Politics: A new beginning

[Secret_Agent_Man]

Originally posted by Say_hello_for_me
But captured by the military on a foreign battle field while not wearing a uniform or representing an internationally recognized government? I'd hope that the military asked for a showing, like "did sgt. smith capture this guy at Tora Bora" or something as light, but objective and recordable, as that.

Ok. But to enforce even so light a standard such as that would require review of each detention by some third party -- although not necessarily the judiciary. If the review is to be perceived as independent and impartical -- it will be tough to do it in-house -- although my experience with the military justice system suggests to me that the vast majority of those involved would work very hard to do it by the book and get it right.

The administration's position is -- has been -- zero outside review by anyone outside the executive branch. I think that they may well lose on this to some extent -- the one thing you don't tell the Supreme Court in the modern era is that it has no power to even consider reviewing the actions of the Executive.

Originally posted by Say_hello_for_me
If the answer is yes, then I don't see a legal basis for an objection to skinning them alive. Except maybe some of those human rights treaties we sometimes sign that, I think, say that "all people are entitled to human rights" and not just "citizens of signatory countries are entitled to human rights while in the hands of other signatory countries or their representatives".

That may be the correct answer legally -- I don't know that law (although I suspect we signed a couple of such treaties). I am not one of those who would go so far as to say that the actions of the U.S government must satisfy constitutional muster wherever in the world they may be.

The military also has been treated somewhat differently than law enforcement in this regard. I don't remember the outcome of the case in the past few years challenging the U.S. government's seizure and prosecution of the Mexian doctor who helped keep Enrique Camarena (American federal agent (DEA?)) alive and conscious while a drug gang tortured him to death for information. As I recall, the doctor was seized extrajudicially, dumped at the border, and picked up by U.S. law enforcement under "suspicious circumstances." I think he was sentenced to life, and that the Courts ruled that the 4th Amendment don't apply in Mexico.

S_A_M

[Say_hello_for_me]

Originally posted by Secret_Agent_Man
Ok. But to enforce even so light a standard such as that would require review of each detention by some third party -- although not necessarily the judiciary. If the review is to be perceived as independent and impartical -- it will be tough to do it in-house -- although my experience with the military justice system suggests to me that the vast majority of those involved would work very hard to do it by the book and get it right.

The administration's position is -- has been -- zero outside review by anyone outside the executive branch. I think that they may well lose on this to some extent -- the one thing you don't tell the Supreme Court in the modern era is that it has no power to even consider reviewing the actions of the Executive.

In order of your sentences. Why a third party? While I'd personally prefer it, especially with the involvement of Congress by, for example, appointment of overseers who are not activist judges or anything similar, I'd also just as soon trust it to the military unless we already have a specific prohibition against it (or against the punishments you noted).

Independent and impartial? OK, I don't disagree that I'd like to see some semblance of it, though I really would not want to require any review that might require anything even close to the protections we offer domestic criminals. Seriously, maybe a request for records of Sgt. Smith and the processing of the prisoner -- just to make sure he didn't appear from nowhere. Maybe an interview of the prisoner to make sure he doesn't have a Texas drawl (and he doesn't claim to be a poor democrat with black gold in his back yard that Bush wants). But if a standard is not already required (probable cause etc.), there is no way it should be created.

Ugh, I take it back because I'm thinking about it as I write. The standard should be "no substantial evidence that the weight of evidence against the prisoner is false"... or something like that. Just not probable cause, beyond a reasonable doubt or anything approaching our domestic protections.

While I appreciate your position on how the Supreme Court feels, I honestly believe they should limit their involvement to determining what oversight they (or anyone) already has, not to creating such oversight out of the air. If a reason has not been provided in the last 200 years, I'd rather not see them or anyone make a reason up now.

But, just for the sake of our nation, I'd still prefer to be viewed as at least civil. Something created by congress, like the national security courts, except without judges, and without the strenous legal standards such as those noted above, would be ok.

More than anything, I'd rather just make sure there is little room for a future president to start using this sort of thing to affirmatively harm americans or those protected by treaties. In fact, if someone went to the supreme court and said "we believe prisoner X is at Guantanamo and he is an American citizen, and he was --taken-- on American soil", I'd imagine it would be hard to restrain the judiciary from asserting oversight over an investigation, and properly so. How in the world would we argue that we can just take the military's word that someone is not an American citizen taken on American soil?

Nope, no way, no how. There is always a way to get someone else involved and I'd actually be appalled if the White House asserted that nobody has the right to investigate whether they are holding an American citizen who was taken from American soil.

I'm actually proud of myself now for coming up with such a hypothetical way to envision Judicial oversight. Thank me later comrade.

Originally posted by Secret_Agent_Man
That may be the correct answer legally -- I don't know that law (although I suspect we signed a couple of such treaties). I am not one of those who would go so far as to say that the actions of the U.S government must satisfy constitutional muster wherever in the world they may be.

The military also has been treated somewhat differently than law enforcement in this regard. I don't remember the outcome of the case in the past few years challenging the U.S. government's seizure and prosecution of the Mexian doctor who helped keep Enrique Camarena (American federal agent (DEA?)) alive and conscious while a drug gang tortured him to death for information. As I recall, the doctor was seized extrajudicially, dumped at the border, and picked up by U.S. law enforcement under "suspicious circumstances." I think he was sentenced to life, and that the Courts ruled that the 4th Amendment don't apply in Mexico.

S_A_M

I seem to recall the same as you for the Camarena matter... and no qualms here.

I guess at some level I just think that American citizens are entitled to some level of protection from our government/executive (and help from our government in equal measure for everyone similarly situated). While I wouldn't argue that Taliban Johnny deserves the same protections as Padilla, I would like to think that there is some de minimis protection for him, even from Afghanistan to Guantanamo (not that he was at Gitmo), as compared to other non-american citizens detained overseas.

Come to think of it, that kid got a better deal than he deserved what with the circumstances of his capture. As long as it was established by some not-too-stringent-standard that he a.) was there (Afghanistan) and b.) openly and violently opposing the execution of American foreign policy in a capacity as a terrorist or soldier of a foreign power (whether recognized or not)...

the courts should be able to turn him back to the military.

While he might be entitled to some protections as a POW (that applies to all of them I guess, but I'm not sure and I'm not sure why), I'd imagine he does not deserve the same level of protection as, for example, a state death penalty prisoner.

Christ, now I'm going to have to look into why they treated that (insert any level of insult here) as kindly as they did.

Hello

[Tyrone Slothrop]

Originally posted by Penske_Account
Sheee-yit! If I had that compensation scheme I would have been able to retire off of my infirm socks.

If you only drink Washington State wine, retirement isn't that expensive.

[bilmore]

Originally posted by Secret_Agent_Man
Of course it was an extreme example, Bilmore (the Gitmo thing)That's what they call a hypothetical question, Bilmore, designed to spark discussion and take the conversation on to another point.

It was the kind of hypothetical question, in tone and content, that exhibits, to me at least, that you draw no distinctions between a valid issue concerning wartime national security needs and inanity. Flay them alive? Boil them in oil? (Presumably the oil we steal from Iraq, right?) Yeah, this question requires some careful constitutional interpretation. I'm trying to talk about a balanced treatment of national security needs and individual liberties, and you show your disdain for anything that deviates from your view of correct with flaying.

You also didn't answer the question, because you didn't like where it would lead.

True. The realization that my view of you as rational was misplaced would be painful. I dislike pain.

As to the rest, how could you possibly take anything that I said to mean that "the Bushies took 9/11 too seriously"? That's both stupid and offensive.

Wow, two insults with one line. Too bad it wasn't aimed at what you posted. (That's why I said "La la land, guys.) Someone else's post, earlier than yours, was the motivator for that. Sorry if I wasn't clear.

What I said was that the particular policy they adopted with regard to handling enemy combatants was, in my view, incorrect (particularly with regard to U.S, citizens)-- AND that it was neither an inevitable nor undisputably correct policy. You twisted tose statements.

Funny, that's exactly what I said. As with Padilla, I imagine there will be a ruling concerning the Guantanamites soon, releasing them from the complete incommunicado hold. That will be a good result, happening as it will many months later, and allowing for that needed and rational wartime heightened security. As things stand, I cannot get excited that they were not Mirandized as the smart bombs were coming down on their heads, nor that they have been held by the soldiers they were trying to kill in a war for a bit without bail hearings, PD's, or transgender operations paid for by the state. They should have killed and raped over here if they wanted those things.

I read your well-reasoned comments, and understood them -- but disagreed for reasons that I also attempted to explain. You said its all line-drawing, and I said that I'd draw the line differently. That makes me unworthy of further discussion?

When you ask the flaying question, the implication to me is that you consider that outrageous, but that you don't think that I would. In a vacuum, I doubt I would arrive at that thought. On this board, lately, it's a natural. That makes it unworthy of further discussion for me. YMMV.

Explain how giving Padilla or Hamdi access to lawyers with security clearances "slits our [collective] wrists". You can't.

What slits our wrists is the overall approach of some who hold that, even in wartime, we must allow people who are held for possibly warring actions against us to communicate with the other side at will, that there is no national security need that can ever trump Miranda, and that we should be extending the whole line of criminal law rights to enemy combatants. This obviously deals mostly with the foreign captures. For Padilla, again, there were legitimate national security needs for an incommunicado hold. The process was used to question this hold, the government was unable to muster sufficient proof to support it, and it was ended. But, expecting the hold to never be placed and risk what could have been a very bad result simply because someone disagreed with the assesment of the need is unrealistic, and eventually slits our wrists.

In fighting an enemy such as this one, we run the risk of abrogating and compromising key democratic principles that many of us hold dear -- and thus substantially changing the nature of America. For example, I rather like our First Amendment and I don't want to become Great Britain. We need to watch out for that -- and I also think that the tremendous pressure from all the liberal groups many conservatives decry -- and the efforts of attorneys largely fighting these issues pro bono -- constitute a critically important check to counterbalance the pressures from the other side (including the pressures of world events and the need to respond thereto).

Strangely enough, I suspect that I hold them to be dearer than do many of you. I think you are more wed to the idea of the principles, in some meld with "let's all of us play nice together", than to the principles themselves. You are willing to let the system that originated and grew and fostered these principles to be crippled by selective uncompromising adherence to them. (Yes, the choice of those words is purposeful.) "Suicide pact", remember? (Slitting of wrists is a common form of suicide, in case you missed the reference.)

You dismissed it all far too readily Bilmore --- makes me think that you have nothing to say that you haven't said already. That's fine, but just say so. There's no need to be a bitch.

I have nothing to say to someone who reacts to what I wrote earlier by asking me if I would approve flaying the Guantanamites alive, no.

[Secret_Agent_Man]

Originally posted by bilmore
It was the kind of hypothetical question, in tone and content, that exhibits, to me at least, that you draw no distinctions between a valid issue concerning wartime national security needs and inanity. Flay them alive? Boil them in oil? (Presumably the oil we steal from Iraq, right?)

Perhaps you are too far removed from law school, or merely think that abstract discussion is inane. In any event, you completely misunderstood both the tone and intent of the question, and jumped to an incorrect conclusion about my personal views.

Originally posted by bilmore
Yeah, this question requires some careful constitutional interpretation. I'm trying to talk about a balanced treatment of national security needs and individual liberties, and you show your disdain for anything that deviates from your view of correct with flaying.

Actually, I don't think that the question is easy to answer -- as a matter of interpretation of U.S. constitution/law. I think that some of the international treaties we've signed probably come closest to addressing the issue in a general way. BTW -- I'm trying to have precisely the same discussion, but the other guy took horrible offense at a question I asked, which slows the process.

Originally posted by bilmore
Wow, two insults with one line. Too bad it wasn't aimed at what you posted. (That's why I said "La la land, guys.) Someone else's post, earlier than yours, was the motivator for that. Sorry if I wasn't clear.

Good. I don't think that I could have known that, given that you were responding to my post-- with some vituperation. {I like that word -- conjures up images of a hissing snake.}

Originally posted by bilmore
Funny, that's exactly what I said. As with Padilla, I imagine there will be a ruling concerning the Guantanamites soon, releasing them from the complete incommunicado hold. That will be a good result, happening as it will many months later, and allowing for that needed and rational wartime heightened security.

I don't think that's exactly what you said -- because I think/said that they never should have adopted the polict wrt U.S. citizens arrested on U.S. soil. We couldn't agree completely and still be so pissed at each other. The prisoners at Guantanamo are legitimately in a different category. (Although I still think that there should have been some basic way for them to challenge the grounds for their detention from the start. That would have taken some time and effort, but could have averted some real injustices in some individual cases.)

Originally posted by bilmore
As things stand, I cannot get excited that they were not Mirandized as the smart bombs were coming down on their heads, nor that they have been held by the soldiers they were trying to kill in a war for a bit without bail hearings, PD's, or transgender operations paid for by the state. They should have killed and raped over here if they wanted those things.

I wasn't aware that he Gitmo prisoners were a bunch of rapists -- or that there was anything either illegal or immoral about Taliban tropps trying to kill us once we invaded. Anyway -- now you're the one taking things to extremes. All I was trying to get at was the question of whether or not there could be any sort of judicial review of the Gitmo detentions, and perhaps whether or not the Taliban prisoners (not Al Qaeda) were entitled to POW status under the Geneva Conventions. (That last bit might have been dangerous for us to do.)

Originally posted by bilmore
When you ask the flaying question, the implication to me is that you consider that outrageous, but that you don't think that I would. In a vacuum, I doubt I would arrive at that thought. On this board, lately, it's a natural. That makes it unworthy of further discussion for me. YMMV.

Actually, I would consider the conduct outrageous, but am not sure about the possibility of any legal review EXCEPT through the military justice system. The UCMJ covers the actions of all military personnel anywhere in the world -- and it prohibits such stuff.

I was hoping you would (and thinking you might) say -- "NO , they're not allowed to do that" -- because that would have taken us right into a discussion where we'd be almost forced to acknowledge the need for/right to some sort of judicial oversight of the detentions. Then the question is just: "How much oversight?"

OTOH -- you could have said -- as one poster did -- "No, I don't think there are any _legal_ restrictions on that, unless we signed some treaties. That is also an answer that dosn't presume that you think that they _should_ treat the prisoners that way.

Originally posted by bilmore
What slits our wrists is the overall approach of some who hold that, even in wartime, we must allow people who are held for possibly warring actions against us to communicate with the other side at will, that there is no national security need that can ever trump Miranda, and that we should be extending the whole line of criminal law rights to enemy combatants. This obviously deals mostly with the foreign captures.

Well, you know, I never said that, but if we're not giving them Geneva convention rights -- the legitimate question does arise as to what rights should they have, if any? In my view it is rather obvious that the rights of criminals under the U.S.Constitution arises only as to those who commit crimes on U.S. soil or against U.S. property overseas (and who are in the criminal justice system). That leaves out most of the Gitmo prisoners, although I guess that begs the second part of the question.

By giving them the ability "to communicate with the other side at will" do you mean the right to send letters home through the Red Cross/Red Crescent as permitted under Geneva? If so, I think that the U.S. can review and control the flow of mail, and I don't see why we couldn't allow that now. We did it in WWII -- when we were in at least as much national danger. {If you mean -- "giving them access to attorneys", I disagree that this is the result -- see below.}

Originally posted by bilmore
For Padilla, again, there were legitimate national security needs for an incommunicado hold. The process was used to question this hold, the government was unable to muster sufficient proof to support it, and it was ended.

Maybe so, maybe not. We may never know. As I recall, the government wouldn't provide much detail about the proofs and the National Security needs -- and his detention was not overturned on the substance. The Second Circuit kicked it on the grounds that the President does NOT have the power to order such detentions w/o some kind of Congressional authorization. The judges in that majority were 1 each Clinton/Bush appointees.

But the biggest beef I have with the idea that the policy was ok and to be expected for a limited time is that there is no indication that the administration wants to have any such limit on it. They're not saying (as you kind of are) -- "OK, we needed this for a while, but we're done now. " They're all over it.

Originally posted by bilmore
But, expecting the hold to never be placed and risk what could have been a very bad result simply because someone disagreed with the assesment of the need is unrealistic, and eventually slits our wrists.

So, what you're saying is that it is unrealistic to expect to strike the balance any differently than the administration did? I disagree.

I don't think it is unrealistic to expect that such a prisoner be given access to a U.S. attorney with a Top Secret security clearance -- for the purpose of challenging the basis for his detention. Such attorneys exist (often former military). They tend to practice a lot in espionage cases, etc. (b/c of their special qualifications), and are vetted at least as thoroughly as any current government employee with access to the information. It is "unrealistic" in my view to assume that such counsel would not abide by the restrictions on the use and transmission of our classified info. (or on communicating with enemies of the U.S.).

Originally posted by bilmore
Strangely enough, I suspect that I hold them to be dearer than do many of you. I think you are more wed to the idea of the principles, in some meld with "let's all of us play nice together", than to the principles themselves.

I have no idea who this "you" is that you lump me in with. I also don't really understand what you're saying. Principles are ideas -- by definition -- hopefully seen in action. If you're saying that you must sometimes depart from high ideals and strict adherence to principle when you're in a fight for your life (in order to preseve the continued existence of the conditions which permit such principles to exist) - I think that's fairly noncontroversial. However, you have to be really careful of how/when you do so, lest you "destroy the village to save it."

Originally posted by bilmore
You are willing to let the system that originated and grew and fostered these principles to be crippled by selective uncompromising adherence to them. (Yes, the choice of those words is purposeful.) "Suicide pact", remember? (Slitting of wrists is a common form of suicide, in case you missed the reference.)

Oh, Baloney! Nothing that I've suggested would do that.

Originally posted by bilmore
I have nothing to say to someone who reacts to what I wrote earlier by asking me if I would approve flaying the Guantanamites alive, no.

First -- that was absolutely NOT the question that I asked. I asked if there were legal limits on what could be done to them. Second, as I've said you apparently completely misundestood why I asked the question.

I'm not entirely sure whether you should drink much more -- or much less -- when posting late at night.

S_A_M

[edite -- typos]

[Atticus Grinch]

Originally posted by bilmore
It was the kind of hypothetical question, in tone and content, that exhibits, to me at least, that you draw no distinctions between a valid issue concerning wartime national security needs and inanity.

Don't be such a crybaby. His point stands, notwithstanding your deflection. Besides, you were willing to justify the Gitmo detentions even when the Administration admitted that some number of the detained were actually factually innocent kidnap victims, so you're suddenly insulted when we ask what's to stop them from torturing the prisoners?

If the executive branch has exclusive authority to do what it does at Gitmo, and no other branch can oversee it, are we relying solely on the basic humanity of the current officeholders? What's the source of any standard for their behavior, if not the Constitution, the very document that created their offices?

And can someone explain why allowing ununiformed POWs access to counsel or diplomatic channels after the wars in Afghanistan and Iraq are over by presidential pronouncement is more of a danger to national security than giving a full-blown federal trial to Zacharias Moussaui (sp)?

[bilmore]

Originally posted by Secret_Agent_Man
I'm not entirely sure whether you should drink much more -- or much less -- when posting late at night.

Running out the door, but I will say this:

There are more drunk day posts than night posts. What you just responded to was a sober post.

Scarey, huh?

[Secret_Agent_Man]

Originally posted by bilmore
Running out the door, but I will say this:

There are more drunk day posts than night posts. What you just responded to was a sober post.

Scarey, huh?

FAs to the first point, that's probably just as well.

second point: Nope -- the last one was quite coherent. Its the one before it that I thought might have been alcohol induced.

Anyway. I'll be out for a while.

Happy Holidays to all! (even Hank.)

S_A_M

[sgtclub]

http://news.bbc.co.uk/2/hi/middle_east/3341435.stm

[pretermitted_child]

Now you, too, can be the subject of a right-wing rant using this handy-dandy robotic self-blogger.

Just enter in a name and press the "Detect Liberal Media Bias" button.

I have my very own blog entry entitled "Fellowship of the adulterers":
Pretermitted Child's class hatred was execrable. It was bleating. It was hollow. But I understate.

Get yours today!

[bilmore]

Originally posted by pretermitted_child
Now you, too, can be the subject of a right-wing rant using this handy-dandy robotic self-blogger.

Just enter in a name and press the "Detect Liberal Media Bias" button.

I have my very own blog entry entitled "Fellowship of the adulterers":
Pretermitted Child's class hatred was execrable. It was bleating. It was hollow. But I understate.

Get yours today!

I tried it! I got this:

"Now you, too, can be the subject of a right-wing rant using this handy-dandy robotic self-blogger.

Just enter in a name and press the "Detect Liberal Media Bias" button.

I have my very own blog entry entitled "Fellowship of the adulterers":
Pretermitted Child's class hatred was execrable. It was bleating. It was hollow. But I understate.

Get yours today!

Figures. I got the lefty one.

[pretermitted_child]

Originally posted by bilmore
Figures. I got the lefty one.

*gasp* Are you calling me a liberal?

p(libertarian)c

[Tyrone Slothrop]

I couldn't figure out what either of y'all were talking about until I went here, yo.

[Hank Chinaski]

Originally posted by Tyrone_Slothrop
I couldn't figure out what either of y'all were talking about until I went here, yo.

I didn't really understand any of it until i went to www.ratemypoo.com SPREE- the name's descriptive

[bilmore]

Originally posted by Hank Chinaski
I didn't really understand any of it until i went to www.ratemypoo.com SPREE- the name's descriptive

I still don't understand any of you, so I just surfed porn.