Tuesday, November 17, 2009

Khalid Sheikh Mohammed and the Obama administration's contradictory policy on terrorism

If Khalid Sheikh Mohammed is a captured enemy combatant, then why is being tried in federal court? And if he is not a captured enemy combatant, they why are we still calling it a "War on Terror?"

Pat Buchanan hones in on the central contradiction in the U. S. policy on terrorism:

[I]f we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?

...Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.

When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?

Read more here.




57 comments:

Thomas said...

Enemy combatant is not a legal term or a legal category. The Bush administration made it up to that they could circumvent the law.

US Courts have jurisdiction over people who commit criminal acts in the United States. US Courts have tried terrorists before. Buchanan has been getting increasingly shrill, inconsistent, and inaccurate over the years.

Lee said...

> The Bush administration made it up to that they could circumvent the law.

Says the man accusing Buchanan of being shrill.

One more time: foreign nationals have no rights under the U.S. Constitution.

Susan Weston said...

The American system of criminal justice is blood and bone of the nation patriots have defended since Bunker Hill against dangers much larger than KSM and his fellow thugs.

Mr. Buchanan may be willing to cower before the Al Quaeda punks and abandon the core principles of the Republic.

Martin and Lee may be willing to join him in whimpering in fear of a gang of foreign punks if they want.

For myself, I say that freedom isn't free, these colors don't run, and it's time for dear Khalid to encounter American values eyeball to eyeball in the jurisdiction of his evil doing.

Toronto houses said...

I think nobody really understands this decision and as Pat Buchanan said, it's rather a contradictory one. Because why was KSM being detained in Guantanamo? Because he was considered to be a POW for many years as well as other detainees captured during the "war on terror". But why some of them are put before the military tribunal and some are going to be sent to the civilian court? Could we be satisfied only with a political reasoning when Geneva convention says otherwise? I think this was one of the worst decisions by the Obama's administration so far. Elli

Anonymous said...

KSM has confessed and bragged about his actions, and Susan thinks it is a good thing that "a gang of foreign punks" receive American constitutional rights? I'll bet New Yorkers are just thrilled that more than eight years after the fact that these punks will be given the ultimate reality show. Weston reminds me that some folks are so open minded that their brains can dribble out of the ears.

Lee said...

> The American system of criminal justice is blood and bone of the nation patriots have defended since Bunker Hill against dangers much larger than KSM and his fellow thugs.

There was arguably one threat larger than KSM, his fellow thugs, and their cheering section all over the world.

> Martin and Lee may be willing to join him in whimpering in fear of a gang of foreign punks if they want.

There you go again, characterizing instead of arguing. If our worst fears become true, I trust you'll be whimpering with the rest of us.

> For myself, I say that freedom isn't free, these colors don't run, and it's time for dear Khalid to encounter American values eyeball to eyeball in the jurisdiction of his evil doing.

Of course, I never said freedom was free, the colors run, or Khalid shouldn't face justice. The question isn't whether Khalid should be tried. The question is by whom, and under what set of assumptions. In WWII, about nine German spies were dumped on our shores by U-boats. They were rounded up, tried by a military court-martial, and hung. Constitutional rights never entered the discussion, because in those days, everyone -- liberals and conservatives alike -- understood...

Once again...

Slowly...

Foreign nationals have no constitutional rights in the United States.

Susan Weston said...

The law is that there are two possible animals: you're a member of the military of a nation, or you're a civilian.

KSM is not enlisted in any real army of any real country, so he's a civilian.

Americans try people before they're executed.

Americans try civilians in our regular courts.

That's not giving the murdering monster anything special.

It's merely not letting him take away our principles.

You may hold those principles cheap. You may be ready let them go when a bunch of low-lifes come prowling around with weapons.

I hold on to them even when it's costly, and I hold them especially firmly especially when a bunch of foreign thugs are trying to me let them go.

Anyone willing to drop the principles that make us great for Al Qaeda would have folded for Stalin, made way for Hitler, and rolled over to play dead at the sight of British troops, both in 1812 and in 1776.

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Thomas said...

Lee,

Note that the due process clause specifically uses the term "person" rather than citizen. Why you would think such Constitutional rights do not apply to foreign nationals?

Martin Cothran said...

Thomas,

Do all the provisions of the Constitution apply to everyone everywhere?

Thomas said...

No. Why would it?

Presumably when it uses terms like "persons" or "citizens" it refers to all persons or citizens unless otherwise specified. And in the immediate case, it's just bad interpretation to say that "person" refers to "citizen", both because that's not its plain meaning and because of the obvious intent to differentiate between the two by using distinct terms with distinct meanings.

Martin Cothran said...

Thomas,

But every term operates in a universe of discourse. If I am at home and suddenly announce that I want everyone to come down to the living room, the "plain meaning" is, literally, everyone. In the context, however, it only means members of my family.

Is there some evidence that the universe of discourse in the case of 'person' used in the Constitution goes beyond those who are citizens of states who are parties to the Constitution?

Thomas said...

You're using a pretty tortured analysis when the situation is clear. You might have a point if the United States had no or very few foreign nationals in its territorial bounds. Historically, that's not the case, and even then the founders would have been bright enough to say "citizen" when that's what they meant.

Given the fact that the drafters took particular care to discuss citizenship requirements in a number of ways (the drafters did not say that a person had to be a person for so many years, they took particular care to establish citizenship requirements), the drafters were obviously aware of the difference between a citizen or a non-citizen, and they chose their words accordingly.

If this part of the Constitution isn't clear, none of it is.

Martin Cothran said...

Thomas,

In the term "We the people of the United States of America ...", to whom does the term 'people' refer?

Thomas said...

The people of the United States.

And practically, it means the parties to the Constitution -- the states.

Martin Cothran said...

Thomas,

So did the term refer to anyone other than the citizens of the states who were parties to the Constitution?

Thomas said...

I'm not sure where you're getting the idea that citizens are parties to the Constitution; the states are the signatories. And "people of the United States" may well have applied to more than just American citizens, or it may not have. The Bill of Rights does not restrict those rights to the "people of the United States" though.

As to the main point: "The Supreme Court has... accorded to aliens living in the United States those protections of the Bill of Rights that are not, by the text of the Constitution, restricted to citizens." -American-Arab Anti-Discrimination Committee v. Reno

Discussing alien's rights under the fifth amendment, the Supreme Court says "None of these provisions [5th and 14th Amendment] acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all ‘persons' and guard against any encroachment on those rights by federal or state authority." -Bridges v. Wixon

The closest thing the courts come to is that aliens attempting to enter the country cannot claim that they have a Constitutional right to enter.

If it's not clear enough from a plain reading of the Bill of Rights, it's clear from the case law that the Constitution is not using "person" in the restricted sense of citizen.

Thomas said...

"[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone ... are well worthy of recital: ‘To bereave a man of life ... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the British Constitution.’"

- Alexander Hamilton

Martin Cothran said...

Thomas,

My sentence was ambiguous. I meant citizens of states--the state's being the parties to the Constitution.

But how far do the protections of the Constitution extend. Is it citizens + illegal aliens only? Or are there more people covered by the Constitution outside of this?

More to the point, are people who are not citizens of the United States and who are not illegal aliens also considered under the provisions of the Constitution?

Thomas said...

From the little bit of research I did on the federal cases, "person" in the Bill of Rights applies to resident (legal or illegal) aliens just as much as citizens. Constitutional provisions don't seem to apply as strongly to those trying to enter the country, not because they don't have those rights (they do), but because they can be expelled from our territory and our legal system. Once you're in the governmental system, rights like due process adhere. And from what I can tell, the writ of habeas corpus actually applies to anyone at all in the clutches of the government, and has been construed even more widely than the rights enumerated in the Bill or Rights. In part, at least, this is because of its history in English common law.

Martin Cothran said...

Thomas,

Would Constitutional protections apply to a resident of Afghanistan?

Lee said...

> Note that the due process clause specifically uses the term "person" rather than citizen. Why you would think such Constitutional rights do not apply to foreign nationals?

Because they are not part of "We the People". They did not ratify the Constitution and are not bound by it.

Lee said...

> And "people of the United States" may well have applied to more than just American citizens, or it may not have.

Prove it.

Lee said...

> And from what I can tell, the writ of habeas corpus actually applies to anyone at all in the clutches of the government

I refer you to Lindsey Graham's recent dressing-down of Holder. Trying KSM in a US civilian court is a first; we're "making history".

The government includes the military, and in our history, foreign combatants most definitely do not have rights under the Constitution.

When we catch combatants who are not wearing a uniform of a foreign country, in fact, the military has the right to shoot them. That's as much due process as they are entitled to. The Geneva Convention does not protect such people.

Lee said...

I should add: I think, for aliens who have come to the country legally under ordinary circumstances, as a grace, they ought to be granted certain protections that the Constitution affords to US citizens -- up to the point of being entitled to most of the routine Constitutional protections if they find themselves in court.

But as Thomas pointed out, we can abrogate any "right" to be here very quickly and summarily.

In the case of Guantanamo, however, we're not even talking about legal resident aliens, but mostly folks who were shooting at the US military and picked up off of a hot LZ. They certainly do not have Constitutional rights, no more than the Germans we incarcerated during WWII had them.

Thomas said...

Lee,

You've already demonstrated that your knowledge of the law is, let's say, limited, in that you think a brief has some sort of authority on how the law should be interpreted. If you're suggesting that trying a non-resident in our criminal courts would be new, then you're hitting an all-time low. Seriously, if you don't know what you're talking about, it's best to at least not be assertive.

If you want to interpret the law, why don't you actually cite some case law, rather than google around for defendant's briefs that are not legally binding. You're coming up with a lot of ridiculous stuff, claiming that aliens don't have rights under the Constitution. I'm not sure even Limbaugh is dense enough to say that. How about you cite some authority. Corpus Jurus Secundum, AmJur, ALRs, Federal decisions, something that's not your own imagination.

Thomas said...

As to whether Constitutional provisions apply to Afghans, obviously it depends. Are you talking about a presidential run, a right to vote in the US, a right to habeas corpus when detained by our government, or a right to free speech under Afghan law? The question is meaningless in the abstract.

Lee said...

> You've already demonstrated that your knowledge of the law is, let's say, limited...

I get it. Your interpretation of the law is better than DOJ's because I'm ignorant.

> ... in that you think a brief has some sort of authority on how the law should be interpreted.

What I have been questioning is whether your "brief", here, has more authority. I keep asking for reasons, you keep giving me silly little insults.

> If you're suggesting that trying a non-resident in our criminal courts would be new, then you're hitting an all-time low.

I'll hold my breath waiting for an acknowledgment that you misread what I said. Not just any non-resident, but foreign combatants. Terrorists.

> Seriously, if you don't know what you're talking about, it's best to at least not be assertive.

Says the man who shoots first and reads carefully later.

> If you want to interpret the law, why don't you actually cite some case law, rather than google around for defendant's briefs that are not legally binding.

You're taking hand-waving to a whole new level, Thomas. I asked you to explain why your brief is better than theirs. Your answer is to cast aspersions on the questioner.

> You're coming up with a lot of ridiculous stuff, claiming that aliens don't have rights under the Constitution.

They don't. But when they do get to an American civilian court, unfortunately, the rules of the court will apply and they will indeed be granted rights. Which is why they shouldn't be tried there. If you think I've achieved some sort of pinnacle of ridiculousness, you're not paying attention to the utterances of Holder and Obama. "Failure [to convict KSM] is not an option?" Please. Then why have a trial at all, military or civilian? Why not just shoot him and be done with it?

Under our legal system, there is no such thing as a predetermined outcome of a trial. KSM will be allowed to mount a defense, and a good lawyer will be able to shred the government's case if all, most, or even just part of the case is based on evidence that is inadmissible (you know, obtained in violation of his "Constitional rights", the ones that don't exist). But they don't dare set him free... or do they?

Either way, it bodes ill for the rights of those of us who are citizens. If the trial outcome is predetermined, there is no reason why such, er, procedure can't spill over into future abrogrations of citizens' rights. But if KSM walks, he's free to kill more Americans.

Thomas said...

As to the whether aliens have rights, see the above case law. There's absolutely no legal question that "person" under the bill of rights is not restricted to citizens. And not just when they're in the court system.

And, again, a brief has no precedential value, and plays no role in any binding interpretation of a statute. You want to substitute a term in a lawyer's brief "extreme" for the term in the federal statute "severe". Not that it really matters, because there's federal precedent that waterboarding is torture (the Texas sheriff case mentioned above).

And, actually, we've tried almost 200 terrorists in US civilian courts before. Your claim that this is unique is nonsense.

Look, what's objectionable here is not that you don't really know what you're talking about when it comes to the law. Most people don't, just because it's fairly specialized and time consuming to figure out. It's that you use that bad legal analysis to be an apologist for torture, and for the suspension of habeas corpus (which Hamilton considered despotism per se). It's easy to say things like that on the internet, but those things get very serious very quickly in real life.

Lee said...

The debate over torture involves both legal and moral issues.

Concerning the moral issues, I would refer you to an old joke that goes something like this: a man is talking to an attractive women in a bar and at some point says, "If you sleep with me, I'll give you a million dollars."

She thinks for a few seconds and says, "Okay!"

The man then says, "Well, I don't have a million dollars, but I will give you a hundred"

She sniffs. "What do you think I am, a prostitute?"

He replies, "We've already established that. Now, we're just dickering over the price."

The moral issue behind torture can be very simply illuminated: Would you torture someone if it meant averting the Holocaust? Would you torture someone if it meant saving millions of lives? Would you torture someone if it meant saving the entire planet?

If you would even very reluctantly answer to the affirmative, then, congratulations, you are in favor of torture as a means to certain ends. All we have to do now is "dicker over the price". If millions are not at stake, then how about thousands? Hundreds? Dozens? Two? One?

And how severe a torture is warranted? Isolation? Weeks of bread, water, and exposure? Waterboarding? Flogging? Dismemberment? Crucifixion?

To say "never" is to value one person's comfort and safety over the lives of millions of other people. Technology is bringing us to an age when the far-fetched scenario is imminent. Is there a nuclear or biological technology in our future that could end life once and for all? And if so, what are the stakes when it falls into the wrong hands?

I would firmly agree that gratuitous torture is evil. In Mel Gibson's "Passion", the depiction of the Roman soldiers being ordered to scourge Jesus shows two of the soldiers and their different attitudes about what they're doing. The one ordering to be done looks mildly disgusted, but determined to do what he perceives his duty to be. The other -- the one actually doing the scourging -- delights in it. I submit that the first Roman committed a more minor sin, if any, than the second. I think intent does matter.

What does the Bible say? I can't think of anything specific. Clearly, Jesus was tortured, but to the extent that it is talked about, it seems the outrage was directed against doing these things against the Messiah, not doing them per se. Likewise, I can't think of any example in the Old Testament where torture was either condemned or practiced by God's people; if you can, please share. I think we have to take our Biblical duties seriously, but we appear to be left to infer the right thing based on the principles put forth in the Bible. And those do not appear to be cut and dried.

One of the interesting things about Jesus is that, time and time again, He responds to a leading question with an unexpected and unpredictable answer, a bolt from the blue. If I were sitting next to Jesus at a dinner party and someone asked him, "Is it okay to torture someone if it means saving many lives?", I have to admit, I have no idea what He'd say. But I'd be dying to hear His response.

The Lord seems to want His people to develop a state of mind. The danger of torture is the potential to turn the torturer into a monster. But in some circumstances, I would argue that a failure to torture could evince a horrifying indifference to suffering. And if I'm wrong about that, I'll find out someday from the Lord's own mouth.

Lee said...

> There's absolutely no legal question that "person" under the bill of rights is not restricted to citizens. And not just when they're in the court system.

Does the US Constitution protect the lives of Chinese citizens living in China? Apparently not. So whatever the boundaries are, they do exist. In the case of most Gitmo prisoners, these are foreigners apprehended off the battlefield by American GIs. Do they have Constitutional rights? If so, why?

> And, again, a brief has no precedential value, and plays no role in any binding interpretation of a statute.

As I have already made clear, I want you to explain why your "brief" is better than the DOJ's. It's an invitation I have extended two or three times already. Law is interpreted and paraphrased in any court proceeding. I am inviting you to explain why DOJ was wrong in its interpretation, and to speculate on how it is that the DOJ hires incompetents to write their briefs. This was not Bush's DOJ, but Holder's DOJ. Obama's DOJ. If they are wrong, they are wrong for a reason, and that reason is not because of my personal shortcomings.

> ... there's federal precedent that waterboarding is torture (the Texas sheriff case mentioned above).

I think it should be illegal for a sheriff to use waterboarding to illicit confessions. To say one condones waterboarding under certain circumstances is not to say that it should be condoned under all circumstances.

> And, actually, we've tried almost 200 terrorists in US civilian courts before. Your claim that this is unique is nonsense.

I admit I could have been clearer. Here's what I said:

> I'll hold my breath waiting for an acknowledgment that you misread what I said. Not just any non-resident, but foreign combatants. Terrorists.

To most people, it would be clear that I meant foreign combatants, terrorists picked up off the battlefield. But sometimes I forget who I'm debating with, and that you would be certain to isolate any part of the statement that interprets my argument in its worst possible light.

http://www.youtube.com/watch?v=sG7lm8Sfbo4

According to Graham, KSM's trial will be history-making in that it is the first time we have ever tried an enemy combatant picked up on the battlefield in a US civilian court. If Graham is wrong about this, you are invited to correct him, and me.

> Look, what's objectionable here is not that you don't really know what you're talking about when it comes to the law. Most people don't, just because it's fairly specialized and time consuming to figure out.

It makes sense that you're a lawyer, now that I think about it. Fits the m.o. E.g., you can ignore the context of a statement (about the "historic first") and focus on an imprecision of mine that makes my argument say something I clearly didn't mean.

> It's that you use that bad legal analysis to be an apologist for torture and for the suspension of habeas corpus (which Hamilton considered despotism per se).

I could be flip here and say if it was good enough for Lincoln, it's good enough for me. I make no claim to be a "good" legal analyst, but only note that I have asked many questions that get answered in precisely this way.

I have laid out in full,my approach in thinking about torture. I'm not sure it qualifies me as an "apologist for torture", any more than being in favor of the death penalty qualifies me as an apologist for killing. Yes, I can think of occasions that might warrant inflicting severe pain or mental anguish on someone; one of them would be, e.g., if otherwise you or some other innocent bystander were about to be killed by a terrorist bomb.

But if I am an "apologist for torture", it would be under the most specific of circumstances, and should not be for the gratuitous joy of inflicting pain.

Lee said...

And another question, Thomas, since you brought up habeas corpus: Henceforth in Afghanistan and Iraq, before taking any prisoners into custody with the intention of interrogating and confining them, should we read them their Miranda rights and provide them an attorney?

Should we have also done that with the German and Japanese soldiers we captured in WWII?

Thomas said...

Wasn't KSM picked up in a raid at a friend's house in Pakistan rather than on a battlefield?

And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature when they're about to vote on something he doesn't like.

The Constitution governs at least those situations over which the United States has jurisdiction. It should be noted that the federal torture prohibition is even wider, in that it gives jurisdiction whenever the offender is a national of the US, or comes into the US at some point.

Thomas said...

And, again, the problem with the brief is that it makes the standard for pain "extreme" rather than "severe". Hopefully you can see the problem with allowing a lawyer's brief to substitute different words into a statute, effectively rewriting part of the statute. Wouldn't defendants like to have that power!

And, under the federal war crimes statute, the standard is even lower, requiring only "serious" pain. 18 USC 2441. This covers all persons under the United State's custody or control.

I can think of times I've been in serious pain, quite few times that I've been in severe pain (broken bones, bad burns, etc.), but I've probably never been in extreme pain. Of course, I've never been waterboarded either.

I still cannot understand why you think that a lawyer in the DOJ has the authority to rewrite a statute.

Lee said...

> Wasn't KSM picked up in a raid at a friend's house in Pakistan rather than on a battlefield?

If we had picked up Josef Goebbels at a friends house on the Army's way through Germany, would we have had to try him in a US civilian court?

> And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature when they're about to vote on something he doesn't like.

Yes, of course I would, nor would I rule out the possibility.

> The Constitution governs at least those situations over which the United States has jurisdiction. It should be noted that the federal torture prohibition is even wider, in that it gives jurisdiction whenever the offender is a national of the US, or comes into the US at some point.

I have no problem with giving a US national a trial in a US court.

Lee said...

> And, again, the problem with the brief is that it makes the standard for pain "extreme" rather than "severe". Hopefully you can see the problem with allowing a lawyer's brief to substitute different words into a statute, effectively rewriting part of the statute. Wouldn't defendants like to have that power!

When a trial takes place, are lawyers allowed to change words as they explain their positions?

Are judges allowed to interpret the law for the jury?

Or do we dispense with lawyers and judges, hand juries a copy of the law, and point at the defendants, and say, good luck?

I would need to know why they substituted those words, and why their interpretation is incorrect.

> I still cannot understand why you think that a lawyer in the DOJ has the authority to rewrite a statute.

I don't. Ultimately, it's on the judge and jury to decide whether an interpretation is correct.

Thomas said...

You said:

"I meant foreign combatants, terrorists picked up off the battlefield."

KSM was not picked up on a battlefield, he was picked up at a house in another country, and not by the military, but by two intelligence services. So your whole thing about him being the first terrorist picked up on a battlefield about (that I had so cruelly misinterpreted) was flatly wrong.

Actually, it doesn't surprise me that you are fine with Presidents illegally arresting legislatures before they can vote on legislation. I'm sure you wouldn't mind if Obama imprisoned the Alabama legislature for voting to not enforce Roe v. Wade in their court system.

You seem to be hopelessly confused about the difference between interpretation and misinterpretation. Changing the meaning of a statute by heightening or loosening a standard is misinterpretation. Extreme pain is not the same thing as serious pain or severe pain; it's a different standard.

If a lawyer misinstructed the jury, he could be censured. Judges have an even higher standard to measure up to. What you're advocating is far worse than judicial activism, it's full scale judicial legislation.

Lee said...

Thomas, why can't I change a word in a law I don't like, if you can simply change the words that I wrote into something you can refute?

You wrote this:

>> And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature when they're about to vote on something he doesn't like.

And I wrote this:

> Yes, of course I would, nor would I rule out the possibility.

Now pay attention: You said, "I'm sure you won't mind..."

I said "Yes, of course I would..."

And *now* you say:

> Actually, it doesn't surprise me that you are fine with Presidents illegally arresting legislatures before they can vote on legislation.

Now, would you please admit you misread what I wrote? I am *not* fine with Presidents illegally arresting legislatures, and specifically said otherwise.

You are so anxious to discredit anything I say, you're not even bothering to read what I say.

Lee said...

> KSM was not picked up on a battlefield, he was picked up at a house in another country, and not by the military, but by two intelligence services. So your whole thing about him being the first terrorist picked up on a battlefield about (that I had so cruelly misinterpreted) was flatly wrong.

Okay, so if Josef Goebbels had been picked up by the OSS in the home of a friend in Belgium, would he had been entitled to a trial in a US civilian court?

Lee said...

> If a lawyer misinstructed the jury, he could be censured. Judges have an even higher standard to measure up to. What you're advocating is far worse than judicial activism, it's full scale judicial legislation.

So then, we should soon find the DOJ lawyers who wrote that brief will be censured? Fired? Prosecuted?

Lee said...

The post that started all this high dudgeon about quoting briefs instead of law:

> Lee: 'And here's Holder's own Justice Department on torture:'

>> "Torture is defined as 'an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment'"

And here's the law:

http://law.justia.com/us/cfr/title08/8-1.0.2.5.8.1.1.18.html

Some excerpts from the law:

"(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture."

Thomas, you've been all over that word "extreme" like a fly on pecan pie, hitting me with all sorts of calumnies about how I shouldn't be using briefs as authentic, that it was changing the words of the law, etc. etc, high dudgeon personified.

As it turns out, the brief I was quoting was actually quoting the law. My mistake, that, but what the heck, I'm not a lawyer. But seems to me you should have picked up on that, Thomas.

Lee said...

Okay, Lee, don't go overboard...

Please strike the word "calumnies" from the previous post. My bad. I shouldn't overstate. Substitute: "aspersions".

Thomas said...

Sorry, I had read your statement as consistent with advocating torture and indefinite suspension. Sometimes one can be grateful for inconsistency, I suppose.

I'm having a bit of trouble keeping up with you. First you say KSM has no right to a trial because the Constitution does not apply to foreign nationals. When that turns out to be flat out false (on a plain reading of the Constitution and the the court cases I cited above), you argue that KSM should not have a right to a trial because terrorists had not been tried in our courts and it sets a bad precedent. When it turns out that our federal courts have routinely tried terrorists before, you change your argument again, saying KSM does not have a right to a civilian trial because US courts have not tried terrorists who were picked up on the battle field before. Then it turns out that KSM was not picked up on a battlefield, you say he should be tried because of...Goebbels? Where are we going next? Do we have to determine if space aliens have a right to a trial in court? It's kind of like an adventure ride at a park: I can never quite guess what's around the corner, and when I start to really look at it, I realize it was just made up out of someone's imagination.

The funny thing is that even if you were right about KSM not having a right to trial, it doesn't matter. The federal courts have jurisdiction over him, and he can be brought to trial there, whether he has rights or not. His choice is between military judges or 12 angry New Yorkers. I'd prefer the judges if I was him.

Thomas said...

Did you read the part right above that? You know, the one that says: "Torture is defined as any act by which severe pain or suffering, whether physical or mental..."

The "extreme form of..." is not actually a definition, as you asserted, but a distinction of torture from cruel and inhumane treatment--which is also, as it happens, a war crime under federal law.

Note as well where you got that from. That's not a federal statute, that was part of the process for producing the federal statute. The statute itself omits the "extreme form of...", meaning, as an elementary matter of statutory construction, that the legislative intent was to intentionally omit the "extreme form of..." clause. (They didn't just forget about it or decide not to include it for no reason at all.)

Thomas said...

Oh, and by the way, that section you're citing in the Code of Federal Regulation is just making the distinction I was earlier about how "serious" pain was an even lower standard than "severe" pain... and also a war crime under the federal statute. So that actually hurts your position in several ways.

Lee said...
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Lee said...

> Sorry, I had read your statement as consistent with advocating torture and indefinite suspension. Sometimes one can be grateful for inconsistency, I suppose.

So even when you misread what I write and step in a big pile of it, it's still my fault.

And I was pretty clear about what I think about torture. But to you, the entire explanation was nothing more than a simple, unnuanced "advocating torture."

> When that turns out to be flat out false (on a plain reading of the Constitution and the the court cases I cited above)...

Plain reading of the Constitution? Sorry, don't see it. As Martin pointed out, context is important, and the Preamble sets the context. "We the People" means Americans about to form the United States.

I admitted in an earlier post that if tried in a US civilian court, foreign nationals are accorded rights.

> When it turns out that our federal courts have routinely tried terrorists before...

I settled this earlier. I admitted I could have been clearer, but it should have been clear from the context I didn't mean American terrorists or terrorists apprehended in the US.

> Then it turns out that KSM was not picked up on a battlefield, you say he should be tried because of...Goebbels? Where are we going next?

Sorry. It was a form of argumentation called "drawing a parallel." Didn't intend to confuse you.

I really did think KSM was picked up off the battlefield. My bad. Sorry. But does that change the point I was making? He was an enemy combatant. He was arrested overseas.

> ...When it turns out that our federal courts have routinely tried terrorists before...

You just reiterated a misunderstanding of yours due to an imprecision of mine, which I corrected earlier. Seems I have to issue corrections and clarifications more than once for the same thing.

> The funny thing is that even if you were right about KSM not having a right to trial, it doesn't matter.

I'm right about that.

> The federal courts have jurisdiction over him, and he can be brought to trial there, whether he has rights or not. His choice is between military judges or 12 angry New Yorkers. I'd prefer the judges if I was him.

It's setting a very bad precedent. For one thing, like a couple of goofballs, Obama and Holder issued statements indicating they think a conviction is a done deal, which will allow KSM's lawyers to raise very plausible objections about the possibility of obtaining a fair trial. Some think their statements are an assault on due process. Next, there is the question of what evidence will be admissible. Then there is the probability that he was never read his Miranda rights. I predict KSM wins.

Lee said...

> Did you read the part right above that? You know, the one that says: "Torture is defined as any act by which severe pain or suffering, whether physical or mental..."

Yep.

> The "extreme form of..." is not actually a definition, as you asserted, but a distinction of torture from cruel and inhumane treatment--which is also, as it happens, a war crime under federal law.

Fine, Thomas, but after I originally posted comments about the brief, you wrote:

> Thomas: "More obviously, though, what I said wasn't an interpretation. It came straight out of the 18 USC 2340. There is obviously a difference between the "extreme pain" standard and the "severe pain" standard. You're substituting the definition of a lawyer arguing in a case for the definition of the statute."

It appears that you misread this earlier. The DOJ brief did not try to establish an "extreme pain" standard, you just inferred that it did.

I think, having read the law, the argument of whether or not waterboarding is torture under its terms seems to depend on whether it meets the "severe pain" standard, and whether it meets the "specific intent" standard. Both have to be met.

As to the legalities... My honest opinion? You have a point. But I think it's open to interpretation.

But I believe the CIA when they said they had briefed Congress. Does that mean Congress is complicit?

Lee said...

(Regarding the constitutional rights of (illegal) aliens, different subject, but still interesting, this post on Volokh:)

http://www.volokh.com/posts/1218685192.shtml

Second Amendment Doesn't Protect Illegal Aliens

So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a constitutional challenge to a federal statute that criminalizes gun possession by illegal aliens. Seems like a pretty sensible result, but what's interesting is the reasoning:

That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil....

Justice Rehnquist’s majority opinion adopted the following definition of “the people”:

“[T]he people” seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution’s jurisdiction and have “developed substantial connections with this country” are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that “all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ....”

Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General’s permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....

Thomas said...

You're awfully sensitive for someone advocating torture.

I don't know that anyone is saying KSM has a right to a civilian trial (correct me if I'm wrong, but even the Obama administration has not said that). My understanding of the Supreme Court cases is that, as I said, habeas corpus has a wider applicability than the bill of rights. Courts have applied that to mean that when military tribunals satisfy basic due process requirements, they can be used in certain cases. The criminal courts still have jurisdiction if they want it, and nations in the past have chosen public trials for those who have committed egregious acts against a nation (see Eichmann's case).

The problem that I have with your argument is not that I believe KSM has a right to a civilian trial, though I believe, like the Eichmann trial, it's better because it allows the citizens of the US to express their condemnation of KSM. It's that you're so determined to get to your conclusion you don't seem to care how you get there. You claimed repeatedly that foreign nationals have no rights under the Constitution, you claimed that suspending habeas corpus was ok because Lincoln did it (when Lincoln did many things that were outrightly despotic), you claimed that KSM didn't have a right to a trial because he was picked up on a battlefield unlike those other terrorists (when he in fact was not, completely torpedoing that argument), and so on. These are things that are not difficult to check. It seems like you are willing to latch on to any argument, so long as it gets you where you want to go. Which happens to be mostly correct. How you get there is the problem.

Thomas said...

Aside from the interpretive issue, I will say this about torture. The law actually allows for choice of evil defenses, where a defendant may say that if he violated the law to avoid a greater evil, and this can be a defense. I'm not sure if this could be applied to the torture statute, because if I remember right, the treaty that Reagan signed that led to the way the statute is specifically ruled it out. However, I wouldn't necessarily have a problem with allowing that defense, because it doesn't make torture legal (and certainly doesn't make it morally permissible), but it could suspend punishment if it in fact turns out that the torture did prevent a greater illegality than the torture statute was trying to prevent. There's a big difference between allowing torture as a policy, and keeping it illegal but refusing to punish in a very rare instance that it prevents a great atrocity.

Lee said...

> You're awfully sensitive for someone advocating torture.

You've chosen to get personal, and I'm only asking for the same consideration you have asked for yourself. I.e., you complained in an earlier thread that you didn't want blanket opposition poor torture to be construed as indifference to the lives of terrorist victims:

> You have the familiar habit of presuming that since one doesn't want one's country to do immoral things to people alleged to be terrorists, that one doesn't care about the value of human life.

So why won't you extend the same courtesy you demand for yourself to those who hold the opposing view?

Let me rephrase my position using your construction:

"You have the familiar habit of presuming that since one doesn't want innocent people to die and will condone doing what it takes to try to prevent this from happening, that one doesn't care about the moral implications of inflicting severe pain on another human being?"

Liberals love to present trade-offs as if they are solutions. Here, you even pretend there is no trade-off; torture is always bad, no matter what the circumstances happen to be. I have already pointed out the logical extreme of this position: if a person has knowledge that could save the entire planet but is unwilling to divulge this knowledge, rather than take severe measures to pull it out of him, we should simply wring our hands and sit waiting for the inevitable end.

It's a position that is dubious even from the Christian perspective. Is the terrorist really better off meeting his Maker with innocent deaths on his hands, rather than enduring the pain it took to make him thwart his own evil plans? As C.S. Lewis said, to show true love to some people, they simply have to be restrained.

But either way, whether to torture or not to torture is a trade-off, not a solution. It doesn't absolve us from making hard choices in tough situations where there are conflicting moral imperatives. We have to be careful on the one hand that we perform due diligence to defend innocent lives, and on the other hand that we not damage our own souls in the process.

Lee said...

> The criminal courts still have jurisdiction if they want it, and nations in the past have chosen public trials for those who have committed egregious acts against a nation (see Eichmann's case).

A curious example for illustrating due process, no? For one thing, it was Israel, not the US. For another, Israel suspended their law prohibiting capital punishment just for Herr Eichmann.

Sort of the same sort of logic I have been trying to illuminate regarding torture: "Our principles are that human life is so sacred that we cannot even take the life of a despicable murderer because it reduces us to their level -- unless, you know, he was really, really despicable."

Lee said...

> There's a big difference between allowing torture as a policy, and keeping it illegal but refusing to punish in a very rare instance that it prevents a great atrocity.

In other words, when somebody does something right, we still have to rub his nose in the fact that he really did something wrong. So we'll give him the Congressional Medal of Honor, so he can wear it to his court-martial.

I have always thought people misread Machiavelli. "The end doesn't justify the means!" is the accusation to anyone who employs questionable means even to a good end. But Machiavelli wasn't talking about just any end; he was talking about a specific end, which was to preserve the power of "The Prince" -- the head of state.

I submit that there are so means so heinous, they cannot be used morally just to preserve one's power.

But whether a more exalted end can justify more heinous means was not addressed by Machiavelli.

I am saying there are some good ends that morally justify using torture. In fact, you are now saying the same thing, only with a legal technicality so that it looks better.

I will now graciously accept your apology for simply dismissing me as pro-torture.

Lee said...

> You claimed repeatedly that foreign nationals have no rights under the Constitution...

I still maintain they don't. We do confer some rights as an act of grace, but it seems clear even from practice that we confer only a subset of those rights enjoyed by citizens.

> you claimed that suspending habeas corpus was ok because Lincoln did it (when Lincoln did many things that were outrightly despotic)...

When I precede a statement by saying, "I could be flip here and say...", I think what I'm saying is that the Lincoln example was a flip statement, and not offered as serious argument. Do you misread such things because you want to?

Lincoln should not have suspended habeas corpus before Congress authorized it.

> you claimed that KSM didn't have a right to a trial because he was picked up on a battlefield unlike those other terrorists...

That was a factual error on my part, but in fact it's a quibble since the same parameters apply to what actually did occur. He was still apprehended on foreign soil.

Thomas said...

Lee,

You were arguing that KSM's trial should not take place in civilian court not because he's just a terrorist, but because he was an enemy combatant picked up on the battlefield. That was the crux of your argument, and you exerted a great deal of faux outrage that I was interpreting your argument in a way that would actually apply to KSM. It wasn't a quibble. You're obviously more loyal to your conclusions than the reasons that you use to get there.

And whether or not you think the Constitution applies to aliens or not is irrelevant; what matters is how the courts have construed it. If you were making an argument as to what the law is (not what you think it should be), you were quite wrong.

We've gone over your utilitarianism before, and you seem to think using bigger and bigger examples will somehow compel assent, when you're just assuming your premise. Many people are willing to cause a great deal of suffering for their own personal security, they just draw the lines in different places. You've made pretty obvious what level of suffering you're fine with so long as you can be secure. People can draw their own conclusions about what that means. That's more a matter of moral fortitude than intellectual allegiance.

Lee said...

> We've gone over your utilitarianism before, and you seem to think using bigger and bigger examples will somehow compel assent, when you're just assuming your premise.

Well, it's no longer my "utilitarianism", is it? It's *our* utilitarianism. Remember?

> Thomas: There's a big difference between allowing torture as a policy, and keeping it illegal but refusing to punish in a very rare instance that it prevents a great atrocity.

Here, you're simply using illegality as a cloak for tolerating torture if the stakes are big enough -- though you disclaim it by saying "[it] certainly doesn't make it morally permissible." That's pretty flaccid, Thomas. If it isn't morally permissible, then why not punish anyway? If in principle you're willing to accept the benefits of the act without punishing our hypothetical torturer, I consider that the same as tacit approval.

But I don't see it as utilitarianism. It's simply a conflict of moral principles. Sometimes you have to choose the greater good.

For example, can we agree that honesty is a moral principle? And can we agree that not causing harm to innocent people is a moral principle?

So them, what if you were living in 1944 Amsterdam and you happened to know a neighbor of yours is harboring Jews. You know that if you tell the Gestapo, the Jews and their benefactor are doomed. So when the Gestapo asks you if you know of any Jews being harbored, what is the moral thing to say?

If you say 'yes', you'll condemn them to torture and death. If you say 'no', you'll be telling a lie.

I think the right thing to do would be to lie to the Gestapo and to lie gladly, without a single pang of guilt, because to lie in this circumstance would be to make the correct moral choice.

To describe such a choice as utilitarianism is to say morality itself is relative. Here's what Wikipedia introduced its discussion of utilitarianism:

> "Utilitarianism is the idea that the moral worth of an action is determined solely by its contribution to overall utility: that is, its contribution to happiness or pleasure as summed among all people. It is thus a form of consequentialism, meaning that the moral worth of an action is determined by its outcome."

I don't adhere to this belief; it is not the happiness and pleasure of people that is important, but rather the pleasure of God. When two moral principles appear to clash, it's because of a higher morality behind both which must be served. It is our duty as Christians to figure out what God would want us to do based on the context.

> You've made pretty obvious what level of suffering you're fine with so long as you can be secure.

You have a very low opinion of me. But I am not the one in this discussion who always, without fail, looks for the worst possible interpretation of what you have said. You can be counted on, invariably, to do that with what I have written. How Christian is that?

Example:

> Many people are willing to cause a great deal of suffering for their own personal security

So it's "personal security", is it? Not national security? Not a desire for justice? Not a desire to minimize suffering?

> People can draw their own conclusions about what that means.

Oh, believe me, I have.

> That's more a matter of moral fortitude than intellectual allegiance.

I wouldn't rule out moral preening.