Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
From Col. Morris Davis, former chief prosecutor at the military tribunals at Guantanamo Bay, quoted by Spencer Ackerman:
"I'm not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him. On the other hand, what I've seen on the national security front -- basically adopting the same Bush-Cheney policies candidate Obama was firmly against -- has been disappointing. I used to get perturbed when the 'flip-flop' accusation got thrown around, but it's hard to argue that the label doesn't fit the administration's waffling view that military commissions are bad, no they're good, no they're bad again, oh wait maybe they're good after all approach."
Ackerman says that Holder did much better in his testimony before the Senate Judiciary Committee than he had previously and that he put his Republican critics back on their heels a bit. But there's still this basic contradiction at the core of Holder's position:
[Sen. Lindsay] Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn't "reject all [civilian] courts" for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were "not feasible to transfer [and] too dangerous to prosecute," the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges.
So Holder is stuck having to argue in favor of civilian trials for some detainees both on principled grounds (it provides real due process and helps confirm we have the right person) and on practical grounds (it sends a message of fairness to the rest of the world and helps increase America's moral credibility), while simultaneously arguing in favor of indefinite detention with no trials of any kind for dozens of others. Cognitive dissonance, anyone?
And as Ackerman points out, there doesn't appear to be any coherent standards for deciding which detainees get civilian trials, which get military tribunals and which get no trial at all and just get held forever:
Holder's answer today, to the extent he gave one, was that those decisions are made on a case-by-case basis, which is an elision. And elisions just raise the cynical suspicion that the real criterion is whether there's a strong case against someone -- if there is, he'll be tried in criminal court; if not, he'll be tried according to the more lax process rules of the commissions; and if there's really no evidence to be brought in court, he'll be held indefinitely without charge.
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What's troubling to me in this situation is what happens if we do make the decision "They all get jury trials, even the known dangerous ones" and then somehow a jury decides to acquit one we *know* is dangerous.
Are we bound to let him go, consequences be damned? or have we just conducted nothing more than a show trial?
I simply don't buy flat assertions that the jury is always going to reach the right decision, I work in the court system and have done a number of jury trials. I've seen juries do some very strange things, sometimes in our favor sometimes not.
That's why although Obama's flip flops on this issue are troubling, I'm sympathetic because I'm reasonably sure there's some fact patterns behind these policy changes that are not dissimilar to what I cited above.
Posted by: Ben P | April 15, 2010 9:52 AM
So what you're saying is that we should consider all those accused of a crime, any crime, guilty until proven innocent? If we adopt a position that the government can continue to detain someone after they have been acquitted, why should this be limited to terror suspects in civilian trials? Why not all suspects in all trials. The state can hold trials, but then the ones we *know* are guilty, we can just ignore the results of their trial and hold them, heck we could even execute them.
Posted by: dogmeatib | April 15, 2010 9:59 AM
Ben P, how do you know that they're dangerous until they go on trial? Blind assertion from mostly anonymous authorities? Ours is now a banana republic with no bananas.
How about a "Too dangerous to release upon acquittal" amendment to the Constitution?
On second thought, that's more likely to be ratified than a consenting adult amendment.
Posted by: Johnny Clamboat | April 15, 2010 10:05 AM
I understand your point of view, but to a certain extent you're also just being hyperbolic when the situation doesn't merit it.
We've had a status called prisoner of war for a long long time. It's premised on the understanding that when you're involved in combat, it's not in your interests to simply release people you capture so they can go right back to the other side.
I don't think you can reasonably dispute that some (although certainly not all) of the people we're presently holding meet the definition of enemy soldiers. (I would say combatants because it's the most descriptive term, but it's also become a term of art).
We may also want to criminally try some of them as terrorists, or war criminals if you will, and I think if we do that we absolutely should be doing it with civilian trials.
But I would think it would be pretty obvious that even if there are some people we can't try as criminals, there are people we should not simply set free. I would say they are prisoners of war (and should be granted Geneva convention PoW Rights).
The fact that this *war* is ill-defines still makes this situation troubling, but you might do well to read up on the long drawn out process we used to repatriate German prisoners of war after World War II. As late as 1948 and 1949, allied nations were still holding prisoners of war. That process was also fraught with abuses that should not have occured, but the system discussed above of Habeas hearings and annual reviews is at the very least a rational one.
Posted by: Ben P | April 15, 2010 10:14 AM
I hereby declare Ben P a dangerous terrorist. As such, he is to be locked up for the rest of his life without any opportunity to defend himself. Any attempt to determine his guilt or innocence based on actua evidence is hereby declared high treason. He must be dangerous, because I said so. Silly little things like due process of law only stand in the way of defending Amurika.
Posted by: phantomreader42 | April 15, 2010 10:16 AM
once again with the silly Hyperbole, are you seriously suggesting that every single person we capture in Iraq or Afghanistan either be given a civilian trial or immediately let go?
Posted by: Ben P | April 15, 2010 10:16 AM
re: phantomreader42
I don't know why I bother trying to point out facts when it's obvious some people aren't interested.
Is it your opinion that Obama just changed his mind from a firmly stated campaign position for shits and giggles?
Posted by: Ben P | April 15, 2010 10:18 AM
Ben P wrote:
This is exactly the point. Yes, some of them are genuinely bad guys. Some are not. Unlike a traditional war, where you capture someone in uniform and know they are an enemy soldier, most of the people in Gitmo were civilians picked up on the basis of tips and (literally) bribes. So we have to be able to distinguish between the good guys and the bad guys. And trials with due process is the only reliable means of doing so. No, it's not 100% accurate; nothing could be. But the alternative you suggest would, in fact, mean we are putting on show trials.
Posted by: Ed Brayton | April 15, 2010 10:30 AM
I'm suggesting adherence to the Constitution. That would include a civilian trial. Immediate? No, speedy is the term. We should not be holding people for years.
Posted by: Johnny Clamboat | April 15, 2010 10:40 AM
I didn't say that actually.
I said I was troubled because IF a certain fact pattern occurs, Civilian trials will necessarily end up being show trials.
I realize you're presenting this in terms of an ideal outcome, but I just don't ever see the government adopting a position where they're required to release a *known* terrorist because a jury didn't find something "beyond a reasonable doubt." THAT's what I think is behind Obama's "flip-flops" on this issue. He's being presented that potential and very difficult fact pattern or something very similar to it, and trying to come up with some policy that avoids it.
Also, "due process" is a much broader term than just jury trials. I absolutely think anyone detained should have the right to petition a US Court for Habeas Corpus. I think more than that is necessary. I'm not even sure the proposed system of annual reviews goes far enough, but I'm just pointing out that I don't think jury trials for every detainee is something that will happen.
Posted by: Ben P | April 15, 2010 10:40 AM
So the constitution was violated when we took German soldiers prisoner and held them until the "Cessation of Hostilities" under the Geneva Convention? (and again as I noted earlier, in practice it took 4-5 years to sort out all the German prisoners.)
Ed argued implicitly that this war is different, I agree. The question is how different?
Posted by: Ben P | April 15, 2010 10:47 AM
To clarify my own statement earlier.
If someone is, by all appearances an enemy soldier, but was captured in circumstances where he didn't fire a shot and was not in the vicinity of anyone who did.
I suppose you could throw blanket conspiracy charges against him, but that's pretty suspect. If not that, what crime did he commit? This is exactly why the Geneva convention prohibits charging soldiers for lawful acts of war. I'd rather give a broad interpretation to the Geneva Convention and pretend Al Queda is equivalent to an enemy nation than try to cram a round peg into a square hole like that.
Posted by: Ben P | April 15, 2010 10:53 AM
It's funny when people start talking about 'prisoners of war' in this context, as if there's A) a declared war and b) an organized enemy military force and that these folks were c) captured on the battlefield.
See, you can't have it both ways. Enemy soldiers are not, by definition, terrorists. They may be, depending on their actions, guilty of war crimes. We try people for that in military courts martial.
But soldiers, to be defined as soldiers, have to meet certain criteria, like uniforms. Criteria those prisoners do not meet.
That means that under normal military usage they are, if they are 'captured on the battlefield', well, civilians. Who are not allowed to fight. When they do, the traditional penalty is to shoot them after a brief tribunal.
But when caught elsewhere, they get civilian trials, because they are acting as civilians, be it as saboteurs, agents, or terrorists.
This is one particular reason soldiers are careful to wear uniforms or markings of some kind.
"Oh, but this is a different kind of war", I hear.
No, we're just pretending it is.
The only reason this business of who gets what kind of trial is going on is because the people who took these prisoners dont have any idea who did what, when, or where, and dont want it to come out. They cant try them and find them innocent because it would look bad. They cant try them and find them guilty because they didnt bother to collect any evidence.
Sorry about the rant. This isnt that difficult. It was all worked out decades ago in Geneva.
Posted by: longstreet63 | April 15, 2010 11:04 AM
Posted by: Ben P | April 15, 2010 11:22 AM
Ben P @ 7
Other options are available:
1) He never changed his mind. He was saying crap to motivate the civilly libertarian portions of the population to vote for him.
2) He never changed his mind per se, but he's decided the shitstorm isn't worth it and pushing other agendas is more important than maintaining the ideals of our constitution and our treaty obligations it comes to applying those things scary foreigners (and US citizens who have recently interacted with scary foreigners).
3) This is all part of some incredibly complex master plan involving sleight of hand, yellow shoelaces and an ostrich. Two weeks after this David Blaine-style distraction comes to fruition, we'll realize civilian trials have already been going on and no media outlet bothered to cover them.
Do you give people the benefit of the doubt like that in your other dealings? "He seems like a good guy, he changed his mind, surely he must have a completely plausible reason so I will also adopt his new tact." What if he got a head injury in the interim?
Johnny Clamboat @ 3
Sir I am stunned by your ignorant and America-hating statement re: the US as a banana republic. Both Florida *and* Hawaii produce bananas.
Posted by: snurp | April 15, 2010 11:29 AM
Ben P wrote:
No, because they were, in fact, prisoners of war -- enemy soldiers captured during battle in uniform during a war that would have a definite ending (even if it was not known when, at some point in a regular war someone has to give up and the war ends). That is not the case here, where we have an apparently endless war with no one in a position to surrender. And where we have civilians captured on the basis of tips and bribes rather than being captured in battle. We complied with the Geneva Conventions in how we treated the German soldiers. In the case of non-uniformed saboteurs, we did in fact capture a group of Germans out of uniform who were plotting to blow up things in the US. They were not treated as regular prisoners of war and held until the end, they were tried in a military court that was established for that purpose. And the Supreme Court upheld that treatment in Ex Parte Quirin. But those tribunals had genuine due process, where the modern tribunals do not.
I agree with you that the government is not likely to release someone they are truly convinced is a terrorist. I think that is exactly what Obama is motivated by in his attempt to treat some detainees one way and others a different way. But I'm making a normative argument here that consistency and the rule of law is important and that we undermine our credibility when we argue for civilian trials for some, military tribunals for others and indefinite detention for the rest -- especially when we use the lofty rhetoric of justice in arguing for the first one, as Obama has done.
Posted by: Ed Brayton | April 15, 2010 11:36 AM
AFAIK Al Qaeda has not surrendered, so your example is not analogous to Gitmo. However, if it were, we'd still be wrong to hold them. In the German case you make up, the proper action is for the U.S. to turn the POWs over to the German government, who is now on the hook for enforcing the cease fire among their own people.
After all, that is how WE think OUR people should be treated, right? Communist Vietnam does not get to keep U.S. war soldiers indefinitely merely because of the possibility that one or more of them might choose to illegally continue fighting. Right?
Posted by: eric | April 15, 2010 11:41 AM
I'd like to point out that an acquittal is not a "get out of everything free" card. If the government has reason to suspect you of terrorist activities, they can obtain a warrant and keep you under surveillance, even after your trial. That shouldn't be too hard if they "know" you're dangerous. They might even learn something to prevent an attack.
Posted by: Taz | April 15, 2010 11:49 AM
Ben P.,
First, we don't *know* that any given one of them is dangerous. If we actually had that level of knowledge, convicting them wouldn't be too damned hard. You are assuming there is a great plausibility that we have real, indisputable, knowledge, but that it won't convince a jury. These are foreign alleged terrorists we're talking about--the danger is not reluctance to convict, but reluctance to acquit when the evidence doesn't stand up.
Second, so what if they're dangerous? Our system is supposed to place the rule of law and due process higher than that concern. It wouldn't be the first time a dangerous person was found not guilty and released to cause more harm. You think it's extra bad because the person's a "terrorist," which just means you've fallen for the rhetoric.
Heck, given the history of terrorism, that released person is more likely to blow himself up in his own car or to light his crotch on fire in a failed attempt to set of explosives than he is to do more harm than any garden-variety murderer.
Stow the rhetoric of fear, and stick to the tried-and-true procedures. They're imperfect, but they've been demonstrated to be superior to their alternative.
Posted by: James Hanley | April 15, 2010 11:56 AM
Pointing out a premise that is in play which some commenters appear to not realize has already been established. AG Holder has already made it perfectly clear that if a criminal court didn't convict detainees the government believed to be terrorists, the U.S. would not be releasing them. AG Holder answered in the general when asked specifically what would happen if KSM was not convicted in a criminal court; his answer IIRC was to point out what I stated prior and that such an outcome was no different than if they used a military court instead.
Posted by: Michael Heath | April 15, 2010 12:16 PM
I don't think that fits the facts on the ground very well. It's entirely possible for someone to have associated with terrorist groups who we are currently fighting, and suspect that they will return and continue to associate with terrorist groups who we are currently fighting, but not be able to stick them with any actual crime under US law apart from maybe some sort of broad based conspiracy to attack the United States or consorting with the enemy, kinds of charges.
Is that someone we rationally should let go? or someone that should be kept as a prisoner of war?
Considering that I'm primarily advocating PoW status under the Geneva conventions I would say that I'm doing no such thing. What you're writing is pretty much non-responsive to the argument I'm making.
I have absolutely no problem with Quirin type tribunals that Ed talked about, and I fully agree if we set up tribunals they need to have full due process. (which note, again, does not mean a jury trial in that case) But I'm inclined to agree with him that the rule of law would require us to be bound by the results of any tribunal we set up. That's inherent in the meaning of due process.
However, there's nothing in the Geneva conventions that required the US to set up secret tribunals and sentence the Quirin saboteurs as unlawful combatants. It would have been equally legal for the government just to decide they were going to be regular PoW's. I would feel quite safe betting that if the US government had any uncertainty that a tribunal wouldn't find enough evidence to convict the German agents, they wouldn't have been tried.
Posted by: Ben P | April 15, 2010 12:16 PM
It's entirely possible for someone to have associated with terrorist groups who we are currently fighting, and suspect that they will return and continue to associate with terrorist groups who we are currently fighting, but not be able to stick them with any actual crime under US law apart from maybe some sort of broad based conspiracy to attack the United States or consorting with the enemy, kinds of charges.
Is that someone we rationally should let go? or someone that should be kept as a prisoner of war?
If you classify them as a criminal, you consider the chance of recidivism when making a parole determiniation after they are tried and convicted. But you can't hold them longer than their sentence just because they might commit more crimes, and you certanly can't hold them for crime they might commit in the future if they aren't convicted (with the narrow exception of flight risks if your trial is upcoming). In the U.S. we do not punish people for things they may do in the future - maybe you took Minority Report too seriously.
If they are a soldier, you cannot keep them as a POW after the two parties have agreed to cease fighting. The U.S. does not recognize anyone else's right to keep our soldiers after hostilities have ceased, and we do not in return keep other people's soldiers after hostilities have ceased. All of these combatants are citizens of countries with which we are no longer at war. We aren't at war with the country of Afghanistan, or Iraq, or anyone else. So, if we are not going to try them for crimes or war crimes, they should be returned to their country of citizenship to be dealt with by the legitimate government of that country.
So yes, whether you think of them as criminals or military combatants, either way you cannot hold them merely because of what they might do in the future.
Posted by: eric | April 15, 2010 1:19 PM
I'd also add that if the people were being held in better conditions and generally made aware of what was necessary for their release, the situation would be far more tolerable than putting them in some hell hole/information vacuum.
Posted by: Ace of Sevens | April 15, 2010 1:51 PM
snurp:
Hawaii?!? Hold on there, I'm gonna need to see a birth certificate for those bananas. Long form only. ;)
Posted by: Johnny Clamboat | April 15, 2010 2:35 PM
What the heck does that mean, "associate with"? The relevant question is whether they have conspired to do harm. A coworker I crossed paths with a few years ago is now in prison for kidnapping and murder, but none of the people he "associated with" was arrested because none of them had committed a crime.
Association might be cause for suspicion and perhaps investigation, but you don't lock people up forever because they associate with the wrong crowd. Not unless you want to fly a fleet of 747's to Afghanistan and kidnap entire villages.
Posted by: Scott Hanley | April 15, 2010 2:47 PM
OK, how's this for responsive? Calling people POWs without any actual evidence they've waged war on you is bullcrap. You're just stretching for a way to hold people, despite a lack of enough evidence to prove anything. You're still *certain* that they must be guilty even when there's not sufficient evidence to prove it in a court of law.
You're not demonstrating anything except your own failure to recognize that labeling people is not the same as actually showing they're guilty.
In a nutshell, everyone here who's argued against you has refuted your claims thoroughly, but you just don't want to accept that sometimes bad guys go free, as the cost of making sure we don't lock up the good guys. There's nothing magical about terrorists where we suddenly get to be justified in treating people differently. And despite all your claims, I reiterate that we don't effing know they're guilty, or we would be able to convict them.
Posted by: James Hanley | April 15, 2010 4:26 PM
I'm not stretching for anything. In fact I've already agreed almost fully with what Ed responded.
You keep saying "bad guys" and "good guys" like we're talking about criminals, we're not and I would think that should be pretty clear. Ignoring for the moment people who have been turned over on bounties, what we're fundamentally talking about is people who live in other countries and who may not have even violated laws in those countries, but who are soldiers of an organization who's goal is to do something akin to making war on the United States.
For all practical purposes they control small areas of territory and they physically resist the attempts of anyone else to control that territory where possible. That makes it very difficult to distinguish them from a state in some respects.
Continuing, again, I made it abundantly clear earlier that I'm talking about people who for all practical purposes are soldiers of Al Queda or an associated organization. We do need a valid way to distinguish between those people and people who, say, were arrested by others and turned over solely for a bounty or were picked up with no real justification. But to pretend there's not at least some people we're detaining that fit that definition is wishful thinking.
Suppose a guy wants to join Al Queda, but he's not very bright and can't hit the broadside of a barn with a rifle, so they assign him to be a supply guy, or even a cook or something. Do you think they probably don't have people like that? We make a surprise raid on their compound in Afghanistan or Pakistan and capture him along with 5 "soldiers" who do carry rifles and would attack US troops.
What exactly are you going to charge the cook with? You don't have any evidence other than he was picked up in the presence of other Al Queda soldiers. In other words he was associating with Al Queda.
His he dangerous, probably not at all individually. But does he help Al Queda? Almost certainly to some extent, even though the marginal utility of having someone to carry supplies around and cook food might be pretty low.
You're demanding that we stick this guy in front of a jury of US citizens and ask them to decide if he's "a bad guy" because that's all you're going to get, that he was found in the presence of other "bad guys." What exactly is that going to accomplish? What's his defense attorney going to do? There's no "crime" he committed other than working with people whom the US is currently at war with. That's what I meant by "associating."
I'm sure soldiers in Afghanistan will be happy to learn that the war's over. They can all come home now.
I find it really curious that in what I'll assume is a good faith effort to give people the protections they deserve you're giving the Geneva conventions the narrowest possible scope they could possibly have. By your definition Germany and France were not at war after July of 1940 because the Vichy government agreed to stop fighting Germany.
It is one potential interpretation of the Geneva conventions Germany could have subsequently deemed any soldiers wearing French Uniforms terrorists, held summary tribunals and shot them on the spot. But that's also not the spirit of the Geneva conventions, and the vast majority of the commentary suggests that they're not to be interpreted so narrowly.
Getting back to what I assumed away earlier, it's also a plain fact that we've detained people who were just turned over for a bounty, or who might have been wearing the wrong watch or something equally inane. We need a valid way of separating these people from enemy "soldiers." I fully agree there's no reason to deny them due process protections in that situation, but that determination is simply not the same thing as deciding whether or not they're "criminals."
who joined an organization
Posted by: Ben P | April 16, 2010 9:13 AM
What nation does Al Qaeda belong to? And don't say Saudi Arabia, they want to depose the current royals.
Be specific. "I want to treat them according to the geneva conventions as prisoners of war".
Well, explain to me how you plan to do that.
Posted by: Rutee | April 16, 2010 9:28 AM
BenP,
To me it seems as though you're digging your hole deeper with every post. Now you make it quite clear that you want to indefinitely hold people who aren't, by your own admission, dangerous to us, just because they were cooks or bottle washers for al quaeda. That's pretty damned anti-liberal, and I doubt there's anything I could say that would persuade you of how wrong that is.
And I doubt you see just how your whole argument is based on fear and small-minded vengeance-seeking. Some of us aren't afraid to stand for tried-and-true values of due process. Some of us aren't afraid to let the cook go back home. That is, some of us don't live in fear of people who aren't dangerous, and I think it's quite sad that you do.
Posted by: James Hanley | April 16, 2010 9:43 AM
You're making all sorts of assumptions about me and what I'm arguing. It would be better if you'd stop making assumptions about what I'm arguing and respond to the argument. Based on your response I can't even be sure you considered what I said, all this talk about small minded vengeance and fear is really just a straw man.
What I'm saying isn't motivated by some sort of vague fear of what these people might do if released. You don't make an assessment of whether an individual prisoner of war is "dangerous" when you keep him as a PoW. Individually he could be half blind and have the IQ of a turnip. You keep him for the duration of the war to keep him from entering the war once again if he's released.
It's a fact that we are engaged in something that resembles a war. We have our military forces abroad engaging in violent action on behalf of our country. We're certainly not enforcing our own domestic laws or the domestic laws of another country. We're fighting a group that may not strictly meet the definition of a nation state, but in many respects is pretty close. In the course of prosecuting this conflict, we've detained people who are fighting for the other side. I also freely admit we have detained some people who in all probability were not fighting for the other side.
I've already completely admitted we need a way to separate the two, and that there is absolutely no reason hearings conducted shouldn't have full guarantees of due process. I've also fully agreed with Ed that the rule of law requires abiding by the rulings of any such determination.
You're arguing that the ONLY way to deal with this separation process is to charge every single one of these people as criminals under United States Law. What I'm arguing, and the ONLY thing I'm arguing is that this is not a proper use of the criminal justice System and neither is the criminal justice system fit to handle this sort of thing. By trying to stretch the criminal justice system to fit someone who's really done nothing more than side with a group we don't like does much more damage to the rule of law than following what's been established for roughly 70 years as an international body of laws that governs the conduct of wars.
The fact that this war is very ill defined is a separate issue and is also troubling to me. I'll point to the way you're using the word "indefinite" to describe detention. PoW status is always indefinite in the truest sense of the word because it's "for the duration" but it absolutely envisions the release of the prisoners after the war is over.
I do find it troubling that it's difficult to say when the war is over, but I think there will absolutely come a time when we decide that we will either have succeeded in Afghanistan or have not succeeded but are withdrawing anyway. It's troubling because that's a vague answer, but the answer has never been clear. We didn't just open the gates to all PoW camps on 5/8/45, in fact we were still holding german PoW's as late as 1948 and into 1949. The allied occupation of Germany formally existed until 1955.
Once we've made that determination, this justification goes away. Absent an organization and resources to prosecute any sort of effective fight, these people are essentially no longer dangerous and can be released and repatriated. I certainly don't have any need for small minded vengeance.
Posted by: Ben P | April 16, 2010 11:02 AM
Ben, I believe we have laws on the books about "aiding and abetting" terrorism, so if the government can't provide enough evidence to convict someone on even that uber-vague standard, then there's no basis for confidently asserting they're dangerous or that they "for all practical purposes are soldiers." Let 'em go. Guantanamo has most likely recruited far more terrorists than it could ever hold, and for good reason.
Well, so is any football team, if you're going to be that imprecise. There are some really good reasons for emphasizing the differences between counter-terrorism and war, not the similarities. During real wars, the status of an enemy is mostly unambiguous (everyone in the enemy country who takes up arms), and we'll all know when the war ends (people get together and sign a treaty, just to clear up any confusion about it). It's those two conditions that allow POW rules to conform to a sense of justice. Absent those conditions, rounding up and permanently imprisoning anyone you think might be dangerous is precisely as unjust as rounding up and imprisoning every acquaintance of a suspected gang member. The Constitution forbids it, and wisely so.
Posted by: Scott Hanley | April 16, 2010 11:49 AM
I'll stick to my same hypothetical.
Let's say we capture the poor dumb, half blind al-queda soldier who really did nothing more than cook for the other troops. But was captured along with other AQ soldiers in Afghanistan or Pakistan in a combat zone. He didn't have a weapon and we have nothing to prove he actually shot at US troops or did anything to help plan any attack on civilians.
You want to stick him in front of a jury, present evidence that he was captured with Al-Queda forces and therefore that he was "aiding and abetting" terrorists, ask the jury to determine based solely off that he's guilty of being a terrorist, and put him in jail in the US for what will presumably be a long time.
And you think that's more "just" than treating him as a prisoner of war (along with all the subsantive protections PoW's receive) and releasing him when the war there is over?
Posted by: Ben P | April 16, 2010 12:11 PM
Ben, that huge hole in your argument is where the word investigate is supposed to go.
Posted by: Scott Hanley | April 16, 2010 1:45 PM
Hey, Ben. Still waiting for you to specifically explain how Al Qaeda members count as soldiers under the Geneva Convention.
Posted by: Rutee | April 16, 2010 5:12 PM
No, I want to send the poor mofo back home! You're the one who wants to keep him here one way or the other. If he actually did something that makes him a danger, try him. If he didn't, just. fucking. send. him. home.
Posted by: James Hanley | April 17, 2010 3:29 PM