Guantanamo and Human Rights

"Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was “to superimpose the habeas corpus process into the world of intelligence gathering.”

He said his decision, which involved men first detained in Bosnia far from the war in Afghanistan, should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases. “This is a unique case,” he said.

Still, there was a buzz in the gallery when he announced that the government had not proved its case against the five men. In urging the government not to continue to fight the case, he noted that an appeal could take as long as two years. "  NY Times

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Life tenure on courts does funny things to and for people.  This judge says that he had not expected to be sympathetic to these appellants.  Nevertheless, the "thinness" of the government's case offended him and he ruled as he did.  Good.

A few nights ago at the Q&A session after my lecture in Norman, Oklahoma, a young man asked a related question.  He said he was a National Guardsman.  He had heard me say that I thought that the detention facility at Guantanamo should be closed and that those prisoners against whom the government has a solid case should be transferred to the custody of US courts either civilian or military for a speedy trial.  He asked if that meant that I "wanted to give these prisoners the rights of American citizens."

I was taken aback by that question and its predicate.  I told him that I had served in the US Army and government for a long time and that I thought him to be mistaken in believing that such features of American justice as; the right to confront one's accusers, the right to a speedy trial, the right of Habeas Corpus, etc., are rights attached to the citizenship of the United States.  I told him they are, in fact, rights that the founders of the country and the framers of the Constitution sought to guarantee to all those who were within the grasp of the power of the United States.

He looked surprised at that.  As I watched him, I imagined that I could see the opinion forming behind those eyes that he was dealing with yet another lefty softy. 

"When they are through trying these defendants," I told him, "it is of no interest to me what sentence the condemned might receive..."

Perhaps he will think that exchange through...  pl

http://www.nytimes.com/2008/11/21/us/21guantanamo.html?pagewanted=1&_r=1&th&emc=th

PS  Yes, I know.  The slavery thing...

Comments

[WP]

It is really such a simple statement, yet so eloquent:

I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands: one Nation under God, indivisible, With Liberty and Justice for all."

The pledge harkens back to the founding document of our government, the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men..."

It is most American to give all humans fair and just treatment when in the custody of the government. To torture, arbitrarily imprison, and deprive any person in government custody, whether here or abroad, is a travesty and denial of the most basic precepts upon which this country is founded.

The tragedy of the last decade is that we Americans, in our quest for security have simply forgotten the most fundamental values upon which this nation was founded.

We and our government have long known that a significant number of the prisoners at Guantanamo are simply innocents sold into American custody by liars and kidnappers. Instead of immediately correcting our mistakes, the government, really acting criminally, has continued to hold these people because, to release them would have been an admission that the whole concept of extra-territorial jails was a terrible wrong.

We need to recover our values and give these prisoners prompt justice, whether by fair trial or release. Anything else is a repudiation of our basic values. Those innocents who we have so seriously harmed should be compensated and receive or national apology.

It takes courage to admit and stand accountable for the mistake, but we must or we will lose even more of our national Honor.

"With Liberty and Justice for all."

All means all, including those we hold extrateritorrially, else we are nothing but hypocrits and frauds. The failure of our government to maintain this simple concept is a sign of true moral and temporal weakness and cowardice. It takes great strength and bravery to treat everyone, including one's enemies justly.

The young need to be taught that all means all, else no one is secure.

[Mongoose]

Colonel,

As someone from Oklahoma, I can say with all honesty that I'm not at all surprised you received the question you did at Univ. of Okla. regarding "habeas corpus," whether it was someone in the National Guard or not. Not that you should have anticipated the question, however. Questions of justice, let alone an interest in empathy with another's plight is foreign to most Oklahomans, unless, of course, you meet the criteria of a "born again" Christian. I exaggerate but not much.

On a side note, I'm disappointed that I was unable to attend your talk--for reasons beyond my control I haven't had access to a computer for over two weeks and was unaware of your impending visit. If I'd known, I would have brought a slew of students with me--they've become big fans of yours in recent months. I do hope, however, that you enjoyed your brief stay in our state.

[lina]

We have the efficacy of right wing propaganda to thank for this turn of events. We may also have poor education in history to blame as well. Gov. Palin, in her campaign stump speech, accused Sen. Obama of "wanting to read terrorists their rights."

Somewhere along the way we've completely lost our connection with how the U.S. was founded and the origins of our legal principles.

There's a lot of work to do in the field of education.

[William R. Cumming]

I think that what is most interesting is that the legal system of "Justice" (note not "truth") in the US still has not ground out completely on the issue of "enemy combatants" seized outside the US and their rights. SCOTUS will eventually rule but for many already too late. Laura Donohue of Stanford Law School produced and excellent discourse on the history of torture and indefinite captivity in Great Britain and the US. I believe her book is entitled "The Costs of Counterterrorism." More and more legal scholarship is being devoted to this issue. Before the only partial analysis by the courts was the situation of convicted Cuban criminals who arrived in the US by the Mariel Boatlift in 1980 (Castro opened his prisons to allow non-political prisioners to take part in the boatlift). Then of course there is Article 3 of the Geneva Convention. It seems to me to be a de minimus cost for the US to try these combatants once returned to the US. After all it does send the message to the world of the US interest in Justice. Of course, the heat of combat often does not "Render" justice. But by transporting to a US possession whatever the niceties we demonstrate the combat has long ended. Since there is often no STATE that will accept these prisioners captured by the US or its allies, what other system would prevail but to try however imperfectly to deliver justice. During the Spanish Civil War prisioners were largely shot up capture. That cannot be the policy that should be adopted. After all we even gave the Nazi heirarchy the trial process. The purpose of that process was largely to establish individual as opposed to some concept of "Collective" guilt. Sometimes we can learn from that effort more than we can by torture or other techniques. I personally don't want to face a world wherein people fear that the US system of Justice cannot accomodate prisioners long removed from combat even if they are not in uniform when captured. A non-sensical distinction actually based on history. Especially the history of warfare as conducted in the US and even before we became a nation. The Courts have shown less deference to the BUSH/CHENEY doctrine of torture and incarceration than some may believe. Yet in my judgement even what deference has been shown lacks a rationale supportable by the traditional system of justice in the United States.

entitl eivaed

[zanzibar]

Enemy combatant labeling based on false premises, rendition, torture, abrogation of our treaty obligations under the Geneva conventions, making a mockery of habeas corpus and most despicable the subversion of our Constitution that all were sworn to uphold is a shameful blight on our nation and our people.

Unless those that were responsible are brought to account - charged, prosecuted and judged by juries under our laws - the sanctity of our Constitution and the values of our founding will forever be stained.

Just closing Guantanamo and burying the crimes committed will only demonstrate our weakness.

[kao_hsien_chih]

The idea of the right to justice being a right "only for American citizens" is shocking. Every totalitarian no doubt would have said that every good citizen of X was fully entitled to justice, civil rights, etc--just that "enemies of the state" (by whatever definition) have forfeited their membership to the community of X and therefore are entitled to nothing....

[Charles I]

I just finished Barton Gelman's "Angler"and it is most instructive. He manages to deconstruct how you got where we are and it is much much more about Power than it is Justice. Cheyney, Addington et al seized the levers of power, honest patriots I believe, though likely criminals, to first restore Power to the unitary executive Presidency, and after 911, to secure the Nation. Justice could not match the exigencies of those shocking days. Empowered Executive action alone could suffice.

Eventually, though how Bush was re-elected I don't know, the Supremes pushed back in Hamdan, and Judge Leon is applying the Law in its present arc as the pendulum swings.

I must say, as a bleeding heart liberal, almost atheist, I scoffed at press reports of John Ashcroft's predilections, but he and his colleagues at Justice come off as true Patriots and heroes in Gelman's book, and in mine, a former lawyer's, too.

It seems certain that Guantanamo will now be wound down, not without many headaches. You are up to it

[Cold War Zoomie]

Perhaps he will think that exchange through...

He is young. Gulf War I started up not too long after I got out of the Air Farce and had started my first job. After listening to the media's parade of naysayers for days and days talking about how we were going to get pulverized by Iraq, I got fed up and told my coworkers one day that we should ban certain rights during a war such as the freedoms of assembly and speech. An older fellow looked at me like I was the stupidest mo-fo on the planet and let me know how wrong I was.

I've never forgotten that exchange, and thought it through for years. Needless to say, I realized after a few years that it was not one of my finer moments! (Among the many)

We think and say some pretty stupid things when we're young, dumb, and full...well, we'll leave that last part left unsaid. My list is long.

[Redhand]

As an immigration lawyer I'm all too familiar with the ignorance reflected in this post. It's a fact aliens do not have the full panoply of rights that citizens enjoy, but that doesn't mean that the basic protections of due process, habeas corpus, the right not to be tortured by our Government, etc. can be ignored.

I've been politically conservative most of my adult life, but the Bush Administration turned me into a registered Democrat, at age 59!

For me the breaking point was Gitmo, and what was done to the detainees there and elsewhere overseas.

The reason is simple. As counsel for asylum claimants who have been tortured by other governments, I'm necessarily familiar with what the legal definition of torture is. There's absolutely no question that the "harsh interrogation methods" that the Administration approved as "legal" are not.

I simply could not handle the idea that my clients were seeking protection from acts perpetrated against them by other nations that were qualitatively the same as what our Government was doing to the "enemy combatants" at Gitmo.

Unlike AG Mukasey, there is no way I think approval of these acts by Government lawyers reflect legitimate "policy differences that must be understood in the context of 9/11." They are crimes, and a wretched blot on our reputation as a nation that respects basic human rights.

[Lorell]

I too think lack of education is the root of this young man's misapprehension. Let's see: what school year did I learn about the Magna Carta? Sixth? Seventh?

[Hyperion]

I recent had my own weird interaction with folks from OK. Two very smart people (PhDs in a hard science) told me they get all their news from fox because all the other media outlets are biased. And at one point I was asked to define torture, as if there weren't a definition already in common article 3. Very sad. But it demonstrates how malleable human thought is. If you listen to lies being repeated, sooner or later you start believing them.

[TJ]

It is irresistable, given the unanimity of the comments to play advocatus diaboli. I think one hesitancy on the part of many to bring the US court system into the question of what happens to enemy combatants is the fear that they will administer the law with the same effectiveness they do with the criminal element extant in this country. That the courts will engage in the same navel gazing about rehabilitation and the costs of incarceration, the same foxhunt mentality involving discovery, cross examination and quality of defense council, mother-may-I and Simon says rules about questioning, chain of custody and speedy trial and myriad other failures of critical thinking that characterize criminal procedure in the US. While we have in the service of these mental games, conceded our right to walk around at night, possess property that is not under 24/7 lock and key and unfortunately many other things we would like to do because criminals control large swaths of our cities, many people like your young guardsman might feel that it would be too much to ask that our robed and coddled life appointees be allowed to fritter away the entire country too. By the way I am not young and I was for a time a criminal defense lawyer. At first I was bemused but eventually appalled at the routine ease with which I enabled people to escape punishment for the most despicable and horrific acts because I knew how to use the rules to good effect and I could take my clients bullshit story and put it into persuasive form. Scary.

[mlaw230]

TJ: Your impressions are startling coming from an attorney. Where and when did you practice?

[Lorell]

The November issue of Texas Monthly magazine has an article about 37 men who spent a collective 525 years in prison for crimes they didn't commit. Errors either way in the criminal justice process shouldn't argue for abrogation of our constitutional rights.

[TJ]

I have been a lawyer in Oklahoma since 1994. I believe in the Constitution and I find it interesting to contrast my conception of the Constitution with the typical federal jurists conception of it. To give you an example that would be pertinent here: In a likely scenario involving a GITMO detainee who is being charged in Federal Criminal Court. Can you imagine the impossibility of complying with the discovery requests alone for a person seized on the Afghan border? A properly filed, well thought out discovery request that isn't a boilerplate request will usually wreak havoc on the simplest traffic arrest conducted by police who are used to documenting such things. Even if the detaining soldiers were aware that they were supposed to be preparing a federal criminal case when they stumbled across some guy in a village with a bomb in his car (which you can bet they weren't) it would have taken them 2 days to properly document, preserve, and put to paper all of the necessary things to get it in front of a federal judge. Thats just the first of myriad hurdles before you get to a passable case. I bet they don't convict a single one in trial. Maybe, maybe you might get a surviving case on the ones handled by the FBI from the start or a loon who wants to proclaim his guilt at every opportunity. Wouldn't hold my breath though.

[mlaw230]

TJ: An interesting outlook, clearly you didn't practice in Virginia where there is NO criminal discovery. We (I Used to) operate on the "20 step rule" i.e. it takes an average of twenty steps from the back of the courtroom to the bar, in that time you have the right to ask your client "who the f#@% is he?" maybe not fair, but constitutional.

We have the ability to try cases in camera, so is the problem that the evidence is not properly documented or that it does not really exist? I would think that exigent circumstances would allow much of this evidence to be admitted, albeit subject to a withering cross exam, am I wrong?

The basis of your point is correct regardless of the answer to the above, we are set up to treat state actors, i.e soldiers in one way and criminals in another, but there is no model for organized but not state based armed resistance. That is the dilema we have been confronting, but instead f confronting it we have had an administration which simply chose to avoid the issue and judicial review.

[Arun]

I think one hesitancy on the part of many to bring the US court system into the question of what happens to enemy combatants is the fear that they will administer the law with the same effectiveness they do with the criminal element extant in this country.

And yet America has 2 million people in prison at any given time, more than India or China, that are three to four times more populous. China isn't particularly liberal, one would say. If America is really that criminal and yet TJ thinks that US criminal law is not effective, then just what business does the US have telling anyone anywhere else in the world what to do, let alone arresting in Afghanistan suspects with bombs in their cars (how many Afghans have cars by the way????) If the country is being frittered away it is by the beam in one's eye, not the mote abroad.

[Lorell]

mlaw230 said:
"but there is no model for organized but not state based armed resistance."

I'm having a hard time keeping up with this nonsense.

Isn't this exactly the situation where the U.S. practiced genocide on indigenous North Americans?

I guess one man's war on terror is another man's opportunity for negotiation and reconciliation ...

[Patrick Lang]

Lorell

You need to get over the sentimental nonsense and learn some history. The butchery between the colonists and the indigenous was anything but one sided.

The first "biggy" in the English speaking colonies happened in 1620 or 1622 in Virginia. In that winter the local noble savages unexpectedly attacked the Jamestown settlement killing half the people, (over a thousand)

Was this an Indian attempt at genocide? pl

[feocito]

The administration had the opportunity in the weeks directly following 9/11 to engage the international community on the issue of "new law of war". The Al Qaida attacks on the US changed the relationship of combatants and targets in a major way. The old constructs of the Geneva Conventions were shaken to their very foundations.

I firmly believe that if our Justice Dept had engaged the rest of the international law community, we could have developed a new construct for new warfare.

[mlaw230]

Lorell: Is that the model you recommend?

Typically at the end of hostilities between states, the vanquished state still exists, it still(or again) has cultural and political institutions that provide order and that the combatants respect and will to a large degree obey.

In the current conflict, that is not the case. The middle east does not appear to have fully embraced nationalism and so they appear both "pre" nationalism in some ways and "post" nationalism as well, in other ways.

Our system treats the soldiers of Nation states with some respect, it treats virtually all others as criminals. This is artificial and inaccurate, but it is the system we have. The fault, in my opinion, was this Admins. willingness to abandon the entire system, to unhinge it from all of the norms which preserve some decency, in favor of the efficacy of keeping a few dozen bad guys imprisoned indefinitely.

If you caught Ossama Bin Laden, but couldn't prove through admissible evidence that he was guilty of a crime, would you let him go?

[Ed]

This mindset has always confused me. The historical precedent for treating these people humanely exists. Just look at WWII: Germans and Russians fought to the death because prisoners were executed. Germans surrendered to Americans because they knew U.S. forces would treat them humanely. I'm shocked a National Guardsman does not know this.

[Cieran]

Let's jump in here with some fresh tinder...

First, Colonel Lang specifically stated that civilian or military courts were appropriate venues for such trials. Admissibility constraints on evidence vary greatly depending on the court system involved, so the possibility of trial in a military court (for example) would permit more latitude in evidence presented.

So given that, regarding mlaw230's question:

If you caught Ossama Bin Laden, but couldn't prove through admissible evidence that he was guilty of a crime, would you let him go?

I would answer that with a clear yes. If one cannot prove the commission of a crime by the defendant involved, then that defendant is presumed innocent, and in fact, one must be open to the notion that the defendant may indeed be innocent.

Obviously, that's not the case for Osama Bin Laden (we have plenty of admissible evidence regarding his actions), so the question is rhetorical in large part. But the rule of law is motivated by process, not by outcome. If outcome is all one desires, the American legal system is certainly not the best way to get there.

In the interest of full disclosure, I'm not some bleeding-heart interested in abstract questions of wrong and right. I've done plenty of forensic work in my career, including performing the science required to put a serial murderer on trial in a federal court so that the more lenient admissibility constraints of the federal system could be realized, and to put the death penalty in play (as the state where the murders were committed had no death penalty). He's awaiting execution now, in no small part because of my technical skills, so this question is not an abstract one as far as my conscience is concerned.

I think another related question is this: if you captured Osama Bin Laden and had plenty of solid evidence to convict him in an appropriate venue, and then had to let him go because of an avoidable technicality (e.g., torture leading to inadmissibility of evidence), how would you treat those parties who ruined the case for the prosecution, e.g., the torturers?

Would not the blood of the victims be on their hands? What would be an appropriate punishment for their actions?

[JP the young National Guardsman]

I'm quite amazed and flattered by Col Lang's post about my question and equally amazed and flattered by all the attention it has gotten. Especially since all this attention is quite undue. Even after the lecture was over, I told those with me, "I don't think he understood what I was asking." I was in no way inviting ideas involving inhumane or anything other than good treatment of any prisoners, especially those that have not been found guilty in any court. I was merely curious as to the Col's opinion on the matter since it seemed to be one of the main points in the discussion going on. I am in favor of shutting down the prison facilities at GITMO and I am in favor of getting through the red tape the government has been working on to get trials going for these people.

However, my question was simply to inquire as to how Col Lang felt that this should go about.
Furthermore, my question did not contain any implications of validation for torture practices or venture any hint of inhumane treatment of prisoners. Nonetheless, we can discuss that since it has been brought up.
No nation has ever released untried prisoners of war while the conflict/war is still going on. We, as a nation, have many responsibilities during times of war. Things are happening slowly and the longer it takes to get underway, then the longer potentially innocent men sit in captivity. This is unacceptable. However, as well as providing these people certain inalienable rights, we, as a nation, also have the responsibility to protect those that have put their lives in danger because they were told to do so by our government. I am not implying the American people should do anything immoral to keep people off the battlefield. As TJ was stating, there would be awful implications should any of these people would be released because of red tape (such as a failure to read rights) only to go back onto a battlefield to take up arms against American soldiers again. I am merely implying, as a future active duty infantry officer, that the idea of any combatant coming back into action on account of a loophole to wound or kill any of the men that are under my care is a grave mistake. That is not a fear tactic from the right wing, it is the hard truth.

We must remember that we cannot treat these crimes as those committed in homes in metropolitan America. Some of these people took up arms to take down the US nation. Therefore, we must tread carefully. If we do use US courts, as opposed to military tribunals, and enact these trials quickly, we will need a large number of judges. My only fear is this leaves a lot of room for error. Cieran beat me to my point of difference between civil and military courts. However, in the end I always feel it is better to let a guilty man go free, than to let an innocent man be unfairly prosecuted.

Now I will look to the posts on here accounting that my “youth” will soon subside and I will see the light that apparently I am missing. I cannot wait until that day comes and I’m sure when you were young and as infantile as I am now, you probably felt that the weak comments on your age were a poor attack by those who felt the insecure need to put themselves on a higher pedestal before a counterargument was under way. Let us not forget that the same things were said about our President-elect. I know plenty of older people who cannot name our Secretary of Defense or tell me the difference between Shia and Sunni, but feel their age gives them reverence. So let’s stop this talk about “youth” and argue the matter like adults.

I will leave myself to the wolves with one last thought in mind. I have taken quite some time, skipped class and work to attend lectures by many different people who come to the area. I am better read and informed than most my age. Some have said here that I need to be educated.
Nonetheless, the time I do speak I am immediately discredited for being young. This shines a light on the perspective of the older generation’s feelings of teaching the youngsters. More and more young people fail to take part in what is going on because of this patronizing attitude. Elders should encourage youthful discussion, not discourage it.

(Oddly enough there are quite a few posts on here talking about the right wingers and vast conservative biased coupled with the lack of education for the youth. However, the youth happened to vote strongly Democratic this election. Should you surrender that your previous comments on education were at fault? Or do you claim the uneducated, doltish youth, who doesn’t know what is going on, voted the correct way? If the youth are “uneducated” and most of them are quite liberal, do we blame the vast right wing conspiracy?)

[Patrick Lang]

JP

It sounds like you have thought it through.

"What you said to me was "Do you want to give the rights of Americans citizens to these prisoners?" If you meant something other than that you might have told me after the lecture. pl