Quote of the Day — Ari Fleischer Version

by Kevin Jon Heller

Ari Fleischer, former Bush press secretary, explaining why terrorists are more dangerous than Nazis:

They [the Nazis] followed the law of war. They wore uniforms and they fought us on battlefields. These people are fundamentally, totally by design different. And they need to be treated in a different extrajudicial system.

Noted with horror but without comment.

http://opiniojuris.org/2013/05/03/quote-of-the-day-ari-fleischer-version/

9 Responses

  1. During WWII, 435000 Axis prisoners of war were brought to the US and held in prisoner of war camps across the country. This was an entirely “extrajudicial” system. None of them received lawyers or hearings or writs of habeas corpus. The reason why they were held without charges or trial and without objection is that they wore uniforms, carried ID cards, and in compliance with the laws of war gave their name, rank, and serial number when captured. In the current conflict the enemy does not wear uniforms and when captured does not give name or rank. Instead, they have all been prompted to claim they were just visiting Afghanistan. So they are held outside the US instead of inside the US to avoid granting them any further legal basis to challenge their detention. They have been afforded so many challenges that it is no longer possible to claim the system is “extrajudicial” although both the current and WWII cases were non-criminal.
    This has nothing to do with who is more dangerous. Furthermore, if we “followed the rule of law” in WWII by locking up 1000 times as many people without charges or trial or hearings, then it would appear that Guantanamo also follows the rule of law. If you object, it is presumably not because if enemy army was 1000 times smaller and therefore less dangerous there is some threshold of army size below which you cannot take any prisoners.
    Although the Germans “committed brutal and vicious war crimes” during WWII, as stated in the article you cite, none of the 435,000 soldiers held in the US were being held for any of these war crimes. They were being held as enemy combatants. That some other Germans in Poland were murdering Jews while POWs were sweating out their days in a Mississippi camp does not somehow provide a stronger legal justification for holding them as POWs. We held each individual soldier simply because he was an enemy soldier, not because his army was more dangerous or because other members of the same army committed war crimes years after he was captured.
    Clearly there are some legal issues with Guantanamo. However, none of these issues is mentioned in the piece. There is misrepresentation and then Tobin (not Fleischer) plays the Hitler card and when Fleischer correctly points out that Hitler’s greater evil has nothing to do Bin Laden’s equal viciousness on a smaller scale, there is the complete non-sequitur that Fleischer will “go so low” as to actually defend the Bush administration from an illogical attack that has been wrapped up in the Nazi gambit.
    During the Civil War, Confederate soldiers were captured and held extrajudicially in POW camps throughout the North. There, now that I have said it I am sure with an equal measure of indignation you will find that I have not adequately admitted the evils of Southern slavery, and therefore it’s “striking how low I’ll go” to defend Fleischer.

  2. Ari Flesicher said that the Nazis followed the laws of war. End of story.

  3. @Howard

    What if Khalid El-Masri disagrees with the US argument. He might believe one of the following:

    There is no war.
    The law of armed conflict does not apply to his case.
    The human rights law applies to his case.

    Why should the US have the last word on the matter and El-Masri should not be able to sue the US in any court, national or international?

  4. The law of war in fact addresses this issue, by permitting a belligerent to try francs tireurs. If it’s the fact of fighting out of uniform that supposedly makes these individuals so bad, then clearly that’s the appropriate way to dispose of the issue – not indefinite detention by executive order.

  5. Howard Gilbert: Hmm, the civilians killed by drone strikes/cross-border raids and the thousands of others that have been killed in this ‘war on terror’ in weddings, schools etc. etc in Afghanistan/Yemen/Pakistan (and not to mention Iraq) seem to be saying the opposite: its the uniformed “civilized” soldiers bearing their name and rank and nationality who are the ones who have without discrimination destroyed their life and property with impunity.

  6. This discussion is sick.  This is about misdirection.

  7. Rob Clarke – The government claims it has enough evidence that Gtmo detainees participated as francs tireurs (unpriviledged beligerents) in the war against AQ and related groups to justify their imprisonment until the war is over (indefinitely).  But, with respect to the majority of detainees, the government doesn’t have enough evidence of their participation to charge them for it, and give them either a civilian or military trial.  That doesn’t seem reasonable when you consider that they can be charged just for participating in the war, no matter what they did to support the enemy, based on their status.  The seven detainees convicted at Gtmo were charged for participation in the war in various places, before or after 9/11, by various means.  Their actions were not in all cases crimes in themselves, but were illegal based on their status and the fact that they assisted the enemy group.   The activities were combat or support in nature, and could be involvement in attacks on military or civilian objects.  One detainee was tried as a criminal suspect in a civilian court.  In reality, people who participate in wars while not having a legal right to do so, as a soldier does, are all criminals.  If there is evidence that the Gtmo detainees did that, they should be tried.  If not, they should be released, IMO.  It does’t seem right to hold criminal suspects indefinitely in prison if there isn’t enough evidence to charge them.

  8. I’m aware of all that, which is why I said that a judicial process is “the appropriate way to dispose of the issue – not indefinite detention by executive order”

  9. I didn’t mean to suggest you weren’t.  I should have worded my response differently.  Your comment just made me think of the situation in a different way than I had before, i.e., the fact that these people are labelled the way they are should automatically make it possible to try them.  If they’re impossible to try, as claimed by the government, it should also be impossible to justify their detention because it means there is no solid proof they were even in the war.  The real difference between the Gtmo detainees and the German POW’s, aside from the fact that they were uniformed soldiers and were legally in the war, is that there was no doubt they participated in the war and no need to prove it.
    I’m hoping somebody will tell me how the detention of the Gtmo detainees is actually legally justified, given the seeming uncertainty that these people were actually in the war against AQ, etc., or the Afgan war, as the case may be.  If I remember correctly, an occupying power can detain anybody including civilians it considers a security threat, but not usually forever.  Perhaps it’s related to that in some sense.  
    The Obama Task Force Report said the reason detainees are impossible to try isn’t so much because of evidence tainted by torture, and illegally obtained evidence hasn’t stopped them in other cases, such as Omar Khadr, in the opinion of the Canadian Supreme Court.  The Task Force said it was because of lack of information (about what the person did).  The cleared detainees are considered untriable, presumably for that reason, and not a security threat but only if released under some circumstances.  For example, Shaker Aamer, a British resident, is cleared, and Britain claims it wants him back, but there must be something about sending him to Britain that is considered threatening.

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