12 Dec David Cole on Detention in the Boston Review, and Joanne Mariner, Robert Chesney and Eric Posner Respond
Treat this as the latest round in the Guantanamo discussion … David Cole writes in the Boston Review on detention. Joanne Mariner of Human Rights Watch, Bobby Chesney and Eric Posner all respond online there. But if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release? And certainly no sympathetic words for the views of the several co-panelists who said, well, you know, some of these people you really might not want to release no matter what, and by the way there are doctrines under the laws of war that allow detention … Eric says he hasn’t been through David’s stuff closely enough to be able to say whether this is a change of mind. Well, I’m through a re-read of three of David Cole’s last four books, the ones that just happen to be sitting on my shelves. I suppose it’s possible that after wading my way backwards through all this stuff, I’ll decide differently and conclude that all along these books held a theory of administrative detention in wartime applicable to various Bad Non-Innocent Shepherds at Guantanamo, etc., etc. and I was just not bright enough to see it. Maybe, and this is not definitive, it’s just a blog post, that’s all (and if I conclude I’m wrong about this, I’ll come back and post a note here to that effect, to avoid the ‘memory hole of the public intellectuals’). But at this point it is hard for me to see how this isn’t walking back the dog now that the Obama folks are about to take the reins and with no other reason or justification. And it is equally hard for me to see that this isn’t what a law partner once long ago told me we were going to do after having given some spectacularly bad advice: “Look ’em in the eye and say, consistent with our earlier advice to x, not x.”
I posted this over at Volokh and repeat it here. Eric! Eric! Eric! In your rush to think yourself vindicated you miss what he said. If the United States could lock up German soldiers during World War II without trying them criminally, why should it not have the same option for al Qaeda fighters? The fact that the armed conflict with al Qaeda is not a war between nations ought not disable the government from holding its enemies preventively while the conflict goes on. GCIII Article 4 definitions encompass many of these prisoners with them having POW status which would mean they could have been held to end of the hostilities. GCIV Article 5 detention of security detainees is also permitted. This is not – by a stretch – the kind of preventive detention regimes that have been suggested. There is no national security court. There is no separate track for Muslim extremists. There is no movement away from the war model or the criminal model. What there is is a meaningful review quickly as to whether a person should be held (as was done over and over in the First Gulf War) and their status, rather than the kind… Read more »
Well I have a simple suggestion: obey the law and quit thinking there’s any reason not to. The law isn’t the problem here — it’s all the incompetent lawyers who are either lying criminals and / or deluded fools. The Bush gang are WAR CRIMINALS, that is all that they are, their legal arguments were fraudulent from day one, and it’s time for folks to get over the notion that their policies ever had the least credibility or legality. They never did, and it’s damned disgrace that so many lawyers went along with them one way or another.
Cole’s suggestion is silly. The idiotic neo-fascist gangsterism of the Bush administration should be repudiated as what it is, not coddled, accommodated, or condoned.
When someone starts name-calling, I know even they don’t think their argument is very strong.
This issue appears to break down along ethnic lines. And that disturbs me. In other words, identity politics creep into it.
For me, all political discussion is captured in the passage from 1984 where Winston Smith muses on the bad old days under capitalism: “Pregnant women had to work in the coal mines. (Pregnant women still did work in the coal mines.)”
Or maybe it was Pete Townsend, and David Cole work for the new boss.
To liberals, all conservatives are war criminals and no terrorists are. I think it’s a religious doctrine.
Obama must be held to the same standards as Bush. Anything else is pure hypocrisy. But like corruption and hate, hypocrisy is something I expect Obama supporters to ignore.
Darren,
Accurate descriptions are NOT “name calling”. It’s been seven years now — and all you’re telling me is that you’re dishonest.
Ken,
A criminal is a criminal, and I’m not confused about it in the least. As for “conservatives”, facts are not religious doctrines and fascist criminals aren’t conservative.
What you mostly are is bunch of demented fools and lying hypocrites.
Look folks – just read the Senate Armed Service Committee Executive Summary and decide for yourself if it was just Charles Graner and Lynndie Englund on a lark at Abu Ghraib. Remember those folks were convicted and went to jail. Why not the REMF’s too?
Best,
Ben
Charles,
You really need to do something about that foaming @ the mouth that the mention of the name Bush causes you.
Liberals, as intellectually honest as the day is long, at Nome, next week.
No Will, you folks just desperately need to find a faint clue — and after seven years of following this nonsense day in and day out, I’m not confused about the ignorance and malicious dishonesty of the Republican Party in general, or Republican lawyers in particular.
As for you Fat Man, talk to me when you’re honest enough to post under your own name. It never ceases to amaze me how utterly corrupt and dishonest you people are.
Blather. Ramble. Diss. Slam. Insult.
[insert slightly topical sentence here.]
Blather. Put Down. Name call. Diss. Slam. Insult.
(Save for Benjamin Davis’s first comment, this comment thread has been so sad)
Michael, FACTS ARE FACTS. You do understand that, correct?
We’ve been through seven years of this outrageous crime spree now. I don’t how old you are, but I grew up listening to people wonder how a civilized culture like Germany could produce the Nazis. It didn’t dawn on me how ironic it was to be wondering such rhings in a country that could produce the KKK until later.
Did you have some constructive comment of your own??
OH NO — you’re just having a fainting spell over some one else’s indelicate opinion.
Well I’m sorry to intrude on your sheltered existence, but these
people are liars, they are hypocrites, they are sociopaths, and they are MURDERERS. If you don’t understand that after the last seven years, it’s only because YOU aren’t paying attention.
There are two long established detention mechanisms. One is the civilian domestic criminal justice system that operates under domestic law, the other is the wartime detention of Enemy Prisoners of War (EPWs) and enemy alien Civilian Internees (CIs) who pose a security threat. I argue that most detainees are EPWs, but almost everyone seems to argue that they are something else. This leaves CI or ordinary criminal. But everyone agrees that none of the traditional categories seem to fit exactly and, therefore, none of the traditional processes seem to work. Since a lot of lawyers are comfortable with the criminal justice system, we have seen a lot of discussion about some form of Criminal Justice Minus (CJ-) prominently associated with Robert Chesney. A trial, but one before a National Security Court that protects intelligence secrets and therefore provides somewhat looser rules of evidence and (for non-citizens) bypasses the Confrontation clause. In this article, Cole seems to recognize the value of preventive detention that is provided by the EPW and CI model, so he proposes some version of EPW Plus (EPW+). Enemy aliens regarded as enemy soldiers or civilian agents of the enemy will be held in military custody under the authority of International Law,… Read more »
David,
Given the size of the population we’re talking about, I’d say it’s both in varying degrees. If someone intends to murder someone thinking that it’s to their advantage when it’s in fact self-destructive, what’s you diagnosis?
Why did the Nazis do what they did?
And why were they so very popular?
Looking back on it with hindsight, it’s safe to say that the greatest danger to Germany in 1937 was precisely the Nazi Party. It’s equally clear that they thought what they were doing was best both for Germany and themselves. They promoted strong social values, yet were nevertheless the worst sort of sociopaths.
Do you find any of that confusing?
Howard,
Could you please point us to any actual authority for the proposition that a military commander might legitimately order a subordinate to enter a particular plea to a criminal charge?
The notion is absurd.
“Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.” GPW art. 7.
Charles: Ordering soldiers “over the top” in WWI trenches, Japanese suicide attacks in WWII, Picket’s charge. A military commander can order his soldiers to acts of certain death. The highest ranking commander in a POW camp runs the internal affairs of the captured soldiers. He can adopt any policy that furthers the war effort of his side, and he may sacrifice any of his soldiers in that cause. Under US law, nobody can interfere with the free will of a criminal defendant. For a US commander to issue such an order to his soldiers would be illegal and they would not be obligated to follow it. That is only one side of the dynamic. There is another army and therefore a second independent law operating inside the camp. The detaining power (the US) can issue superior orders that supercede the authority of the enemy commander on some issues, but the power to issue orders does not extend to a power to block chain of command orders that are legal within the laws of the enemy army. Hence, to find an authority for either side of the question whether KSM can order subordinates to plead guilty, you have to find that authority within the law that the enemy… Read more »
<i>”The Geneva Convention places constraints on the behavior of the Detaining Power with regard to the EPWs. It does not and cannot interfere with the internal chain of command and power of the enemy over its own soldiers or the US over American soldiers.”</i> What absolute nonsense. “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” GPW art 1. “A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.” GPW art 102. “The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial. “Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall… Read more »
“The prisoner of war shall be entitled to assistance by one of his prisoner comrades”. The four other defendants would obviously choose their old commanding officer. They are entitled to meet with him. If he tells them to plead guilty, and if they regard his authority as binding on them, then they will do as they are told. Not only does the GC permit KSM to issue the order, it requires us to allow him to meet with the others to plan strategy if they request it. The rest (what he says and whether they feel obligated to follow it) are an internal matter with which the US is not allowed to interfere. This GC obligation is binding on a military commission, Court Martial, or civilian court, since it applies to the captured enemy combatant and not to the particular choice of judicial process made by the detaining power.
Howard, that is absolute nonsense. What someone chooses to do is their business, but such an “order” has no legal force whatever.
Note especially the language “the same procedure as in the case of members of the armed forces of the Detaining Power”. Under US military law, such an order would represent either UCI (Unlawful Command Influence) or obstruction of justice depending on the source.
The bottom line is that any criminal defendant has a fundamental right to a competent defense, and any court is well within it’s authority to appoint counsel if it decides justice so requires. That’s true under both US law and Geneva.
You need to get it out of your head that the law will ever go along with railroading people in kangaroo courts, or with arbitrarily dividing the human race between “people who deserve fail trials” and “people who are too dangerous to have fair trials”. All your BS is ever going to prove is that you yourself are an enemy of humanity and reason — a congenital fascist.
Much as we may love our system of justice and our principles of individual freedom, we cannot force these principles down the throat of others who have an entirely different point of view. Among jihadists, there is only God’s law. All laws of man are blasphemy. We cannot take a gun and force them to agree to our principles of woman’s rights, or freedom of speech and religion. If KSM under their law can order 19 men to hijack airplanes and crash them into buildings, then under their law he can order 4 men to plead guilty and sacrifice themselves with him for political or military gain. We cannot force these men to accept our principles any more than they could force our soldiers to convert to Islam and accept Shari’a. We can refuse to accept their plea and try to assign counsel, but last time I looked even under our law a defendant has the right to represent himself and plead guilty. Now here is the key part. Under our law it would be improper command influence for a superior officer to order a soldier to plead guilty to any criminal charge we make against him. However, in Vietnam it… Read more »
Oh really Howard…
So we’re to understand that you are both an official representative of Al Qaeda AND the world’s foremost authority on Islamic religion and law?
BULLSHIT.
You’re just a damned ignorant BIGOT spinning sophistry to rationalize executing people without a fair trial on the theory that you know more about what’s going on inside their heads than they do, ETC.
I don’t care what you think about Islam any more than I do what KSM does. If you want to plead guilty to a capital charge on his orders, that is your privilege. It’s my privilege to consider that conclusive evidence of your mental incompetence. I would never accept such a plea, and would never agree that KSM could have any valid authority to issue such an order.
Charles, please leave out the personal invective – it is not appropriate on this blog. I – we – welcome vigorous commentary, but “mental incompetence” and “congenital fascist” and “damned ignorant bigot” are not okay. Thanks.