I'm not sure why Democrats insist on defending the NYT, since taking such a stance is far more likely to lose than win votes.

While I haven't seen a lot of democrats who actually need votes commenting on the subject, this sentence does strike me as telling.

Do you see any situation where taking a stand based on your beliefs or principals is the right thing to do even if it does lose you votes?

Do you see any situation where taking a stand based on your beliefs or principals is the right thing to do even if it does lose you votes?

I'm sorry, but I just don't see Schumer's defense of the NYT as founded on good principle and bad politics. I'm going to make the shocking suggestion that the Democrats see the Press, and especially the NYT, as a political ally, so their defense of it is chiefly aimed at minimizing the damage to an ally's reputation. In that context, since it's almost completely a political question, it's relevant to observe that they aren't accurately accounting for the down side of that approach.

But Bennett's observation that there aren't any real penalties or costs associated with a failure to respect intelligence or security, along with the assurance of a number of people who aren't friends of this administration that there was a security problem (Sec. Snow, etc), simply blew the other "arguments" out of the water. The Press' mantra is "trust us", but the entire calculation of self interest is almost completely on the side of blabbing secrets, without any real consequences other than a potential drop in circulation from "adults". That's the only "principle" that they, or Schumer, are concerned about. It's called "maintaining our prerogatives."

If they had demonstrated any comprehension of Iraqi Freedom, rather than simply choosing to see it as a "mess" from their vantage behind the Green Zone boundary, she might have had a case. But the "strategy" they favor can be summed up with the simple term: "9-10".

Thanks - I've been preaching along these lines for a couple of years now. The risk is not that we forget the events of September 11, 2001. History has taken care of that remembrance. The real threat is forgetting September 10th.

I've seen some reports on blogs defending the Times, saying that this information was already known prior to the Times article.

Certainly, the Bush administration did talk quite a bit about tracing the funding of terrorism. Many of the financial regulations that have gone into effect since 9/11 were put in place to track the source of funding. (I have personal experience with this--we inherited some money in 2004 and we had to fill out an encyclopedia's worth of forms to get our inheritance, and the bank explained to us that many of them were counter-terrorism measures.)

I've even seen reference to a government Web site explaining the SWIFT program?

So what secrets did the Times actually expose?

I hope you aren't implying that MSNBC would stack the deck in favor of an MSM/Liberal position, are you?

#4 Mitch,

Knowing that secrets are being found and knowing HOW secrets are being found are two different things.

Measures taken against human spies will be different than those for crypto breaks.

Take WW2. Rommel and the Italians knew we were on to the sailing times and routes of Rommel's supply ships. We fooled them into thinking it was spies on the docks rather than crypto breaks. They spent a lot of effort looking in the wrong places.

The same goes for this program. Knowing that money is traced and knowing HOW it is traced are two very different things. One allows you a definite course of action one has you searching in the dark. Most Americans would prefer the enemy was searching in the dark.

The Ds are in danger of losing seats, in a mid-term election , against an unpopular President. A pretty hard trick to pull off. They can definitely than the NYTs for the help.

What was exposed was not general knowledge, Hambali the Bali Bomber was caught by SWIFT.

Make no mistake about it this will cost lives, very likely American lives. At the worst, millions.

Hitler knew very well the US and UK/Canada would invade France and generally when; he simply didn't know Pas de Calais or somewhere else?

Like everything else it's the details that matter, that make the difference between 9/11 and the plot to blow up Sears Tower being nipped in the bud.

The Republicans face far worse political consequences by supporting the WH and Bush regardless of the legality or effectiveness of his policies.

The American people are tired of the Republican spying and lying. If you want to side with those who keep pretending that blatant power-mongering has anything to do with National Security, you're gonna end up wishing for another terrorist attack on US soil.

Sadly, I would not put that past you.

No one trusts your side any more.

"Knowing that money is traced and knowing HOW it is traced are two very different things."

I agree they are different things. Where does the NYT article provide the HOW any differently than previous Administration announcements of how this program works?

Response to post #8:

"Sadly, I would not put that past you." You are really boxing yourself in with inflamatory statements like that. It will make the reaction against "your side" all that much stronger if another terrorist attack occurs.

The NYT entity is trying very hard to stay alive in the world. Its' reporters and editors have to find some way to try to stay in play in 2006. They are functioning the only way they know.
They can only peform to the level of thier abilities, which is non sequiter. They are no longer part of the new world. The way they live and think is obsolete and they do not see the uselessness of thier existance.

I will not weep for them.

Also...they divuldged nothing not know to any enemy worth his wit. The USA made a point of announcing, after 9-11-2001, that we would seek to disrupt the enemies' financing. The NYT broke no news to the informed. They only exhibited that they compete with no one above the level of american idol.

Jerry

Jerry et. al.,

Knowing about the SWIFT program lets them move the money in channels not monitored by SWIFT.

Knowing that money is being traced is similar to knowing the enemy is trying to crack your codes vs knowing which ones have been cracked.

Mitch, in a nutshell all those transaction monitoring to trace terrorist funding relate to transactions within the US or involving the US. (Basically, they require the active cooperation of US banking institutions to work.) So in terms of "domestic spying" the program simply duplicated what was already known about.

So if you're worried about the government spying on you and your fellow citizens, absolutely zero has changed at this point. You can bet your funds transfers overseas from US banks are being reported to various US Agencies.

However, if I understand how the SWIFT program worked (and I probably understand it a lot better than anyone at the NYT, since I work with SWIFT peripherally every day) the United States had access to the entire international inter-bank transaction data set. All of it.

This means that if a network was using banks in Kazahkstan and Sudan to do business, we had the data, without having to ask "pretty please" of institutions that might not be on our side vis-a-vis jihad.

Which of course is why it was secret, and why it now has a lot of people in the international banking community pissed off.

Also, of course, since we were getting the data in bulk, and in a uniform format, technologically it would have been much more easy to mine for interesting patterns than doing the same thing with data from x number of banks. It's literally the difference between downloading the OED periodically and having to re-key an abridged version by hand.

Jerry: "The NYT broke no news to the informed." Sorry, this is wrong. I really can't stress enough from a logistical standpoint how valuable the SWIFT program must have been.

The idea that outing this program was harmless is preposterous. Not only has our bandwidth on transaction monitoring been cut to a miniscule fraction of what it was, we must now presume that the SWIFT network is again safe for terrorists to use, and that they now know that.

This is in fact a clusterf**k.

Good post demosophist. I've often wondered if the NYT has ever not reported a story because of the security risk. Seems they've exposed everything we use, so far. I guess if they get the names of spies in al Queda, that will be another Pulitzer vote for them. I know they won't hesitate to print it.

Jerry,
They are functioning the only way they know.
True but that also means they don't function with any responsibility to their country. I think it was AL who termed them "poor citizens" or something like that. True enough. But I agree with your summary - I will not weep for them either. I just hope it comes sooner than later.

Personally, I've gone back on forth on this issue. At first, it sounded like the Bushies were pushing the executive branch's power envelope once more. Then it broke that the administration got subpoenas. But on further observation, it appears the subpoenas are so broad in tossing fishing nets to grab millions of records there's apparently no effective court oversight and room for massive abuse.

If it weren't for the NYT, I wouldn't have this piece of evidence to weigh in my personal opinion that the Bush administration is dangerously eroding American liberties.

The counter argument from conservatives is the NYT undermines the war on terrorism. Of course, the fact there's a trail of Bush administration speeches, Congressional testimony, etc. going back for years revealing we're targeting international financial didn't tip our hand. Republicans are patriots by definition and can do no wrong.

The NYT article isn't so much about exposing secret programs but how the Bush administration is going about - with questionable legality - digging into our privacy. But that's been lost in all the media smoke. Media Matters has done a fine job of revealing how the 'liberal' media has played along with the Bushies.

While this video clip isn't specifically about the SWIFT program per se (I recorded it for a post on newshounds.com), it illustrates how right-wingers, in this case Fox News, are using stories like this to spin hard to the right. They coin a new propaganda slogan: "the war against the war on terrorism" as they rant against the "Bush haters."

Watch this clip and you'll soon realize there's plenty of right-wing propaganda on news today. Not that there's a single, solitary conservative in America who will complain about this media bias.

ttp://www.youtube.com/watch?v=IgW3eO2vQJM

The only problem, in the end, with the NYT articles is it gives the right-wing pundit class (e.g., Limbaugh, Hannity, O'Reilly, John Gibson, Tucker Carlson, Laura Ingaraham, etc.) more fodder to demagogue against liberals in their constant struggle to demonize the opposition.

Walter's:

The Republicans face far worse political consequences by supporting the WH and Bush regardless of the legality or effectiveness of his policies.

There was no illegality connected with the SWIFT program, as everyone including Sec. Snow acknowledged, and it was also universally acknowledged as a very effective program. We could get into the level of distortion required to characterize Iraq as a "quagmire", but that's essentially the problem. The reason the Dems and the Press think it's a quagmire is that they have no idea what the strategy is. To them anything less than a cake walk with zero casualties is a hopeless mess. Sooner or later the public will figure this out, and hopefully sooner.

The American people are tired of the Republican spying and lying. If you want to side with those who keep pretending that blatant power-mongering has anything to do with National Security, you're gonna end up wishing for another terrorist attack on US soil.

Sadly, I would not put that past you.

No one trusts your side any more.

A completely baseless and substanceless argument. This is why you guys lose elections.

The NYT article isn't so much about exposing secret programs but how the Bush administration is going about - with questionable legality - digging into our privacy. But that's been lost in all the media smoke. Media Matters has done a fine job of revealing how the 'liberal' media has played along with the Bushies.

1. There has been no credible allegation that anything about the SWIFT program was untoward, period.

2. Adults don't usually try to have it both ways. If the "liberal media" is "playing along with the Bushies" that doesn't quite square with your contention that the MSM is challenging the Bushies for their "questionable legality" and violation of privacy. Doesn't keeping track of which counterpoint you're making get rather confusing after awhile?

"The NYT article isn't so much about exposing secret programs but how the Bush administration is going about - with questionable legality - digging into our privacy."

Aaaargh. For the twentieth time, this is a red herring. This program was about digging into the privacy of non-Americans; all the data we were sifting from SWIFT could already be obtained for American transactions through well-documented domestic reporting requirements.

Personally, I want the government to know if someone's buying $10B worth of goats from Nigeria, and then trans-shipping them to North Korea via Yemen. But that's just me I guess.

cbanks,
I find it amusing that you think the "liberal media" spins to the "Bushies". I've noted for the last 6 or 8 months that the liberals seem to hate the media as much as the conservatives. So whose buying their crap?

What separates you from the conservatives is your last statement -
The only problem, in the end, with the NYT articles is it gives the right-wing pundit class (e.g., Limbaugh, Hannity, O'Reilly, John Gibson, Tucker Carlson, Laura Ingaraham, etc.) more fodder to demagogue against liberals in their constant struggle to demonize the opposition.

Oh puhleeze. Don't pan that one sided wailing. I don't think conservatives "demonize" liberals anymore than the liberals do so to conservatives. What gets missed in the "fodder" are the facts. If the NYT reveals details of a counter-terror program that are supposedly "secret", what do we have as a weapon for that counter-terror program now? The GWOT is not a conventional war to begin with. Should we fight it as such may enrage those who would be allies in that fight - namely the Arabs and Muslims who are supporting our efforts at crushing terrorism. They have, in fact, bellied up to the bar on providing what used to be "secret" information. To catch evil people who don't mind killing kids. Or their mothers. Now that they're exposed, how much info can/will be provided?

By the way, though I do watch Fox News at times, I don't see them much more "conservative" than other Antique Media bellows. They all have spin and "unbiased" reporting is a lost art. Some are absolutely worse than others - watch the BBC mudslinging or their version of PBS - Channel 4.

What was exposed was not general knowledge, Hambali the Bali Bomber was caught by SWIFT.

Well, not really. Two of his body guards had been captured two days prior to his capture and provided valuable intel.

Then Hambali used an ATM card to get cash and the bank had the account flagged. But that had nothing at all to do with the SWIFT program.

#13:

"The idea that outing this program was harmless is preposterous."

Perhaps the idea is preposterous to you, Mark, but the reality says differently. No details were published beyond those already spoken about by the administration itself, and it is common knowledge that large bank transfers leave a traceable record. Any idiot would know this.

Perhaps what you mean to say is that it is preposterous to think that outing the program was harmless to Bush and his secretive administration? On that score, I agree wholeheartedly.

Another nail in the coffin of modern conservatism.

Walter, have you actually comprehended any of my comments? If you have a link that shows that our co-opting of the SWIFT network was in the public domain, please post it. Otherwise, all I'm seeing is a lot of hand-waving.

As to harming the Bush Administration, oh yes, it did that. I just happen to think it harmed everyone else more.

So Davebo you are happy that Al Qaeda now knows to avoid transfers of money around the world through the SWIFT program? Happy that the two co-Chairs of the 9/11 Commission (Kean and Hamilton) were not listened to when they asked the NYT Keller NOT to publish this?

I have to ask if you would support keeping ANYTHING secret; and if you are willing to sacrifice millions of American lives for the fetish of undermining every effort to fight Al Qaeda. If we have moles inside Al Qaeda, would you support publicizing THAT? If we have means to eavesdrop on bin Laden, would you publicize THAT? And are you willing to accept responsibility for rejecting measures that would save lives, millions of lives, to prevent:

A Chemical Sarin-like attack on the NYC subways for example.
A plot to blow up/bring down the Sears Tower and FBI offices.
An Anthrax / Plague / other bioweapon attack designed to start a pandemic and kill millions of Americans?
A nuclear bomb going off in an American city?

Just how many Americans are you prepared to sacrifice so that the NYT can get it's exclusive and undermine GBW effort to fight Al Qaeda?

Kean, Hamilton, members of both parties of Congress found the methods used useful, Constitutional, and no violation of ANY American's privacy (remember, it applies only to foreign NGO and Government and Corporate transactions).

Standing up for Al Qaeda front organization's ability to move money around without the US knowing about it (what I take your position) is a disaster, and likely IMHO to lead to the emergence of vigilante action as the Press and Dems hamstring Government efforts to protect against terror. If Government is seen as unable because of Dems and the Media to stop Al Qaeda (and we have inevitably another mass casualty attack) we will see the casting off of PC and Multi-culti nonsense and the emergence of the ugly mob.

It's the height of stupidity to ask people to sacrifice their families to terrorists to assuage the PC denial that we are in an existential struggle against Al Qaeda and Islam. Rejection of moderate measures now means the mob later.

You folks are being unfair to the Ridge.

His side has argued that it isn't a real war unless there's a tax hike.

Of course, that's their solution to everything, but it is their proposal.

" . . . the very executive privilege that they see now see as a culprit, only slightly less threatening than UBL."

Oh, I think that is TOTALLY wrong.
MANY see Bush as FAR more dangerous than OBL and company. {:^)

Once again, for those arguing this program wasnt news- why was it front page news? Why did the NYT describe it as secret?

#23 Jim Rockford,

Brings up a very good point for all my liberal friends. Sort of a mild version of Wretchards Third Conjecture.

Vigalante action if the government is seen to be ineffective. Or an intense call to use nukes because search (through intel) and destroy is not working.

You folks on the left who support the NYTs are playing with matches in a room full of gunpowder. Not wise. Not wise at all.

I have a request.

As a Republican, I would really like for the Democrats out there to campaign on this. Go out and stand up for the Times and the media. Repeat Keller at every opportunity. Call every program to watch terrorists a Bushie plot. Remind us often how you think Bush is a greater danger than bin Laden. Go for it.

I've been very worried about this year's election. Democrats are poised to make gains everywhere, perhaps enough to take one or both houses of Congress. Republicans have been on the defensive. Hastert and Co. have begun to make Pelosi look not so bad. Frist has made Reid look like a fiscal conservative. My party has been demoralized.

So please, please, Democrats, campaign on national security issues. I beg you, I plead. It is the one area where everyone in America knows you aren't serious. For every attaboy you can stir up from the Kos crowd, you'll send two votes our way from anyone who doesn't want the UN running the State Department. For every potential Pulitzer your subsidiary goes for, thousands of undecideds decide that you can't be trusted.

Please.

Just as a matter of historical accuracy, we won the Viet Nam war. The assymetrical aspects of it largely ended in 1968 when the Viet Cong were annihilated in the Tet offensive. After that our primary enemy was the North Vietnamese Army, which never defeated anybody capable of shooting back at them. When they launched their next big offensive in 1972 the United States had fewer than 50,000 troops in country, only about 10,000 of which were ground combat troops. Most of the fighting was being done by the South Vietnamese Army. It was they who defeated the North's offensive. That defeat, plus the Christmas bombing which did major strategic damage to North Vietnamese capabilities, finally forced North Viet Nam to accept the basic peace deal we had been offering for four years. One of the most important points of that treaty was that North Viet Nam was forbidden to make up any of the material losses they had sustained that year. They could only replace equipent and supplies on a one for one basis. With what they had left after 1972, North Viet Nam was not capable of waging a large scale war. They had lost and everybody knew it.
In the next two years though the Congress siezed control of Viet Nam policy from the administration and reversed, perhaps deliberately, that result. The Congress cut off further supply to South Viet Nam. Through that and other actions they deliberately encouraged North Viet Nam to rearm in spite of the treaty restrictions and prevented presidents Nixon and Ford from doing anything to prevent that. By 1975 the correlation of forces was reversed. North Viet Nam was magnificently rearmed and South Viet Nam was simply out of ammunition. Empty rifles are clubs and are useless against the vast number of tanks (which did not exist in 1972) that rolled down Highway One.
Defeating the enemy and forcing him to accept peace terms is winning. Legislative action to reverse that result after the fact is treachery but it is not losing.

Ok, let's not forget about Sept 10. On that date:

- U.S. citizens phone records were (probably) not being tracked by our own government

- Habeus Corpus had not been rescinded

- Torture was not an acceptable method for the U.S. to use

- The Geneva Convention had not yet been nullified

- New Orleans had not yet realized that the federal government would leave it without aid

- U.S. scientists had not yet discovered that the validity of their science would be ignored by our government

- The voting public had not realized the it's government was run through the use of graft

- The American public did not realize that war contracts would be awarded without bids to the Vice-President's favorite company

- We did not know that billions of dollars would be misplaced in Iraq without investigation

- We did not realize that our president felt the Constitution was a quaint, out-of-date document.

Bill Keller is absolutely right...the NY Times speaks truth to power. The question is, whose truth, and to which power?

U.S. citizens phone records were (probably) not being tracked by our own government

Maybe. We know our email records were. But of course there is no law against the administration asking for voluntary cooperation from the phone companies. Take it up with Verizon.

Habeus Corpus had not been rescinded

As it still has not. Was during the Civil War of course.

Torture was not an acceptable method for the U.S. to use

'Torture', as it has been dumbed down to at this point, was in fact significantly more intense pre-911. Often it was outsourced to friendly governments not so interested in human rights, but certainly the spot light was not on it. I never heard of solitary confinement or loud music described as torture pre-911, thats for certain.

The Geneva Convention had not yet been nullified

The SCOTUS seems to have a bone to pick with that contention. Oh, and who exactly do we go to with our complaints about our people who are routinely captured, tortured, and murdered? Geneva is a convention between states- like all treaties it relies on compliance of all parties. AQ doesnt seem likely to ink it any time soon.

New Orleans had not yet realized that the federal government would leave it without aid

ROFL. You have any idea how much money has been pissed away on NO already? Go check it out when you sober up. This hurricane has been pork mana from heaven for Congress.

U.S. scientists had not yet discovered that the validity of their science would be ignored by our government

And i thought we were living in a Republic, not a techno-oligarchy. Silly me. What do Al Gores minions have to command me about today?

The voting public had not realized the it's government was run through the use of graft

All the clues have been there for a century or more. We seem to get the government we deserve. Ask William Jefferson.

The American public did not realize that war contracts would be awarded without bids to the Vice-President's favorite company

The real scandal is that private contractors were brought in for a vital commitment at all. Instead of dwelling on the conspiracy theories dwell on that.

We did not know that billions of dollars would be misplaced in Iraq without investigation

Then we are total morons because that much was inevitable and the least of our worries. I would personally shovel hundred dollar bills of tax payer money into a furnace if it would keep the lights on in Baghdad. Again, the scandal is the failure to deliver given all those billions.

We did not realize that our president felt the Constitution was a quaint, out-of-date document.

I thought the term was 'living document'. How come its living when the left wants to ignore what it says, but sacrosanct when they dont?

Enjoyed and agreed with Mark Beuhner's takedown of E.F.'s talking points, but it still leaves the important question hanging:

What would the Eclectic's of the world done differently after 9/11?

I mean, obviously any secret program is right out. Too much potential for abuse if the government can keep a secret.

International spying: right out. We have to be good citizens of the world and respect the sovereignity of other nations.

Attacking states hostile to us: right out. Can't be having American Imperialism rearing its ugly head.

For that matter, any use of ground forces: right out. American mothers will have their children die on foreign soil, and it's just not worth it.

Targeted bombings: right out. Innocent women and children will inevitably be killed, and that would make us evil.

I wish I were just being a sarcastic bastard, but I keep thinking "what if Jimmy Carter had been President on 9/11" and I get a hideous empty feeling in the bottom of my stomach.

There are people who would have us submit to narcisistic, nihilistic despair and call it taking the moral high ground. Those of us who care about the Enlightenment must not let these voices win.

Mark;
There’s a lot of cute rhetoric there, but not much substance.

Phone records: “Take it up with Verizon.” I don’t think Verizon are the people I’d take to task when the President of the U.S. secretly violates our right to privacy.

Habeus Corpus: “As it still has not. Was during the Civil War of course.” Maybe you should ask SCOTUS about that, or any prisoner in Gitmo. Also, the fact that it happened before doesn’t make it right in this situation.

Torture: “I never heard of solitary confinement or loud music described as torture” So if I strap you head-down, blind-fold you then pour water through a cloth over your nose and mouth until your thrashing to avoid drowning breaks your bones, would you consider that torture. That is called water-boarding.

Geneva Convention: “SCOTUS seems to have a bone to pick with that contention” Odd, I sure read their opinion as a warning shot-across-the-bow.

New Orleans: “You have any idea how much money has been pissed away on NO already?” Now there’s a telling comment. “Pissed away” indeed. The aid our government provides is to effect recovery, at least you agree it’s being pissed away.

Science: “i [sic] thought we were living in a Republic, not a techno-oligarchy” So you feel that scientists we pay should be ignored for political reasons?

Graft: “All the clues have been there for a century or more.” So apparently you believe graft is okay because it’s been around a while. I assume you believe that the Abramoff scandal is not of sufficient proportion to require notice?

Veeps Haliburton manipulation: “The real scandal is that private contractors were brought in for a vital commitment at all.” So I guess you haven’t read some of the FOIA memos of Corps of Engineer officials saying that no bid contracts were inevitable BS since they were issued by the Veeps office.

Billions missing in Iraq: “that much was inevitable and the least of our worries.” Ah, now I’ve got it. You had to know a mere few billion would go missing. Maybe we should look in Cheney’s pockets.

The Constitution: “How come its living when the left wants to ignore what it says” So you don’t seem to argue that the Constitution has been broken during the last six years. That’s big of you. The violations of the present administration have been so wide-spread and pervasive as to boggle the mind. I’d take my chances on Hitler administering our laws over the Incompetent-In-Chief.

Ecletic,
Unfortunately, all you provided for Mark to respond to was cute, but inaccurate, rhetoric. You are grossly misreading the Hamdan opinion. The rest of your comments now appear to be nothing but slander of Dick Cheney.

The reference to Hitler being especially revealing of the seriousness you lack.

Yes, the question "well, what would you do" is always answered by some variation of "Bush lied, people died."

Progressives' Plan for Ending Terrorism:

1. Impeach Bush.
2. ???
3. Peace!

"There’s a lot of cute rhetoric there, but not much substance."

One good turn deserves another.

" I don’t think Verizon are the people I’d take to task when the President of the U.S. secretly violates our right to privacy."

Wow. Serious substance there. What law did the president violate?

"Maybe you should ask SCOTUS about that, or any prisoner in Gitmo. Also, the fact that it happened before doesn’t make it right in this situation."

Look up Padilla, Jose. The court has spoken and is involved. Framing it as the imperial presidency is silly and demonstrably false.

"So if I strap you head-down, blind-fold you then pour water through a cloth over your nose and mouth until your thrashing to avoid drowning breaks your bones, would you consider that torture. That is called water-boarding."

So if I sit on your chest until you see stars because you cant breath and hold a gob of spit over your face, that must be torture, and there are bullies on every playground in America committing it daily. Ask John McCain if getting water poured on your head compares favorably with being hung from meat hooks until your shoulders dislocate, and then hung for days longer. Sorry, waterboarding sounds awful, but so does solitary confinement and anal rape, but we dont close every prison in the country. And please do try to remember this isnt being done for kicks.

" The aid our government provides is to effect recovery, at least you agree it’s being pissed away."

At every level. The nature of government, particularly our government. If you have any reason why you would think a Democrat would piss it more effectively i'd love to hear it.

"So you feel that scientists we pay should be ignored for political reasons?"

You think they should be followed at face value? We elect politicians, not scientists. If we did we would have spent the entire 70s and 80s trying desperately to prevent global cooling.

"So apparently you believe graft is okay because it’s been around a while. I assume you believe that the Abramoff scandal is not of sufficient proportion to require notice?"

I think graft is universal in Washington and trying to pin it on one party for partisan reasons is pointless.

"So I guess you haven’t read some of the FOIA memos of Corps of Engineer officials saying that no bid contracts were inevitable BS since they were issued by the Veeps office."

Its a good argument, but its the lacking results that have traction. Blast the adminstration on that. Just a political tip, assuming you want to win sometime instead of reveling in righteous indignation (and defeat).

"Ah, now I’ve got it. You had to know a mere few billion would go missing. Maybe we should look in Cheney’s pockets."

Its a government project in a part of the world were bribery and theft are called business. You find me the money in Cheneys (already multi-millionare) pockets and we'll talk. Right now im conserned with why its not working, not speculating on why a millionare VP would risk his nations security to steal a few extra bucks. Because that is ridiculous. Again, deal with the failure, subtract out the motives you are assuming.

" So you don’t seem to argue that the Constitution has been broken during the last six years. That’s big of you."

How so?

"The violations of the present administration have been so wide-spread and pervasive as to boggle the mind. ."

Yet you cant seem to name specific violations of law. Have you ever heard of the Sedition Act? How many people has Bush locked up for giving anti-war speeches? How many Arabs has he put in concentration camps? Drop the hyperbole. Bush has listened in on terrorist phone calls and tracked their bank books. Stop the Constitutional presses. Get a little historical perspective, wont you? Nothing happening today has the least impact on the life of the average American, or anything he or she wants to do. The same cannot be said for many other periods of American history. Boy who cries wolf, what exactly are you going to start screaming if a future adminstration actually does something truly destructive to liberty? This time we really mean it?

"I’d take my chances on Hitler administering our laws over the Incompetent-In-Chief"

And despite all this adminstrations failings, i just cant figure out why you lunatics cant get any politic traction... i wonder what it could be that is making the American people gag at the thought of handing your side the reigns after all this...

At least you agree this administration has made some bad mistakes.

After 911, I supported the war and still agree that an undated, phased pull-out, as requested by the Iraq government is the right answer.

On the other hand, Bush's "unitary Presidency" has trampled the Constitution and, I believe, will be proven to have done so in future court cases. When that comes to pass, please email me a mea culpa. If that doesn't happen, I'll return the favor.

You Bush loyalists need to be aware of the increasing disgust (and increasing numbers) of those who see him as a smirking, slow-witted puppet of Cheney and Rumsfeld.

The next election will tell the story. The excesses of this administration are making many very angry. We'll see in November, won't we.

P.S. for SPQR: since slander is, by definition, incorrect, the only slander I can think of for Cheney would be to call him a pedophile.

EF, you will be hard pressed to find a Bush supporter more furious with Bush and his administration than I am. There is an astounding combination of wonderful strategic and moral clarity in this war combined with a fettered insistance on fighting it as they wish it to be, not as it is. If I could get Bush or Rumsfeld in a room for half an hour there would be a remarkable amount of screaming and shoulder shaking. But i'm only concerned with their results, not their perceived motives, and to date not their methods. It seems to me the most contravesial of Bush's programs have been the most successful, and thats worth noting.

I recommend the book Cobra II to everyone. It showcases about as well as can be showcased the brilliance and the flaws of this administration. Its practically a morality tale. Rumsfeld is going to have books written about him for decades, if not centuries, and they wont be particularly kind. Im starting to think there is nothing more dangerous than a tenacious man with 1 good idea. Every round hole starts to look square.

EF,
Since you obviously don't know what is being referred to by the term "unitary presidency", you really should not use it.

At least you agree this administration has made some bad mistakes.

But hey at least you've accomplished your primary objective on this forum. Just don't hurt your arm patting yourself on the back.

SPQR;

I've done my reading, maybe you should too.

Look up "unitary presidency" in wikipedia. It is fairly clear that Bush has assumed more power under this doctrine than the administrations of Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman or Nixon.

Simple put-downs don't change the facts.

Look up "unitary presidency" in wikipedia.

Any description of the unitary executive that makes no mention of the Federalist Papers or Federalist Paper 70 in particular, is a pile of garbage. I don't agree with every aspect attributed to the unitary executive, but I'm disapointed by the confusion sewed by misusing a $5 word for Bush=Hitler.

"It is fairly clear that Bush has assumed more power under this doctrine than the administrations of Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman or Nixon."

This is flatly absurd and I suspect it comes from glancing at wikipedias definition of unitary presidency and the way it paints Bush. Jefferson doubled the size of the nation on his own perrogative, Jackson defied the supreme court to their faces, Lincoln actually did suspend Habeas Corpus, Wilson made it illegal to criticize a war, FDR locked Americans in prison camps on his own authority, and Nixon fired a succession of AGs investigating him. Bush has listened to phone calls with terrorists overseas on the other end, and held enemy terrorists captured out of uniform in questionable legal status. I still havent heard another allegation of illegality aside from Bush doing things you dont happen to like.

Comparing signing statements to concentration camps and outlawing political speech is just batty. Again, the anti-Bush contingent simply cannot seem to come to grips with historical perspective.

I understand that maybe its hard to get fired up over an administration legally looking over foriegn bank records in a search for terrorism, and hence it is helpful to blow it up into the next burning of the Reichstag, but just maybe the reason its hard to get fired up over these issues on their own merits is because they really arent as dire a threat to the liberty of our nation as you want and wish them to be.

The problem with looking at Bush's signing statements and concluding he is grabbing power is that those who do so fail to look at the signing statements of any other president including Clinton.

There were hearings recently on just that in the Judiciary committee. Those who objected strenuously to Bush's signing statements and who attributed motives to Bush all failed to view these statements in the context through history of presidents pointing out their constitutional duties as Executive and Commander in Chief to Congress when they pass laws that undermine those duties.

Mark Buehner: Bush has listened to phone calls with terrorists overseas on the other end, and held enemy terrorists captured out of uniform in questionable legal status.

And that sums up my worst fears about the Bush administration in a nutshell.

Bush listened to phone calls with terrorists. We know that they're terrorists because Bush told us they are, even though he can't provide any evidence, because providing the evidence would be a violation of national security.

He held enemy terrorists captured out of uniform in questionable legal status? We know that they're terrorists because Bush told us they are. He can't provide evidence because that would be a violation of national security.

If Bush isn't eliminating due process, he's paring it down.

If you're not concerned about Bush desiring dictatorial powers himself, then you should be concerned that someone else who wants to be a dictator, and who can manage to get elected to office, will assume office and find the machinery of a police state ready at hand. This person (President Hillary Clinton, perhaps?) would need to do nothing more than grab the levers and controls and put it to work.

And how would person get elected to office? Well, they could pay off the right people at Diebold, for starters.

I would be upset if President Hillary Clinton didn't listen to phone calls with overseas terrorists and if she didn't detain enemy combatants.

Bush listened to phone calls with terrorists. We know that they're terrorists because Bush told us they are, even though he can't provide any evidence, because providing the evidence would be a violation of national security.

And FDR shot up fascists all over the globe. The first ones he went after were in North Africa, 6 ft tall blonde haired and blue eyed. Not exactly too similar to the ones that drop bombs on our ships at Pearl. Its called war. We cant cant court orders for every bullet we shoot. Intercepting enemy communications is the perview of the commander in chief. Turn it around- do you really want our country to not be run that way? Where every state secret is on the cover of the NYT? You really think that is a good idea, whoever is president?

If Bush isn't eliminating due process, he's paring it down.

UNLAWFUL ENEMY COMBATANTS DONT GET DUE PROCESS. Get that through your thick skulls. We dont try normal prisoners of war to prove their status, why in gods name would we try unlawful ones? You really want to have 100,000 court cases the next time we have to slap down a conventional enemy?

If you're not concerned about Bush desiring dictatorial powers himself, then you should be concerned that someone else who wants to be a dictator,

Somehow, i'll live with Hillary scouring international bank records. Shaw said it best, if she isnt listening to every AQ communication she can get her hands on then i want her run out of town on a rail.

Here's the other thing- in all of the horrible illiberal things Bush has done- can you guys name me a SINGLE aggrieved victim that isnt being held for trying to blow up a plane or driving OBLs pick-up? One would think with the unprecidented outrages against every manner of human rights you could come up with an innocent victim.

_And how would person get elected to office? Well, they could pay off the right people at Diebold, for starters. _

And again, you cant resist proving yourself a conspiracy minded nutcase with a pathetic, feverswamped parting shot and ruining whatever shot at credibility you might have with a neutral observer. Will you guys ever learn? Ever word out of your mouth convinces people all the more Bush isnt all that bad. Are you on Rove's payroll?

Listening into communications of our foreign enemies has ALWAYS fallen under any Presidents power as Commander in Chief. Hillary's husband used the same types of programs while he was in office. For some reason, this was uncontroversial then.

This is the same problem that we've had throughout these conversations. Those opposed to the war think it's a matter of law enforcement, while those who support the war think it's a matter of, well, war. One side thinks we're in a war and the other side doesn't.

Through one prism, Bush looks like he's asserting dictatorial powers, through the other prism he looks like a judicious commander in chief. Terrorism is perfectly designed to exploit this split in our polity. As long as this dichotomy holds, there will never be agreement on this issue.

If you're not concerned about Bush desiring dictatorial powers himself, then you should be concerned that someone else who wants to be a dictator, and who can manage to get elected to office, will assume office and find the machinery of a police state ready at hand.

And yet somehow our little Republic has managed to survive the interment of Americans of Japanese decent (FDR), far greater surveillance of international communications (FDR), actually jailing people for speaking out against a war (Wilson, Lincoln), the suspension of habeas corpus (Lincoln), conscription (Lincoln, Wilson, FDR, Truman, LBJ), and federal control under threat of imprisonment of nearly all economic activity to the level of growing wheat for one’s personal consumption (FDR, Truman) without becoming a police state.

Funny that.

Listening into communications of our foreign enemies has ALWAYS fallen under any Presidents power as Commander in Chief. Hillary's husband used the same types of programs while he was in office. For some reason, this was uncontroversial then.

I have to disagree somewhat. I seem to recall that during the Clinton administration there were quite a few folks on the right and the left who objected to things like Project Echelon. Some of them are the same people who are criticizing the actions taken by the Bush administration post-9/11 although it seems to me like there is more criticism now than before and it is getting more play in the MSM than before.

I am having a hard time understanding why the comparison of Bush and Lincoln is good for Bush.

Lincoln actually did suspend Habeas Corpus

Let's see. The Constitution specifically provides for suspension of habeas corpus in case of invasion or rebellion, and at the time there was a genuine question whether faced with a rebellion such suspension could be ordered by the Executive alone. SCOTUS said no, after the war. Leaving that aside, Lincoln suspended habeas corpus in precisely the situation anticipated in the Constitution, and in 1862 he had Congress authorize such suspensioon specifically (which he did not do originally).

Consistent with the Yoo Doctrine, Yoo acknowledged during a December 1, 2005 debate in Chicago, Illinois with Notre Dame Law School Professor Doug Cassel that no treaty prevents the President from authorizing the torture of a detainee's child -- including by "crushing the testicles" of the child. When asked whether any law prevents it, Yoo replied that it would depend on why the President was authorizing it.

Lurker;

You've made the best point yet. You're exactly right, the split is mostly due to the two definitions of "war."

If "war" is defined as; a state of hostilities, Websters second definition, then Bush has some increase in power under the Constitution.

If "war" is defined as: Hostility between nations, Websters first definition, then he has no right to the powers he assumes.

--------------------------------------------------

I leave you with the question a journalist asked at a Bush press conference (and received only a scowl in return).

Mr. Bush, what powers do you not have?

If we are at war, who are we at war with and how will we know when it is over?

During World War II, that answer was easy: Japan and Germany, and we knew it was over when some guys wearing old-fashioned tailcoats and top hats signed pieces of paper on board a big-ass aircraft carrier.

We're supposed to be at war with terrorism. If we wait for terrorism to stop before the war is over, we're going to be waiting a long time--terrorism, as a strategy, dates back to Biblical times, when God slew the first-born of every Egyptian to get his point across.

PD Shaw: I would be upset if President Hillary Clinton didn't listen to phone calls with overseas terrorists and if she didn't detain enemy combatants.

How do you know they're terrorists, and not simply people legitimate political opponents of our allies? Or entirely innocent people who were in the wrong place at the wrong time, and are being imprisoned to cover up our allies' incompetence. Should we simply take the President's word for it?

Mark Buehner: UNLAWFUL ENEMY COMBATANTS DONT GET DUE PROCESS. Get that through your thick skulls. We dont try normal prisoners of war to prove their status, why in gods name would we try unlawful ones? You really want to have 100,000 court cases the next time we have to slap down a conventional enemy?

And how do we decide whether the imprisonment of unlawful enemy combatants is being abused, if we can't examine the evidence?

Thorley Winston: And yet somehow our little Republic has managed to survive the interment of Americans of Japanese decent (FDR), far greater surveillance of international communications (FDR), actually jailing people for speaking out against a war (Wilson, Lincoln), the suspension of habeas corpus (Lincoln), conscription (Lincoln, Wilson, FDR, Truman, LBJ), and federal control under threat of imprisonment of nearly all economic activity to the level of growing wheat for one’s personal consumption (FDR, Truman) without becoming a police state.

I don't understand the point you're trying to make here. I'm saying I'm concerned about Bush abusing presidential power, and you're providing a catalog of past abuses of presidential powers and saying that proves me wrong?

In that case, I have excellent evidence that cigarette smoking doesn't cause cancer. I know this because my uncle smoked five packs a day and he died of lung cancer. QED.

Mark Buehner: And again, you cant resist proving yourself a conspiracy minded nutcase with a pathetic, feverswamped parting shot and ruining whatever shot at credibility you might have with a neutral observer. Will you guys ever learn? Ever word out of your mouth convinces people all the more Bush isnt all that bad. Are you on Rove's payroll?

Mark, you're demonstrating why Bush's approval ratings are heading south fast. Americans are growing concerned about the possibility of abuse of presidential power, and the possibility that the White House simply doesn't know what it's doing. When we voice those concerns to Bush supporters, we're shouted at and belittled.

At this point, I dislike both the Republicans and Democrats about equally, but faced with the choice of who to vote for in November, I'm likely to pull the Democrat lever. Why? Well, it's because (1) The Republicans have driven the bus into a ditch. I have very little confidence that the Democrats can get the bus back on the road, but I know the Republicans can't, because if they could, they would have done so already and (2) The Republicans have been shouting at me and calling me names since, well, forever. I could live with that if they knew how to drive, but if they can't keep the bus on the road and they're unpleasant, well, why keep them around then?

Mitch;

Well said, but you forgot one thing.

The bus driver is also mistreating the passengers.

- Raise the minimum wage?
- Fix New Orleans?
- Lower taxes for lower incomes and raise them for higher incomes?
- and on and on ad nauseum

Mark Buehner;

Are you beginning to see a pattern here?

According to the polls about 2/3 of we, the people, are ashamed and angry about the current administration.

We are pissed about being treated like mushrooms ... you know, kept in the dark and fed BS.

You Bush loyalists can belittle and call us traitors as you wish, but at least we are loyal to the Constitution not necessarily the president.

P.S. think about the import of Webster's two different definitions of "war."

Mitch & Eclectic,
From where I sit in the center, your exhibitions of Bush Derangement Syndrome seem very similar to the previous decade's Clinton Derangement Syndrome.

You are likely to do better in this forum if you debate the issues instead of personalities. As many of the moderates that read here are not interested in participating in gotcha games.

Also, as others have previously mentioned, a little historical perspective would be nice. Whatever your rhetoric, Bush is not a dictator, just like Clinton wasn't a harbinger of societal decline.

Another thing that doesn't seem to work here are bandwagon arguments, e.g. "Bush's popularity is falling and the proof will be the next elections". Even if this is assumed to be true, it makes a boring conversation for those of use interested in principles and ideas.

FWIW.

Well, Mark;

Now that you've taken me to the Republican woodshed, I'd like to ask you about the "principles" I discussed such as:

- Exactly what powers is the Bush administration not entitled to?

- What is the definition of "war" under the current administration, "a state of hostiities," or "hostilities between nations."

Answers regarding these two question should, I expect, meet your high-minded expectations for this forum.

Lurker, you're confusing me for someone else. I'm not debating personalities--on the contrary, I'm the guy who's been called thick-skulled and (I actually rather like this next one): "a conspiracy minded nutcase with a pathetic, feverswamped parting shot.

I am not Ecleclict, and he is not me. I've never heard of him until this discussion thread started. I don't agree with him on every point, and we're certainly not coordinating this discussion.

Mitch;

I can clear up any confusion about us not being associated in any way. Just run a Google on EclecticFloridian to find my blog. Run a check on cwdev.us, you'll find me. I don't know Mitch from Adam.

Lurker;

I found your point about the two definitions of war very interesting.

But, apparently you are as much involved in the name-calling as anyone else.

Everyone;

Is anyone going to answer my two simple questions, or not? As a reminder, the questions are:

- Exactly what powers is the Bush administration not entitled to?

- What is the definition of "war" under the current administration, "a state of hostiities," or "hostilities between nations."

E.F.

Ask the Supreme Court those questions.

In the latest decision, Kennedy wrote that Bush could keep the prisoners in Guantanimo for the duration.

I guess they don't want to answer the question.

And let me ask you if you really and truly want jihadis tried in our civil courts? First, and probably a minor issue to many, it puts our jurors in jeopardy.

But second, it waters down OUR own criminal process! The Moussouai case did damage to the 5th and 6th amendments and now is a set precedent for you and me as well.

Nixon abused the powers of his office and so we, the people, removed some of those powers. We harmed the institution of the Presidency instead of punishing the abuser.

All Bush is doing is reaffirming the powers of the presidency as envisioned by the founders. And, instead of noting this and being able to debate it, you all are stuck on stupid in the '70's.

Syl, would you rather have Padilla (as argued by Bush unsuccessfully) as precedent? That the President can label any citizen he wants a "terrorist" and keep him detained incommunicado forever? Thanks, I like the Moussaoui precedent much better. But then, there have always been people uncomfortable with the idea of freedom, and as I said of Jim Rockford, they made great gulag and death camp guards.

One thing that is amazing here is the inability of the Bush Devotion Society to understand the issues. A good sign of this is Syl's question of whether we want jihadis tried in our civil [I think he means regular criminal] courts. As far as I know, none of Bush's opponents claim that this is required. We claim (with the recent support of SCOTUS) that military commissions to try alleged jihadis conform with existing law, which means that they work like our own courts-martial as much as possible. (Indeed, if Congress changes the law to allow kangaroo courts to try Gitmo detainees, that would at least be lawful, unlike the current system.)

For that matter, I'm not aware of anyone who disputes that POWs may be kept until the duration of hostilies. But our Gitmo camp doesn't acknowledge the detainees as POWs, and they have never been given the rights POWs have. We can not argue that persons delivered up by the Pakistan secret police for a bounty can be detained indefinitely for no reason—well, we can, but if the Chinese did this with an American tourist, we'd probably threaten World War Three.

What happened here is simple. Either as as a passing part of the war on terror, or, IMHO, as its major component, Bush/Cheney decided to throw off all bounds on executive power. Not only those from the 1970s and Nixon, but also those from the Bill of Rights of the 1790s, the Glorious Revolution of 1688, and the Magna Carta of 1215. They created a magical category of unlawful combatant for detainees many of whom were not even battlefield detainees. The Omniscient Bush declared wholesale that these detainees were unlawful combatants and not POWs and he did so (unlawfully!) without following the clear procedures for finding detainees to be unlawful combatants in the Geneva Conventions, which, having been ratified, are part of our law. The Bush Devotion Society swooned with post-orgasmic relief at having a leader strong enough and bold enough to trash both US and international law, the law, it is well known, being for sissies. The rest of us just wanted to cry until the courts started setting things to rights, which they have.

AJL,
The only folks thata deserve POW status are those fighting in uniform. Non uniformed combatants (like spys) can traditionaaly be executed, even under the Geneva conventions.

I agree with you about Padilla, but not your continual demonization of the Bush administration.

The only folks thata deserve POW status are those fighting in uniform. Non uniformed combatants (like spys) can traditionaaly be executed, even under the Geneva conventions.

Lurker, this is simply not true: Residents of an invaded territory are allowed to take up arms as a militia without a uniform if they follow the laws of war otherwise. Else all those kid heroes of "Red Dawn" would be war criminals. And we do hold Afghans at Gitmo who would arguably be lawful combatants (whence POWs) under this rule.

I really don't mind executing spies, but (as you know) the GC call for tribunals to determine who was a spy, and (as you know) the Imperial President disdained convening any such tribunals, asserting in this Omniscience that anyone we held at Gitmo was a really bad guy. We know, incidentally, that Bush was simply wrong about this. But for so many fake-Americans, our best defense against Islamic terrorists—our only defense—is in abandoning centuries of legal precedent and instead huddle together and declare The President is Always Right. [Four legs good. Two legs better.] You don't really think an Administration that would make the outrageous claims of Padilla should be trusted with more unreviewable power, do you? You say you agree with me about Padilla. OK: what are the implications of that?

AJL, the strawman in the room is that those of us not outraged by the Bush Administration are in fact Bush Cultists; it is entirely possible to approve of some percentage of what the Adminsistration does without being some kind of Rovian agent.

I mean, let's face it, as Emperors go Bush is doing a piss-poor job actually dominating people's lives. (I mean this of course in the observable, measurable cause-and-effect sense. This does not include those suffering from Bush Derangement Syndrome, who are to Bush as those who wear aluminum foil inside their hats are to Martians. At some point, all the "Bush=Hitler" rhetoric starts to sound a bit, well, unhinged. Some of it would make Fox Mulder blush.)

Now, back to the real world: Padilla was, apparently, a one-off. (If you have other, similar examples I'd love to hear them.) Come on, smart boy, what's the statistical significance of a single datapoint out of a sample of >200 million? I happen to agree that the Administration screwed up with the Padilla case, and was appropriately smacked down by the courts.

Welcome to a working system.

As to Gitmo, I'm conflicted by both the Administration's policies and by the recent Court ruling. Why? Because the problems embodied by Gitmo are complicated and not conducive to simplistic solutions. (For example, the man who masterminded the attack on the USS Cole has apparently been re-captured after getting a get-out-of-jail-free card in Yeman. Of course, if he'd been in Gitmo, the re-capture wouldn't have been necessary.)

And backing up to the original topie, i.e. the SWIFT monitoring program, I still have to hear any plausible explanation for how the program infringed upon anyone's Civil Liberties. Clue me in please, hopefully without resorting to Democratic Underground boilerplate.

Believe it or not, I'm willing to be convinced.

" Residents of an invaded territory are allowed to take up arms as a militia without a uniform if they follow the laws of war otherwise...
I really don't mind executing spies, but (as you know) the GC call for tribunals to determine who was a spy"

Not the case. Ok lets go step by step. source

Here are the conditions under which indigenous inhabitants may take up arms without uniforms:

"6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. "

Emphasis mine.
The Taliban and AQ members captured in Afghanistan were not civilians suddenly taking up arms. They were a standing force engaged in an ongoing civil war with the Northern Alliance and training in paramilitary camps. They do not qualify for protection under this metric.

Here is why spies are not protected as POWs (which we agree on):

"Article 46.-Spies
1. Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy."

Here is the procedure if there is any doubt arising:

Article V
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. "

Note there is no mention of 'neutral' or 'independent' tribunal. In Ex Parte Quirin the SCOTUS ruled on the issue:

"By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful"

The bottom line is we have captured enemy combatants out of uniform (intentionally out of uniform) and since the dawn of warfare that has been considered a capital offense. We could have convened a military tribunal on the spot and shot these people out of hand.

this is simply not true: Residents of an invaded territory are allowed to take up arms as a militia without a uniform if they follow the laws of war otherwise. Else all those kid heroes of "Red Dawn" would be war criminals. And we do hold Afghans at Gitmo who would arguably be lawful combatants (whence POWs) under this rule.The administration had a process to sort out detainees, as evidenced by the fact that many have been repatriated. The courts determined that this porcess wasn't adequate, so now we have those tribunals.

However, I don't blame the Bush administration. I blame the terroists who like to had behind civilians. It's their violation of the GC that is the root case of this problem to begin with.

Like I noted previously, terrorists exploit the boundary between civil law and the laws of war. It doesn't surprise me that it will take a few decades to get all the legal niceties sorted out. I expect that in the end, our rights as America citizens will stand firm, as will our right to fight our enemies as they would fight us. Turn about is always fair play.

Oops. Lost a HTML tag.

Me response starts in the fourth line with the phrase: "The administration had a process..."

Mark Poliing: AJL, the strawman in the room is that those of us not outraged by the Bush Administration are in fact Bush Cultists; it is entirely possible to approve of some percentage of what the Adminsistration does without being some kind of Rovian agent. ... At some point, all the "Bush=Hitler" rhetoric starts to sound a bit, well, unhinged. Some of it would make Fox Mulder blush.

The other strawman in the room is that nont all of us who are outraged by the Bush Administration think he's equivalent to Hitler. At some point, all of the "Bushitler" rhetoric starts to sound a bit, well, unhinged--like Bush supporters are saying if I don't support Bush then I'm a lunatic who hates America.

I don't think Bush is equivalent to Hitler. I do think he's the worst American president since James Buchanan. Buchanan has a pretty solid lead on #1, and I don't expect Bush is going to be able to top that. On the other hand, I think Bush has a pretty solid grip on #2--I don't think the Republic will be able to take a strong competitor for Bush's slot.

We could have convened a military tribunal on the spot and shot these people out of hand.

Yes, and that would have been preferable to what we did, except that the tribunal, if honest, would most likely have set free on the spot the various non-combatants that we swept up in our net.

I'm not sure how many of our Gitmo guests are battlefield detainees, but many are not (see below), and four years on we are still holding them—a delay I doubt if we would accept if it was drunken frat boys busted at a European beach. As with Iraqi defectors, we seem to have bought and paid for merchandise that was not as ordered.

Abdur Sayed Rahman, of Pakistan, identified himself as a poor chicken farmer. The United States alleged he was in the Taliban, either as a military judge or deputy foreign minister. It emerged during the hearing that the deputy minister is Abdur Zahid Rahman, a near homonym of the detainee. Police searched Abdur Sayed Rahman's home in Pakistan in the fall of 2001 and arrested him. "An American told me I was wrongfully taken and that in a couple of days I'd be freed," Rahman said. "I never saw that American again and I'm still here."

Here's my question: why are you willing to take the word of those the US military has taken captive as terrorist at face value, but not the US government? It's like they say in Shawshank, there are no guilty inmates in prison.

Andrew, you have to understand, when you:
-disbelieve the military who are on the ground getting shot at by these guys
-disbelieve the government who holds them, assumedly not because they are so infatuated with having a Pakistani chicken farmer to interrogate
-believe the prisoner being held for being the worst kind of scumbag terrorist
-compare those being held as such to drunken Eurotrash. assumedly releasing the latter wont resort in the prisoner coming back and blowing up the local mall.

This all comes back to whether you believer we are at war or not.

Mitch, fair enough, although I'll take Bush over, say, Jimmy Carter any day of the century. (Malaise, anyone?). Or, for that matter, there's always Tricky Dick if you want to find someone with an "R" after his name to bash.

I would guess "worst ever/best ever" has a lot to do with a person's priorities (got a feeling we might have a difference about LBJ, for instance), but that's politics, and I have no quarrel with anyone who wants to rate Bush as simply incompetent. (When it comes to domestic policies and priorities, I'm in the "WTF" category as well.) I do however reserve the right to mercilessly heckle anyone who starts spewing Democratic Underground talking points.

Bottom line, Bush isn't a threat to the Republic; the Michael Moores and Ann Coulters of the world, on the other hand, give me the willies.

Regards.

Here's my question: why are you willing to take the word of those the US military has taken captive as terrorist at face value, but not the US government? It's like they say in Shawshank, there are no guilty inmates in prison.

Andrew, you have to understand, when you:
-disbelieve the military who are on the ground getting shot at by these guys
-disbelieve the government who holds them, assumedly not because they are so infatuated with having a Pakistani chicken farmer to interrogate
-believe the prisoner being held for being the worst kind of scumbag terrorist
-compare those being held as such to drunken Eurotrash. assumedly releasing the latter wont resort in the prisoner coming back and blowing up the local mall.

you are going to be out of step with the vast majority of the American people. You are certainly free to believe it, and argue it, but its just not something the country is buying- mainly because it is insane.

This all comes back to whether you believe we are at war or not i suppose. You say off handedly executing the prisoners quickly after capture would have been a preferable idea, but somehow that seems rather disengenuous to me. If we had rounded up everybody we grabbed, tried them under military tribunal, and shot them (heck even half of them) you and everybody else complaining to date would be screaming bloody murder.

This has the taste of anti-Bush contrarianism all over it. We give them back to their home countries and Bush is handing them to torturing regimes. We kill them, we are murders. We keep them, we violate their human rights. We let them go and we are total f&*#ing idiots (if Bush decided to mass release all the prisoners you would be cheering the decision? Please. You would be blasting him even harder and rightly so in that case).

Mark, AFAICT, the US military wasn't involved in the capture of many (most? nearly all?) Gitmo detainees. The story of the chicken farmer with a s=name similar to a Taliban, for example, doesn't appear to be disputed.

As is usual with Bush Devotion Syndrome, you're trying to have it both ways. On the one hand, these guys are sneaky illegal combatants. Well, OK, but doesn't that imply they weren't shooting at our guys in an open field, and then surrendering, where the word of the US military would be more than enough? We collected many of these detainees as sales from the Northern Alliance, the Pakistani secret police, and local villagers, whom we were paying large cash rewards for "Al Qaeda" members. The US military doesn’t even have enough speakers of the local languages to begin determine who is what here. Rather than admit to (yet another) intelligence screw-up, the Bushies figured they could get a lot of bogus confessions through extraordinary rendition, abuse at Gitmo, and the sheer hopelessness induced in those who will be detained forever. On top of that they could just hide these people and throw away the key, so that no one would know about these mistakes and so that fools could go around claiming that Americans who wanted to correct what their country was up to were pro-terrorist and anti-military.

For the record, if we have any real evidence that there are members of Al Qaeda, they should be charged with terrorism-related crimes, and six of them, or maybe we are likely and it's 20. Yes, the rest should be mass released. I suppose they all hate America now, we should probably give them cash compensation anyway.

The story of the chicken farmer with a s=name similar to a Taliban, for example, doesn't appear to be disputed.

Probably because the Pentagon is not in the business of disputing the word of detainees. Again, why are you assuming the government doesnt have a good reason and just enjoys holding chicken farmers from Southwest Asia?

We collected many of these detainees as sales from the Northern Alliance, the Pakistani secret police, and local villagers, whom we were paying large cash rewards for "Al Qaeda" members.

Ok, maybe. But we've also released many of them over the years. Why, again, are we hanging on to innocent chicken farmers? Any chance we accidently swept up some actual terrorists, and how do we deal with that inconvenient happenstance in your perfect world?

Rather than admit to (yet another) intelligence screw-up, the Bushies figured they could get a lot of bogus confessions through extraordinary rendition, abuse at Gitmo, and the sheer hopelessness induced in those who will be detained forever.

Ah. So obviously releasing some more of these guys along with the hundreds we've already let go would be a huge nightmare for the Bush administration- a bigger problem then all the grief Guantanimo has been giving us? Sure.

On top of that they could just hide these people and throw away the key, so that no one would know about these mistakes and so that fools could go around claiming that Americans who wanted to correct what their country was up to were pro-terrorist and anti-military.

So why hasnt our Emperor done so? Guantanimo doesnt seem like much of a hiding place considering the amount of press, NGOs, and congressfolk in and out all the time.
Why not just torture them to death in Afghanistan or have our allies do it, and be done? Your story line is not coherant.

For the record, if we have any real evidence that there are members of Al Qaeda, they should be charged with terrorism-related crimes, and six of them, or maybe we are likely and it's 20.

Ah. Only 6 (maybe 20!) AQ members in all of Afghanistan and Pakistan ect we have rounded up. Where exactly did you get that figure? Your realize over 100 are Saudi and 80 Yemenese? Just happened to be at a chicken farming seminar in Kabul in December of 2001?
Here's a story from the AP about 7 prisoners released that returned to terrorism. Looks like we let the wrong 6 go already! Bad luck. I guess we can release all the rest no questions asked then, huh? And how come so many of the prisoners we send home to known police states like Britain and Germany remain in custody? Do the EU regulations on chicken farming include jail time?

Yes, the rest should be mass released. I suppose they all hate America now, we should probably give them cash compensation anyway.

Take your message to the American people. Please. Mass release of the AQ members at Guantanamo, sounds like a winning campaign slogan.

Mark Buehner: Mitch, fair enough, although I'll take Bush over, say, Jimmy Carter any day of the century. (Malaise, anyone?). Or, for that matter, there's always Tricky Dick if you want to find someone with an "R" after his name to bash.

I suppose we could have an interesting discussion, perhaps another day, about who's worse: Bush or Carter? But, for the purposes of this discussion, I'll just say that I don't want to have either of them as President.

One of the other things that cause me to sigh tiredly is when I attack Bush, and someone drops in and angrily starts bashing Bill Clinton, on the automatic assumption that I must love Bill Clinton. This happens so often that I feel like I need a keyboard macro to automatically spit out my assessment of Clinton's strengths and weaknesses. (Since no one has done that here, I'll spare you the whole paragraph, and just start with the beginning: "I can't get too enthusiastic defending the Clinton presidency.... ")

I would guess "worst ever/best ever" has a lot to do with a person's priorities (got a feeling we might have a difference about LBJ

Hmmm... I'm ambivalent on LBJ. I admire his support of civil rights, don't particularly care that he probably arrived at that support by political calculation rather than moral conviction. On the other hand, the Great Society was not exactly, well, a great society. And then there's that whole Vietnam thing. So, on the balance of whether LBJ was a good president or a bad one, I'll say ... beats the heck out of me.

Bottom line, Bush isn't a threat to the Republic

On that we disagree. Bush is a threat to the Republic in that he is assuming powers to the Presidency that the Presidency ought not to have. I don't know whether Bush plans to abuse those powers to a great enough extent to permanently and significantly erode civil rights for many people, but I do fear that a future president might well do so.

Mark Buehner: Here's my question: why are you willing to take the word of those the US military has taken captive as terrorist at face value, but not the US government? It's like they say in Shawshank, there are no guilty inmates in prison.

It's not a question of who to believe, it's a question of demanding evidence. From both sides.

It's not a question of who to believe, it's a question of demanding evidence. From both sides.

That's how a government at peace works. A government at war cant provide evidence that everyone they have detained is rightfully in custody. Just as we can debate how our new medicare plan should be executed, but not which landing beaches are ripe for the invasion of Italy.

The precident you guys suggest is very bad news- if we give full rights to illegal combatants, what do we do in the next conventional war when we have 100,000 POWs? You intend on giving illegal combatants due process but not lawful combatants? Or do we reassign a division or so to legal research? And btw the bottom line of all you are doing is creating a huge disincentive for taking prisoners at all. Real humanitarian solution.

Here are the declassified interviews of Guantanimo prisoners from the Combat Status Review Tribunal. There is a ton of it, but as you dig through people can draw their own conclusions.

Needless to say- everybody is innocent! Just happened to stumble into Afghanistan and trip over rifles, buddied up with international terrorists by shear accident and then were unjustly herded into Guantanimo. You could interview prisoners in every prison in America and get the exact same stories. Maybe we should just open then all.

"if we give full rights to illegal combatants, what do we do in the next conventional war when we have 100,000 POWs?"

Mark B., unless something happens that sets the world back to mid-20th century technology levels, we will never have another war that produces 100,000 POWs. The Next Big War will be the one wild-eyed prophets wrote about after spending too much time in the desert. The survivors will be too busy fighting over the rats to worry about what to do with POWs.

Personal hope: Wars stay teensy-weensy until everyone starts thinking like the (non-immigrant) Swedes.

On that we disagree. Bush is a threat to the Republic in that he is assuming powers to the Presidency that the Presidency ought not to have. I don't know whether Bush plans to abuse those powers to a great enough extent to permanently and significantly erode civil rights for many people, but I do fear that a future president might well do so.

Otherwise, it's a sorting problem to identify between captured lawful combatants (POWs), illegal combatants, and civilians. This is made difficult by terrorists, AQ in particular, in that they deliberately obfuscate their status. They are the ones that do not adhere to the Geneva Conventions.

Given this is an entirely new kind of war, is it really surprising that the law and operational procedures are not settled yet? Welcome to the real world!

What I don't get is that some don't even want to acknowledge the category of "illegal combatant"! And that's the only category that's in dispute. EVERYONE agrees about how to handle POW's and civilians. The problem is figuring out how to identify the terrorists from the civilians. Many would have them be sorted out in our civil courts! How crazy would that be?

A key point is that the Bush administration has been sorting them. Some have been released, some have been turned over to other governments, and some remain in detention. Any theory that presupposed Bush is a tyrant will have to account for these differences.

AJL's ugly assumptions about Bush's motivations aside, there is a process in place, but it isn't the final process. It seems what will eventually happen, is the administration, Congress and the Supreme Court will settle into a process that is accepted (if not completely acceptable) to everyone. We are witnessing the meat grinder of democracy grappling with a new threat right before our eyes. The checks and balances ARE working. This is definitely NOT what tyranny looks like.

Mark Buehner: The precident you guys suggest is very bad news-

"You guys"? Who do you mean? There's nobody else here but me. Honest. I can set up a Webcam if you don't believe me.

if we give full rights to illegal combatants, what do we do in the next conventional war when we have 100,000 POWs? You intend on giving illegal combatants due process but not lawful combatants? Or do we reassign a division or so to legal research? And btw the bottom line of all you are doing is creating a huge disincentive for taking prisoners at all. Real humanitarian solution.

Mark you're raising valid points here. And I'm not talking about giving "full rights" to illegal combatants. I'm simply expressing dissatisfication with the idea that we should keep prisoners hooded, subject them to "discomfort" (or whatever the Bush apologists are calling it this week), and not question whether reasonable measures are being put in place to be sure that they are, in fact, terrorists.

I don't know the answer, but I know that the current solution is a bad idea.

And of course they're all going to claim to be innocent. So what?

lurker: The checks and balances ARE working.

And how do we know that they are working? Because the Bush administration tells us so!

Mr Buehner, you are bringing up the question of the 100,000 POWs in the next war right on cue. Absolutely nothing in the Hamdan decision, and absolutely nothing in what I've suggested, would change how we handle regular POWs. Bush decided, more, I think, to show off his own Article II powers, as he interprets them, than from any desire to prevent future terrorist attacks to invent his own rules and his own status for the Gitmo prisoners. He decided that they weren't lawful combatants who should be POWs, and he decided that they weren't unlawful combatants who, under the GC, were entitled to a tribunal before being treated as spies, saboteurs, or terrorists. Having disproven the law of the excluded middle, he was free to do anything he pleased.

It is always a comic pleasure to hear conservatives show their trust in government—when it is applying force to other people, preferably brown or black or at least not Christian. We seem to have caught up any number of chicken farmers. Yeah, some of them are lying. But some of them appear to be telling the truth. Under those circumstances, I don't really have to supply a reason for our holding them, any more than I have to meet Holocaust-deniers' demand for a "reason" that Germany would turn millions of their most talented citizens into lampshades. The reasoning is a sociological or psychological question. It can't rebut otherwise unrebutted evidence of existence. But once again, if you are accepting the surrender of entire regiments you need one set of rules, but if you are collecting a couple thousand alleged bad guys, well then, why the hell does it take years to see who you have, except that with a steady covering fire from sheeple who accept blindly whatever their government does, they just don't care.

We didn't, by the way, accord the Red Cross standard access to Gitmo, indeed we held ghost detainees there before exporting the practice to Iraq. Press access was also extremely limited. Don't confuse the intended operation with what we have today after Bush has been spanked repeatedly by the Al Qaeda symps on the Supreme Court. Karl Rove has trained you well; much of America indeed thinks that adherence to our own laws of war is for sissies, but our own allies the Brits consider Gitmo to be an appalling travesty of justice. They're right.

And how do we know that they are working? Because the Bush administration tells us so!

Well for one thing, there has been the small matter of Supreme Court decisions, one just last week as I recall. Perhaps they actually, you know, considered actual facts.

On the contrary, Stevens wrote explicitly that the Court was taking no position on the truth of the allegations against Hamdan, and that their truth would be assumed for mere sake of argument—as would be standard in this type of case.

You might also note that Hamdan's own counsel admitted that he could be held indefinitely as a POW. The Bush rules are being claimed to solve a problem that doesn't exist, instead of being seen as solving something—constraint on unlimited executive authority—that isn't usually seen as a problem by Americans.

"Mr Buehner, you are bringing up the question of the 100,000 POWs in the next war right on cue. Absolutely nothing in the Hamdan decision, and absolutely nothing in what I've suggested, would change how we handle regular POWs."

So I take it you are on-board with treating unlawful combatants with more due process than normal POWs receive. That seems decidedly odd to me, on every level.

Since you arent engaging any of the rest of my points and seem content to invoke the curse of Karl Rove etc, i'll just leave it at that. Anybody that has the gall to describe Guantanimo as a travesty of justice while pretending to be more comfortable with whole sale on the field executions has clearly checked out of rational discourse. As I said- to you anything the Bush did is de facto wrong and hence whatever he didnt do must have been right. I find that boring.

You might also note that Hamdan's own counsel admitted that he could be held indefinitely as a POW. The Bush rules are being claimed to solve a problem that doesn't exist, instead of being seen as solving something—constraint on unlimited executive authority—that isn't usually seen as a problem by Americans.

Live by the judiciary, die by the judiciary I guess.

Mark Buehner: you can't tell lawful POWs from unlawful combatants without a tribunal. The Geneva Convention says so, but so does common sense. Only members of the Bush Devotion Society believe He, in His Great Wisdom, could identify all of the unlawful combatants with complete accuracy from thousands of miles away.

On your argument, if there is a trial for Person X who is accused of murder and no trial for Person Y because the police decided he acted in self-defense and let him go, then we are giving X "more due process" than Y. Once you see it in another example, that more trials doesn't mean more due process, it's clear it's just bogus. No one is disputing that Hamdan may be treated as a POW, and that he has no claim in civilian court against that. The claim is that he can not be treated, without due process, worse than a POW, and the courts agree.

As best as I can tell it arises from a refusal, which you share with Lurker, to accept any set of circumstances in which Hamdan is treated as a POW. Either he must be imprisoned or executed by a special, unlawful tribunal, or he must be set free. Those are not the choices. Lurker appears to have misunderstood me: my point is that not even Hamdan himself believes he is entitled to be set free, since unlike the chicken farmers, he really is a member of Al Qaeda. But the conditions of his confinement must be set according to existing law and not the whims of George Bush.

Only members of the Bush Devotion Society believe He, in His Great Wisdom, could identify all of the unlawful combatants with complete accuracy from thousands of miles away.

And do you seriously believe that Bush personally evaaluated every detaainee? Silly. Obviously there was a process in place to classify detainees, it was just one you don't aapprove of.

Also, I don't much appreciate the racist insenuatioin that you leveled above. Just so ya know.

Lurker appears to have misunderstood me: my point is that not even Hamdan himself believes he is entitled to be set free, since unlike the chicken farmers, he really is a member of Al Qaeda. Well it's good to know that you think at least one of the detainees is properly detained!

I'm seriously curious. What do you think Hamdan's case is for GC3 POW status? Is he a native Afghani? Was he wearing a uniform when he was captured? What is his chain of command? Who has the power to conceed defeat for his organization? Or accept our surrender? Was he openly carrying his weapons? Is he a member of any signatory nation's armed forces? Make your best case!

Enemy combatants, legal or illegal, should be detained, without trial, as authorized by the rules of war and recognized by a majority of the Supreme Court, pending the conclusion of combat.* Giving them trials only creates an opportunity for four members of the current Court that think that Congressional enactments can be understood in terms of unratified treaties.

I care very little about punishing most of these people, particularly ones that merely failed to dress the part of soldier. I don't want them to return to combat and kill our soldiers. As I believe Robin Burke put it, war is not a game of catch and release.

• I believe U.S. citizens should be tried in the court system for treason, but recognize that the SCOTUS does not require this.

Huh? When did this get turned into a Hamdan thread? I already thought there was one of those.

At any rate, Mark and Lurker, you need to read this article by Marty Lederman

The POW status is incorrect, by the way.

The Court did not hold -- not even close -- that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections afforded U.S. POWs. (POWs, for instance, may not be coerced at all in interrogations, and may not be "threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind" for refusing to answer questions beyond name, rank, serial number and date of birth.) The Court held "merely" that the minimum baseline protections of Common Article 3 are binding on the U.S. in the conflict with Al Qaeda. The Court did not suggest that Al Qaeda detainees are entitled to POW status, and did not opine on the procedures that may be required to deprive a detainee of POW status. As OLC explained, "article 3 requires State parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded -- standards that are much less onerous and less detailed than those spelled out in the Conventions as a whole."

Lurker, I will try to spell out my points in more detail. When Gitmo first opened, Bush (technically, I think it was Rumsfeld) announced that the Geneva Conventions would not apply to detainees held there. So you see, Bush was able to determine from 10,000 miles away, and without the benefit of any sort of hearing or tribunal, that not a single one of the detainees should be classified as a POW who had been a lawful combatant (and, a fortiori, that none of them were noncombatants picked up by mistake). From the very beginning the processes were allowed to deviate from the GC, which makes it clear that a partial determination had been made as to detainees' status, wholesale. Bush had to backtrack somewhat after losing the Hamzi and al Odeh cases, plus the dismay of our allies and just about every lawyer not employed at the Office of Legal Counsel, HQ of the Imperial Presidency.

Now, as to Hamdan. All detainees in the war against the Taliban are entitled to GC Common Article 3 protection, including civilians, unless proven otherwise. (I don't know what PD Shaw is talking about with unratified treaties: we ratified these parts of the GC.) Because the Taliban are not a nation-state and this is not a regular army, there isn't any issue of who will surrender, and as to when the war is over, maybe that's even for us to say. But in the meantime, Article 3 explains his default status and treatment. Now, I don't believe that even the US Government is claiming he was a spy, because the circumstances of his arrest were not on the battlefield I don't think the uniform issue is at all pertinent. I mean, if we caught regular enemy soldiers naked in their latrines, we couldn't really execute them for being out of uniform! If, and it's a big if, we have any evidence that Hamdan aided and abetted 9/11, the Cole, or any other Al Qaeda atrccity, then we can have a tribunal constituted correctly.

You should check the link in comment 90 which is by a real lawyer, and explains the issues better than I can.

Andrew: you can't tell lawful POWs from unlawful combatants without a tribunal. The Geneva Convention says so

Article Five of the Geneva Conventions:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [prisoners of war], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

I don't know what PD Shaw is talking about with unratified treaties: we ratified these parts of the GC.

Plurality Opionion in Hamdan:

Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford “all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase “regularly constituted court,” this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government “regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.” Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 322 (2003). Among the rights set forth in Article 75 is the “right to be tried in [one’s] presence.” Protocol I, Art. 75(4)(e)

Justice Kennedy in Hamdan:

There should be reluctance, furthermore, to reach unnecessarily the question whether, as the plurality seems to conclude, ante, at 70, Article 75 of Protocol I to the Geneva Conventions is binding law notwithstanding the earlier decision by our Government not to accede to the Protocol.

AJL,
Thanks for the reply. It is quite supstantive and based on facts, with only a little anti-Bush snark. I've been reading here a long time and I have to ask, where have you been hiding this stuff?

WRT to the GC not applying to Gitmo, do you think it's remotely possible that the detainess were classified before being assigned there? It seems like there were several POW camps setup in Afghanistan during and immediately after combat operatioins there.

If they were classified before hand, with civilians released, and POWs otherwise detained, then the wouldn't it be true that all the detainess at Gitmo were only those that were believed to be unlawful combatants?

And it's also true that the classification process never ended. Many detanees were released when they were found with certainty not to be members of AQ or a suppose foreign 9non-Afghani) Taliban.

Now I don't know if you agree with any of this, but if so, then isn't it possible for a reasonable interpretation of the GC to conclude that unlawful combatants do not enjoy GC protections? IANAL, but this seems reasonable to me. It may turn out that this is in fact not true, but I believe it is a stretch to claim that it's unreasonable.

Now, obviously the Supreme court has taken issue with some of these processes, and the Bush administration has made adjustments to comply with the Court's understanding, as will happen in the case of the Hamdan ruling. Can you please explain how undertaking to address the concerns of the Supreme Court is consistant with a rogue or imperial presidency?

All detainees in the war against the Taliban are entitled to GC Common Article 3 protection, including civilians, unless proven otherwise.

The status of ununiformed Afgani Taliban is less clear, but POW seems most appropriate. The water gets murkier with the ununiformed non-Afghani Taliban. Technically, they should be classified as unlawful combatants, but I think Gitmo was reserved for AQ members so I don't know who would be detaining them.

The AQ folks are definitely not civilians, and they defeinitely aren't POWs. Does this make them unlawful combatants? The GC really don't have a category for them, do they? Whatever else they are, they are the self declared enemies of the United States. This is a decidedly different class than criminals or common lawbreakers who are entitled to access to civil courts.

The answers to these questions are evolving right before our eyes. Once Congress has spoken and the Presidency has signed whatever bill into law, then we will be closer to having settled these issues.

These are all important questions that deserve resolution, but reasonable people can disagree, without being racists, or Rove droids.

So, this is why I don't care for the over the top anti-Bush rhetoric. Just the same way I didn't care for the over the top anti-Cliniton (who I voted for twice) rhetoric when it was spewing forth from the right. None of it advances the cause of democracy, IMHO.

Then isn't it possible for a reasonable interpretation of the GC to conclude that unlawful combatants do not enjoy GC protections?

George Bush didn't feel this way, even though it is the law. It cramped his style as Commander-in-Chief. I told you that members of the Bush Devotion Society believe that our Leader is Omniscient—and look at comment 92! "Should there arise any doubt" And there wasn't any doubt on George Bush’s part! So we didn't need any tribunals, but declared them "unlawful combatants" wholesale, over the objections of Colin Powell, various senior military lawyers, and our own allies. Once Bush was forced to hold tribunals, even biased as they were they found some of the detainees were noncombatant civilians who had no business being detained. So while George Bush had no doubt (and, given his attitude towards nuance, I do believe that is so), he should have!

It's only merest coincidence, of course, that the Administrations refusal to accede to the GC, part of American law, preceded abuse of the prisoners by those few bad apples whose tactics revolted our own FBI and Navy interrogators. And if you believe that, come invest with me in Nigeria.

Or you could adopt Mark Buehner's better safe than sorry approach, which is always easier to do with other people's freedom. I doubt if many Americans of Japanese descent, or Jews anywhere, see it quite that way. That the Administration has complied with the orders of the Supreme Court does not seem to me incompatible with the idea that they desire an Imperial Presidency, which with respect to Padilla, you agree. But they are doing so with reluctance, as you may recall the Attorney General announcing that the Hamdan decision impairs the War on Terror—PR prep for ignoring a future decision, mayhaps?

And finally, Shaw has gotten hung up on one trivial detail about an article of an unratified treaty that the right-wingers are clutching as a consolation prize that their cockamamie theories of justice are being unfairly disregarded. Five justices of the Court held that our tribunals were unlawful because, unlike our own courts-martial, the defendant was not present, and tribunals are supposed to be as much like our own courts-martial as practical. The GC (the part we have ratified), also require the tribunal to follow "customary international law", but just what customary international law actually is, isn't explicit. Four members of the Court found that Article 75, having been widely ratified, although not by the United States, was in fact "customary". One member of the Court, Kennedy, declined to make such a finding one way or another, especially since the first flaw, that the tribunals did not sufficiently resemble a court-martial, was completely dispositive of the question as a whole, whether the tribunals were lawful. Now, that's a pretty slim reed on which to rely for the argument that the Court, [Osama bin] laden as it is with AQ sympathizers, has sold us out to the United Nations Black Helicopters.

To turn to the positive aspect of your post. I don't know just what membership in AQ means. Detainees who trained to execute or participated in terrorist acts are criminals, and if we have the evidence against them, we should imprison them, and we have laws to do so. I have the feeling, though, that a great many of these foreign nationals were not terrorists per se, but more like my old history teacher, an American who joined the British Army in 1939 (as a medic, incidentally—he was a pacifist who wouldn't carry arms). People like that should be treated as POWs. Obviously the cause of Talibanic Islam isn't very noble (at least to both of us), but it's hard for me to see why it is unlawful to enroll, essentially as a militia member, when a government whose philosophy (repulsive as we find it) has been attacked. It may be that when Gitmo opened for business, the Administration announced that it was for Al Qaeda, for the "worst of the worst", If you will pardon me one last anti-Bush snark, I think you will agree that grandiose unsubstantiated claims have been a hallmark of Commander Codpiece's Middle East policy.