From Hot Air » War on terror now the criminal investigation of Islamist naughtiness? this was very interesting:
Unlawful combatants now have more rights than POWs, whom the GC forbids access to civilian courts. POWs facing war-crimes charges have to be tried in military tribunals, not civil courts, but terrorists somehow now have better standing than those captured in uniform.
So just like it’s better – in the sense of easier, cheaper, and you generally get treated better – to be an illegal alien than a legal immigrant, it’s now better to be a terrorist than a lawful POW.
One of the key concepts in the bible is that the government provides justice and individuals provide mercy. This leads to many verses – like “turn the other cheek” – being quoted out of context. While we obviously do have secular government, western civilization is generally tied to biblical principals; the founding fathers relied on the concept that the rules they were setting up were for a largely Christian populace.
But when the government stops providing justice, and starts providing mercy, we see individuals start seeking individual justice – like the Minutemen on the border, still fully within the law, but attempting to provide a function that government refuses to provide. In this case, it’s going to fall to individual soldiers – who risk being called to testify in a criminal case against terrorists, AND prosecuted in a criminal case for killing them – pushing their rules of engagement to the limit.
Cassandra at Villainous Company has a very thoughtful essay with an interesting twist on all this; go read it all; emphasis added in this quote:
What SCOTUS has done here, if I understand it (and I may not) is stunning.
They have done two things:
1. They have arrogantly bypassed the legislature without even ruling on the adequacy of the statute passed by Congress or requiring the plaintiffs to resort to it; and
2. They have given non-U.S. citizens greater rights under the U.S. Constitution than what they decided U.S. citizens have under Hamdi. And what was the justification for this?
Not law, not precedent, but an end-justifies the means argument. In other words, they manufactured a legal argument to satisfy a predetermined outcome because they were impatient.
As I noted yesterday, the practical result of this ruling is more dead terrorists in the field, and less intelligence gathering which will result in more deaths of innocents. It defies common sense, and accomplishes the opposite of what they probably want to see happen. They’re choosing mercy over justice.
Every society must end, but this really isn’t the way I thought America would go – but if the trend of government mercy in lieu of justice continues, it is inevitable.
Trackposted to Outside the Beltway, Rosemary’s Thoughts, third world county, Nuke Gingrich, McCain Blogs, Adam’s Blog, Pirate’s Cove, The Pink Flamingo, Leaning Straight Up, Democrat=Socialist, , Conservative Cat, and Right Voices, thanks to Linkfest Haven Deluxe.
Mercy without justice is a lie. Unless justice is served, mercy cannot be exercised, for mercy is the forgiveness of just punishment. But where there is no just punishment available, what is called mercy is merely pandering to outlaws.
WHat this is, instead, is evidence that another paradigm entirely is at play: anarcho-tyranny, state action that rewards outlawry and punishes citizens, for that is the result of this sort of thing. Anarchy–outlaws rule. Tyranny–citizens (sadly, now subjects it seems) oppressed.
When government forms partnership with outlawry, then the government itself becomes outlaw, and citizens no longer owe it allegiance.
Is it come to that? Maybe. Just maybe.
Alien invaders: rewarded for violating out laws. Citizens: chastized for attempting to see our laws upheld.
Terrorists who seek the death of our citizens: coddled and pandered to by The Supreme Communists. Citizens who simply want to go from one place to another: harassed, bullied, fined and jailed for exercising what were once rights (do NOT try to exercise your freedom of speech in the presence of a TSA thug!).
They shot Vicki Weaver in the head for “threatening” federal agents with a baby; then they burned down a building with children at Waco; jailed Martha Steweart (for saying she didn’t do what they NEVER convicted her for!); jailed Ramos and Compean for doing their jobs defending our borders; and on and on and on.
It rather reminds one of the famous,
“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;
And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;
And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;
And then . . . they came for me . . . And by that time there was no one left to speak up.”
The excuse for government’s existence–the only substantive excuse–is to protect its citizens by punishing those who would do harm to others. A government extending superior “rights” to those who would seek to harm its citizens would seem to invalidate a government’s authority. Oh, wait. We’ve had that for years already. Congresscritters, especially, seem almost immune from punishment while carrying out their rapine upon the citizenry…
First there is no reason why these people should have less protections than POWs – all the government need do is make them prisoners of war.
Second, I’m totally at a loss as to why significantly more ‘enemy combatants’ will be killed, or why I should care if they are. If these people don’t have intel then they’re just soldiers fighting to kill Americans, in which case why on earth shouldn’t we kill them? And if they do have intel, then do you seriously believe that soldiers who are putting their lives on the line every day because they know the high stakes we’re fighting for will risk valuable intel by killing someone to avoid legal issues? Or to make that question a bit shorter, could you be any more contemptuous of the average soldier?
They’ll be killed because it’s easier to kill them quickly than capture them and try to question them. We will be denied the opportunity to see if they have any intel.
I am NOT AT ALL contemptuous of the average soldier. My family has a long, long history of service. On the contrary, I’m simply addressing the reality that soldiers will have to deal with: they are already being hauled up on criminal charges (i.e. Haditha, and that recent sniper case), and now if they capture someone instead of killing him, they know that we will be severely limited on how we can question him, and whether we can detain him the way we routinely used to. My grandmother worked in a POW camp during WWII while my grandfather was overseas. Those men were held for the duration of the war, and “due process” wasn’t even an issue. And that was under Geneva – to which terrorists are certainly not entitled, not being signatories nor complying with any of Geneva’s stipulations.
So why would any soldier, given the opportunity to lawfully kill the enemy and be permanently rid of him, fail to do so now when the expected result of not doing so will be having to prove in court that they were justified in capturing him to begin with?
They know there will be a total lack of intel because now all he’ll have to do is lawyer up, just like any criminal defendant. And when that enemy’s playbook includes explicit instructions to lie about you – and when your own government – and more so after November – is predisposed to believe the lie and not your side of the story – why would you not kill him so that your side of the story is the only one being told?
Why give the enemies of our country – both internally and overseas – a series of ongoing propaganda victories during the trial? They know perfectly well how it’s going to be reported. Ask a soldier home on leave what they think about how the war is being reported. Why risk the fact that this detainee’s ACLU lawyer is going to ask for, and GET, access to our intel about how that squad knew where to go capture him? That’s going to dry up your pool of informants pretty quickly, and directly result in the deaths of your fellow soldiers.
At the end of that awful process, there’s a strong likelihood that this detainee will be released, and return to the battlefield rested, refreshed, revved up from all the propaganda he’s generated for his side, and chock full of the intel that his lawyer obtained to defend him, ready to get out there and kill more American soldiers. He’ll be a hero to his peers, and with his victory over the US, he’ll find it easier to recruit others to his cause.
I credit our soldiers with being more than astute enough to understand these things, and to kill early and often because the practical result of doing so is better for the country than not doing so.
“They’ll be killed because it’s easier to kill them quickly than capture them and try to question them. We will be denied the opportunity to see if they have any intel.”
I’m sorry, I’m entirely failing to understand your point. Are you saying that the average American soldier will say to himself that getting information vital to the defense of my country from this person might be tricky, so I’ll just shoot him instead? Is that really the argument here?
I’m saying that the benefits of capturing someone are now so far offset by the problems associated with capturing someone that it makes more sense to kill them. I’m saying it’s not a matter of “tricky,” it’s a matter of “well-nigh impossible,” and so the soldier will have to make a hard decision based on the situation and the current rules of engagement, and a reasonable expectation of what the outcome of capturing someone will be.
On the one hand -
- American soldiers are not a bloodthirsty mob who enjoy killing for the sake of killing, and are well known for extending mercy where possible. Capturing someone is better than killing them from that standpoint.
- they might have useful information
- we might turn them around to our side, given enough time. (hey, it’s happened!)
On the other hand -
- they’re going to end up testifying in court about whether they should have captured this person.
- the soldier risks prosecution for capturing this person
- while this is being duked out in court, the detainee will be given access to intelligence that will help the enemy kill American soldiers
- while this is being duked out in court, if the detainee follows the al Qaeda playbook or just understands American society enough to figure it out on their own, they will lie through their teeth about what’s happening to them while in custody
- the media, Congressmen like Murtha, and the left in general will believe and champion the detainee, demonizing the military and handing the enemy a series of propaganda victories that will extend the war and kill more American soldiers
Congress, and now the courts, have made it clear that getting intelligence out of the enemy by pretty much any means is not a priority. So why should soldiers go out of their way to get it, given how detrimental the effort will prove?
That makes things clearer, Laura, thanks. Fortunately we know that these people probably do have valuable intelligence, otherwise we wouldn’t be trying to detain them in the first place, so that deals with that doubt. Furthermore we know that we have to torture these prisoners, because the Geneva Conventions that only allow for interrogation of prisoners, not torture, are apparently insufficient. The problem we then have is how to justify holding them and torturing them to uphold American values such as habeus corpus.
On the one hand we have the oft-repeated idea from the Right that the Constitution is not a suicide pact, which I can’t argue with at all. On the other, from the President on down the general commitment is to defend the constitution, not the people. Personally I think that the Constitution not being a suicide pact doesn’t refer to individual people, but to the nation as a whole. If I thought that Iraqi insurgents could bring down the US then I would (unhappily) sign up to doing whatever we could think of to stop these people. But short of that threat we have to live by the rules we set ourselves, even if that puts us at a disadvantage, and even if, horribly, it costs lives that might otherwise have been saved. I don’t like that at all, but the test of the ideal we offer the world isn’t what we do when times are easy.
Good grief Paul, GET A CLUE. The Constitution does not assign LAWYERS the duty of fighting wars. It assigns that duty to the president. The courts are supposed to butt out. And for the past 240 years, they have.
I agree with David that it’s about time for revolution against these tyrants. The people in power don’t seem to care about upholding the written law, so why should we? The Courts are rewriting marriage law and immigration law, and now they’re assuming the president’s duty as commander-in-chief. The damn lawyers just want to run EVERYTHING.
No, the Constitution does not do that. What it does say is:
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
We are not experiencing a rebellion, and we have not been invaded. The President swore to uphold the Constitution, and the Supreme Court has the absolutely duty to make sure he does. How he wages the war is entirely up to him, so long as he obeys the Constitution. If you are so keen on upholding the law, why not start with that?
Our country has been in existence for well over two hundred years, and we have fought numerous major wars, but we have NEVER given captured enemy soldiers the right to challenge their detention in civilian courts…until now. Habeus corpus does not apply to captured warriors. Never in the history of the world have courts taken it upon themselves to administrate wars. Do you really believe the ridiculous theories you are espousing?
Since the Geneva Conventions were enacted enemy soldiers have routinely been protected by them, and in turn have been excluded from the concept of habeus corpus because it was clearly defined when they would be set free. This is the first war we’ve waged since then where the enemy isn’t routinely granted those protections. It’s also the first war that will last for indefinitely (terrorism has existed for several millennia, Islam for 1,400 years, so there’s no reason to think we’ll ‘defeat’ either soon). Put those things together and you find that the military can imprison anyone they want for as long as they want, even if that’s for life. They could literally take you from your bed tonight, and if they said you were an enemy combatant your only recourse would be to the same military who took you.
So yes, I believe these theories, because I believe that the US is not a collection of people but rather a collection of ideas, and if it harms us as individuals to maintain those ideas it’s worth it. Let me ask you a question in turn: Is there nothing about the US that you wouldn’t throw away just to save your neck?
I would not throw away the Constitution out of fear, as you are doing. You can make all the fine-sounding arguments you want about how we should change our policies, but according to the Constitution, courts have no authority to meddle in wars. The habeus corpus clause you mentioned has no relevance because habeus corpus has nothing to do with military operations.
Think about it: Pretty much any time it takes a court 230+ years to discover a new “right” hidden within the Constitution, that right is most likely NON-EXISTANT. Such is the case here.
On the contrary, Drew, one of the founding principles of the Constitution – the most original of intents, if you like – was to avoid putting a single individual in charge. Clearly the President has elevated powers in wartime, but that doesn’t mean he can have anyone he wants arrested and detained for the rest of their life at his whim, and saying he can is pretty close to a textbook definition of throwing out the Constitution. Yes the Supreme Court stretches sometimes, as do the other two branches of government, but that doesn’t mean they are or should be excluded from areas of public conduct.
WRONG. The intent of the Constitution was to put THE PRESIDENT in charge of conducting war: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.”
The Congress can authorize war, and the president can conduct war, but the courts have no authority whatsoever to intervene in warfare — unless the government decides to prosecute an American for treason or some other related crime. http://www.law.cornell.edu/constitution/constitution.articleiii.html
Courts punish people for CRIMES. Most of the people in Guantanamo have not even committed crimes. They are being held because they were fighting us and we captured them. After this decision, the obvious answer will be to shoot them dead instead of taking them alive.
I think Congress should specifically deny the lower courts jurisdiction over Guantanamo. If the Supreme Court wants to deal with the facts of each separate case, let it waste its time hearing them ALL on appeal. And let it bear the burden of public opinion if it decides to set a bunch of animals free.
There’s a difference between putting the President in charge of war and removing restraints on him. Without the courts to constrain his actions in some ways then he gets to do anything he wants, which is the definition of a dictator. Now admittedly such a President would be a very liberal dictator, because we get to re-elect him every four years. Unless, of course, he says that his Presidency is specifically necessary to the war, in which case we don’t.
Notice I’m couching this in theoretical terms; this isn’t an attack against Bush, because you can’t think of a person I would be comfortable having this much power.