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21 November 2008

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Cold War Zoomie

JP the Young-

Well said. And I would be surprised if you *weren't* a little riled up at my post!

Best of luck. Enjoy the journey.

Cieran

JP the Guardsman:

Thank you for joining the discussion. You ask some very good questions, and the SST committee of correspondence is enriched by your thoughts here.

I would point out that when you asked Colonel Lang your question about Guantanamo, it did not seem like a question from where I sat (at the far end of the room from you), but perhaps more like an assertion that might have grown a question mark at its far end.

And as you recall, several "questioners" had earlier expressed broad assertions disguised as questions before the topic of Guantanamo had arisen, so the context that Colonel Lang has presented above is quite reasonable given the actual circumstances of his talk.

Your comments here of course provide much more in the way of helping SST readers appreciate the context of your question re: Gitmo. Thank you for that.

I'd also like to thank you for attending this talk (you are a perfect example of the desired audience, namely young citizens with a deep interest in national security). The next time Colonel Lang visits Norman, please stop by to chat with him after the presentation, to insure that your questions have been answered to your satisfaction. The discussions of these topics went on for a couple hours after the Q&A session ended, and I would have greatly enjoyed your presence at those festivities.

inquire

Isn't it also the case that habeas corpus was first documented in the Magna Carta, thus serving as a legal president five centuries prior to the establishment of your United States? Further, although the founding father's and their contemporaries were visionary, they did not create US law ex nihilo; they did build upon the tradition of Roman law, Justinian legals codes, and English Common law. Thus, all of the principles you articulated are not (completely) novel with the United States in history, nor are they exclusive to the US at present (see Canada, the Commonwealth, Scandinavia etc.).

This is not to diminish, of course, the revolutionary and (at the time) shocking nature of the US constitution; only to mention that some (or all) of these principles existed before, after, and during the tenure of the US (perhaps to the surprise of your national guard questioner).

I would support your interpretation that anyone subject to official US treatment ought to be afforded the minimum legal rights listed.

Please anyone correct me if I have made any erroneous claims here.

As well, I would like to mention a book appropriate to this topic that I am currently reading edited by Allan Bloom. It concerns the philosophical basis of the Founders and the Constitution, I would recommend it to the Col. and all your readers, "Confronting the Constitution" Allan Bloom, ed. (1989)

Eric Dönges

JP,

No nation has ever released untried prisoners of war while the conflict/war is still going on.

But the people we're talking about are not prisoners of war. The U.S. government went to great lengths to argue they are not prisoners of war. They are alleged illegal combatants. With the U.S. government refusing to show any evidence for their allegations.

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.

Again ? The whole point of this discussion is that it is not clear that any of the detainees have actually taken up arms against American soldiers, or where about to do so. As a side note, I find the idea that a criminal should walk regardless of any evidence just because he wasn't read his rights somewhat bizarre myself, but that is your U.S. legal system. If you don't like it, you should change the law, not ignore it.

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.

I don't think total lack of evidence should be called a "loophole".

We must remember that we cannot treat these crimes as those committed in homes in metropolitan America.

You mean the alleged crimes. Sorry to be so pedantic, but once again, the entire point is that the U.S. government alleges these people are illegal combatants, but refuses to offer any proof that would stand up in an American court. Surely you can see why this is wrong.

Some of these people took up arms to take down the US nation.

You say so yourself - some of them. Punish the guilty by all means, but don't let innocent men rot in jail for years because your government can't be bothered with due process.

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.

Considering how many people are tried in U.S. courts every year, I somehow doubt a few hundred detainees are going to put a measurable strain on the system. And even if it did, that wouldn't be a valid excuse. Justice is not about efficiency or expediency.

No, the problem why these people aren't being tried is because the U.S. government has failed to come up with any evidence against them, but won't admit it to save face and careers. And that is an utterly despicable reason to imprison anyone.

Nonetheless, the time I do speak I am immediately discredited for being young.

I agree with you completely that it's not valid to dismiss the message because of the messenger. So, let me go on record that I discredit your opinion because I believe it is fundamentally incompatible with the basic principle the laws of Western civilization are based on, namely that before the law, all people have equal rights, regardless of race, sex, creed, nationality or the nature of the crime they are accused of, without exceptions.

JT Davis

Was this an Indian attempt at genocide? pl

Repelling an invasion with extreme prejudice?

By now we can all cite the cases of post framing era suspension of civil liberties, chapter and verse. Adams, Jackson, Lincoln, Wilson, FDR, etc. Few realize that such actions predate the Constitution. In 1777, the Pennsylvania legislature - undoubtedly comprised of many of the same men who later went on to contribute to the drafting and ratification of that document - voted to suspend habeas corpus and arrest Quakers en masse. Some Quakers were later tried and hung as collaborators with the British.

JT Davis

Considering how many people are tried in U.S. courts every year, I somehow doubt a few hundred detainees are going to put a measurable strain on the system. And even if it did, that wouldn't be a valid excuse. Justice is not about efficiency or expediency.

I could get out an old CJ textbook and give you some stats from about 20 years ago but the word here is processed, resolved or ajudicated, not tried. The vast majority of cases are plea bargained out and never go to trial. Even still, overcrowding is a problem throughout the system, not just in the jails and prisons and I can't say what effect this would have on either the civil or military courts but something tells me that overcrowding is still a problem in either system.

Justice may not be about efficiency but the criminal justice system in this country is most readily understood as the struggle between two competing normative values, or models, that Herbert Packer proposed in his seminal work "The Limits of the Criminal Sanction" in 1968. The Due Process Model and The Crime Control Model. An excerpt:

Two Models of the Criminal Process


We overuse the criminal sanction in this country. That is why we have overcrowding. The end result - from a functional analysis - is that we warehouse surplus population. Other western democracies rely more on a welfare state model and usually have lower prison populations. They also tend to rely less on the criminal sanction for control of certain victimless crimes like prostitution or drug offenses.

Lorell

Thank you for your comments, Colonel. If I gave an offense by my post, I apologize. If you’ll allow me to make a point or two: by re-reading my post, you’ll see I was referring to the actions of the U.S. which, of course, was not established until quite some time after your example of Jamestown settlement. Furthermore, I certainly never intended to insinuate that indigenous Americans didn’t attack as well as fight back, just as Jews did in Europe during WW II. Also, to answer your question, I would not consider the indigenous Americans attacks on the colonists to be anything other than an attempt to defend (the best defense is a good offense) what had been their home for tens of thousands of years; definitely not genocide. That’s silly. Hopefully that was some sort of rhetorical question.
By the way, what happened to your “don’t ask don’t tell” thread? It was very interesting and then suddenly disappeared.

Richard Armstrong

COL Lang,

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

In 1978 I was that young Oklahoma Army National Guardsman. One of the proudest moments in my life I was sworn in on 3JUL78 by my father, a career Guardsman. I spent the following eight years on active duty in a program called at that time "Active Guard and Reserve (AGR)". I entered the service as liberal and remain so to this day.

At no point in time during my enlistment did I receive any training that related to the Constitution of the United States which I had sworn to defend against all enemies, foreign and domestic. Unique among service members I was an extremely strong proponent of the Bill of Rights. On every post and armory I entered I saw the ubiquitous "This We'll Defend" Army seal. No where did I ever see any visible representation of the United States Constitution which we were all sworn to defend.

It is inarguable that the quality of enlistees during the '90s were vastly superior to the dregs of society the services accepted in the late '70s and '80s. Education and intellect cannot be used to explain why that young Oklahoma Army National Guard service member did not understand the concept of unalienable rights for all guaranteed by the Constitution he was sworn to defend. The services now are able to recruit and retain individuals that can understand and internalize these concepts.

If the United States Army can make a soldier out of any able bodied individual who wishes to join, then they have the capability to make that soldier into a patriot that understands and believes in the defense of the United States Constitution.

I do not personally believe that the next President nor the next Congress has the will to correct the damages done by the current administration. The fear of public "spectacle" is much too great and it's just to easy to sweep the damage to our Constitution, our stature among the democratic nations of the world under the rug.

To this day, the father that swore me in and I nearly completely disagree on politics, however both of us - he a retired septuagenarian and I a middle aged former service member would fight to the death to defend the others right of political expression. The only thing that makes the United States in any way "exceptional" is our Constitution.

"JP" above describes the possible release of Gitmo prisoners due to a "loophole". I submit that there are no "loopholes" in the Constitution, however if there are we have the means to correct them both legislatively and judicially. If the United States Constitution demands the release of prisoners held by the United States it is NOT a "loophole".

Because we do not have the national will to prosecute those domestic enemies who have assaulted the Constitution that makes America "America", our time as a great nation is over.

Cold War Zoomie

Speculation about the effectiveness of the justice system to try these detainees is moot.

It is a very simple question. Are certain rights universal? If so, then detainees are entitled to a trial regardless of our feelings about the system.

The Supreme Court ruled that the Gitmo detainees are entitled to the right of habeas corpus.

End of argument.

It is perfectly understandable that PJ is concerned that enemies may slip through the system since he could very well be the one on the receiving end of their fire in future.

But it is a greater danger to all of us to allow our rights to be eroded under the guise of "extraordinary circumstances" or a justice system supposedly full of loopholes and red tape.

The solution is to fix any real flaws in the justice system, not to abolish universal rights. And I think we will do just that.

Eric Dönges

JT,

thanks for setting me straight about the strain on the U.S. legal system. The document you linked to was also an interesting read.

I would argue that the U.S. constitution makes it perfectly clear that the desired model for the U.S. is the "Due Process" model. If this model cannot be implemented with the available resources, then the American people either need to provide more resources, change the constitution, or live with the fact that many criminals are able to slip through the cracks because the system is not able to handle the load. The idea that it's OK to keep suspects in prison indefinately because the courts are overworked is utterly despicable.

Sabin Willett

Nicely said, Col. Lang.

Unfortunately it is worse than you say. We lawyers who actually see the classified evidence are disappointed that the classification rules do not permit us to discuss it. But "thin" is a euphemism. In the case of my own clients, the Uighurs, the government simply abandoned its case -- but not before it exhausted more than three years delaying the case -- mainly on the theory posed by your interlocutor, that is, that these people are not American citizens. They are now in their seventh year of imprisonment, and until recently were held in conditions of isolation so intense as to violate the service field manuals and the Geneva conventions.

The government, having abandoned its enemy combatant case, now justifies the ongoing imprisonment on the theory that the men lack visas.

Keep up the good work. I am a civilian, but long years interacting with men and women in the armed forces serving at GTMO has taught me that you speak for the true military.

regards
sw

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