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Habeas Corpses

Well, as it does every now and then, the legal status of the detainees at Guantanamo is being kicked around again. Once again lawyers are pushing to get them the legal status of accused criminals, and not combatants -- legal or illegal.

I'm not going to go into the details of the argument, but instead I'm going to do a little fantasizing. Let's assume that the people pushing for this change succeed, and the people held there are granted the rights of the accused here in the United States. Now I'm going to construct a little fantasy here, a hypothetical lecture given by a military officer in response to this new development -- say, an Army Major briefing his troops before they deploy to Iraq.

"Listen up, men! As you know, the courts have ruled that the people we capture are now to be accorded the same treatment as the cops give suspects when they arrest them. This is gonna mean some big changes in how we do things, so pay close attention to what I'm about to tell you -- you WILL be held accountable for following these new rules.

"First up, any time you capture someone alive, the first thing you gotta do is give them their Miranda rights. Here is a laminated card with the exact phrasing, in English and Arabic. Have it with you at all times. For those of you who've never watched a single cop show or a cop movie, here it is:

'You are under arrest. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.'

"This means that Haji doesn't have to give you nothing but his name and address. Nothing more. Haji wants to clam up, that's fine and dandy. And once he asks for a lawyer, all questioning stops. Period. End of discussion. You lock him up and wait for him to get his lawyer -- and if he can't get one of his own, we'll give him one. That's why we recently had that draft on lawyers -- the JAG Corps is now one of the biggest parts of the Army now.

"Now, once Haji gets hauled off, that ain't the end of it. Eventually, he might end up in front of a court. And it won't be a court martial or military tribunal, but a civilian court with a civilian judge and civilian lawyers. It might be a military prosecutor, but they're still working that out -- they might need to do another round of lawyer drafting. There Haji will get his day in court, and with all the legal rights of any defendant.

"One of those is the right to confront his accuser. That means that when Haji goes on trial, you're gonna be sent back stateside to testify. You might have to stay there a while, because Haji's lawyer could drag things out for a long time, and the judge could grant continuance after continuance -- but you gotta be there just in case the trial goes forward. And if you were tipped off to Haji by any informants giving you a tip, there's a good chance you'll have to give up their name, too -- which could put them in danger from any of Haji's buddies. They might have to go back stateside and testify as well, 'cuz Haji might want to face them in court, too.

"In that court, you will be asked a lot of tough questions. Questions like 'why did you grab Haji?' or 'are you certain you read Haji his rights when you captured him?' and 'was he conscious when you read him his rights?' and 'did you in any way mistreat or abuse Haji?' or 'why were you so certain Haji was a bad guy, and not just an innocent guy in the wrong place at the wrong time?' and 'how many bad guys have you caught?' and 'how many innocent people have you killed and captured?' and crap like that. So keep that in the front of your mind at all times, especially when you're in battle.

"Now, you also have to remember that prisoners can be valuable sources of information -- if they don't lawyer up. So capturing them should always be a priority -- as the saying goes, 'dead men tell no tales.' Of course, lawyered-up live men don't tell too many tales, either...

"I'm also gonna tell you to keep in mind that killing people who surrender is a war crime, a violation of regulations, and will get your ass prosecuted. Unfortunately, a lot of the people who used to be in charge of investigating that sort of thing are now tied up making sure prisoners get their full legal rights, so it's gonna be on you to watch yourselves and each other to make sure that doesn't happen."

Maybe I'm being cynical, maybe I'm not placing enough faith in our men and women in uniform, but I can't help but think that one likely consequence of a move to treat prisoners as criminals -- with all the paperwork and other pain-in-the-ass requirements that go with that -- will be fewer prisoners overall.

The motivations for "take them alive" are several. First off, as I noted above, a live prisoner can be a far better source of intelligence than a dead one -- and good intelligence wins battles, wins wars, and saves lives. In World War II, our ability to read the German and Japanese codes was the key to a lot of our victories. Conversely, just before the D-Day invasion of Normandy, British officials rounded up every single Nazi spy in England and forced most of them to send back false reports to keep the invasion secret -- and that was a major factor in the invasion's success.

There's also the element that an enemy who surrenders is far less likely to kill more of our troops than one who's bound and determined not to be taken alive. If confronted with the choice between "fight to the death" or "surrender and live," there is a certain appeal to the latter. Change that to "fight to the death" or "surrender and be killed," the natural reaction is to not make the other guy's job any easier -- and take as many of them with you as possible.

I think it's a fairly logical chain of thought: if the detainees captured by the military abroad are granted the same legal rights as criminals caught here in the US, then this will impose a much heavier burden on the military as the capturing and detaining body. This burden will almost certainly be partly borne by the men and women in the field who are out there capturing prisoners. And if the burden of capturing and maintaining those prisoners grows too high for those who do the capturing, then an unofficial "no prisoners" (or, at least, "minimal prisoners") policy could very well take hold.

And that would be a tragedy on so many levels. First off, we have the most professional, most competent, and (arguably) the most compassionate military the world has ever seen. (Witness how many "humanitarian" missions they undertake, and how it's the US military that is often the first responder to major disasters around the world -- like the Indonesian tsunami and the recent Bangladesh cyclone. Also the initial mission to Somalia in the 1990s that mission-creeped into the "Blackhawk Down" Battle of Mogadishu.) To give them some serious incentive to be less humane and less likely to take prisoners would be horrific.

Also, how many informants would be willing to cooperate with the US if they knew that their information and names may end up divulged in US courts? Even if the hearings are closed to the public, the accused and his lawyer will both be aware of their identity and actions, and we've seen what can happen when that happens.

Add in the loss in intelligence-gathering that would come from decreased prisoners, and we have a recipe for disaster.

Yes, the title is shamelessly stolen from Joss Whedon's "Angel," when a demon slaughters nearly everyone at an evil law firm -- who promptly come back as murderous zombies. (Trust me, it works much better on the screen.) It just fits so well here..


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Comments (32)

You made a lot of false sta... (Below threshold)
Erik Sandall:

You made a lot of false statements and inaccurate assumptions in that post.

It basically boils down to this: America is a great country for many reasons, two of which are the rule of law and a fair judicial system. If those two things are taken away, as they have been in Gitmo, then this country is little better than the dictatorship it overthrew in Iraq. The convictions made by the military commissions will not be seen as fair and just by the global community.

Why are we asking our troops to defend a legal and judicial system that is no different than the one under Saddam?

Erik - first of all, you co... (Below threshold)

Erik - first of all, you convince NOBODY by playing the "moral equivalency" card because it is pure merde!

Secondly, these aren't U.S. citizens or even residents. These are 7th century fanatic savages whose only goal in life is to destroy all Americans and our entire civilization and they don't care how many innocents get in their way as they attempt to do it. Ergo, to my way of thinking, they have NO RIGHTS whatsoever.

I'm sure your views make you feel all righteous and superior. The fact is, it's people like you that increase and exacerbate the risk to our nation and our people.

Great post Jay. I can see ... (Below threshold)
Matt:

Great post Jay. I can see a breifing like that coming down after a bad decision by the courts.

The "detainees" at Guantanamo that were captured on the battlefield are either lawful, or unlawful combatants. As lawful combatants they have a slew of protections under the Geneva Conventions. If they are "unlawful" combatants, they basically have no protection and can be dealt with as they will by the capturing country. If they are unlawful combatants (which I beleive they are) they don't qualify for the U.S. legal system since they haven't committed crimes in the U.S. Crimes/war crimes can be handled by military tribunal.

I don't see how they could be construed as traditional criminals since the vast majority did not commit crimes in/against the U.S. and were not captured in the U.S. If anything, less than intenment and ultimately a military tribunal, they should be turned over to the court systems in the country they were captured in. I am sure the Iraqi and Afghanni courts would treat them justly and with due respect for habeas corpus.

Jeez folks.. Jay made clear... (Below threshold)
nogo war:

Jeez folks.. Jay made clear this was a fantasy scenario. A fantasy is not reality.
Jay, you should further explore this fiction into a short story. It has potential see what this guy wrote..kinda the same
http://www.gutenberg.org/catalog/world/readfile?fk_files=23128&pageno=2

I say release them to a hos... (Below threshold)
WildWillie:

I say release them to a hostile area. ww

If you all believe they are... (Below threshold)
patrick:

If you all believe they are enemy combatants then where is the problem with bringing them before a court? What if one of them was not an enemy combatant but innocent? What if it were Americans being held? Remember we were not right to intern the japanese, nor was President Lincoln right to suspend habeaus corpus in the Civil War. If you stand by your arguements bring them to court, show evidence, bring witnesses and then prosecute to the full letter of the law.

Secondly, these aren't U... (Below threshold)
Brian:

Secondly, these aren't U.S. citizens or even residents. These are 7th century fanatic savages whose only goal in life is to destroy all Americans and our entire civilization and they don't care how many innocents get in their way as they attempt to do it.

Actually, about 30% of them are known to be completely innocent.

You're confusing the treatment given to someone guilty of an act with that given to someone suspected of the act.

I'm sure your views make you feel all righteous , powerful, and superior. The fact is, it's people like you that increase and exacerbate the risk to our nation and our people.

Brian the retard: "Actually... (Below threshold)
Drago:

Brian the retard: "Actually, about 30% of them are known to be completely innocent."

Brian, are you in the habit of posting links to articles that completely destroy your assertions?

From Brian the retards own link within a link to the Seattle Times:

"Explaining the first comprehensive accounting of what happened to Guantanamo arrivals since the camps here were established in January 2002, Lt. Cmdr. Chito Peppler of the Pentagon office in charge of reviewing detainee status said those deemed by last year's Administrative Review Boards to pose no threat to U.S. national security are "no longer enemy combatants."

Sooooo, these guys NO LONGER pose a threat to national security. But, what about BEFORE now?

I'm glad you asked. Again, from the Seattle Times: "He insisted that the detainees were justly held in the past because battlefield commanders in Afghanistan and Pakistan had determined at the time of their arrests that they were a threat to U.S. forces in the region.

"Every detainee who came to the Combatant Status Review Tribunals went though multiple reviews" prior to arrival at Guantanamo, Peppler said of initial evaluations by commanding officers in the field held to determine whether each suspect was properly detained."

Soooooo, these guys HAD posed a threat to US forces, have gone through multiple reviews prior to receiving their tribunals where the validity of their capture and detainment was established and reestablished.

THANKS BRIAN!! We appreciate the nearly non-stop flow of moronic rantings emanating from your decidedly undergraduate-level "understanding" of the world.

Keep up the good (adolescent) work.

Wow, the liberals just don'... (Below threshold)
WildWillie:

Wow, the liberals just don't understand there is no comparative situation that lines up with the GWOT. But I never did equate understanding with liberals anyway. ww

That kind of misrepresentat... (Below threshold)
SPQR:

That kind of misrepresentation is par for the course with Brian.

patrick the hopeless: "If y... (Below threshold)
Drago:

patrick the hopeless: "If you all believe they are enemy combatants then where is the problem with bringing them before a court?"

Civilian courts in the US are basically reserved for US citizens and those accused of commiting crimes in the US.

Too complex for you?


patrick: "What if one of them was not an enemy combatant but innocent?'

See the above link in Brians post which demolished Brian's assertion of the detainees "innocence".

WARNING: reading the link and understanding it's implications will require an ability to read.

patrick: "What if it were Americans being held?"

Equally relevant question: why is Boston cream pie really just a cake with custard?


patrick: "Remember we were not right to intern the japanese,"

"We" did not intern "the japanese." The left's hero, FDR, did that, with absolutely no consequence to how the left worships him toay. No consequence, at all.

patrick: "..nor was President Lincoln right to suspend habeaus corpus in the Civil War."

Easy for you to say. You didn't have the rebel army 50 miles from the Capital you occupied.

patrick: "If you stand by your arguements bring them to court, show evidence, bring witnesses and then prosecute to the full letter of the law."

No.

They are not citizens.

They are not Prisoners of War.

They are Unlawful Combatants.

Just because you want them to win, does not mean they do deserve the same rights of US citizens.

Drago, I don't know what ma... (Below threshold)
Brian:

Drago, I don't know what made you think "gotcha" when you read that article, but your misquoting and misrepresentations are at best irrelevant to my point, and at worst reinforce it. Those people were suspects who were later released.

So the commanders determined they were a threat when they were detained? Fine, I didn't dispute that. The suspects were properly detained? Great, I didn't dispute that either.

But what happened after all that? Oh yeah, THEY WERE RELEASED.

So unless you think we have some magic formula to suddenly make 30% of those captured "no longer enemy combatants", then they were not "7th century fanatic savages whose only goal in life is to destroy all Americans and our entire civilization and they don't care how many innocents get in their way as they attempt to do it", which is what my original comment was addressing.

It seems that your desire to insult, belittle, and rant like a third-grader overpowered your ability to comprehend. You ought to work on that.

Brian the "English is my se... (Below threshold)
Drago:

Brian the "English is my second language" hopeless: "Drago, I don't know what made you think "gotcha" when you read that article,..."

Uh, this part:

Brian: "Actually, about 30% of them are known to be completely innocent."

1. They aren't "known to be completely innocent". They were never "known to be completely innocent."

So, to review the links and see that these individuals were not and never were "completely innocent" means you have uttered a falsehood. You have made an assertion without basis in fact.

You are a dummy.

But wait, it gets worse:

Brian: "...but your misquoting and misrepresentations are at best irrelevant to my point,"

I accurately captured your assertion as well as the contradictory testimony (with full context) from the very articles you linked to.

Dummy.

Brian: "So unless you think we have some magic formula to suddenly make 30% of those captured "no longer enemy combatants","

The military and military tribunal has determined that these individuals NO LONGER pose a threat significant enough to warrant continued detention.

Hardly a magic wand, moron.

But it continues:

Brian: "...then they were not "7th century fanatic savages whose only goal in life is to destroy all Americans and our entire civilization and they don't care how many innocents get in their way as they attempt to do it",.."

Which, interestingly enough, is something I never claimed. Nice attempt at putting words in my mouth though idiot. If I was as dumb and easily exposed as you are, I might be forced to attempt rhetorical subterfuge as well.

Brian: "...which is what my original comment was addressing.""

You made several comments and assertions in your original post.

I merely demonstrated your profound dishonesty (or stupidity) in one of your blatantly false assertions.

Again I will say..Jay at no... (Below threshold)
nogo war:

Again I will say..Jay at no time represented this as other than his individual fantasy...
The reason we like certain movies, TV, or books is it connects to our fantasy, When we reject those i because it does not connect to our fantasy.
I support fantasy. It may not be mine but it is the world we live in...
People upset? Find a fantasy that suits you..
People that embrace Jay's fantasy...cool.

Eric "Glogal Test" Sandall:... (Below threshold)
marc:

Eric "Glogal Test" Sandall:

It basically boils down to this: America is a great country for many reasons, two of which are the rule of law and a fair judicial system. If those two things are taken away, as they have been in Gitmo, then this country is little better than the dictatorship it overthrew in Iraq. The convictions made by the military commissions will not be seen as fair and just by the global community.

Horseshit!

Show me a single country that bases it internal policies on what the global community agrees to or approves of, and I'll show you a country that designs by committee and ends up with a camel instead of the horse blueprint it started with.

And BTW, as I'm sure JT kno... (Below threshold)
marc:

And BTW, as I'm sure JT knows there is a simple solution to what JT suggests:

Corporal Smith: "Stop, click... stop... SHOOT!"

Put another way... leave 'em where they lay.

nogo: I support fantasy."</... (Below threshold)
Drago:

nogo: I support fantasy."

Clearly.

nogo: "It may not be mine ...."

Uh, trust us, it's yours.

That's some mighty fine mod... (Below threshold)
George:

That's some mighty fine moderatin' ya got goin' there, Maggie. Nice double standard.

George .Thank you.... (Below threshold)
Maggie:

George .

Thank you.

Maggie

> ... just before the D... (Below threshold)
Arthur:

> ... just before the D-Day invasion of Normandy, British officials rounded up every single Nazi spy in England and forced most of them to send back false reports ...

Not just before D-Day. The Brits had the entire German spy network in Britain under their control throughout most of the war.* They gave the spies a choice - send false messages or be executed. Most chose to cooperate, the rest were hung.

Since the Brits controlled the messages, they knew where and when each new German spy was going to appear and would instantly round him up and give him the same choice.


Oddly, enough the Germans did the exact same thing using the same techniques to the British spy network in the Netherlands.

*Details in the book "The Double-Cross system".

Frankly, only a complete mo... (Below threshold)

Frankly, only a complete moron would even consider giving enemy combatants status under our domestic criminal justice system, much less illegal (under Geneva Conventions and other international law) combatants. Even to suggest the possibility of such nonsense marks one as a person whose opinion may be safely disregarded.

~~~~~~~

Maggie ~ I missed your moderating magic, but I congratulate you anyway. It's just like Jim Williams staying in Savannah after the trial: ". . . because it will piss off all the right people . . ."

You go, girl!

;-)

Drago, you're turning into ... (Below threshold)
Brian:

Drago, you're turning into Love America Immigrant, with your taking quotes out of context, making claims without any basis, and heavy use of insults to make a point when you have nothing else. That's your choice, but it accomplishes little other than coating your floor with a fresh layer of spittle.

Oh, and you're a poopy-head.

Brian, A known liar... (Below threshold)
LoveAmerica Immigrant:

Brian,
A known liar who is being busted over and over again. Yet he has no shame and keep spinning. Brian is perfect example of the shameless party. When will you stop lying, Brian?

I just finished "Lone Survi... (Below threshold)
drjohn:

I just finished "Lone Survivor."

Screw the detainees.

Screw every one of them.

They can burn in hell and I hope they do.

There is nothing we could do to them that they don't deserve. As noted, they are NOT protected by the Geneva Convention. Then again, when the HELL did the Geneva Convention ever protect our guys? When the damned hell did the Taliban give a f**k about the geneva Convention? The Geneva Convention's ONLY reason to exist is to prevent the US from doing to prisoners what the world does to US soldiers.

So I repeat:

SCREW THEM.

If this means we simply kil... (Below threshold)
LenS:

If this means we simply kill them all in battle, then we will be better off. Hang everyone in Cuba, then close it and return those Marines back to the war, preferably a new front in Iran or Saudi Arabia.

No, sorry, Brian, I;m afrai... (Below threshold)
John Irving:

No, sorry, Brian, I;m afraid you got caught dead to rights.

Better luck next time.

Thanks to TV, many have the... (Below threshold)
don bear:

Thanks to TV, many have the misperception that when someone is arrested, they must be read their Miranda rights. This is not so. Only when the police focus on a particular individual as a suspect and question him/her about the crime, must he be read his rights.

By the way, Jay, great titl... (Below threshold)
drjohn:

By the way, Jay, great title.

This is for Brian's benefit... (Below threshold)

This is for Brian's benefit. Maybe if it's all in one neat little square, he'll get it:

First, Brian says:
"Actually, about 30% of them are known to be completely innocent."

Drago responds with the exact quote from the article Brian links to which puts the lie to Brian's statement. Specifically:
"...pose no threat to U.S. national security are "no longer enemy combatants."

Then Brian says:
"Drago, I don't know what made you think "gotcha" when you read that article, but your misquoting and misrepresentations are at best irrelevant to my point, and at worst reinforce it."

"So the commanders determined they were a threat when they were detained? Fine, I didn't dispute that."

Yes.You.Did. You said they were "completely innocent".

"Drago, you're turning into Love America Immigrant, with your taking quotes out of context,..."

Dude, that WAS the context of your post. In the same comment in which you made the claim that they were completely innocent in response to Gayle Miller's assertion that they were "7th century fanatic savages " you immediately followed with:
"You're confusing the treatment given to someone guilty of an act with that given to someone suspected of the act."

Here in the US people are arrested and put in jail pending further investigation all the time. You know why, Brian? Because there is reasonable cause.

That they are "innocent until proven guilty" is a concept. Not a fact.

You took the exact opposite stance and declared 30% of them completely innocent. Based on an article which said no such thing. An article, which by saying they were "no longer enemy combatants", implies that at one time they WERE enemy combatants. And then confused the treatment of someone suspected of the act with someone "completely innocent".

Nope.If there is n... (Below threshold)
Outlaw_Wizard Author Profile Page:

Nope.

If there is no tactical intelligence to be had from taking live prisoners there is no military ultility in taking live prisoners. Our enemies have the right to remain dead.

You got caught, Brian. And... (Below threshold)
SPQR:

You got caught, Brian. And you know why? Because you don't really understand the issues you so boldly proclaim upon. That's why you didn't understand the article you falsely thought supported your ridiculous claim.

A couple things: Fir... (Below threshold)
cw:

A couple things:
First, would someone please define the difference between a lawful and unlawful combatant? Is there a difference? They both are our enemy right? Is anyone against us an unlawful combatant? What makes it lawful?

Second, no one should be detained or sentenced by the US government without an open hearing. They are not US citizens, but I do not like giving the executive branch the power to indefinitely imprison a person without an open jury trial. If any foreign entity did that to an American we would be outraged.

Third, the war in Iraq is not a conventional war. It is not WW2. There is not obvious battle front. It is an occupation. Our troops are not only coming in contact with guerrilla fighters but with common criminals and civilians. Our military is in effect policing the streets of Iraq. If we want Iraq to develop into a functioning democracy with a judicial system similar to ours, should we not set an example with our troops? In America, all people are innocent until proven guilty. Shouldn't it be the same in Iraq?




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