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Neither Fish Nor Fowl

Well, the Supreme Court -- by the slimmest majority -- has ruled that the detainees at Guantanamo are entitled to have access to our civilian legal system. And I have to say I think this is a singularly bad thing. And I have come to this conclusion based on two arguments.

The first is, our troops are not cops. And I don't want them to be cops.

Here's a somewhat fanciful (but I think not entirely unrealistic) series of vignettes that show what I mean:

"Call the first case."

"People of the United States vs. Abdul Durka."

"Mr. Prosecutor?"

"Your honor, Mr. Durka was captured on the battlefield bearing arms and fighting against our troops."

"Who captured him?"

"Corporal Washburne and his platoon."

"Is Corporal Washburne available to testify?"

"No, your honor, they were killed in action three weeks later."

"So, do you have any witnesses to Mr. Durka committing these alleged crimes?"

"None still alive, sir."

"Case dismissed. Next case?"

"People vs. Mohammed Jihad."

"Mr. Prosecutor?"

Your honor, this Mr. Jihad was found, unconscious, after a battle with an AK-47 in his hands."

"And who found him and took him into custody?"

"Sir, that was Captain Reynolds, and he has been standing by for the last six months to testify."

"And the weapon in question?"

"It was destroyed, along with all the other weapons seized in the battle."

"No evidence, then? Case dismissed. Next case."

"People vs. Ismail Hussein."

"Mr. Prosecutor?"

"Your honor, Mr. Hussein was captured in a raid on a terrorist hideout. He was caught with three kidnapped civilians in his custody. He had just finished a video of himself beheading a fourth, and was standing over the body with the knife still in his hand."

"Sounds ugly. Who led the raid?"

"Sgt. Alleyne, who has been standing by to testify for eight months."

"How did Sgt. Alleyne know that there were terrorists in that building?"

"She acted on tips from neighbors."

"Did she obtain a search warrant before going in?"

"No, your honor."

"Case dismissed."

The point I'm trying to make here is that soldiers are not cops, and we should not expect -- or demand -- that they act like it. The primary job of both is similar -- both are agents of the government, authorized to use lethal force in the furtherance of order and government policy -- but that is where the similarity ends. Police are highly trained to enforce the law, to use minimum force (if at all), and observe all the niceties and restrictions and repect the rights of those they oppose.

Soldiers, on the other hand, are trained to obey orders and use whatever force they deem appropriate to achieve their goals. That could be a handgun, or it could be armored vehicles, guided missiles, and big honking cannons mounted on armored vehicles. The military invented the term "overkill" only after they realized civilians needed a term to describe what they do as a matter of course, and never even thought to name.

The second reason is that terrorists are not criminals. Terrorists are the bastard child of criminals and soldiers, an unholy hybrid that blends the worst characteristics of both -- the amorality and "do whatever it takes" and willful defiance of the law and the rights of others of criminals, and the tactics and weapons and absolute determination of the soldier. They lack the discipline and honor and integrity of the soldier, and the self-interest and self-preservation of the criminal.

This means that to treat them purely as criminals is pretty much doomed to failure. We saw this during the Clinton administration, when Bill Clinton responded to the ever-escalating threat of Al Qaeda by unleashing the Justice Department on them. After the first World Trade Center bombing, the FBI indentified the bombers (through a combination of good policework and the incredible stupidity and greed of the bombers -- who actually sought the return of their deposit on the truck they blew up!) , and the Justice Department put them on trial.

And actually won convictions.

But what did that achieve?

Well, for one, we were incredibly lucky that they had largely succeeded in their attempt -- at least as far as the prosecution was concerned. That meant that we didn't have to reveal how we uncovered their plot before they could act, exposing our informants and our technological prowess at intercepting their communications. Instead, we just had to say "here's the axle of the truck they blew up. Here's the receipt showing Ryder bought it, here's the rental agreement the defendants signed for it, here's the storage unit they rented to mix up the bomb, here's the leftover bomb stuff," and so on.

But even with that, they still found a way to subvert the justice system. While in prison, the ringleader -- the blind sheik, Omar Abdel-Rahman, carried on his leadership of his terrorists. He persuaded his attorney to bring in his henchman as a "translator" and then sit there and pretend she was discussing the case while he took reports and gave orders to the translator in Arabic.

Moreover, busting up that cell did absolutely nothing to head off future terrorist attacks. It didn't prevent the Khobar Towers attacks, the African Embassy bombings, or the attack on the USS Cole.

The reason that our legal system is so ineffective at fighting terrorism is largely because it poses no real threat to them.

"Achmed, we want you to go to America and blow up the Washington Monument."

"But what if I am caught?"

"Fear not, noble Achmed. You will be placed in a cell and given regular food, exercise, a Koran, and television. You will have your own lawyer who will fight for you. You will have regular chances to speak out and declare your faith in our cause and your hatred for the Great Satan.It could take years before you are actually brought to trial. And even if you are convicted, it will be even more years before you are executed. It is more likely you will be sentenced to prison for a very long time, but your lawyer will never give up trying to win your freedom."

"But how will I pay for this lawyer? Or will you?"

"The Great Satans will pay him for you."

"Will I be tortured?"

"Only if you ever meet with those who will support you in your struggle with the Great Satan."

"I don't understand. There are those among the Americans who will champion me against their own government? And meeting them will get me tortured?"

"This is a picture of Cindy Sheehan."

"Allah preserve me!"

"Fear not, you can refuse to meet with her if you wish. And the Great Satan will actually keep her away from you if you say so."

"Should -- Allah forbid -- I fail and be caught, those will be the very first words out of my mouth."

"Don't worry too much about getting caught, Achmed. It is quite possible you can do more damage to The Great Satan as a prisoner than as a jihadist."

"Truly? Allah is great, my brother!"

Again, a bit of an exaggeration, but I don't think too much of one.

Finally, I reject that the Geneva Convention should apply to terrorists.

For all its high ideals, the Geneva Convention accords governing warfare and the treatment of combatants can be boiled down to a single principle: extortion. It spells out what is and is not acceptable conduct in times of war, but the enforcement mechanism is simple: "we won't do these things if you won't." If you violate the rules, then you have forfeited your protection by them and pretty much anything goes.

The Geneva Convention was signed by nations, and the terrorists we face are not representatives of any nation -- signatory to the Accords or not. Further, by their very conduct, they routinely flout the rules of combat. They do not wear distinctive uniforms. They do not avoid causing civilian casualties. They do not respect such off-limits targets as schools, hospitals, ambulances, and the like.

Indeed, they almost seem to use the Convention rules as a checklist of ways to increase the efficacy of their attacks. They wear civilian garb and hide among civilians, making it very hard to target them without endangering innocents. They deliberately attack and kidnap and kill civilians. And they have used hospitals as bases of operations, ambulances as troop transports, and blown up at least one school -- while children were attending.

The only reason we should be obeying the Geneva Convention with regards to terrorists is the old "because we're the good guys," and even that is lacking. In this case, we are deliberately hobbling ourselves because the whole point of the Accords is that they are self-enforcing -- if you want the protections they offer, then you better obey the restrictions they place on you.

Unless, of course, you're fighting the United States. Then you're free to do whatever you like, secure in the knowledge that you will be treated the same as if you did obey them. There is no real penalty for being as savage, as brutal, as inhumane as you wish.

But that's OK. The Supreme Court, by a 5-4 vote, has said that that's OK. Terrorists are just criminals, and our courts can keep us safe.

I feel so much better now. Don't you?


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Comments (36)

About the only benefit I ca... (Below threshold)

About the only benefit I can see from this ruling is a dubious one for the terrorists. This pretty well insures operations security - because there aren't going to be any live prisoners.

This isn't a victory for the law, or for the signatories of the Geneva Accords. It's a victory for a narrow, legalistic mindset that has little contact with the realities of war.

What's next - Miranda rights courses for our soldiers?

This pretty well insu... (Below threshold)

This pretty well insures operations security - because there aren't going to be any live prisoners.

I would agree with that in the great majority of cases that invovlve prisoners captured in some type of combat situation. I think the more important prisoners captured in grab and snatch situations, such as Khalid Sheikh Mohammed, will no longer find their way to a US jurisdiction or venue.

No prisoners & kill them al... (Below threshold)

No prisoners & kill them all and let Allah sort it out.

Battlefield executions, as ... (Below threshold)

Battlefield executions, as the Geneva Convention suggests for illegal combatents is going to be the result of this decision ...

I hope at least :)

I can see the suspects gath... (Below threshold)
The Grumpy Old Bald Guy:

I can see the suspects gathered up, questioned and then returned peacefully to their homeland. The fact that the Aircraft they are on is not allowed to land in their homeland shouldnt stop us from "dropping them off" close to their homes, heck with laser guidance we should be able to pinpoint their front door step. Door to door service. Who says we dont care? And it wont be like we detained them for years, 30 days tops and they should be compensated for thier time. Standard perdiem if you are being fed and housed is $3 a day for a military member. But since they all claim to be innocent "students" lets give them $10 plus food and lodging, so $300 cash or the Euro equivilant, in a nice sealed waterproof impact resistant package. And maybe if they were particularly helpful, they can have a parachute in the back pack instead of 30 pounds of bacon. I can almost guarantee that seeing one of their fellow "students" walk out the back of a C-17 without a chute on will make the rest of them speak up. Not that I would ever condone that. Even if it did save countless lives, that wouldnt be nice.

Liberals everywhere seem to... (Below threshold)

Liberals everywhere seem to be celebrating a "defeat for the Bush Administration." The Bush Administration is over in about 7 months ... what do we do with this ruling then?

As I understand the current battle situation in Iraq, we don't take many prisoners, simply because few jihadis are left alive after intense firefights. The ones we do capture are usually turned over to local authorities, to be dealt with under Iraqi law.

The majority of prisoners that have made it to Gitmo are jihadis known to us as ringleaders or men with up-close knowledge of how al-Qaeda works. Many were, as HughS pointed out, captured in "snatch and grab" operations. Some Gitmo prisoners were found to only be low-level flunkies and have been released into the custody of their home nations. Most of the others have been interrogated long ago and they are now of little or no intelligence value to us. But the reason these men are still in Gitmo is because they are extremely radical and dangerous, and we simply can't risk releasing them.

I am hopeful that a reasonable judge -- when presented with a dossier on a prisoner, perhaps including his activities as a terrorist and his knowledge of/complicity in future terror attacks, and his behavior while at Gitmo (attacking guards with urine and feces, biting, kicking, punching, hurling objects, etc.) -- would rule that said prisoner is indeed dangerous and must be left in custody.

The we can let Congressional Democrats and President Obama or McCain figure out what to do with them, keeping in mind that if a released Gitmo detainee is ever implicated in a deadly domestic terror attack, there will be political hell to pay.

It's a shame that congress ... (Below threshold)
P. Bunyan:

It's a shame that congress is in the shape it is (Marxist controlled and likely to stay that way for the time being) when several of those leftist judges on the court may be ending their terms in the next couple years. I pray that McCain wins. I don't know how well he will do with a Democrat/Marxist congress, but at least there's a chance that we could get a couple more pro-American judges on the court like Roberts, Alito, Thomas, and Scalia. It's not guaranteed, but at least there is some hope that we'll have a court that will side with America over it's enemies.

With Obama there is no hope and there'll be no change.

A very, very short sighted ... (Below threshold)

A very, very short sighted decision. Like Kelo, and immigration, this will cause the rank and file conservatives to rise up a demand better judges. ww

Conservatives and Americans... (Below threshold)

Conservatives and Americans in general will only "rise up a demand better judges" if they someone rallying them.

THIS is the time for John McCain to be that someone. He has a few days to assume that mantle and use this decision to go forward, or rest assured Barak Obama will find a way to spin it his way.

McCain could, at least, say something like: "OK, I am against torture...but that doesn't mean I want these murderous thugs treated like common thieves!" And then rip into the SCOTUS decision.

McCain...it's put up or shut up time.

The big problem is that the... (Below threshold)
Jerry in Detroit:

The big problem is that the home countries of many of the absolutely wonderful, peace loving people won't take them back. I say release them and send them home with their lawyers. Alternatively, we could simply release them...in D.C.

easy solution: TAKE NO PRIS... (Below threshold)

easy solution: TAKE NO PRISONERS

As much as I hate both terr... (Below threshold)

As much as I hate both terrorists as well their actions, there is no formal declaration of war against them. And since every detainee is considered a potential criminal, detained as a result of an American police action, not detained as a prisoner of war, I suppose that any detainee is entitled to some legal process as well as legal representation to prove that they were not wrongly detained. If this process proves too onerous for the United States legal system or military in the future of these police actions, then I expect administration lawyers to come up with something that is workable.

One of the real areas of co... (Below threshold)
Corky Boyd:

One of the real areas of concern is the type of evidence being used against terrorists, especially top level ones. Much of it is derived from highly sensitive intelligence that the country can't allow to be compromised. They will drop the case rather than allow the information out.

The Supreme Court dropped the ball on this one.

I have some questions:... (Below threshold)

I have some questions:

Can this be be appealed or brought before the SC again?

and do military men and women now have to mirandize captured enemy combatants?

Will these enemy combatants have the right to sue the Military or the US because of their capture?

See ya
cathy :)

..keeping in mind that ... (Below threshold)
Les Nessman:

..keeping in mind that if a released Gitmo detainee is ever implicated in a deadly domestic terror attack, there will be political hell to pay.

Hasn't this already happened to some extent? I thought there were former Gitmo detainees that were killed fighting with the terrorists in Afghanistan.

It seems to me that we mere... (Below threshold)

It seems to me that we merely turn our prisoners over to our local allies so that we don't have them in custody outside of the field of battle.

It's an idiotic ruling but there is a work-around.

Les, if I remember correctl... (Below threshold)

Les, if I remember correctly, there have been 30 or so detainees who were released and captured a second time. But I couldn't guess how many had returned to battle and are dead now. I imagine it's quite likely that at least some have.

let me add to that ... But ... (Below threshold)

let me add to that ... But I couldn't guess how many had returned to battle and are dead now or just haven't been caught again.

Well, hell, now that we're ... (Below threshold)

Well, hell, now that we're militarizing our police force and turning our military into a police force, maybe we just should send in the NYPD SWAT team and turn the Army loose on DC.

If someone is innocent (or ... (Below threshold)

If someone is innocent (or not demonstrably guilty) of charges, he or she should be released. Think he or she might then have a serious hate-on for the U.S. such that he or she might kill some soldiers? Well, that's a conundrum, but the solution cannot be to detain them indefinitely without charging them. That's wrong--right?

Prisioners or war can be he... (Below threshold)

Prisioners or war can be held for the duration of the war. The terrorists started this war and chose the tactics by which they would fight it - those tactics made who we were at war with and how the war would be considered won cloudy. It's on them, not us. Anyone whining about us not having declared war officially or not being at war with a nation, tough crap. We played the hand we were dealt.

Hey!! What happened to my ... (Below threshold)

Hey!! What happened to my plan for usin these detainee maggots as crash test dummies? We'd have used em up by now!!

Gitmo has always bothered m... (Below threshold)

Gitmo has always bothered me. We set up a detention facility outside of the United States for the express purpose of avoiding our own laws. You can dress it up anyway you want, but that's what we did.

I have no love of terrorists. I'd as soon shoot one as give them the time of day.

But Gitmo is a stain. The fear of what these guys have done or might do if released has turned us into something less than what we are.

Yesterday, Judge Napolitano laid what's wrong with what we've been doing down there on Fox News (those liberal bastards). I think you can still find the clip on the Studio B main page. Some of the people at Gitmo were literally sold to U.S. Forces by The Northern Alliance. They tied some of these guys up, turned them over to us, told us, "Yeah, this guy's Taliban." collected their bounty and disappeared. Others are there based on statements made in interrogation sessions.

Seriously? I know that some of the people there are bastards and killers and worse. But you honestly support taking away someone's liberty forever based on hearsay and/or coercion?

I'd rather have 10 guilty go free than have one innocent confined. I know it's idealistic or not pragmatic or illogical. I've just got this little voice in my head that keeps saying, "We're better than this!"

I think 6 years without cha... (Below threshold)

I think 6 years without charges is a bit long. Maybe 5?

Oh hell, give them cookies ... (Below threshold)

Oh hell, give them cookies and milk and they will sing. Then send them to live with "people" like Paul Hooson or jp2. smooch smooch.

So, jhow66, you're for inde... (Below threshold)

So, jhow66, you're for indefinite detainment of non-guilty people on the basis of cost-benefit analysis? That's the America you want to live in?

jhow66, you forgot to inclu... (Below threshold)

jhow66, you forgot to include hyperbolist...yoo know...stooges always come in three's.

Moseby, maybe you'd like to... (Below threshold)

Moseby, maybe you'd like to answer: do you want to live in an America that determines whether someone ought to be incarcerated based not on evidence, or any legal measures, but on the hunch that that individual might be mad enough to kill somebody once he or she is released?

'Cause that sounds a lot more like Cuba or the USSR to me.

I'll bite Hyper,No... (Below threshold)
P. Bunyan:

I'll bite Hyper,

No, not only do I not want to live in that country, but thankfully I don't. I don't hate or mistrust our military as many leftist appear to. The detainees do have rights and they do get hearings.

Do I want them to be treated like the accused in this country? Hell no. It doesn't work that that in war time. Never has and in my opinion, it should not. Is it a wonderful and perfect system? No. Is it the best we can do under the circumstances? Yes.

But if I was a willfully misinformed about what is really going on as you leftists are, I probably would think that America is the bad guy all the time too.

You are really good at building straw men though. Maybe you should head to the plains and put your talents to work in the wheat fields.

I don't hate or mistrust ou... (Below threshold)

I don't hate or mistrust our military P. Bunyan, I just retired from the AF last year, and on this issue, I've got to side with those on the left.

I've got no problems with the scumbags that were picked up after they lost a battle. I've got huge problems with the ones that were either turned over by rival tribes or confessed only after being interrogated, or were accused by someone who was interrogated.

I can't say it enough, we're better than this.

Well that is a point, Timme... (Below threshold)
P. Bunyan:

Well that is a point, Timmer, but I'm sure there are two sides (or more) as there always are, to the story. People have been released so I don't think anyone's being held without cause. I also think Roberts, Scalia, Alito, & Thomas know more about this then I do and I will trust their judgement even if it doen't count in this matter.

And thank you for your serv... (Below threshold)
P. Bunyan:

And thank you for your service.

And it looks like you got y... (Below threshold)
P. Bunyan:

And it looks like you got your wish. The other times this happened the Republican congress re-wrote the law to apease the leftist judge's diktats. Not gonna happen now.

So we'll all get to see the results of this judicial experiment.

It's not an experiment. You... (Below threshold)

It's not an experiment. You can't detain people for fear of their future actions when they can't be shown to have committed a crime, unless there is evidence that they intend to do wrong once released. Simply assuming that they might (after all, they have been "interrogated") isn't good enough.

Timmer is absolutely correc... (Below threshold)

Timmer is absolutely correct. Call it idealism, but my America does the right thing regardless of the cost. The question to ask is, do you love your country more than you hate terrorists?

Are these not the same bunc... (Below threshold)
Spurwing Plover:

Are these not the same bunch of idiot judges who says its okay to confiscate private prpoerty and sell it to another party so they can tear down grandmas and grandpas resruant and replace it with a cassino? I SAY THEY SHOULD BE REPLACED






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