Well, it turns out the Senate Armed Services Committee decided to show up for work today. La-di-fucking-da. This hearing is more than four years too late, and directing any intelligent thought at all to Iraq comes six years too late. Where I come from, AWOL becomes desertion after 30 days.
It's easy to point out that the Democrats weren't in control back then, but that's irrelevant. This issue isn't about what party you belong to, it's about being an American. The complete lack of legislative oversight here is simply disgusting and they were all complicit in what was done, party or no party. The nicest thing I can say about the Republicans is that they're all a bunch of spineless yes men, and the nicest thing I can say about the Democrats is that they're all a bunch of ball-less whiners. We've got an Army that's falling apart, we've got men and women dying (not to mention all the Iraqi deaths on our hands), and Congress is more concerned with Robert's Rules of Order than anything else. They voted for the war and they've been falling all over themselves to borrow Chinese money to fund it, but they've never bothered to look at what we're actually doing.
So- our Executive branch elected types need to be impeached and our Executive branch appointed types need to go to jail. Our General Officers need to be reduced to the lowest enlisted grade and discharged. The retired ones need to be recalled to active duty for the same treatment. Our Legislative branch types need to be replaced. We ditched a bunch of them in 2006, but they haven't exactly been doing a stellar job since then- making meaningless statements and then folding to avoid being accused of "not supporting our troops." The
What's lost in this is that abuse and torture is now recognized as being official United States government policy. The United States, if I recall correctly, was founded on the belief "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights," and "That to secure these rights, Governments are instituted..." The founding of the country is one thing, but the government itself is based on principles like "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense" and "nor cruel and unusual punishments inflicted."
I maintain that when the leaders of the government deliberately and systematically refuse to obey the rules that constitute that government, then they are not acting as government officials, but as criminals operating under the color of authority.
I would like to end with more of the document that established the United States:
The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.
For protecting them, by a mock Trial from punishment for any Murders which they should commit...
For depriving us in many cases, of the benefit of Trial by Jury.
For transporting us beyond Seas to be tried for pretended offences.
For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments.
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown...
British Crown? I was expecting it to say "Bush administration." We've got to do something about these people. It's sad that the Democratic Party is the closest thing we have to an answer.
7 comments:
The Legislative hasn't been doing too badly this month- barely, by a slim 5-4 margin.
Do you mean Judiciary? I don't know what this means. And is it your position that foreigners are entitled to all the protections of the Constitution even when never on US Property? Thus, for instance, do you purport to support the proposition that the 2nd and 4th Amendments apply to people in foreign countries?
Also:
So- our Executive branch elected types need to be impeached and our Executive branch appointed types need to go to jail. Our General Officers need to be reduced to the lowest enlisted grade and discharged. The retired ones need to be recalled to active duty for the same treatment.
Does this also mean you do not believe that the concepts of sovereign immunity for public officials is a viable defense, nor that procedural due process rights should be availed upon by the parties mentioned?
I often disagree with nearly everything you write, but in this case, I find it somewhat difficult to follow your specific arguments.
Judicial it is- thank you.
The issue with granting rights has to do with custody. From a strictly military perspective, Article 2 UCMJ states that EPWs are subject to UCMJ. I didn't bother searching the rest of the UCMJ to see if any of the protections it provides specifically exclude EPWs. I'm assuming they don't.
From a general legal perspective, it makes no sense to argue that U.S. laws do not apply to people that are in the custody of the U.S. government on land quite firmly and legally under U.S. government control. Diplomatic niceties can imply whatever they want, but a military base is de facto U.S. territory. The length of custody and level of government involvement are also factors- as their custody arrangements become more institutionalized, the rules of the institution come more into play. We don't have a PFC holding a rifle on a small group of prisoners for an afternoon, we have a long-standing program that flies prisoners halfway around the world to its base and holds them for years. These prisoners aren't begging to be allowed a cigarette, they are having their cases ruled on by the Supreme Court. It would seem that American law does apply to them.
Sovereign immunity doesn't apply to individual officials. It applies to the government as an institution, but individuals who abuse their positions to act illegally are obviously not protected. The penalties I'm advocating do show a little of a bias toward that idea, though; I'm not suggesting jail for the elected officials.
Nowhere here am I suggesting that our politicians, appointees, bureaucrats and officers be denied the due process rights that they have been enthusiastically denying their prisoners. A government of laws should abide by those laws, regardless of who it is applying those laws to.
"From a strictly military perspective, Article 2 UCMJ states that EPWs are subject to UCMJ."
However, the definition of EPW includes this:
A detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. In particular, one who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy. As such, he or she is entitled to the combatant's privilege of immunity from the municipal law of the capturing state for warlike acts which do not amount to breaches of the law of armed conflict.
Would you then argue that all those at Gitmo meet this definition?
I think your classification of the great writ with regard to this issue is way off, but since it is the one matched by 5 members of the Supremes, I will conceded it. However, there was a format set up that allowed access to the DC Circuit by those detainees. If you would, I would encourage you to read the dissent in the case and let me know what you think. Although I acknowledge it is dry reading, and you are likely busy, I think you might find it interesting.
"Sovereign immunity doesn't apply to individual officials."
Actually it does, however I believe you are referring to the "stripping doctrine." Somewhat semantic argument there, but Sovereign Immunity does apply to individuals serving in an official capacity.
And I disagree with everything in that last paragraph. The Due Process rights of the detainees were exercised under the most recent judicial and legislative rulings at the time. The Enthusiastic Denying by anyone was done by those following the DTA and the most recent preceding Supreme Court Decisions.
I would argue that all those "detained" as "enemy combatants" are EPWs. Al Qaeda is a recognized organization that had state sanction until we removed the Taliban from office. They are a threat to us that our government has chosen to meet with the military. The military doesn't arrest or detain enemy combatants, it captures them. If we did this openly and by the book, Camp Delta would be a POW camp and we could hold those guys forever. Legally.
I haven't gotten too far into the majority opinion yet, and I hope life doesn't move so quickly that I skip past it. Dry as they are, Supreme Court rulings are fascinating- and dissenting opinions are just as important, especially when the ruling was 5-4.
Yes, sovereign immunity does apply to individuals, but not when they act illegally. Lazy man that I am, I can only paste together bits from Wikipedia's account of Ex Parte Young:
When an official "does something that is unconstitutional, the official cannot possibly be doing it in the name of the state... that individual is stripped of his official character. He becomes merely another citizen who can constitutionally be brought before a court..."
Stepping outside the law and the Constitution is to also step away from the legal and Constitutional protections that one enjoys in his official capacity: if a cop were to rob a bank, nobody would dream of charging the tellers with disobeying a police officer. He may be in uniform and on duty, but he is in no way acting in his official capacity. Call me crazy, but I think he belongs in jail.
I think you are significantly over-simplifying the sovereign immunity, but since I just took a law school course on the issue, and frankly don't want to go through it all again, I will simply agree to disagree. Don't get me wrong, I would argue ex parte young too, but it's not the slam dunk you seem to be envisioning.
On the first part, they need to be uniformed to get EPW protections.
You did a great job of quoting Article 5 of the Third Geneva Convention. A really great job. I read them too, and Article 5 continues: "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."
The Geneva Conventions only recognize three types of detainees: combatants, POWs and civilians. If that tribunal determines that the detained are not POWs, then they are civilians, who have their own protections- and who "may be prosecuted under the domestic law of the detaining state," according to the International Criminal Tribunal for the Artist Fomerly Known As Yugoslavia.
So international law recognizes our detainees as EPWs until our tribunals strip them of that status, which turns them into civilians who may be prosecuted under federal law. This also gives them the protections of federal law- like the fourth, fifth, sixth, seventh and eighth amendments. The law either applies to you or it doesn't- as the Tribunal for Yugoslavia stated, "There is no intermediate status; nobody in enemy hands can be outside the law."
Like I said- if we called them EPWs, we could keep them locked up forever and nobody could say "boo." But if we're not going to call them EPWs, then a whole bunch of legal crap comes into play, and we're violating all of it.
Getting back to sovereign immunity, we've had quite a few Congresscritters going to jail in the past few years because of illegal actions that they personally took in the performance of their duties- like bribery. So does this immunity only apply to the elected officials in the Executive branch? Manuel Noriega and Saddam Hussein's ghost might be curious about this.
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