Wednesday, April 4, 2012

GTMO-izing the Constitution

From Jack Goldsmith at the New Republic:

The Great Legal Paradox of Our Time: How Civil Libertarians Strengthened the National Security State
Please read the whole thing.

Goldsmith's argument is clearly true: the efforts by the GTMO Bar-- lawyers who zealously defended GTMO detainees-- to adjudicate the detention and prosecution of the GTMO terrorists in civilian court has primarily served to strengthen the president's power to enforce national security laws. Some of these newly-affirmed presidential powers could infringe on the rights of American citizens.

Terrorists held at GTMO are war criminals detained during combat operations. They are unlawful combatants (not in uniform and not in an organized military unit) who target innocent civilians. They belong in military courts, not civilian courts. 

One of the salient criticisms of involving the civilian courts in what is obviously a military matter is that it sets precedents in ordinary civilian criminal law that may encroach on the rights of ordinary civilian defendants. That criticism was well-founded, and civil libertarians, previously so eager to bring issues involving war criminals into civilian courts, are beginning to learn.

The civilian courts should have no jurisdiction in military matters in war. Accountability of military justice in war is through the electoral process (the people can throw out the president and the congress), not through civilian judicial review. This is important for the prosecution of the war, and important for the protection of civilian rights that should not be altered by precedents based on the prosecution of war criminals. 

Members of the GTMO Bar, through their hubris and fanaticism, have done real harm to our civil liberties. 

This raises an interesting question. Many of the organizations and attorneys in the GTMO Bar have long advocated for totalitarian and violent causes-- assorted violent leftist radicals, communists, prison rioters, the Chicago Eight, etc. The notion that these barristers are devoted to civil liberty is difficult to sustain, given their predilection for totalitarian clients. These attorneys may be ethically marginal, but there's no reason to believe they are stupid. 

Is the damage that the GTMO Bar has done to our civil liberties necessarily inadvertent?

15 comments:

  1. Michael,

    The trouble is that not everyone being held in Gutanemo Bay now or in the past are terrorists or war criminals.

    There was always be a presumption of innocence before a trial, even a military one, and the accused need to be represented by competent counsel, else we'd be descending to the level of the Soviet trials after WWII, which almost automatically sentenced any German soldier captured on the Eastern front to long terms in labor camps.

    Even the defendants in the Nuremberg Military Trials had defence counsel.

    Some of the inmates of Gutanemo Bay turned out to be innocent bystanders, denounced by enemies or being in the wrong place at the wrong time.

    One such case was Mahmoud Habib, an Australian citizen of Egyptian origin, who was arrested in Pakistan in October 2001, transferred to Afghanistan and eventually underwent rendition to Egypt, where he underwent torture for 5 months, before he was sent to Gutanemo Bay, where he was held for 2 years.

    Eventually he was released, without being charged with any offence.

    I don't have any problems with inmates of Gutanemo Bay being put put on trial. But it should be fair and it should be expeditious. 2012 is too long a time after 2001 to be considered fair.

    It's also not proven that everyone arrested in Afghanistan are terrorists and/or war criminals. Would you apply these terms to the Soviet partisans fighting behind German lines in WWII?

    ReplyDelete
    Replies
    1. I strongly believe that each detainee should be treated justly and should be accorded all proper protections offered under military law. I am not advocating show trials.

      I am merely pointing out, as a matter of law, that they are not under the jurisdiction of civilian courts and they are not civilian criminals. Period.

      Those who are truly innocent should be released.

      I do believe that anyone-- anyone-- associated in any formal way with al qaeda is a war criminal and has committed a capital crime merely by association with al qaeda. Bin Laden or his jeep driver deserve the same fate.

      I oppose capital punishment, but these scum may be exceptions. The vast majority of the detainees should have been tried, convicted and hung a decade ago.

      Delete
  2. Personally I am of mixed mind about GTMO.

    I see the need for such a facility for the most dangerous terrorists and war criminals.
    I do not understand why it is on a leased section of Cuba, or why the tribunals have taken so long to arrange.

    I see it like this:
    The need for such a detention centre is real. People captured during an asymmetrical conflict who have broken the conventions of war and attacked 'soft targets' in the guise of a civilian (or worse) need to be detained and should be tried under a military court. They do not deserve all the rights of a captured enemy soldier/fighter, and certainly not those of the normal indigenous criminal. Treating terrorists like thieves or thieves like terrorists is not the answer.

    On the other hand, it seems very strange to me that they should he held in a foreign land and sit in limbo for YEARS. They should be held in a very safe facility in a US territory (for/by the US forces), have access to military counsel, and be tried and sentenced within reasonable time.
    If they are guilty of the crime - HANG THEM.
    If they are not or of some lesser offence, release them or imprison them at a military prison.
    My concern is how these laws could be used (abused) against citizens of the US and her allies (ie abortion activists, 'occupy protesters', or 'militia groups')
    I am VERY pro security, but not at the cost of our freedoms. When in the US and at defence expos, I have noted a very militarized police force, federal agencies that appear very military, and heard often of a federal government that uses them to over rule state law enforcement. That type of thing is the thin edge of the wedge. I do not blame one party or the other (the left or the right) for this, as it has been incremental and seems to be the goal of BOTH sides of the aisle.
    The sentiment I express is, thankfully, a very popular one in our military here (otherwise I suppose I would be suspiciously quiet).
    In recent years we (our forces) have declined to work with the US DEA and ATF for those very reasons. While we happily work in concert with the USCG, the border agency and the various Military Intelligence services. Somewhat snubbed and upset by this the ATF (as I recall) was upset at being directed to work with the RCMP (the mounties - our 'feds') and not the military or CSIS (like CIA, Mi6). They had wanted MILITARY support in their counter smuggling efforts, and that is just not our mandate....
    So, I wonder, sometimes if issues like GTMO are part of a larger over-all security agenda that I see as a danger to the freedoms of the citizens of the US, and even to the very Republic to our South.
    I cannot say I am sure, but it does give me pause - and I am certainly glad it is not our mess to deal with. Ditto for the parade of legal hacks making a fortune off this situation.
    In all sincerity, I hope you folks find a sane and sensible way out of this that can will be accommodative to the security issues, and the sanctity of rights and freedoms.

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  3. "I do not understand why it is on a leased section of Cuba, or why the tribunals have taken so long to arrange."

    It is on a leased section of Cuba so the administration can evade the laws of the U.S. Bringing them into the U.S. would put them within the jurisdiction of the Federal courts, which would require that those held be accorded some basic legal protections.

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  4. Dr. Egnor seems to think that if only we ignored the detainee issue, and quietly pretended that whatever the government does must be legal, everything would be A-OK. He thinks we should just bury our heads in the sand while the constitution is being abused, so that maybe, someday, the abuse will stop and we can pretend it never happened.

    Blaming this mess on the layers who had the temerity to defend the writ of habeas corpus is a twisted, perverted, super ideological, hyper partisan, demented way of framing this issue.

    -KW

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  5. Anon,
    "Bringing them into the U.S. would put them within the jurisdiction of the Federal courts, which would require that those held be accorded some basic legal protections."
    Would keeping them in a US territory (say Guam) be the same? Should they not be afforded basic protections under martial / tribunal law?
    I have heard the argument you make many times, but it simply raises more questions. For example why have both parties played politics with this situation and there is STILL no firm resolve? Why have these men not been hanged, jailed, or released after so many years? So on and so forth.

    KW,
    " He thinks we should just bury our heads in the sand while the constitution is being abused, so that maybe, someday, the abuse will stop and we can pretend it never happened. "
    Nonsense. Dr Egnor stands against much of what the Government seeks by way of overt powers. There are dozens of posts on this very blog that attest to that.

    "Blaming this mess on the layers who had the temerity to defend the writ of habeas corpus is a twisted, perverted, super ideological, hyper partisan, demented way of framing this issue."
    If indeed what was stated by Anon is true, then how does a lawyer have the grounds to demand those rights without extending them to anyone anywhere?
    Answer: They do not. Many of these hacks seek to enrich themselves via fame or notoriety with these challenges. They are just part of the machine. That much is glaringly obvious to all concerned.

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    Replies
    1. @anon:

      The detainees at GITMO are non-citizen unlawful combatants captured on a foreign battlefield during war. Their detention and prosecution is governed by the Military Code of Justice, not by the Constitution, which specifically ennumerates the powers of Congress, the President, and the Courts.

      The attempt to try these war criminals in civilian courts is unconstitutional. These accused criminals have plenty of due-process rights, as provided for in the UCMJ. They have no civilian Constitutional rights.

      That's the law.

      Delete
    2. ["Blaming this mess on the layers who had the temerity to defend the writ of habeas corpus is a twisted, perverted, super ideological, hyper partisan, demented way of framing this issue."]

      Many of these attorneys make a living advocating for violent totalitarian scum. They are entitled to do so. But your depiction of them as heroes for trying to free murderers who plan to slaughter civilians makes me sick.

      Furthermore, the problem on which I blogged-- that bringing these cases into the civilian courts may serve, not to protect our rights, but to endanger them, was discussed many times and was a problem well-known to these terrorist-loving hacks.

      If a civilian court rules that it is in some circumstances permissible to set aside Constitutional protections for these killers, that precedent may be used in the future to limit the Constitutional rights of civilians accused of ordinary crimes.

      War criminals belong in military courts. Civilian criminals belong in civilian courts.

      Duh

      Delete
    3. @anon:

      "Bringing them into the U.S. would put them within the jurisdiction of the Federal courts, which would require that those held be accorded some basic legal protections."

      These terrorists have massive legal protections, provided by military legal codes. In some ways military justice provides accused individuals more, not less, protection. These accused have legal teams, procedural appeals, etc.

      They are not in the jurisdiction of the federal courts because they are not civilian criminals. They are unlawful combatants-- terrorists-- captured in a foreign war zone. By definition, they are not in the jurisdiction of the federal courts.

      The reason they are held in GITMO is that it is a very secure venue, and it makes it even harder for asshats like you to unlawfully shift them into the civilian criminal justice system.

      Delete
  6. "Would keeping them in a US territory (say Guam) be the same? Should they not be afforded basic protections under martial / tribunal law?"

    If they were in Guam, they would come under the jurisdiction of the U.S. federal courts and rights like habeas corpus, and the protections accorded by the fifth, sixth, seventh, and eighth amendments would come into play.

    "I have heard the argument you make many times, but it simply raises more questions. For example why have both parties played politics with this situation and there is STILL no firm resolve? Why have these men not been hanged, jailed, or released after so many years? So on and so forth. "

    Best guess? They don't have sufficient evidence that would allow them to secure a conviction, even in a military tribunal.

    ReplyDelete
  7. "Their detention and prosecution is governed by the Military Code of Justice, not by the Constitution, which specifically ennumerates the powers of Congress, the President, and the Courts."

    I see. In your view the UCMJ trumps the Constitution. You're wrong. I direct you to the Supremacy Clause of the Constitution.

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  8. "If a civilian court rules that it is in some circumstances permissible to set aside Constitutional protections for these killers, that precedent may be used in the future to limit the Constitutional rights of civilians accused of ordinary crimes."

    Except the Courts have not ruled that way, and there isn't really any indication that they would outside of your fevered imagination. In the one case on this issue that has made it to the Supreme Court in this century, the court upheld the right of habeas corpus.

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    Replies
    1. [Except the Courts have not ruled that way, and there isn't really any indication that they would outside of your fevered imagination. In the one case on this issue that has made it to the Supreme Court in this century, the court upheld the right of habeas corpus.]

      How foolish of me. I thought that flooding the civilian criminal justice system with terrorists whose prosecution depends critically on intelligence secrets and concerns of clear and present danger to the public might at some point in the future bleed over into civilian jurisprudence. But your one example has assured me there is no danger in mixing prosecution of terrorists with prosecution of ordinary Americans accused of crimes. The legal system will never allow one to influence the other.

      Oh. Good. I guess we're safe.

      Delete
  9. [I see. In your view the UCMJ trumps the Constitution. ]

    Jurisdiction determines law.

    If you're a soldier, try walking up to your commanding general and exercising freedom of speech.

    If you're a Nazi trooper on Omaha beach, try telling the 115th American Infantry Regiment that you have the right to due process of law.

    The detainees at GITMO are non-American citizens who are unlawful combatants captured during military operations in a war zone. Do you really think they have the right to be free from unreasonable searches and seizures?

    Did the Seals read OBL his Miranda Rights?

    ReplyDelete
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    ReplyDelete