The SCOTUS ruling and unintended consequences.
Understandably, the left and our enemies are high-fiving each other over today's foolish SCOTUS ruling. In the 5-4 decision, unlawful combatants (such as those at GITMO) can now challenge their detention in civilian courts. The tendency of liberal democracies to commit societal suicide is an amazing thing to witness firsthand.
But despite their rapturous celebration, terrorists and Democrats should pause to consider the unintended consequences of this decision.
If a soldier in the field is feeling threatened by an an apparent enemy combatant, he has now been incentivized to kill rather than capture this person. Instead of rounding up a house full of crazies caught in the act of making IEDs, wouldn't soldiers just kill them all? After all, the soldier might be found guilty of a war crime if he captures a suspect without reading Miranda rights in Arabic, Pashtun and Farsi. And who has time for lengthy evidence-gathering missions at a building that might soon be found under attack from other cell members? How exactly does a sergeant in the field prove probable cause to a courtroom in Delaware? Frankly, guys in the field will probably respond by simply shooting first and asking questions later.
It reminds me of all the recent lawsuits suing police for using Tasers on criminal suspects. Don't they understand that if Tasers are banned, the cops will just shoot future suspects? Frankly, if given the choice, I think most criminals would rather be shocked than gunned down.
The Court's decision also incentivizes enemy combatants to wear civilian clothes and hide among non-combatants. After all, those enemies who refuse to adhere to the Geneva Convention apparently now have more rights than those enemy soldiers who do (a POW can't access a civilian courtroom). So our soldiers will have to walk into ever more populated areas while using a hell of a lot more gunfire.
The only thing the liberal majority achieved today is more death for everyone — both the guilty and the innocent.
If Dubya needs to close down GITMO, I recommend he relocates the prisoners to the general population of jails in the most Democratic-leaning states.
But despite their rapturous celebration, terrorists and Democrats should pause to consider the unintended consequences of this decision.
If a soldier in the field is feeling threatened by an an apparent enemy combatant, he has now been incentivized to kill rather than capture this person. Instead of rounding up a house full of crazies caught in the act of making IEDs, wouldn't soldiers just kill them all? After all, the soldier might be found guilty of a war crime if he captures a suspect without reading Miranda rights in Arabic, Pashtun and Farsi. And who has time for lengthy evidence-gathering missions at a building that might soon be found under attack from other cell members? How exactly does a sergeant in the field prove probable cause to a courtroom in Delaware? Frankly, guys in the field will probably respond by simply shooting first and asking questions later.
It reminds me of all the recent lawsuits suing police for using Tasers on criminal suspects. Don't they understand that if Tasers are banned, the cops will just shoot future suspects? Frankly, if given the choice, I think most criminals would rather be shocked than gunned down.
The Court's decision also incentivizes enemy combatants to wear civilian clothes and hide among non-combatants. After all, those enemies who refuse to adhere to the Geneva Convention apparently now have more rights than those enemy soldiers who do (a POW can't access a civilian courtroom). So our soldiers will have to walk into ever more populated areas while using a hell of a lot more gunfire.
The only thing the liberal majority achieved today is more death for everyone — both the guilty and the innocent.
If Dubya needs to close down GITMO, I recommend he relocates the prisoners to the general population of jails in the most Democratic-leaning states.
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6/12/2008 9:16 PM
Infinite Monkeys wrote:
Ben provides a good run down of some of the smarter legal opinion out there. I, too, have not read the whole Gitmo decision. But I presume that the fine editorial writers at Investors Business Daily have. And their lead...
Yeah, habeas corpus -- what kind of wild-eyed radical commie pinko thought THAT legal principle up?
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Heh, Pamela. Quite clever.
One question: Did the Founding Fathers intend for the Constitution to apply to every person on the planet? Let me just answer that for you: No.
It was a document meant to govern a the United States and protect the freedoms of Americans and lawful immigrants -- not criminal terrorists.
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Inasmuch as the Founding Fathers perceived the concept of Habeas Corpus to be a matter of common law, yes, they did.
You ARE aware, right that Habeas Corpus precedes the United States constitution by several centuries, right? It started with something called the Magna Carta.
Ever heard of it?
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Are these knuckleheads even covered by the Geneva Conventions, let alone whether or not they should have Constitutional guaranties.
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Why would they not be?
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Because they do not represent nations that are signatories to the Geneva Convention treaties, nor to they adhere to any of its rules.
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According to Common Article 3 of the Geneva Conventions, whether or not prisoners represent nations that are signatories to the conventions is beside the point. The signatories are still required to abide by the conventions.
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I have refrained from posting about this at Zonitics because I haven't digested the full SOCTUS opinion and because I'm too fascinated by the State Redistricting Commission but I will say this:
1) There is substantial discussion in the syllabus regarding the status of Guantanomo. The Court recognizes that the base is still technically and in a legal sense part of Cuba yet the US maintains a degree of control/sovereignty over the base and therefore you have habeas rights. So it's de facto and not de jure sovereignty which is key. I think we just crossed into a big ole abyss here because I think barring specific language in a status of forces agreement that just about any overseas US military base has some aspects of de facto sovereignty. Does that mean any time a prisoner crosses the boundary of that base, even if it's a forward operating base say by the Pakistan border, does the prisoner now have habeas rights?
2) The Court has ruled that the Article I of the US Constitution has full effect at Guantanomo- land that the Court has already said is Cuban. So basically the law and writ of the US extends to whatever the US military can control.
3) The people held at Guantanamo aren't either US citizens who committed crimes or people resident in the US while they committed crimes. Instead they are foreign nationals who in part or whole on foreign soil have levied war against the US. Explain to me again what the difference is between an AL Qudea terrorist and a member of the Wehrmacht when it comes to habeas rights?
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As far as I know, members of the Wehrmacht were not declared to be unlawful combatants.
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Yes members of the Wehrmacht were prisoners of war instead, lawful combatants because they fought under a recognized command authority and in uniform. That gave them protection under the Geneva Convention and not say a summary court martial in the field for violating the rules of war.
So are members of the Wehrmacht, who followed the rules of the war and don't get access to American civil courts, worse than a bunch of war criminals who don't follow the rules and yet get access to that court system?
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Your question was, "Explain to me again what the difference is between an AL Qudea terrorist and a member of the Wehrmacht when it comes to habeas rights?" I answered it.
Whether or not members of the Wehrmacht were "better or worse" than accused terrorists is beside the point. The issue is what legal protection they are entitled to. Legal protections are not determined by how much we like or dislike the people they apply to.
You do understand, this, right?
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Pam,
Please "understand" that "better or worse" is not a subjective statement as much as an analytical one in regard to the rules of war... and as I stated most members of Wehrmacht adhered to those rules when in conflict against the US.
It used to be if you adhered to the rules you were granted certain privileges. A German soldier who was captured in uniform in North Africa would spend the the duration of the war in a fairly comfortable POW camp. A German sabtoeur that was landed on the New York coast for the purpose of sabotage would be subject to a secret military tribunal and execution... as did happen. There are rules and consequences for violating them
So what are the prisoners in Guantanamo? They certainly are not prisoners of war, yes they are prisoners in a war, but the term POW is a term that is loaded with legal connotations. They are certainly not common criminals or even terrorists of US citizenship captured in either the US or its insular territories. No they are foreign nationals captured while int he process of levying war. "Unlawful enemy combatants" is a weasley term but I think accurately captured the confusion in both our legal system and society- too much of a criminal for POW, too much of a soldier for the civilian courts.
So it will depend on you see such people- criminals or enemy combantants, such a distinction of whether the conflict against Al Queda is a military or law enforcement operation when conducted off-shore has been going on for a long time.
But enough about me... explain how foreign nationals levying war and captured overseas have any rights to the American civilian courts?
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It baffles me that non-US citizens that were captured on the battlefield in combat against US troops now have the same rights as US citizens and legal aliens.
This is insane to a non-lawyer like me.
Where are their uniforms, insignia of rank, and command structure? Ok, better stop now since I am neither a civilian nor military lawyer.
Maybe another unintended consequence to all this is rendition to foreign countries (ex. Egypt, Pakistan, Saudi Arabia, etc.) that are not covered by US law. Or one could just keep them on-board ships in international waters. Or maybe send these bad guys back to their home countries to be tried under the applicable laws of that country.
Come to think of it...this is already going on. Maybe the whole Gitmo thing is a Red Herring.
Long story short, non-US citizens should not have the same rights as US citizens.
Then again, I am not a lawyer so what do I know
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