HeyBub wrote:
Tim Daneliuk wrote:
The underlying problem with this entire argument - the hingepoint if
you like - is whether the U.S. has any treaty obligations to people
who make war in plain clothes, make war intentionally upon
non-involved non-combatants, and purposely hide among civilian
populations when being pursued. My understanding is that we have one
important obligation to such people upon capturing them: Formally
finding out whether or not they are in one of the classes of people
specifically protected by treaty obligations (POWs, civilians caught
up in wartime, etc.), or whether we can treat them as spies with
essentially no redress under any treaty to which we are signatories.
Then there's the smelly leftwing elephant in the room. The left - for
entirely political reasons - insists on trying to regard these
combatants as subject to and having standing before our domestic
*civilian* law. But these people have no such standing unless they
happen to be U.S. citizens (in which case they are entitled to our
full legal protections since their citizenship trumps any
international treaty). Foreign non-citizen invaders - in- or out of
uniform - are covered at most by international treaty. They have no
legal redress before a domestic legal system to which they are not
parties.
I think you're wrong there - citizenship is not a test for whether someone
is subject to our laws. During WW2, hundreds of thousands of German and
Italian POWs were held in U.S. territory, many of whom were U.S. citizens
(think dual citizenship). Not one got access to our courts. See below for
why. The issue of citizenship was raised by a couple of the German saboteurs
captured in New Jersey. The Supreme Court said citizenship didn't matter.
I'm saying something slightly different than you read. The *only*
people who have any standing to our social/legal contract are people
parties to that contract: citizens and people here lawfully. (Though
for a variety of practical reasons we extend that standing some
people here *illegally*.) Now, it is certainly true that there have
been times when even citizens have been denied due process under that
standing, but I think this is wrong. Apparently, so too does SCOTUS
in their slapdown of the Bush administration in the Hamdi case. But
the larger and more important point here is that foreign invaders
not citizens bent upon harming us do NOT have standing as a civil/criminal
matter. They're ... well ... an invading army, in this case (as you point
out) an "illegal" army, where "illegal" means not recognized or protected
by treaties between nations, let alone domestic law.
Even Moses told the Israelites: "You shall have but one law for your
brethren and the sojourner in your midst."
Yeah, but Moses didn't write U.S. law and we're not a theocracy -
though with all the Obama messianic fervor, it's sure feels like one.
The folks at Gitmo - and Hamdi - are unlawful enemy combatants. They are not
criminals and are not entitled to the protections our Constitution gives to
criminal defendants (trial by jury, lawyer, indictment, etc.). Neither are
they POWs subject to the restrictions of various treaties, conventions, and
the rules of war. As unlawful enemy combatants they are subject to the whim
of the president under his Article II powers.
Agreed. But you have to stipulate that it may be in *our* interest to
not act capriciously insofar as it makes *us* look bad. I'm deeply
conflicted on the whole waterboarding thing. On the one hand, I stand
with you insofar as I believe Bush was well within his legal right to
do what he did. I also believe that doing so saved lives,
notwithstanding the constant drone of "You can make anyone confess
anything under "torture." If, in fact, there had been no benefit to
doing so, why on earth would Bush have continued to tolerate something
that cost him so much political capital, and arguably cost his party
reelection? It boggles the mind that the entirety of the executive
branch, Nancy Pelosi-O (the lying puppet of her father Geppetomaba)
and the congress, the military operators, and the CIA field people
would all conspire to support a contentious practice that didn't work
at all.
OTOH, waterboarding has been incredibly contentious within the nation
and a real source of conflict with our allies and their citizens.
We're supposed to be the good guys occupying the moral high ground.
I'd be a lot more comfortable with this practice if it had been
done with some kind of military legal supervision comparable to
a FISA court. Maybe it was, but thus far such oversight seems
somewhat (entirely?) lacking. There may be times to push the envelope
of what constitutes proper behavior - as I said, I see no legal reason
not to - but it ought to be done as transparently as possible ...
and transparency is something pretty much no president or party ever
really wants...
In wars past, most UECs were summarily executed. These included spies,
saboteurs, guerrillas, fifth-columnists, and the like. As distasteful as it
is, belligerent entities are will within their rights according to the
customary rules of war to dispose of UECs forthwith in any manner they see
fit.
Until 1951, the rules governing the conduct of the U.S. Navy ("Rocks and
Shoals") permitted the hanging of captured pirates by any captain of a naval
vessel.
Yes, but there is a moral and qualitative difference between executing
a traitor or invader vs. torturing them. Torture can be worse than
death. That said, I do continue to have trouble buying the idea that
waterboarding itself is "torture" insofar as the results are not permanent.
(Torture is listening to Barney "The Weasel" Frank whine is way through
an explanation of how none of what's going on right now is his fault.)
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Tim Daneliuk
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