"For the most part, the Republican Party is the only outlet where conservatives have a voice, so we have to use it. But it functions like a rusty knife we use only because we can't cut our steaks with a spoon."- Matthew Rathel

Wednesday, July 16, 2008

Terrorists, Habaes Corpus, and You

Much has been made in recent months over the prison camps at Guantanamo Bay Cuba and the right of foreign combatants to be held without due process of law. With the Supreme Court’s 5-4 decision (Kennedy siding with the majority) that the camps deprive suspected terrorists of the right to a fair trial, one has to ask himself or herself exactly how far Americans must go to accommodate those who illegally wage war against our armies and our citizens. To the conservative, the answer is simple and clear: we are not obligated to provide non-citizens with the same criminal trials afforded to our own people.


While the Geneva Convention covered extensively the need for protecting prisoners of war and enemy combatants (yes, there is a difference) the Supreme Court decision leaves one to believe that the sovereignty of the U.S. often finds itself trumped by the importance of world opinion. In other words, many of the left and the left side of the court tend to err on the side of appearance even when our own safety is at risk. Under article 4 of the Geneva Convention, foreign combatants are not given POW status because they fight for an unrecognized government. The Geneva standards present us with one ultimate goal: to make sure that countries at war conduct themselves in a humane manner. However, how one country chooses to handle those who do not fall into the jurisdiction of the Geneva Code falls largely to the acting party.


In the United States, we are often called to set an example for the rest of the world, however unfair that might seem. To the politicians on the left, this means that we should sometimes forgo the rights of a sovereign nation and adhere to world opinion. To the conservative, this unfair obligation pales in comparison to the threat of terrorism. I will not go so far as to assert that liberals don’t have our best interest at hand, as that kind of demonizing turns discourse away from the true issues; rather, I will state that the focus on the left often shifts away from the American towards the American Brand. In the case of the Gitmo detainees, the Court has sided with the American Brand.


In the case of 200+ prisoners in Cuba, the Court has been fairly open with its criticism of the Bush plan but has not offered a viable alternative. My conservative partners and I contend that giving civil trials to terrorists and enemy combatants affords illegal soldiers more civil rights than American soldiers would receive under our current system. I can only imagine a situation where captured Al Qaeda terrorists are released because an American soldier in a war zone forgets to administer Miranda Rights. Now I agree that holding a prisoner for 6 years without any sort of trial doesn’t exhibit the picture of due process, but I think that a variation of the Gitmo camps mingled with an expedient military tribunal meets the ethical standards set forth by the Geneva Code.


In truth, I feel that the need for a new system of detaining combatants appears eminent. What I do fear, however, is that in the search for this new system the opinions of our European and African brothers and sisters will play a larger role than intellectual reason.

1 comment:

smrstrauss said...

Re: “My conservative partners and I contend that giving civil trials to terrorists and enemy combatants affords illegal soldiers more civil rights than American soldiers would receive under our current system. I can only imagine a situation where captured Al Qaeda terrorists are released because an American soldier in a war zone forgets to administer Miranda Rights.”

It is essential to understand the basic facts about the Guantanamo situation so that fantasies such as the idea of granting Miranda rights to persons captured in battle do not confuse the discussion.

Guantanamo is not a prisoner of war camp. NONE of the prisoners taken there were or are merely POWs.

ALL are charged with something other than being simple POWs. Either they are being held on terrorism charges, as Boumediene is (he was arrested in Bosnia). Or they are accused of being “unlawful enemy combatants.” Or they are being charged with being both unlawful enemy combatants and something in addition, as in the case of Omar Khadr, who is accused of killing a US soldier during fighting in Afghanistan. Note that if Khadr were merely a POW, he could not be tried for killing a US soldier under the Geneva Conventions.

So, the fantasy of having to read prisoners captured in battle their Miranda rights does not apply. The Supreme Court did not say that ordinary POWs have rights other than their Geneva Convention rights (which the court did rule the prisoners at Guantanamo also have in an earlier case), since no ordinary POWs are at Guantanamo.


So, no Miranda rights. And note that if prisoners had been kept in Iraq or Afghanistan as ordinary POWs, the court would never have gotten involved.

The ruling does say that the habeas corpus process applies to Guantanamo, since Guantanamo is in effect US territory, and the facts are that ALL those who are held in Guantanamo are being charged with some kind of crime. Kennedy discusses in detail that some of the persons held at Guantanamo were captured far from battlefields, implying that the question of whether they are combatants or terrorists is moot. And, in a recent unanimous appeals court ruling (http://www.latimes.com/news/nationworld/washingtondc/la-na-gitmo24-2008jun24,0,6727416.story) a court ruled that the government failed to show that a Chinese Muslim was a combatant against the United States.

Also, the Supreme Court has not said, not so far at any rate, that the TRIALS of the Guantanamo prisoners must be civil trials. That is an issue for another case. Kennedy’s ruling applies only to the process of habeas corpus.

The ruling is a strict construction ruling. The Constitution says that Habeas Corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” That is an absolute. Habeas Corpus cannot be suspended by anyone, not even by law, unless there is a rebellion or an invasion going on.

The reference to rebellion or invasion seems to indicate that the prohibition of suspension refers to only US territory. Kennedy, however, shows that Guantanamo is in effect US territory for purposes of law. If it were not US territory, it would be lawless territory upon which the Constitution would not apply and upon which anything that Congress and the President passed into law would be the law, without the restraints of the Constitution. Kennedy finds this idea offensive.

Moreover, he finds that the concept of Guantanamo being legally Cuban territory is absurd. (And quite right, if it were, then a Cuban court could demand the prisoners we keep there, and under the logic that Guantanamo is “de jure” Cuba, we would have to give them up to Cuban justice.)

Since Guantanamo is in effect US territory, has there been a rebellion or an invasion? If not, then the provisions of habeas corpus must apply.

Re: “giving civil trials to terrorists and enemy combatants affords illegal…”

As I said, the ruling does not provide trials, but only the right to habeas corpus. More importantly, none of the prisoners held at Guananamo is, so far, legally a terrorist or an unlawful enemy combatant. All are accused of those crimes, but all should be presumed innocent until they are proven to be criminals.

Moreover, since there are reports that mistakes were made in 33%-50% of the arrests (http://www.washingtonpost.com/wp-dyn/content/article/2008/07/11/AR2008071102954.html?hpid=moreheadlines), it is particularly important to deal with each defendant in a way that will determine whether mistakes have been made.

Indeed, the concept that we are giving accused terrorists “rights” is a emotional construct. Who would want to give a real terrorist or even an accused terrorist anything, much less a right? There is a semantically neutral way of thinking about the legal process, however. It is merely a process for determining whether persons are really guilty, or if mistakes have been made. Did we arrest the right man or the wrong man?

It is always useful for the government to learn whether it has been efficient or inefficient in some process. Where the process is the arrest and legal treatment of accused terrorists, it will be useful for the government to learn whether it has arrested the right people in the bulk of cases, or if it has made mistakes in many of the cases. This process will allow the government to learn from its mistakes. If there is no fair way of determining whether the government was right or wrong in the arrest process, then it would be likely to go on making mistakes in that process.

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