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Call Me Cassandra

With the proposed closing of the detention facilities in Guantanamo and the granting of civilian trials to the detainees held there, I found myself re-reading some of my thoughts on that matter in recent years. One article, from almost a year ago, explores just how the military might react to the possibility that their prisoners will have to be treated like common criminals arrested here in the US.

The idea, I fear, comes as a consequence of having lawyers being too much in charge of things. To them, everything not only can be settled in a courtroom, but should be.

It's been noted that the majority of Barack Obama's presidential team have law degrees. Indeed, both Obama and his wife are also lawyers. And lawyers have their own way of dealing with issues.

The problem is that that is not always the best approach. And this seems a case of "if your only tool is a hammer, all your problems start looking like nails." In this case, all of Obama's solutions seem to involve lawyers, and laws, and trials, and lawsuits.

I'm no lawyer (thank god), but I have just enough legal knowledge to get myself in trouble on a regular basis. And I can see all sorts of interesting challenges to the holding of detainees in the War on Terror:

1) Jurisdiction. Since when to US laws apply in foreign nations? These are not Americans, not acting on American territory, so they had absolutely no obligation to obey American laws.

2) Charges. Just what crimes are they accused of committing?

3) Right to Confront the Accuser. Will this involve bringing the capturing troops to the courtroom? How about covert agents? Foreign nationals who turned them over to us?

4) Disclosure of Evidence. Will the government be obliged to reveal all its secrets, and methods of gathering them?

And that's just the tip of the proverbial iceberg.

Under the terms of the Geneva Conventions, combatants can (and should) be detained until the end of the conflict. But these people are not covered by the Geneva Convention, as they never complied with the obligations it places on combatants.

These people are NOT common criminals, and our justice system is NOT designed to deal with them. Most of them are combatants taken on the field of battle, and they should be handled by the military -- which is experienced in such matters.

But we are moving from being a nation of laws to a nation of lawyers, and that isn't how lawyers settle things.

I find myself wondering if Shakespeare might have been right.


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Comments (9)

<a href="http://wizbangblog... (Below threshold)

We just be discussing this subject I wonder if the trail lawyers will require the reading of Civilian Miranda or UCMJ version to these guys.

This is not even a slippery... (Below threshold)

This is not even a slippery slope, this is going off the cliff. If the terrorists get into civilian courts, of course they will have the opportunity to inspect all evidence against them and more importantly, how and who gathered it. This move will kill americans. ww

Does anyone remember when w... (Below threshold)

Does anyone remember when we went after Manual Noriega. We had all the Human Rights groups stating that the US could not try him in American courts because he was not An American citizen and he was in his own country and was therefore out of US jurisdiction.

Now they argue the exact opposite.

Actually, all this will do ... (Below threshold)
Andy T:

Actually, all this will do going forward is result in more dead terrorists. When in doubt, battlefield lethality will increase. Not a bad result, but it means bad things for people who would have been captured and found innocent. Now, they will be found dead. The terrorists will be just as dead.

I've always thought it curi... (Below threshold)

I've always thought it curious, as a lawyer, why the Left views Constitutional rights as applicable to non-citizen combatants.

Assuredly no other generation has for obvious reasons.

Captured on foreign soil, with national intelligence means and methods, without much witness or evidence other than that from those who captured the combatant, the normal rules of trial procedure won't work.

It's pretty simple, I agree. And subordinating the national security and military in this regard is a really bad idea.

ANDY T.- I hope ... (Below threshold)

I hope your right....
If MORE dead terrorist is the end result..
Sounds good to me.

This is just the backdoor t... (Below threshold)

This is just the backdoor to the International Criminal Court and the additional protocols to the GC advocated by EU nations that rep/dem presidents have not signed onto. When it's all said and done the only detainees that will be held and prosecuted will be those caught in America and tried in criminal court and those caught overseas and tried in the ICC for war crimes. Everybody else will either be held as a POW (and afforded all the rights of lawful combatants) or handed over to the host nation for disposition - just as our EU allies want.

Traditional treatment for t... (Below threshold)

Traditional treatment for those captured doing what many of our enemies are doing consists of shooting them in the face and moving on.

This will likely become the norm again when no one is looking.

The anti-Bush theme is goin... (Below threshold)
L Elion:

The anti-Bush theme is going so far in the wrong direction that historians will laugh at us. What kind of intel can you get from dead terrorists?






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