The True Heroes of the Hamdan Case

One of the most fascinating aspects of the Hamdan case was that it was argued not by a prominent legal scholar or law professor, nor by a private defense attorney, but by a military lawyer from the JAG office, Lt. Cmdr. Charles Swift. Think about the position this put him in as an officer, taking a public stand against the policy of the Commander in Chief and against the Pentagon. And he didn't just do it because he believed that all defendants deserve legal representation; he did it because he truly believes that if we do not remain consistent in applying the rule of law, we will have lost ourselves under the guise of saving ourselves. William Arken writes on the Washington Post blog:

"We can't be scared out of who we are."

That statement by Lt. Cmdr. Charles Swift, the military appointed defense attorney for Salim Ahmed Hamdan, is the real victory to build upon in the aftermath of the Supreme Court decision rejecting President Bush's handling of detainees.

Speaking to reporters, Swift said the ruling marked a "high water point" in American history. "It's a return to our fundamental values."

Among those values, I assume Swift meant, is an unwillingness to let terrorists -- or weapons of mass destruction for that matter -- so frighten us that we suspend our principles and laws.

To add to the story, according to Arkin and many others, the case was actually reminiscent of the movie A Few Good Men, where the military assigns an attorney to defend a client on the assumption that he would just plea bargain it away and it would never see a courtroom and thus avoid the harsh glare of the world's attention. In fact, Swift was ordered to plea bargain the case:

In July, 2003, Hamdan was to be one of the first to face trial by military commission. In November, 2003, Lt. Cmdr. Swift, a Navy judge advocate general, was assigned as Hamdan's military appointed attorney. A superior officer ordered Swift to secure a plea bargain. But Swift instead decided to argue that Hamdan should be accorded the rights and protections of the Geneva Convention and that the military commissions at Guantanamo were themselves invalid.

According to reporting in The Los Angeles Times, Swift was fearful of the dangerous precedent that could be set by denying international standards of justice even to terrorists.

"I feel like we all won, that the rule of law won, and that is essentially what we are all about," Swift told the Times.

I think he's right. Too many people look at the detainees at Gitmo and don't really care. After all, they're all terrorists, right? Almost certainly not. In a battlefield situation, there is no time for investigation. Soldiers grab and arrest anyone in sight, regardless of whether they were a combatant or whether they were just a poppy farmer caught on the wrong side of town. It is almost inconceivable that we do not have many innocent people imprisoned at Gitmo, interrogating them for information they simply don't have.

Lt. Cmdr. Swift was not alone. Mike Feneger, a retired Army colonel, tells the full story on an ACLU blog. It seems there were several JAG attorneys who objected and took a stand for the rule of law:

However, among those who oppose the President's claim of unchecked authority, is a group of military lawyers - regular officers who have risked their careers to defend unpopular clients and preserve the rule of law.

Last summer in pre-Katrina New Orleans, I was honored to participate in a ceremony honoring five of these military lawyers with the ACLU's 2005 Medal of Liberty. The five had been detailed, by sheer luck of the draw, to defend Guantanamo detainees before the Military Commissions President Bush created to try them for war crimes. One was Lieutenant Commander Charles Swift, Hamdan's attorney who charged that the commissions had "an Alice in Wonderland" quality. The JAG lawyers could have taken their distasteful assignment and done just enough to slip by, but they didn't. They had sworn to support and defend the Constitution of the United States against all enemies - foreign and domestic. They took their oath seriously.

Working at night and in civilian clothes, they prepared an amicus brief to the Supreme Court challenging "the attempt by the Executive to oust Article III courts of jurisdiction over the military prosecution of individuals whom the President deems 'enemy combatants.'" They argued:

The President here asserts the power to create a legal black hole, where a simulacrum of Article III justice is dispensed but justice in fact depends on the mercy of the Executive. Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency, or even the constitutionality of the military tribunals... (Westlaw 2004 WL 96765)

Indeed, the detention facility was located at Guantanamo precisely to evade review by Article III courts.

In Congressional testimony, Commander Swift argued that, by running roughshod over the UCMJ:

"...we have lost sight of our fundamental values to the point Mr. Hamdan faces judgment for allegedly violating the law of war in a tribunal that fails to live up to the standards of justice require by the same law.

Initially, Commander Swift was detailed to represent Hamdan for the limited purpose of negotiating a guilty plea to an unspecified offense; Hamdan's access to counsel was "conditioned on his willingness to negotiate such a plea." Swift fought for his client.

Interestingly, the JAG defense lawyers were not alone in attacking the commissions. Three military prosecutors assigned to the Office of Military Commissions also attacked the fairness of the military commissions. In internal emails they complained that their boss had admitted the commissions were rigged to improve the odds of conviction.

One prosecutor alleged being told that members of the tribunals would be hand picked to ensure convictions and that exculpatory evidence for the defense would only be found in CIA documents that were being withheld for security reasons. They were concerned about the admissibility of evidence obtained through torture. Major Robert Preston wrote: "I lie awake worrying about this every night... writing a motion saying that the process will be full and fair when you don't really believe it will be is kind of hard -- particularly when you want to call yourself an officer and a lawyer."

What the Supreme Court ruled last week, in part, was that the Geneva Conventions do apply here. One of the demands made by those conventions is that if you are going to try foreign combatants by military tribunal, those tribunals cannot be kangaroo courts - you must afford the accused essentially the same rights you would afford your own military personnel if they were on trial. And while too many conservatives are blathering on about how Al Qaeda didn't sign the Geneva conventions, so why should we extend them any rights at all, they are completely missing the point of such protections.

Why do we provide due process for the accused on trial? Why do we allow them to confront the witnesses against them, to view and challenge the evidence against them, to have competent counsel? Because these protections make it much more likely that the truth will come out in a trial. In a situation where we know that some of those detained must be innocent, it is only those due process protections that provide any opportunity to have a real truth-seeking trial.

The job of the courts is to determine whether the accused is guilty of the crime or not; in short, their job is to discover the truth. That is impossible to do without allowing the defense access to the evidence against them, without giving them the opportunity to cross examine witnesses to vet their testimony, and so forth. Those who seek to do away with such protections are essentially saying, "We don't care what the truth is. They were in Afghanistan when we went in there, that's close enough." But that's not close enough, not by a long shot. If they are guilty, then by all means let's marshall the evidence for their guilt and convict them. If they are not, then under no circumstances do we have any legitimate authority to continue to detain them.

This society likes to call its soldiers heroes, and for the dangerous job they do for little pay, I'm not about to argue with that designation. But if you're looking for heroes, look no further than these JAG corps officers who took a stand that ends any chance of career advancement for any of them. They took a stand for the rule of law and for the integrity of the courts as a truth-seeking institution. They took an oath to preserve and protect the Constitution; unlike our President, they took that oath seriously.

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Cheers for Mr Swift and the other officers! This is America which I have learned to admire, this is what can make it the true beacon of democracy and freedom.

BTW: And while too many conservatives are blathering on about how Al Qaeda didn't sign the Geneva conventions, so why should we extend them any rights at all

Those conservatives are ignorant and did not bother to read the conventions. They say clearly that in a conflict between two powers in which only one of them signed the conventions, the conventions still apply as long as the other side is honoring them.

By Roman Werpachowski (not verified) on 07 Jul 2006 #permalink

Don't be too sure these officers have hurt their chances for promotion. As an ex-JAG officer myself, I can say that most military commanders have a somewhat conflicted but still respectful attitude toward those who are assigned to protect the rights of servive men and women.

They will react badly if they feel they are being tricked or taken advantage of but if a JAG takes a principled stand on his/her client based on the law, as surely seems to be the case here, they will, for the most part, accept that even if it inconveniences them. Don't forget that, especially in combat zones, non-JAG officers often act as defense counsel in minor cases. Or at least they used to back in the day when I was in the Army at the tail end of the Vietnam War.

Also, the promotion system for JAG officers is mostly controled by other JAG officers.

Oh, I forgot . . . that doesn't mean I don't think they were heros. They could have taken the easy way and mailed it in. Swift, in particular, makes me proud to be a lawyer.

When I saw the video clip of Swift speaking on the steps of the Supreme Court after the decision, his words made the hair on the back of my neck stand up for what he and the decision represented about the best of American jurisprudence and government. He and his efforts restored my faith that in America wise and good decisions can, indeed, happen, despite the best efforts of the administration and its sycophantic congress to forestall them. It made me proud to be an American for the first time in several years.

Those conservatives are ignorant and did not bother to read the conventions. They say clearly that in a conflict between two powers in which only one of them signed the conventions, the conventions still apply as long as the other side is honoring them.

When has Al Qaeda ever deigned to notice the Geneva conventions (let alone, "honored" them)? For starters, they would have to wear uniforms and to avoid targeting civilians. Then they could try not beheading prisoners they capture.

By Dave Fafarman (not verified) on 08 Jul 2006 #permalink

I wonder if anyone is considering the Nobel Peace Prize nomination for Swift? The nomination process is fixed, but maybe someone on the committee is impressed as well.

I'd also suggest adding Alberto Mora to the list of stand-up guys, although he already got a Kennedy Profile in Courage Award.

Not a bad guy for a Republican.

Dave Fafarman wrote:

When has Al Qaeda ever deigned to notice the Geneva conventions (let alone, "honored" them)? For starters, they would have to wear uniforms and to avoid targeting civilians. Then they could try not beheading prisoners they capture.

I think this is an irrelevant argument. It's identical to the argument "why should we follow the law when murderers don't?" The reason, of course, is because they haven't been proven to be murderers yet. We afford due process rights because it is an indispensible aid in finding the truth in court, without which the courts would simply be star chamber proceedings and we would have no way of being even reasonably certain that justice was done and the truth won out. As I explained earlier, it's almost inconceivable that we don't have some innocent people locked up at Gitmo, people who aren't in Al Qaeda and were just innocent people in the wrong place at the wrong time. A trial will help weed out the guilty from the innocent, but only if that trial is conducted with due process protections in place.

BTW: And while too many conservatives are blathering on about how Al Qaeda didn't sign the Geneva conventions, so why should we extend them any rights at all

Those conservatives are ignorant and did not bother to read the conventions. They say clearly that in a conflict between two powers in which only one of them signed the conventions, the conventions still apply as long as the other side is honoring them.

When has Al Qaeda ever deigned to notice the Geneva conventions (let alone, "honored" them)? For starters, they would have to wear uniforms and to avoid targeting civilians. Then they could try not beheading prisoners they capture.

It's a different issue: the claim that Geneva conventions are binding only if both sides of the conflict were signatories to them is false regardless of whether Al-Qaeda honors the conventions or not.

Even if we say that Al-Qaeda broken the "laws and customs of war" so much that it is no longer protected by the Geneva convention, there is the Article 5:

Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. \

So you can't just strip them of POW rights because you feel like it.

And, finally, if they truly do not deserve POW rights than they have to be treated like civilians who are suspected of a crime. Either charge them or release them.

By Roman Werpachowski (not verified) on 09 Jul 2006 #permalink

I think Roman is exactly right. They're either POWs or they are civilians; either way, they must be afforded basic due process rights. What the administration has tried to do is create a legal "black hole" to throw them in, from which there is no escape.

The Supreme Court's actions regarding Hamdan do not accord with historical precedent. They also conflict with the separation of powers that is supposed to underlie our system of government. The S.C. thumbed its nose at both the Executive and Congress, as shown in the following editorial. You might want to stop and think about what sort of government that implies (recalling that the S.C. is hardly accountable to anyone).

In stark contrast to Ex Parte Quirin -- the 1942 decision that upheld the constitutionality of a military tribunal to try, and ultimately convict, German saboteurs -- the Supreme Court on June 29 issued an appalling 5-3 decision that encroaches on the authority of a president during a time of war. In its ruling against the Bush administration's use of military commissions at Guantanamo Bay, the court imposed an unprecedented restriction on
President Bush's prerogatives as commander in chief.

Salim Ahmed Hamdan, a driver and bodyguard to Osama bin Laden, can be detained for the "duration of active hostilities," the court ruled, making note of the threat he poses to the United States. But he will not be tried by military commission. The court contends that the broad authorization passed by Congress shortly after September 11 and the Detainee Treatment Act (DTA) passed in December "at most acknowledge a general Presidential authority to convene military commissions." None of these congressional mandates can, the court concludes, "be read to authorize this commission." Moreover, the court concludes that the military commission is invalid because its "structure and procedures violate both the UCMJ and the Geneva Conventions."

The Justice Department used the DTA as the basis for its argument that Hamdan was no longer under Supreme Court jurisdiction. The DTA specifically prohibits the Supreme Court from hearing "application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." (Emphasis added.) Justice Antonin Scalia sharply criticized the court for undermining the "unambiguous" language of the DTA with legislative history and for ruling against the limitations imposed by the DTA.

Two implications from court's ruling on military commissions are particularly disruptive to the war on terror. First, Al Qaeda and other enemy combatants receive the protection of the Geneva Convention, even though Al Qaeda is not itself a signatory of the convention. The court does not address this argument; instead it impairs foreign policy with an interpretation of Article 3 that runs contrary to the administration's interpretation.

Second, the ruling implies that when Congress authorized the president to use "all necessary and appropriate force" to protect America, it did not, in fact, mean precisely that. Thus, as the president's ability to exercise his executive authority has been curtailed, the administration must consider the danger that other necessary programs may be undermined by the same flawed reasoning.

This is an "unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority," as Justice Clarence Thomas wrote in his dissent. The ruling will significantly undercut the president's ability to protect the United States.

We believe that, in the long war against radical Islam that is still in its early stages, this is not a leading indicator but a trailing one -- a last gasp
of the pre-September 11 mindset.

-- Editorial in the Washington Times July 3, 2006

Note that, in the 1942 case of the saboteurs, Germany was a Geneva signatory.

Something else to consider is that the terrorists not only get better living conditions than our soldiers, but thanks to the S.C. they also get better legal status, since our soldiers would be subject to the military court system.

Arguably, our "politically correct" culture lacks the degree of self-confidence and courage needed to ensure its own survival. Scary.

By Dave Fafarman (not verified) on 09 Jul 2006 #permalink

Dave Fafarman presents an entirely different argument than in his first comment. He writes:

The Supreme Court's actions regarding Hamdan do not accord with historical precedent. They also conflict with the separation of powers that is supposed to underlie our system of government. The S.C. thumbed its nose at both the Executive and Congress, as shown in the following editorial. You might want to stop and think about what sort of government that implies (recalling that the S.C. is hardly accountable to anyone).

I don't think either of these arguments mean much of anything by themselves. Merely saying that a ruling does not accord with precedent says nothing at all about whether the ruling is correct. The Lawrence decision reversed precedent in Bowers, but it was the right decision. The Barnette decision reversed Gobitis, but it was also the right decision. By the same token, merely pointing out that the court overruled both the executive and legislative branches, in and of itself, is meaningless. Any time the Court overturns a law that was passed by Congress and signed by the President, the court "thumbs its nose" at the other branches of government. By themselves, these arguments simply don't say anything.

As for the argument that the DTA limited the court's jurisdiction, I think the court was right to reject that argument (though I wish they had done so much more boldly, rejecting the absurd McCardell ruling), not merely because it did not apply retroactively but because the legislature exceeded its authority. Article 3 sec 2 gives Congress the authority to limit the court's jurisdiction, but that authority is obviously not unlimited. It cannot prevent the court from ruling on a constitutional issue because that is what the court was designed to do. To give Congress that authority is to allow them to, in essence, void the judicial power entirely and eliminate the built in protections of the Bill of Rights. For example, the Congress cannot tell the Court that they cannot hear any case involving free exercise of religion; to do so would be to void the free exercise entirely because there would no longer be any means of enforcing that provision. The only way to void such protections is to amend the constitution. To allow congress, by mere majority vote, to do away with them is to invite tyranny and both the text and structure of the constitution clearly does not allow that to happen.

As far as Ex parte Quirin is concerned, I think you are clearly misunderstanding what the Hamdan decision did. The Court did not say that the Gitmo detainees could not be tried by military tribunal; thus, they did not reverse Quirin. They ruled that under both the UCMJ and the Geneva Conventions (a treaty we have ratified, making it the law of the land in the United States by constitutional rule), such tribunals must offer the same due process protections that would be offered to our own soldiers brought before a military tribunal. So you are wrong when you say that they get "better legal status" than our soldiers; they get precisely the same legal status as our soldiers because that is what our own law requires. Furthermore, the Court also said that Congress could change those requirements if they chose to, but that the President did not have the unilateral authority to do so. Such changes must be made by Congress, not by arbitrary presidential decree.

Arguably, our "politically correct" culture lacks the degree of self-confidence and courage needed to ensure its own survival. Scary.

I think that's an absolutely silly argument. If we really had any self-confidence - any confidence in our constitutional system to work - then we would follow the law and not attempt to invent an arbitrary new status that has never existed before to put these people into what amounts to a legal black hole.

Wonderful post, Ed. I went to bed last night composing a response to Mr. Farfahan, and here it is waiting when I got up. Good work. Some minor additional points.

1. Although the Court said the military commissions as presently constituted are not allowable, they specifically allowed for two other methods of obtaining a judicial ruling against detainees if the Administration wished: They can either use the regular criminal justice system or regularly constituted military Courts Martial. While the Administration's claim is that neither of these allows it to keep secrets vital to national security, this is silly. In camera review of evidence is regular, and has never been shown to be a security concern, particularly if the defendants are only allowed JAG representation. What the Administration is losing is the ability to obtain "convictions" based on hearsay and coerced evidence ("torture" to us ordinary folk).

2. As numerous bloggers have shown (Glen Greewald, Marty Lederman, etc) the fact that Al Quaeda does not accept the Geneva Protocols is irrelevant. We adopted the Protocols because of who we are, not the nature of our enemy. Just because the enemy believes it is moral to fly airplanes into civilian skyscrapers does not mean we will pick an Iraqi city at random and raze it to the ground without regard to the civilians trapped inside. Wait, we did that....

3. Finally, the Court decision did not comprise an "[U]nprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority," as claimed by Justice Thomas. The Court's ruling -- except for the issue of jurisdiction -- was entirely over the Administration's stand that it could ignore Acts of Congress in its prosecution of the GWOT. In other words, they were refereeing between the other two branches, which is the basic description of the Court's job function.

Nor was the Court without precedent. Youngstown Steel is directly on point. By the way, that decision was much more of an "emergency" situation than Hamden, being closer to the outbreak of the conflict (and we were losing the war at the time of the attempted seizure).

Yes, Licoln suspended habeus through Executive Order at the outbreak of the Civil War, but within months he went to Congress with a request that the order be ratified by that body. In contrast, the Bush Administration claims a blank check to do anything they believe necessary indefinitely. Big difference.

I hope Justice Stevens is in good health for the next three years.

Ed Brayton says:

The Court did not say that the Gitmo detainees could not be tried by military tribunal; thus, they did not reverse Quirin. They ruled that under both the UCMJ and the Geneva Conventions ... , such tribunals must offer the same due process protections that would be offered to our own soldiers brought before a military tribunal.

As I understand it, the chief issue regarding the adequacy of the military tribunals' due process protections is whether classified intelligence gathering would be safeguarded. In an environment where outfits like the New York Times take it upon themselves to expose anything they can lay their hands on, this is not a trivial concern.

For the record, this is what happened in Quirin:

The eight men involved in the case were Ernest Burger, George John Dasch, Herbert Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, Richard Quirin and Werner Thiel.

All were born in Germany and all had lived in the United States. All returned to Germany between 1933 and 1941. After the declaration of war between the United States and the German Reich, they received training at a sabotage school near Berlin, where they were instructed in the use of explosives and in methods of secret writing.

Burger, Dasch, Heinck and Quirin traveled from occupied France by submarine to Long Island, New York, landing in the hours of darkness, on or about June 13, 1942. The remaining four boarded another German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness. All eight wore full or partial German uniforms, to ensure treatment as prisoners of war should they be captured on landing. The two groups promptly disposed of uniforms and proceeded in civilian dress to New York City and Jacksonville, Florida, respectively, and from there to other points in the United States. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government.

All were taken into custody in New York or Chicago, Illinois by agents of the Federal Bureau of Investigation.

President Franklin D. Roosevelt convened a military tribunal (emphasis added) on July 2, 1942 which sentenced the eight men to death. The President later commuted the death sentences of Dasch and Burger, as they had assisted in capturing the others. The remaining six were executed on the electric chair on August 8, 1942 in Washington, D.C..

How gauche! -- death penalty. That's not PC either, is it?

The difference between 1942 America and 2006 America is that 1942 America had every intention of winning the struggle with the fascists.

For someone who professes to believe in evolution, you seem remarkably nonchalant at the prospect of your self and your culture being obliterated by those who are simply more aggressive and have nothing else to recommend them. Sounds like "reverse evolution" to me.

Here is what those folks have in store for us if they win. What would become of your cherished civil liberties then?

By Dave Fafarman (not verified) on 10 Jul 2006 #permalink

Here is what those folks have in store for us if they win. What would become of your cherished civil liberties then?

We'll have civil liberties when they win? John Yoo and the patriotic fascists of the blogosphere will do their best that the loss will be minimal when the those folks do win. By that point civil liberties will be in name only anyway given current trends.

Ragheads in Somalia don't threaten my civil liberties. I'd find it believeble if the NYT article title said: In USA, Local Fascists Fight Culture Wars.

Dave Fafarman wrote:

As I understand it, the chief issue regarding the adequacy of the military tribunals' due process protections is whether classified intelligence gathering would be safeguarded. In an environment where outfits like the New York Times take it upon themselves to expose anything they can lay their hands on, this is not a trivial concern.

You understand it incorrectly. In fact, the Court's ruling had nothing at all to do with whether classified intelligence would be safeguarded. The law allows for court proceedings involving such information to be undertaken in camera and the Court did not make an exception in this case. But the administration is arguing that they should not be required to show their evidence to anyone, including a judge or jury. Given that the court is allowing military tribunals, with military members making up the jury, the judge and the defense counsel as well (JAG lawyers), there is no reason such proceedings cannot go on in camera. Do you really not recognize the danger of allowing the government to convict people and put them to death on the mere claim that they have evidence against them, but without requiring them to show it to anyone, even in private?

As for Quirin, I know all of the details and what you posted doesn't add anything to it. Yes, they had military tribunals. The Gitmo detainees will also have military tribunals. The question is not whether military tribunals will occur, but whether they will comply not only with the Geneva conventions (as the Quirin tribunals did) and with the UCMJ, or whether they won't. You still seem to think that the court said that they can't use military tribunals; that is absolutely false.

How gauche! -- death penalty. That's not PC either, is it?

I couldn't give two shits about what is PC. If they are convicted, they will face the death penalty, as they should. But they must be convicted in fair trials, not kangaroo courts.

The difference between 1942 America and 2006 America is that 1942 America had every intention of winning the struggle with the fascists.

No, the difference is that we now have a President who wants to invent an entirely new legal status on his own, one without any protections at all to insure that a trial will actually reach a valid conclusion. If the difference between winning and losing the war on the Islamic fascists (despite your ridiculous pretense that I don't take that threat seriously, I do not hesitate to call them that) comes down to whether we allow kangaroo courts or not, we're in far worse shape than we think we are.

For someone who professes to believe in evolution, you seem remarkably nonchalant at the prospect of your self and your culture being obliterated by those who are simply more aggressive and have nothing else to recommend them. Sounds like "reverse evolution" to me.

Dave, you're so full of shit on this one that you're sounding very much like your brother. The only one who is suggesting that any part of our culture be "obliterated", at least in this discussion, is you. The touchstone of our constitutional system is that we do not allow arbitrary governmental authority. The phrase "we are a nation of laws, not of men" is intended to express that principle - when the government takes action, it must do so within the bounds of the law, not arbitrarily as it sees fit. We require that before the government can imprison someone for life or put them to death (or even convict them of shoplifting a candy bar), they must convict them in a court of law that allows the defendant to challenge the case against him. This, in fact, is one of the key things that distinguishes us from the Islamic fascists, where the mere word of a man against a woman, for example, can result in her being stoned to death. If we have to become like them in order to defeat them, then we've already lost the war. They've conquered us without a shot.

Ragheads in Somalia don't threaten my civil liberties.

Now there's someone with a true pre-9/11 mindset! (BTW, Ted, you appear to have misinterpreted whom I meant by "those folks".)

Do you really not recognize the danger of allowing the government to convict people and put them to death on the mere claim that they have evidence against them, but without requiring them to show it to anyone, even in private?

Of course I recognize the danger. Your earlier phrase, "without which the courts would simply be star chamber proceedings," made me wince because I do see the potential threat.

The difference between 1942 America and 2006 America is that 1942 America had every intention of winning the struggle with the fascists.

No, the difference is that we now have a President who wants to invent an entirely new legal status on his own, one without any protections at all to insure that a trial will actually reach a valid conclusion.

Ahh, now we're getting somewhere. Note that, in Quirin, a "valid conclusion" (I do believe the defendants were guilty -- do you?) was reached, and the sentence was carried out within less than two months of the commission of the crime. (And despite the intent, they didn't even injure anyone.) It would be utterly inconceivable for such a result to occur today. For instance, Mumia Abu Jamal is still around despite being as guilty as sin. "Justice delayed is justice denied. (William Gladstone)" There is a fundamental unseriousness that infects our courts these days and leads to attempts to go around them (which are of course indefensible and probably worse than the disease).

"... we now have a President ..." -- We now have a President who takes seriously his oath to defend America. You would be more credible here if you could show that you also criticized the considerably worse abuses of the prior administration. I would accept evidence that you condemned the Carnivore email-sniffing project, or that you criticized FBI Filegate (where around 1000 confidential dossiers were abused to mine for political dirt), or that you took issue with the framing of the White House Travel Office staff (falsely accused of embezzlement). If you would like to mine your archives for such evidence, I will take your word for the authenticity of whatever you find.

Dave, you're so full of shit on this one that you're sounding very much like your brother.

That remark is just plain funny (besides being unworthy of you). In order to accuse me of "sounding like my brother," you even borrow the trope (full of shit) from him. Well, Ed, I do not accuse you of being "full of shit" and I don't intend to. I find your arguments quite cogent and for the most part persuasive.

The touchstone of our constitutional system is that we do not allow arbitrary governmental authority. The phrase "we are a nation of laws, not of men" is intended to express that principle - when the government takes action, it must do so within the bounds of the law, not arbitrarily as it sees fit. We require that before the government can imprison someone for life or put them to death (or even convict them of shoplifting a candy bar), they must convict them in a court of law that allows the defendant to challenge the case against him.

I couldn't agree more.

Incidentally, there is only one thing about the assault from the Islamists that makes me angrier than the danger to our civil liberties, and that is the lives that have been lost and disabled for life as a result of their activities. I can remember getting on an airplane without having my shoes searched and my pocket knife confiscated -- this change is their doing, and IMO this is an affront to my civil liberties -- one that I grudgingly accept.

They've conquered us without a shot.

That is a strange phrase to use after the events of the last few decades. Very strange.

By Dave Fafarman (not verified) on 11 Jul 2006 #permalink

Dave wrote:

Note that, in Quirin, a "valid conclusion" (I do believe the defendants were guilty -- do you?) was reached, and the sentence was carried out within less than two months of the commission of the crime. (And despite the intent, they didn't even injure anyone.) It would be utterly inconceivable for such a result to occur today. For instance, Mumia Abu Jamal is still around despite being as guilty as sin. "Justice delayed is justice denied. (William Gladstone)" There is a fundamental unseriousness that infects our courts these days and leads to attempts to go around them (which are of course indefensible and probably worse than the disease).

But Dave, whose fault is the delay? The administration has not even attempted to charge anyone at Gitmo. If they had wanted to, they could have charged every single detainee and held military tribunals under the same rules that existed in Quirin and they could have done so years ago. Nothing would have prevented them from doing so except that they have invented an entirely new legal status that never existed before, a legal status that, they claim, gives them no due process rights whatsoever. The administration's position has been that they had the authority to suspend habeas corpus in individual cases without any suspension order from Congress (even Scalia smacked them down hard on that one), that they can hold even US citizens for as long as they wanted to without ever charging them with any crime, without allowing them to consult with an attorney, without the right to confront the evidence against them or even to know what that evidence is, and without the right to trial. In the case of the detainees, they took the position that they could charge them whenever they got around to it, but they could set up a court that was against the UCMJ and against the Geneva conventions, a court with no protections whatsoever to insure that the correct result (as opposed to the result they want) is obtained. In short, they are claiming the right to "disappear" people and judge them only in secret kangaroo courts without due process. This is the very essence of arbitrary authority, the very thing our entire constitutional system is designed to prevent. The reason Quirin got done so fast was because Roosevelt did not try and disappear the prisoners; he gave them a fair military tribunal, presented the evidence against them, and convicted them - that is exactly what the Bush administration has spent 4 years avoiding.

"... we now have a President ..." -- We now have a President who takes seriously his oath to defend America. You would be more credible here if you could show that you also criticized the considerably worse abuses of the prior administration. I would accept evidence that you condemned the Carnivore email-sniffing project, or that you criticized FBI Filegate (where around 1000 confidential dossiers were abused to mine for political dirt), or that you took issue with the framing of the White House Travel Office staff (falsely accused of embezzlement). If you would like to mine your archives for such evidence, I will take your word for the authenticity of whatever you find.

First of all, this is utterly illogical - my arguments against the current administration are either true or false, and that has nothing to do with my views on the prior one. But for the record, I was calling Clinton the worst president on civil liberties since Nixon as early as 1994. I wasn't blogging until 2003, so you can't look it up. But I was a furious opponent of Clinton's policies on civil liberties. And I've written many times on this blog that Clinton was trying to get most of the powers found in the Patriot Act in the first two years of his presidency. He also was pushing for roving wiretaps. If you want hypocrites, then just look at the Republicans and Democrats who flipped positions on that issue based on who was in the White House. I'm the last guy you can accuse of that.

I wrote: The touchstone of our constitutional system is that we do not allow arbitrary governmental authority. The phrase "we are a nation of laws, not of men" is intended to express that principle - when the government takes action, it must do so within the bounds of the law, not arbitrarily as it sees fit. We require that before the government can imprison someone for life or put them to death (or even convict them of shoplifting a candy bar), they must convict them in a court of law that allows the defendant to challenge the case against him.

You replied:

I couldn't agree more.

Then it makes no sense at all for you to defend the kind of tribunals that Bush was attempting to set up. Those tribunals would have included none of those due process protections. Not only would the defendants not be allowed to challenge the evidence against him, they wouldn't even be allowed to see the evidence against him. There is nothing more arbitrary and un-American than convicting someone on secret evidence. If you agree with me, you're arguing on the wrong side of this issue. Again, the issue is not whether they can try them by military tribunal; the issue is whether those tribunals will operate with some minimum standard of due process protections. The administration has tried for 4 years to invent a new legal status and a new kind of court that operates under completely arbitrary rules; the Court rightly told them they have no such authority.

Now there's someone with a true pre-9/11 mindset! (BTW, Ted, you appear to have misinterpreted whom I meant by "those folks".)

Hey thanks for noticing Dave.

I've always prided myself on not lobotomizing myself on 9/11, like a number of my fellow citizens did. Was it cathartic for you?

"the sentence was carried out within less than two months of the commission of the crime...It would be utterly inconceivable for such a result to occur today."

With all due respect, in 1993 I worked on an appeal of a death penalty conviction here in NC. The trial was six weeks after the arrest, lasted less than two hours, and the defendant's court-appointed lawyer went to sleep for part of the proceedings. The state scheduled an execution date four months in the future. It can happen here. You don't even have to live in Texas.

Oh, and a law school classmate who worked on the project told me the defendant was later cleared by DNA evidence. I assume Charles knows what he's talking about, as I no longer follow what happens in Raleigh.

Ed wrote:

The administration has not even attempted to charge anyone at Gitmo. If they had wanted to, they could have charged every single detainee and held military tribunals under the same rules that existed in Quirin and they could have done so years ago. Nothing would have prevented them from doing so except that they have invented an entirely new legal status that never existed before, a legal status that, they claim, gives them no due process rights whatsoever.

This is indeed a difficult situation that needs some further thought. I personally would much prefer to have the illicit detention of some jihadis on my hands, than the blood of some innocents that they would kill if they were freed. But there's an assumption in Geneva that wars are fairly short and POWs get repatriated when peace is concluded. That may be too optimistic in this situation, yet the notion of holding these jerks forever isn't very palatable either.

An "entirely new legal status" may in fact be necessary. They are not POWs, although something resembling POW status might be the only thing that would serve.

Incidentally, the invention of military tribunals was itself an attempt to extend due process protections. Prior to that, spies, saboteurs, and people who fought out of uniform were simply summarily shot or hanged.

Anyway, there is another view that I would like for you to consider.

I'd like to point out a number of ways in which the situation of the President and the Supreme Court are not commensurate.

1. The President, as Commander in Chief, is officially and formally accountable for the safety of the American people and most particularly of the armed forces. The Supreme Court bears no such responsibility -- not even as a group, let alone as individuals.

2. The President has frequently performed painful duties such as consoling the family members of Americans killed by terrorists, and visiting with and encouraging those who have been disabled. If the Supreme Court members have done any of this, I am not aware of it.

3. The President himself has been in harm's way. (Being President is pretty risky in any event, as around 10% have been assassinated and more have been attempted, including Bush Sr. on a visit to Kuwait.) "W" Bush has made at least two trips to Iraq that I know of. If the Supreme Court justices have done this, I have not heard of it. Also, we'll probably never know what the target of the United 93 hijackers was, but it certainly wasn't the Supreme Court building. IMO, it was most likely the White House.

4. The President is constantly attacked by various people second-guessing him for various mostly spurious reasons. He has had a Cindy Sheehan repeatedly camped out near his home. Which Supreme Court justice has had to deal with this sort of thing?

For the above reasons, I suggest that the Supreme Court justices live in an insulated ivory tower, where they are even less endangered than the average American. And I further assert that this skews their ability to assess the relative merits of claims.

Here is a reminder of what is at stake as we dither over whether the jihadists' receive adequate legal protections.

By Dave Fafarman (not verified) on 13 Jul 2006 #permalink

Please excuse the typo in the link: reminder

By Dave Fafarman (not verified) on 13 Jul 2006 #permalink

Dave, not a single thing you listed has any bearing whatsoever on the validity of the court's ruling in Hamdan. You might as well have said "the president plays handball, but none of the justices do". The Court's job is to rule on the constitutional issues. We do not suspend the constitution whenever the President thinks we should.