The reason "suspicionless border searches of travelers' luggage" was initially allowed was to find bombs. I think you're wrong on this point. Can you document this claim, especially regarding that "the reason... was to find bombs"? When was this "initially allowed" -- in the aftermath of 9/11, or at some other time perhaps?
I do believe you'll find that the gov't has had the authority to conduct warrant-less and suspicion-less searches at the border since, well, since the foundation of the country. There have been Supreme Court cases that have further refined the boundary of "reasonable" and "'routine" searches, but it has never been absolutely necessary to reach any standard of "suspicion", let alone a warrant.
I think, whenever someone resists arrest, the police should be all like, "well, I guess we have to let him go -- wouldn't want to do anything that could cause acute pain (for anyone's definition of 'acute') or has the possibility of resulting in death". Geez, what if the guy has blood clots in his leg and tackling him might cause an aneurysm? Best not take the chance.
"this guy had half a kilo of potassium nitrate, 250g of calcium chloride, videos of beheadings and he had recently visited Pakistan"
It's almost as if someone was deliberately trying to sensationalize the story by focusing exclusively on the "Anarchist's Cookbook" angle. Great for righteous indignation and pageviews, no?
The best part of the summary is those two little words, "in part". I.e., "plus, like, some bomb making material but nevermind about that".
"You should be lamenting the fact that the decision had to be made, not the fact that it was made."
I thought that's what I was doing, rather explicitly -- that whole "the ends don't justify the means" thing I was on about.
But actually I'm not a libertarian; my point was more, a whole lotta people on this site claim to be libertarian, but in reality it's more a position taken out of convenience, and one that is just sorta "fashionable" in these circles. I was hoping to find *someone* who would stand on their libertarian core principles, but it turns out they're not so "core". When it comes to sticking it to those religious types, they'll laud any champion, support any cause...
Personally, I'd like to see public education freed of unions and competed against by charter schools, paid for with vouchers. Then parents can band together with like-minded so-and-so's to make their own decisions, diminishing the importance of one-size-fits-all edicts coming down from on high. But I'm certainly not an "abolish the Department of Education" libertarian.
Oh, and, in order to put together a "panel of experts" (which would be great, in theory), we either end up with an oligarchy of self-selected experts, or we go the whole democracy route. Again, it's not perfect, but the democracy thing is the best we've come up with.
"So you'd prefer that the legislators get it wrong than the courts get it right?"
Of course not. But we obviously cannot know this ahead of time in all cases, when we're setting up the form of government and divvying out authority. It seems best to me to have the judicial branch adjudicate the law as written, and have the legislative branch 1) face the voters every few years and 2) decide policy questions in light of #1. This isn't a very good system, but it's the best we've managed to come up with so far.
I think both legislators and judges are suseptible to various undesirable pressures, both internal (arrogance, etc) and external (pressure groups), to varying degrees. So I'm certianly not saying "legislature good, courts bad". I'm saying, we should establish a balance of power and checks & balances, and compel all public servants to remain within the confines of the authority delegated them. It would be a Mistake in the long run to allow more and more authority to accrue to the people who happen to be making good decisions today, because who knows who'll be holding those offices in the future?
Obviously I'm not advocating that "willy-nilly" thing. I'm not even arguing the merits of ID. I'm making a comment about *who* is doing the deciding here. I doubt you'll find a real libertarian that is happy with the *federal government* making curriculum decisions even if those decisions are, today, the "right" decisions.
To say that "without benevolent government oversight, science education will decay" is quite the departure from libertarianism. The libertarian position says, "government oversight? We don't need no steenkin' government oversight!"
The *courts* are pushing a particular public policy?! I thought the courts' job was to apply the law as written by the legislative branch, and the legislative branch gets to decide public policy. Again we have, "we like the outcome so the means don't matter!".
(Again I'm not arguing the merits of ID, I'm arguing that we should really watch the manner in which we go about things, so that it doesn't come back to bite us later.)
Isn't anyone here the least bit concerned about the whole government-declaring-what-is-or-isn't-science thing? I thought there were more libertarians here. But I guess most everyone supports giving the government more authority as long as it is pushing through their preferred policy positions.
(I see the core insight of libertarianism as: even if the current crop of politicians are making the "right" decisions, what happens when the next crop of politicians has all the same authority but the "wrong" policy positions? Better off to not expand the authority of government in the first place.)
Obviously, the War On Botnets has failed. All the War On Botnets has done is created a lucrative enterprise for organized crime. We need to legalize botnets, so that botnet operators can finally come out of the shadows. Also, once legalized, we can tax botnets -- this way, botnets become an income generator for the government, rather than a black hole of enforcement dollars. The police can then better spend their time tracking down *real* criminals.
I'll just make a couple last general points and leave it at that. (I'll leave you the last word, if you choose.)
Addressing the specific claim that, if a detainee is not a POW, then they must either be charged with a crime or released, consider this:
In Ex parte Quirin (1942), the Supreme Court held: "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention..." It then goes on to say that unlawful combatants are *additionally* subject to trial and punishment for war crimes or other crimes. It is not the case that, if the military fails to try them, they must be released. They can simply be detained. There is certainly no mechanism where, should the military be slow to try them, they are suddenly no longer subject to detention.
Also, addressing the specific claim that the status of "unlawful enemy combatant" was made up recently by the Bush administration for nefarious purposes, here we have in this decision from way back in 1942 that the Supreme Court recognizes a distinction between "lawful combatants" and "unlawful combatants".
One other interesting bit from this ruling, if there is any substance to making a distinction between "file" and "grant": "The motions for leave to file petitions for writs of habeas corpus are denied."
Please note, I am not arguing that al Qaeda detainees in Gitmo are exactly equivalent in all legally relevant respects to the defendants in this Supreme Court case or the other one a mentioned. I am simply arguing that these exceptions to the writ of habeas corpus do exist. Whether or not they should apply to Gitmo detainees, that is a very good question. But all I am arguing for the moment is that the grand, sweeping claims of Bush critics are wrong as a matter of law, and their conclusion that the Bush administration is acting in bad faith is unsupported by the facts.
There certainly is a legal contraversy to be hashed out. But to accuse the Bush administration of being lousy with crypto-fascists does not advance the debate at all.
You're really gonna have to read it again. First, they were *not* POWs. (How can someone be a POW if they were tried for war crimes?) Second, it can't get much clearer than this: "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States."
Perhaps the nuance you're missing is the difference between "filing" the writ and being "granted" the writ. Anyone can scribble "this is a writ of habeas corpus" on a piece of paper and have a processor serve it on the Secretary of Defense or whoever. Being granted the writ means you are actually brought before a judge for a determination as to whether or not you are being held appropriately. The detainees in the case cited did not have the right to be brought before a judge. The Supreme Court ruled that lower courts *erred* when they allowed these particular detainees to be brought before them.
Well, here's what we're doing to that effect, described by John Bellinger, the top lawyer at the State Dept:
Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because--among other things--unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.
[...]
Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don't think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, "I want to stop fighting, I want to just go back and join my community," and in fact the community will credibly commit, "We will take responsibility for this person, and make sure that he doesn't go back to fighting," then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.
[...]
Detainees who the United States does not intend to prosecute by military commission also have their detention reviewed annually by an Administrative Review Board. This Board determines whether the detainee can be released or transferred without posing a serious threat to the United States or its allies. We are aware of concerns about the indefinite nature of the conflict with al Qaida and the resulting concerns about indefinite detention. ARBs attempt to address these concerns by balancing our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary. To date, more than 200 detainees have been released or transferred pursuant to the ARB process.
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
The right to a writ of habeas corpus is certainly not granted to anyone detained by American forces anywhere for any reason. Here's one such exception:
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
The right to a writ of habeas corpus is certainly not granted to anyone detained by American forces anywhere for any reason. Here's one such exception:
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
I disagree with your characterization of the Geneva Conventions. You say, "the GC says only 'These people are enemy soldiers, and must be treated as soldiers, and these people are outside'". The breakdown as I understand it goes like this. The GC splits people into "combatants" and "non-combatants". "Combatants" are further subdivded into those who qualify for POW status and those who do not. If a combatant fails to qualify for POW status, they are not therefore reclassified as non-combatants, as you seem to suggest. They remain combatants. They can be held as combatants. Or, they can be charged with a crime. Or both.
It is my understanding that this area is very fuzzy, and reasonable experts fall on both sides of the argument. But, it certainly cannot be said that the Bush administration came up with a novel interpretation.
Here's what the law says about the writ of habeas corpus, for reference:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. [...]
... So it appears to me that a member of the judiciary is limited to granting writs to detainees "within their respective jurisdictions". (The Supreme Court had to finagle themselves jurisdiction over Guantanamo Bay, Cuba to rule on one of their recent cases. I'm curious, what would happen if the Supreme Court claimed jurisdiction over an American military base in Germany?)
You say "clearly", but the article actually uses a bunch of weasel words -- "some language in the new law also *suggests*...", and "another provision in the law *seems*...". It's not a news article, it's a commentary, and the commentator is wrong as a matter of law.
Here's what the law says, defining its jurisdiction to cover only *alien* unlawful enemy combatants:
S.3930
Military Commissions Act of 2006 (Engrossed as Agreed to or Passed by Senate)
[...]
Sec 948d. Jurisdiction of military commissions
(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant [...]
"As to our current treatment of "enemy combatant" detainess I have read a couple of articles [...] that point out that the idea of an "enemy combatant" is one that has been produced from whole cloth by this administration for the express purpose of circumventing the protections afforded by the Geneva Convention."
I wasn't entirely sure about this point myself, until I came across this:
"In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists." " (John Bellinger, State Department Legal Adviser)
Spies, saboteurs, and even pirates have long fallen into this other category -- enemy combatants operating contrary to the customary laws of war, and hence "unprivileged belligerents".
Let's see what the top lawyer at the State Department has to say, shall we?
"In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime." [...] "And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict." [...] "But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield." [...] "the ARBs [Administrative Review Boards] balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary." [...] "I take Marko's larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it's important to identify this as a policy, not legal, disagreement." [,,,] "In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists." " (John Bellinger, State Department Legal Adviser)
We might just have to agree to disagree on this one, but I am absolutely certain that you are wrong on this point, that POWs have all the rights of US citizens in addition to rights from the Geneva Conventions. For instance, the Geneva Conventions expressly allow a POW to be detained without charge or trial for the duration of hostilities. Hence, a POW captured by the American military overseas does not have the right to a jury trial, among other things.
That's the way we've always conducted our wars. For example: German POWs in WWII -- German POWs were generally released at the end of the war, and those who committed war crimes were subject to the Nuremberg trials. Notice carefully: the German POWs who committed no crimes were held without trial until the end of the war; we gave none of them a speedy trial or a trial by jury, or a trial of any kind -- they weren't ever even charged with a crime! And yet, we held them for years, and would have continued to hold them had the war went on longer, and for no matter how long. This was entirely in keeping with the Geneva Conventions and the US Constitution (and any other laws, treaties, obligations, or anything else that might apply).
"I propose we kill all the Gitmo detainees. If you think they shouldn't be killed, please justify your rationalle."
That's easy -- such an act is prohibited by the Geneva Conventions, article 3 I do believe.
Warfare is distinctly different from law enforcement. From that basis, the various distinctions follow, including the denial of habeas corpus rights to POWs and other enemy combatants. (I got to get to work, so I don't have time to develop this further at the moment!)
"I think you may have answered your own question there. The Geneva convention only allows for suspension for the duration of hostilities, but after that presumably there must be a trial. Now of course, when governments start waging modern wars against concepts like "terrorism" with no defined end-point then that limitation becomes meaningless, but the crafters of that document probably expected that such an Orwellian concept as perpetual war would not be invoked by a freedom-loving nation. Additionally, AFAIK habeas corpus only says that one has a right to trial, not that it must be speedy, so even when the Geneva conventions suspend it during hostilities, the fact that it is intended to be re-instated later still holds to the spirit of the writ. I'm splitting hairs here, but take it as a devil's advocate response.;)"
Well, you're out-and-out wrong about at least one thing -- there is no "presumably there must be a trial" after the cessation of hostilities. The Geneva Conventions' presumption is that the POWs would simply be released. Soldiers who qualify for POW status are not criminals, no crime has been committed, and no trial is ever presumed or intended. (Of course, if certain detainees did commit crimes, then we should definitely put them on trial at the end of hostilities. But POWs are, by definition, *not* criminals and *not* accused of any crime.) Basically, the whole waging-war thing is a whole different ballgame from the prosecuting-criminals thing. That's why there's a whole different set of rules, and even though the rules are different, they are still just.
Now you make a good point that the battle against "terrorism" is distinctly different from conventional army-vs-army warfare. So I would say, there ought to be another set of standards that apply to a "war" on terrorism. Perhaps we should start from the Geneva Conventions and make modifications that take into consideration what you've described. Or maybe we should construct the rules some other way. This is a very good discussion to have. It is much preferred to a discussion that starts from the basis, "President Bush is infringing the 6th amendment constitutional rights of the POWs at Gitmo!", because that basis is horribly misguided on several levels.
Perhaps an historical analogy would be instructive -- in what ways is the modern "global war on terror" similar to the manner in which Jefferson dealt with the Barbary pirates? Non-state actors, belligerancy against American interests overseas -- looks like a pretty good match! I wonder how that effort was conducted -- were captured pirates given jury trials? (seriously, I wonder, because I don't know!)
Slashdot Mirror
I do believe you'll find that the gov't has had the authority to conduct warrant-less and suspicion-less searches at the border since, well, since the foundation of the country. There have been Supreme Court cases that have further refined the boundary of "reasonable" and "'routine" searches, but it has never been absolutely necessary to reach any standard of "suspicion", let alone a warrant.
I think, whenever someone resists arrest, the police should be all like, "well, I guess we have to let him go -- wouldn't want to do anything that could cause acute pain (for anyone's definition of 'acute') or has the possibility of resulting in death". Geez, what if the guy has blood clots in his leg and tackling him might cause an aneurysm? Best not take the chance.
"this guy had half a kilo of potassium nitrate, 250g of calcium chloride, videos of beheadings and he had recently visited Pakistan"
It's almost as if someone was deliberately trying to sensationalize the story by focusing exclusively on the "Anarchist's Cookbook" angle. Great for righteous indignation and pageviews, no?
The best part of the summary is those two little words, "in part". I.e., "plus, like, some bomb making material but nevermind about that".
Racer X was actually his brother the whole time!
"You should be lamenting the fact that the decision had to be made, not the fact that it was made."
...
I thought that's what I was doing, rather explicitly -- that whole "the ends don't justify the means" thing I was on about.
But actually I'm not a libertarian; my point was more, a whole lotta people on this site claim to be libertarian, but in reality it's more a position taken out of convenience, and one that is just sorta "fashionable" in these circles. I was hoping to find *someone* who would stand on their libertarian core principles, but it turns out they're not so "core". When it comes to sticking it to those religious types, they'll laud any champion, support any cause
Personally, I'd like to see public education freed of unions and competed against by charter schools, paid for with vouchers. Then parents can band together with like-minded so-and-so's to make their own decisions, diminishing the importance of one-size-fits-all edicts coming down from on high. But I'm certainly not an "abolish the Department of Education" libertarian.
Oh, and, in order to put together a "panel of experts" (which would be great, in theory), we either end up with an oligarchy of self-selected experts, or we go the whole democracy route. Again, it's not perfect, but the democracy thing is the best we've come up with.
"So you'd prefer that the legislators get it wrong than the courts get it right?"
Of course not. But we obviously cannot know this ahead of time in all cases, when we're setting up the form of government and divvying out authority. It seems best to me to have the judicial branch adjudicate the law as written, and have the legislative branch 1) face the voters every few years and 2) decide policy questions in light of #1. This isn't a very good system, but it's the best we've managed to come up with so far.
I think both legislators and judges are suseptible to various undesirable pressures, both internal (arrogance, etc) and external (pressure groups), to varying degrees. So I'm certianly not saying "legislature good, courts bad". I'm saying, we should establish a balance of power and checks & balances, and compel all public servants to remain within the confines of the authority delegated them. It would be a Mistake in the long run to allow more and more authority to accrue to the people who happen to be making good decisions today, because who knows who'll be holding those offices in the future?
Obviously I'm not advocating that "willy-nilly" thing. I'm not even arguing the merits of ID. I'm making a comment about *who* is doing the deciding here. I doubt you'll find a real libertarian that is happy with the *federal government* making curriculum decisions even if those decisions are, today, the "right" decisions.
To say that "without benevolent government oversight, science education will decay" is quite the departure from libertarianism. The libertarian position says, "government oversight? We don't need no steenkin' government oversight!"
Democracy aint perfect, but I prefer it to scientist oligarchy.
The *courts* are pushing a particular public policy?! I thought the courts' job was to apply the law as written by the legislative branch, and the legislative branch gets to decide public policy. Again we have, "we like the outcome so the means don't matter!".
(Again I'm not arguing the merits of ID, I'm arguing that we should really watch the manner in which we go about things, so that it doesn't come back to bite us later.)
Isn't anyone here the least bit concerned about the whole government-declaring-what-is-or-isn't-science thing? I thought there were more libertarians here. But I guess most everyone supports giving the government more authority as long as it is pushing through their preferred policy positions.
(I see the core insight of libertarianism as: even if the current crop of politicians are making the "right" decisions, what happens when the next crop of politicians has all the same authority but the "wrong" policy positions? Better off to not expand the authority of government in the first place.)
Sony Online buys Vanguard? I sure hope they do a good job with my retirement savings ...
Obviously, the War On Botnets has failed. All the War On Botnets has done is created a lucrative enterprise for organized crime. We need to legalize botnets, so that botnet operators can finally come out of the shadows. Also, once legalized, we can tax botnets -- this way, botnets become an income generator for the government, rather than a black hole of enforcement dollars. The police can then better spend their time tracking down *real* criminals.
I'll just make a couple last general points and leave it at that. (I'll leave you the last word, if you choose.)
..." It then goes on to say that unlawful combatants are *additionally* subject to trial and punishment for war crimes or other crimes. It is not the case that, if the military fails to try them, they must be released. They can simply be detained. There is certainly no mechanism where, should the military be slow to try them, they are suddenly no longer subject to detention.
n avby=CASE&court=US&vol=317&page=1
Addressing the specific claim that, if a detainee is not a POW, then they must either be charged with a crime or released, consider this:
In Ex parte Quirin (1942), the Supreme Court held: "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention
Also, addressing the specific claim that the status of "unlawful enemy combatant" was made up recently by the Bush administration for nefarious purposes, here we have in this decision from way back in 1942 that the Supreme Court recognizes a distinction between "lawful combatants" and "unlawful combatants".
One other interesting bit from this ruling, if there is any substance to making a distinction between "file" and "grant": "The motions for leave to file petitions for writs of habeas corpus are denied."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?
Please note, I am not arguing that al Qaeda detainees in Gitmo are exactly equivalent in all legally relevant respects to the defendants in this Supreme Court case or the other one a mentioned. I am simply arguing that these exceptions to the writ of habeas corpus do exist. Whether or not they should apply to Gitmo detainees, that is a very good question. But all I am arguing for the moment is that the grand, sweeping claims of Bush critics are wrong as a matter of law, and their conclusion that the Bush administration is acting in bad faith is unsupported by the facts.
There certainly is a legal contraversy to be hashed out. But to accuse the Bush administration of being lousy with crypto-fascists does not advance the debate at all.
You're really gonna have to read it again. First, they were *not* POWs. (How can someone be a POW if they were tried for war crimes?) Second, it can't get much clearer than this: "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States."
Perhaps the nuance you're missing is the difference between "filing" the writ and being "granted" the writ. Anyone can scribble "this is a writ of habeas corpus" on a piece of paper and have a processor serve it on the Secretary of Defense or whoever. Being granted the writ means you are actually brought before a judge for a determination as to whether or not you are being held appropriately. The detainees in the case cited did not have the right to be brought before a judge. The Supreme Court ruled that lower courts *erred* when they allowed these particular detainees to be brought before them.
Well, here's what we're doing to that effect, described by John Bellinger, the top lawyer at the State Dept:
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Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because--among other things--unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.
[...]
Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don't think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, "I want to stop fighting, I want to just go back and join my community," and in fact the community will credibly commit, "We will take responsibility for this person, and make sure that he doesn't go back to fighting," then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.
[...]
Detainees who the United States does not intend to prosecute by military commission also have their detention reviewed annually by an Administrative Review Board. This Board determines whether the detainee can be released or transferred without posing a serious threat to the United States or its allies. We are aware of concerns about the indefinite nature of the conflict with al Qaida and the resulting concerns about indefinite detention. ARBs attempt to address these concerns by balancing our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary. To date, more than 200 detainees have been released or transferred pursuant to the ARB process.
http://www.opiniojuris.org/posts/chain_1168473529
Here's a bit of what the Supreme Court thinks the right of habeas corpus means:
c ourt=US&vol=339&invol=763 [findlaw.com]
The right to a writ of habeas corpus is certainly not granted to anyone detained by American forces anywhere for any reason.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
The right to a writ of habeas corpus is certainly not granted to anyone detained by American forces anywhere for any reason. Here's one such exception:
c ourt=US&vol=339&invol=763 [findlaw.com]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
The right to a writ of habeas corpus is certainly not granted to anyone detained by American forces anywhere for any reason. Here's one such exception:
c ourt=US&vol=339&invol=763
http://caselaw.lp.findlaw.com/scripts/getcase.pl?
The Supreme Court ruled, in JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), that "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States"
Here's a bit more:
Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
[...]
Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security
[...]
The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us.
I disagree with your characterization of the Geneva Conventions. You say, "the GC says only 'These people are enemy soldiers, and must be treated as soldiers, and these people are outside'". The breakdown as I understand it goes like this. The GC splits people into "combatants" and "non-combatants". "Combatants" are further subdivded into those who qualify for POW status and those who do not. If a combatant fails to qualify for POW status, they are not therefore reclassified as non-combatants, as you seem to suggest. They remain combatants. They can be held as combatants. Or, they can be charged with a crime. Or both.
It is my understanding that this area is very fuzzy, and reasonable experts fall on both sides of the argument. But, it certainly cannot be said that the Bush administration came up with a novel interpretation.
Here's what the law says about the writ of habeas corpus, for reference:
http://www.law.cornell.edu/uscode/html/uscode28/us c_sec_28_00002241----000-.html
You say "clearly", but the article actually uses a bunch of weasel words -- "some language in the new law also *suggests* ...", and "another provision in the law *seems* ...". It's not a news article, it's a commentary, and the commentator is wrong as a matter of law.
Here's what the law says, defining its jurisdiction to cover only *alien* unlawful enemy combatants:
S.3930
Military Commissions Act of 2006 (Engrossed as Agreed to or Passed by Senate)
[...]
Sec 948d. Jurisdiction of military commissions
(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant [...]
"As to our current treatment of "enemy combatant" detainess I have read a couple of articles [...] that point out that the idea of an "enemy combatant" is one that has been produced from whole cloth by this administration for the express purpose of circumventing the protections afforded by the Geneva Convention."
. shtml
I wasn't entirely sure about this point myself, until I came across this:
"In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists." "
(John Bellinger, State Department Legal Adviser)
http://www.opiniojuris.org/posts/chain_1168473529
Spies, saboteurs, and even pirates have long fallen into this other category -- enemy combatants operating contrary to the customary laws of war, and hence "unprivileged belligerents".
Let's see what the top lawyer at the State Department has to say, shall we?
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"In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime."
[...]
"And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict."
[...]
"But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield."
[...]
"the ARBs [Administrative Review Boards] balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary."
[...]
"I take Marko's larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it's important to identify this as a policy, not legal, disagreement."
[,,,]
"In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists." "
(John Bellinger, State Department Legal Adviser)
http://www.opiniojuris.org/posts/chain_1168473529
We might just have to agree to disagree on this one, but I am absolutely certain that you are wrong on this point, that POWs have all the rights of US citizens in addition to rights from the Geneva Conventions. For instance, the Geneva Conventions expressly allow a POW to be detained without charge or trial for the duration of hostilities. Hence, a POW captured by the American military overseas does not have the right to a jury trial, among other things.
That's the way we've always conducted our wars. For example: German POWs in WWII -- German POWs were generally released at the end of the war, and those who committed war crimes were subject to the Nuremberg trials. Notice carefully: the German POWs who committed no crimes were held without trial until the end of the war; we gave none of them a speedy trial or a trial by jury, or a trial of any kind -- they weren't ever even charged with a crime! And yet, we held them for years, and would have continued to hold them had the war went on longer, and for no matter how long. This was entirely in keeping with the Geneva Conventions and the US Constitution (and any other laws, treaties, obligations, or anything else that might apply).
"I propose we kill all the Gitmo detainees. If you think they shouldn't be killed, please justify your rationalle."
That's easy -- such an act is prohibited by the Geneva Conventions, article 3 I do believe.
Warfare is distinctly different from law enforcement. From that basis, the various distinctions follow, including the denial of habeas corpus rights to POWs and other enemy combatants. (I got to get to work, so I don't have time to develop this further at the moment!)
"I think you may have answered your own question there. The Geneva convention only allows for suspension for the duration of hostilities, but after that presumably there must be a trial. Now of course, when governments start waging modern wars against concepts like "terrorism" with no defined end-point then that limitation becomes meaningless, but the crafters of that document probably expected that such an Orwellian concept as perpetual war would not be invoked by a freedom-loving nation. Additionally, AFAIK habeas corpus only says that one has a right to trial, not that it must be speedy, so even when the Geneva conventions suspend it during hostilities, the fact that it is intended to be re-instated later still holds to the spirit of the writ. I'm splitting hairs here, but take it as a devil's advocate response. ;)"
Well, you're out-and-out wrong about at least one thing -- there is no "presumably there must be a trial" after the cessation of hostilities. The Geneva Conventions' presumption is that the POWs would simply be released. Soldiers who qualify for POW status are not criminals, no crime has been committed, and no trial is ever presumed or intended. (Of course, if certain detainees did commit crimes, then we should definitely put them on trial at the end of hostilities. But POWs are, by definition, *not* criminals and *not* accused of any crime.) Basically, the whole waging-war thing is a whole different ballgame from the prosecuting-criminals thing. That's why there's a whole different set of rules, and even though the rules are different, they are still just.
Now you make a good point that the battle against "terrorism" is distinctly different from conventional army-vs-army warfare. So I would say, there ought to be another set of standards that apply to a "war" on terrorism. Perhaps we should start from the Geneva Conventions and make modifications that take into consideration what you've described. Or maybe we should construct the rules some other way. This is a very good discussion to have. It is much preferred to a discussion that starts from the basis, "President Bush is infringing the 6th amendment constitutional rights of the POWs at Gitmo!", because that basis is horribly misguided on several levels.
Perhaps an historical analogy would be instructive -- in what ways is the modern "global war on terror" similar to the manner in which Jefferson dealt with the Barbary pirates? Non-state actors, belligerancy against American interests overseas -- looks like a pretty good match! I wonder how that effort was conducted -- were captured pirates given jury trials? (seriously, I wonder, because I don't know!)