good, strong, and moral people that we consider ourselves to be, and I consider anyone who is unwilling to accept the additional risk involved with sticking to our principles to be a coward and to have no claim to patriotism, and have no understanding of what America is and why we're the greatest nation on Earth.

Sen Graham doesn't get it

[Macka]

In the McClatchy article he said:

The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said. "Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact."

The two scenarios are completely different. During the 2nd World War is was blinding obvious who the enemy was, as a few million of them wore distinctive uniforms and pointed guns at you. In Iraq however most look exactly the same as the civilians. So who is he, or anyone else to decide who is and who is not an Al Qaida member without some form of unbiased review of the evidence? That's the whole point of giving them the right to trial.

With out a doubt some of the detainees are Al Qaida. But it's also very clear from the testimonies of many who've been detained without charge for years before being released without explanation, that many are also not Al Qaida; were not involved in any military action, and should never have been sent there in the first place.

Given that the U.S. military and government are not prepared to give these people fair justice. A court of law is totally the right choice in a modern, civilized western world.

Re:Not enough evidence

[Yunzil]

300 people found with machine guns, bombs, suicide vests, trying to murder civilians and US troops and captured instead of killed. Not enough evidence for you?

No, because we only have the military's word on the alleged evidence.

But hell, why not get rid of the courts altogether, because anyone the cops say is a criminal is automatically guilty, right?

Scalia is a monster, not a human being

[Scrameustache]

A 5-4 decision means that the somewhat-sane members of the court outnumbered the completely-crazy members of the court by One Single Vote. We've got ourselves a Supreme Court that's divided on the meaning of some of the most fundamental aspects American law. This doesn't bode well for the next 30 years.

-Sean SCALIA: No. To the contrary. You think â" Has anybody ever referred to torture as punishment? I donâ(TM)t think so.

STAHL: Well I think if youâ(TM)re in custody, and you have a policeman whoâ(TM)s taken you into custodyâ"

SCALIA: And you say heâ(TM)s punishing you? Whatâ(TM)s he punishing you for? ⦠When heâ(TM)s hurting you in order to get information from you, you wouldnâ(TM)t say heâ(TM)s punishing you. What is he punishing you for?

Outsource

[willy everlearn]

The answer is real simple. Outsource it to the Cubans.

1) They need the money.
2) They do not have habeas corpus. You can be interned forever with no trial. So it does not violate any of their laws.
3) We will not have to move the prisoners very far.
4) They have a WELL trained security force. Just ask their civilian population.

There you go. Every thing a growing dictatorship needs.

Marshall Plan?

[fm6]

What, you're saying that we need to stay in Iraq so we can do the Marshall Plan thing there? We've been doing it since the beginning of the occupation, and it's pretty much been frittered away. The schools and hospitals mostly got contracted out to incompetent or corrupt people who never finished or did a sloppy job; the few that actually got built were destroyed by insurgents. Despite American attempts to beef up the infrastructure, it's actually worse than it was under Sadam, with most of the electrical grid down most of the time.

I could go on, but you get the idea.

It's amazing how many "STAY THE COURSE!" people don't know about this.

Re:Marshall Plan?

[KillerBob]

Ok, so they have had this democracy for several years now... If we leave and everything collapses, then that means that it's not what the people want.

All it takes is a handful of well-armed people to topple a government. It's not necessarily that the people don't want a democracy (I'm not Iraqi, so I don't know... but the Iraqi I used to work with was in favour of democratizing the country), it's that there's enough people who don't want one still running around with guns and bombs. The local police/defense force simply isn't strong enough to cope with them yet.

Re: Extend welfare and voting rights too!

[Rycross]

If we were at war with Britain then our troops would be uniformed, troops would be captured in combat, the Geneva conventions would be respected, and then they would be released when the war was concluded. There would be little doubt as to why they would be held, because we would know they were soldiers fighting with Britain.

Civilians that are not wearing uniforms would probably be put through their civil system, like members of the IRA were. Which is exactly what we should do.

But its a moot point because we're not at war with anyone. No formal declaration of war was made. We have no stated enemy, and thus we have no way of knowing who qualifies as a solider, or when the conflict ends. Thus we should have to prove that person is a combatant, or has committed some other crime.

so who are you at war with?

[fantomas]

It's all a bit fuzzy. Your government appears to be reserving the right to pick up and intern anybody they fancy of any nationality in any country and declare they don't have to tell us why, and don't have to let the interned people go at any time.

That's one of the thing that really worries a lot of us. We don't trust your government, so we generalise and say "we don't trust the USA or its people". That's sad and not very healthy.

Even the top people on the losing side of World War 2 got trials and lawyers. You are saying that the people in Guantanamo Bay have carried out significantly worse acts than the people who stood in the Nuremburg trials?

But...

[raehl]

they just wanted to get on with their lives

But, they HAD lives to get on TO. That's not true in the middle east - the vast majority of the population lives in poverty, and in even worse, in Iraq, they don't even have basic security. Anybody can be killed at any time.

When you have large disaffected populations, you create a ripe stomping ground for nefarious personalities to indoctrinate them to their 'causes'. Why does your life suck? It's because of the evil Americans! Kill the infidels!

We're the new Jews; we just have bigger guns. (Well, the new Jews are also the new Jews, and THEY have bigger guns too, thanks in large part to us.)

Scotus lines have been drawn

[Coward Anonymous]

Note the "good" guys:

John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer

vs. the "bad" guys:

John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Let's hope the "good" guys maintain their majority.

You've missed the problem.

[raehl]

I don't want terrorists to have US constitutional rights. Kill 'em all.

What I want though is to first FIGURE OUT WHO IS A TERRORIST AND WHO IS NOT.

Just because the executive branch SAYS they are a terrorist doesn't mean they are actually a terrorist. And in fact, quite a few of the Gitmo detainees seem to quite obviously NOT be terrorists, but just in the wrong place at the wrong time.

So what I want is for ACCUSED terrorists to be given a trial, and then all the ones found guilty can rot in Gitmo or be shot as appropriate.

But what I do NOT want is for our government to be able to grab random people and toss them in prison for as long as they feel like - even if they do tricky things like put the prisons in other countries. Because if its OK for our government to do it, then its OK for other governments to do it, and that would crimp my travel plans.

Senator Graham's comments

[p3d0]

"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said. "Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact." I don't remember Congress declaring war. Did I miss it?

re: ownage.

[sammy baby]

Your argument would make sense if the Constitution didn't apply to non-citizens.

But:

[in the U.S. Constitution,] There is no provision on juridical persons. As for natural persons, key rights-related provisions including the Bill of Rights (the first 10 Amendments), and the 14th Amend. due process and equal protection clauses, are phrased as applying to "all persons." These rights therefore have been construed as offering substantial protections to non-citizens residing within the U.S.

But look, you've actually read the Bill of Rights, right? Can you please identify where, in the Preamble to the Bill, or in the actual text of the Sixth Amendment, it says "this only applies to citizens?"

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Or there's Wikipedia...

In the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known.[1] They were introduced by James Madison to the First United States Congress in 1791 as a series of constitutional amendments, and came into effect on December 15, 1791, when they had been ratified by three-fourths of the States. The Bill of Rights limits the powers of the Federal government of the United States, protecting the rights of all citizens, residents and visitors on United States territory.

So when I say that the Magna Carta still has a bearing on modern judicial matters, don't assume I mean you don't have to read anything else.

(Side note: IANAL.)

Re:Government has an easy fix

[jedidiah]

Just releasing these people to the governments of their countries
of origin would probably be sufficient. This would also be all you
would expect to be done with POWs ultimately.

That begs the question: Just who is speaking up for these people?
If they are foreign nationals then why aren't those foriegn nations
demanding their return? This isn't just a simple matter of us abusing
those people. They don't seem to have anywhere to go to.

Re:You want to be really scared?

[nodrogluap]

The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation...

This is the stupidest part of the dissenting opinion. I'm not sure Roberts even read the majority opinion, because they specifically say that they don't need to enumerate the rights of the detainees, because the lack of adversarial nature in the MCA proceedings (they don't get a lawyer proper) precludes a proper trial, and the appeal process set up cannot review findings of fact. So you get no real lawyer representing you, and the appeal can't introduce facts not in the original trial. You don't need to avail yourself of such a system to realize it's crap.

Re:Don't forget German Science and Industry...

[DrgnDancer]

Yeah, the list goes on and on. There's also the fact that the Germans and the Americans has very similar cultures and customs, the fact that nearly the entire male population of Germany was dead or injured so there was almost no one left to run an insurgent campaign even had they wanted to, the fact that Germans are culturally predisposed to follow instruction from people who sound like they know what their doing...

I picked the four biggest ones off the top of my head but I came up with at least 5 or 6 more.

I think the biggest single factor was the planning and execution; despite everything, had we gone into Iraq with a level of planning equal to the Marshall Plan it might have worked. Even then I don't think we could have had a "rebuilding Europe" level of success, but we might at least have a generally stable country with an infrastructure. Now though... Like I said, likely too little, certainly too late.