Thursday, June 12, 2008

Are Captured Terrorists War Prisoners? No, Just Criminals With Lawyers

The Washington Times carried AP’s version of the story today . Our Supreme Court has assigned new rights to captured terrorists.

An email from (attorney) Laura Ingraham’s website puts the case all too well:


In a major defeat to America and the War on Terror, the Supreme Court this morning ruled that enemies captured on the battlefield have habeas corpus rights under the U.S. Constitution.

It is almost impossible to explain just how damaging this decision is, though we get an idea when Justice Scalia notes in his dissent that the ruling “will almost certainly cause more Americans to be killed.” That outcome, he says, might be tolerable if the Court were upholding longstanding legal precedent. Instead it’s a stark reversal of precedent that opens this country up to new security threats.

For example…
- - - - - - - - -
There currently are no rules for trying enemy combatants in American courtrooms -- that will be left up to the courts themselves. (The Court did insist on defendants having access to witnesses; does that mean U.S. soldiers serving in the field?)

Assuming defendants receive legal protections on par with U.S. citizens, terrorists will be able to easily manipulate our court system for access to classified government intel. Scalia notes that when the terrorists behind the first World Trade Center attack were tried, federal prosecutors produced the names of 200 unindicted co-conspirators, and “that information was in the hands of Osama bin Laden within two weeks.”

Insanely, the military tribunals that were today declared unconstitutional had been set up by Congress and the White House at the direction of an earlier SCOTUS ruling. [my emphasis -- D]

“Turns out they were just kidding,” Scalia notes wryly.

It also turns out the Constitution’s a suicide pact after all.

This can only bring more chaos to what passes for our judicial system in the U.S. Sometimes you can hardly bear to read about it anymore.

Welcome to Kafka Land.


Profitsbeard said...

A bad day in black robe.

The Seppuku of the West, with legally niceties.

These five fools have declared this a Non-War.

The 3,000 9/11 dead must be so relieved.

christian soldier said...

This took the "wind out of my sails" when I read about it on MM's site at 8 this morning CA time.
It's affect was almost like a physical injury- only to the heart.
My countrymen in government have forgotten the 3000 + of 9/11.
They have forgotten that we have young men and women who are volunteering to fight for freedom.

I'll never give up - but - it was hard today.

Now, more than ever - I know that I must speak through my art.

And - no more voting for the LESSER OF TWO EVILS>>>>

Diamed said...

Anarcho-tyranny is the concept that the actual criminals (and in this case terrorists) are given free run of a country with no resistance by the State (there's the anarchy). In order to damp down civilian protests about this situation and to stop any vigilante activity forming, however, the State zealousy controls all aspects of their innocent, non-violent citizenry (there's the tyranny).

Today in the International Herald Tribune there was an article advocating new hate speech codes for the US, the same day terrorists were given endless legal rights to wage jihad on us. If you don't see the connection yet, you'll never understand what's going on.

The elites have declared war on the people, the stormtroopers are the thugs and jihadis, the victims are YOU.

Or in other words, the government has voted to abolish the people and install a new one. You see, you simply weren't suitable to fit their new world order, so sorry--but you have to understand--it's for the greater good after all.

no2liberals said...

While I am not pleased with the ruling, it doesn't change much for the detainees already in Guantanamo. What it really means, that in the future, enemy combatants will have to be treated differently. There are ways around that, and one aspect of the ruling means, there will be fewer combatants captured...if you know what I mean.
Hugh Hewitt, a law professor, had an excellent commentary on his show today.

"Well, let me just quote a little bit here from Justice Roberts. He says, “So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit, where they could have started, had they invoked the DTA procedure. That’s the procedure that Congress created. This thing is now, I mean, there aren’t any guidelines, there’s no decision by the Court that clearly spells out what needs to be done here, so it’s basically a free-for-all. Every one of these people that are detained will file a habeas corpus writ. A federal district judge is going to have to resolve them. He’ll get all kinds of different confliction decisions. The questions of what kind of evidence is permissible, and looking at classified, and the standard for review, and what kind of new evidence, if any, can be educed on review, and all of these things are brand new because these people have never had habeas rights before. So you’re literally making the law as you go along. And nobody can even begin to predict where it’s all going to end up."

He also has an article up at Townhall.

randian said...

This will predictably lead to a lot more enemy combatants being summarily executed on the battlefield. That will lead to more US soldiers getting killed, because an enemy who knows he'll be executed if he surrenders will fight to the bitter end instead. Amusingly, I wonder if the leftists who claim the Geneva Convention applies to terrorists will start whining about the explicit permission it gives for summary execution of irregular combatants.

Robohobo said...

Heh! We are complicit in our own destruction.

Now we should apply Geneva to irregular combatants (spies) = summary execution. We are well within our rights to do so.

The argument that this will make the jihadi more dangerous is specious anyway. By definition they are fanatics who wish nothing less than their own deaths. They will and do fight to the death. We just need to help more of them to their ultimate goal. You know, respect their belief system and all that multi-culti and PC crap.

Anonymous said...

For every action there is a reaction.

The message here is 'Take no prisoners'.

So be it.

kenprice said...

The only loss will be the information we can extract from captured prisoners. You can't really question a corpse, and rather than give the jihadists a chance to lawyer up, we'll simply send them to meet their 72 virgins. As far as this costing our troops, I don't see too many captured U.S. troops in this "war", so why worry?

Western Resistance said...

Insane. This ruling will lead to more battlefield executions of captured terrs. That would spare a lot of trouble. With rulings like this, the US really is ripe for revolution. The power elites need to be replaced.

Proud Infidel said...

I've always felt bringing all these terrorist slimeballs to Gitmo was a mistake. They should have just turned them over to the Northern Alliance and let them deal with them by enforcing Rule 308 or whatever caliber of bullet they prefer.

"Captured terrorists? What captured terrorists? Only a bunch of dead ones here."

Dymphna said...

While I cannot fault y'all for your belief in summary justice for terrorists and those who abet them, the current Rules of Engagement don't allow for what you suggest. I'm surprised they even allow Allied troops to fire upon the enemy at all.

You can hear the sadness, the rue, in Scalia's dissent.

I R A Darth Aggie said...

There are ways around that, and one aspect of the ruling means, there will be fewer combatants captured...if you know what I mean.

I know what you mean, but that's not what will happen. We'll still capture them, but we won't transport them anywhere. They'll be given the to tender mercies of our in-country allies for incarcartion and/or judicial proceedings.

I can hear the pleadings now...please, take us to Gitmo, don't give us to these jackals!

Dymphna said...

And I agree that the Supremes' ruling is an insult to the dead and injured of the 1993 and 2001, not to mention their families.

In fact, what about all the workers who have been disabled by inhaling the noxious fumes from the smoking hole at Ground Zero?

The Baron and I were in NY for his work in December, 2001. We went to see Ground Zero. The fumes were so bad I couldn't complete the walk around the perimeter. We had to take a cab home and I had trouble breathing for the rest of the day.

I can't imagine what shape the workers' lungs must be in after spending weeks and months there.

Zenster said...


Follow the money ... The real beneficiaries here are LAWYERS. This new ruling just created several hundred million dollars worth of billable hours. Our government has been infiltrated at the very highest levels by legalistic dilettantes whose litigiousness knows no bounds.

As we all have just borne stark witness to, this represents a profound conflict of interest.

Correct me if I'm wrong, but doesn't the Geneva Convention provide out-of-uniform combatants captured in battle only one right?

As in the right to summary execution?

The words of Srdja Trifkovic ring ever more true:

The elite class has every intention of continuing to “fight” the war on terrorism without naming the enemy, without revealing his beliefs, without unmasking his intentions, without offending his accomplices, without expelling his fifth columnists, and without ever daring to win. Their crime can and must be stopped. The founders of the United States overthrew the colonial government for offenses far lighter than those of which the traitor class is guilty.
[emphasis added]

Anonymous said...

Zenster is spot on in singling out the lawyers. So much of what we see in politcs today is the legal profession ensuring its future income streams at everyone else's expense.

And in the US, the Democrat party is the party of trial lawyers. The Democrat party acts more and more like the lawyers labor union and less like a politcal party acting in the best interest of the country.

Civilian trials for foreign combatants that do no abide by the Geneva Convention is opening a pandora's box of mindless litigation.

It is insane.

Vlad Z. said...

Christian Soldier: I strongly disagree with your last comment. What this shows is that much real power is held by the Supreme Court, and it particularly is the most significant vector for continual leftist destruction of our society.

Nothing we can do in the near term will do more to restore our republic an spank the nutty liberals than getting a few more solid conservatives on the SC.

The critical importance of Obama to the left is retaining their power to dictate everything through the Supreme Court.

For us, hate everything about McCain, but still vote for him. There is at least a 50/50 chance he'll appoint another Roberts or Alito.

Obama may well appoint Hillary. (It has been discussed in many lefty blogs).

Who do you want deciding the next case of this type? That's the critical question.

Lesser of two evils voting is not fun, but it's rational, adult and conservative. We are, after all, trying to conserve our culture against great odds and determined enemies.

Whiskey said...

Dymphna -- as a practical matter it is likely that prisoners will be turned over to local auxiliary forces. Who are unlikely to adhere to any sort of convention, much less the Geneva, or Supreme Court rulings.

Existing prisoners are likely to be turned over to forces like the Egyptians as well.

But ... this ruling will stand so long as America is not nuked. Which is more likely than ever given vital human intelligence is likely to be unavailable given that we can ask nothing of prisoners without their lawyers. And soldiers and marines will be super-cops in fatigues.

christian soldier said...

zeke-Justices Stevens-Kennedy-Souter were appointed by Republican Presidents.

I've been getting the same "logic" as you propose for the last 30 years. Where has it gotten us?

Yes,I am very much a thinking adult.

. said...

Welcome to Kafka Land.

Yes, Laura Ingraham (and Dymphna). There is a Kafka-land here. It is called Guantanamo. Where 300 some prisoners can be kept for up to six years with no charges being brought against them. Where at least 1/3 of them are not guilty of any war crimes, but are not released, and do not have any legal recourse. Where the 1/3 who "may" be tried await the whim of the investigators. And where the 1/3 who are tried are not given even the legal help afforded the Nuremberg and Tokyo war crimes defendants.

The Supreme Court said "enough, this is so fundamentally un-American that we are not going to let you (the Bush Administration) hide under the legal niceties of "enemy combatants" and the legislation passed by a pusillanimous Congress.

And, fundamentally:

"We are NOT going to let you DESTROY our liberties in order to save them!"

Robert said...

Poster Formerly Known as Gordon, Rational arguments are not always appreciated.

no2liberals said...

"Where at least 1/3 of them are not guilty of any war crimes, but are not released, and do not have any legal recourse. Where the 1/3 who "may" be tried await the whim of the investigators. And where the 1/3 who are tried are not given even the legal help afforded the Nuremberg and Tokyo war crimes defendants."

This information is based on what, a Huff-n-Puff thread? What about the one's who have been released and returned to the battle field? Perhaps Bhutto's killer was one of those 1/3 that is innocent? What about the one's they want to release, but their country of origin won't accept them? Are we to give them green cards?
Besides the fact that the Geneva Convention spells out quite clearly what is or is not an "enemy combatant," which the U.S. is a signatory of, the SCOTUS ruled many times giving Congress direction, but then they just lower the boom, and give Habeus Corpus rights to non-citizen/enemy combatants.
As Senator Jon Kyl stated in an interview:
"the irony here is the Court has given us a little bit, us meaning Congress, some direction. They basically challenged us to write the procedures for dealing with these detainees. We did. And then a case came along, and they said we don’t think you have it exactly right. So we went back and we made revisions. And they are, by the description of the dissenters, the most generous set of procedural protections ever afforded aliens detained by any country as enemy combatants. And yet, the Court, after inviting us to develop these procedures, and they are the most generous ever, anywhere, now strikes them down as inadequate. And as Justice Roberts said, it’s really hard to figure out why they’re inadequate based upon the test that the majority created."
Absurdity, wrapped in insanity.
As zenster already pointed out, the only group that benefits from this abominable ruling are the trial lawyers. It certainly wasn't the U.S. Constitution.
As for the SCOTUS saying it wasn't going to allow the Bush administration to hide under legal niceties, what a load of bovine excrement, hiding behind BDS. The Bush administration ends in six months, this ruling will embolden our enemies, and kill our citizens, long after the five black robes who betrayed this country are gone.

Zenster said...

no2liberals: ... the only group that benefits from this abominable ruling are the trial lawyers.

Thank you, Chalons and no2liberals, for concurring with respect to where the money trail leads. Only slightly more galling is considering how the government will likely have to shell out even more of our hard-earned taxpayer dollars to provide Urdu, Farsi or Arabic speaking lawyers for these terrorist rutbags (as in Muslim attorneys), who will take their filthy lucre and turn that against us as well.

Our traitor elite cannot be thrust from office soon enough. That we must also contend with the outright anti-Americanism of scum like Hillary and Obama is enough to spike anyone's blood pressure.

no2liberals said...

Zenster, not a problem, and it's difficult to refute.
Those thousands of lawyers didn't descend upon Gitmo a few years ago as volunteers, to fulfill their civic duty, satisfy their altruistic desires, or even as their Pro Bono candidates. They saw an opportunity to drum up a lucrative niche market, much like asbestos.
There was an excellent article the other day about the donks and the lawyers.
Democrats Are Lawyers Litigating Politics.
This may not apply directly to the Supremes, as seven of the nine were nominated by Republican Presidents, but it certainly applies to those they associate with, and most certainly to the left in general.

no2liberals said...

Then there is the law of unintended consequences.

no2liberals said...

Perhaps I was hasty in implying summary executions, as my comment was vague.
I believe there are ways to get around the troubling juridical decision, not the least being a change in ROE. The idea of placing squads in jeopardy, in trying to capture possible high value targets, will probably be adjusted to attacking, and allowing those who wish too, to surrender. Otherwise, an engagement will terminate with air strikes.
I also believe that enemy combatants will face more field level interrogations, to determine their value, and most likely their custody will be transferred to local authority, provisional or elected.
I wouldn't anticipate summary executions as a result of this ruling, and regret making such a hasty and vague comment.

ploden said...

The Poster Formerly Known as Gordon:

Thank you for your comment. The Bush Administration has done far more harm to this country than the Islamists operating from overseas ever could.

Anonymous said...

It's a bit disconcerting that are people in the world who cannot differentiate between domestic lawbreakers and foreign nationals waging war against the military and civilians of another country.

Such 'blindness' can only be willfull, malicious, and agenda driven.

no2liberals said...

BDS thrives, I see.

George Bush Made The World A Safer Place.

Bush never lied to us about Iraq.