The future of war: battles of the lawyers
Great minds think alike. The much maligned John Yoo echoed my thoughts exactly on the recent Supreme Court decision:
In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.How the hell can we fight wars in the future this way? The 60's band "Creedence Clearwater Revival" once sang: "I see a bad moon rising..."
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Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
Glenn Greenwald vehemently opposes Yoo's article, which alone is enough reason to take Yoo even more seriously. Conveniently, he totally ignores the passage above and the implications for the future. He also, hilariously, mentions the "innocent" Khaled El-Masri or Maher Arar to boost his case (never mind that neither of them were sent to Guantanamo or are being held by the US so their cases don't apply), and lamely tries to claim:
Many were taken from their homes. Others were just snatched off the street while engaged in the most mundane activities. Still others were abducted while in airports or at work.Despite his attempt at making it sound like these men were simply kidnapped in white-picket-fence lands while doing charity work for homeless orphans, none of them were captured in the United States, or simply "snatched off the street" for no reason. All of them were captured either during fighting in Afghanistan or traveling to/from the country when their names were on a terror watch list. He also totally ignores people like Saleh Ali Al Ajmi who were released only to conduct terrorist attacks later.
Now, one point on which I agree is that there should be a vetting process and that detainees should know how long they are going to be detained. But there is such a process, and as far as the length of detention goes, it's a little difficult to figure out when lawsuits are filed on an almost daily basis to have the Gitmo detainees released immediately!
But at least Greenwald has an argument; Andrew Sullivan is far more lame - he resorts to the race card! I am not joking:
Defending suspected terrorists' human rights isn't popular - especially when those suspects are foreign, have brown skin and speak a different languageHow many of these "brown skin" guys have you invited to live in your home, Andrew?
George Will, in a more thoughtful column, defends the decision, albeit rather weakly, but he still ignores the dangerous comparisons to previous wars and the problems this poses in the future.
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3 comments:
Hello John,
I don't get what you are afraid of. Do you really think that the US can't take prisoners during a war/conflict at all in the future for fear that the US Government could be sued? And what exactly is wrong with having trial procedures or applying the constitution to the prisoners that you take? I find it rather selective to argue that since these enemy combattants are held outside of US soil the constitution does not apply. What kind of nation do you want the US to be - and how far would the next step be to deny some unfavourable US citizens the rights of the Constitution? 3 strikes out and your literally outlawed?
oh and here on the Nuremberg programm:
Since the accused Germans were convicted by purely American courts, they were eventually able to benefit from US parole and clemency programms in the late 1940s and earl 50s. In addition, many defendants used the opportunity to challenge their convictions and sentences before courts in the US.
In the 2nd half of the 1940s the US judiciary confronted the issue involving convicted war criminals:
Whether American civil courts had the authority to accept petitions for writs of habeas corpus on behalf of enemy aliens sentenced by military tribunals operating under an international charter (none of the German war criminals succeeded in having a civilian court reverse the verdict of a military tribunal)
The first case which reached the US Supreme Court dealing with the issue of jurisdiction over enemy aliens convicted by US military tribunals occured in June 1942. That month, the US authorities captured 8 German soldiers who had come to the US as saboteurs. A military court tried these individuals on charges that they violated the laws of war. During the ensuing trial 7 defendants appealed to the US Supreme Court for writs of habas corpus which the court denied because military courts were outside the meaning of the Constitution. Consequently, the constitutional protection for defendants before civil courts did not apply to the accused before military tribunals (Chief Justice Harlan F Stone).
So you see, John, this problem is kinda old and back then they didn't get what they wanted so I wouldn't really worry that every Al Quaida memeber you capture is gonna lawyer up...
And one of the Justices said sth that I sent you in an emails some time ago, namely that the Constitution is a great living document because it embodies the whole philosophy of human rights and these immutable rights belong not only to the members of those nations who excell on the battlefield and democratic values but to every person in the world.
That means also to those that you capture and imprison - the constitution probably wouldnt have been written under John Ashcroft and the like though... thank god it's been around for a good long while.
Ruthie-
What I'm afraid of is our courts being overwhelmed the next time we have a major conflict, and the war fought in the courts instead of the battlefield. This has already been the most litigated war in US history, and it looks like it's never going to end. Nürnburg was a special military trial - Hermann Göring and the rest were not allowed to file appeal after appeal in US courts, which could have taken many, many years. The other incidents you mentioned, like the German sabateurs, were few and far-between. But under this ruling, every single German soldier taken prisoner by the allies would have had the right to access to the courts.
If you don't belive this is a problem, this article is a good start.
You might also want to check out this article as well.
The "Nürenberg Programm" is not the International Military Tribunal - io words the people prosecuted there were eg IG Farben, doctors, the leaders of the Einsatzgruppen (Killsquads that murdered 100 000s of people in the east) etc. They were prosecuted after the IMT.
And no appeal is unconstitutional - one reason why alot of American politicians and also the chief US prosecuter during Nurenberg justice Jackson had a problem with that.
I can understand your concern on one level - but it is a good thing to litigate. That was precisely one of the reasons the United States wanted the trials at Nuremberg because even Hitlers horror cabinet had the right to a trial and also to let the Germans see that justice can be served in a civilized way. Others just opted to hunt them down and shoot at sight - a popular notion in 1945.
It is a sort of twisted reality that right about now you want the exact opposite thing of what I admire about the US' decision in 1945.
Maybe it would be wiser to debate how a PoW status for asymetrical wars could be developed instead of dissing the Supreme Courts decision. They surely didn't decide over a cup of coffee but thought long and hard about the issues at hand. And you need laws and regulations - and rights for the prisoners. Even the German PoW's held in camps in the US during the war had rights - isn't that why the US signed the Genfer Konvention? Admittedly terrorists probably could care less about that but the point is that one shouldn't lower themselves to their level and be just like them.
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