Wednesday, November 30, 2011

Why is the U.S. Senate (and one Senator in particular) so dismissive of the rights of terrorism suspects?

Update: The original post has been changed to correct an error (or two).

A long time ago in a galaxy far, far away...


I meant: a long time ago, i.e. before 9/11, one could assume that an ideologically middle-of-the-roadish Democratic Senator would support the notion that those suspected of crimes, even of terrorist activity, had certain rights, including the right not to be detained indefinitely without trial.

No longer. The Senate yesterday kept in the defense authorization bill provisions on detention that Pres. Obama has threatened to veto. According to this NYT article:

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago.

Among the supporters of these provisions is Sen. Carl Levin, Democrat of Michigan and chairman of the Senate Armed Services Committee. According to an Agence-France Presse article which I saw at Raw Story (and which I'm not linking to because my browser is having trouble with it), Levin denied the provisions would harm civil liberties (!) and (the NYT story also has this) cited a Supreme Court ruling that a so-called enemy combatant, even if a U.S. citizen, may be held indefinitely without trial (this must be Hamdi v. Rumsfeld, but that case also said the detainee had to have the right to challenge his designation as an unlawful combatant).

Interestingly, the Pentagon itself is opposed to these provisions, according to the AFP piece, and the NYT says even some former Bush admin counterterrorism officials oppose them. Why is Levin supporting them? Why did he agree to their being part of the defense authorization package? He's not up for re-election until 2014, so immediate political considerations would not seem to be the answer. Has he always been this bad on these issues?


hank_F_M said...


Is not the frist issue here status or Juridiction? Does the person fall under the provisions of Artilce 3 of the Geneva conventions on combatants and prisoners of war or is he common criminal? In either case there is a definite set of rights and duties.

If an AQ person is in fact a combatant under Art 3 it is a violation of his rights to treat him as a common criminal and vice versa. the law ha due process rules for making a determination about which the article says nothing. If the purpose of the admendment is to defeat due process then it is clearly wrong. If it is to put the person in the due process channels then it is doing the right thing.
Hank’s Eclectic Meanderings

LFC said...


Doesn't your question -- "Does the person fall under the provisions of Article 3 of the Geneva conventions on combatants and prisoners of war or is he a common criminal?" -- ignore important aspects of what has happened over the past ten years?

In Nov. 01, incident to the congressional AUMF (authorization to use mil. force) against AQ, the Bush admin said that detainees were 'enemy combatants' (i.e. in more traditional language 'unlawful combatants') -- who were, the admin claimed, NEITHER prisoners of war (and thus not entitled to Geneva Protection Art. 3 treatment) NOR common criminals, since common criminals under the Constitution cannot be sent to a holding facility like Guantanamo Bay and held for long periods without trial, which is what happened to a lot of the (alleged) AQ and other 'enemy combatants'.

In 06 the Sup Ct in Hamdan v Rumsfeld said the Military Commissions Act as then drawn violated the Geneva Conventions and UCMJ, but I believe it did not say that all detainees were henceforth to be deemed 'lawful combatants' entitled to Art 3 treatment -- if it had, there would have been no need for the Sup Ct to rule in '08 in Boumediene that detainees had a right to challenge by habeas petition their detention and their
classification as unlawful combatants.

According to the wiki article, which I just glanced through, the Obama admin officially abandoned the term 'enemy combatant' in March '09, but as the wiki article notes, human rights groups saw this change as mostly symbolic.

So your question -- is he/she a prisoner of war or a common criminal? -- is kind beside the point in this context and has been beside the point, practically speaking, for quite some time w/r/t terror suspects who are detained. In general they have been treated worse and with fewer rights than either common criminals or prisoners of war. Despite rebukes from the Sup Ct, the fed govt has basically, AFAICT, continued to treat terror-suspect detainees as a category of people not entitled to either prisoner-of-war treatment or to the usual panoply of constitutional rights accorded common criminals. Perhaps I am wrong about this -- I am not an expert on all this by any means -- but that is my impression.

The provisions in the defense auth. bill, as I understand it, aim to keep these detainees in the mil. system -- Gitmo or some equivalent -- rather than the civilian, forcing the fed govt to get a waiver if it wants to do the latter. And the other provision -- a statute saying the fed govt has the authority to keep terror suspects in military custody, indefinitely and without trial -- i.e. forever -- strikes me as of very very dubious constitutionality. Sen. Levin may have quoted extensively from some 2004 Sup Ct case, but I would be surprised if that alone can support this provision, esp. in light of Boumediene.

LFC said...


in the above, Geneva Protection should be Geneva Convention, of course

LFC said...

I agree btw that the linked NYT article is rather cryptic and it's not clear exactly how this would affect, e.g., the US citizens who have been charged in recent years with e.g. trying to blow up an SUV in Times Square (or similar acts).

The article says the provision requiring terror suspects to be placed in mil. custody exempts US citizens. But the second provision, according to the article, contains no exception for US citizens. So it's hard to know, based on this, exactly what the effects would be in certain cases.
But overall these seem like provisions that should not be in the bill.

LFC said...

The 2004 Sup Ct case Levin cites must be Hamdi v. Rumsfeld. My orig. post referred to a Sup Ct case involving John Walker Lindh which was a mistake, as there is no such case (as a brief glance at the wiki article on Lindh confirms).

LFC said...

Boy, I really made a mess of this, didn't I?

Luckily very few people read this blog and even fewer people read the comment threads.

hank_F_M said...


Members of Al Quaida are not (privileged) combatants.

To be a privileged combatant requires one be a member of the armed forces of one of the "High Contacting Parties" of the convention or at least a soverign nation state. The Taliban and Iraqi insrugents are privileged combatants because they are rebelling against the government of a high contraction power. If captured thhe are (privleged) priosner of War.

AQ deos not meet that requirment so a member of AQ who is participating in combat activates is a Unprivliged combatant (enemy combaten illegal combatant) If captured he an unprivileged prisoner of war. Despite the name entitled to most of the protections of a prisoner of war. He can pretty much be held to the end of hostilites like any other priosner of war. The biggest relavent difference is he can be tried for activities that a privileged POW would be exempt.

If an AQ person is captured is he just a civilian who happens to be affiliated with AQ or is he a combatant?

I agree the Bush Admistration totally muddied the waters. Part of the the following activities was the courts and congress enforcing and established the procedures for making a determination. The proposed amendment seems to be unaware of or ignores the distinction. Which is my gripe.

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 Wikipedia

Unprivleged combatantwikipedia

This is a concept that has been precedes the current discussion.
A Treatise on the juridical basis of the distinction between lawful combatant and unprivileged belligerent which was published in 1959 (most of the article is behind a pay wall.

Geneva 2.0 R. Charli Carpenter

Behind a paywall. If you don't have access maybe Charli can provide you with a copy, as I remeber it is excellent.

Hank’s Eclectic Meanderings

LFC said...

Thanks for the links/clarification. (I can access Charli Carpenter's paywalled article, but not from home.)

Without having seen the legislation and just based on the NYT piece, I would say it seems to ignore the civilian/combatant distinction ("any suspected member of AQ or one of its allies" is required to be put in mil. custody, absent a waiver).

I will try to look at C. Carpenter's article before commenting much further.

Except to say that I would be surprised if everyone, or even most people, whom the Bush admin detained as (unprivileged) combatants in Guantanamo or elsewhere fit the standard definition. Bin Laden's driver? So-and-so's cook?
And why have these procedures that the courts and Congress established for making the determination whether someone is a civilian or a combatant not been more widely discussed (or have I just missed the discussions)? And why were Richard Reid and U.F. Abdulmutallab (a/k/a 'the shoe bomber' and 'the underwear bomber') tried in the civilian system, in federal courts, whereas Jose Padilla was held for three-and-a-half years in a mil. prison as a combatant before his case was transferred to civilian court?

LFC said...


"He can pretty much be held to the end of hostilities like any other prisoner of war."

When do hostilities end in 'the war on terror' (or whatever its official name is now)?

hank_F_M said...

This has been a mess from the beginning.

If the previous administration had just strictly followed the original intent of existing procedures in law and regulation in force on 10 September 2001 they would have had the authority and ability to do everything they needed and a bit more. A clear in pedantic, explanation at the time would have prevented a lot of the public relations problems later.

Instead they decided this was an unusual situation and they needed to be pragmatic in applying a law that was written for other times and types of war.. Then to explain it they invented new terms, ignored contexts etc. A lot of problems could have been avoided by just calling non-protected POWs non-protected POWs' with a little explanation on the Geneva conventions. Most people have general understudying what POW means, From the article you quoted membes of congress still do not undersnad what is an illegal combatants.

It went down hill from there.


As explanation, not excuse the new regime in in DOD was "revolutionary" they did not trust the existing policies in place and wanted to "transform" DOD. The Law of War jurisdiction was primarily an Army function and if you remember the Sec Def did not get along well with the Army. So they figured they should just reinterpret everything.


Historically military commissions are the means in US law for handling these sort of activities. Usually civilian jurisdiction does not exist or can't be applied and suspects are not members of the Armed forces so UCMJ does not apply. Historically the President authorizes a commission and states the it will follow General Court Martial procedure, an established body of law, which to prevent undo command influence has some stronger safeguards than civil courts.. Instead they made they made no bones about creating a new set of rules to provide the defendant less safe guards than either military or civil law provides...Which is why the Supreme Court forced Congress to pass the Military Commission Act.

So bin Ladin's driver for example. If he was driving bin Ladin he was probably a "combatant." I understand a hearing had been held and made a fact determination on that. So he went into custody at Gitmo. At some point the investigation decided he should be prosecuted as criminal. Charges were filed. The military commissions act parallels the speedy trial act.. He was brought to trial in timely manner from when charges were filed (several years after he had been captured). He was acquitted on the main charge, which was as bogus as three dollar bill (General officers have drivers, but they do not have the private first class act as a general staff officer, the charge was not even plausible.) For the minor charge he was sentenced to time served since the filing of the charge and returned to general population. Then sent home as to get rid of an embarrassment.

How long can they be held. Normal POW are supposed to be relased with the peace treaty or eaileir at the discretion of the holding power.. I don't think a procedure exists to make a detmiation in this sort of situation.

As I have asked rhetorically else where if we lower ourselves to bin Ladin's level while defeating him, have we won?

Hank’s Eclectic Meanderings

hank_F_M said...


Please excuse the rant.

I hope your haveing a great week end.

LFC said...

Thanks for the perspective. You can rant here any time.