February 13, 2008
Editorial
Unnecessary Harm
The Bush administration’s decision to put six detainees at Guantánamo Bay, Cuba, on trial before military tribunals and to seek the death penalty is both a betrayal of American ideals and simply bad strategy. Instead of being what they could and should be — a model of justice dispensed impartially, surely and dispassionately — the trials will proceed under deeply flawed procedures that violate this country’s basic fairness. The intense negative attention they will receive will do enormous damage to what is left of America’s standing in world opinion.

There is good reason to believe that Khalid Shaikh Mohammed and the five others may have been responsible for horrific acts. If convicted, they should be jailed for life, but that should happen under due process. Since Sept. 11, 2001, the administration has made clear that it wants to give people accused of terrorism as few rights as the Supreme Court will let it get away with.

This week’s announcement is a reminder that those rights will be so limited in the military tribunals that the credibility of any verdict will be undermined. Prosecutors will be able to use evidence obtained by improper means, including by torture. The rules will be stacked in the government’s favor, so hearsay evidence that would not be allowed in civilian courts may be allowed. Prosecutors may rely on classified evidence that the defendants will not be able to challenge. Defendants may not be allowed to call important witnesses.

Hanging over it all is the Kafkaesque fact that even if the defendants were somehow to beat the charges, they would not be set free. They would simply go back to being detainees in Guantánamo.

Trying these men this way is sure to raise international hackles. Injecting the death penalty, which is unpopular internationally in the best of circumstances, will only increase the bad feeling. Alienating the world, as the Bush administration still does not seem to understand, is not simply loutish behavior. It has very real implications for national security. The United States relies on other nations to monitor terrorism suspects and track down leads, and to apply pressure to nations like Iran. It relies on the support, or at least the absence of inflamed hatred, of the citizens of countries like Pakistan and Saudi Arabia to keep friendly governments in place. It is reckless to needlessly act in ways that outrage the rest of the world.

In this case, the offense is indeed needless. The administration can and should proceed against these six, and other terrorism defendants, in ordinary federal courts. That was what was done with Zacarias Moussaoui, Jose Padilla and others. Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American. And, in the cases of Mr. Moussaoui and Mr. Padilla, resulted in convictions and long prison sentences that had credibility that verdicts in these current cases are sure to lack.

This is just what we feared would happen as a result of President Bush’s decision to go outside the law in dealing with terrorism: men who may well have committed crimes against humanity are being put on trial in a system so flawed that the results will seem unjust.

Given that one of our allies has already expressed "some concerns" about impartiality and the methods used to extract information from the detainees, should we be similarly concerned about the use of military tribunals as the judicial venue for 9/11 prosecutions?

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I think you'll find it's a bit more complicated than that ...

If those guys were responsible for planning the deaths of almost 3,000 people on September 11, 2001 it looks like they should be put to death. Not one but 3,000! What I worry about is about the rest of the prisoners at Guantánamo. It may be difficult to impossible to assess the guilt (if any) of these. It is a shame to detain somebody so long if he/she is innocent. But freeing them could let them go (back) to al-Qaeda and just strengthen that terrorizing force. By the way, if anybody in a prison bullies another prisoner because of his strength a good form of punishment for that bully would be to feed him only enough food to make him slim down to a skinny. Fruits, vegetables, fiber, skim milk etc, plus a multivitamin to avoid deficiencies.

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a good form of punishment for that bully would be to feed him only enough food to make him slim down to a skinny.

Sorta like what O'Brian did to Winston in George Orwells 1984? ;)

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It may not be 1984 but George Orwell sure did see the future . . .

Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American.

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

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Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American.

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Then you didn't pay very close attention in your civics class, from Page 11 of US Citizenship and Immigration Services document M-638:

Question 75: Whose rights are guaranteed by the Constitution and the Bill of Rights?
Answer 75: All people living in the United States. One reason that millions of immigrants have come to America is this guarantee of rights. The 5th Amendment guarantees everyone in the United States equal protection under the law. This is true no matter what color your skin is, what language you speak, or what religion you practice. The 14th Amendment, ratified after the Civil War, expanded this guarantee of rights. No state would be able to abridge, or block, the rights of any of its citizens.

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I think you'll find it's a bit more complicated than that ...

Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American.

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Then you didn't pay very close attention in your civics class, from Page 11 of US Citizenship and Immigration Services document M-638:

Question 75: Whose rights are guaranteed by the Constitution and the Bill of Rights?
Answer 75: All people living in the United States. One reason that millions of immigrants have come to America is this guarantee of rights. The 5th Amendment guarantees everyone in the United States equal protection under the law. This is true no matter what color your skin is, what language you speak, or what religion you practice. The 14th Amendment, ratified after the Civil War, expanded this guarantee of rights. No state would be able to abridge, or block, the rights of any of its citizens.

Obviously ONE of us didn't pay attention in their Civics class.

You might notice they specifically stated immigrants, not ILLEGAL immigrants, and no mention of foreign POW's at all.

We the People of the United States...

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You might notice they specifically stated immigrants, not ILLEGAL immigrants

You might notice they specifically stated immigrants, not LEGAL immigrants... ;)

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It may not be 1984 but George Orwell sure did see the future . . .

Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American.

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Then you didn't pay very close attention in your civics class, from Page 11 of US Citizenship and Immigration Services document M-638:

Question 75: Whose rights are guaranteed by the Constitution and the Bill of Rights?
Answer 75: All people living in the United States. One reason that millions of immigrants have come to America is this guarantee of rights. The 5th Amendment guarantees everyone in the United States equal protection under the law. This is true no matter what color your skin is, what language you speak, or what religion you practice. The 14th Amendment, ratified after the Civil War, expanded this guarantee of rights. No state would be able to abridge, or block, the rights of any of its citizens.

Obviously ONE of us didn't pay attention in their Civics class.

You might notice they specifically stated immigrants, not ILLEGAL immigrants, and no mention of foreign POW's at all.

We the People of the United States...

Good to see you put "All people living in the United States" in bold, as that is the key phrase, it applies regardless of immigration status, including illegal immigrants. The Supreme Court said in 2001:

Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.

The Due Process Clause being part of the 5th Amendment. WRT POWs they have protection under the Geneva Conventions, though the current administration has side stepped that by suggesting those held in Guantánamo are "enemy combatants" ...

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I think you'll find it's a bit more complicated than that ...

Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American.

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Then you didn't pay very close attention in your civics class, from Page 11 of US Citizenship and Immigration Services document M-638:

Question 75: Whose rights are guaranteed by the Constitution and the Bill of Rights?
Answer 75: All people living in the United States. One reason that millions of immigrants have come to America is this guarantee of rights. The 5th Amendment guarantees everyone in the United States equal protection under the law. This is true no matter what color your skin is, what language you speak, or what religion you practice. The 14th Amendment, ratified after the Civil War, expanded this guarantee of rights. No state would be able to abridge, or block, the rights of any of its citizens.

Obviously ONE of us didn't pay attention in their Civics class.

You might notice they specifically stated immigrants, not ILLEGAL immigrants, and no mention of foreign POW's at all.

We the People of the United States...

Good to see you put "All people living in the United States" in bold, as that is the key phrase, it applies regardless of immigration status, including illegal immigrants. The Supreme Court said in 2001:

Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.

The Courts also said: (c) Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect.

The Due Process Clause being part of the 5th Amendment. WRT POWs they have protection under the Geneva Conventions, though the current administration has side stepped that by suggesting those held in Guantánamo are "enemy combatants" ...

What do YOU call armed and/or hostile persons captured in a warzone?

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What do YOU call armed and/or hostile persons captured in a warzone?

A Prisoner of War.

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I think you'll find it's a bit more complicated than that ...

What do YOU call armed and/or hostile persons captured in a warzone?

Stupid.

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What do YOU call armed and/or hostile persons captured in a warzone?

A Prisoner of War.

Prisoner of War: A detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. In particular, one who, while engaged in combat under orders of his government, is captured by the armed forces of the enemy.

www.aiipowmia.com/histories/histdef.html

Engaged in combat = Enemy combatant.

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What do YOU call armed and/or hostile persons captured in a warzone?

A Prisoner of War.

Prisoner of War: A detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. In particular, one who, while engaged in combat under orders of his government, is captured by the armed forces of the enemy.

www.aiipowmia.com/histories/histdef.html

Engaged in combat = Enemy combatant.

So you're arguing that the people held at Guantánamo should be treated as POWs?

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I think you'll find it's a bit more complicated than that ...

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Wrong. From Wikipedia:

Equal protection under US law
Plyler v. Doe, 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants. It established that regardless of legal status, illegal immigrants are still “persons” and thus protected as such under some provisions the Fifth and Fourteenth Amendments of the US Constitution, notably the Equal Protection Clause of the Fourteenth Amendment.

"Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments…The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts …to classify persons subject to its laws as nonetheless excepted from its protection."

(Emphasis added)

Here in my neck of the woods, we've seen, first-hand, what the suspension of the rule of law can do to a nation. Detention without trial was a favourite tool of the apartheid regime, and it was all done in the name of a war against so-called "terrorists". History has a way of repeating itself.

Suspension of the rule of law, no matter how elegant the semantics, can never be condoned.

Fortunately, we settled this argument long ago. The apartheid regime collapsed under the weight of its own folly well over a decade ago.

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What do YOU call armed and/or hostile persons captured in a warzone?

A Prisoner of War.

Prisoner of War: A detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. In particular, one who, while engaged in combat under orders of his government, is captured by the armed forces of the enemy.

www.aiipowmia.com/histories/histdef.html

Engaged in combat = Enemy combatant.

So you're arguing that the people held at Guantánamo should be treated as POWs?

C'mon Bobby, you're not that dim. My argument is that they do not have the protection of the US Constitution that you and I enjoy.

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Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Wrong. From Wikipedia:

Equal protection under US law
Plyler v. Doe, 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants. It established that regardless of legal status, illegal immigrants are still “persons” and thus protected as such under some provisions the Fifth and Fourteenth Amendments of the US Constitution, notably the Equal Protection Clause of the Fourteenth Amendment.

"Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments…The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts …to classify persons subject to its laws as nonetheless excepted from its protection."

(Emphasis added)

Here in my neck of the woods, we've seen, first-hand, what the suspension of the rule of law can do to a nation. Detention without trial was a favourite tool of the apartheid regime, and it was all done in the name of a war against so-called "terrorists". History has a way of repeating itself.

Suspension of the rule of law, no matter how elegant the semantics, can never be condoned.

Fortunately, we settled this argument long ago. The apartheid regime collapsed under the weight of its own folly well over a decade ago.

"some provisions" being the key phrase...

---

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Wrong. From Wikipedia:

Equal protection under US law
Plyler v. Doe, 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants. It established that regardless of legal status, illegal immigrants are still “persons” and thus protected as such under some provisions the Fifth and Fourteenth Amendments of the US Constitution, notably the Equal Protection Clause of the Fourteenth Amendment.

"Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments…The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts …to classify persons subject to its laws as nonetheless excepted from its protection."

(Emphasis added)

Here in my neck of the woods, we've seen, first-hand, what the suspension of the rule of law can do to a nation. Detention without trial was a favourite tool of the apartheid regime, and it was all done in the name of a war against so-called "terrorists". History has a way of repeating itself.

Suspension of the rule of law, no matter how elegant the semantics, can never be condoned.

Fortunately, we settled this argument long ago. The apartheid regime collapsed under the weight of its own folly well over a decade ago.

"some provisions" being the key phrase...

The right of illegal aliens to due process is noted above, whether you choose to accept it or not is irrelevant, nothing you have said in this thread suggests the Supreme Court agrees that illegal aliens have no rights under the Constitution. Though if you want to carry on a conversation on this issue I'd prefer it be off this thread, it's not really pertinent to this one.

As for:

So you're arguing that the people held at Guantánamo should be treated as POWs?

C'mon Bobby, you're not that dim. My argument is that they do not have the protection of the US Constitution that you and I enjoy.

I'll concede from a current legal standpoint Constitutional rights don't apply to the Guantánamo Six, firstly, they're not held in US sovereign territory and secondly, due to the powers given under the Military Commissions Act of 2006 and Detainee Treatment Act of 2005 which the Supreme Court decided on in Boumediene v. Bush, No. 06-1195.

I think the NYT editorial I quoted is suggesting that even though the administration is legally allowed to proceed in the manner it has chosen, with the process so stacked against the defendants it may look to external observers as if we're merely conducting show trials. And my apologies for any misunderstanding, in fairness it was you that equated enemy combatant with something from a definition of PoW, though I can understand why you would want to suggest it is my being dim rather than you're supporting such a position. Given the violations of the Geneva Convention protections committed during the detention of those at Guantánamo, it might be said that you'd be suggesting the US is guilty of war crimes.

---

I think you'll find it's a bit more complicated than that ...

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Wrong. From Wikipedia:

Equal protection under US law
Plyler v. Doe, 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants. It established that regardless of legal status, illegal immigrants are still “persons” and thus protected as such under some provisions the Fifth and Fourteenth Amendments of the US Constitution, notably the Equal Protection Clause of the Fourteenth Amendment.

"Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments…The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts …to classify persons subject to its laws as nonetheless excepted from its protection."

(Emphasis added)

Here in my neck of the woods, we've seen, first-hand, what the suspension of the rule of law can do to a nation. Detention without trial was a favourite tool of the apartheid regime, and it was all done in the name of a war against so-called "terrorists". History has a way of repeating itself.

Suspension of the rule of law, no matter how elegant the semantics, can never be condoned.

Fortunately, we settled this argument long ago. The apartheid regime collapsed under the weight of its own folly well over a decade ago.

"some provisions" being the key phrase...

The right of illegal aliens to due process is noted above, whether you choose to accept it or not is irrelevant, nothing you have said in this thread suggests the Supreme Court agrees that illegal aliens have no rights under the Constitution. Though if you want to carry on a conversation on this issue I'd prefer it be off this thread, it's not really pertinent to this one.

You seem to confuse basic human rights with Constitutionally protected rights. Furthermore, I clearly pointed out for you, via the link you provided, that illegals can be held indefinitely at the request of the Attorney General. Something which cannot be done to American citizens.

As for:

So you're arguing that the people held at Guantánamo should be treated as POWs?

C'mon Bobby, you're not that dim. My argument is that they do not have the protection of the US Constitution that you and I enjoy.

I'll concede from a current legal standpoint Constitutional rights don't apply to the Guantánamo Six, firstly, they're not held in US sovereign territory and secondly, due to the powers given under the Military Commissions Act of 2006 and Detainee Treatment Act of 2005 which the Supreme Court decided on in Boumediene v. Bush, No. 06-1195.

I think the NYT editorial I quoted is suggesting that even though the administration is legally allowed to proceed in the manner it has chosen, with the process so stacked against the defendants it may look to external observers as if we're merely conducting show trials. And my apologies for any misunderstanding, in fairness it was you that equated enemy combatant with something from a definition of PoW, though I can understand why you would want to suggest it is my being dim rather than you're supporting such a position. Given the violations of the Geneva Convention protections committed during the detention of those at Guantánamo, it might be said that you'd be suggesting the US is guilty of war crimes.

99.999% of POW's ARE enemy combatants regardless of which side they fight for. As for the implication that the US is guilty of war crimes...that's called projection, Bobby, as in projecting YOUR beliefs onto other individuals.

BTW, is that the same NYT who exercised their freedom of the press to divulge military plans to the enemy? That's called creditability.

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Fortunately, we settled this argument long ago.

In my country, we don't seek solutions, we enjoy bickering... ;)

(Myself excluded.)

---

It may not be 1984 but George Orwell sure did see the future . . .

Last time I checked, the US Constitution only applied to American citizens. Not illegal immigrants or foreign prisoners of war.

Wrong. From Wikipedia:

Equal protection under US law
Plyler v. Doe, 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants. It established that regardless of legal status, illegal immigrants are still “persons” and thus protected as such under some provisions the Fifth and Fourteenth Amendments of the US Constitution, notably the Equal Protection Clause of the Fourteenth Amendment.

"Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments…The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts …to classify persons subject to its laws as nonetheless excepted from its protection."

(Emphasis added)

Here in my neck of the woods, we've seen, first-hand, what the suspension of the rule of law can do to a nation. Detention without trial was a favourite tool of the apartheid regime, and it was all done in the name of a war against so-called "terrorists". History has a way of repeating itself.

Suspension of the rule of law, no matter how elegant the semantics, can never be condoned.

Fortunately, we settled this argument long ago. The apartheid regime collapsed under the weight of its own folly well over a decade ago.

"some provisions" being the key phrase...

The right of illegal aliens to due process is noted above, whether you choose to accept it or not is irrelevant, nothing you have said in this thread suggests the Supreme Court agrees that illegal aliens have no rights under the Constitution. Though if you want to carry on a conversation on this issue I'd prefer it be off this thread, it's not really pertinent to this one.

You seem to confuse basic human rights with Constitutionally protected rights. Furthermore, I clearly pointed out for you, via the link you provided, that illegals can be held indefinitely at the request of the Attorney General. Something which cannot be done to American citizens.

No, you found a piece where the Supreme Court said that if it found that Congress gave the Attorney General such a power, then provided due process had been applied (i.e. the illegal had been ordered to be removed) the Attorney General would be at liberty to use such power. This is commonly called a hypothetical situation.

As for:

So you're arguing that the people held at Guantánamo should be treated as POWs?

C'mon Bobby, you're not that dim. My argument is that they do not have the protection of the US Constitution that you and I enjoy.

I'll concede from a current legal standpoint Constitutional rights don't apply to the Guantánamo Six, firstly, they're not held in US sovereign territory and secondly, due to the powers given under the Military Commissions Act of 2006 and Detainee Treatment Act of 2005 which the Supreme Court decided on in Boumediene v. Bush, No. 06-1195.

I think the NYT editorial I quoted is suggesting that even though the administration is legally allowed to proceed in the manner it has chosen, with the process so stacked against the defendants it may look to external observers as if we're merely conducting show trials. And my apologies for any misunderstanding, in fairness it was you that equated enemy combatant with something from a definition of PoW, though I can understand why you would want to suggest it is my being dim rather than you're supporting such a position. Given the violations of the Geneva Convention protections committed during the detention of those at Guantánamo, it might be said that you'd be suggesting the US is guilty of war crimes.

99.999% of POW's ARE enemy combatants regardless of which side they fight for. As for the implication that the US is guilty of war crimes...that's called projection, Bobby, as in projecting YOUR beliefs onto other individuals.

The current administration has stated that the Guantánamo detainees are not PoWs and as a result Geneva Conventions protections do not apply. It could be argued this was done precisely so that interrogation methods may be employed that would otherwise be prohibited (i.e. torture which I believe is considered a war crime when committed on PoWs).

BTW, is that the same NYT who exercised their freedom of the press to divulge military plans to the enemy? That's called creditability.

Rather than actually divulging military plans in the midst of a war, for that you need Fox News. In the opening post I also noted that one of our allies had expressed "some concerns" regarding the process, is a member of HMG as easy to dismiss?

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I think you'll find it's a bit more complicated than that ...