Not really the law, but politics ...
I'd amend Bill's quote as follows:
Quote:
We're putting our Soldiers and Marines in a situation where politics, not the law, overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.
since the law (like the military) is an instrument of policy.
Based on the recent CNN documentary (and what I've read from CLAMO sudies), the conscious political choice was made by the USG to turn over Iraqi detainees to the Iraqi criminal justice system for prosecution under law enforcement rules. Those Iraqi rules placed a high bar re: prosecutions pursuant to US detentions (even higher today under the SOFA). As understood by the NCOs (and the PFC who was interviewed) the Iraqi system was a "revolving door". I dunno whether that was true or not, but that is what they believed.
The other political option would have been to retain jurisdiction over US detainees and process them accordingly - based on whether or not they were security risks. I'm not talking about "war crimes" prosecutions for them; and I am not talking reasonable doubt, but rather a preponderence of the evidence - as in the DC habeas cases. Under that standard, as I applied the evidence in the case as I watched the documentary, the four detainees were "bad guys" and ought to have been detained for the duration (until our withdrawal from Iraq).
So, the law provided two paths that could have been followed: the Iraqi path or the US path. The USG (whether fully aware of secondary and tertiary effects is another question) decided to go with the Iraqi path. So, four non-innocents are dead and three NCOs are spending time at Leavenworth.
I would say that our civilian leadership should address itself as a crisis that needs to be resolved with a sense of urgency. Note that the decision to follow the Iraqi path was made by the Bush II administration, although from all appearances the Obama administration would probably reach the same decision.
Regards
Mike
UK phone tapping: no thanks
The UK law on phone tapping AKA intercept evidence has been subject to another review and once again rejected as a useful option. Here are some links:
Official Report http://security.homeoffice.gov.uk/ri...ce?view=Binary
A critical commenatary http://www.spyblog.org.uk/ and by a respected BBC reporter: http://news.bbc.co.uk/1/hi/uk/8406478.stm
IIRC this means the UK is the only common law juristdiction that does not allow intercept into evidence.
Binyam Mohammed: Crown criticises judges
The controversy over the release of a US-provided intellgeince document in the case of Binyam Mohammed has now reached the Court of Appeal:
http://www.telegraph.co.uk/news/ukne...Secretary.html
Amazing sub-title:
Quote:
The High Court has been accused of “unnecessary and profoundly damaging” behaviour
suggests the government is being petulant at the minimum.
Spy, Double-Spy, Dupe even?
The case of David Headley, a Pakistan-born American national arrested in Chicago in October, gets strange, although not surprising to some. First this:http://www.philly.com/philly/news/ho...html?viewAll=y
with the headline: 'Terror suspect was drug dealer, then informant'. Makes interesting reading and poses questions how he became so involved with LeT in the plot.
Across the water, The Daily Telegraph, clearly using Indian sources, under the headline: 'Mumbai suspect is US double agent, India claims' and the link: http://www.telegraph.co.uk/news/worl...ia-claims.html
Then there is the (odd) evidence that Headley and co-accussed Rana were recorded in a car:
Quote:
Prosecutors write: "On September 7, 2009, Headley and Rana took a long car ride and discussed several topics. This conversation was recorded. During their conversation, Headley and Rana discussed the attacks that occurred in late November 2008 in Mumbai, India, in which approximately 170 people were killed. It is clear from the conversation and extrinsic corroboration that Rana was told just days before the Mumbai attacks that the attacks were about to happen. Elsewhere in the conversation, Rana asked Headley to pass Rana's compliments directly to the specific Lashkar e Tayyiba member they both knew who had coordinated the attacks."
See:http://abclocal.go.com/wls/story?sec...eam&id=7170127
Umar Farouk AbdulMutallab
The Complaint and Affidavit is a short 6 pages. I expect the indictment will allege more serious charges.
US citizens charged in Pakistan
The BBC report:http://news.bbc.co.uk/2/hi/south_asia/8436747.stm that the five US citizens from Virginia, who left for Pakistan are to be charged in Pakistan.
Quote:
Pakistan police are seeking to charge five Americans arrested in the country in early December with terrorism. Investigator Tahir Gujar said the men, who are suspected of having links to Islamic militants, will appear in court in Sargodha on 4 January. Police also want the young Muslims to face life sentences for allegedly plotting to carry out attacks. US officials have also been looking at charging the same men, the Associated Press reported.
The are reported to be from the Washington DC area in the US.
I'm sure this story has appeared before on SWC, on another thread.
Judge Leon affirmed - Al-Bihani, the Cook
The Al-Bihani case, when before Judge Richard J. Leon, was reported in Judge Leon decides again ...
Judge Leon's denial of the detainee's release was appealed to the DC Circuit. As noted here before, the temperment of judges (as also jurors) is all important. On this appeal, the luck of the draw favored the DoJ. The 3-judge panel was of a generally conservative cast (see Wiki bios for Janice Rogers Brown, Brett M. Kavanaugh and Stephen F. Williams). The panel affirmed Judge Leon.
From SCOTUSBlog:
Quote:
Wide detention power upheld
Circuit's first ruling post-Boumediene
Lyle Denniston | Tuesday, January 5th, 2010 12:13 pm
The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled.
.....
The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.
The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon. Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.
Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case. “Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war,” the panel said.
The decision was supported in full by two of the most conservative members of the Circuit Court: Judges Janice Rogers Brown (who wrote the main opinion as well as a separate concurrence for herself alone) and Brett M. Kavanaugh. The third member of the panel, Senior Circuit Judge Stephen F. Williams, supported only the result — denial of habeas for Al-Bihani — and expressly questioned the majority’s view that presidential detention power was not limited by international law, including the law of war.
Although the opinion for the majority represented the views of only two members of the Circuit Court, it is a decision that is binding on any other Circuit panel that hears a Guantanano detainee case raising issues of detention power and courtroom rights. It could be overturned at the Circuit Court level only by a majority of the en banc Court. Al-Bihani’s lawyers have the option of seeking such review, or taking the case on to the Supreme Court. ......
For the moment, this case is binding precedent in the Gitmo habeas cases. The next step for detainees is en banc hearing by the DC Circuit or appeal to SCOTUS.
Here are the key facts (pp. 2-3):
Quote:
Al-Bihani, a Yemeni citizen, has been held at the U.S. naval base detention facility in Guantanamo Bay, Cuba since 2002. He came to Guantanamo by a circuitous route. It began in Saudi Arabia in the first half of 2001 when a local sheikh issued a religious challenge to Al-Bihani. In response, Al-Bihani traveled through Pakistan to Afghanistan eager to defend the Taliban’s Islamic state against the Northern Alliance. Along the way, he stayed at what the government alleges were Al Qaeda–affiliated guesthouses; Al-Bihani only concedes they were affiliated with the Taliban. During this transit period, he may also have received instruction at two Al Qaeda terrorist training camps, though Al-Bihani disputes this. What he does not dispute is that he eventually accompanied and served a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which included Al Qaeda members within its command structure and which fought on the front lines against the Northern Alliance. He worked as the brigade’s cook and carried a brigade-issued weapon, but never fired it in combat. Combat, however - in the form of bombing by the U.S.-led Coalition that invaded Afghanistan in response to the attacks of September 11, 2001 - forced the 55th to retreat from the front lines in October 2001. At the end of this protracted retreat, Al-Bihani and the rest of the brigade surrendered, under orders, to Northern Alliance forces, and they kept him in custody until his handover to U.S. Coalition forces in early 2002. The U.S. military sent Al-Bihani to Guantanamo for detention and interrogation.
Based on the detainee's admissions, Judge Stephen F. Williams (pp. 28-34) saw no reason to complicate this case, since al-Bihani was lawfully detained under the AUMF and various of his arguments were immaterial once that issue was settled. Judge Williams (correctly, IMO) thought the majority two judges did not exactly portray the role played by interenational law and the Laws of War.
The key law on which the majority focused were the statutes applicable to determining the detainee's status (pp. 8-9):
Quote:
The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also cabin the application of these definitions. The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, ###. XVIII, 123 Stat. 2190, 2575–76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id. § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.
In short, the authorization to kill includes an authorization to capture and detain. IMO, the power to detain (as security risks) goes beyond the power to kill (limited to "combatants") and includes cadres and infrastructure who might be considered "non-combatants" (civilians).
end part 1
JMM that's an awesome chart.
;)
And as I'm reading through it this morning, I thought to check here before I finished to see if you had weighed in and I am rewarded.
As to "International Law" I've told people I think its more apt to call it "International Customs and Courtesies" being more descriptive of their actual weight. Important, and moral guideposts, and deviation from them too long can create far reaching reprecussions, but dispositive they are not unless as you point out they are codified within our own law.
Now having said that, they should have made that distinction instead of the language they used that without reading further makes it sound like we don't care at all about the laws of war. Wish they'd been more careful, but I'm only on page 11.