We're the Military and Airpower Guys of Jonah Goldberg of National Review Online + a stray we found wandering around looking lost. All original material JHD, BHD, JR, WT, and KA 2003-2010 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html Thu, 21 Jan 2010 16:00:43 Z Movable Type 4.12 en Copyright 2010 http://www.rssboard.org/rss-specification Kat makes her points in a post down below (and has drawn in Cliff, too. Heh). I talked with a lawyer friend of mine - "Yeah. I'm still somewhat bemused. They're essentially saying that all those POW's we gathered up in WWII should have been treated the same way. Unless I'm missing something." This was her take: Yep. However, since Habeas rules weren't (according to this court) suspended, and these guys/gals are on American soil (or close enough), they now get to petition for habeas. Nevertheless, the VAST majority of habeas petitions are summarily denied every year - almost on... http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html Fri, 13 Jun 2008 08:55:52 -0600 Kevin, I wish it was a level playing field for our troops. I agree with you, i would rather there were no more casualties. The thing you might just want to watch, if you can, are the "Status of Forces Agreements" or SOFAs. The SCOTUS action will take decades to begin only to have the cases remanded back to the lower courts. It will probably take forever for this to be resolved. You make a major point about "semantics". It has nothing to do with "semantics", it is about "discipline", "honor" and "duty". For whatever it is worth, in my view, your focus should be on your men, not here. Take care, Grumpy http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74287 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74287 Sun, 15 Jun 2008 00:47:45 -0600 Bah! A plague on the black robes. Far as my neanderthal behind is concerned, you wanna play ball, then you abide by the same rules I have to play by. No uniform, no acknowledgement of your status.... Then, bang dead on the spot and my unit would move on. I refuse to subject my troopies to an unfair playing field. War is not a game to be played out in the court system. You don't wanna play the game, then you damned well better not fire on my men. CIVDIV and the rest be damned. I'm not gonna risk the lives of my men over squabbling symatics. Sux to be you. And, yes, I would stand proud and defend my actions. In combat, I'm not gonna quibble where my mens lives are at stake. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74281 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74281 Sat, 14 Jun 2008 21:41:06 -0600 I can see where you got your point but I cannot agree. The ruling the court just threw out was crafted by the Congress to meet the standards this same court set before. Congress wrote it based on what the Supremes required, the president signed it and now the Supremes have just thrown out the law that was crafted to meet their own rules. At what point will we get a final draft that all parties can agree to or will the Supremes just keep moving the goals. In the meantime I don't see that the Supremes have even ruled on the whole concept of unlawful combatants and how they should be dealt with. If we go by this case, then the POW's will not be up for as many rights as the unlawful combatants nor will our own citizens if they do something that will put them in the Gitmo situation. How should that be handled. If I recall correctly there is a definition of POW's and also unlawful combatants in the GC that we ratified. Should that not have figured in what the Supremes based their decision making on? All in all I am not happy with this one at all. I do not see the result being good for our troops in the battle situation nor do I see it being good for the trial of these people as opposed to the potential of our troops being charged with crimes because of the differences between military proofs and civilian court proofs, yet another point that the Supremes conveniently forgot. What is to keep the Supremes from throwing out law after law that the Congress passes to try to meet the goals that the justices keep moving - at what point does the nation get to say that enough is enough and get on with it. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74273 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74273 Sat, 14 Jun 2008 18:47:19 -0600 Kevin, If you wish. There is a major difference. It really depends on when you went into the Military. The definition of "combatant IN uniform" meant some very specific things. This requires a combatant to be either enlisted or commissioned officer in the Military, under oath to a Military Code of Law and honor, dog tags and Military I.D.. Let there be no confusion, this is only open to the Military, while in a distinguishable uniform with all of the above. The issue in the past was spies, spies could be shot. Now, it is my turn to way my words. You can draw you own conclusions. The other thing is this, many changes have taken place over the last year. I must agree with you, except for one thing, I do NOT know of all the factual changes. There we must take all of this with a grain of salt about the size of the State of Alaska. Have a GREAT weekend, Grumpy http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74259 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74259 Fri, 13 Jun 2008 22:31:30 -0600 Grumpy, "You were not the only one taught that way, BUT there was one very important additional definitive point made to all of us. The point is, Who are the combatants IN uniform." Ya lost me, what point are you making? Our folks are IN uniform, as combatants, easily identifiable in accordance with the GC. The opposition are NOT complying with those codes. So, what point are you attempting to make? Not being combative on this point, but, if you wanna play football, I'm not gonna handicap OUR team by making them play basketball. For a very poor sports analogy. My point was, we can't play by one set of rules that handicaps our effort, while the other side plays by another. My bottom line is this. We win, you lose. All else is irrelevent in my opinion and the UN and so-called world opinion be damned. Cheers. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74249 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74249 Fri, 13 Jun 2008 20:22:46 -0600 Kevin, Let me say this as respectfully as possible.. If I were you, I would weigh my words very carefully. You say, "Whatever happened to the old Geneva Convention rules about NON-uniformed combatants be considered guerillas and therefore NOT protected by the Convention? My memory may be a tad fuzzy on this, but if I recall, if you were a combatant NOT in uniform, you could be shot on sight. No trial needed." You were not the only one taught that way, BUT there was one very important additional definitive point made to all of us. The point is, Who are the combatants IN uniform. Respectfully, Grumpy http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74246 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74246 Fri, 13 Jun 2008 19:32:14 -0600 The designated interpreters of that which I have sworn to support and defend are looking a lot like domestic enemies to me. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74245 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74245 Fri, 13 Jun 2008 17:32:40 -0600 I have a very simple solution to the problem. Shoot them on sight. No need for detention that way. Whatever happened to the old Geneva Convention rules about NON-uniformed combatants be considered guerrillas and therefore NOT protected by the Convention? My memory may be a tad fuzzy on this, but if I recall, if you were a combatant NOT in uniform, you could be shot on sight. No trial needed. Hence the armbands worn by the Polish Home Army, and members of the German Heydete unit at the Battle of the Bulge etc. Just a question of historical note. And, the Brits also seemed to have pretty good success with flying gallows... http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74243 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74243 Fri, 13 Jun 2008 16:55:44 -0600 John, Would you correct at least one VERY DUMB VET, ME? It appears to me, you came out the door and with a slightly raised voice said two words. "CHILL OUT!" As we look at this decision from SCOTUS, it opens a door to a maze. As if you didn't already know, this will take forever to even get started. This decision is like a coin with two sides. Groups on each side, at some point we may find the very elusive thing called, "balance". In a time war? Yes, in a time of war! Yes, especially in a time of war. This is the reason I see John saying, "CHILL OUT!" Grumpy http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74230 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74230 Fri, 13 Jun 2008 14:19:57 -0600 Casey. that might be next. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74224 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74224 Fri, 13 Jun 2008 12:44:57 -0600 Well, John, you made me feel better. Up to now what I had read gave me the impression that those goobers could expect civil court trials next month. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74223 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74223 Fri, 13 Jun 2008 12:24:34 -0600 Okay. I actually have to do some work here. LOL Probably do agree mostly. I just haven't figured out how we get the supreme's making that decision at all. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74220 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74220 Fri, 13 Jun 2008 11:08:18 -0600 so then, we three are agreed. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74218 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74218 Fri, 13 Jun 2008 11:02:34 -0600 I'm thinking we're just talking past each other here, Kat. I'm not outraged by the decision. The Court essentially threw it back into the lap of "the political branches" - which, in a sense, gives us more leverage than we have with the Courts (as the Founders intended). I see the system working as intended. Making it hard to do things, and keeping government tied up doing things like this - especially since now that they've gone and professionalized it and everything, they think they need to be "doing something" - and if they aren't tied up in knots, they can lower the bar of what interests them pretty low. We've *always,* in the last 100 years or so, fought under the handicap that the people we're fighting don't have to follow the rules we have to follow. We've not lost any conflict because of that. Those where we failed to achieve our objectives, we failed because we either didn't define the objectives in a long-term supportable fashion, or we simply didn't have the will to complete the task. In other words, we've been outlasted by our adversaries, vice defeated. With consequences that were not fatal to the Republic, however fatal to populations that made the mistake of trusting us. And, of course, that's what our adversaries are learning - we don't need to be defeated. We need to be bored. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74215 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74215 Fri, 13 Jun 2008 10:43:59 -0600 But that's precisely why I brought up Padilla. His case was being heard and he was given a different outcome precisely because he was a US citizen. Which seems to me to have exactly determined the question of US citizen's rights v. those of foreign enemy combatants. Further, these are "unlawful" enemy combatants who have, indeed, forsaken or refused to accept any rules or law of combat. Which is precisely what puts them "outside the rule of law" in war and subject to even immediate execution. Where is the incentive to act within the law of land warfare if there is no-consequences? And, while we're on about how long it's taken, it has taken exactly this long because we have never previously given any privileges to those bad actors and now we want to. It doesn't mean they have existed all along in every war, just that we decided to change the rules. Folks like to believe that's because we are doing something better and more humane, but frankly, it seems like every time we accept or excuse some terrible act of humanity, allegedly to protect our own, it gives rise to even more terrible acts, not less. Mind you, I'm not advocating for summary executions. Not because I am against the death penalty or believe that there aren't any people we are holding who don't deserve it, but because it doesn't fit with our war strategy. However, I believe that the Supreme Courts have inserted themselves into conducting a war more than necessary and that we conduct that war as we see fit as a nation, not as officers of a court. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74214 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74214 Fri, 13 Jun 2008 10:30:59 -0600 kat: caution on terminology.. Gitmo is specifically NOT a "POW camp"... Geneva III details the requirements for a detainee to qualify for the privileged status of Prisoner or War. Gitmo detainees (unlawful combatants) meet none of them. a PW (or POW, or EPW (under current Army terminology)) is a patriot of another sovereign nation who has served his/her nation and thru whatever circumstances has been rendered non-combatant and in the custody of the opposing power. they are soldiers (sailors, marines, airmen, whatver) who are entitled to the same exact treatment we would want for one of ours under the opposite circumstances. our job is care/custody/accountability, and when the war is over, transport them safely back to their own border and deliver them over (re-patriation) in time for a parade up the main street of their capital city (cuz they deserve that, too). unlawful combatants? not so much. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74213 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74213 Fri, 13 Jun 2008 10:26:21 -0600 C'mon, Kat - by your reckoning we were finishing up the WWII POW cases at this point in duration, we're just getting started. And the history of the tribunals after WWII aren't necessarily an example of great jurisprudence, either. This *still* just doesn't bother me as much as it does others, and the Congress and the Executive can still cut a deal to work it out. And if they choose, or are unable, to do so - well, we put 'em in, didn't we? My whole purpose in bringing in US citizens is because *if* the US gov chooses to designate US citizens as unlawful combatants, you can find yourself in Gitmo, on trial for your life, with relatively few tools to defend yourself, and no way to challenge the detention. The fact that it hasn't happened yet isn't, to me, relevant. That's precisely why I brought up the Palmer Raids and the Civil War. It *has* happened in the past, for good reasons and bad. So the fact that we have a system that makes it difficult now... well, that just doesn't bother me. http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74210 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74210 Fri, 13 Jun 2008 10:04:41 -0600 Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. That may be true of our nation's wars, but historically, our wars are way out of the norm with wars either lasting a decade or two or three, etc. Or even 100. SEcondly, our wars have been trending longer, precisely because we don't fight the wars of the past with the weapons of the past or the rules of the past. Thus, longer detentions are a symptom of our "humane war" and if a few guys have to be detained for twenty years so that we don't kill a million or so in war, I don't find the trade off insufficient. Also, I would point out, that not only did we keep the Nazis, Japanese and Italians on our soil, we kept them for two to three years after the war was ended in order to do exactly as this military tribunal system was doing: try them for crimes and execute them or send them to prison longer. So, again, I don't find that "OMG our wars are going so long people are being detained too long" argument to suddenly be any more relevant than it was in 1947 or '48. And, unless there are US citizens who are still being detained as "enemy combatants", this decision was not about American citizens caught up in a terror investigation who already have had it determined that they have all their rights (why Padilla was finally given over for civilian trial), but enemy combatants who are designated such, not only by their actions, but by many rules, regulations and conventions. I think the courts should have thrown out any pleadings from any one who was not a US citizen being held in US military POW camps and simply refused to hear them on those grounds. Keep it simple and point to section 8 of the constitution. A two to three sentence decision or simply say "read the constitution". I just want to know why the Supreme's insist on setting a precedent for every law when every time they do they create another law that everyone tries to use and no one, because it comes from the Supremes, can ever over turn.]]> http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74205 http://www.thedonovan.com/archives/2008/06/the_gitmo_decis.html#comment-74205 Fri, 13 Jun 2008 09:49:08 -0600